2Vern.210. 2Vern.212. 2 Vern.727. Leg. Relagatiff. de pænis & of the freight; but to say the ship did not depart with the next wind, is but a circumstance, which, in strictness of law is not traversable. If it be agreed, that the master shall sail from London to Leghorn in two months, and freight accordingly is agreed on, if he begins the voyage within the two months, though he does not arrive at Leghorn within the time, yet the freight is become due. The East India Company might by charterparty keep a ship they had freighted a long time in India, and did so keep her until she was unfit for service, and could not come home; they were obliged in chancery to pay the damage, though by the charterparty it was payable at the return of the ship. So where no freight was to be paid for the cargo outwards, but freight for the cargo homewards, and the factor abroad had no goods to load her homewards, payment of the freight was decreed. And if a ship is freighted to go to any place to load, and on arrival there the factor cannot, or will not put any thing on board her, after the master has staid the days agreed on by charterparty, and made his regular protests, he shall be paid, empty or full. Though the officers and mariners gave bond not to demand wages, unless the ship returned to London, she arrived at a delivering port and afterwards was taken by the enemy, they had their wages to the delivering port. If a ship is freighted from one port to another, and thence to a third, fourth, and so home to the port from whence she first sailed (commonly called a trading voyage) this Leg. ult. de is all but one and the same voyage, so as it be in conformity to the charterparty. sep. vio. Trin. 9 Jac. in C. B. Rot. 636, A merchant agrees with a master, that if he carries his goods to such a port, he will then pay him such a sum; in the voyage the ship is assaulted, entered and robbed by Bright v. pirates, and part of her lading taken forth, and afterwards the remainder is brought to the port of discharge; yet the sum agreed upon is not become due, for the agreement is not by the master performed. Cooper. 1 Brownl. 21. 1 Co. 97. Shelley's Case. Reginer and Though by the civil law this is vis major or casus fortuitus (the greater force or an accidental case) there being no default in the master or his mariners, and the same is a danger or peril of the sea, which if not in naval agreements expressed, yet it is naturally implied; for it is certain, that if those goods which the pirates carried away had been in stress of weather thrown overboard, the same would not have made a disability as to the receipt of the sum agreed on; for both by the common and marine law, the act of God, not an Ene- or that of an enemy, shall no ways work in private actions. Fogassa's Com. But a my. Jure Mar. If a ship be freighted by the ton, and she is full laden according to the charterparty, the freight is to be paid for the whole, otherwise but for so many ton as the lading amounted to. If freight be contracted for the lading of certain cattle, or the like, from Dublin, to 1.2. ch. 4. West Cheshire, and some of them happen to die before the ship's arrival, the whole freight is become due as well for the dead as the living. s. 8. Ditto. Ditto, Ditto. Ditto. But if the freight be contracted for the transporting them, at so much per head, if death happens, there ariseth due no more freight than only for such as are living, at the ship's arrival at her port of discharge, and not for the dead. When cattle or slaves are sent aboard, without any previous agreement for lading or transporting them, but generally, then freight shall be paid as well for the dead as the living; and if freight be contracted for the transporting of women, and they happen in the voyage to be delivered of children, no freight becomes due for the infants. If goods are sent on board, generally, the freight must be according to that commonly paid for the like accustomed voyages. If a ship shall be freighted, and named to be of such a burthen, and being freighted by the ton, shall be found less, there shall be no more paid than only by the ton, for all goods that were laden on board And if a ship be freighted for two hundred tons or thereabouts, the addition of there- Ditto. abouts is commonly reduced to be within five ton, more or less, as the moiety of the number ten, whereof the whole is compounded. Jones vers. If a ship be freighted by the great, and the burthen of it not expressed, yet the sum Chass, & certain is to be paid. Lovering If a freighter, by loading prohibited or unlawful goods, occasions the ship's detention, Stylos.220. or otherwise impedes her voyage, he shall pay the freight contracted and agreed for. Jac. B. R. When a ship is freighted out and in (or out and home) there is no freight due till the Trin. 9. whole voyage is performed; so that if she be cast away coming home, the freight out- Bright vers. wards, as well as inwards, becomes lost. Cowper. ry. 13 July, A part owner of a ship sued the other owners for his share of the freight on finishing Part 2. her voyage: but the other owners had fitted her out, in which the complainant would In Chancenot join, whereupon the other owners complained in the Admiralty; and by order 1689. there, they gave security, if the ship perished in the voyage, to make good to the plaintiff his share, or to that effect; in such a case, by the law marine and course of the Admiralty, the plaintiff was to have no share of the freight; it was referred to Sir Lionel Jenkins to certify the course of the Admiralty, who certified accordingly, and that it was so in all places, for otherwise there would be no navigation; whereupon the plaintiff's bill was dismissed. ron; Leg. 25. If a master lets out his ship, and afterwards secretly takes in other goods unknown to Leg. Olethe first freighter, by the law marine he loses his freight; and if it should so fall out, Naval. that any of the freighter's goods should for safety of the ship be cast overboard, the Rhod. art. rest shall not become subject to the average, but the master must make the damage good; though, if the goods are brought into the ship secretly and unknown to him, it Consul. is otherwise; and goods so brought in, may be subjected to what freight the master Del. Mer. thinks fit. ron. When a ship puts into any other port than that she was bound to by agreement, the Leg. Olemaster shall answer all damages that shall accrue thereby; but if she was forced in by' storm, enemies, or pirates, he must afterwards proceed to that he was obliged to by the contract. leg. certi In construction of law, the lading of the ship is tacitly obliged for the freight, the Bald. in same being in point of payment preferred before any other debts to which the goods so Juris in+ laden are liable, though such debts, as to time, were precedent to the freight; for the Q. in Verb. goods remain, as it were, bailed for the same; nor can they be attached in the master's Cod, locat. hands, though it is commonly conceived otherwise. quid ergo Ayles; by As ships deserve wages like a labourer, the actions touching the same are, in the eye Stanly vers. of the law, generally construed favourably for the ship and owners; and therefore if four Hale. parts in five of them shall make up their accounts with the freighters, and receive their 3 Keb. 444. proportions, yet the fifth man may sue singly by himself without joining with the rest, and this as well by the common law as the law marine. Stalkham If a ship in her voyage happens to be taken by an enemy, and afterwards is re-taken ? R. 2. by another ship in amity, and restitution is made, and she proceeds on in her voyage, Abridg. 54, the contract is not determined, though the taking by the enemy divested the property out of the owners; yet by the law of war, that possession was defeasible, and being recovered in battle afterwards, the owners become re-invested; so the contract, by fiction of law, became as if she never had been taken, and so the entire freight becomes due. Styles 132. It was covenanted by a charterparty, that a ship should return by a certain time Pickering within the river of Thames, (the dangers of the sea excepted) and afterwards in the and Barkly. voyage, and within the time of the return, the ship was taken upon the sea by enemies 2 Roll's. unknown to the covenanter, and being detained by them could not return within the bride. 248. Boyce vers. 26. 27 Car. river of Thames, within the time mentioned in the covenant. Resolved, this impediment was within the exception, for these words intend as well any danger upon the sca by pirates or men of war, as dangers of the sea, by shipwreck, tempest, or the like. If freight be taken for a hundred tons of wine, and twenty of them leak out, so that Cole Hill there is not above eight inches from the bulge upwards, yet the freight becomes due; 2. B. R. but, if they be under eight inches, some conceive it then to be in the election of the freighters to fling them up to the master for freight; but most think otherwise; for if all had leaked out (if there was no fault found in the stowage, by a survey from the Trinity-house) there is no reason the ship should lose her freight; for the freight arises from the tonnage taken, and if the leakage was occasioned through storm*, the same perhaps may come into an average. Molloy 224, 225. It is certain if a ship freighted by the great be cast away, the freight is lost; but if by the ton or parcels, and part thereof is saved from the wreck; doubted whether pro rata, she ought not to be answered her freightt. If a ship by charterparty, reciting her to be of the burthen of 200 tons, is taken to freight for a sum certain, to be paid at her return, the sum certain is to be paid, though the ship amounts not to that burden. In case a ship is freighted after the rate of 201. for every month that she shall be out, to be paid after arrival at the port of London; and the ship is cast away coming up from the Downs, but the lading is all preserved, in this case the freight is become due; Ju, Marit for the money arises so monthly by the contract, and the place mentioned is only to shew where payment is to be made; for the ship deserves wages like a mariner who serveth by the month; and though he dies in the voyage, yet his executors are to be answered pro rata. Besides, the freight becomes due by indentment on the delivery or bringing up of the commodities to the port of London, and not of the ship. 1 Bulst.176. a. Dy.76, a. If a man freights a ship out, and covenants that the ship should sail out of that port to 1 Inst. 204, Cadiz with the first fair wind and opportunity, and the freighter covenants, that for the 2Sand. 350. freight of all the premises he would pay unto the master 1841. if the master does not aver, that the ship did not arrive at the port of Cadiz, he cannot maintain an action against the freighter. If the master enters into a charterparty for himself and owners, the master in that case may release the freighters, without advising with the owners; but if the owners let the ship out to freight, whereof J. J. is master, though the master covenant in the same charterparty and subscribes, yet his release in that case will not bind the owners, but the owners' release on the other hand will include the master; and the reason is, for that the master is not made a proper party to the indenture. And so it was ruled, where an indenture of charterparty was made between Scudamore and others, owners of the good ship called the B, whereof Robert Pitman was master, on the one part, and Vandenstene on the other part; in which indenture plaintiff did covenant with the said Vandenstene and Robert Pitman, and bound themselves to the plaintiff and Robert Pitman for the perCro. Eliz. formance of covenants in 600l. and the conclusion of the indenture was-In witness 56. Scuda- whereof the said Robert Pitman put his hand and seal, and delivered the same: in an vers. Pit- action of covenant, for not performing certain covenants in this indenture, the defendant a pleaded the release of Pitman, whereupon the plaintiff demurred, and it was adjudged, B. R. cited that the release of Pitman did not bar the plaintiff because he was no party to the indeninture; and the diversity in that case was taken and agreed between an indenture recipro673. 2 Le- cal between parties on the one side, and parties on the other side, as that was; for there more & Al. man. Trin. in Coke 2 vinz 74. * Masters should take care to make their regular protests after a storm, as they may suffer severely by omitting it. It is common to give up what it saved to the assurers, that the assured may recover the whole insurance. Child and no bond, covenant, or grant, can be made to, or with any that is not party to the Cook and deed; but where the deed indented is not reciprocal, but is without a between, &c. as gevins omnibus christi fidelibus, &c. there a bond, covenant, or grant, may be made to divers 138. Gilby several persons. v. Copley, que semble Clement ▼ Abr. 22. If an indenture of charterparty be made between A. and B. owners of a ship of the contra. one part, and C. and D. merchants of the other part; and A. only seals the deed on Henley the one part, and C. and D. on the other part; but in the indenture it is mentioned 2 Roll's that A. and B. covenant with C. and D. and C. and D. covenant with A. and B.: In this case, A. and B. may join in an action against C. and D. though B. never seals the deed, for he is a party to the deed, and C. and D. have sealed the other part to B. as well as to A. Covenant upon a charterparty by which the master of a ship covenants to sail with the first fair wind to Barcelona, and that the mariners shall attend with a boat to relade the ship, and then to return with the first fair wind to London, and to unlade and deliver the goods; and the merchants covenant to pay so much for freight, and so much for demurrage every day; the master brought his action for the freight and demurrage, and declares that he sailed such a day, with the first fair wind, and upon all the other points. The defendant pleads quoad the freight, that the ship did not return directly to London, but went to Alicant and Tangier, and made divers deviations, and by these 3 Levinz delays the goods were spoiled; and as to the demurrage, that this was occasioned by 41. Cole the negligence of the mariners, in not attending with the boat to relade the ship, to let; Sir which the plaintiff demurred; and per curiam pro quer. for that the covenants are 216. mutual and reciprocal, upon which each shall have his action against the other, but shall Showers v. not plead the breach of one in bar of another, for perhaps the damage of the one side and the other are not equal. cont, Shal Tho. Jones, Cudmore. p. 117. If a factor freights a ship, by order and for account of another, out and home, and Lex Merc. a charterparty is accordingly made and indented between him and the master, the factor is liable for the freight and performance of all covenants; but if the ship be only freighted outwards, and loaded by the factor, the goods shipped are only liable for the freight, and no demands to be made on the freighters in virtue of the charterparty but the person who receives the goods is to pay it, according to the tenour of the bill of lading. If a ship is freighted out and home, and after having delivered her cargo at the place agreed on, there are no goods provided for her re-lading, the master must stay the days of demurrage agreed on by charterparty, and make his regular protest for his freighter's non-compliance, who will in this case be obliged to pay him empty for full; though should the master not wait the time stipulated, or omit to make his protest, he will lose his freight; and in case the master, on his finding no goods provided by his freighter, should determine to load some on his own account, as salt, or the like, this will not obstruct his recovering his freight; for if the ship had been laden only with salt by the merchant, which (it may be) would not pay half the freight, yet the shipper or proprietor may at pleasure abandon the same to the master for his freight, and he can demand no more by the charterparty; but if the master take in such salt on his own account, before the days of demurrage are expired, and that by some condition made. with his freighter, he may claim freight, then this latter is to have the benefit of the salt in deduction of the said freight. Form of a Charterparty of Affreightment. This charterparty, indented, made, &c. between A. B. of, &c. mariner, master, and owner of the good ship or vessel called, &c. now riding at anchor at, &c. of the bur then of two hundred tons, or thereabouts, of the one part, and C. D. of, &c. merchant, of the other part, witnesseth, that the said A. B. for the consideration herein-after mentioned, hath granted, and to freight letten, and by these presents doth grant, and to freight let, unto the said C. D. his executors, administrators, and assigns, the whole tonnage of the hold, sternsheets, and half deck, of the said ship or vessel, called, &c. from the port of London to, &c. in a voyage to be made by the said A. B. with the said ship, in manner hereafter mentioned (that is to say) to sail with the first fair wind and weather, that shall happen after, &c. next, from the said port of London, with the goods and merchandize of the said C. D. his factors, or assigns, on board, to, &c. aforesaid (the dangers of the sea excepted) and there unlade and make discharge of the said goods and merchandizes; and also shall there take into, and aboard the said ship again, the goods and merchandizes of the said C. D. his factors, or assigns, and shall then return to the port of London, with the said goods, in the space of, &c. limited for the end of the said voyage. In consideration whereof the said C. D. for himself, his executors, and administrators, doth covenant, promise, and grant to and with the said A. B. his executors, administrators, or assigns, by these presents, that the said C. D. his executors, administrators, factors, or assigns, shall, and will, well and truly pay, or cause to be paid unto the said A. B. his executors, administrators, or assigns, for the freight of the said ship and goods, the sum of, &c. (or so much per ton) within twentyone days after the said ship's arrival, and goods returned and discharged at the port of London aforesaid, for the end of the said voyage: And also shall and will pay for demurrage (if any shall be by the default of him the said C. D. his factors or assigns) the sum of, &c. per day, daily, and every day, as the same shall grow due. And the said A. B. for himself, his executors, and administrators, doth covenant, promise, and grant, to and with the said C. D. his executors, administrators, and assigns, by these presents, that the said ship or vessel shall be ready at the port of London, to take in goods by the said C. D. on or before, &c. next coming. And the said C. D. for himself, his, &c. doth covenant and promise, within ten days after the said ship or vessel shall be thus, ready, to have his goods put on board the said ship, to proceed on in the said voyage; and also on the arrival of the said ship at, &c. within, &c. days, to have his goods ready to put on board the said ship, to return on the said voyage. And the said A. B. for himself, his executors, and administrators, doth further covenant and grant to and with the said C. D. his executors, administrators, and assigns, that the said ship or vessel now is, and at all times during the said voyage shall be, to the best endeavours, of him the said A. B. his executors and administrators, and at his and their own proper, costs and charges, in all things made and kept stiff, staunch, strong, well apparelled, furnished, and provided, as well with men and mariners, sufficient and able to sail, guide, and govern the said ship, as with all manner of rigging, boats, tackle, apparel, furniture, provision, and appurtenances fitting and necessary for the said men and mariners, and for the said ship during the voyage aforesaid. In witness, &c. The following is the Form of a Charterparty, whereby the Owners of one Moiety of a Ship let to Freight their Share to the Owners of the other Moiety. This charterparty, indented, made, &c. between A. B. and C. D. of London, mer chants, owners of the one moiety or half part of the good ship or vessel called the Neptune, of the burthen of 200 tons, with the like moiety of all the sails, masts, tackle, apparel, furniture, ordnance, and appurtenances thereunto belonging, now riding at anchor in the river of Thames, within the port of London, of which the said C. D. is master of the one part, and E. F. and G. H. of London, merchants, owners of the other moiety and residue of the said ship, with the masts, sails, tackle, ordnance, furniture, |