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affreightment

the terms are set out in a document called a charter-party, signed by or on behalf of the shipowner on the one part, and the shipper, who is called the charterer, on the other part. But at present we are considering the relations of shipowner and shipper independently of any express contract, as in a case when goods are shipped and received to be carried to the place to which the ship is bound for a certain freight, but without any further agreement as to the terms of carriage. In such a case the rights of the parties depend on the rules of law, or, u on tlie In default which is muc^ f^e same P of express warranties or promises which though not contract. expressed must, as the courts have held, be implied as arising from the relation between the parties as shipper and carrier. The obligations on the one side and the other may be defined shortly to be as follows :— The shipper must not ship goods of a nature or in a condition which he knows, or ought, if he used reasonable care, to know to be dangerous to the ship, or to other goods, unless the shipowner has notice of or has sufficient opportunity to observe their dangerous character. The shipper must be prepared, without notice from the shipowner, to take delivery of his goods with reasonable despatch on the arrival of the ship at the place of destination, being ready there to discharge in some usual discharging place. The shipper must pay the agreed freight, and will not be entitled to claim delivery until the freight has been paid. In other words, the shipowner has a lien on the goods carried for the freight payable in respect of the carriage. On the other hand the obligation upon the shipowner is first and foremost to deliver safely at their destination the goods shipped, and this obligation is, by the common law, subject to this exception only that the shipowner is not liable for loss or damage caused by the act of God or the King’s enemies; but by statute (Merchant Shipping Act, 1894, Part YIII.) it is further qualified to this extent that the shipowner is not liable for loss, happening without his actual fault or privity, by fire on board the ship, or by the robbery, or embezzlement of, or making away with gold, or silver, or jewellery, the true nature and value of which have not been declared in writing at the time of shipment; and, further, the shipowner is not liable for damage to or loss of goods or merchandise beyond an aggregate amount, not exceeding eight pounds per ton for each ton of the ship’s tonnage. The shipowner is bound by an implied undertaking, or, in other words, is made responsible by the law as if he had entered into an express undertaking : (1) that the ship is seaworthy ; (2) that she shall proceed upon the voyage with reasonable despatch, and shall not deviate without necessity from the usual course of the voyage. It is not our purpose in this article to discuss minute or doubtful questions; but in their general outline the obligations of shipper and shipowner, where no terms of carriage have been agreed, except as to the freight and destination of the goods, are such as have been described above. The importance of appreciating clearly this view of the relations of shipper and shipowner arises from the fact that these fundamental rules apply to all contracts of affreightment, whether by bill of lading, charter-party, or otherwise, except in so far as they are modified or negatived by the express terms of the contract. Bills of Lading. The document signed by the master or agent for the shipowner, by which are acknowledged the shipment of a parcel of goods and the terms upon which it is to be carried, is called a Bill of Lading. Very many different forms of bills of lading are used. For the purpose of illustration the following form (from Mr Scrutton’s book on Charter-

[bills of lading

parties and Bills of Lading) has been selected as a sample :— Shipped, in apparent good order and condition by in and upon the good Vessel called the now lying in the port of and hound for, with liberty to call at any ports in any order, to sail without Pilots, and to tow and assist Vessels in distress, and to deviate for the purpose of saving life or property ; and to be delivered in the like good order and condition at the aforesaid port of unto or to his or their assigns, freight and all other conditions as per Charter Party. The act of God, perils of the sea, fire, barratry of the Master and Crew, enemies, pirates, and thieves, arrests, and restraints of princes, rulers, and people, collisions, stranding, and other accidents of navigation excepted, even when occasioned by negligence, default, or error in judgment of the Pilot, Master, Mariners, or other servants of the Shipowners. Ship not answerable for losses through explosion, bursting of boilers, breakage of shafts, or any latent defect in the machinery or hull, not resulting from want of due diligence by the Owners of the Ship, or any of them, or by the Ship’s Husband or Manager. General Average payable according to York-An twerp Rules. In Witness whereof, the Master or Agent of the said Ship hath affirmed to three Bills of Lading, all of this tenor and date, drawn as first, second and third, one of which Bills being accomplished, the others to stand void. Dated in this day of 188. The Bill of Lading is an acknowledgment of the shipment of goods in a named vessel for carriage to a specified destination on terms set forth in the document. It is usually signed by the master of the vessel, but very commonly by the agents of the shipowner or sometimes of the charterers of the vessel. A vessel may be employed by its owners to earn freight in various ways : (1) It may be placed, as it is said, on the berth as a general ship, to receive cargo from any shippers who may desire to send goods to the port, or one of the ports, to which the vessel is bound. The mate or chief officer usually superintends the loading, and, as goods are shipped, a mate's receipt is given as an acknowledgment of the shipment. The mate's receipt is afterwards exchanged for the bill of lading. In the case of a shipment by a general ship the bill of lading is the evidence and memorandum of the contract between the shipowner and the shipper; (2) a shipper may, however, require the whole cargo space of the vessel to carry, for example, a full cargo of grain. In such a case the vessel will be chartered by the shipowner to the shipper, and the contract will be the charter-party. Even in such a case a bill or bills of lading will usually be given to enable the shipper to deal more conveniently with the goods by way of sale or otherwise. By the ancient custom of merchants recognized and incorporated in the law, the bill of lading is a document of title, representing the goods themselves, by the transfer of which symbolical delivery of the goods may be made. But when a cargo is shipped under a charter-party, although bills of lading may be given to the charterer, it is the charter-party, and not the bills of lading, which constitutes the record of the contract between the parties—of charter-parties we shall treat below. (3) There is a third class of case which is a combination of the two with which we have dealt above. A vessel is very commonly chartered by her owner to a charterer who has no intention to ship and does not ship any cargo on his own account, but places the vessel on the berth to receive cargo from shippers who ship under bills of lading. The charterer receives the bill of lading freight and pays the charter-party freight, his object being of course to obtain a total bill of lading freight in excess of the chartered freight, and so make a profit. The master, although he usually remains the servant of the shipowner during the term of the charterparty, acts nevertheless under the directions and on behalf of the charterer in signing bills of lading. The legal effect of this situation is that shippers who ship goods under bills of lading without knowledge of the