his action. Under this opinion the plaintiff and his counsel acquiesced, and did not apply to the Court for a further consideration of the subject. But the beforementioned case of Parish against Crawford, does not seem to have been adverted to on this occasion. The question, however, in each case, appears rather to have been a matter of form than of substance; for it seems clear, that the owners were in each case liable to an ac2 tion at the suit of the person, to whom the ship was chartered, and who might have sued and [ 25 ] recovered damages for the benefit of the merchant, whose goods were lost.*

The opinion of the Chief Justice, in the case of James against Jones, is conformable to the principle of a judgment pronounced by the Court of King's Bench in a former Case (s) on a quastion of Insurance, wherein it was decided, that a deviation committed by the master · with the knowledge of the absolute owner, and which therefore could not, according to the law of England, be an act of Barratry with respect to him, was an act of Barratry with respect to a third person, who had hired the ship by a charter-party, and who was considered as owner for the particular voyage, with relation to the subject of that cause (1)

(s) Vallejo v. Wheeler, Cowp. 143.

(1) The question as to ownership on charter-parties, has been also litigated in our courts. In a case where by a charter-party A. let to B. for a certain voyage the whole tomage of his brig and covenanted to deliver the cargo at the port of destination, dangers of the seas excepted, and also that the brig should be tight and strong, and properly manned for the voyage, and the

* See Post. 116. Sect. 5.

CHAPTER THE SECOND.

1. ALL

OF PROPERTY IN BRITISH SHIPS.

LL commercial nations have, for the advancement of their individual prosperity, conferred various privileges of trade upon the ships belonging to their own countrymen; and the Legislature of this nation has for the same purpose, at different periods, enacted laws suitable to the circumstances of the times, requiring for the exercise of some particular branches of com

return cargo should be delivered to B. at the home port; and afterwards, by provisional articles between the parties, it was agreed that the captain should be instructed by the owner to touch at Falmouth, and "there to lay off and on 24 hours or "longer if desired, in day light, during which time there "will come off orders from Mr. C., Mr. D. or Mess. E. & Co. ;" and the captain was to proceed to such port (of five specified. ports) as their orders should state; and if "the vessel was de"tained over 24 hours at Falmouth, demurrage should be paid " for the time at the rate stipulated in the charter-party."-The vessel proceeded to Falmouth, and there, no orders being ready, the brig by the advice and orders of Mr. C. came into the port instead of laying off and on, and was there seized and detained 80 days, on an action of covenant for demurrage, alleging a breach that by the orders of C. the brig was conveyed into the port of Falmouth, and by means thereof was detained 80 days; it was held by the Supreme Court of the U. S. that A. still continued owner for the voyage; that the covenant to touch at Falmouth and lay off and on, &c. was his covenant as owner; that

merce, ships not only of the property of its own subjects, but also of the built of its own dominions; allowing other branches to ships the property only of its own subjects, without regard to the built; and, in others, in which foreign ships were suffered to participate, favouring those of its own subjects by a difference in the rate of duties. It has, however, at all times, been the policy of the Legislature, to confine the privileges of our trade, as far as was consistent with the extent of it, to ships built

if the going into Falmouth was a breach of the articles, no action would lie for A., but if any lay, it would be for B.; but as the master in this action acted by the orders of the agent of B., B. was not entitled to maintain any. That of course no demurrage was due in this case, as the detention was occasioned, either by the misconduct of the master for which A. was answerable, or was for the purpose of avoiding danger, and was not occasioned by laying off and on the port of Falmouth, or by any misconduct of B., which were the only cases in which B. would be liable on the true construction of the charter-party. Hool, &c. v. Groverman, 1 Cranch. Rep. 215.

In an action on a policy on a vessel called the Marcus, the plaintiff declared for loss by barratry of the master under the following circumstances. The plaintiff was owner of the Marcus, and by charter-party dated 13 June, 1801, chartered the same to Aken and Brice, and in the charter-party, excepted one half of the cabin, the privilege for 20 barrels for the master and mate, and so much of the hold and forecastle as was necessary for the accommodation of the master and crew, provisions, &c.; and covenanted to have the vessel ready and to receive along side such cargo, contraband goods excepted, as Aken and Brice should tender and the vessel could conveniently carry, and to proceed on the voyage described, and that master and crew should assist in landing the cargo; and the plaintiff was also to

within the King's dominions; but it was reserved for the present reign to behold the ship-building of the country advanced to such a state as to warrant the confimement of these privileges exclusively to ships of that description, or taken as prize in war. And, accordingly this measure was carried into execution [27] by a statute (a), made in the 26th year of his present Majesty's reign; reserving, however, to such foreign (a) 26 Geo. 3. c. 60.

hire the master and crew and pay all their wages and expences for the voyage. The charter-party contained the usual covenants on the part of Aken and Brice, as to providing the cargo and demurrage, and the whole of the freight was to be paid at New York on the delivery of the return cargo.-Brice went the voyage in the vessel and acted as supercargo, and the master, at the request of Brice, deviated from his voyage and went to another port. The question was whether the plaintiff was the owner of the vessel for the voyage, or Aken and Brice. The court were of opinion that the plaintiff continued the owner of the vessel for the voyage, and that the deviation amounted to an act of barratry in the master for which the assurers were liable. And the court thought the distinction to be, "that where by the "terms of the charter the ship-owner appoints the master and "mariners and retains the management and control of the ves→ ❝ sel, the charter is rather to be considered as a covenant to "carry goods; but where the whole management is given to "the freighter, it is more properly a hiring of the vessel for the voyage, and in such case the hirer would be deemed owner." M'Intire v. Brown. 1 John. New York Rep. 229.

And where one part-owner hired of the other his moiety, a ship for 18 months for a monthly hire, and in the charter-party it was agreed between them that in case of the loss of the

built ships, as were then the property of his subjects, the privileges to which they were then entitled by the existing laws. For the more effectual execution of this important measure of public policy, various new regulations were at the same time introduced, to ascertain the built and property of ships, which have been since improved by subsequent statutes (b), as experience

(b) 27 Geo. 3. c. 19. 34 Geo. 3. c 42 & 68. 35 Geo. 3. c. 58. 37 Geo. 3. c. 63.

schooner during the term that the hirer should pay the other party $1800, besides arrears of hire, and for better security should cause an insurance to be made on the ship for $3000a policy was underwritten and an action brought for a loss; the Supreme Court of Massachusetts held that by the contract the hirer had a special property in the other moiety which was at his risk during the term, and that when the ship was lost, he lost the whole of her. Oliver v. Green. 3 Mass. Rep. 133.

of re

In Mason, &c. v. Ship Blaireau. 2 Cranch's Rep. 240. the Supreme Court of the U. S. held that the owners of a ship chartered for a voyage, still continue owners for the purpose ceiving salvage in case of property saved by her crew; and that though one of the charterers be on board, and consent that a part of the crew should navigate the saved vessel, this is not such an act as puts the ship at the risk of the charterers.

An action was brought against certain persons as owners of a ship for running down the ship of the plaintiffs. At the trial it appeared that the ship of the defendants was at the time under charter to the Commissioners of the navy, who had put on board a commander in the navy, who had then the command of the ship. The charter-party contained covenants on the part of the defendants, that they would provide a crew for the ship, and pay and victual them: that they would repair the ship and