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board at the time of the collision: the ship was indeed earning two freights at that time. With respect to the freight upon the salt, it is enough to say that it is not within the jurisdiction of the Court. Indeed upon the freight for the deals, the shipowner had I think an insurable interest, and that freight which she was then in course of earning she has since received. If the converse of the present case had occurred, if she had been the suffering instead of the wrong-doing vessel in the restitutio in integrum to which she would have been entitled, would have been included the freight on account of this cargo of deals."
The charter-party contains the contract between Liability of the owner and the charterer of a ship; and unless when Shipper. it expressly provides that that contract may be varied by the bill of lading, the shipowner will not be relieved from liability by an exception in the bill of lading which is not in the charter-party. In Rodoconachi v. Milburn,' the plaintiffs who were the charterers had shipped goods under the charter, and the master signed a bill of lading containing an exception of "negligence of the master and crew," which was not in the charter. Owing to the negligence of the master the goods were lost. It was held, that the master had no authority to insert such a clause in the bill of lading, that it could not prejudice the charter, but was a mere receipt for the goods shipped, and that the shipowners were there
"L. R. 18 Q.B.D. 67; 6 Asp. M.L.C. 100; Leduc v. Ward, L.R. 20 Q.B.D. 475.
fore liable. In this case Lord Esher said-" What are the words of the clause in the charter-party ? The master to sign bill of lading at any rate of freight, and as customary at port of loading, without prejudice to the stipulation of this charter-party, receiving the difference, if less than the rates specified therein, at port of loading against his receipt for the same. That is all one clause. It is to be 'without prejudice to the stipulation of this charterparty. Construing those words in a business manner, I have no doubt that they mean without prejudice to this charter-party. If so, there are authorities which exactly cover this question. Suppose that I am wrong in that also, and that those words refer only to the rate of freight. Suppose that the provision is that the master is to sign a bill of lading in the customary form, that this bill of lading was in the customary form, and that the words 'without prejudice to the charter-party' do not apply to that provision. Then you have a bill of lading to be signed under the charter-party, the stipulations of which would not be the same as those of the charter-party. What in that case is the rule as to the construction of the two documents? In my opinion, unless there is something expressly to the contrary written in them, the proper construction of the two together is that, as between shipowner and charterers, the bill of lading is to be taken only as a receipt for the goods shipped; and I adopt fully what has been twice said by Lord Bramwell upon
that point. Full effect can be given to both instruments under that doctrine, because the bill of lading is an instrument upon which any person to whom it is indorsed, without notice of its differing from the charter-party has a right to rely.
"If that construction is correct, cadit quæstio, the shipowner in this case is certainly liable to the charterer, if the charter-party between them alone is looked at. To sum up what I have said, supposing that the words as customary at port of loading' refer to the manner of signing, there is nothing to take away from the defendants their liability. But supposing that those words mean that the master is to sign a bill of lading in the customary form, then the words without prejudice to the stipulation of this charter-party' prevent it having any effect at variance with the effect of the charterparty. Lastly, supposing that those words apply only to the rate of freight, and that the only bill of lading that could be presented to the master to sign was the one he did sign, then still, there being nothing expressly stated in the charter-party to show that upon the signing of the bill of lading, the charter-party is to cease to be the contract between the parties, the bill of lading is to be treated only as a receipt for the goods."
And Lopes, L. J. added-" I believe the law to be this, that where there is a charter-party, the bill of lading operates as a receipt for the goods, and as
1 Sewell v. Burdick, L. R. 10 App. Cas. 74; Wagstaff v. Anderson, L. R. 4 C.P.D. 283; L. R. 5 C. P. D. 171.
a document of title passing the property in the goods, but not as a contract between the charterer and the shipowner."
And in a recent case Lord Esher said:
"In this case the action is brought by the shipowner against the charterer for the breach, as he says, of the charter-party. Now, the only contract between the shipowner and the charterer is the charter-party. As between them the bill of lading is no part of the charter-party contract-it is nothing but a receipt for the goods put on board. The bill of lading, which is given by the shipowner according to a charter-party between him and the charterer, does by the Mercantile law contain the terms of the contract by which the charterer is enabled to hand over to or assign to the assignee of the bill of lading. As between the assignee of the bill of lading and the shipowner, the bill of lading contains the terms of the contract of carriage, but, as between the charterer and the shipowner, the bill of lading given under the charter-party is no part of the charter-party contract. But the terms of a charter-party may be such that the bill of lading may be in effect written into the charter-party so as to become part of the charter-party."1
In Sanguinetti v. Pacific Steam Navigation Co., it was held that the charterers who had not only shipped the cargo, but by their agent abroad had received it as consignees, were released by the cesser clause from further liability on the shipment of
1 Oriental S. S. Co. v. Tylor, L. R. (1893) 2 Q. B. 518; 63 L. J. Q. B. 128. L. R. 2 Q. B. D. 238.
the cargo. It was however recognised that the charterers might still be liable on a promise by their agent who received the cargo. But it has since been held that charterers who received the cargo were not released by a cesser of liability clause from paying demurrage for delay in discharging.
Thus, where goods were shipped on board the plaintiff's ship under two bills of lading, by which they were made deliverable at the port of discharge to the defendants or their assigns, "they paying freight and all other conditions as per charter-party."
The charter-party which was entered into by the defendants as charterers for account of another party stipulated for payment of freight and demurrage, and also that the liability of the defendants as charterers, should cease as soon as the cargo was on board, the vessel holding a lien upon the cargo for freight and demurrage. In an action against the defendants as consignees of the goods, for demurrage incurred at the port of discharge:-It was held, that as the cesser clause in the charter-party was inconsistent with the contract contained in the bill of lading, it could not be incorporated into the bill of lading, and, consequently, that the defendants as consignees were not absolved from liability for demurrage incurred at the port of discharge.1
Brett, M. R. saying-" In this case the charterparty was signed by the defendants as charterers, and possibly it was signed by them so as to make
1 Gullischen v. Stewart, L. R. 13 Q. B. D. 317; 53 L. J. Q. B. 173,