In the last place we shall notice,

IX. Charterparties.

These are mercantile instruments (with or without seal), by which one who would export goods from this country, or import them from abroad, engages for the hire of an entire vessel for the purpose, at a freight or reward thereby agreed for (d). Upon the execution of such an instrument the ship is said to be chartered or freighted, and the party by whom she is engaged is called the charterer or freighter. But where, instead of taking the entire vessel, the owner of goods merely bargains for their conveyance on board of her for freight (other goods being at the same time conveyed for other proprietors), she is described, not as a chartered but as a general ship; and in this case no charterparty is usually executed, but merely a bill of lading (e).

A charterparty, more particularly considered, is commonly made between either the owner or the master of the ship (as the case may be) on the one part, and the owner of the goods on the other (f); and purports to be an agreement that the ship shall be employed in the conveyance of goods for a certain voyage (or for a certain period of time), at a certain amount of freight, calculated at so much per ton, or at so much per month during the voyage. The instrument also usually engages, on the part of the shipowner, that, being seaworthy, and provided with necessaries, she shall receive a full cargo on board,-not exceeding

(d) As to "freight," see Lewis v. Marshall, 7 Man. & Gr. 729; Fenwick v. Boyd, 15 Mee. & W. 632; Michael v. Gillespy, 2 C. B. (N. S.) 627.

(e) 3 Chit. C. L. 388, 403.

(f) The following cases on charterparties may be consulted with advantage: Alsager v. St. Katherine Dock Company, 14 Mee.

& W. 794; Hill v. Sughrue, 15 Mee. & W. 253; Robertson v. Jackson, 2 C. B. 412; Olive v. Booker, 1 Exch. 417; Schmaltz v. Avery, 16 Q. B. 655; Read v. Hoskins, 4 Ell. & Bl. 979; Roelants v. Harrison, 9 Exch. 444; Cuthbert v. Cumming, 10 Exch. 809.

what she can reasonably carry (g),—and that the same shall be properly stowed; and that the ship shall then immediately sail (wind and weather permitting) on the specified voyage, and deliver the cargo (the act of God or of the king's enemies excepted) at the port of destination, to the charterer or his assignees, in as good order as they were received on board. On the other hand, there are ordinarily engagements on the part of the charterer, that he will supply a full cargo (h), and load and unload the goods within a certain number of days (usually called lay or running days), and pay freight as agreed upon; and that, if he detains the vessel beyond the running days, he will also pay demurrage, that is, a certain amount per diem for the whole period of such extraordinary detention (i).

In the performance of this contract, it is held to be the shipowner's duty to take good care of the cargo during the voyage (k): and he will be liable to make satisfaction for any damage resulting from the master's negligence in this respect; or for the loss or non-delivery of any of the goods of which it consists, unless occasioned by causes within the exceptions of the charterparty (). But, under the ordinary exceptions, the shipowner is protected from liability for the accidents of wind and weather, not imputable to his own negligence; for these fall within the exception as to the "act of God." Supposing the goods, on the other hand, to arrive safely, the shipowner is not bound to deliver them (unless there be some stipulation to that effect) unless and until he receives payment of the

(g) As to these words, see Gould v. Oliver, 4 Bing. N. C. 134.

(h) See Capper v. Foster, 3 Bing. N. C. 938.

(i) As to demurrage, see Benson v. Blunt, 1 Q. B. 870; Robertson v. Jackson, 2 C. B. 412; Cropton v. Pickernell, 16 Mee. & W. 829; Parker v. Winslow, 7 Ell. & Bl. 942; Oglesby v. Yglesias, 1 E. & E. 930; Erichsen v. Barkworth, 3

H. & N. 894; Seeger v. Duthie, 8
C. B. (N. S.) 45.

(*) Abbott on Shipping, 255.

(1) By 25 & 26 Vict. c. 63, s. 54, the liability of the shipowner, in respect of any damage or loss caused, "without his actual fault or privity," to any goods, merchandise, or other things on board, is limited in such manner as therein provided.

freight; for these acts are in general considered in law as contemporaneous (m). Yet where the charterparty is in such form as to amount to an actual demise of the vessel to the charterer, and there is no express stipulation for the payment of freight simultaneously with the delivery of the cargo, such delivery cannot lawfully be withheld on the ground that the freight is not paid: for the goods are, in that case, in the ship-master's possession as servant, pro hâc vice, of the charterer (n).

If the shipowner, being prevented by an accident for which he is not responsible, from entirely performing his contract, yet performs it in part, by carrying the cargo safely during a certain portion of the voyage, and the charterer receives the benefit of such performance, freight will then be due pro ratâ itineris. Thus if the cargo be captured by an enemy during the voyage, and be retaken, and ultimately come to the charterer's hands, or if the ship be lost by stress of weather before the termination of the voyage, and the cargo be sent on by another vessel to the charterer, he will be liable in either of these cases (at least in the event of his accepting the goods), to pay the owner of the chartered vessel freight pro ratâ, that is, to an amount proportioned to the distance for which they have been carried. This however is a claim not founded on the charterparty, but on a contract which the law generally (as before explained) implies in every case where a service has been rendered, viz. that the party who consents to take the benefit of it, shall pay in respect thereof as much as it is reasonably worth (0).

In concluding this chapter, it may be proper to advert, briefly, to the subject of debt, which is one closely con

(m) Yates v. Railston, 8 Taunt.

293.

(n) Christie v. Lewis, 2 Brod. & Bing. 410; Horncastle v. Farran, 3 Barn. & Ald. 497; Saville v. Cam

pion, 2 Barn. & Ald. 503.

(0) See Shack v. Anthony, 1 Mau. & Sel. 573; Pinder v. Wilks, 5 Taunt. 512; Vlierboom v. Chapman, 13 Mee. & W. 230.

nected with that of contract; a debt being a legal relation or predicament which frequently arises out of a contract, and is in turn sometimes the basis upon which a contract. is founded by implication of law. For in general, whenever a contract is such as to give one of the parties a right to receive a certain and liquidated sum of money from the other-as in the case of a bond for payment of money, or an implied promise to pay for goods supplied so much as they shall be reasonably worth,-a debt is then said to exist between these parties; while, on the other hand, if the demand be of uncertain amount,-as where an action is brought against a bailee, for injury done through his negligence to an article committed to his care,-it is described, not as a debt, but as a claim for damages (p). As debts may thus arise out of contracts, and the contract may be either with or without specialty, so they are variously denominated in these several cases, as specialty debts, or debts by simple contract (q). They may arise, however, not only by deed or simple contract, but by matter of record (r); and in that case receive their designation accordingly, as debts of record; though they are also properly described in this case, as well as where they accrue by deed, as specialty debts. A debt of record is a sum of money which appears to be due upon the evidence of a court of record: thus it may be due upon a statute merchant or statute staple (terms explained in a former volume), or upon a recognizance (s); which is an obligation of record, entered into before some court or magistrate duly authorized, whereby the party bound acknowledges that he owes to the crown, or a private plaintiff, (as the case may be,) a certain sum of money, with condition to be void if he

(p) Blackstone (vol. ii. p. 464) speaks of debt as one of the species of contracts; but this conveys no accurate idea of the meaning of the term. It is not a contract, but may be the result of a contract.

(9) Vide sup. p. 53.

(r) As to records, vide sup. vol. 1.

p. 53.

(s) 2 Bl. Com. 465. As to statutes merchant and staple, vide sup. vol. 1. p. 308.

shall do some particular act, as if he shall appear at the assizes, keep the peace, pay a certain debt, or the like (t).

Another species of debt by record, is that upon a judgment; which is, where any sum is adjudged to be due from one party to the other, in an action in a court of record; and this, whether that sum was originally liquidated so as to constitute a debt between them, or was fixed and ascertained for the first time by the verdict of a jury, the original claim having been in the nature of damages (u).

The case of a judgment for a certain sum by way of damages affords, it will be observed, an instance of a debt arising independently of contract. But the instance is not a solitary one; for it may be laid down generally, that whenever a man is subject to a legal liability to pay a sum of money to another, he is said to owe him a debt to that amount. Thus, if by act of parliament a penalty be annexed to some particular offence, and it be made recoverable by the first informer,-any person committing the offence will become indebted in the amount of the penalty to the first informer, as soon as the information is laid (x). It deserves remark, however, that when debts thus arise, independently of contracts, contracts may, on the other hand, arise out of them. For a man may make an actual promise to pay a debt thus created, or, in the absence of express promise, an implied one may arise by construction of law. Yet this is subject to exception in the case of a

(t) 2 Bl. Com. 465; Bro. Ab. tit. Recognizance, 24. When recognizances are forfeited, they are estreated (that is, extracted or taken out from among the other records) and sent up to the Exchequer, there to be enforced (see 22 & 23 Vict. c. 21, s. 28). But recognizances forfeited and ordered to be estreated by a court of quarter sessions, or of gaol delivery, are levied by the sheriff

and returned by the clerk of the peace to the lords of the Treasury. See Dickenson's Quarter Sessions (6th ed.), pp. 110, 994; et post, bk. VI. c. XVII.

(u) As to judgments in general, vide post, bk. v. c. x.

(x) As to the power of the Crown to remit penalties under 22 Vict. c. 32, vide post, bk. VI. c. XXV.