[183] from Horsleydown New-stairs to Cherry Gar dens, being about half a mile, and from thence to Fountain Stairs, was not subject to the penalty for otherwise the station of a ship could not be changed for the purpose of delivering or receiving goods at different wharfs without the expence of pilotage (k). In like manner, where a ship had been conducted by a regular pilot up the river Thames to Limehouse-hole, and was left by him, and afterwards moored there, but being forced by the wind upon the mud, lay four days in a bad situation, and it becoming dangerous for her to remain there till the tide should ebb again, she was conducted by a waterman about a mile and a half further up the river; the Court referring to its former decision, and considering the voyage in this case to have been ended, when the ship was left at Limehouse by the pilot, determined that the waterman was not subject to the penalty (1).

The charge of pilotage is regulated at different places by usage or by statute, and generally increases in proportion to the depth of water which the vessel draws. This charge, if the service is performed in a river within the body of a county, cannot be recovered by a suit in the Court of Admiralty (m). (1)

(k) Rex v. Lambe, 5. Ter. Rep. K. B. 76. & Nolan's Rep. 156.

(1) Rex v. Neale, 8 Ter. Rep. K. B. 241. In this case it was stated, that the ship might have been removed to the pier either immediately above or below Limehouse-hole, and have been perfectly.

safe without going any further: And therefore the case was not within the seventh section of 3 Geo. 1. c. 13. which provides that the Act shall not extend to hinder any® person from assisting a ship in distress at any time.

(m) Ross v. Walker, 2 Wils. 264.

(1) A pilot, while on board, has the absolute and exclusive control of the ship, and is considered as master pro hâc vice. It

seems therefore that the master of the ship is not liable for any injury happening to another vessel by the fault or negligence of the pilot, at least if he be not on board at the time of the injury. Snell v. Rich, 1 John. Rep. 305. But the owner of the ship is in such case liable, although the pilot be appointed by public authority. Jackson v. Winchester, 4 Dall. Rep. 205. and Fletcher v. Braddick, 2 N. Rep. 82. And a suit in the admiralty lies to recover damages. The Thames, 5 Rob. Adm.

Rep. 308.

And if captors neglect to take a pilot on board, and the ship be lost in consequence, the court of admiralty will decree restitution in value. The William, 6 Rob. Adm. Rep. 316.

See Laws of Oleron, art. 23. Mulloy b. 2. ch. 9. sect. 3 & 7.

PART THE THIRD.

OF THE CARRIAGE OF GOODS IN MERCHANT SHIPS.

CHAPTER THE FIRST.,

OF THE CONTRACT OF AFFREIGHTMENT BI
CHARTER-PARTY.

1. THE contract by charter-party, of which it is here

intended to treat, is, as I have before observed, a contract, by which an entire ship, or some principal part thereof, is let to a merchant for the conveyance of goods on a determined voyage to one or more places. A ship may indeed be let for other purposes, as to be employed in warfare, or the fishing, coasting, or other trade, under the entire management of the hirer; or by way of mortgage, reserving at least a temporary right of management to the letter; or one part-owner may let his share to another. But contracts of this nature do not form the subject of the present inquiry.

The term charter-party is generally understood to be a corruption of the Latin words charta-partita (a):

(a) Hargrave's note on 1st Inst.

229.

Pothier, traité de charte-partie, num. 1. gives the same etymology of this word from Boerius, but with a different explanation. "It was “formerly usual," says Boerius, "in England and Aquitaine, to re"duce contracts into writing on a "chart, divided afterwards into "two parts from top to bottom, of "which each of the contracting 66 parties took one, which they

"placed together and compared, "when they had occasion to know "the terms of their contract." If from this account we are to understand that the contract was only once written, and the paper or parchment afterwards cut in two, the practice must have been very inconvenient, as neither party could inform himself in the absence of the other of the stipulation he had engaged to perform.

the two parts of this and other instruments being usually written in former times on one [185] piece of parchment, which was afterwards divi

ded by a straight line cut through some word or figure, so that one part should fit and tally with the other, as evidence of their original agreement and correspondence, and to prevent the fraudulent sub、stitution of a fictitious instrument for the real deed of the parties. With the same design indentation was afterwards introduced, and deeds of more than one part thereby acquired among English lawyers the name of Indenture. This practice of division however has long been disused, and that of indentation is become a mere form.

I propose in the present chapter to consider the modes, in which this contract may be made, and to mention the usual stipulations contained in a charter-party, and some particular covenants, that have furnished occasion for the decision of a Court of Justice: reserving the consideration of the general duties, that arise as well out of the contract for conveyance in a general

ship, as of this species of contract, for distinct [186] chapters hereafter.

2. This instrument, when the ship is let at the place of the owners' residence, is generally executed by them, or some of them, (and frequently by the master also,) and by the merchant or his agent. In a foreign port it must of necessity be executed by the master only, and the merchant or his agent, unless the parties have an agent resident in such port, authorized to this purpose by deed or letter of attorney under seal.

I have before observed, that the execution of a charterparty by the master, although said to be done on behaif

of the owners, does not furnish a direct action, grounded upon the instrument itself, against them. This depends upon a technical rule of the law of England (b), applicable as well to this as to other cases, and not affected by the mercantile practice of executing deeds for and in the name of absent persons: the rule of the law of England being, that the force and effect, which that law gives to a deed under seal, cannot exist, unless the deed be executed by the party himself, or by another for him, in his presence, and with his direction; or, in his absence, by an agent authorized to do so by another deed and

in every such case the deed must be made and [137] executed in the name of the principal (c). The

agent indeed, either of the owner or merchant, may, and sometimes does, execute a charter-party, and covenant in his own name for performance by his principal, so as to bind himself to answer for his principal's default, by force of the deed. And in an action to recover freight or demurrage, claimed in pursuance of a charter-party by deed, the declaration must be specially framed on the deed itself (d).

Another technical rule of the law of England, applicable also to the contract by charter-party, should be noticed in this place. If a charter-party is expressed to be made between certain parties, as between A. and B. owners of a ship, whereof C. is master of the one part, and D. and E. of the other part, and purports to contain

(b) Harrison v. Jackson & others, 7 Ter. Rep. 207. and Horsley v. Rush & another, (the case of a charterparty) there cited.

(If C. D. by a proper deed authorize A. B. to execute a bond or other deed for him, A. B. may do this either by writing C. D.

by A. B. his attorney," or by writ ing A. B. for C. D." provided he delivers the instrument as the deed of C. D. Wilks & another v. Backe. 2 East. 142.

(d) Atty v. Parish, 1 B. & P. New Rep. 104.