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good faith. The S. L. Watson, 118 Fed.
945. 55 C. C. A. 439.

Where minds meet and agree. — Coni-
pania, etc., Navegacion v. Spanish-Ameri-
can Light, etc., Co., 146 U. S. 483, 36 L.
Ed. 1054, 13 S. Ct. 143; Starr & Co. v.
Galgate Ship Co., 68 Fed. 234.

33. By managing owners. — Bangs v.
Lowbor, 2 ClifT. 157, l'\-d. Cas. No. 840.

34. Ships husband. — Darl)y v. Baines
(Eng.), 21 L. J., N. S., Ch. 801.



§§ 4247-4249 carriers. 3866

unless there is an authorized agent of the owner at that point.^^ But neither a
part owner of a vessel nor the master of the vessel in the home port can make a
binding charter party without authority for that purpose. ^^^ Contracts of af-
freightment entered into by the master, within the scope of his apparent authority
as master, bind the vessel to the merchandise for the performance of such con-
tracts, wholly irrespective of the ownership of the vessel ; and whether the master
be the agent of the general or special owner — and this upon the principle that the
general owner must be presumed to consent when he lets the vessel that the
master may make such contracts, which operate as a tacit hypothecation of the
vessel. ^"^

Owner Pro Hac Vice. — If the general owner has allowed a third person to
have the entire control, management and employment of the vessel, and thus be-
come owner pro hac vice, the general owner must be deemed to consent that the
special owner or his master may create liens binding on the interest of the gen-
eral owner in the vessel, as security for the performance of such contracts of
affreightment.38 Though in such a case the special owner would be estopped, in
favor of a bona fide holder of the bill of lading, from proving that no property was
shipped, vet the general owner is not estopped.-^^ But no such implication arises
in reference to bills of lading for property not shipped, designed to be instruments
of fraud ; and they create no lien on the interest of the general owner,- although
the special owner was the perpetrator of the fraud.'**^

Agent Changing Contract without Authority. — Where the terms and con-
ditions upon which horses were to be carried on a vessel had been fully agreed
upon by the shipper and vessel owner, a subsequent contract signed when the
horses were loaded, at the instance of the carrier, by the shipper's head teamster
without authority from the shipper, and differing materially in its terms from the
previous agreements, was void.^^

§§ 4248-4249. Contents, Form and Requisites — § 4248. In General.

— A contract of aft'reightment generally takes the form of a charter party or of a
bill of lading.42

§ 4249. Requisites of Contract. — No Particular Form Required. — No

technical form is essential to create a demise or contract of affreightment.^^ As
no particular form or solemnity of execution is required for a contract of a
common carrier to transport goods, it may be by parol, or it may be in writing;
in either case it is equally binding.'*^ A charter party may be made by parol. ^^

35. Master of vessel in foreign port. — 41. Power of agent to make new con-

Hnrry v. Hurry, Fed. Cas. No. 6922, 2 tract.— The Olympia, 156 Fed. 252.

Wash. C. C. 145; Ward v. Green (N. Y.), 42. The Nettie Quill, 124 Fed. 667;

6 Cow. 173. Mande & P. Merc. Shipp. 227; Smith's

36. Part owners. — Broadie v. Howard Merc. Law, 295; The Delaware (U. S.),
(Eng-.). IT C. B. 109; The A. M. Bliss, 2 14 Wall. 579, 20 L. Ed. 779.

Lowell 10.3, Fed. Cas. No. 274; Kimball v. 43. Gracie v. Palmer (U. S.), 8 Wheat.

Tucker, 10 Mass. 192. 605, 634, 5 L. Ed. 696; Raymond v. Tyson

Master in home court,— The Tribune, 3 (U. S.), 17 How. 53, 15 L. Ed. 47; United

Sumn. U4, Fed. Cas. No. 14,171. States v. Shea, 152 U. S. 178, 38 L. Ed.

37. Master owner pro hac vice. — 403, 14 S. Ct. 519.

Schooner Freeman v. Buckingham (U. S.), "The contract of affreightment, like any

18 How. 182, 15 L. Ed. 341; Thomas v. other contract, is the creature of the will

Osborn (U. S.), 19 How. 22, 15 L. Ed. of the parties. It may be varied to in-

534. finity, and easily adapted to the exigen-

38. Schooner Freeman v. Buckingham cies of either party or of any trade. It
(U. S.), 18 How. 182, 15 L. Ed. 341. is only where the express contract is si-

39. Estoppel to deny shipment of goods. lent, that the implied contract can arise."
— Schooner Freeman v. Buckingham (U. Raymond v. Tyson (U. S.), 17 How. 53,
S.), 18 How. 182, 15 L. Ed. 341. "See, also, 15 L. Ed. 47; Gracie v. Palmer (U. S.), 8
post, "Delivery to Carrier," § 4323. Wheat. 605, 634, 5 L. Ed. 696. _

40. Bills of lading designed as imple- 44. Form — Necessity of writing. — Mo-
ment of fraud. — Schooner Freeman v. bile, etc., R. Co. v. Jurey, 111 U. S. 584,
Buckingham (U. S.), 18 How. 182, 15 L. 28 L. Ed. 527, 4 S. Ct. 566.

Ed. 341. 45. Charter party. — Thomas v. Osboru'



3867



carriage: of property.



§ 4249



In Form of Bill of Lading.— Where it takes the form of a bill of lading it is
evidenced by a receipt for the property shipped, and a promise or undertaking
to transport and deliver the same as therein stipulated. 4^' The bill of lading
usually sets forth the time of the contract, and shows the duty assumed by the
vessel. •*'''

Marginal Notes. — A marginal note placed on a bill of lading by the shipper
is no part of the bill.^^

Ship Bill— Memorandum by Carrier. — A memorandum found at the foot
of the ship bill which is not upon those delivered to the shipper, is no part of the
contract.'*'^

Acceptance— Meeting of Minds.— The minds of the parties must meet as
to its terms before a charter party or an affreightment contract can become a
binding agreement. If there is any part of it in regard to which the minds of the
parties have not met, the entire instrument is a nullity, as to all its clauses. ^'J If



(U. S.), 19 How. 22, 15 L. Ed. 534. So
held where the master in command of a
barque contracted with the owners to
take her on what is termed "a lay," there
not appearing to be any written contract
of affreightment between them.

46. The Nettie Quill, 124 Fed. 667.

47. Vandewater v. Mills (U. S.), 19
How. 82, 15_L. Ed. 554.

48. Marginal note placed on bill by
shipper. — A marginal note put by the
quartermaster's department on bills of
lading of vessels chartered by them, "that
if on the arrival of the vessel at the port
of destination the consignee should order
her to another place to discharge, such
order in all cases to be in writing on the
bill of lading," does not make a part of
the contract entered into by the vessel;
and if her port of destination be plainly
expressed in the body of the bill, the con-
signee can not, in virtue of the marginal
memorandum, order her to go forward to
another port. United States v. Kimbal
(U. S.), 13 Wall. 636, 20 L. Ed. 503, 7
Ct. CI. 234.

49. The Thames (U. S.), 14 Wall. 98,
20 L. Ed. 804.

50. Compania, etc., Navegacion v. Span-
ish-American Light, etc., Co., 146 U. S.
483, 36 L. Ed. 1054, 13 S. Ct. 142, citing
Eliason v. Henshaw (U. S.), 4 Wheat.
225, 4 L. Ed. 556; Insurance Co. v. Young
(U. S.), 23 Wall. 85, 23 L. Ed. 152; Til-
ley V. Cook, 103 U. S. 155, 26 L. Ed. 374;
and Minneapolis, etc., R. Co. v. Columbus
Rolling-Mill, 119 U. S. 149, 30 L. Ed. 376,
7 S. Ct. 168.

A contract is void for want of mutual-
ity. Dorsey v. Pack wood (U. S.), 12
How. 126, 13 L. Ed. 921; American Cot-
ton Oil Co. V. Kirk, 15 C. C. A. 540, 68
Fed. 791; Richardson v. Hardwick, 106
U. S. 252, 1 S. Ct. 213, 27 L. Ed. 145;
Dennis v. Slyfield, 54 C. C. A. 520, 117
Fed. 474.

Where the charterer never promised to
make or pay for alterations required to
Fit up the tanks of a vessel to carry pe-
troleum in bulk. The owner of the ves-
sel is not entitled to recover from the



charterer any part of the expense of such
alterations. Compania, etc., Navegacion-
V. Spanish-American Light, etc., Co., 146
U. S. 483, 36 L. Ed. 1054, 13 S. Ct. 142.

Receipt for post of consignment by per-
son in charge of deck. — The Delaware (U.
S.), 14 Wall. 579, 20 L. Ed. 779.

A writing, delivered by defendant
steamship company to plaintiflf, reciting:
"New York, 2/28/1907. Per steamer Kai-
ser Wilhelm der Grosse. Engaged from
W. N. White & Co. Delivery March 4th.
Goods: 6 cars Fr. Apples. Destination,.
Hamburg. J^orth German Lloyd S. S.
Company. * * * Receiving Clerk,
North German Lloyd Piers, Hoboken:
Receive for shipment per German steam-
ship Kaiser Wilhelm der Grosse, on
March 4th, the following goods for ac-
count of W. N. White & Co.: 1 car Fr.
Apples. * * * Notice. Ship's receipt
must be surrendered and bills of lading
procured at the company's office" — did
not amount to a contract creating the re-
lation of carrier and shipper, but was no
more than a mere offer to receive the ap-
ples on board the vessel, and lacked the
requisite mutuality; and hence, where
plaintiffs delayed delivery to the vessel,
they could not recover damages for re-
fusal of defendant to receive the apples
on account of the vessel having l>een
loaded to its full capacity. White v.
North German Lloyd Steamship Co., 113
N. Y. S. 805, 61 Misc. Rep. 268.

The agent of the owner made a condi-
tional sale of a raft of timber, retaining
title until payment of the price, and with
his consent the purchaser towed it along-
side a vessel and obtained from the mate
in charge an "alongside receipt" in the
agent's name. Being refused to draw a
draft on a proposed consignee with bill
of lading attached, with the consent of
the agent he returned the receipt to the
mate, who accepted it and removed the
timber to a wharf at some distance, where
its return was accepted by the agent of
the owner. Later, without the knowledge
of either, the vessel loaded the timber on
board. No contract of affreightment



§§ 4249-4250



CARRIERS.



3868



a shipowner seeks to enforce part of a charter party, he must rely on the instru-
ment as a whole ; he can not affirm it for one purpose and repudiate it for an-
other. ^^

Unilateral Contract. — It is only when the contract has been executed, and
the defendant thereby benefited, that he can be held bound by such a unilateral
contract. ^-

Shipping Permits. — Permits, which are mere instrumentalities of conveni-
ence, employed by a steamship company to facilitate the classification, distribu-
tion, and loading of the cargo, obligate the carrier in no way. They can be re-
voked at any time before the ofii'er of goods for shipment. Until that time there
can be no certainty on the part of the steamship company as to whether the goods
will arrive or not, and it has no assurance that, if it should reserve space for
them to the exclusion of other freight and thus be obliged to leave port without
a full cargo, it would be reimbursed for its loss.-^^ At most the permit constitutes
an oft'er by the steamship company to receive the goods on board its steamer, but
does not bind the shipper to deliver them. It therefore lacks the element of mu-
tuality and can not bind the carrier.''^

§§ 4250-4260. Interpretation, Operation and Effect— §§ 4250-4256.
Rules of Construction — § 4250. General Rules — Charter Parties. — The

general rule adopted, in the construction of charter parties and contracts of af-
freightment, is that the construction should be liberal, agreeable to the intention
of the parties, and conformable to the usage of trade in general, and of the
l)articular trade to which the contract relates. -"-^ In construing shipping contracts



therefor was made by any one with the
ship. Held, that under such facts the
taking of the timber was wrongful, and
that the vessel was liable for its conver-
sion. The Norman Prince, 185 Fed. 169.
Delivery of vessel to charterer. — Where
the owner refuses to agree to certain
clauses in the charter party, a delivery
of the vessel to the charterer and her
acceptance of the latter is a waiver of
the former's objection to the charter
party. The legal effect of the transac-
tion is the adoption by the owner of the
existing charter party, and not in accept-
ance or hiring of the vessel, by the char-
terer, with the omission of the clauses
without which he had always and con-
sistently refused to accept. Compania,
etc., Navegacion v. Spanish-American
Light, etc., Co., 146 U. S. 483, 36 L. Ed.
1054, 13 S. Ct. 142.

51. Compania, etc., Navegacion v.
Spanish-American Light, etc., Co., 146
U. S. 483, 30 L. Ed. 1054, 13 S. Ct. 142.

Provisions deliberately omitted. — The
court is bound to give' effect to the stip-
ulation of a charter party, but not to pro-
visions which the parties deliberately
omitted to insert after attention had been
directed to them, e. g., provisions as to
time and as to cancellation. CulHford v.
Gomila, 128 U. S. 135, 32 L. Ed. 381, 9
S. Ct. 50.

52. Unilateral contracts. — Dennis v.
Slyfield, 54 C. C. A. 520, 117 Fed. 474.

53. Permits. — Zambetti v. Carton, 113
N. Y. S. 804.

The fact that defendant received one
car load of the apples did not render it



liable for its refusal to receive the bal-
ance of the shipment. White v. North
German Lloyd Steamship Co., 113 N. Y.
S. 805, 61 Misc. Rep. 268.

54. Permit a mere offer. — Zambetti v.
Carton, 113 N. Y. S. 804.

To this effect are Chicago, etc., R. Co.
V. Dane, 43 N. Y. 240, and a long line
of decisions in which that case is cited
with approval. Zambetti v. Carton, 113
N. Y. S. 804.

The appellate division of the second
department, in Pomeroy v. Newell, 117
App. Div. 800, 102 N. Y. S. 1098, holds
that such an offer, being without con-
sideration, may be withdrawn at any time.
In that case it was held that an option,
unsupported by a consideration, to sell
real estate, would be withdrawn bj' a sale
of the property to another purchaser dur-
ing the period of the option. It cites as
authority, among other cases, that of
Dickinson v. Dodds (Eng.), L. R. 2 Ch.
Div. 463, a leading English case. Zam-
betti V. Carton, 113 N. Y. S. 804.

55. Raymond v. Tyson (U. S.), 17 How.
53, 15 L. Ed. 47. See, also, Lowber v.
Bangs (U. S.), 2 Wall. 728, 17 L. Ed. 768.

The charter party, like many mercan-
tile instruments in common use, is drawn
up in brief and disjointed sentences; and
must be construed according to the in-
tent of the parties as manifested by the
whole instrument, rather than by the lit-
eral meaning of any particular clause,
taken by itself. Crossman v. Burrill, 179
U. S. 100, 45 L. Ed. 106, 21 S. Ct. 38.

Such "contracts ought to be construed
according to their plain meaning, to men



3869



CARRIAGE) OF PROPERTY,



§§ 4250-4251



the whole contract should be taken together and given a reasonable construction,
carrying out as nearly as possible the intention of the parties. ^^ Every clause,
as every word of a contract, must be given effect, if possible, and, where the
meaning is not clear, it is necessary that regard shall be had to the nature of the
instrument itself, the condition of the parties executing it, and the object and
purposes they had in view. Furthermore, the words of the contract will be given
a reasonable construction where that is possible, rather than an unreasonable
one.^"

§ 4251. What Law Governs. — Contracts of Carriers in General. — The

general rule, that the nature, the obligation and the interpretation of a contract
are to be governed by the law of the place where it is made, unless the parties,
at the time of making it, have some other law in view, requires a contract of
affreightment, made in one country between citizens or residents thereof, and
the performance of which begins there, to be governed by the law of that country,
unless the parties, when entering into the contract, clearly manifest a mutual in-
tention that it shall be governed by the law of some other country .^^ A contract
made in one of the I'nited States for the carriage of goods from there to a



of sense and understanding, and not ac-
cording to forced and refined construc-
tions, which are intelligible only to law-
yers, and scarcely to them." Lowber v.
Bangs (U. S.). 2 Wall. 728, 17 L. Ed. 768.

Where a charter party stipulated that
a vessel should receive "a full cargo," the
opinions of experts are the best criteria
of how deeply she can be loaded with
safety to the lives of the passengers. Og-
den V. Parsons (U. S.), 23 How. 167, 16
L. Ed. 410.

Liberal construction. — It is said that
charter parties (and contract even less
formal than a charter party) should have
a liberal construction, such as mercantile
instruments usually receive, in further-
ance of tlie real intention of the parties
and the usage of trade. Disney z'. Fur-
ness, etc., Co., 79 Fed. 810.

The contract of affreightment is gov-
erned by the same principles as the other
special contracts. There are none to
which the principles are more stringently
applied. The Harriman (U. S.), 9 Wall.
161, 19 L. Ed. 629.

As to lading included. — There were
three points along a river course, the
highest A, the next B, the last C. Held,
that a contract to transport goods from
B to C and to and from all points be-
tween them, when the transportation was
to be by water, was not a contract to
transport from A to C, although such
transportation necessarily involved (as a
greater includes a less) a transportation
between B and C. And the carrier was
not entitled to recover damage from the
shipper for freight for goods transported
from A to C by vessels lielonging to a
third party. vScott v. United States (U.
S.), 12 Wall. 443, 20 L. Ed. 438.

56. Whole contract taken together. —
Defendant had contracted with certain
milhnen for the sawing and delivery, by
a specified time, of a quantity of lumber,
said lumber to be delivered on board of



scows to be furnished by defendant. He
thereon entered into a written contract
with plaintiffs for the removal of said
lumber; the substance of said two con-
tracts being recited therein. Plaintiffs
were to furnish men, lighters, and every-
thing necessary for the work, at a speci-
fied price, to be paid by defendant for
every 1,000 feet so removed, and to con-
vey said lumber upon their scows from
the point of delivery to defendant's docks
as fast as it should be received, "provided
it should be sawed so fast, by said mill-
owners." Held that, taking the whole
contract together, it was clearly implied
that the stipulations were subject to the
implied condition that millowners should
first saw and deliver the lumber under
their contracts. Hunter v. New York,
etc.. Salt Co., 14 Mich. 98.

57. Balfour, etc., Co. v. Portland, etc.,
Steamship Co., 167 Fed. 1010.

58. Contracts of carriers in general. —
Liverpool, etc.. Steam Co. v. Phenix Ins.
Co., 129 U. S. 397, 32 L. Ed. 788, 9 S.
Ct. 469; London Assur. v. Companhia De
Moagens Do Barreiro, 167 U. S. 149, 42
L. Ed. 113, 17 S. Ct. 785; Watts v. Cam-
ors, 11.5 U. S. 353, 29 L. Ed. 406, 6 S. Ct.
91; Manchester Liners v. Virginia-Carolina
Chemical Co., 194 Fed. 463;'Adler v. Gal-
braith, etc., Co., 156 Fed. 259.

Illustrations. — A contract of affreight-
ment made in the United States between
citizens or residents thereof, the perform-
ance of which begins here, will be gov-
erned by the laws of the United States
unless the parties when contracting
clearly manifest an intention that the con-
tract be governed by the laws of some
other country. Liverpool, etc., Steam Co.
V. Phenix Ins. Co., 129 U. S. 397, 32 L.
Ed. 788, 9 S. Ct. 469.

A contract of charter party and af-
freightment made in Louisiana is not gov-
erned necessarily by the Louisiana law
as to the question of construction of the



§§ 4251-4252 carriers. 3870

point in another state is governed by the laws of the former unless a different
intention clearly appears. -^^^

Stipulation as to Law Controlling. — A stipulation in a bill of lading that
all questions arising thereunder against the ship or her owners should be deter-
mined by the laws of the country to which the ship belongs is valid and such
laws govern a libel in admiralty for the loss of property under such bill of lading
by the shipper, who is a resident of another country.*^"

Stipulations Limiting Liability. — See post, "Limitation of Liability," Chap-
ter 40.

What Constitutes Delivery. — What would be an effectual delivery, so as to-
terminate the liability of the carrier, in the absense of express stipulation on that
subject, is ordinarily governed by the law or usage of the port of discharge.''^

Interpretation of Contract. — A contract of charter party and aft'reightment
is not necessarily construed by the law of the place where made.*'- Where dif-
ferent portions of a contract of aft'reightment and shipment are performable in
diff'erent countries, some portions at the home port, some at the foreign port, and
some at the return port, the law of the place where each portion is performable„
governs its interpretation.^^

Contracts of Agents. — Every authority given to an agent or attorney to-
transact business for his principal must, in the absence of any counter proof,,
be construed to be, to transact it according to the laws of the place where it is
to be done.^'*

Extent of Authority of Master of Vessel. — What extent the owners of a
schooner are liable to the shippers for a nonfulfillment of a contract of shipment
of the master — whether they incur an absolute or a limited liability, must de-
pend upon the nature and extent of the authority which the owners gave him, and
this is to be measured by the law where the ship and her owners belong.^^

§ 4252. Qualifications Imposed by Law. — Where the contract was the
foundation of the claim, and though not fulfilled according to its letter, either as

contract or as a question of judicial rem- try, and tlie fact of tlie stranding on the

edy. Watts v. Camors, 115 U. S. 353, 29 English coast does not change the result.

L. Ed. 406, 6 S. Ct. 91. Liverpool, etc., Steam Co. v. Phenix Ins..

Presumption.— American and English- Co., 129 U. S. 397, 32 L. Ed. 788, 9 S. Ct.

men, entering into a charter party of an 469.

English ship for an ocean voyage, must 59. Contract for interstate shipment. —

be presumed to look to the general mari- The Henry B. Hyde, 82 Fed. 681, affirm-

time law of the two countries, and not to ing 90 Fed. 114, 32 C. C. A. 534.

the local law of the state in which the 60. Stipulation as to law controlling. —

contract is signed. Watts v. Camors, 115 Decree 24 Fed. 922, affirmed in The

U. S. 353, 29 L. Ed. 406, 6 S. Ct. 91; Liver- Oranmore, 92 Fed. 396.

pool, etc., Steam Co. v. Phenix Ins. Co., 61. What constitutes a delivery. — Liver-

129 U. S. 397, 32 L. Ed. 788, 9 S. Ct. 469. pool, etc., Steam Co. v. Phenix Ins. Co.,

Delivery in foreign country— Payment 129 U. S. 397, 32 L. Ed. 788, 9 S. Ct. 469.
of freight in foreign currency.— That the 62. Interpretation of contracts of car-
goods m a contract of affreightment made riers.— Watts v. Camors, 115 U. S. 353, 29
in the United States were to be delivered \^ £(] 405, 6 S. Ct. 91.
in Liverpool, and the freight and prim- a contract of charter party and af-
age were payable there in sterlmg cur- freightment made in Louisiana is not nec-
rency, does not make the contract an En- essarily construed by the law of Louisi-
glish contract, but it is governed by the ana. Watts v. Camors, 115 U. S. 353. 29
American law — the place of making. Liv- ^ Ed. 406 6 S. Ct. 91.
erpool, etc.. Steam Co. v. Phenix Ins. Co., c, r'^^+J^-.^+o ^^,-tr.r-^^ui.o. ^r.^*!,. ;« ««.«
120 TT S -^07 ^2 T FH 799 Q S Ct 469 ®^- Contracts performable partly m one

tract of affreightment made in the United jt c onr-i 00 t x:^a r.00 n c n^ Acn
Ci 4. . r • Ui. .. T • It, U. 0. 397, 32 U. Ed. 788, 9 b. Ct. 469.

States to carry freight to Uiverpool be- '

tween an American and an English steam- . ^- Power of agent to contract.— Ow-

boat companies, is an American contract '"^s v. Hull (U. S.), 9 Pet. 607, 9 L. Ed.

and not an English contract, and the ob- ^'^^•

ligation to carry goods is to be governed 65. Master's authority. — Liverpool, etc.,,
by the American law and not the munici- Steam Co. v. Phenix Ins. Co., 129 U. Se-
pal or maritime law of any other coun- 397, 32 L. Ed. 788, 9 S. Ct. 469.



3871



CARRIAGE OF PROPERTY.



§§ 4252-4254



to the time or place of delivery, yet, with the qualifications which the law under
such circumstances imposes, it determined the respective liabilities of the parties,
and the plaintiffs could not recover more than the contract price, and the recoup-



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