The Aberfoyle

BETTS, District Judge. The contract proved in this case between the owner of the vessel and the charterer was a contract of affreightment for the voyage, and did not amount to such a letting of the entire ship as to constitute the charterer owner for the voyage: The rule of construction of a charter-party, in this respect, is stated by Mr. Abbott to be as follows: “When, by the terms of the charter-party, the master and mariners are to continue subject to the orders of•• the ship-owner, he retaining through them the possession, management, and control of the vessel, it is to be con [33] sidered as a contract to carry the freighter’s goods; but where the merchant engages to pay a stipulated price to tlie ship-owner for the use of his ship, by the month or year,— takes it and them into his service, — receiving the freight actually earned by it to his own use. the master and mariners becoming subject to his orders, and the general management and control of them and of the vessel being given up to him, — it is a demise of the ¡ vessel with her crew for the voyage, or the ¡ term specified; the charterer becomes own- j er pro hac vice, entitled to the rights and subject to the responsibilities which attach ; to that character.” Abb. Shipp. 47-52, and notes. The case of Marcardier v. Chesapeake Ins. Co., 8 Cranch, [12 U. S.] 30, drew in question the construction in this i respect of a charter-party of the following i nature: One M’Dougal, the general owner ! of the brig Betsy, let her to the plaintiff by a charter-party of affreightment, excepting and reserving her cabin for the use of the master and mate, and for accommodation of passengers, as therein mentioned, and so much room in the hold as might be necessary for the mariners, and storage of water, wood, provisions, and cables, for a voyage from New York to Nantes; and M’Dougal, by the same instrument, covenanted to man, victual, and navigate the brig at his own charge during the voyage, and to receive on board and carry any shipment of goods made by the plaintiff. The passengers on board of the brig were to be at the joint expense of the parties, and the passage-money was to be equally divided between them. It was held, upon these facts, that M'Dongal remained the owner for the voyage, upon the general principle that, where the general owner retains the possession, command, and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter-party is considered ; as a mere affreightment sounding in covenant, and the freighter is not clothed with the character or legal responsibility of ownership. Citing Hooe v. Groverman, 1 Cranch. [3 U. S.] 214. And this conclusion, that the owner of the vessel, notwithstanding the charter, remained her owner for the voyage, . was derived in part from the fact that he | retained the exclusive possession, command, and management of the vessel, and that she was navigated at his expense during the voyage, — and apart from the circumstance that the whole charter-party, except the introductory clause, “hath granted and to freight let.” was one sounding merely in covenant. In the case of The Schooner Volunteer, [Case No. l(i,991,] the same principles were applied to a case quite analogous to the present. The charter-party there, after naming the parties, proceeded to state that the owner. for tlie consideration thereinafter mentioned, “lias letten to freight the whole of the said schooner, with appurtenances to her belonging, except the cabin, which is reserved for the use of the master, and what room' is-necessary under deck for provisions, wood’,, water, and cables,” for a voyage specified! It further set forth covenants on the part of the owner and charterers respectively, among: which were these: — that the owner should; pay all and every charge of victualling and! manning the schooner, during the voyage,, and should furnish the schooner victualled! and manned; and that the charterers should! bear all other charges, and should pay a; specified freight. It was held that, upon the-construction of this instrument, the general! owner remained unquestionably the owner" for the voyage. Mr. Justice Story remarked:: “The vessel was equipped and manned anS victualled by him, and at his expense, during the voyage; and he covenanted to talce-on board such goods during the voyage as; the charterers should think proper. The-whole arrangements on his part, in these respects,. sound merely in covenant. It is true, that in another part of the instrument it is= said, that he has ‘letten to freight,’ which may seem to import a present demise or grant, (and not a mere covenant,) of the whole-schooner for the voyage. But this language-is qualified by what succeeds. And the whole-schooner is not let; for there is an express; exception of the cabin, and certain portions; of other room under deck. If the whole-schooner, then, was not granted during the voyage on freight, how is it possible to contend that the libellant did not still remain owner for the voyage? The master was hi» master, appointed by him, and responsible-to him; the crew were hired and paid by him; and the victualling and manning were at his expense. He also retained the exclusive possession of a part of the vessel for the voyage, and the control and navigation of her during the voyage. Taking, then, the whole instrument together, it seems wholly inconsistent with the manifest intent of the-parties that the charterer should be ownoi-for the voyage.” In a later case, also de-decided by Mr. Justice Story, (Certain Logs of Mahogany, [Case No. 2,559,]) which arose upon a charter-party substantially analogous., as to all points important to the present discussion, to that drawn in question in The Volunteer, that learned jurist, commenting on. a discrepancy between the English and American cases, thus restated the American rule:: “If the absolute owner does not retain the possession, command, and control of the navigation of the ship during the voyage, and the master is deemed his agent, acting under his instructions for the voyage, though authorized and required to fulfil the terms-of the charter-party, the absolute owner-must, under such circumstances, be still deemed owner for the voyage, and be liable as such to all persons who do not contract personally and exclusively with the charterer, by a sub-contract with the latter,, knowing his rights and character under the charter-party.” And it was further held in [34] the same case, that wherever, upon comparing the various clauses of a charter-party, it remains doubtful whether the charterer was intended to have the sole possession and control of the vessel during the voyage, or to be constituted owner for the voyage, then the general owner must be deemed such; for his rights and authorities over the voyage must continue, unless displaced by some clear and determinate transfer of them. Bearing in mind this presumption against any transfer , of the ship to the charterer for the voyage, I proceed, in the light of the foregoing adjudications, to consider what construction is to be placed upon the charter-party proved in this case; and, at the outset, two distinctions may be noticed between the present case and those already cited. In each of the three cases just mentioned, stress was laid in the decision upon the circumstance that the charter-party was, for the most part, one sounding in covenant; but this was adverted to with the qualification that there were also clauses of a contrary Import. There is no such cause of embarrassment in the terms of the instrument now before the court. That instrument is one which rests entirely and unequivocally in covenant alone. It contains no words of grant or demise whatsoever. It commences, not by stating that the owner hath “let to freight” the vessel chartered, but by saying that “it is this day mutually agreed” that the ship shall take on board the cargo to be furnished by the charterer; and the remaining clauses of the instrument, are not only clearly in the nature of mutual and reciprocal agreements, but are technically so expressed. The second distinction between the present case and those which have been cited is, that the charter-party now before the court contains no express provision binding the owner to man and navigate the ship during the voyage; a clause which was inserted in each of the charter-parties in the cases referred to. It was contended upon the argument, that the absence of this provision was immaterial, inasmuch as, by a general rule of law, it was said, the owner is bound, notwithstanding a charter-party, to put the vessel in a suitable condition to perform her voyage, and to keep her in that condition ■during the voyage; and to victual and man her for the destined navigation, unless there is a contrary stipulation in the charter-party, or the nature and object of the charter-party devolve that duty upon the charterer. This rule was stated by counsel on the authority of a note to Abbott on Shipping, (Story & Perkins’s Ed. 323.) The cases cited in that note probably support it so far as concerns "the obligation of the owner to put her and keep her in suitable condition to perform the voyage. One only of those cases, howeve*, (Goodridge v. Lord, 10 Mass. 483,) bears upon the question of the obligation to man the ship; and that case, so far from sustaining the rule contended for, holds directly the reverse. In that case, the owners of the vessel brought suit against the charterers to recover moneys in part paid in settlement of seamen’s wages, for which they had libelled the ship. There was, in that case, in the charter-party, a stipulation binding the charterers to pay the charges of victualling and manning the vessel; but the court remarked that an action would, under the circumstances, lie for the owners against the charterers to recover the amount paid, even without an express stipulation in the charter-party, or any proof that the charterers were to victual and man the ship; “for that would be the effect of the contract of charter-party, unless it appeared, by the instrument itself, that a different arrangement was intended.” The absence of any provision in the agreement of charter-party requiring the owner to man and navigate the ship is, therefore, a circumstance not without weight, as an indication that the intention of the parties was to vest in the charterer the ownership of the vessel for the voyage. It is not conclusive upon the question of intention, however. That intention is to be inferred, not from a single clause of the instrument or a single fact in the case, but from the whole tenor of the charter-party throughout, construed in the light of all the facts proved, which may be admissible as explaining the intent and meaning of the contract. The Volunteer, [Case No. 16,991;] Certain Logs of Mahogany, [Id. 2,559.] The question upon the point now under discussion may, therefore, be stated thus: Does this charter-party,, read connectedly and as a whole, and with a proper reference to the circumstances under which it was executed, so clearly show an intent to vest in tiie charterer the ownership for the voyage, that the presumption of law in favor of the continuance of the general ownership is overcome? I think it clear that this question must be answered in the negative. The charter-party, as already noticed, sounds wholly in covenant. It describes Graves, the claimant, as “owner,” and Quayle, the charterer, as “merchant and freighter.” It identifies the vessel in part by the words “whereof "Wilson is master;” Wilson being the master appointed by Graves before the chartering, and being, as is shown, in fact continued in that appointment until the day before the vessel sailed, when, in consequence of his sickness, a substitute was placed in command. The instrument contains agreements on the part of the owner that the vessel is tight, stanch, and strong, and every way fittecl for the voyage; that she shall take on board a cargo to be furnished by the charterer, not exceeding what she can carry over and above her cabin and necessary room for her crew, water, tackle, apparel, provisions, and furniture; that the privilege of putting on board steerage passengers shall belong solely to the charterer, [35] the entire of the between decks, if required, being reserved for such passengers; and that if the ship shall bo unable to carry cargo and passengers to the stipulated amount, there shall be a proportionate reduction in the hire of the vessel. And on the part of the charterer it is agreed- that he shall furnish such a cargo as is contemplated; that he shall pay freight, £185, and demurrage, if more than twelve days are occupied in loading; and that the between-decks shall be • calked, &e., at his' expense. These provisions clearly indicate, upon the whole, the intention of the parties to retain in the owner the general ownership of the vessel, and to secure to the charterer only lights in the nature of affreightment. This construction is also confirmed by the conduct of the parties under the agreement. The facts are far from countervailing the presumption that no change of ownership was made. The remaining questions in the case are, therefore, to be considered on the basis of the general ■owner remaining owner for the voyage. Ships carrying passengers on hire stand ■on the same footing of responsibility, in that respect, with those carrying merchandise on freight, — passage-money and freight being, in legal acceptation, equivalents. The liability •of the vessel in specie, upon a contract of affreightment, is not varied by the circumstance that the contemplated subjects of transportation are passengers, instead of merchandise. A passage contract is, in respect to the vessel’s liability, only a species ■of affreightment, in which the passengers constitute the cargo, and the passage-money answers to the freight. This principle was fully discussed in the late case of The Zenobia, [Case No. 18,209,] in this court, in which the views of the court, upon this subject, were stated at large. The vessel is also liable in rem for merchandise laden on board 'by the charterers, (The Rebecca, [Id. 11,619;] Abb. Shipp. 47, 52,3) as well as upon contracts by the master or the agents of the owners in relation thereto. She is therefore liable in rem upon a contract to carry passengers, equally whether that contract is made with a charterer, or with the master ■or owners, when the charter-party does not operate to render the charterer owner for the voyage; because, in that case, the charterer acts in the capacity of agent of the ■owner. She is liable for the conduct of the master as master during the voyage; and for any ill treatment of the passengers by the master, in his capacity as such, a remedy may be had against the vessel herself. She may, indeed, not be liable for mere acts ■of personal malice or ill-will on the part of the master, not arising out of or connected with the exercise of his duties as master,4 though for such acts there is clearly a personal remedy against the master himself. Chamberlain v. Chandler, [Case No. 2,575.] If, therefore, it were made to appear that the treatment complained of in this case was prompted by personal malice and ill-will on the part of the master, — if the withholding of provisions and water had been a tortious act on the part of the master, springing from personal spite and vindictiveness, and disconnected from any such circumstance, as a general lack of provisions on board, for which the owners might be responsible,— there would be ground for doubt whether the libellant was entitled to any other remedy than an action in personam against the master himself. But such conduct on the part of the master is not to be presumed. In this case, the answer does not aver that the ship had sufficient supplies; and there being no proof of that fact, the implication is, that she did not have them to serve out. It was contended, on behalf of the claimant, that the contract to furnish provisions was not a maritime contract, but a mere matter of personal agreement, independent of the contract for passage, and that it therefore could not be enforced against the ship. There may, undoubtedly, be a contract for passage, in which the passenger undertakes to carry his own store of provisions. Where, however, the contract is not of this description, but the maintenance of the passenger, during the voyage, is undertaken, as well as the transportation of his person, the ship is as much bound to supply wholesome and necessary provision and water, as to provide safe shelter and lodging. There is no ground laid in the case for vindictive or punitive damages against the owner or ship. The agents of the owner [>ro hac vice, did not fulfil the implied obligation of the ship, and thus relieve her from performing it in this respect, and for that cause there was no ground for compelling the libellants to pay passage-money; and the libellants having paid it, are, because of such violation of the obligation by the ship, entitled to recover it back, the consideration on which it was advanced having failed. Decree accordingly, with costs. Footnotes [3] See, also, The Flash. [Case No. 4,S57.] [4] See, also, The Zenobia, [Case No. 18,209,] ■to the same effect.