Page images
PDF
EPUB

may be a less stringent necessity than that which is requisite to authorize a master to sell his ship; and we should say, that it would be a sufficient necessity if it would have induced the owner to do so if present. (k) The master cannot make this bond, if he have funds of the owner within his reach, or can borrow them on the personal credit of the owner. (1) But he certainly is not bound to take money of the shippers which may be on board, and we think he has no right to do this. (m)

The lender must use reasonable means to be sure that the necessity exists. (n) But the bond would not be avoided by a fraud of the master, (o) unless the lender knew it, or might have known it. (p)

*285

*F.Of Respondentia.

The master may hypothecate the whole of the cargo, or a part of it, to raise funds, in a case of sufficient necessity. (q) He may do this by a bill of sale, properly conditioned; but more usually and more properly by an instrument, which is called a Respondentia Bond.

This bond is nearly the same thing in respect to the cargo,

v. Col. Ins. Co. 9 Johns. 29. It has been said, that a master in a port of a State of this country other than the home port, may make a bond. Selden v. Hendrickson, 1 Brock. C. C. 396. But this cannot now be considered correct. It makes no difference whether the ship is at a port of the country where she is owned or not; the only question is whether she is so far distant from home that the owners cannot be consulted within a reasonable time. Wallace v. Fielden, 7 Moore, P. C. 398, reversing s. c. nom. The Oriental, 3 W. Rob. 243; The Bonaparte, 3 W. Rob. 298; Wilkinson v. Wilson, 8 Moore, P. C. 459; The Bonaparte, 20 Eng. L. & Eq. 649, 8 Moore, P. C. 483; The Nuova Loanese, 22 Eng. L. & Eq. 623; Agricultural Bank v. The Bark Jane, 19 La. 1.

(k) The Fortitude, 3 Sumner, 246; The Medora, Sprague, 138.

(1) The Ship Packet, 3 Mason, 255; Walden v. Chamberlain, 3 Wash. C. C.

290; The Virgin, 8 Pet. 538; The Medora, Sprague, 138; The Sydney Cove, 2 Dods. 7. Whether the master is obliged to use his own money before resorting to a bottomry bond seems doubtful. See The Ship Packet, 3 Mason, 263; Canizares v. The Santissima Trinidad, Bee, 353; The William & Emmeline, 1 Blatchf. & H. Adm. 72.

(m) The Ship Packet, 3 Mason, 258.

(n) The Aurora, 1 Wheat. 96; Thomas v. Osborn, 19 How. 31; Walden v. Chamberlain, 3 Wash. C. C. 290; Soares v. Rahn, 3 Moore, P. C. 1; The Royal Stuart, 33 Eng. L. & Eq. 602; Duncan v. Benson, Exch. 555.

(0) Altantic Ins. Co. v. Conard, 4 Wash. C. C. 662, Pet. 386.

(p) Carrington v. Pratt, 18 How. 63.

(7) The Gratitudine, 3 Rob. Adm. 263; The Lord Cochrane, 1 W. Rob. 312, 2 id. 320; The Osmanli, 3 W. Rob. 214; Pope v. Nickerson, 3 Story, 465.

communicating with its owner, if communication with such owner be practicable; and the communication must state not merely the necessity for expenditure, but also the necessity for hypothecation. Kleimwort v. Cassa Marittima, 2 App. Cas. 156. See also The Carnac, L. R. 2 P. C. C. 505; Baron v. Stewart, L. R. 3 P. C. C. 199; The Lizzie, L. R. 2 Ad. & Ec. 264; The Onward, L. R. 4 Ad. & Ec. 38, 55; The Giulio, 27 Fed. Rep. 318. — K.

which the bottomry bond is in respect to the ship; and it is construed and governed by similar principles as to its necessity, and as to its operation. (r) Thus, a loan on respondentia is a loan on maritime interest. It must therefore be made dependent for payment, both of principal and interest, on the safe arrival of the goods. And if they are lost, the lender has no claim for any payment whatever. (s) Usually the master gives to the respondentia creditor bills of lading, duly indorsed. This act may give to the creditor additional security, by the constructive possession of the goods; but it gives him no claim if they are lost. (t)

SECTION III.

OF CONTRACTS IN RELATION TO THE USE OF A SHIP.

A.

Of the Use of the Ship by the Owner.

1. WHEN HE CARRIES HIS OWN GOODS.

He may carry his own merchandise, or that of others, or he may carry both. If he carry goods for others, he carries them on freight, and the usual if not constant meaning of the word "freight" in law, is, the sum agreed on as that which *286 shall be paid to the owners of a ship for carrying the goods of others. But in common conversation, the word" freight " is also used as meaning the goods carried or the cargo, and it would seem from the early reports that this word has had this two-fold meaning for a long time. (u) And we shall hereafter see, that by the law and usage of insurance, a ship-owner may insure his freight under that name, meaning thereby not his own cargo, but what another party would have paid him for carriage of the same goods on the same voyage.

(r) The Gratitudine, 3 Rob. Adm. 260; The Osmanli, 3 W. Rob. 214; The Nostra Senora del Carmine, 29 Eng. L. & Eq. 572. Ship and freight are liable before the cargo. La Coustancia, 4 Notes of Cases, 285; The Prince Regent, 2 W. Rob. 83; The Priscilla, 1 Law Times (N. s.), 272. It may be made by the owner at a home port without necessity. Conard v. Atlantic Ins. Co., 1 Pet. 386,

[blocks in formation]
[blocks in formation]

1. OF THE RECIPROCAL LIENS OF THE SHIP AND THE CARGO.

The contract by which an owner carries the goods of others, is called a contract of affreightment. The law of freight applies where the owners of the ship are one party, and the owners of the cargo, or of a part of it, are another party. And the fundamental principle of the law-merchant in relation to this contract, is, that the ship and the cargo have reciprocal rights against each other, and liens each against the other, to enforce these rights. The meaning and effect of this rule is, that the ship-owner, by receiving the goods on board, and with or without a written or an express promise, agrees to carry the goods in that ship, to their destined port, by the proper route, at a proper time, and in safety. The elements of this agreement are, that the ship is seaworthy in all respects and particulars, (uu) including a competent and sufficient master and crew, papers, and provisions, and that proper care shall be taken of the goods, in loading them on board, in carrying them whither they should go, in there delivering them, and in navigating the ship to her destined port without needless delay or

deviation. (v) And if there be a failure in any of these *287 particulars, and the goods are thereby * injured, or their

value lessened, not only is the ship-owner personally responsible, but the ship itself is subject to the lien of the freighter or shipper of the goods, and by that lien the shipper may enforce his rights, or get from the ship itself an indemnity for the injury sustained by a violation of his contract with the owner. (w)

And on the other hand, if the goods are so carried, not only is the owner of the goods bound to pay to the owner of the ship the freight earned by the carriage, but the ship-owner has a lien on the goods to enforce his claim for his earnings against them. (x)

(uu) Kopitoff v. Wilson, 1 Q. B. D. 377. This rule is applied to river-worthiness in McClintock v. Lary, 23 Ark. 215.

(v) A needless deviation makes the carrier an insurer of the cargo. Davis v. Garrett, 6 Bing. 716; Freeman v. Taylor, 8 Bing. 124; Hand v. Baynes, 4 Whart. 204; Crosby v. Fitch, 12 Conn. 410; Bond v. The Cora, 2 Pet. Adm. 373, 379, 2 Wash. C. C. 80; Knox v. The Ninetta, Crabbe, 534.

(w) The Gold Hunter, 1 Blatchf. & H. Adm. 300; The Grafton, Olcott, Adm. 43,

1 Blatchf. C. C. 173; The Rebecca, Ware, 188; Clark v. Barnwell, 12 How. 272; Rich v. Lambert, id. 347.

[ocr errors]

(x) Certain Logs of Mahogany, 2 Sumner, 601; Drinkwater v. The Brig Spartan, Ware, 149; Cowing v. Snow, 11 Mass. 415; Pickman v. Woods, 6 Pick. 248. This lien is considered as waived by a delivery of the goods unconditionally. Sears v. Certain Bags of Linseed, U. Š. D. C. Mass. 1858, affirmed in June, 1858, by the Circuit Court, and by the Supreme Court in Bags of Linseed, 1 Black, 108.

Moreover, if the goods are once laden on board, the ship-owner thereby acquires a right to carry them the whole distance, and so earn his whole freight. And we should say, that the shipper cannot reclaim his goods and take them out of the ship, unless the owner consents, or unless the shipper pays to the owner his full freight. Some questions have arisen, and have been somewhat agitated in the courts, and may not be yet quite settled, as to the extent of the obligation of the shipper and the rights of the owner. We consider it certain, however, that the shipper cannot take his goods from the ship, without paying to the owner full compensation for any trouble or loss sustained by him. (y)

These rules or principles may be said to compose the whole law of freight; and while courts of common law may find some * difficulty in the enforcement of these liens, and especially * 288 the lien of the cargo against the ship, a court of admiralty finds no such difficulty; its process in rem being equal to the requirement of any case.

An owner of a ship may carry his own goods principally, or partly, and fill up his ship with the goods of others. Or he may carry only the goods of others. In this latter case, he may either offer the ship to the public as a general ship, or he may let her out by a charter-party.

When he offers his ship as a general ship, he usually advertises her, stating the name of the ship and of the master, her tonnage, her general character, the time of sailing, and her proposed voyage. And although he would not be bound to exact accuracy in all these particulars, he would undoubtedly be held to make compensation to a shipper who was injured without his own fault, by the material misrepresentation of the owner in any of these statements. (2) And if the owner changes his purpose in any of

It was also said that if the goods are put even in the warehouse of the consignee, under an agreement or understanding that this act shall not be a waiver of the lien, or if there is a local usage of the port to this effect, the goods may be held by a process in rem. See also Sears v. Wills, 4 Allen, 212; The Kimball, 3 Wallace, 37; The Eddy, 5 Wallace, 481; The Bird of Paradise, 5 Wallace, 545.

(y) Some cases hold that no lien for freight exists until the vessel has broken ground. Curling v. Long, 1 B. & P. 634; Clemson v. Davidson, 5 Binn. 392, 401; Burgess v. Gun, 3 Harris & J. 225; Bailey Damon, 5 Gray, 92. If this be so, then the rule of damages would be merely the

expenses actually incurred. But the better rule seems to be, that the lien for freight commences as soon as the goods are on board. Abbott on Shipping, 595; Tindal v. Taylor, 4 Ellis & B. 219, 28 Eng. L. & Eq. 210; Thompson v Small, 1 C. B. 354 Thompson e. Trail, 2 Car. & P. 334. See also Keyser v. Harbeck, 3 Duer, 373; Bartlett v. Carnley, 6 Duer,

194.

(z) An advertisement that a vessel will sail with convoy is a warranty of the fact. Runquist v. Ditchell, 3 Esp. 64; Sanderson v. Busher, 4 Camp. 54, note, Magalhaens v. Busher, 4 Camp. 54; Freeman v. Baker, 5 B. & Ad. 797. As to an adver tisement of time when a vessel will start,

these particulars, it would be his duty to vary his advertisement, or other public notice, accordingly. (a)

Goods may be carried to the port of destination, and there delivered, but in such condition that their value is greatly dimin ished, and the question may then arise, how this diminution of value affects the freight. The answer must depend upon the manner in which this diminution took place, or the causes which produced it. We have seen that the ship is responsible for any damage to the goods caused by the negligence or default of the master; and so it is for injury arising from the inherent nature or properties of the goods, if it could have been prevented by a proper condition of the ship or by reasonable care on the part of the master. But if the goods are injured by a peril of the sea for

which the ship is not responsible, or by inherent causes *289 not made operative by the fault of the ship or master,

then the ship is not responsible, and the claim for freight remains unaffected. Hence it is a rule of the law-merchant, that if goods injured by causes for which the ship is not responsible, remain in specie, and are delivered in specie, the whole freight is earned, whatever be the diminution or destruction of their value. (b)

If barrels or boxes arrive in which goods were, but there are no goods in them, as where wine, oil, or molasses leaks out, or sugar or salt melts and washes out, but the barrels or boxes arrive in good order, freight is due if the loss is occasioned by intrinsic defect or quality of the goods, as by decay, evaporation, or leakage. (c) If the loss is by a peril of the sea, no freight is payable, (d) and if the loss is owing to the fault of the vessel, the goods are paid for, deducting freight.

2. OF THE BILL OF LADING.

This is one of the most ancient documents now in use, and is very similar in its form and provisions among all commercial nations. It is a written receipt for the goods, signed by the master as the agent of the owner, and expresses the ordinary obliga

see Cranston v Marshall, 5 Exch. 395; Yates v. Duff, 5 Car. & P. 369; Glaholm v. Hays, 2 Man. & G. 257; Ollive v. Booker, 1 Exch 416; Howard v. Cobb, U. S. C. C. 19 Law Reporter, 377; Den. ton r. Great Northern R. Co., 5 Ellis & B. 860, 34 Eng. L. & Eq. 154; Mills v. Shult, 2 E. D. Smith, 139.

(a) Peel v. Price, 4 Camp 243.

(b) Jordan v. Warren Ins. Co. 1 Story, 353; M'Gaw v. Ocean Ins. Co. 23 Pick. 405; Lord v. Neptune Ins. Co. 10 Gray, 109; Ogden v. Gen. Ins. Co. 2 Duer, 204, Hugg . Augusta Ins. Co. 7 How. 595.

(c) Nelson v. Stephenson, 5 Duer, 538; Nelson v. Woodruff, 1 Black, 156.

(d) Frith v. Barker, 2 Johns 327.

« PreviousContinue »