Woodworth, J.
The plaintiff below was master of the schooner Thetis, and declared for the freight of certain goods. On the arrival of the vessel at New York, the goods were delivered to the plaintiff in error, who gave a receipt, promising to pay freight to the party legally authorized to receive it. This arrangement was made in consequence of a controversy between the owners of the vessel, and one Douglass, to whom they had executed a charter party for the voyage, both claiming a right to the freight. The defendant in the Court below gave in evidence the charter party, and proved that on the 10th April, 1824, he paid the amount of freight to Douglass, on receiving a bond of indemnity. The Judge held the only question to be, who was the owner and possessor of the vessel for the voyage ? and that if the owners of the vessel were to be considered in possession, they were entitled to receive the freight, and that would depend upon the construction of the charter party; that, in his opinion, the owners had not parted with the ownership and possession; and were entitled to receive the freight, and to enforce their claim, either by detaining the goods until payment, or by bringing an action on the bills of lading.
[476]*476To this opinion the defendant excepted.
The right to collect the freight is exclusive in one or the other of the parties. This right may be enforced by insisting on the lien until payment, or by resorting to an action, which may be sustained in the name of the master, qn the bills of lading, for the benefit of the owners and possessors of the vessel. Whether payment to the charterer exonerated the defendant, necessarily depends on .the question, whether, by the terms of the charter party, he had the control, navigation, and possession of the vessel for the voyage. From an attentive consideration of the various clauses and provisions of the charter party, I am of opinion that the general owners had not parted with the ownership and possession.of the vessel, and consequently they were entitled to receive the freight.
The- law is correctly laid down in Marcadier v. The Chesapeake Insurance Company, (8 Cranch, 49.) It is, that “ a person may be owner for the voyage, who, by a contract with the general owner, hires the ship for the voyage, and has the exclusive possession, command and navigation of the ship. But where the general owner retains the possession, command and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter party is considered a mere affreightment, sounding .in covenant; and the freighter is not clothed with the character or -legal responsibility of ownership. In the first case, the general freighter is responsible for. the conduct of the master and mariners during the voyage. In the latter case the responsibility rests on the general owner.”
The construction must be on the whole instrument, in order to. determine whether the owner intended to part with the possession.
The first clause declares that the parties of the first part had agreed to freight, and to let the party of the second part, the whole , of -the schooner Thetis. This expression, taken singly, would undoubtedly import, that Douglass had the possession' and control óf the vessel. In Marcadier v. The Chesapeake Insurance Company, the language is substantially the same. -The charter party contained these [477]*477words: “ Hath granted, and to freight let the brig, excepting and reserving her cabin for the accommodation of the captain.” Yet the Court held that the ownership and possession were retained by the general owner, in consequence of subsequent clauses, which compare with those in the charter party in question.
The second and third clauses are, that the party of the second part may load and discharge from on board the schooner, such cargo, in either of thé ports or places, as, by them, shall be ordered; and that the party of the second part agrees to deliver and receive the cargo or parts thereof, as may be, at all and every place, along side and within reach of the vessel’s tackles, she having first anchored.
It seems to me that these clauses are inconsistent with the idea of actual ownership and possession in the freighter. If that had existed, there was no necessity for such stipulations ; but, on the ground that the general owners (although stipulating that the vessel should be employed for the voyage, in carrying freight for the charterer) still retained possession and control of the vessel, the clauses are intelligible and proper in requiring the charterer to conform to them. In Savilla v. Campion, (2 B. & A. 511,) such a, clause are considered as conclusive that the possession was retained by the general owner.
The fourth clause, which provides that sufficient, room in the hold is to be allowed for the necessary provisions and water during the voyage, goes far to determine the meaning of the contract. From this, it is plainly to be inferred that the general owners considered themselves as having possession of the vessel, and that they were to navigate her, and, therefore, made this reservation to, enable them to perform.
The vessel was to be navigated at the expense of the general owners, which shows very clearly that their ownership and possession continued. If it had been otherwise,,'such a provision in the contract would not have been inserted.
It is also provided, that the vessel shall be tight, strong and well manned, victualled and apparelled during the voyage. If the doctrine contended for by the plaintiff in error be correct, what concern had the general owner with inan[478]*478ning and victualling the vessel. The cases of Hooe v, Groverman, (1 Cranch, 237,) and Marcardier v. The Chesapeake Insurance Company, (8 Cranch, 50,) are very decisive as to the effect of such a clause.
There are other parts of the charter party which serve to strengthen this construction, but I consider it unnecessary to notice them.
There is no doubt, that the owner may waive his right to receive the freight, and if the charter party clearly show that he intended to resort to the charterer solely, the right cannot be enforced. In the case of Chandler v. Belden, (18 John. 157,) the stipulation was to receive $500, in advance, and the residue in three equal payments at 30, 60, and 90 days from the end of the voyage. This was held to be a waiver of the lien; but in the present case no such intent is indicated. Whatever remained unpaid at the return of the vessel, was then due and payable.
The judgment should be affirmed.
Sutherland, J. concurred.
Savage, Ch. J.
The important inquiry is, who was the owner of the Thetis, for the voyage in question 1 Doubtless, when the charterer becomes owner for the voyage, there is no lien of the general owner for freight. It exists only when the carrier for freight is also owner for the voyage. The question of ownership must be determined by the charter party, the contract between those claiming the ownership. It is substantially this:
1. The owners, Lockwood & Co. and Bulkley & Son, agreed to freight and to let to Charles Douglass, the vessel, Thomas Edes, master, to proceed from New York to Havana, thence to Curacoa, thence to Jacmel, and thence to New York.
2.
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Woodworth, J.
The plaintiff below was master of the schooner Thetis, and declared for the freight of certain goods. On the arrival of the vessel at New York, the goods were delivered to the plaintiff in error, who gave a receipt, promising to pay freight to the party legally authorized to receive it. This arrangement was made in consequence of a controversy between the owners of the vessel, and one Douglass, to whom they had executed a charter party for the voyage, both claiming a right to the freight. The defendant in the Court below gave in evidence the charter party, and proved that on the 10th April, 1824, he paid the amount of freight to Douglass, on receiving a bond of indemnity. The Judge held the only question to be, who was the owner and possessor of the vessel for the voyage ? and that if the owners of the vessel were to be considered in possession, they were entitled to receive the freight, and that would depend upon the construction of the charter party; that, in his opinion, the owners had not parted with the ownership and possession; and were entitled to receive the freight, and to enforce their claim, either by detaining the goods until payment, or by bringing an action on the bills of lading.
[476]*476To this opinion the defendant excepted.
The right to collect the freight is exclusive in one or the other of the parties. This right may be enforced by insisting on the lien until payment, or by resorting to an action, which may be sustained in the name of the master, qn the bills of lading, for the benefit of the owners and possessors of the vessel. Whether payment to the charterer exonerated the defendant, necessarily depends on .the question, whether, by the terms of the charter party, he had the control, navigation, and possession of the vessel for the voyage. From an attentive consideration of the various clauses and provisions of the charter party, I am of opinion that the general owners had not parted with the ownership and possession.of the vessel, and consequently they were entitled to receive the freight.
The- law is correctly laid down in Marcadier v. The Chesapeake Insurance Company, (8 Cranch, 49.) It is, that “ a person may be owner for the voyage, who, by a contract with the general owner, hires the ship for the voyage, and has the exclusive possession, command and navigation of the ship. But where the general owner retains the possession, command and navigation of the ship, and contracts to carry a cargo on freight for the voyage, the charter party is considered a mere affreightment, sounding .in covenant; and the freighter is not clothed with the character or -legal responsibility of ownership. In the first case, the general freighter is responsible for. the conduct of the master and mariners during the voyage. In the latter case the responsibility rests on the general owner.”
The construction must be on the whole instrument, in order to. determine whether the owner intended to part with the possession.
The first clause declares that the parties of the first part had agreed to freight, and to let the party of the second part, the whole , of -the schooner Thetis. This expression, taken singly, would undoubtedly import, that Douglass had the possession' and control óf the vessel. In Marcadier v. The Chesapeake Insurance Company, the language is substantially the same. -The charter party contained these [477]*477words: “ Hath granted, and to freight let the brig, excepting and reserving her cabin for the accommodation of the captain.” Yet the Court held that the ownership and possession were retained by the general owner, in consequence of subsequent clauses, which compare with those in the charter party in question.
The second and third clauses are, that the party of the second part may load and discharge from on board the schooner, such cargo, in either of thé ports or places, as, by them, shall be ordered; and that the party of the second part agrees to deliver and receive the cargo or parts thereof, as may be, at all and every place, along side and within reach of the vessel’s tackles, she having first anchored.
It seems to me that these clauses are inconsistent with the idea of actual ownership and possession in the freighter. If that had existed, there was no necessity for such stipulations ; but, on the ground that the general owners (although stipulating that the vessel should be employed for the voyage, in carrying freight for the charterer) still retained possession and control of the vessel, the clauses are intelligible and proper in requiring the charterer to conform to them. In Savilla v. Campion, (2 B. & A. 511,) such a, clause are considered as conclusive that the possession was retained by the general owner.
The fourth clause, which provides that sufficient, room in the hold is to be allowed for the necessary provisions and water during the voyage, goes far to determine the meaning of the contract. From this, it is plainly to be inferred that the general owners considered themselves as having possession of the vessel, and that they were to navigate her, and, therefore, made this reservation to, enable them to perform.
The vessel was to be navigated at the expense of the general owners, which shows very clearly that their ownership and possession continued. If it had been otherwise,,'such a provision in the contract would not have been inserted.
It is also provided, that the vessel shall be tight, strong and well manned, victualled and apparelled during the voyage. If the doctrine contended for by the plaintiff in error be correct, what concern had the general owner with inan[478]*478ning and victualling the vessel. The cases of Hooe v, Groverman, (1 Cranch, 237,) and Marcardier v. The Chesapeake Insurance Company, (8 Cranch, 50,) are very decisive as to the effect of such a clause.
There are other parts of the charter party which serve to strengthen this construction, but I consider it unnecessary to notice them.
There is no doubt, that the owner may waive his right to receive the freight, and if the charter party clearly show that he intended to resort to the charterer solely, the right cannot be enforced. In the case of Chandler v. Belden, (18 John. 157,) the stipulation was to receive $500, in advance, and the residue in three equal payments at 30, 60, and 90 days from the end of the voyage. This was held to be a waiver of the lien; but in the present case no such intent is indicated. Whatever remained unpaid at the return of the vessel, was then due and payable.
The judgment should be affirmed.
Sutherland, J. concurred.
Savage, Ch. J.
The important inquiry is, who was the owner of the Thetis, for the voyage in question 1 Doubtless, when the charterer becomes owner for the voyage, there is no lien of the general owner for freight. It exists only when the carrier for freight is also owner for the voyage. The question of ownership must be determined by the charter party, the contract between those claiming the ownership. It is substantially this:
1. The owners, Lockwood & Co. and Bulkley & Son, agreed to freight and to let to Charles Douglass, the vessel, Thomas Edes, master, to proceed from New York to Havana, thence to Curacoa, thence to Jacmel, and thence to New York.
2. The owners covenant, that the vessel shall be tight, strong, and well manned, victualled and apparelled, and so kept during the voyage, and that Douglass may load and discharge from on board the schooner, such cargo or cargoes, or parts thereof, in either or any of the above ports or places, as by them shall be ordered; the schooner to pro[479]*479ceed as soon as dispatched by the party of the second part at either or any of the ports or places mentioned, direct, and without delay, to the next port or place. The party of the second part agrees to deliver and receive the cargoes, or parts thereof, at all the places along side, and within reach of the vessel’s tackles.
3. In consideration whereof, Douglass agrees to pay the parties of the first part, at and after the rate of $325 per month, at the end of every month, if in port—or on her arrival (if required) with all port charges, except at New York : also to advance what may be necessary for expenses, if wanted. The parties bind themselves, i. e. the owners, the vessel, tackle and apparel, and Douglass, the cargo, &c. in the penalty of $1000.
4. Sufficient room in the hold was to be allowed, for the provisions, wood and water, and for storage of the cables.
5. On the vessel’s arriving at Havana, or any other port mentioned, if the party of the second part shall request of the master or commander, the direct return from such port to New York, he shall be obliged, so to do ; and upon her return to New York, the voyage to be ended, as if she had gone to all the ports.
In Vallejo v. Wheeler, (Cowp. 143,) the charterer was considered the owner. The facts of the case are not fully stated; but it appears that the charterer had appointed the master, and that the owner of the hulk had nothing to do with the voyage. In Hutton v. Bragg, (7 Taunt. 14,) the owner let his ship to the charterer from London to the Cape of Good Hope, and back; the master having liberty to reserve the cabin for his sole use, and the usual accommodation for the crew and ship stores. The charterer covenanted to pay a certain sum in freight, for the voyage out and home. The Common Pleas held the charterer the owner for the voyage. In this case, the charter party was in terms of letting to him, as remarked by Abbott, Ch. J. in Saville v. Campion, (2 B. & A. 512.) In this last case, Hutton v. Bragg was doubted, and it was held that the owner had not parted with the possession of his ship. The contract was, that the commander should take on board a [480]*480, full cargo for the, freighter, reserving room for the provisions and cables; proceeding to Madeira, there to receive from the freighter’s-agent such goods as he might think fit . to, load ;- thence to Madras or , Calcutta; and thence to ILondon : all the cabins, except one, to the freighter, who should send a supercargo ; the freighter to pay, after the voyage was complete, £14 per ton upon the ship’s registered tonnage, and the time of payment specified ; the supercargo to direct the stowage of the goods laden, but in no ■ other manner to interfere with the captain’s authority.
The question seems to have been- the most fully examined by the. American courts.
In Hooe v. Groverman, (1 Cranch, 214,) the owner had “ granted, and to freight letten,” the whole tonnage of the vessel. Marshal, Ch.. I. places some weight on this phraseology, and also on the covenants by the owner, to deliver-the cargo; that the vessel was to be kept and manned by him; and that the charterer was to pay the freight. He says, the owner, Groverman, is to be considered, the owner for the voyage. Again, in Marcadier v. The Chesapeake Insurance Company, (8 Cranch, 49,) it is said by Mr. Justice Story, who delivered the opinion of the Court, “ A person may be owner for the voyage, who, by a contract with the. general owner, hires the-ship for the voyage, and has the exclusive possession, command and navigation of the ship. Such is understood to have been the case of Vallejo v. Wheeler. But when the general owner retains the possession, command and navigation of the ship, and contracts to. carry a cargo on freight for the voyage, the charter party is considered as a mere affreightment, sounding in covenant, and the freighter is not clothed with the character, or legal responsibility of ownership.”- In the case of Gracie v. Palmer, (8 Wheat. 605,) the owners let, and the charterer hired the vessel to freight for the voyage. Then followed several covenants, by the owners, to navigate the ship, to load and unload the-cargo, &c. Mr. Justice Johnson, who delivered the opinion of the.Court, says, “ The ship owner, who lets his ship to hire to another, whether manned and equipped or not, .enters into a contract totally different from him who engages [481]*481to employ her himself in the transportation of the goods of another. In the former case he parts with the possession to another, and that other becomes the carrier. In the latter, he retains the possession of the ship, although the hold may be the property of the charterer; and, being subject to tiie liabilities, he retains the rights incident to the character of a common carrier.” In M'Intyre v. Bowne, (1 John. Rep. 238,) Mr. Justice Thompson says, “ It appears the assured equipped the brig, hired the master and Crew, paid them, furnished the provisions and other necessaries for the voyage, excepted half the cabin, the privilege of 20 barrels on account of the master, &c. Under such circumstances, I should not consider A. & B. (the charterers) as owners for the voyage.” In Hallet v. The Col. Insurance Company, (8 John. Rep. 276,) the Court say, the master of the vessel was to be considered as owner pro hac vice, or for the voyage insured. There was a complete letting, of the entile vessel for the voyage. The master was to victual and man her at his own cost. He had the whole management and control, &c. In Chandler v. Belden, (18 John. 162,) the only point decided is, as to the owner’s lien, which Was held to be waived by an express agreement regulating the time and manner of paying freight, by stipulations in a charter party, and especially as the cargo was deliverable before the period of payment arrived.
These cases do not decide ,the present question ; but they do decide that the general owner has a claim and lien for the freight, and that must continue, unless the owner has parted with it, either by constituting the charterer owner for the voyage, or by postponing payment beyond the time when the goods are to be delivered.
The question who was owner, must be determined by the charter party. Was it, then, the intention of these parties that the owner should relinquish his ownership for the voyage 1 He first lets the whole of the vessel, and if the charter party had stopped here, there could be very little doubt on the question. Secondly. The owners covenant that the vessel shall be strong, well manned and provided during the voyage, and that Douglass may load, &c. Why [482]*482this permission, if Douglass was the owner? Had that q,een the understanding of the parties, surely the charterer would have the right to load and unload what cargo he pleased, when and where he pleased, without a covenant from those who had parted with all interest in their ves sel. The owners further covenant that the vessel shah proceed so soon as dispatched, &c. From this, it seems, the owners directed the movements of the vessel. They then had the control and navigation of her. The charterer agrees to deliver and receive the cargoes along side, &c. To whom was he to deliver ? to his own agent ? to himself? such a covenant would be preposterous. But if the captain is considered the agent of the owners, then indeed there is great propriety in the covenant.
It was urged in argument, that the clause providing for sufficient room in the hold to be allowed for provisions, &c. shows that the charterer was in possession of the vessel.
I do not draw that inference. I think it proves that the charterer had the right to occupy the whole vessel with his goods, excepting that part reserved or allowed for provisions, water, cables, &c.
But the last provision in the charter party seems to me to settle the question, if there be any doubt upon its previous parts. On the vessel’s arriving at Havana, she was to ‘ return, if the charterer requested it. Now why request his own servant to obey him ? If the charterer was in possession, and had the control and navigation of the ship_ surely this covenant is nonsense. Not so, on the supposition that the owners retained the posession.
I am of opinion that the judgment of the Court below be affirmed.
Judgment affirmed.