LAW INTELLIGENCE.

New Zealand Colonist and Port Nicholson Advertiser, Volume I, Issue 63, 7 March 1843, Page 2

LAW INTELLIGENCE.

Judgment of the Chief Justice. FITZHERBERT v. HORT AND OTHERS. This is an action on a charter party in the form following: , “Memoranda of charter .of Schooner. Kate, of Sydney, G. E. Read, master. “It is this day mutually agreed between William Fitzherbert, agent of the Schooner Kate, of Sydney, fifty r two tons legister tonnage, and G. E. Read master, now lying in the Port of Port Nicholson, and Hort, Mocatta, and Co., merchants, of Wellington, that the said vessel shall be made fit and ready for sea with all dispatch, and shall, without delay, load and take in full and complete, cargoes, or so much as the charterers may be inclined to ship, and proceed forthwith to such Ports or places in New Zealand as the charterers may design, mad there discharge or take in further cargo as per Bill of Lading. “ Five lay days to be allowed to load at the commencement of the charter, and five more to discharge at its termination, notice to be. duly given of such readiness to load and discharge. „ “And in. consideration of these'services, the said charterers bind, themselves to pay io. the said William Fitzherbert, on the completion of the said charter, fIW sum of Ninety pounds sterling per. month for one month certaiiv.and at the same rate further timp. dhaibthe said, Schooner may »jbe employed by them over and above the teq : £sgys above allowed; “ The charterers^i-eserve to themselves the right of extendingjfhe charter of the said vessel from month to...month at the rate and..on the condition above mentioned.” The Schooner Kate having taken cargo on board according to the charter, went to sea and was lost before the expiration of the montp, and before her arrival in any Port in New Zealand. Under these circumstances the Plaintiff seeks to recover 90/. as hire of the vessel or freight for one month certain. A verdict has been entered for the Plaintiff subject to the judgment of the Court on a case to be agreed. On the argument it was contended for the Plaintiff that the above instrument amounts to a demise of the ship and the services of the master and crew, and various arguments were rested on that ground. As I cannot adopt that view of the meaning of the instrument;! it becomes necessary to enter upon a consideration of these arguments. It is true that express words are not needed to give, to a charter

party the effect of a contract- of demise. It is sufficient if there be .stipulations equivalent to an actual demise, if fhe whole language of the document taken together have that purport. But here I do not find any of the circumstances which have been considered in the cases decided on this point as importing a transfer of the possession of the ship to the charterers. Subject, of course, to the duty of carrying the Defendants goods in pursuance of the contract. I do not find anything •to take the possession, management, or control of the vessel, out of the hands of the owners. I read the charter party as a simple coutract of affreightment. The general principle is admitted that unless a contract for the conveyance of merchandise be completely performed by the delivery of the goods at the place of destination, the charterer, deriving no benefit, shall be subject to no payment. The rule was very distinctly laid down by Lord Mansfield in Mackrell v. Simond, of which a nofe is preserved, by Lord Tenderden (on shipping p. 418.) There, the charter was by the month from London to Grenada and back to London, at the ‘ rate of -11 OL sterling per calender month; 'Lord Mansfield said “Freight is the mother of wages, the safety of the ship, the mother of freight. .That is the general rule of maritime law. If there be an entire voyage out and in, and the ship be cast away on the homeward voyage no freight is due, no wages is due because the whole profit is lost. “ Whenever there are two voyages, and one is performed and the ship is lost on the homeward voyage, freight is due upon the first. Nothing, however, is due upon the homeward voyage though the ship might be out a month.” Havelock v. Geddes (10 east) does not appear to support the Plaintiff’s claim. In that case the ship was let to freight at a certain sum per month for 12 months certain, not for any specific voyage, but on the terms that the ship should be under the entire c->ntrol of the merchants as far as related to all orders for sailing, destination, and delay. . The ship continued in the employ of the merchants for more than 10 months, and was then destroyed by accidental lire. It was holden that upon the true construction of the agreement in that case the freight of each month of the vessels service was earned and became completely due at the end of each month. Yet the case appears to furnish no authority for the position that freight even on such a contract was due for the month in the course of which the vessel was destroyed. The charter party, itself (ontains no special . proviso on which to found' this claim. On the contrary, the words’ run thus : —“ And in consideration of these services the said charterers bind themselves to pay.to. the said William Fitzherbert, on the completion of the said charter, the sum of ninety pounds, &c.” The natural construction of these words the “ completion of the charter” appears to me to be, not as is contended by the Plaintiff, the expiration of the first month, whatever might be the state of •circumstances as to the ship herself or the service to be performed bylier, but rather the full performance of the service to which the charter relates, and for which the freighter undertook to pay. The arrival of the vessel at the Port of delivery and discharge of the goods there seem to be made a condition precedent to the payment of freight, so as to bring the case within the principle of Gibbon v. Mender (2 B. and A.) and other like cases. Judgment for Defendant.