8. Contracts of Affreightment.—
Where the contract is not plainly a demise of the ship, i.e., a conveyance which turns over her full operation and control, it will not be so interpreted, and the owner will be in a position of a carrier of goods or as himself contracting for such other service by the ship as the charter requires, that is to say, the contract is one of affreightment.
Thus in Hagar v. Clark, 78 N. Y. 45, it was held:
If it remains doubtful whether the charterers were to have sole possession and control of the vessel during the voyage or were to be constituted owners pro hac vice, then the general owners must be deemed such for their rights and authority continue until displaced by some clear and definite transfer of them. The legal presumption is in favor of continuance of ownership and against any transfer of the ship to the charterer for the voyage, and is said to be so strong that, if the end sought to be effected by the charter party can conveniently be accomplished without the transfer of the vessel to the charterers, courts of justice are not inclined to regard the contract as a demise of the ship, although there may be express words of grant in the formal part of the instrument.
The master remains the agent of the owner under any contract falling short of a demise, and the owner is bound by all his acts and omissions within the scope of his authority as in the ordinary relation of carriage by sea. If the instrument amounts to a demise, the master is the charterer's agent, and not that of the owner. Bills of lading or other contracts of affreightment signed by the master bind the owner or the owner pro hac vice on the theory of the master's agency. This subject is discussed in the case of Freeman, 18 How. 182, quoted extensively in Chapter III, § 10, supra. Charter parties frequently contain a clause whereby the charterer agrees to indemnify the shipowner against any liability arising from the signature of bills of lading by the master. Probably this clause would be implied in a charter party if not expressed therein. This gives the owner of the ship a right of action over against the charterer on account of any liability to which the shipowner or ship may have been subjected at the hands of the shipper. Thus if the charter party contained covenants for the protection of the shipowner under certain circumstances and the bill of lading issued by the master did not contain these restrictions and the shipper recovered under the bill of lading against the ship or her owner, the latter in turn could recover against the charterer (Field Line v. South Atlantic Co., 201 Fed. 301).