19 F. Cas. 249 | D. Mass. | 1846
The question is, whether the owners of this vessel can hold the respondent, Hill, personally liable for the freight of the goods shipped by him, or whether they are to look to the charterer alone.
Perkins and his associates, undoubtedly-continued the owners for the voyage. The Volunteer [Case No. 10,991]. Green, the charterer, might have put these goods on board, and the libellant must have conveyed them, by virtue of the charter-party, with no other security than the personal covenants of Green, and a lien on the homeward cargo. But Green did not see fit to put these goods on board, but permitted the respondent to lade them,in his own name, and as his own property, under a contract between him and the libellant. That contract is shown by the bill of lading, and by it, Hill obtained the personal responsibility of the owner, as earner, and the liability of the ship (The Rebecca [Id. 11,019]); and the owner, by its express terms, was to be paid freight, as per charter-party. The language is, that the goods are to be delivered to the consignees, naming them, he or they paying freight; and then it is added, "as per charter-party.” What would have been, the obligation, if the last three words, “as per charter-party,” had not been added? The respondent being the owner of the goods, and the consignees merely his agents, having a right to call upon him to pay whatever freight they should advance, the respondent would be personally liable to the carrier for the freight; and no rate being specified in the contract, the law determines that it shall be a reasonable rate.
What then is to be the effect of the words “as per charter-party”? That instrument provides for - no rate of freight on goods transported, but that $400 a month for the use of the vessel shall be paid, in three days after her return to Boston. How then is the freight to be paid, as per charter-party ? It cannot be supposed that it was the intention of the parties, that the whole hire of the ship, under the charter-party, was to be paid for the mere transportation of the small part of the outward cargo; and some effect is to be given to this clause in the bill of lading. The fair and rational construction is. that a reasonable freight for the transportation of the goods named in the bill of lading, should be paid, and the payment be made as per charter-party; that is, in three days after the arrival of the vessel in Boston.
This was the obligation which the respondent assumed, when he took the bill of lading from the libellant, and no arrangement between him and Green, without the knowledge
This ease is very similar to that of Churchill v. Churchill [unreported], decided in this court; the only material difference being, that in that case, the bill of lading declared, that the goods were to be delivered to the consignee, or assigns, he or they paying freight, sixty cents per quintal, to the owner or his agent, at Boston.
The respondent contends, that while the bill of lading binds the owner of the ship to the safe transportation and delivery of the goods, it imposes no obligation whatever upon the shipper; that the clause as to the payment of freight, instead of meaning that payment should be made to the carrier by the shipper, or his consignee, for the transportation of these goods, has no meaning or effect. To this I cannot accede.
Subsequently the respondent made a motion for a re-hearing, which was granted by the court. He then introduced new and material evidence, which so changed the facts of the case, that the libel was dismissed. This decree was affirmed upon appeal [Case No. 10,987].