Leckie v. Sears , 109 Mass. 424 ( 1872 )

Gray, J.

The determination of this case depends upon the construction and effect of the charter as between the parties to it; and involves no question between either of them and third persons, of liability for supplies, or lien on goods shipped; or otherwise.

The charter is for one round voyage for a lump sum, the payment of which is not declared to depend upon the delivery of the cargo. The master on his part agrees “ on the freighting and chartering” of the vessel tc the defendants; and they on their part agree “to charter and hire the said vessel.” As between the parties, it is rather a contract for the letting to hire of the whole carrying capacity of the ship for a certain voyage, than a contract for the carriage and delivery of goods. In order to recover the sum agreed to be paid for the use of the ship, the master must indeed perform the voyage; and that he has done. But he has not bound himself absolutely to deliver the whole cargo at its destination; and the loss of part by perils of the sea without his fault does not defeat or affect his right to recover the entire sum agreed to be paid him by the charterers.

The case is fully covered by the judgments of four most accomplished and experienced judges, Dr. Lushington in the high court of admiralty, and Lord Justice Knight Bruce, Sir John Taylor Coleridge and Sir Edward Vaughan Williams in the judicial committee of the privy council, in a case singularly like the present. The Norway, Brown. & Lush. 377, 404, and 3 Moore P. C. (N. S.) 245^*

' It is distinguishable from those cited in the learned argument for the defendants, in which the voyage was wholly broken up and the ship never proceeded to her destination, as in Mitchell v. Darthez, 2 Bing. N. C. 555; S. C. 2 Scott, 771; The Nathaniel Hooper, 3 Sumner, 542; Miston v. Lord, 1 Blatchf. C. C. 354; The Ann D. Richardson, 1 Abbott Adm. 499; and The Erie, 22 Law Reporter, 152; or in which freight was in terms payable only on delivery of the cargo, as in Bright v. Cowper, 1 Brownl. 21; Post v. Robertson, 1 Johns. 24; and Sayward v. Stevens, 3 Gray, 97; or by the tale, as in Vlierboom v. Chapman, 13 M. & W 230 Frith v. Barker, 2 Johns. 327, and Libby v. Gage, 14 Allen, 261.

The defendants principally rely on the provision in the charter party requiring “ the amotint of the outward freight to be paid the captain on the safe delivery of the outward cargo at Mobile, free of insurance and commissions, less towages and compressing.” But that this “ amount of the outward freight ” is not part of the charter money to be paid by the charterers to the owner of the ship, but freight to be collected by the charterers under bills of lading or other agreements between them and owners of the outward cargo, is manifest from several considerations. Assuming it to apply to the charter money, it would afford no rule for estimating what proportion thereof was to be deemed paid for the outward passage ; if half of the charter money had been intended, it would have been easily so expressed. “ Free of insurance and commissions ” can only apply to freight payable to the defendants; for they would have no interest in insuring, and no occasion to pay commissions for collecting, freight payable by themselves. “ Less towages and compressing ” points in the same direction; for by another clause in the charter party, the charterers were to pay these charges, over and above the charter money; they had no reason therefore to deduct them out of that money; but might well retain the amount out of sums received from others for freight. The object of the provision in question was not to make the right to receive the charter money or a moiety thereof dependent upon the delivery of the entire cargo outward or homeward ; but to put the master in funds at the outward port for his disbursements on the voyage, as in Towle v. Kettell, 5 Cush. 18. If the voyage had not been performed, the amount of freight money thus paid might perhaps have been recovered back. Griggs v. Austin, 3 Pick. 20. But that question is not now before us.

The plaintiff is therefore entitled to recover the full amount of the charter money, less the sum already paid, and without deduction on account of the merchandise sold at Key West.

The charter party expressly reserves the cabin, and gives the charterers no right therein. The cabin thus reserved cloarlv includes both the part used as a dining room and that used as a sitting room (although separated by a partition) as well as the state rooms connected with each part. For the cotton stowed in the cabin, besides the full return cargo, the master and owner is entitled to additional freight from the charterers. Towse v. Henderson, 4 Exch. 890. Mitcheson v. Nicol, 7 Exch. 929. Neill v. Ridley, 9 Exch. 677. Almgren v. Dutilh, 1 Selden, 28.

Judgment for the plaintiff; ease referred to an assessor.

* See also Robinson v. Knights, Law Rep. 8 C. P. 465; Merchant Shipping Co. v. Armitage, Ib. 469, note.