« PreviousContinue »
demand of the captain, order the goods to be placed on deposit, and arrange a sale of what is necessary for the payment of the freight and other charges upon it.
Similarly, a sale will take place when the goods on deposit are in danger of deterioration, or if, whether on account of their inherent quality, or from other causes, the expenses of keeping them are out of proportion to their value.
B. Bk. II., 78, F. 305, G. 624, 629, H. 487, 489, I. 579, N. 63, P. 559, Sw. 115. E. 124, M.S.A., 1862, § 67.
Of the Rights and Duties of the Person Letting a Ship. 669. The letter of the ship (fletante) or the captain must be exact in contracts of affreightment as to the capacity of the vessel or that expressly stated in the Register; no greater difference than 2 per cent. between what is stated and the fact will be allowed.
If the letter or captain engage more cargo than the vessel can carry, having regard to her tonnage, they will compensate the shippers with whom they cannot fulfil the contract for the damages which they have sustained in consequence, as follows:
If the freight is payable for the whole ship by one shipper only, and there is mistake or fraud as to its capacity, and the shipper does not elect to rescind the contract when he has a right to do so, the freight will be diminished pro rata to the cargo that the vessel can carry; the letter of the ship must, moreover, indemnify the charterer for all damages caused by the error.
If, on the other hand, there are several contracts of affreightment, and from an error as to the capacity of the vessel, she cannot load all the cargo engaged, and none of the shippers elects to rescind his contract, the preference will be given to those whose goods are already shipped and
stowed in the vessel, and the rest will take priority according to the dates of their contracts.
If no priority can be shewn, they can each load, if they like, a portion of the weight or measurement, in proportion to the amount contracted for, and the letter of the ship will be liable to make good to them all damages and losses.
B. Bk. II., 73, 74, F. 288, 289, 290, H. 459, I. 562, P. 542 (5 $ 2), R. 1017, Sw. 76, E. 109; M. and P. 298; Mackill v. Wright, 14 App. Cas. 106; News. $ 41.
670. If, after receiving a part of the cargo, the letter of the ship cannot secure at the agreed rate of freight more than at the least three-fifths of what the ship can carry, he may substitute for the voyage another vessel, surveyed and declared to be fit for the said voyage, on bearing the expenses of transhipment, and any increase there may be in the amount of the freight. If no such substitution is possible, he must proceed with the voyage as agreed, and if the time is not agreed upon, then 15 days from the commencement of the loading, unless otherwise settled.
If the owner of the part cargo loaded procures cargo at the same rate and on the same conditions as that which he has shipped, neither the letter of the ship nor the captain can refuse to accept the remainder of the cargo, and if they resist the shipper has a right to demand that the vessel shall
go to sea with the cargo actually on board. B. Bk. II., 75 diff., G. 566, I. 563.
671. When three-fifths of a full cargo is loaded, the letter of the ship cannot, without the consent of the freighters or shippers, substitute another vessel for that named in the contract, under pain of rendering himself liable for all damage and loss which may happen during the voyage to the cargo of those who have not consented to the substitution. B. Bk. II., 75, G. 566.
672. When the whole ship is let, the captain cannot, without the consent of the freighter, take cargo from another
person ; and if he do so, the freighter can compel him to discharge it, and indemnify him for loss he has thereby sustained.
B. Bk. II., 72, F. 287, G. 566, 589, I. 563, N. 47, P. 552, Sw. 87. News. $ 42.
673. All loss that the freighter sustains from the voluntary delay of the master in commencing the voyage is chargeable to the letter of the ship, according to the rules prescribed, whenever the captain is required by a notary or by legal process to put to sea in suitable weather.
B. Bk. II., 83, F. 295, H. 470, 475, 476, I. 569, N. 42, R. 1021, Sw. 93.
674. If the freighter puts on board the vessel more cargo than agreed for, the excess may be admitted at the rate of freight stipulated for in the contract, provided it can be properly stowed without damage to other shippers ; but if it cannot be properly stowed, the captain ought to refuse to take it, or discharge it at the cost of its owner.
Similarly, the captain may, before sailing, land goods which have been shipped secretly, or may carry them if he can stow them properly, requiring as freight for them the highest rate agreed upon
for that voyage. B. Bk. II. 66, 75, 88, F. 288, 292, G. 564, 565, H. 469, 477, I. 564, 566, N. 55, P. 553, Sw. 83, 84. E. 108, 115. M. and P. 315 ; News. $ 41.
675. When a vessel is chartered to receive cargo in another port, the captain will report himself to the consignee named in his contract; and if he does not supply cargo, he will give notice to the charterer and await his instructions whilst the lay days, agreed on, or such as are allowed by the custom of the port, if there is no special agreement to the contrary, are running.
If the captain gets no answer within this limited period, he will do his best to engage freight, and if he does not succeed prior to the termination of the lay days and day.
on demurrage, he will enter a protest and return to the port from which he was chartered.
The charterer will pay the whole freight, deducting what would have been paid on account of the goods in the outward and homeward voyages, if shipped on account of third parties.
The same rule will be observed when a ship chartered for an outward and homeward voyage is not supplied with a homeward cargo.
S. 568, 572, I. 568, Sw. 87.
676. The captain loses his freight and indemnifies the shippers when they prove, even against a report of survey made in the port of departure, that the vessel was not seaworthy or in a fit condition to receive the cargo.
B. Bk. II., 95, F. 297, G. 560, H. 479, I. 571, N. 65, P. 557, R. 1015, 1016, Sw. 40. E. 116; M. and P. News.
677. The contract of affreightment remains in force if, whilst the captain is without instructions from the shipper, a declaration of war or of blockade should be made during the voyage. In such a case the captain must make for the nearest neutral and safe port, and await orders from the shipper, and the expenses and wages earned during the detention will be settled as General Average.
If the shipper decides to have the cargo discharged in the port of refuge, the voyage freight is earned in full.
B. Bk. II. 89, 92, F. 299, G. 637, H. 502—506, I. 572, P. 549, Sw. 45, 119. E. 118; M. and P. 324–333 ; News. § 46.
678. If, according to the decision of a Judge or Court, the time that is necessary for receiving orders from the shipper has elapsed, and the captain is still without instructions, he may
payment of freight and expenses during the delay a charge upon it, which will be satisfied out of the proceeds of the first portion that is sold.
F. W. RAIKES.
IV.-CRIMES AND PUNISHMENTS.
IN N the present Article, I propose to enunciate and prove
some of the fundamental principles in regard to Crimes and Punishments. Considering how vital these are in regard to morality, and the protection of life and property, and considering the diverse opinions held, and the punishments inflicted by English Judges, Supreme as well as Inferior, concerning the same classes of crimes, I submit that this subject is not unworthy of the serious consideration of the readers of the Law Magazine and Review. But, first of all, I wish to make some general observations on this great and important subject ; and its foundations.
1.-GENERAL. Natural and Penal Laws.—The Law of Nature has its origin in the nature of man, and is the law applicable to the whole human race.
It is inherent in the nature of man, and its essential characteristic is the idea of the just and the good. It draws its origin and life from a first immutable and perfect cause, God, who wishes man, feeble, finite and imperfect as he is, to be happy by good conduct, reflection, and obedience to the law of justice and virtue. It is often obscured by human passion; but it is never altogether effaced in man. It tells the greatest criminal that the crime which he has committed is wrong. It is the type of the Divine law, written in the hearts of all men, at all times, and in all ages. It has God as its avenger.
As it is based on human reason, it becomes more perfect in the progress of society. Cicero defines it, in his De Republica, III., § 2, as the will of God. But, on the other hand, Penal laws have a different origin. They spring from the