Joseph Walton

“ Contract of Affreightment is the expression usually employed to describe the contract between a shipowner and some other person called the freighter, by which the shipowner agrees to carry goods of the freighter in his ship, or to give to the freighter the use of the whole or part of the cargo-carrying space of the ship for the carriage of his goods on a specified voyage or voyages or for a specified time ”

“ And with regard to seaworthiness, it is not uncommon for the shipowner to stipulate that he shall not be responsible for loss arising even from the unseaworthiness of the ship on sailing, provided that due care has Been taken by the owner and his agents and servants to make the ship seaworthy at the commencement of the voyage. There is indeed no rule of English law which prevents a shipowner from exempting himself by the terms of the bill of lading from liability for damage and loss of every kind, whether arising from unseaworthiness or any other cause whatsoever. ”

“ If freight payable in advance has become due, even though the ship is lost before it is paid, it must, in the absence of some special provision to the contrary, still be paid, and freight already paid in advance does not become repayable because the goods do not reach their destination. If, however, goods upon which freight has been paid in advance are lost, and the shipowner is liable for their loss, the amount of freight paid in advance must be taken into account in assessing the damage recoverable from the shipowner. ”

“ The meaning to be given to the words of the contract, or, in other words, its construction, when a dispute arises about it, must be determined by the judge or court. The result is, that certain more or less common clauses in contracts of affreightment have come before the courts for construction, and the decisions in these cases are treated practically, though not perhaps quite logically, as rules of law determining the sense to be put upon certain forms of expression in common use in shipping contracts. ”

“ The consequences of a deviation are serious, inasmuch as the shipowner is liable, not only for any loss or damage which the shipper suffers in consequence of the deviation, but for any loss of goods which occurs after the deviation, even though such loss is caused by one of the excepted perils. ”

“ A party to a contract cannot be held liable for breaking his contract if its performance has become illegal. There may be other cases in which, from the circumstances of the voyage and adventure, it must be inferred that the parties intended the performance of the contract to be conditional on the existence at the time of performance of a certain state of things, the non-existence of which would render performance impossible. ”

“ The list of excepted perils varies much in different forms of bills of lading. In the older forms it usually included perils of the seas, robbers and pirates, restraint of princes and rulers, fire and barratry (that is, wilful wrongdoing) of the master and crew. The list, however, has grown in modern times, and is still growing; the tendency being to exempt the shipowner from liability for all loss which does not arise from his own personal default, or from the negligence of his managers or agents in failing to provide a vessel seaworthy and fit for the voyage at its commencement. ”

“ A ship may be let like a house to some person who takes possession and control of it for a specified term. The person who hires a ship in this way occupies during the currency of his term the position of shipowner. The contract by which a ship is so let may be called a charter-party ”

“ Voluntary sacrifices so made and extraordinary expenses incurred for the common safety are called general average (see Average) sacrifices and expenses, and are made good to the person who has made the sacrifice or incurred the expense by a general average contribution, which is recoverable from the owners of the property saved in proportion to its value, or, in other words, each contributes rateably according to the benefit received. ”

“ The lien may be waived, and is lost by delivery of the goods, or by any dealing with the consignee which is inconsistent with a right of the shipowner to retain possession of the goods until payment has been made. The shipowner may preserve his lien by landing the goods and retaining them in his own warehouse, or by storing them in a public warehouse, subject to the conditions required by the Merchant Shipping Act 1894. ”