some other ship without unreasonable delay, the owner of the
goods cannot require the goods to be delivered to him at any
place short of their destination without payment of the full
freight. Sometimes the freight, either wholly or in part,
is made payable in advance. 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.
(8) There is no part of the bill of lading which is of
greater practical importance or which demands more careful
consideration by shipowner and shipper alike than that which
sets forth the excepted perils: those perils, or in other words
causes of loss, for which the shipowner is to be exempt from
liability. By the common law, as we have seen, the exemption
of the carrier, apart from express contract, extended only to
loss by the act of God or the king's enemies. The expression
``act of God'' requires a word of explanation. It will be
sufficient to say that it is not synonymous with force majeure;
but it includes every loss by force majeure in which human
agency, by act or negligence, has had no part. 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. It is important to point
out in this connexion that there are two duties which the
shipowner is always presumed to undertake, and which are
assumed to be unaffected and unqualified by the exceptions,
unless a contrary intention is very clearly expressed by the
terms of the contract. In the first place, he undertakes
absolutely that the ship in which the goods are shipped is
fit at the commencement of the voyage for the service to be
performed. If during the voyage loss arises even from dangers
of the seas or other excepted peril which would not have
occurred if the vessel had been seaworthy and fit for the
voyage at its commencement, the shipowner is not protected
by the exceptions, and is liable for the loss. In the second
place, there is an implied undertaking by the shipowner that
all reasonable care will be taken by himself, his servants and
agents, safely to carry and deliver at their destination the
goods received by him for carriage. Should loss or damage
occur during the voyage, though the direct cause of such loss
or damage be perils of the seas or other excepted peril, still
the shipowner cannot claim exemption under the exceptions,
if the shipper can prove that the loss or damage would not
have occurred but for the negligence of the master or crew,
or other servants of the shipowner. The shipowner, in other
words, is bound, with his servants, to use all reasonable care
to prevent loss by excepted perils and by any other cause.
Express stipulations.
It must not be supposed that even these primary obligations,
which are introduced into every contract of affreightment not
by express terms of the contract. It has now become common
form to stipulate that the shipowner shall not be liable for
any loss arising from the negligence of his servants, or that
he shall not be liable for loss by the excepted perils even
when brought about by the negligence of his servants. 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. In such a case the goods are carried at their
owner's risk, and if he desires protection he must obtain it by
insurance. In this respect the law of England permits greater
freedom of contract than is allowed by the law of some other
states. The owners, agents and masters of vessels loading
in the United States of America are forbidden by an act of
Congress, commonly called the Harter Act, passed in the
year 1893, to insert in their contracts of affreightment
any clause exempting the shipowner from liability for the
negligence of his servants; but it is at the rame time
enacted that, provided all reasonable skill and care has
been exercised by the shipowner to make the vessel seaworthy
and fit for the voyage at its commencement, the shipowner
shall not be liable for any loss caused by the negligence
of ihe master or crew in the navigation of the vessel, or by
perils of the sea or certain other causes set forth in the
act. It is now very usual to insert in the bills of lading
of British vessels loading in the United States a reference
to the Harter Act, incorporating its provisions so as
to make them terms and conditions of the bill of lading.
The difficulty of construing the terms of bills of lading
with regard to the excepted perils, often expressed in
obscure and inexact language, has given rise to much
litigation, the results of which are recorded in the law
reports. Where such difficulties arise the question must
be, What is the true and natural meaning of the language used
by the parties? This question is not governed by the general
rules which we have endeavouted to explain: but the words of
the contract must always be considered with reference to these
rules, which are founded upon the well-established customs
of merchants recognized and formulated by the courts of law.
(9) The bill of lading sometimes contains a clause as to
the shipowner's lien. Without any express provision for it
the shipowner has by the common law a lien for freight. If
it is desired to give the shipowner a lien for demurrage
(see below) or other charges, it must be expressly provided
for. The lien is the right of the shipowner to retain
the goods carried until payment has been made of the freight
or the demurrage, or other charge for which a lien has been
given. 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.
Charter-parties.
Charter-parties are, as we have already explained, either
for a voyage or for a period of time. (1) A charter-party
for a voyage is a formal agreement made between the owner
of the vessel and the charterers by which it is agreed that
the vessel ``being tight, staunch and strong, and every way
fitted for the voyage,'' shall load at a certain named place
a full cargo either of goods of a specified description or
of general merchandise, and being so loaded shall proceed
with all possible despatch either to a specified place or
to a place to be named at a specified port of call, and
there deliver the cargo to the charterers or their assigns.
There are clauses which provide for the amount of freight
to be paid and the manner and time of payment; for the time,
usually described as lay days, to be allowed for loading
and discharging, and for the demurrage to be paid if the
vessel is detained beyond the lay days; usually also a clause
requiring ``the cargo to be brought to and taken from alongside
at merchant's risk and expense''; a clause that the master
shall sign bills of lading for the cargo shipped either at the
same rate of freight as is payable under the charter-party or
very commonly at any rate of freight (but in this case with
a stipulation that, if the total bill of lading freight is
less than the total freight payable under the charter-party,
the difference is to be paid by the charterers to the master
before the sailing of the vessel); and there is usually
vhat is called the cesser clause, by which the charterer's
liability under the charter-party is to cease on shipment
of the cargo, the shipowner taking a lien on the cargo for
freight, dead freight and demurrage. The charter-party is
made subject to exceptions similar to those which are found
in bills of lading. There are also usually clauses providing
for the commissions to be paid to the brokers on signing the
charter-party, the ``address'' commission to be paid to the
agents for the Vessel at the port of discharge, and other
matters of detail. The clauses in charter-parties vary, of
course, indefinitely, but the above is probably a sufficient
outline of the ordinary form of a charter-party for a voyage.
What has been said with regard to bills of lading as to the
voyage, the place of delivery, the exceptions and excepted
perils, and the liability of the shioowner and his lien applies
equally to charter-parties. lt may be desirable to add a few
words on demurrage, dead Freight, and on the cesser clause.
Demurrage is, properly speaking, a fixed sum per day or
per hour agreed to be paid by the charterer for any time
during which the vessel is detained in loading or discharging
over and above the time allowed, which is, as we have said,
usually described as the lay days. Sometimes the number of
days during which the vessel may be kept on demurrage at the
agreed rate is fixed by the charter-party. If no demurrage
is provided for by the charter-party, and the vessel is not
loading or discharging beyond the lay days, the shipowner
is entitled to claim damages in respect of the loss which
he has suffered by the detention of his ship; or, if the
vessel is detained beyond the fixed number of demurrage
days, damages for detention will be recoverable. Sometimes
there is no time fixed by the charter-party for loading or
discharging. The obligation in such cases is to load or
discharge with all despatch that is possible and reasonable
in the circumstances; and if the loading or discharging is
not done with such reasonable despatch, the shipowner will
be entitled to claim damages for detention of his ship. The
rate of demurrage (if any) will generally be accepted as the
measure of the damages for detention, but is not necessarily
the true measure. When the claim is for detention and
not demurrage the actual loss is recoverable, which may be
more or may be less than the agreed rate of demurrage. The
contract usually provides that Sundays and holidays shall
be excepted in counting the lay days, but unless expressly
stipulated this exception does not apply to the computation
of the period of detention after the lay days have expired.
Dead freight is the name gaven to the amount of freight
