1821. CHRISTIE v. LEWIS. House v. Clark, the master and crew, continuing in As As to the case in Barnewall and Alderson, I will only remark, that it professes not to overturn Hutton v. Bragg, but expressly distinguishes it from the case then under consideration, as not having the words of hiring and letting, and though not going the length of saying these words would have made the difference, still the words are referred to as sufficient to constitute a distinction; and, at any rate, it leaves Hutton v. Bragg on its own ground. In fairness, however, I ought to add, that the distinction was, I apprehend, chiefly pointed out, as rendering it not necessary to interfere with Hutton v. Bragg one way or the other. Again, therefore, I have referred to both cases, not for the grounds of decision, but for the doctrines they contain. I forbear to rely on Vallejo v. Wheeler, being willing to admit that what is said by Lord Ellenborough may make a distinction, namely, that it must be confined to the subject agitated in it, that is, against whom barratry may be committed; and further, having no reason to doubt what is said by Lord Chief Justice Abbott, in Saville v. Campion, "The terms of the charter-party are not very clearly shown in Vallejov. Wheeler, but it has always been considered that the ship was thereby let to freight." These are my grounds for not consenting to overturn the decision of this Court in Hutton v. Bragg; not that I entertain, nor would it become me to entertain, any very confident opinion, or an opinion not mixed up with some doubt. But, to overturn what has been solemnly decided, I have already said, I must have a confident conviction that such decision was erroneous. This I do not sufficiently entertain, and I am the less anxious as to the result, because, as I shall probably be single in the opinion I now give, no harm can result to the parties in the particular case: and with respect to any general rule, the result of the case is quite immaterial; for, decided one way or the other, parties may, Hh 3 in 1821. CHRISTIE v. LEWIS. 1821. CHRISTIE บ. LEWIS. in future, frame their charter-parties accordingly. I am therefore of opinion, that judgment should be for the Plaintiffs. PARK J. I am sorry to differ from the very able, luminous, and candid opinion which has just been delivered; and it is to be lamented that so many cases have arisen upon charter-parties, owing very much to the obscure language in which those instruments are frequently framed, and to their being prepared by persons totally ignorant of the rules of law. The question, however, in all these cases, generally has been a question of construction, or rather a question of fact arising out of the construction, whether there has been an entire letting or parting with the possession of the ship for given purposes, so that, during that time, the owner has no efficient controul, but the charterer has the full disposition of the ship: or, in other words, to use the language of Lord Chief Justice Gibbs in Tate v. Meek, whether the delivery of the cargo and the payment of freight are to be considered as concomitant acts. When the fact is ascertained, the legal result is clear. Now, when this distinction of fact is attended to, the cases may all be explained, I won't say reconciled; because various Judges, at different times, have given a different construction. If all had agreed, the same result would have followed; because, in looking through all the cases, I uniformly find that all agree that it is only upon the entire and absolute parting with the possession and controul of the ship, that the charterer is to be considered as owner pro hác vice. Thus, in Vallejo v. Wheeler, the charterer (whether rightly or not) was to be treated as owner; and then all agree, as was considered by Lord Chief Justice Abbott in Saville v. Campion, that all the duties, rights, and privileges of owner attached upon him in a question question of barratry; and there is a great difference between cases of barratry, especially where (as in that case, as well as in that of Soares v. Thornton, afterwards in this Court) the great question was, whether the charterer was so far owner as to prevent him from being defrauded of the benefit of his insurance by the barratrous conduct of the original owner. So, in the case of The Trinity House v. Clark, the Court considered the crown as actual temporary owner, from the nature of the charter-party, which was not for any specific voyage, but for various duties and stations, all to be regulated as the exigency of the public service might require, granting the ship and letting it to hire and freight, which, says Lord Ellenborough, are proper words of lease, and would pass the possession. "From all which expressions in the instrument (said his Lordship), and from the nature of the service stipulated for, which is of the utmost importance, and might be delayed, and even frustrated, if the crown was not authorised to take possession of the ship to secure its immediate execution, but was left to a bare action of covenant against the proprietors of the ship, if they were to refuse to permit their ship to sail, it is contended that the crown had an executed right of possession in, and was legally and actually possessed of, the ship, and owner thereof, within the meaning of these charters, during the period in which the services were performed, which gave rise to these claims." "It is evident that the service contracted for is of the highest importance to the country, and that its most valuable interests may depend upon the immediate execution of such service, as this charter-party authorises the crown to require, and the proprietors of the ship agree to perform. Whatever construction of the contract enables the crown to enforce a prompt obedience to its terms, must be most agreeable to its spirit and intent. If the proprietors of Hh 4 the 1821. CHRISTIE v. LEWIS. 1821. CHRISTIE V. LEWIS. the ship, from whatever motive, were authorised to insist that the officers of the crown had no right to enter the ship, but were driven to their action on the breach of the contract, infinite and irreparable mischief might be done to the public service by the delay." Now, let us look to the covenants in the present charter-party, all of which, in my mind, are perfectly inconsistent with the notion that the ship was actually parted with by the original owner. It is true, in the outset, the owner states he has granted and to freight let, and that the freighter hath hired and to freight taken; but these instruments are all to be taken together, and we are to see whether, upon the whole, the parties intended to part with the possession. These words, or nearly the same, are to be found in Yates v. Railston; and yet it was held, in that case, that there was a parting with the ship. In Morgan, dem. Dowding, v. Bissell (a), it is said, "When the party enters into that, which on the face of it appears to be an agreement, though there are words of present demise; yet, if you collect on the face of the instrument the intent of the parties to give a future lease, it shall be an agreement only." And in Soares v. Thornton (b), Lord Chief Justice Gibbs says, "The words let to freight I pay no regard to." The truth is this, these words are strong, when coupled with other circumstances in the instrument, to show the intent; but they are by no means conclusive. The owner provides, that the ship shall be "well manned, tackled, apparelled, and furnished for the voyage hereinafter mentioned;" and that "the master, &c. is to receive and deliver the goods." How could he receive but into the owner's possession; and how could he deliver out, if the goods were not in his possession? (a) 3 Taunt. 65. (b) 7 Taunt. 640. These |