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
(m) Luke v. Lyde, 2 Burr. 888.
(n) Coffin v. Storer, 6 Mass. 262. See Robinson v. Mar. Ins. Co. 2 Johns. 323.
(0) See Taggard v. Loring, 16 Mass. 386; Perry v. Osborne, 5 Pick. 422; Muggridge v. Eveleth, 2 Met. 286; The Phebe, Ware, 263; Swanton v. Reed, 36 Me. 176.
(p) The Eli Whitney, 1 Biatchf. C. C. 360; Pitkin v. Brainerd, 6 Conn. 461.
(q) City of Boston v. Benson, 12 Cush. 61; Croockewit v. Fletcher, 1 H. & N. 898; 40 Eng. L. & Eq. 416.
(r) Renard v. Sampson, 2 Kern. 661, 2 Duer, 286. See Almgren v. Dutilh, 1 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.
generally there, and very seldom has it a seal in this country. Nor is any advantage gained by a seal. (u)
* 2. Of The Different Kinds of Charter-Parties. *301
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)
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)
(u) For the effect of a charter-party under seal, see Hurry 9. Hurry, 2 Wash. C. C. 145; Ward 9. Green, 6 Cow. 173; The Sen. Tribune, 3 Sumner, 149; Horsley v. Rush, cited 7 T. R. 209; Pickering v. Holt, 6 Greenl. 160; Andrews 9. Bates, 2 Fairf. 267; New Eng. Ins. Co. 9. De Wolf. 8 Pick. 66; Bristow v. Whitmore, H. Johns. Ch. 96, 107.
(9) The Sch. Tribune, 3 Sumner, 144. See also Lidgett v. Williams, 4 Hare, 462.
(10) Bray v. Kettell, 1 Allen, 80.
(x) See Almgren v. Dutilh, 1 Seld. 28.
(y) Palmer v. Gracie, 4 Wash. C. C. 110; Marcardier 9. Chesapeake Ins. Co. 8 Cranch, 39; The Sch. Volunteer, 1 Sumner, 551; Logs of Mahogany, 2 Sumner, 589. It was formerly held, that if the charter-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; Hoce 9. Groverman, 1 Cranch, 214.
(z) Webb v. Peirce, I Curtis C. C. 104; Thomas 9. Osborn, 19 How. 22; Williams 9. Williams, 23 Maine, 17; Cutler 9. Winsor, 6 Pick. 335.
(a) Mayo 9. Snow, 2 Curtis C. C. 102. See Harding 9. Souther, 12 Cush. 307.
So too, one part-owner may hire the vessel from the 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, (6) the rights and obligations of the parties will be the same, and the general rules respecting charter-parties will apply.