left on shore, and have those accommodations and assistance his case requires; and Leg. Olethough the ship must not be detained to attend his recovery, yet, if this happens after- ron. c. 1. wards, he shall have his full wages, deducting only what the master may have expended for him.

If goods are thrown overboard in order to lighten, and by this means save the ship in Ditto, e. a storm, upon proof thereof, by the oaths of the master, &c. he shall be acquitted, ". though the ship, freight, and remainder of the cargo shall be brought into an average, to make good what was so thrown away for the preservation of the whole.

Though a ship shall be seized for debt, or otherwise become forfeited, the mariners Consolat. must receive their wages, unless in some cases, where they are forfeited as well as the del. Merc. ship; as in case of committing piracy, with letters of marque, by reason of which all will be forfeited; but lading of prohibited goods on board, such as wool, &c. though it Roll's subjects the ship to a forfeiture, yet it disables not the mariner of his wages; for the Abridg sailors having honestly performed their parts, the ship is tacitly obliged for their wages; but, if the ship perishes at sea, they lose their wages; and the owners their freight: and this being the marine custom is allowed as well by the common as civil law.

folio 530.

s. fin.

Barretry of the mariners is a disease so epidemical, that it is difficult for a master Just, de ob. with the greatest care to prevent it, and though he may not really be faulty yet the law jura exdil. will always adjudge him so, and impute sailors' offences to his negligence; and were it otherwise, the merchant would be in a very dangerous condition; and the reasons why a master should be responsible for his crew are, because it is of his own chusing, and un- Pasch. 11. der his correction and government, and on ship-board know no other superior but him- Jac in B. self, and if they are faulty he may correct and punish them (in a moderate manner) and vers Smith. justify the same by law; and the fact being proved against them, he may re-imburse 533. himself out of their wages.

R. Herne.

Roll's Abr.

This act explains and amends an act of 7 Geo. 2. cap. 15. intituled, An act to settle 26 Geo. 3. how far owners of ships shall be answerable for the acts of the masters or mariners.

c. 86.

From and after September 1, 1786, no person, or persons, who is, are, or shall be Sect. L owner or owners of any ship or vessel, shall be subject or liable to answer for or make good, to any one or more persons, any loss or damage, by reason of any robbery, embezzlement, secreting, or making away with, of any gold, silver, diamonds, jewels, precious stones, or other goods or merchandize, which shall, from and after that day, be shipped, taken in, or put on board any ship or vessel, or for any act, matter or thing, damage or forfeiture; done, occasioned, or incurred, from and after the passing this act, without the privity and knowledge of such owner or owners; further than the value of the ship or vessel, with all her appurtenances and the full amount of the freight due, or to grow due, for and during the voyage wherein such robbery, embezzlement, secreting, or making away with as aforesaid, shall be made, committed, or done; although the master or mariners, shall not be in any wise concerned in or privy to such robbery, embezzlement, secreting, or making away with; any law, custom, or usage, to the contrary thereof in any wise notwithstanding.

No owner or owners of any ship or vessel shall be subject or liable to answer for or Sect. 2. make good, to any one or more person or persons, any loss or damage which may happen to any goods or merchandize whatever; which from and after September 1, 1786, shall be shipped, taken in, or put on board any such ship or vessel; by reason or means of any fire happening to or on board the said ship or vessel.

No master, owner or owners of any ship or vessel, shall be subject or liable to an- Sect. 3. swer for, or make good, to any one or more person or persons, any loss or damage which may happen to any gold, silver, diamonds, watches, jewels, or precious stones, which from and after the passing this act, shall be shipped, taken in, or put on board any such ship or vessel; by reason or means of any robbery, embezzlement, making

Sect, 4.

Sect. 5.

Mich. 27.

L. C. J.

Hale,

away with, or secreting thereof, unless the owner or shipper thereof shall, at the time of shipping the same, insert in his bill of lading, or otherwise declare in writing to the master, owner or owners of such ship, or vessel, the true nature, quality, and value of such gold, silver, diamonds, watches, jewels, or precious stones.

Enacts that if several freighters or proprietors of such gold, silver, diamonds, jewels, or precious stones, or other goods or merchandize, shall suffer any loss or damage, by any of the means aforesaid, in the same voyage (fire only excepted) and the value of the ship or vessel with all her appurtenances, and the amount of the freight due, or to grow due during such voyage, shall not be sufficient to make full compensation to all and every one of them, then such freighters or proprietors shall receive their satisfactions thereout in average, in proportion to their respective losses or damages; and in every such case, it shall and may be lawful to and for such freighters or proprietors, or any of them, on behalf of himself and all other such freighters and proprietors, or to and for the owners of such ship or vessel, or any of them, or on behalf of himself and all the other part owners of such ship or vessel, to exhibit a bill in any court of equity for a discovery of the total amount of such losses or damages, and also of the value of such ship or vessel, appurtenances and freight, and for an equal distribution and payment thereof amongst such freighters and proprietors, in proportion to their respective losses or damages, according to the rules of equity; provided always, that if any such bill shall be exhibited, by or on the behalf of the part-owners of such ship, the plaintiff or plaintiffs shall annex an affidavit to such bill or bills, that he, or they do not collude with any of the defendants thereto; and shall thereby offer to pay the value of such ship or vessel, appurtenances, and freight, as such court shall direct; and such court shall thereupon take such method for ascertaining such value, as to them shall seem just, and shall direct the payment thereof, in like manner as is now used and practised in cases of bills of interpleader.

Provided always, that nothing in this present act contained shall extend, or be construed to extend, to impeach, lessen, or discharge any remedy, which any person or persons now hath or shall or may hereafter have, against all, every, or any the masters and mariners of such ship or vessel, for or in respect of any embezzlement, secreting or making away with any gold, silver, diamonds, jewels, precious stones, or merchandize, shipped or loaded on board such ship or vessel, or on account of any fraud, abuse, or malversation of and in such masters and mariners respectively; but that it shall and may be lawful to and for every person or persons so injured or damaged, to pursue and take such remedy for the same, against the said master and mariners respectively, as he or they might have done before the making of this act.

When goods are once delivered to a master, they are not subjected to be attached in Care2 per his hands, nor can any custom whatsoever support the same, for they are in law as it were bailed to the ship, until the freight and all other charges are paid and it is very much doubted whether an attachment can be made in London of any goods lying on board ship, in the river of Thames (though the port of London) notwithstanding freight, and all other charges are paid off.

Hill.8Ann.

cery.

Commissioners of bankruptcy issued a warrant to seize goods of a bankrupt on board in ehan- two ships in Topsham bay in Devonshire; the goods were consigned to persons in Holland, who had not paid the bankrupt for them; the masters refused to deliver the goods notwithstanding the warrant, which occasioned the commissioners coming to demand them, though they were still refused.

Sir Peter King moved for an order upon the masters for their contempt.

The court at first greatly doubted, whether they could make an order in aid and assistance of the warrant of the commissioners of bankruptcy, the statute having vested a large power in them; besides, the persons, to whom the goods were consigned, would

be indebted to the creditors of the bankrupt, which creditors may recover by the law of Holland.

Sir Peter King. We shall rather lose the goods than follow them into Holland. Lord Chancellor. Their refusing to deliver the goods upon warrant is no contempt to this court, though the commissioners act under a commission under the broad seal : the masters in this present case have some colour to detain the goods, for upon a delivery of them, they may be disappointed of freight, and the assignees of the commission must stand in the same place as the bankrupt, and be subject to his contract.

But, however, an order was made upon the masters to deliver the goods upon payment of the freight, and the masters to be indemnified by the creditors against a bill of lading, which was sent by the consignees.

I have now finished the subject of ships and seamen, which has been spun out to a great length by the necessary quotations of the cases and laws so interesting a topic calls for; and I think the omitting of any of them would have rendered the discourse defective. I shall now, according to my proposed method, proceed to treat of other marine affairs; such as

Freight, Charterparties, Bills of Lading, Demurage, and Bottomry.

FREIGHT is the sum agreed on for hire of a ship, entirely or in part, for the carriage See Abof goods from one port to another, or to many ports; and must be paid in preference of Shipto all other debts, for whose payment the goods stand engaged, but as those are respon- ping. sible to the ship for her hire, so is the ship to the owner of the goods, in case of damage or waste, through any defect of the vessel or sailors.

Freight.

Charterparty (Charta Partita, i. e. a deed or writing divided) is the same in the Chartercivil law with an indenture as the common law. The parties are either the owners of party. ships on the one part, and merchants on the other; or masters of ships, invested by the owners with power to enter into charterparties, and merchants. It is necessary to state this distinction, because the owners often charter a ship outwards, and leave it to the discretion of the master to procure the best back freight he can in the foreign port to which the cargo is consigned. The charterparty settles the agreement, as the bills of lading do the contents of the cargo, and binds the master to deliver them well conditioned at the place of discharge, according to the agreement; and for performance, the master or the owner obliges himself, ship, tackle, and furniture.

The taking a ship to freight is the hiring her of her master or owners, either in part or the whole, and either by the month for an entire voyage, or by the ton; and the contract, reduced into a writing, is commonly called a charterparty, executed between the freighter and the person who lets the ship, and expressive of the different particu lars agreed on, as aforesaid.

The master or owners generally covenant to provide both a sufficiency of tackle and mariners, and to fit the ship in every respect for performing the voyage agreed on; and the merchant, on his part, stipulates to comply with the payment, promised for freight, on delivery of his goods, and both oblige themselves in penalties for non-compliance; the nature and form of which will be shewn in the subsequent copy of a charterparty, and the consequent security of a bill of lading, both which I have inserted for my readers government.

Nav. Rhod

If there be a verbal agreement only, and earnest given, and the same be broke off by Per Leg. the merchant, according to the Rhodian law, he loses his earnest; but, if the owners art. 19. or master repent, they forfeit double.

2B2

Cro. Car. 383.

Jure Mar. 1.2. cap. 4. sect. 3.

Cro. Car.

But by the common law of England the party damnified may bring his action on the case, and recover all damages on the agreement.

If, by the time appointed in the charterparty, the ship is not ready to take in, or the merchant (after the days of demurrage commonly granted) not ready to load, the parties are at liberty, and the suffering one hath his remedy against the other by action, to recompense the damage.

If part of the loading be on board, and some intervening misfortune prevents the merchant from shipping the whole in time, the master is at liberty to contract with another, and shall have freight by way of damage for the time that those goods were on board after that limited; for such agreements, being of a conditional nature, a precedent failure as to a complete loading will determine the same, unless afterwards affirmed by consent; and though it be no prudence for every merchant or master to depart from the contract, on a non-compliance of articles, yet it is the highest justice that ships and masters should remain free; for otherwise, by the bare lading of a cask or bale, they might be defeated of the opportunity of passage, or season of the year.

So, on the other hand, if the vessel be not ready, the merchant may ship the remain. 283.3 Lev. der of his goods on board another and discharge the first, and recover damages against the master or owners for the rest; this being grounded on the like reason as the former. Charterparties have always by the common law had a genuine construction as near as may be, and according to the intention and design, and not according to the literal sense of traders, or those that merchandize by sea, yet they must be regularly pleaded; and therefore in an action of covenant or an indenture dated the 9th Oct. 38 Eliz. where in was recited, whereas by indenture of charterparty dated, Sept. 8, 38 Eliz. between the plaintiff and Francis Cherry, the plaintiff having hired of him a ship, for a voyage to Dantzic, upon taking the ship it was agreed between them, that the ship should be laden with corn at Dantzic, and sail from thence to Leghorn: Now by the said indenture, in consideration the plaintiff had agreed, that the defendant should have the moiety of corn, quod tunc fuit, (what then was) or afterwards should be laden in the ship during the said voyage, the defendant covenanted to pay the moiety of the money for the said corn, quod tunc fuit, or afterwards should be laden, &c. and allegeth in facto (in fact) that Oct. 9, 38 Eliz. the ship was laden with sixty lasts of corn, and for not performance of this covenant the action was brought; the defendant pleaded, that deed was sealed and delivered Oct. 28, 38 Eliz. & quod ad tunc vel posted (and that at that time or afterwards) there was not any corn laden there, and traverseth the delivery Oct. 9, or at any time afterwards before the 28th Oct. 38 Eliz. and it was adjudged upon demurrer, that in regard the plaintiff declared upon a deed dated Oct. 9, 38 Eliz. it shall be intended to have its essence and delivery at that time, and no other; and if he should confess it to be delivered at any other time, it would be a departure from his declaration, and the word tunc is referred to the delivery, and not to the date; and if it were delivered ten months after the date, he should not have the benefit of the corn 2 Cro. 263. laden before the delivery: And therefore the defendant was adjudged not to be charged Sir Bapt. with paying for any corn before the delivery of the deed, the words of the deed being, that he should pay for the corn then laden, &c. which (then) is referred to the time of the essence of the deed by the delivery, and not to the date.

Ostey vers.

Hicks.

3 Bulst.

152. 1 Ro. 312.

Atkinson contracted with Buckle for the carriage of an hundred quarters of barley, and promised to deliver unto him the hundred quarters of barley a ship-board at Barton Haven in the county of York, to carry them for him, and for the carriage thereof did promise to pay him so much; and Buckle promised to carry the same for him, and accordingly brought his ship to the said haven, expecting there the delivery of the hundred quarters of barley; but Atkinson came not to deliver the same to him, whereupon

Buckle brought his action of the case upon the promise, and upon non assumpsit pleaded, had a verdict and judgment, which was affirmed upon a writ of error.

Covenant upon a charterparty between Bolton owner, and Lee and Morgan merchants, freighters of a ship, let by Bolton, on freight, for a voyage to Guinea, at 481. per mensem, and there was a mutual covenant between the parties, & quemlibet eorum modo sequente (and each of them in the following manner) and then divers covenants follow, concerning the ship's tackle and performance of the voyage; and then a covenant for the payment of the freight (viz.) when the ship arrived at Guinea, the freight then due, was, upon notice, to be paid in England; and when she arrived in England, the residue, from the time of the last payment, was to be paid. And saith that at such a time the ship arrived, and that six months and ten days were then past, which came to so much, whereof notice was given; and that after such a time the ship arrived in England, and that the freight for six months, from the time of the last payment, came to 2871. 4s. and that the defendant had not paid any of the sums; upon which the defendant demurred, and took these exceptions to the declaration.

Cas. 154.

1. For this, that the action is brought against one of the defendants only, omitting 1 Mod. the other, sed non allocatur (but not allowed), the covenant being between them, et quem- Cal. 398, libet eorum, (and each of them) is joint and several of every part.

2. For that it appears upon computation, the plaintiff demanded more upon the first breach than is due, by 30s. and less than is due upon the second by 16s. and though that the first may be cured by the jurors finding less, or by the plaintiff's releasing the overplus, yet where he demands less than is due, it is incurable; and cited several books there quoted for that purpose in assumpsit, where, as in this case, only damages are to be recovered; and on the other part was cited, Cro. Jac. 498. Pemberton v. Shelton, and 529, Parker v. Curson and Uxor. See 2 Levinz 4. Hulme and Sambers; and 2 Vent. 129. Welby and Philips. Hale C. J. took a difference between this case of covenant and debt, and held, that after verdict it had been cured without question; but upon demurrer there may be some doubt, the demurrer being general; but had the demurrer being special, it had been ill, and ruled judgment, pro quer. 2 Levinz 56, and 3. Keble 39 and 50, Bolton and Lee.

pl. 2.

Rhod.

If goods are fully laden on board, and the ship hath broke ground, and the merchant Ad. Leg. on consideration determine again to unload them, and not prosecute the adventure, by the marine law the freight is due.

Jud. ult.

ad

Paulus,

And if the ship in her voyage becomes unable, without the master's fault, or that the Leg. Oler. master or ship be arrested by any foreign prince, or state, in her voyage, the master Rhod. may either mend his ship, or freight another; but if the merchant will not consent thereto, then the freight becomes due, for so much as the ship hath earned; otherwise Digest. the master is liable for all damages that shall happen: and therefore if that ship to 1. 14. c. 2. which the goods were translated perished, the master shall answer; but if both the ships sect. 10. perish, then he is discharged: but in case of extreme necessity, as that the ship would be in a sinking condition, and an empty ship is passing by, or at hand, he may translate the goods; and if that ship sinks or perishes, he is there excused; but then it must be apparent that the ship seemed probable and sufficient.

If a master shall weigh anchor, and sail after the time covenanted or agreed for his departure, if any damage happens at sea after that time, he shall refund and make good all such misfortune; yet if a charterparty is made, that the plaintiff shall sail from London to Lisbon, with the first wind and opportunity, &c. in consideration of which the merchant did covenant to pay so much for freight; the ship departs not with the first. wind and opportunity, yet afterwards breaks ground, and arrives at her port, the freight Popham in this case is become due; for there is nothing can bar the ship of her freight, but the 998. Latch not departure, for only that in law is traversable, being material to avoid the payment 12, 49.

161. Palm.