Part IV. party, and it was contended that the plural words must be applicable to them and not to the principal; but the court held that the manifest intention was that the defendants should not be personally liable (a). as to party agent. Parol evidence It may be shown by parol evidence that either party to a chartersigning being party not under seal, contracted as agent for the purpose of enabling the undisclosed principal to sue in an action for the non-performance of same, or for the purpose of charging him for a breach of it but such evidence cannot be given for the purpose of discharging either party from the liability which, upon the face of the charterparty, he has incurred, as that would be admitting parol evidence for the purpose of contradicting a written document (c). Where a person contracts in the body of a charter-party and signs "as agent," his principal being undisclosed, evidence is admissible to show a custom that he shall be personally liable if he does not disclose his principal's name within a reasonable time (d). If a charter-party be concluded in the name of another styling himself as owner, though in truth only an agent, the real owner cannot sue upon it, evidence not being admissible to contradict the statement in the contract (e). Cesser clause A person who professes to enter into a contract for another, having no authority to do so, may be made liable on an implied promise that he had authority to sign as agent (ƒ). A principal may be held liable on a contract entered into without his authority by an agent, if he has held him forth, or allowed him to hold himself forth publicly in previous transactions as agent, in a way to have induced a reasonable inference in the mind of the person seeking to enforce the contract, that he had authority to bind his principal (g). Clauses expressly protecting persons signing charter-parties from as to liability. "all liability after shipment of the cargo, the owners and masters agreeing to rest solely on their lien on the cargo for freight and demurrage" (h), and clauses providing that the liability of persons in every respect, and as to all matters and things as well before as after the shipping of the cargo," should "cease as soon as they had shipped the cargo" (i), have been held effectual for their object, and to exempt the freighters from liability for demurrage and for not shipping in regular turn (k). (a) Deslandes v. Gregory, 29 L. J. Q. B. 98; 2 E. & E. 602. (b) Paterson v. Gandasequi, 15 East. 62. (c) Higgins v. Senior, 8 M. & W. 834. (e) Humble v. Hunter, 12 Q. B. 310. (g) Smith v. McGuire, 3 H. & N. 560. (h) Rederson v. Lotinga, 28 L. J. 267. (i) Oglesby v. Yglesias, 3 B. & E. 930; 27 L. J. Q. B. 356. (k) Milvain v. Perez, 30 L. J. Q. B. 91; 3 E. & E. 495. See Sanguinetti v. Pacific Steam Navigation Co., 46 L. J. Q. B. 105, L. R. 2 Q. B. D. 74, where it was held that a similar clause protected the charterer, though he was also consignee, and the action was brought for the detention of the ship whilst loading. Lester v. Van Haansbergen, 45 L. J. Q. B. 495; French v. Gerber, 45 L. J. Q. B. 880; 46 L. J. Q. B. 320; L. R. 1 C. P. D. 737, As to compel As respects the performance of the stipulations of a charter-party, Chap. 1. we may here observe that it is not a mere contract for the conveyance of goods from one place to another, but for the service of a specific ling specific ship, often after careful consideration of the purposes for which performance it is adapted, and of the cargo and voyage for which it is required. and injuncThe shipowner's contract, relating as it does to the ship's condition tion. and equipment at the commencement and during the course of the voyage, the appointment of a competent master, the engagement of an adequate crew, the supply of the necessary stores, and the course and prosecution of the voyage, is such as to render the interference of a court to enforce a specific performance of it, with any practically beneficial effect, impossible. The charterer, is therefore, from the necessity of the case, left to his action to recover damages for the breach of the shipowner's contract in any of these particulars. But a court will interfere to restrain by injunction the employment of a ship by its owner in a manner inconsistent with the contract (1). 2. Of the usual Contents thereof. Stipulations as to Voyage, Freight, Burthen of the Ship, &c. [By this contract a ship is let for a voyage to one or more places; the freight is expressed to be a sum of money for the entire ship, or an entire part of the ship, or for each ton or other portion of its capacity; and this sum is again either a gross sum for the whole voyage or voyages, or a particular sum for every month or week of the ship's employment. Sometimes also the freight is expressed to be a certain sum for every ton, cask, or bale of goods put on board, in which case the merchant usually covenants not to put on board less than a specified number of tons, casks, or bales; and where the payment is to be by the ton of goods, it is usual and proper to add, "and so in proportion for a less quantity than a ton," as it was formerly decided, in a case where these words were omitted, that the owner could recover nothing for a hogshead (m). These variations in the mode of paying the freight have given rise to some questions and decisions on that article, which will be more properly noticed in the chapter on freight. The merchant who has so hired a ship may lade it either with his own goods, or, if he has not sufficient, may take in goods of other persons, or he may wholly underlet the ship to another. By the French ordinance, underletting at an advanced price is prohibited (n) -a wise regulation, though not adopted by our law, and perhaps not] where the cesser clause was held to apply whether a lien was given up or not. Kisk v. Cory, 44 L. J. Q. B. 205; L. R. 10 Q. B. 503; Lockart v. Falk, 44 L. J. Ex. 105; L. R. 10 Ex. 132; Francesco v. Massey, 42 L. J. Ex. 75; L. R. 8 Ex. 101; Christoffersen v. Hansen, 41 L. J. Q. B. (1) 4 De G. and J. 276; 28 L. J. Ch. (m) Rea v. Burnis, 2 Lev. 124. Part IV. [rendered necessary by the practice of our merchants (a). If it be necessary, a clause may easily be introduced into all charter-parties to prevent the practice. The charter-party usually expresses the burthen of the ship (b), and by the French ordinance it is required to do so (c). A mistake in the amount of the burthen may in some cases be prejudicial to one party or the other. The French ordinance provides that the master who declares his ship to be of a burthen exceeding the truth shall answer the merchant in damages, but that an error shall not be deemed to exist unless it exceeds a fortieth part (d). According to Molloy, if a ship be freighted by the ton, and found of less burthen than expressed, the payment shall be only for the real burthen (e). And if a ship be freighted for two hundred tons, or thereabouts, the addition of thereabouts, says the same author, is commonly reduced to be five tons, more or less. Where a ship was described in a charter-party as of the burthen of 261 tons or thereabouts, and the owner covenanted to receive at a foreign port a full and complete cargo, and the merchant covenanted to load such full and complete cargo, the burthen of the ship thus expressed was held not to conclude the parties; and the merchant was held answerable upon this covenant for not having furnished a full cargo, although in fact he furnished as many as 261 tons, and it appeared that the ship was capable of carrying 400 tons of goods of the description mentioned in the charter-party, the representation of the burthen not appearing to have been fraudulently made (ƒ).] Where a vessel was described in the charter-party as "of the measurement of 180 to 200 tons, or thereabouts," it was held that these words did not amount to a warranty, exonerating the defendant from loading the vessel because it turned out to be of 257 tons burthen, though if the size of the ship had been to an extravagant degree larger than that contracted for, there might have been evidence of fraud on the part of the plaintiff's (g). [The contents of this instrument are varied according to the nature of the intended voyage, or the will of the parties-but the usual stipulations on the part of the owner or master are, that the ship shall be tight and staunch, furnished with all necessaries (h) for the] (a) But see Michenson v. Begbie, 6 Bing. 190. (b) See on this head Straccha de Na- (e) Liv. 3, tit. 1; Charte-partie, art. 3. (f) [Hunter v. Fry, 2 B. & A. 421.] See and Behn v. Burness, post, p. 208, per WILLES, J. (g) Windle v. Barker, 25 L. J. Q. B. 349, 6 E. & R. 675; Cookling v. Massey, L. R. 8 C. P. 395. See post, section 5. By the 17 & 18 Vict. c. 104, the registered tonnage of any ship, ascertained as provided by that Act, shall be deemed to be the tonnage of such ship, and be repeated in every subsequent registry unless any alteration is made in its form or capacity, or the tonnage has been erroneously computed. Sect. 26. (h) [If a bill of health be essential to the performance of the voyage, it is considered as a necessary document. Lery v. Costerton, 1 Stark, 212.] [intended voyage, ready by a day appointed to receive the cargo, and Chap. 1. wait a certain number of days to take it on board; that, after lading, she shall sail with the first fair wind and opportunity to the destined port (the dangers of the seas excepted), and there deliver the goods to the merchant or his assigns, in the same condition they were received on board; and further, that during the course of the voyage the ship shall be kept tight and staunch, and furnished with sufficient men and other necessaries, to the best of the owner's endeavours. The owner may, indeed, and sometimes does, by special clauses, make himself still further liable, and render himself answerable in the case of accidents or misfortunes, which otherwise would furnish him with an excuse. As in the case of a charter-party made with the Commissioners of the Transport Office, by which the owner covenanted that the ship should be manned with a specific number of men in proportion to her bulk, and that the whole number should be constantly on board, and which contained a proviso that the commissioners should be at liberty to mulct and make such abatement out of the ship's pay, which was a fixed sum for twelve months, as they should think reasonable, "upon the loss of time, breach of orders, or neglect of duty by the master, or from the ship's inability to execute or proceed on the service on which she might be employed, being made appear"—it was held that the commissioners had a right to make an abatement, a service to which the ship was ordered at Quebec having been delayed for a considerable time for want of mariners, although the want was occasioned by the death of some of the original crew, who had died of the small-pox in the course of the voyage thither, and the desertion of others at that place from fear of the distemper, and it was impossible to procure a fresh supply of hands during the time (i). On the other hand, the merchant usually covenants to load and unload the ship within a limited number of days after she shall be ready to receive the cargo, and after arrival at the destined port, and to pay the freight in the manner appointed. Frequently also it is stipulated that the ship shall, if required, wait a further time to load and unload, or to sail with convoy, for which the merchant covenants to pay a daily sum. This delay, and the payment to be made for it, are both called demurrage (k). Sometimes, also, particular clauses are introduced in favour of the owners, to take away their responsibility for embezzlement of the master, or other matters, for which they would otherwise be answerable.] A declaration in a charter- Naming safe party stating that it was agreed thereby that the ship should sail in port. ballast to a safe and convenient port near to Cape Town, and there load a full cargo, and that the plaintiff agreed to load the vessel with the said cargo, and to pay freight for the same, and that although the plaintiff was ready and willing to appoint and put on board a proper person as supercargo, who would have imparted to the master a safe and convenient port near Cape Town for receiving on board () Beatson v. Shank, 3 East, 233. (k) As to demurrage, see post, Chap. 3 of this Part. Part IV. the cargo, the defendant would not permit the ship to proceed in ballast on the voyage, was held bad on general demurrer, there being no averment that the plaintiff gave notice to the defendant of a safe and convenient port, or anything equivalent in law to such notice, before the vessel sailed (a). Charter-party for an illegal purpose. A ship was chartered to proceed with a cargo from England to a safe port in Chili. When she arrived at Valparaiso, where orders to a port of discharge were to be received, the agents of the charterers directed the captain to proceed to a port which was naturally a safe port, but which was then closed by the Chilian Government, and into which a ship entering without a permit would be liable to confiscation. Many days elapsed before a permit could be obtained. The charterers and the shipowners were ignorant, on entering into the charter-party, that any of the ports of Chili were closed, and the charterers had throughout intended the port in question to be the port of discharge, but the agents who gave the directions to the captain to proceed there knew at the time that the port was closed, and the charterers, upon these facts were held not to have named a safe port within the meaning of the charter-party (b). As to a charter-party entered into for an illegal purpose or voyage being void, see Waugh v. Morris, 42 L. J. Q. B. 57; the Teutonia, 41 L. J. Ad. 57; L. R. 4 P. C. App. 172. 3. Of Stipulations as to Time for providing and receiving Cargo (c). [In all maritime transactions expedition is of the utmost importance, for even by a short delay the season or object of a voyage may be lost (d); and, therefore, if either party is not ready by the time appointed for the loading of the ship, the other may seek another ship or cargo, and bring an action to recover the damages he has sustained. Nay, according to Molloy, even if part of the lading be put on board, and the merchant cannot furnish the residue, the owner may annul the contract, and lade his ship with other goods (e); but the same author adds, that it is by no means prudent to do so without good reason and deliberation. And, notwithstanding the opinion of this author, who here alludes to a contract for an entire lading, I apprehend the owner has not strictly a right to annul the contract, or take other goods without the merchant's consent. He certainly ought not so to act if the merchant is a responsible person, for he will have] (a) Roe v. Hackett, 12 M. & W. 724, and see Woolley v. Reddolien, 5 M. & G. 316; Brown v. Johnson, Car. & M. 440, (b) Ogden v. Graham, 1 B. & S. 773; 31 L. J. Q. B. 26; Duncan v. Koster, 41 L. J. Ad. 57. (c) See further as to this, post, Chap. 3 (d) Glaholme v. Hayes, post, p. 205. Ledget v. Williams, 4 Hare. 456. Where, by the terms of a charter-party, a ship was to proceed to a certain port, and there to load a full cargo for the agents of the freighters, who had no interest in the out ward cargo; it was held, that their agents were entitled to notice from the captain that the vessel was ready to receive her homeward cargo, and that no such notice |