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or for necessary supplies to the ship, he has a lien on the ship and no deed of hypothecation is necessary.

Courts of Law and Equity show the utmost favour to liens, not merely in securing their full value to persons entitled to them, but also in maintaining them against every claimant. This rule cannot be more strongly marked than by the decisions made in respect of the rights of the Crown. Where a borrower on borrowing money agreed by recital in a bond that certain real property, freehold and leasehold, should stand pledged for the repayment of it, and title deeds were delivered so as to create in equity a mortgage or a right to a mortgage; the lien was held good against the prerogative lien of the Crown in respect of debts subsequently accruing to the king, and the equitable mortgagees were entitled to be first paid principal and interest out of the produce of the sale of the premises, though it was the property of a Crown debtor, and had been seized under an extent in chief. 1 But we have already occupied so much space that we cannot bring to a close our remarks upon the doctrine of liens; we reserve to ourselves, as a subject for a future number, the principles upon which a lien is waived or extinguished. C.

ART. IV.-MERCANTILE LAW, NO. XVI.-ON MERCHANT

SHIPPING.-(Continued.)

CASTING back a glance at what has already been done, it will be seen that we have now passed under review-1st, The modes in which the ownership of a merchant vessel is acquired, held, evidenced and transferred, with the requisites to be observed for securing to it the privileges of a British ship— 2dly, The general management of the vessel and the relation of part-owners, as a body, as well to third parties as to each other-3dly, The appointment and qualifications of the master and crew, and the rights, powers, duties and obligations of the former, in relation to the owners by whom he is ap

'Pector v. Philpot, 12 Price, 197.

pointed, to third parties with whom he contracts, and to the crew placed under his command--4thly, The rights and duties of the mariners who compose the crew-5thly. The out-fitting and repairing of the ship at home and abroad, with the ordinary powers and obligations thence resulting, as well as the extraordinary power of hypothecation and sale under circumstances of exigency—And, lastly, certain ordinances and provisions of public policy for the security of navigation and commerce, more particularly in the matters of pilotage and convoy.

At length therefore, it seems, we are free to enter upon the subject to which all these inquiries, however necessary and important, are but preliminary—the employment of the vessel by the owner, as a vehicle for the transport of merchandize. There are, it is true, other ways in which the owner of a vessel fitted for the merchant service may turn his property to account. Thus he may let the body of the ship for a term of years or months to another, who becomes as it were the tenant, and takes upon himself, for the term of his tenancy, not only the direction, but the entire management and outfit: but as such a case has evidently nothing to distinguish it from the letting to hire of any other chattel, it may be passed over with the remark that the person so hiring or renting the vessel, for all purposes of contract, stands, for the time being, in the relation of owner.1

Again, a merchant vessel may be let (not only for purposes of warfare, which are manifestly foreign to our inquiry, but) for other uses besides that of the conveyance of goods, as for the carriage of the mail, the transport of troops or convicts, or the like: or it may be employed generally as a packet ship for the conveyance of passengers, or, as in the case of vessels trading to the East Indies, may receive both passengers and cargo: in none of these various employments, however, are there any such peculiar incidents or obligations as to render a separate consideration necessary; nor, indeed, though

A person so circumstanced was termed in the civil law "exercitor navis" the employer of the ship, as distinguished from the paramount owner or "dominus." In like manner, and for the same purpose, he is designated in the French law by the name of "armateur," as distinguished from the "proprietaire." It is to be regretted that some such distinction of terms does not exist in our law.

they may serve for illustration, do they fall properly within the boundaries of our subject. We may dismiss also from view a case of occasional occurrence, where the registered owner himself loads the vessel, and despatches it on an adventure for his own account; for where there is no contract, there can of course be no obligations.

The ordinary case, and the only one to which our attention will now be professedly directed, is that where the owner tenders his ship, furnished, equipped, and appointed, for the reception and carriage of goods, and the merchant or other person, who may be desirous of so employing her, enters into a bargain with him for that purpose.

This bargain, however made or evidenced, is called a contract of affreightment, and it is, in legal definition, the letting out to hire on the one part, and the taking to hire on the other for a time, or for a specific voyage or adventure, of a vessel, or of the whole or a part of the room and stowage of a vessel, with its appointments, and the services of its master and crew, for the purpose of carriage by sea. The contract for hiring a vessel or the whole or a principal part of the room and service of a vessel, with its appointments, is the subject of a special agreement, generally, if not always, reduced into writing, and known among merchants by the name of a charter party.3 A vessel so let to hire is said to be chartered, and the person hiring is designated as the charterer. The charter party is sometimes a deed, that is to say an instrument under seal, and sometimes not so, in which

' None of the definitions which we have met with sufficiently mark the distinc tion as to the subject hired. Two entirely distinct sets of obligations result from the hiring out of a chattel, and the hiring out of services-conductio et locatio rei, and conductio et locatio operarum.

2

By the French ordinance, and still by the law of France, the charter-party must be in writing, but yet it is said a valid contract may arise without a writing, the ordinance having regard merely to the mode of establishing it by proof. It is observable that in the foreign jurists the term charter-party is used synonymously with the contract of affreightment, according to them there being no such contract without a charter-party express or implied. See Pothier, Traité de Charte-Partie, Valin, Pardessus.

3 Charta partita—a writing divided into two parts, one to be held by each of the contracting parties, and being in commercial law what an indenture is in common law. For the origin and etymology of the word, see Pothier ubi ante; and Ab. on Sh. p. 162, note (a).

case it is usually called a memorandum of charter party, as if intended merely as a note for the more solemn instrument to be subsequently executed. It may be entered into by the owner, either singly or conjointly with the master, or, as when executed abroad, for the most part it necessarily must be, by the master alone: of the power of the master to bind the owner by such a contract enough has been already said.2

Where there is no special agreement or charter with any one in particular, the vessel is put up by public advertisement for the reception of cargo generally to be carried to a specified port of destination, and it is then said to be a general ship, or a ship on general freight,3 The term "freight" is applied indiscriminately to the stipulated hire or remuneration to be paid, whether for the vessel itself, or for the use and room of a whole or of some part, and whether the ship be chartered or general; and it is either a "time freight," that is to say, calculated with reference to the time during which the service is to continue, or it is estimated by the tonnage of the vessel, or, more frequently, by the weight or tale of the cargo to be shipped. The merchant who charters a vessel for loading is called also the "freighter," and he who consigns goods by a general ship is more frequently spoken of as the "shipper.”

The various kinds of hiring comprehended within this general term of a contract of affreightment may be rendered more intelligible by a familiar illustration. A coach may be hired with horses, harness, &c. complete, and together with a coachman or driver in the owner's service, either for a specific time, as a year, or for so long a time as the hirer may choose, at a certain rate per month, or for a stated service, such as a tour on the continent, or the like. By this hiring, the coach and horses become for the time being the hirer's own; he has the control and direction, for he may take them where he likes; he has also the possession, for he may occupy the coach by whom and as he pleases, so it be not

1 A stamp of 11. 5s. is required for either.

2 Ante, vol. xiii, p. 385.

3 The French have a mode of hiring a vessel, or rather part of it, for carriage, to which we have nothing exactly corresponding. It is called a " location à cueillette,” and it consists in the letting to freight of a part of the ship under an implied condition that if the remaining space be not filled up by other consignments to the extent of three-fourths within a given time the contract shall be off.

inconsistent with the general purpose for which it was let; and finally the driver, though appointed by the owner, and his servant, so far as the general charge and superintendence of the property itself is concerned, is immediately the servant of the hirer, being subject to his orders and direction. Secondly, the engagement may be of this kind-The owner of the coach may contract to take a party by his coach, and, of course, therefore, by his own horses and driver, on a particular expedition-as from London to Oxford and backeither for a stated sum, or at a certain rate per day for so long a time as the employment shall continue. Now, in this case, it is evident that it is not the coach itself which is let, but the use and accommodation only of the coach, together with the services of the owner by means of his horses and driver for carrying the hirer on the intended expedition. The latter has nothing to do with the management or direction of the journey, and the coach and horses cannot in any sense be considered to be his: all that he stipulates for, is that he shall have the whole use of the coach for his party, and that they shall be carried to the place of destination and back on the terms agreed. There is, lastly, the common instance of taking one or more places in a stage-coach, either plying regularly between two points, as Oxford and London, or offered to the public for the conveyance of passengers generally to some particular place on a special occasion, as, of a festival, election, or the like: in which case the transaction is manifestly a hiring of a certain space or room in the coach, together with the service of the horses, driver, &c. for the purpose of being carried to the specified place of destination.

Applying now these several cases, so distinguished, first, to a van or waggon employed in carrying, not persons, but goods, and next, to a merchant-ship, which may be regarded as a van or waggon of the sea, we have, first, the chartering of a whole vessel, with its apparel, stores, master and crew, where the vessel itself is let out for a term or adventure; secondly, the chartering, also for a time or adventure, where only the use of the vessel, so furnished and equipped, is let; and thirdly, the hiring of a portion of the space for stowage in a general ship, with the like use of the vessel for carriage. In the first of

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