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ship becomes entitled to all the rights of an owner from the time of his taking possession, and as T. had taken possession of the ship before the freight had, under the charter-party, become due, the priority of T. was declared.'

A mortgagee of a ship, upon taking possession, becomes legally entitled to all freight which becomes due after taking such possession, in priority to mortgagees of the freight. Having such legal title, he is entitled as against a mesne incumbrance of which he has no notice to tack a subsequent incumbrance on the freight. As between him and other mortgagees of the freight, any notice of this mesne incumbrance given to the charterers by the other mortgagees is immaterial.2 The owner of a vessel cannot bring an action on Who may or a charter-party entered into by a broker on his on the contract behalf, but to which he was not made a party.

Thus, under a charter-party entered into by a broker on behalf of the owner of a vessel, whose name, however, did not appear on the charter-party, the freight was to be paid to the broker on behalf of the owner. The owner assigned the freight to A., who gave notice of the assignment to the broker, but not to the Lords of the Treasury, by whom the freight was to be paid:-Held, that after such assignment and notice, the freight was no longer in the order and disposition of the owner, and, consequently, did not, upon his subsequently becoming bankrupt pass to his assignees.3


1 Brown v. Tanner, L. R. 3 Ch. 597; 3 Asp. Mar. L. C. 94.

Liverpool Marine Credit Co. v. Wilson, L. R. 7 Ch. 507.

3 Garduer v. Lachlan, 5 L. J. Ch. 332.

may not sue

Where a vessel is put up as a general ship and the shipper of goods on board of her has no knowledge that the vessel is under charter, the owner is the proper person to be sued in the event of the goods being damaged.1

If a ship is chartered for a particular voyage, and put up as a general ship by the charterer, it is not enough to make the owners liable for the nondelivery of goods, to show that they were put on board the ship to be carried on this voyage, unless it be proved that they were received on board by some person appointed or authorized by the owners.

If a person ship goods on board a vessel, knowing that she is chartered, the consignee of the goods can maintain no action against the owner of the ship if the goods be injured by bad stowage.

If the shipper of goods was warned as to the way in which goods would be stowed, the consignee cannot maintain any action for damage occasioned by such stowage, even if the stowage were bad.3

In an action against the defendants, as owners of a ship called "The Scaflower," for not delivering goods shipped on board that vessel by the plaintiff, it turned out, in evidence, that though the defendants were the owners of the ship, she had in fact, been chartered for that voyage by them, to two persons of the name of Reed and Parkinson.


Figlia Maggiore, The, L. R. 2 A. & E. 106.

Mackenzie v. Rowe, 2 Camp. 482.

* Major v. White, 7 C. & P. 41; Hovill v. Stephenson, 4 C. & P. 469.

Upon this evidence, Lord Kenyon non-suited the plaintiff, holding,-"As no express contract was proved with the defendants, that Reed and Parkinson were for that voyage to be deemed as the owners, and the captain as their agent pro hac rice, the liability being shifted by the charter-party from one party to the other."1

By the charter-party in Newberry v. Colvin,2 which case was carried to the House of Lords, the owner covenanted with Betham that he should be master; that the owner should be allowed to put on board 100 tons of iron for the outward voyage, and that the ship "should be put and continued in the service" of Betham for twelve months, with power to load such goods as he thought fit and to trade to and from certain specified ports; the owner to man the ship and to provide stores and necessaries for the ship and crew during that period. Betham, on his part, accepted the appointment as master, and covenanted to accept, receive, and take the said ship into his service for twelve months certain, and to pay freight for the use and hire of the ship at the rate of 25s. per registered ton per month; and it was further agreed between them, that an agent of the owner should continue on board, with power in certain events, to displace Betham as master, and to appoint another in his stead. It was held that by this contract the charterer, Betham, was constituted owner pro

1 James v. Jones, 3 Esp. 27.

7 Bing. 190; Schuster v. M'Kellar, 26 L. J. Q. B. 286.

tempore, and that the owner of the ship was not liable upon a bill of lading for non-delivery of the goods therein specified.

Each of the part owners, for whom, and with whose authority, a contract for the ship's employment has been made, is liable in full for any breach of it. And he may be sued alone for the breach, subject to a right to apply to the Court, to require the plaintiff to join the other owners who are liable on the contract, as defendants.1

An order must be applied for if it is desired to have them joined; and such an order will generally be made.2

A judgment against one of the part owners, although unsatisfied, is a bar to any action for the same matter against others of them.3

Again, one part owner may now sue alone on the contract. His action will not fail for want of the others, as formerly it would have done. But the defendant may apply to the Court to require the other owners to be joined. If they are not willing to join as plaintiffs, the proper course seems to be, to join them as defendants."

By rule 9 of R. S. C. 1883, XVI., however, one owner may sue on behalf of himself and the other

1 R. S. C. 1883, XVI. 11; Ch. XVI. 9; Pilley v. Robinson, L.R. 20 Q.B.D. 155; 57 L. J. Q. B. 54.

2 Kendall v. Hamilton, L. R. 4 App. Cas. 504; 48 L. J. C. P. 48; Wilson v. Balcarres Brook S. S. Co., L. R. (1893,) 1. Q. B. 422.

3 Kendall v. Hamilton, L. R. 4 App. Cas. 501.

Boson v. Sandford, 2 Salk. 410; Kendall v. Hamilton, L. R. 4 App.
Cas. 501.

5 R. S. C. 1883, XVI. 11.

6 Luke v. South Kensington Hotel Co., L. R. 11 Ch. D. 121; 48 L. J. Ch. 361.

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In DeHart v. Stevenson, where this was done, the Court refused to require the other part owners to be added as plaintiffs, the only object being to secure their liability for costs.

The defendants chartered two vessels of 300 tons Effect of substituted each for a voyage from Ibraila to London with full Contracts. cargoes of petroleum, at 81s. perton. In consequence of their stores at Ibraila having been destroyed by fire, they were unable to furnish any oil; and the owners agreed to cancel the charter-parties and to procure other cargoes upon the defendants guaranteeing each vessel "a sum of 9001. gross freight home." The homeward cargoes shipped under the substituted contract fell short of the guaranteed sum for cach vessel by 3137. 6s. One of the vessels arrived in safety; the other was lost:

Held, that the contract was broken at the moment of the shipment of the homeward cargo, and, consequently, that the owners were entitled to recover the deficiency in respect of each vessel, notwithstanding the loss of one of them.

Erle, C. J. in delivering his judgment said:"This was a substituted contract, and is to be construed with reference to the original charterparty. That assumes the capacity of each vessel to be 300 tons, and provides for a freight of 81s. per ton. The owners stipulate for a full cargo of petroleum. In consequence of a misfortune at the contemplated place of shipment, the charterers were unable to supply any cargo. A new contract was thereupon substituted, under which the owners were to 1 L. R. 1 Q. B. D. 313; 45 L. J. Q. B. 575,

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