excepting those of a certain shipper, and the master sold his goods, and claimed to deduct from the proceeds either the whole freight on those goods, or a pro rata freight, it was held that no freight was due. () So, where a vessel was captured but not condemned, and the supercargo, acting for the best interests of all concerned, sold the goods and received their proceeds, it was held that no freight was due. (k) Nevertheless, Mr. Justice Story, in an important case, held that to be a voluntary acceptance by the owners which he still declared to be "a reluctant acquiescence forced upon them by an overruling necessity." (1) Nor, when it is certain that pro rata freight is due, is it quite certain by what rule it should be calculated. One way would be to estimate it geographically, or so much per mile or league, of what has been done out of all the miles or leagues of the whole voyage. (m) The other way is to estimate it in a pecuniary way, by the cost of bringing the goods so far and the cost of sending them the remainder of the distance. country we think this latter method prevails. (n) In this 300 We have considered the rights and duties of ships as common carriers in the chapter on Bailments. Of the Use of the Vessel by Hirers or Charterers. 1. HOW CHARTER-PARTIES ARE MADE. An owner of a ship who lets it to others for them to use does so by an instrument called a charter-party. This instrument is of constant use and of great importance. Printed forms are in general use; but it is quite common to vary those forms, and modify their provisions, or add any which the parties may choose to agree upon. Nor do we know of any rule of law in this country, requiring that such a bargain be evidenced by a written document. (0) But where the charter-party is in writing, parol evidence is not admissible to vary its terms. (p) And any material alteration or addition to it, not made by consent of both parties, will make it null and void, even without fraud. (q) This rule, as to evidence, should be remembered; because any stipulation previously agreed upon by the parties, but not contained in the charter-party, will be in general regarded as waived, and therefore of no force. (r) It would seem by recent authorities, that a charter-party is not a conveyance within the meaning of the act of 1850, (s) requiring registration; (t) and in point of fact we suppose a charter-party is seldom registered. A charter-party used to be sealed in England; but is not now generally there, and very seldom has it a seal in this country. Nor is any advantage gained by a seal. (u) *301 *2. OF THE DIFFERENT KINDS OF CHARTER-PARTIES. A mere agreement hereafter to make a charter-party is not a charter-party, although it might be enforced so far as to permit damages to be recovered for a breach of it. But if the agreement contains all the terms and provisions of the instrument, and appears to have been regarded and treated by the parties as a charter-party, it would be received by the court as evidence of a charter-party, which had been made but not written. (v) If the charter-party is signed by an agent purporting to be such, as "A by B, agent," the agent is not liable on the charter-party, although his principal resides out of the country. (w) The charter-party might provide and express, that the charterer hired the whole ship, and took it absolutely into his own possession, and manned, equipped, furnished, and controlled her, during a certain period, or for a certain voyage. This, however, is very unusual. Generally, the charterer hires merely the carrying capacity of the ship, leaving the owner to hire the master and men, and to remain in possession of so much of the ship as is necessary for their accommodations, and for the storage of sails, provisions, etc. (x) As a general rule, the party that mans the vessel is considered as in possession. (y) (q) City of Boston v. Benson, 12 Cush. 61; Croockewit v. Fletcher, 1 H. & N. 893; 40 Eng. L. & Eq. 415. (r) Renard v. Sampson, 2 Kern. 561, 2 Duer, 285. See Alingren v. Dutilh, I Seld. 28. (s) C. 27, § 1, 9 U. S. Stats. at Large, 440. (t) Ruckman v. Mott, 16 Law Rep. 397; Hill v. The Golden Gate, 1 Newb. Adm. 308. (u) For the effect of a charter-party under seal, see Hurry v. Hurry, 2 Wash. C. C. 145; Ward v. Green, 6 Cow. 173; The Sch. Tribune, 3 Sumner, 149; Horsley v. Rush, cited 7 T. R. 209; Pickering v. Holt, 6 Greenl. 160; Andrews v. Estes, 2 Fairf. 267; New Eng. Ins. Co. v. De Wolf, 8 Pick. 56; Bristow v. Whitmore, H. Johns. Ch. 96, 107. (r) The Sch. Tribune, 3 Sumner, 144. See also Lidgett v. Williams, 4 Hare, 462. (w) Bray v. Kettell, 1 Allen, 80. (x) See Almgren v. Dutilh, 1 Seld, 28. (y) Palmer v. Gracie, 4 Wash. C. C. 110; Marcardier v. Chesapeake Ins. Co., 8 Cranch, 39; The Sch. Volunteer, 1 Sumner, 551; Logs of Mahogany, 2 Sumner, The master may hire the vessel as well as a stranger. He may agree either to pay a certain sum, or to take the vessel on shares; and generally now, when a master hires a vessel he takes it upon shares, and is then considered as having the entire control and possession of the vessel. (z) Nor is there any difference between a fishing voyage and any other in this respect. (a) *So, too, one part-owner may hire the vessel from the 302 others; and generally, if there be a charter-party, whether the charterer be the master, or a part-owner, or a stranger, or the government, (b) the rights and obligations of the parties will be the same, and the general rules respecting charter-parties will apply. 3. OF THE PROVISIONS OF A CHARTER-PARTY. A charter may be for one or more voyages, or for a time certain; (c) or without limitation of time, and then there is by law a limitation of time for a reasonable term; and such a charterparty would be determinable by either party after reasonable notice. (d) The charter-party should express the burden of the ship correctly. A wilful misstatement by the owner would be a fraud, which might entirely avoid the contract. And in no case would the owner be permitted to profit by his fraud. (e) But the charterer is held, although the burden be stated erroneously, if the error were innocent. (f) The owner usually stipulates that the ship is sound, stanch, and seaworthy; that he will keep her in repair, perils of the sea excepted, and victual and man her; but if these obligations were not expressed, the law would impose them on the owner. (g) For 589. It was formerly held, that if the enarter-party contained words of demise, the possession passed to the charterer, notwithstanding other provisions in the instrument inconsistent with this supposition. Hutton v. Bragg, 7 Taunt. 14. But this case is not now law. Christie v. Lewis, 2 Brod. & B. 410; Hooe v. Groverman, 1 Cranch, 214. (z) Webb. Peirce, 1 Curtis, C. C. 104; Thomas v. Osborn, 19 How. 22; Williams v. Williams, 23 Maine, 17; Cutler v. Winsor, 6 Pick. 335. (a) Mayo v. Snow, 2 Curtis, C. C. 102. See Harding. Souther, 12 Cush. 307. (b) Fletcher v. Braddick, 5 B. & P. 182; Hodgkinson v. Fernie, 2 C. B. (N. s.) 415, 40 Eng. L. & Eq. 306; Trinity Hunter v. Fry, 2 B. & Ald. 421; Barker v Windle, 6 Ellis & B. 675; Ashburner v. Balchen, 3 Seld. 262; Thomas v. Clarke, 2 Stark. 450; Leeming v. Snaith, 16 Q. B. 275; Gwillim v. Daniell, 2 Cromp. M. & R. 61; Pembroke Iron Co. v. Parsons, 5 Gray, 589; Hurst v. Usborne, 18 C. B. 144. (g) Putnam v. Wood, 3 Mass. 481; Ripley v Scaife, 5 B. & C. 167; Kimball v. Tucker, 10 Mass. 192; Goodridge v. Lord, 10 Mass. 483, 486. 1 Where the owner of a vessel charters her there arises, in the absence of express provision, an implied warranty of seaworthiness, covering defects known and unknown, any breach of this contract, the charterer has his remedy; and if unable to use the vessel in the manner proposed, he is not bound to pay any part of the charter money. (h) 303 The charterer may agree to pay a gross sum for the use of the ship, or so much a ton for the tonnage stated, or so much a ton for the cargo she proves to be able to carry; or so much by the bale, and in this case it is usual to stipulate that not less than so many shall be sent. If the charterer agrees to pay by the actual ton, and to fill the vessel, he must pay for all of her burden which he fails to occupy; (i) and this is called "dead freight." But he may load her entirely with the goods of others, or fill with them the space he does not himself use. If the stipulation is for so much a ton, it should be stated whether the ton is legal custom-house measurement, or a ton of actual capacity; for these may differ widely. If a charterer cannot fill the vessel, the master being abroad may, if not prohibited, take in for the benefit of the charterer the goods of others. (j) The charter-party usually provides that the owner binds the ship and freight to the performance of his part of the bargain, and the shipper binds the cargo to the ship for his performance (h) Dupont de Nemours v. Vance, 19 How. 162; Lengsfield v. Jones, 11 La. An. 624; Christie v. Trott, 25 Eng. L. & Eq. 262; Putnam v. Wood, 3 Mass. 481; The Bark Gentleman, Olcott, Adm. 110, 1 Blatch. C. C. 196; Worms v. Storey, 11 Exch. 427. (i) Thomas v. Clarke, 2 Stark. 450; Thompson v. Inglis, 3 Camp. 428; Duffie v. Hayes, 15 Johns. 327; Kleine v. Catara, 2 Gallis. 66. (j) Hecksher v. McCrea, 24 Wend. 304; Ashburner v. Balchen, 3 Seld. 262; Shannon v. Comstock, 21 Wend. 457; Crabtree v. Clark, Sprague, 217; Clarke v. Crabtree, 2 Curtis, C. C. 87; Wilson v. Hicks, 40 Eng. L. & Eq. 511; Bailey v. Damon, 3 Gray, 92. Kopitoff v. Wilson, 1 Q. B. D. 377; Steel v. State Line S. S. Co. 3 App. Cas. 87; The Glenfruin, 10 P. D. 103; Work v. Leathers, 97 U. S. 379; Cann v. Conery, 11 Fed. Rep. 747. This implied warranty attaches at the beginning of the voyage with the cargo on board, and is broken by unseaworthiness at that time, though the vessel is seaworthy at the place and time of loading. Cohn r. Davidson, 2 Q. B. D. 455. Where a particular kind of goods are mentioned in the charter-party, the vessel is impliedly warranted as fit to carry that kind. Stanton v. Richardson, L. R. 7 C. P. 421, L. R. 9 C. P. 390; The Lizzie W. Virden, 8 Fed. Rep. 624. There is also an implied warranty that the chartered vessel will proceed on her course without unreasonable delay, Stanton v. Richardson, supra; Jackson v. Union, &c. Ins. Co., L. R. 10 C. P. 125; and without deviation. Davis v. Garrett, 6 Bing. 1. But a deviation to save life is allowable. Scaramanga v. Stamp, 4 C. P. D. 316. It is often a difficult question to determine whether words of description in a charter-party are to be treated as amounting to a warranty. In Corkling v. Massey, L. R. 8 C. P., the vessel chartered was described as “expected in Alexandria about Dec. 15," and it was held that this was a warranty that she should arrive at about that time, and that, therefore, the charterer might sue the owner if she did not. So the description "leaving Genoa in a few days was held a warranty in Gray v. Moore, 37 Fed. Rep. 266. See also Ollive v. Booker, 1 Ex. 416; Oliver v. Fielden, 4 Ex. 135. A statement in a charter-party that a vessel is of a particular class is not a continuing warranty, but applies only to the classification at the time the charter-party is made. French v. Newgass, 3 C. P. D. 163. of the contract. If there be no such stipulation, the law-merchant implies this mutual obligation, equally whether the contract be by bill of lading or by charter-party. (k) If the owner is in possession and the charterer owes the owner for the carriage of the goods, the owner has a lien on the goods for the freight. (1) If the charterer carries the goods of others, and they are to pay him for carrying them, he has his lien on the goods for his freight. (m) But in respect to these liens the parties may stipulate as they will. If a voyage for which the vessel is chartered be a voyage out and home, a question may arise whether any freight is due if the voyage out is safely completed, and the ship is lost on her return voyage. The parties may stipulate as they will on this point. If there are no express stipulations in the contract, the question will be determined by what the law shall understand *and construe the contract which they have made, to *304 mean and to be in this respect. But there is a tendency in the courts to construe the voyage out and the voyage home as distinct voyages. (n) 4. OF LAY DAYS AND DEMurrage. A charterer is usually allowed so many days for loading, and so many days for unloading the ship. These days are called Lay Days. They are a part of the voyage, and belong to the charterer. The phrase used is sometimes "running days," or "working days, "(o) or merely "days. This last term would be construed to mean "running" days, (p) and not " working days,' unless some usage to the contrary were proved. (2) 1 The contract also usually provides that he may detain the ship (k) The Brig Casco, Daveis, 184. (2) Clarkson v. Edes, 4 Cowen, 470; Ruggles v. Bucknor, 1 Paine, C. C. 358. (m) Lander v. Clark, 1 Hall, 355. (n) Mackrell v. Simond, 2 Chitty, 666; Brown v. Hunt, 11 Mass. 45; Locke v. Swan, 13 Mass. 76. In the following cases the voyage has been held to be entire. Towle v. Kettell, 5 Cush. 18; Smith ". Wilson, 8 East, 437; Coffin v. Storer, 5 Mass. 252; Sweeting v. Darthez, 14 C. B. 538; Penoyer v. Hallett, 15 Johns. 332. (0) Brooks v. Minturn, 1 Cal. 481. (p) Brown v. Johnson, 10 M. & W. 331; Brooks . Minturn, 1 Cal. 481; Cochran . Retberg, 3 Esp. 121. (9) Where the law of the country prohibits working on Sundays or holidays, they will be excluded. Cochran v. Retberg, 3 Esp. 121. See also Gibbens v. Buisson, 1 Bing. N. C. 283; Field v. Chase, Hill & Den. 50. 1 A charter-party provided that the charterers were to "load and discharge as fast as the ship can work, but a minimum of seven days to be allowed merchants, and ten days on demurrage, over and above the said lying days." Held, that "lying days meant "working" and not " running" days, so that Sunday was not to be counted. Commercial Steamship Co. r. Boulton, L. R. 10 Q. B. 346. In demurrage, a fraction of a day counts as a day, unless there is express stipulation to the contrary. Ib. — K. |