3 E.D. Smith 390 | New York Court of Common Pleas | 1854
The plaintiff was the charterer of a brig to Jamaica and back, and brought, on the return voyage, goods for the defendants on freight. The goods, upon the arrival of the vessel at this port, were delivered tp the defendants respectively, without payment of the freight at the time. Before such payment was made, the charterer gave
The defendants in the first suit, at the time the goods were delivered, promised to pay the captain, and the freight was paid to him in all cases.
The plaintiff, the charterer, brings these actions to recover the freight from the defendants. In the court below the plaintiff obtained judgment in each case.
There can be no doubt that payment to the captain at the time of delivery of the goods, or in pursuance of a promise made to the captain as a condition of the delivery, is a valid payment, in compliance with the terms of the contract, contained in the bills of lading. Without such payment of freight to the captain, the defendants were not entitled to the possession of the goods. The right, however, to receive the freight at the time, and as a condition of the delivery, may, as it seems to have been in at least two of these three cases, be waived; and the question then arises, whether the owner or the charterer has a right to collect the freight.
This depends upon the form and provisions of the charter party itself. If by it the owner gives up to the charterer the entire control and management of the vessel, he is, for the time being, the owner, and as such is entitled to the freight as well as all other control and direction of the vessel during the existence of the charter party.
But if, by the charter party, the owner still retains the control and management of the vessel, subject to the special agreement made by him with the charterer as to the ‘freight, then he still retains his character as owner, and if so, may collect the freight. Such is the rule as laid down in Marcaidin v. The Chesapeake Insurance Company, 8 Cranch, 49, which has been sanctioned by our own courts.
In order to ascertain what the relation of the parties is, we must refer to the terms of their contract, and by it the care and custody of the vessel, as well as the manning and" government thereof, is left with the owners. They are to provide crew and provisions; they engage that a part of the vessel,
It must be apparent to any one who reads this instrument, that the intent of the parties was not to deliver the vessel over to the charterer, but to take from him on freight such cargo as he saw fit to offer, binding themselves to hold the whole of the vessel except certain secured portions subject to their order. The owners still had the charge of the vessel, were bound to man, provision, and sail her, and in all other things, except as to carrying freight for the charterer, they were in no different position than other owners carrying goods on freight for others. I think there can be no doubt of the proposition that, under such a state of facts, the charterer cannot be considered as the owner for the voyage. He is not liable for many things which as owner he would be responsible for, and he cannot claim the rights of the owner without assuming his liabilities.
Having arrived at this conclusion as to the nature and effect of the charter party, the question whether the owner may collect the freight is settled by the case of Clarkson v. Edes, 4 Cow. 470. In that case it is decided that the owner may maintain an action for the freight in the name of the master, even when such freight is claimed by the charterer. In the language of Judge Savage, “ The general owner has the claim and lien for freight, and that must continue unless the owner has parted with it, either by constituting the charterer owner for the voyage, or by postponing payment beyond the time when the goods are to be delivered.”
The first point thus stated I have already examined. The last payment by the charterer, in the present case, is to be made on delivery of the cargo at New York. It is not postponed beyond the time of the delivery of the goods, but is to be simultaneous therewith. (See also 2 B. and A. 511; 1 J. R. 238; 8 Wheat. 605.)
A case similar, in all respects, to the present was decided in the Superior Court, recognizing the same rules. (Holmes v. Pavenstedt, 5 Sand. Sup. Ct. R. p. 97.
These views dispose of the questions raised in these cases. The judgments given by the court below are erroneous, and must be reversed and judgment of dismissal of complaint ordered.
Judgment reversed, and judgment ordered for the defendants in each case.
