By a charter party, the sum of $30,000 was agreed to be paid for
the
Page 21 U. S. 606
use or hire of the ship on a voyage from Philadelphia to Madeira
and thence to Bombay, and at the option of the charterer to
Calcutta, and back to Philadelphia (with an addition of $2,000 if
she should proceed to Calcutta), the whole payable on the return of
the ship to Philadelphia, and before the discharge of her cargo
there, in approved notes ,not exceeding an average time of ninety
days from the time at which she should be ready to discharge her
cargo. The charter proceed in the ship to Calcutta, and with the
consent of the master (who was appointed by the shipowners),
entered into an agreement with P. & Co, merchants there, that
if they would make him an advance of money, he would deliver to
them a bill of lading stipulation for the delivery of the goods
purchased therewith to their stipulating for the delivery of the
goods purchased therewith to their agents in Philadelphia, free of
freight, who should be authorized to sell the same, and apply the
proceeds to the repayment of the said advance, unless the
charterer's bills, drawn on G. & S. of Philadelphia, should be
accepted, in which event the agents of P. & Co. would deliver
the goods to the charterer. The goods were shipped accordingly, and
a bill of lading signed by the master, with the clause "freight for
the said goods having been settled here." The bills of exchange
drawn by the charterer were refused acceptance, and the agents of
P. & Co. demanded the goods, which the owners of the ship
refused to deliver without the payment of freight.
Held
that the owners of the ship had a lien on those goods for the
freight.
This was an action of assumpsit, brought by the defendants in
error against the plaintiffs in error, to recover back the sum of
$10,500, paid under the circumstances stated in the following case,
to be considered as a special verdict.
On 23 October, 1818, the defendants, being the owners of the
ship
America, chartered her to Hugh Chambers, by the
following charter party:
"This charter party, indented, made, and entered upon, this 23
October, 1818, between Archibald Gracie, William Gracie, and
Charles King, the persons constituting the co-partnership or house
of trade, under the firm and style of Archibald Gracie & Sons,
of the City of New York, owners of the ship or vessel called the
America, of New York, of the burden of 460 tons, or
thereabouts, register admeasurement, of the first part, and Hugh
Chambers, of the City of Philadelphia, merchant, of the other part,
witnesseth that the said owners have let and the said Hugh Chambers
hath taken and hired the said vessel to freight for the voyage upon
the terms and conditions following: whereupon the said owners do
covenant, promise, and agree, to and with the said charterer, by
these presents that the said vessel shall be tight, stanch, and
strong, well and sufficiently fitted, manned, provided, and
furnished with all things needful and necessary for such vessel on
her intended voyage, hereinafter mentioned, and provisioned for the
term of eighteen months, and
Page 21 U. S. 607
fully and properly armed with large and small arms and with
sufficient ammunition for the same, and that she shall, on or
before 15 November next, be in readiness at the port of
Philadelphia to receive and take on board, and shall there, when
tendered within reach of her tackle, receive and take on board all
such lawful goods and merchandise, as the said charterer may think
proper to ship, not exceeding what she can reasonably store and
carry over and above her tackle, apparel, provisions, armament, and
other necessaries, and the privileges hereinafter reserved for the
master and first and second officers, and the lading of the to be
shipped by the owners, as herein after mentioned, and that the said
ship shall be in readiness to sail from Philadelphia aforesaid,
and, on being loaded and afterwards dispatched, shall and will
(wind and weather permitting) set sail from the said port of
Philadelphia on or before 30 November next and proceed to the
Island of Madeira, and shall and will there make a right and true
delivery of such quantities of goods and merchandise as shall be
there deliverable, loaded at Philadelphia aforesaid, to such
persons as the same shall have been consigned to; and the same
being so unloaded, the said ship shall and will receive and take on
board all such legal goods, wares, and merchandise whatsoever as
shall be offered and tendered within reach of her tackle by or for
account of the said Hugh Chambers, not exceeding as aforesaid. And
as soon as the said ship shall be thus loaded at Madeira
aforesaid,
Page 21 U. S. 608
she shall and will set sail and depart from thence (wind and
weather permitting), and directly proceed on her voyage, and put
into the port of Bombay, in the East Indies; and that she shall, at
the option of the said Hugh Chambers, his agent or agents, be
allowed also to put into Calcutta, and deliver her cargo and take
in returns there."
"And at the said ports of Bombay and Calcutta, respectively,
unlade all such goods and merchandise as shall remain on board, and
relade such lawful goods, wares, and merchandise, as the said
charterer, his agents, factors, or assigns, shall think fit to
charge and lade on board, over and above and not exceeding as
aforesaid, and the lading, for account of the said owners, in
respect of the returns for the said funds, in, to be shipped by
them; and that the said ship shall and will, with her said return
loading (wind and weather permitting) sail and proceed back to the
said port of Philadelphia, and there deliver unto the said
charterer, his executors, administrators, or assigns, the full and
entire cargo laden and taken on board the said ship at Bombay and
Calcutta aforesaid, for his account, upon the entire delivery
whereof the said intended voyage shall end and be determined (the
dangers of the seas, restraints of princes and rulers, and all
other unavoidable casualties always being excepted by these
presents). And it is hereby agreed that the said owners shall load
and ship on board the said vessel for the said voyage, $15,000
Spanish milled, to be invested in goods and merchandise in India in
like manner
Page 21 U. S. 609
as the residue of the cargo in general, and that they shall be
chargeable with freight on the returns thereof, at the rate of $50
per ton, or, if the said returns shall be in goods and merchandise
usually chargeable with or taken on freight by weight, that the
same shall be estimated at such rate as shall be equivalent to that
sum by the ton, and also that the commission to be allowed the
supercargo of the said ship shall be a clear commission of five
percentum on the amount of the investment in India."
"And it is further agreed that the said charterer shall furnish
and supply the needful and sufficient cabin stores to and for the
supercargo, master, and officers, of the said ship for the said
voyage, and that the owners shall and will allow and pay to him
therefor the sum of $1.500, and also that the cabin shall belong to
the said charterer (excepting the respective staterooms in which
the master and officers shall sleep)."
"And it is hereby further agreed and granted and reserved that
the master shall have a privilege of six cubic tons freight free;
the first officer a like free privilege of three cubic tons, and
the second officer a like free privilege of two cubic tons,
provided that neither of the said privileges shall be used for the
purpose of shipping flour out in the said ship. And the said
charterer, for himself, his heirs, executors, and administrators,
doth hereby covenant and agree with the said owners that the said
charterer will well and truly pay and satisfy all the port charges
and expenses of the said ship, as well abroad as at Philadelphia
aforesaid, until she shall have discharged
Page 21 U. S. 610
her return cargo, excepting always the sea stores, the wages of
the master, officers, and crew, and the repairs and outfits of the
said ship, with all which she is to be chargeable. And it is hereby
further agreed that there be allowed, and are granted, one hundred
and twenty working days in all for the loading and unloading of the
said ship at the ports and places of loading and delivery, and that
the time not used and occupied at one port or place may be taken or
made up at the others, so that the whole do not exceed the number
allowed as above mentioned, and that for every detention over and
above the said one hundred and twenty days, the said charterers
shall pay to the said owners the sum of $75 per day, to be paid in
like manner as the freight. And the said charterer, for himself,
his heirs, executors, and administrators, doth hereby promise and
agree with the said owners, their executors, administrators, and
assigns, that he will cause the said ship or vessel to be loaded at
the said port of Philadelphia, on her being in readiness to receive
her funds and cargo there, and reloaded at the Island of Madeira,
and at Bombay and Calcutta in the manner above expressed; and that
he will pay to them, on the return of the said ship to
Philadelphia, and before the discharge of her cargo there, in
approved notes not exceeding an average time of ninety days from
the time at which she shall be ready to discharge her cargo, the
clear sum of $30,000, and if she shall have proceeded to Calcutta,
the further sum of $2,000 for the hire and freight of the said ship
for
Page 21 U. S. 611
the said voyage. In witness whereof the said owners and
charterer have to these presents, in duplicate, set their hands and
seals the day and year first above written."
"ARCH. GRACIE & SONS"
"HUGH CHAMBERS"
On 28 November, 1818, the America sailed from Philadelphia upon
the voyage in the charter party mentioned, laden with sundry goods,
and also $15,000 in specie, the property of the defendants. The
flour and other merchandise were delivered at Madeira, and the
quantity of 207 pipes of wine, purchased with the proceeds or part
thereof, was there laden on board the
America, and made
deliverable in India. The
America proceeded from Madeira
to Calcutta, where the quantity of about 324 tons of her burden was
filled up from the proceeds of the outward cargo and with such
parts of the wine, taken in at Madeira, as was not disposed of at
Calcutta, and the merchandise so taken in was made deliverable to
sundry consignees in the port of Philadelphia. Hugh Chambers, the
charterer, was on board the said ship at Calcutta, and it was
impracticable to obtain any freight for the said ship at the said
port beyond the amount so laden as aforesaid; nor could any person
be induced there to ship on board of her any other goods
deliverable in the United States upon the condition of paying, or
being liable for any freight whatever. Whereupon the said Chambers
applied to the plaintiffs to make him an advance for the purpose of
purchasing merchandise to ship on board the
Page 21 U. S. 612
ship
America, and did then and there, with the
knowledge and consent of Edward Rosseter, the captain or master of
the said ship
America, enter into an agreement with the
plaintiffs that if they would make such an advance, he would leave
the merchandise purchased therewith in their hands as a security
for the said advance while in Calcutta, and would, when shipped on
board the
America, deliver to them a bill of lading
stipulating for the delivery thereof to their agents in
Philadelphia, free of freight, who should be authorized to sell the
same and apply the proceeds to the payment of the said advance,
unless the said Hugh Chambers' bills for the same, drawn upon
Messrs. Grants & Stone, of Philadelphia, should be accepted,
and the consigner should feel perfectly assured they would be paid
at maturity, in which event the said agents should deliver the said
merchandise to him. That the said plaintiffs accordingly made the
said advance, received the said goods as they were purchased, and
shipped them on board the said ship
America, for which
shipment the said master signed and delivered the following bill of
lading to the plaintiffs, which the said Chambers endorsed
"Shipped in good order and well conditioned by Hugh Chambers in
and upon the good ship called the
America, whereof is
master for this present voyage, Edward Rosseter, and now lying in
the port of Calcutta, and bound for Philadelphia, to say, seven
hundred and forty-six bags, and sixty-five boxes of sugar, five
hundred and eighty-nine bags of saltpeter, ten hundred and
sixty
Page 21 U. S. 613
bags of ginger, thirty-five bags of aniseed, thirty-two boxes of
borax, thirty-two of castor oil, three hundred and three bundles of
twine, thirty-five bales of goat skins, six thousand one hundred
and sixty horns and horn tips, two hundred and sixty cow hides,
fifteen hundred and sixty-nine gunny bags, two bales of
seersuckers, two boxes of choppas, six bales of sannahs, five bales
of checks, twenty-two bales of gurrahs, and one box of mull
muslins. On account and risk of Hugh Chambers of Philadelphia,
being marked and numbered as in the margin, and are to be delivered
in the like good order and well conditioned at the aforesaid port
of Philadelphia (the danger of the seas only excepted) unto Messrs.
T. M. & R. Willing, or to their assigns. Freight for the said
goods having been settled here."
"In witness whereof the master or purser of the said ship hath
affirmed to five bills of lading, all of this tenor and date, one
of which being accomplished, the others to stand void. Dated
Calcutta, 7 September, 1819."
"Contents unknown."
"EDWARD ROSSETER"
"Marks and numbers on the back of this bill, countersigned. Hugh
Chambers."
That the said Chambers, at the same time, drew, and delivered to
the plaintiffs the said bills of exchange upon Messrs. Grants &
Stone, for the sum of 8,042 pounds 8 shillings and 4 pence
sterling, being the amount of the said advance, which said bills
were afterwards duly presented to Grants & Stone for
acceptance, who refused to accept the same, and they were
afterwards duly protested for
Page 21 U. S. 614
nonpayment, and now remain unpaid. That the said agreement to
deliver the said goods without paying freight, and the said bill of
lading and endorsements, were made by the said Chambers, by Edward
Rosseter, and by the plaintiffs, in good faith, and without them
the said plaintiffs would not have made the said advance, nor
shipped the said goods, and the receipt of the said goods on board
the
America by the said master under the said agreement,
and signing the bill of lading in the terms aforesaid were, under
the circumstances of the case at the time, the best he could do for
the interest of the owners of the ship. That the said plaintiffs
were informed by Hugh Chambers that the
America was
chartered by the said Chambers for a specific sum, and that the
stock or merchandise originally placed on board of her at the
commencement of the voyage, and its proceeds were solely and
sufficiently a pledge for the payment of the same. That the
America arrived in the port of Philadelphia on or about 29
February, 1820, when the defendants gave notice to the said
Chambers that they had entered the ship and were ready to deliver
the goods after payment of the freight stipulated by the charter
party. On 1 March, 1820, the said Chambers replied to the
defendants that he was unable to comply with the requisitions of
the charter party. On 2 March, 1820, the deter-party. gave notice
to all the consignees of goods on board the
America, as by
letter of that date to T. M. & R. Willing. On 3 March, 1820,
Thomas M. & R. Willing, the consignees of the merchandise
shipped by the plaintiffs, demanded
Page 21 U. S. 615
of the defendants and of Edward Rosseter, the master, the
delivery thereof without paying freight, and protested against the
payment of any freight. On 6 March, 1820, the defendants refused to
deliver the said merchandise without paying freight. On the same
day, the said T. M. & R. Willing, on behalf of the plaintiffs,
replied to the defendants, and repeated the protest against paying
any freight for the said merchandise, and their refusal to pay any
freight, unless they should be compelled to do it, in order to
obtain possession of the said goods. The said T. M. & R.
Willing, being unable otherwise to obtain the said merchandises
from on board the ship
America, paid, as the agents of the
plaintiffs and in their behalf, to the defendants the sum of
$10,000, which payment was made in acceptances of the defendant's
drafts, dated 29 March, 1820, at ninety days, and duly paid, 30
June, 1820. The said payment was compelled by the defendants under
their claim of freight and in consequence of their having the
custody of the said merchandises, and was made under protest by the
said T. M. & R. Willing. In consequence of the said payment,
the said merchandises were delivered by the defendants to the said
T. M. & R. Willing, as agents and consignees of the plaintiffs.
There were other merchandises on board the said ship, exclusive of
those consigned to the said T. M. & R. Willing, sufficient in
value to pay the whole freight due by the said charter party. If,
upon the whole matter, the court shall be of opinion that the
defendants had no right to detain the said
Page 21 U. S. 616
goods for freight, judgment to be entered for the plaintiffs for
the sum of $10,500, with costs of suit.
If, upon the contrary, the court shall be of opinion that the
defendants had such right, then judgment to be entered for the
defendants.
Judgment being given upon this case for the plaintiffs below,
the cause was brought by writ of error to this Court.
Page 21 U. S. 630
MR. JUSTICE JOHNSON delivered the opinion of the Court.
This is a writ of error from the Circuit Court of Pennsylvania
on a judgment in which the defendants in this Court were plaintiffs
in the inferior court. The suit instituted in that court was for
the recovery of a sum of money paid under the following
circumstances:
The Gracies, being owners of the ship
America,
chartered her to one Chambers, on a voyage to India. Chambers
accompanied the vessel, and, at Calcutta put her up as a general
ship, with notice, however, of his being charterer, not owner.
Finding it difficult there to obtain freight, he entered into an
arrangement with Palmer in pursuance of which the latter supplied
him with a quantity of goods, to the value of 8,000 pounds, upon
the following stipulations:
"That Chambers should draw bills in favor of Palmer & Co.,
upon his correspondent in Philadelphia, and that the goods should
be consigned to the Willings, correspondents of Palmer, in the same
place; to whom they should be delivered, freight free, in pledge
for the due payment of Chambers' bills."
When the goods were laden on board the
America,
Page 21 U. S. 631
the shipmaster signed bills of lading, stating them to be
shipped on account and risk of Chambers, to be delivered to the
Messrs. Willings of Philadelphia. And in that part of the bill of
lading in which the freight is usually specified are inserted these
words: "Freight for the said goods having been settled here."
Endorsed on the bill of lading are the marks and numbers of the
several packages, and on its face are written these words: "Marks
and numbers on the back of this bill, countersigned. Hugh
Chambers." This is the endorsement noticed in the stated case. A
charter party, with all the usual covenants and formalities, was
entered into by the parties, in which the owner undertakes to
furnish and navigate the ship, and the charterer to pay the sum of
$32,000 for the use of her, with certain specific reservations not
material to the decision of any of the questions raised in
argument. The clause which stipulates for the payment of the
compensation is in these words: "The said charterer covenants,"
&c., "that he will pay to the owners, on the return of the said
ship to Philadelphia, and before the discharge of her cargo there,
in approved notes," &c., the sum stipulated for.
The case stated affirms that the whole transaction in Calcutta
was effected in good faith; that it was done with the knowledge and
assent of the shipmaster, and was, under all circumstances, "the
best he could do for the interest of the owners of the ship."
The bill of lading was enclosed to the Willings,
Page 21 U. S. 632
with information of the arrangement between Palmer and Chambers,
and the drawees of Chambers' bill having refused to accept them,
the Willings demanded the delivery of the goods freight free. The
Gracies refused to deliver the goods, insisting on their right to
the freight usually paid on such goods from India, whether they
were the property of Palmer or of Chambers. And in order to get
possession of the goods, the freight was accordingly advanced by
the Willings, and this action brought to recover it back.
The cause was decided in the court below upon a case stated, in
nature of a special verdict, which finds alternatively for the one
or the other party, according to the law of the case. The judgment
of the circuit court was in favor of the defendants.
Much of the argument below appears to have turned upon the
general rights and liabilities of owner and charterer under the
contract of affreightment; but the learned and elaborate argument
of the presiding judge in the court below, has relieved this Court
from much discussion on that part of the subject. The doctrine, as
laid down there and as stated by the counsel here, exhibits no
material shades of distinction. It is, in fact, the common law
doctrine of bailment and common carriers applied to transportation
on the ocean.
The carrier may hire his vehicle, or his team, or his servant,
for the purposes of transportation, or he may undertake to employ
them himself in the act of transporting the goods of another. It
is
Page 21 U. S. 633
in the latter case only that he assumes the liabilities and
acquires the rights of a common carrier. So the ship owner who let
his ship to hire to another, whether manned and equipped or not,
enters into a contract totally distinct from that of him who
engages to employ her himself in the transportation of the goods of
another. In the former case, he parts with the possession to
another, and that other becomes the carrier; in the latter, he
retains the possession of the ship, although the hold may be the
property of the charterer, and being subject to the liabilities, he
retains the rights incident to the character of a common
carrier.
On examining the cases in which this subject has engaged the
attention of courts of justice, it will be found that the great
difficulty generally has been to decide in which of these two
relations the shipowner had placed himself under the particular
stipulations of the charter party, and how far he has put it in the
power of the charterer to defeat his acknowledged right to a lien
for the freight. The present case suggests the additional question
how far it lies in the power of the shipmaster to defeat this lien
or otherwise sanction a departure from the letter of the charter
party.
The cause has been argued as one vitally important to the
commercial world, and very strong views have been presented of the
injuries that might be sustained by foreign shippers on the one
hand, and by shipowners on the other, as the one or the other
alternative of the stated case
Page 21 U. S. 634
shall obtain the sanction of this Court. But it is obvious that
most if not all of these suggestions have been the offspring of a
zealous, rather than a calm, survey of possible consequences.
The contract of affreightment, like every other contract, is the
creature of the will of the contracting parties. It may be varied
to infinity and easily adapted to the exigencies of either party,
or of any trade. It is only where the express contract is silent
that the implied contract can arise. It is possible that a captain
and a charterer might connive at a fraud and pass a chartered
vessel upon foreigners as an unchartered vessel, but it is not very
probable, and would be extremely difficult. Yet it is not easy to
conceive any other case in which a foreign affreighter can be
exposed to imposition, while it is always in his power to inspect
the charter party and determine, from its stipulations how far he
may venture to ship his goods upon a special contract. The general
liability of goods for freight is known to all mercantile men, and
a stipulation in a charter party "that no goods shall be landed
from the vessel until the freight is paid" will always alarm the
fears of any prudent shipper.
But this case does not imperiously call for a decision upon the
general question. The goods are expressly laden on board as the
property of Chambers, "on his account and risk." And the question
is not how far his contract may exempt the goods of another from
freight, but how far he may encumber his own goods with a lien
which
Page 21 U. S. 635
shall ride over or supersede their general liability for the
freight.
We turn in the first place to the express contract of the
parties to afford a solution of the question. But there we find
that the charterer cannot, without an express violation of his
contract, deliver to the consignee a single article, not only until
its own peculiar freight be paid, but until the payment of the sum
of $32,000, the whole of the freight reserved to the owner.
On what principles rests the general lien of goods for freight?
The master is the agent of the shipowner to receive and transport;
the goods are improved in value by the cost and cares of
transportation. As the bailee of the shipper, the goods are in the
custody and possession of the master and shipowner, and the law
will not suffer that possession to be violated until the laborer
has received his hire. But this is literally the effect of that
provision in the charter party which deprives the charterer of the
right of landing the cargo until the stipulated hire be paid -- or
rather it would seem to go beyond it and impose a liability beyond
what the common law exacts. It may therefore be fairly construed
into a stipulation that the charterer should under no circumstances
dispense with the legal lien of the shipowner.
The question, then, is who has trusted this charterer?, for he
that trusts must pay.
That the shipowner would not confide in the charterer to land
his goods without buying off his right to detain is expressly
proved by the contract.
Page 21 U. S. 636
That contract was accessible to the foreign shipper, and ought
to have been looked into to determine the extent of the power
vested in the charterer. Whether he neglected this precaution or
contracted with the charterer knowing of this restriction on his
power to contract, he is the party that trusts. The charterer has
contracted with the shipper to do an act, which he could not
perform without violating his own contract to the shipowner, and
must therefore be considered as having entered into a contract,
subordinate in its nature to that previously existing between the
owner and charterer. And as the undertaking of the charterer to
Palmer could only be performed upon first complying with his
undertakings to the owner, he must be considered as having rested
on the personal responsibility of the charterer for the removal of
that obstacle.
That in ordinary cases of the hypothecation of goods the lien
for freight would take precedence cannot be questioned, and in a
late adjudication on a case strikingly similar to the present and
in the courts of a nation which thoroughly understands the laws and
interests of commerce,
Faith v. East India Company, 4
Barnw. & Ald. 630, it has been held that goods so circumstanced
were bound to the whole extent of the liability of the charterer to
the shipowner for freight. In the present instance, a
pro
rata freight only is demanded. In the same case, it was
further decided that the shipowner retained his lien for freight,
on goods shipped by third
Page 21 U. S. 637
persons, even after the drawing of freight bills in favor of
another by previous agreement.
But it is contended that the case where goods are shipped
freight free or the freight has been actually paid remains
undecided; that the lien for freight attaches only where freight
was actually due, but in neither of those cases, (that of payment
or redemption) could it be predicated of freight that it was
due.
Had the reasoning of the judges, in the case of
Faith v.
East India Company, been followed out to its unavoidable
consequences, it would seem that no doubt should have been
expressed by them upon such a case. For if the ground of that
decision was that the shipowner was not bound to deliver the goods
until his freight was paid, it would seem to be immaterial whether
it had been previously paid to the charterer or to any other not
authorized to receive it on account of the owner. But whatever
might be the opinion of this Court upon a cause so circumstanced,
it is obvious that this is not a case of that nature.
These goods were not shipped freight free, nor was the freight
actually paid upon them. The words upon the bill of lading are
"freight settled here." And their ambiguity being explained by
other parts of the case stated, there is made out a case in which
the freight was no further settled than by the arrangement made
with Palmer for the purpose of postponing the freight to the
defendant's lien for advances of money or the payment of bills. The
compensation for carriage,
Page 21 U. S. 638
although disguised under the form of possible profits upon the
sales of the goods shipped, still existed, for freight is one of
the charges which the consumer pays. It is, then, only an evasion
of the rights of the owner, and presents a facility to evasion
which ought not to be encouraged. If it be said that the payment of
freight was nevertheless contingent and uncertain, the reply still
is that this is a subject for consideration between the charterer
and the shipper, and could not be sanctioned as the means of
evading the express provision in the charter party against the
right of delivery before the payment of freight. Although no
freight had been due to the charterer, there was unquestionably a
large sum due the owner, and by the terms of his agreement,
literally construed, he was not bound to open the hatches until the
whole sum was paid. This, however, is more than is contended for
upon the plaintiffs' construction of the contract, and more
unquestionably than would have been sustained as against other
shippers; it is not in this instance insisted upon as against the
charterer himself. But in fact this memorandum of the captain on
the subject of freight is altogether an immaterial circumstance in
a bill of lading made to the charterer himself. With whom was he at
liberty to settle the freight upon his own shipments, to the
prejudice of the shipowner?
And this leads to the consideration of the last point made in
argument for the defendants -- to-wit that the acts of the captain
bound the shipowner to a compliance with the stipulations made to
the
Page 21 U. S. 639
defendants, Palmer & Co., to the prejudice of the lien
insisted on by the present plaintiffs. That is that either the
captain alone or the captain and charterer together could divest
the owner both of his implied and express right to detain these
goods.
Whence is such a power to be deduced? Not from the charterer's
rights in the ship, nor from the master's power over the ship, but
it is supposed to result from the necessity of the case, the nature
of the interest acquired by the charterer, and the general powers
of a shipmaster as incident to the duties which he is called upon
to perform.
But it is perfectly clear that it is not in the power of the
master to release the charterer from his contract to the owner. It
is only when the contract is at an end by misfortune or by the acts
of the charterer that he is called to the exercise of that latitude
of power over the ship, which may lead to a resumption of the right
to lade her for the benefit of all concerned. In the meantime, he
has no power to modify the contract entered into with his owner,
since all the power delegated to him while the charter party
continues to operate is to perform the undertakings of his employer
in the fulfillment of the contract. When abandoned by his
charterer, he is of necessity cast upon himself to do the best he
can for all concerned, and whether that be to return empty or to
take in such freight as may offer, he is still acting under his
original relations with his owner, for if not actually carrying
into effect the
Page 21 U. S. 640
stipulations of the charter party, his general duty is to do
nothing that can release the charterer from his liability under it.
This is altogether inconsistent with the idea of his being
authorized to modify or dispense with the terms of the charter
party
So far as the interests of the charterer may be affected by the
want of power to modify contracts for freight in any manner that
exigencies may require, it has been before observed that this
should have been attended to in making his contract with the owner.
And as it is very certain that a release from the ordinary security
of the carrier, must have been purchased by an enhanced price or
personal security, so it would be highly unjust to subject the
owners to a loss of their ordinary security without compensation in
price or extraordinary security as the substitute. As to the
interests of shipowners themselves, it is enough for the present
case to say "let them judge for themselves."
But there is very great reason to think that the acts of the
master in this case have had views and effects attributed to them
directly the reverse of his intention and understanding in
performing those acts. It is observed by one of the judges in the
decision before alluded to "that had the captain done his duty, he
never would have taken goods on board on which the owner would have
no lien." It is right that a construction should be given to the
conduct of the master which may comport both with a knowledge and a
due observance of his duty. And in this view of the case,
Page 21 U. S. 641
notwithstanding his privity to the arrangement between the
charterer and shipper, as he was himself called upon to do no act
that could deprive his owner of his lien, he might well have
considered the stipulation between the charterer and shipper as a
matter
inter alios, in pursuance of which his employer
could sustain no loss, however the charterer might render himself
liable to the shipper for consequences. Such was certainly not the
understanding of the shipper as to the effect of his contract with
the charterer, but he might have been better informed by studying
the charter party; and,
non constat, if the captain had
been required to sign a bill of lading to the shipper with an
explicit stipulation that the goods should be free from liability
to his owner, that he would have been betrayed into such a breach
of duty or assumption of power. He might well have supposed that in
signing this bill of lading to Chambers, and not to Palmer, he was
doing no act that could impair the rights and interests of his
employer.
We are therefore of opinion that there is error in the judgment
of the circuit court; that it must be reversed, and a mandate issue
to enter judgment for the defendants below agreeably to the case
stated.
Judgment reversed.
