tion, when a vessel sails, bona fide, in quest of convoy, in order

to protect her

ture.

She called off the Havannah, which is on the north side of the island but neither dropped anchor, nor entered the härbour. The captain staid there less than an hour, and during that time went in his boat within the Mors castle. She then proceeded through the gulf, in her course to England; and was captured by an American privateer, on the 17th. The vessel had no convoy or licence. There had been a convoy on the 30th of June from Jamaica to England: but she was not ready then. There was likewise a convoy at the latter end of July to England. It was It is no devia- objected that the ship was not authorised to go to Havannah; though it might be contended that she went there to seek convoy; and that the clause in the policy as to the return of premium, if the ship sailed with convoy, did not authorize a deviation in self from cap- quest of it. But Gibbs, L. C. J. said, "Whatever is necessary for the safety of the ship, provided it be not excluded by the terms of the policy, may be done by the captain; and what is so done is done as agent to the underwriters. A vessel, when insured, may always do whatever it would be expedient to do if unInsured. She may deviate somewhat from the straight line of her track to seek convoy, when it is for the common good and preservation. It may be as justifiable to seek convoy as to avoid an enemy. Therefore, not only does the reduction of the premium, in case she sails with convoy, authorize her to seek it; but she is at liberty to do so for her own security." The defendant's counsel then relied on the first and eighth sections of the convoy act, and contended that the vessel should have waited for convoy. In 1814 Admiral Brown was on the Jamaica station, and had actually appointed convoys; one on the 30th of June, another on the 30th of July. They did not, however, produce any order from the Admiralty which authorized Admiral Brown to grant convoy or licences but they contended, that it was to be inferred that he had this power, from being nominated to the station, and having actually appointed convoys. But the Lord Chief Justice observed, "Ships sailing from foreign ports are exempted from the restrictions of the convoy act, unless there are persons at those ports authorized by the Admiralty to grant convoy or licences. I cannot infer, from the act of the admiral in appointing a convoy, an authority from the Admiralty to grant one. This act is highly penal, and Jamaica might have been excluded. There is no proof

that there was any convoy for Cuba at the time. The Legislature saw it would be inequitable to oblige vessels to sail with licences or convoy, when no one in foreign ports was authorized to grant

sations from taking convoy.

them. I think this vessel was not within the prohibition of the of the dispenconvoy act, because it does not appear that, at the time of her sailing, there was any one at Jamaica legally authorized to grant convoy." (a)

XIII. Though a ship cannot legally sail from port to port without convoy, unless she is bound from port to port; (b) nevertheless, a vessel which sails with convoy, and is driven back by weather into her port of clearance, may lawfully sail thence again with her cargo on the voyage, without waiting for the next convoy from the same port, or joining convoy from any other port. (c) But every person who ships goods on board a vessel which sails without convoy (when the act of parliament requires convoy to be taken,) does it at his own peril of such ship's having a sufficient licence for the voyage, without which all insurances on his goods are void by the statute 43 Geo. 3. c. 57. (d) And this, although the owner of the goods supposed and intended that the ship should have a sufficient licence; and although he lived at a distance from the port, and had no concern with the management of the ship, or the obtaining for her the necessary documents. (e) It has been likewise held, as we have before seen, that a licence to sail without convoy to a port which a ship must pass on her voyage, is not a sufficient licence to authorize her to run, without licence or convoy, for the residue of her voyage, after she has touched at that port; and that a licence to Gibraltar will not legalize a voyage to Palermo, Messina, and Malta, touching at Gibraltar, and finding there neither licence nor convoy. (f)

XIV. We have already said, that to vacate a policy of insurance, on the 4th section 43 Geo. 3. c. 57. (a clause highly penal,) it is not enough to shew that the ship sailed without convoy, by the instrumentality of an agent of the assured, unless it be likewise shewn, that the agent had authority from his principal for that purpose. (g) And, in order to shew that a voyage without convoy from a foreign port is illegal, it is incumbent on the underwriter to prove that there is convoy occasionally appointed from that port; and that there is some one resident there, au

(a) Holt's N. P. 187.

(b) Cohen v. Hinckley, 1 Taunt. 249.

(c) Laing v. Glover, 5 Taunt. 49. (d) Wainhouse v. Cowie, 4 Taunt. 178.

(e) Id. Ibid.

(ƒ) Id. Ibid.; and see Ingham v. Agnew, 15 East. 517., and ante.

(g) Carstairs v. Allnutt, 3 Campb.

497.

thorized to grant licences to sail without convoy. (a) So, likewise, in another case, Lord Ellenborough held, that, where the law required a ship to sail with convoy, he would presume that the law was obeyed till the contrary was shewn. "This principle (he added) had been settled in Williams v. The East India Company, (b) and a variety of other cases." (c)

(a) Wake v. Atty, 4 Taunt. 493. (b) 3 East. 192.

(c) Thornton v. Lance, 4 Camph.

231.

317

LAW OF NAVIGATION,

Merchant Shipping,

AND

MARITIME CONTRACTS.

PART III.

MARITIME CONTRACTS.

CHAPTER I.

ON CHARTER-PARTIES.

In the progressive improvement of commerce, and the division of labour which necessarily followed upon it, the functions of the merchant were gradually separated from those of the navigator; and it appears that general trade was, accordingly, very early divided into the two main branches under which we at present see it; that of the merchant who exports and imports goods, and of the ship-owner who conveys them for him. Under these circum- Of the nature stances, therefore, the general relation of the ship-owner to the of a charterparty of afmerchant is that of being the carrier of his goods for hire. From freightment. the importance of this employment, and the value and magnitude of the cargoes carried, this contract of hiring is always made by a special writing; that is, by deed, or at least by a writing unsealed. This deed, or writing, has from very early times been designated by the name of a charter-party, a popular corruption of the Latin term charta partita, the ancient name of this con

to a charter

party.

Of the parties tract in the early writers on the Law Merchant. (a) It appears to have been so called from the custom, in those times, of first writing the contract upon a large skin of parchment, which was then divided into two parts by being cut in an indented line from top to bottom, of which each of the contracting parties took one: as this indented line necessarily passes through some word, or figure, common to both parts, the exact tallying of the two parts upon relation and comparison was conclusive evidence of their original agreement and correspondence. The subject of the present Chapter is the nature and form of this contract, its stipulations and parties.

I. A charter-party is, therefore, a contract for the letting to freight the whole or part of a ship, for one or more voyage or voyages. Such contract is universally in writing: but it is immaterial whether it be by deed, or writing under hand only. (b) The parties to a charter-party may be either the principals themselves, or their agents; that is, may be either the ship-owners and merchant, or the master and broker. If the charter-party be made at the place of the owner's residence, the former mode is the more usual. If the vessel be hired in a foreign port, the charterparty is usually made by the master for the owners. In the latter case, as no one can bind another by deed, unless previously authorised so to do by an instrument of equal authority to himself, the deed of the master, unless accompanied by a previous deed from the owners to such master, cannot bind the owners; or, at least, does not give the freighters a direct action against

(a) Where persons, unconnected, load goods on board a ship, she is called, in popular language, a general ship; but when she is expressly let to hire to one or more, or to a company, such ship is called a chartered ship.

(b) A memorandum of a charterparty, or, in other words, heads of agreement for the formation of one, are as common between merchants as more formal charter-parties. In the former case, the agreement is not so specific or particular as a charterparty, nor is it under seal. It is, however, equally binding as if a more formal and solemn instrument had been executed; and is frequently the only written contract between the ship

owner and merchant. It is not material, therefore, whether the instrament purport to be a charter-party, or a memorandum, or agreement, for the hire of a ship. It will, perhaps, be unnecessary to observe, that these contracts, like all others, require no form of words, but vary according to the circumstances of the case and the intention of the parties. The great chartered Companies, and the public Boards, have mostly forms of their own; and merchants are constantly in the habit of varying their charterparties according to the nature of their trade, and the particular exigencies of each adventure.