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 charter-party 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) l For 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 party of the charter money. (h) 2
(b) Fletcher v. Braddick, 5 B. & P. 182; Hodgkinson v. Fernie, 2 C. B. (n. s.) 415, 40 Eng. L. & Eq. 306; Trinity House v. Clark, 4 M. & S. 288.
(c) Havelock v. Geddes, 10 East, 555; McGilvery v. Capen, 7 Gray, 525.
(d) Cutler v. Winsor, 6 Pick. 335.
(e) Johnson v. Miln, 14 Wend. 195. (f) 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; Hunt v. Usborne, 18 C. B. 144.
(q) 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.
(h) Dupont de Nemours v. Vance,
1 Where the owner of a vessel charters her, there arises, unless the contrary be shown, an implied contract on his part that she is seaworthy and suitable for the service in which she is to be employed. He is therefore bound, unless prevented by the perils of the sea or unavoidable accident, to keep her in proper repair, and is not excused for any defects known or unknown. Work v. Leathers, 97 U. S. 379. This implied warranty of seaworthiness attaches at the time the perils of the intended voyage commence, and is then broken if the vessel is then unfit, although seaworthy at the port of loading, when proceeding thither from anchorage, and when commencing to take on cargo. Cohn v. Davidson, 2 Q. B. D. 455. - Where the plaintiff agreed to charter a ship for twelve months after completion of her then present voyage, at the end of which time the ship, being unseaworthy, was detained for two months for repairs, it was held that he might rescind. Tully v. Howling, 2 Q. B. D. 182. - A description 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.
2 See Stanton v. Richardson, L. B. 7 C. P. 421.
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 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. (l) 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
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; Duffle c. Hayes, 15 Johns. 327; Kleine v. Catara, 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)
2 Gallis. 66.
(j) Hecksher v. Medea, 24 Wend.
304; Ashburner v. Balchen, 3 Seld. 262; Shannon v. Comstock, 21 Wend. 457; Crabtree v. Clark, Sprague, 217; Clarke p. Crabtree, 2 Curtis C. C. 87; Wilson v. Hicks, 40 Eng. L. & Eq. 511; Bailey v. Damon, 3 Gray, 92.
(k) The Brig Casco, Daveis, 184.
(l) Clarkson v. Edes, 4 Cowen, 470; Ruggles v. Bucknor, I Paine, C. C. 358.
(m) Lander v. Clark, 1 Hall, 355.