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them liable upon it if there had been no cesser clause contained in it. But inasmuch as they were only agents for other parties, a clause was inserted that their liability should cease as soon as the cargo was on board. If the charterers had done nothing more, their liability would have ceased, according to the terms of the cesser clause, as soon as the ship was loaded. But they did do something more, for, the goods being shipped, they took two bills of lading, by the terms of which the goods were to be delivered at the port of discharge to the defendants or their assigns. The contract upon the bill of lading, is distinct from the contract upon the charterparty, for under the bill of lading, the defendants' contract, not as charterers but as shippers; and they are sued upon the contract contained in the bill of lading to pay freight and demurrage, which contract is incorporated into the bill of lading from the charter-party. We must therefore only look at the contract contained in the bill of lading. Even if every word in the charter-party which ought to have been incorporated into the bill of lading had been written into it, it would be absurd to suppose that the cesser clause could possibly be written into the bill of lading, for that would make every part of the contract contained in the bill of lading cease the moment the bill of lading was given. That would be an absolute contradiction, and shows that it never was intended that it should be written into it. So much only of the contract

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contained in the charter-party must be written into the bill of lading as is consistent with the contract contained in the bill of lading. The charter-party contains a contract for the payment of freight and demurrage which is not inconsistent with the contract contained in the bill of lading, and which must therefore be read into it by virtue of the words in the bill of lading which incorporate the charterparty. The defendants are therefore liable upon the contract in the bill of lading, which is wholly independent of the charter-party except as regards the conditions contained in it, which are not inconsistent with those contained in the bill of lading."

By a charter-party, it was stipulated that the ship should proceed to Penang, and there load a full and complete cargo of legal merchandize from the charterers' factors, and proceed therewith to London, and there deliver the same on being paid freight "lump sum of 2,8007. in full of all charges."

At the end of the charter-party was the following clause:"The Captain to sign bills of lading at any rate of freight, without prejudice to this charter. In the event of a less freight, the bills of lading of part of the cargo to be filled up for loss, if any."

Under this charter-party the charterers shipped at Penang, goods of their own for which the Captain signed bills of lading at a certain specified rate of freight. The goods so shipped were consigned for sale to the plaintiff, the correspondent of the

charterers in London, who was under a general engagement to honour bills of lading upon him by the charterers upon the faith of consignments to be made to meet them, and who were largely in advance at the time of shipment:-Held that the owners had a lien upon the goods for the entire lump freight.'

In the case of Small v. Moates, 2 Tindal, C. J. said: "The question stated upon the pleadings in this issue is whether the plaintiffs as indorsees of certain bills of lading of certain rice and saltpetre which had been shipped by one Wilkinson on board 'The York' at Calcutta and conveyed therein to London, were, at the time of the arrival of the said ship in London, entitled to demand and have from the said defendant as owner of the said ship the possession of the said goods and merchandize upon payment or tender to him as such owner of certain reasonable freight for the carriage and conveyance of such goods and merchandize from Calcutta to London. We are of opinion that the plaintiff's are not so entitled, but that the defendant the owner of the ship is entitled to retain the same for the whole of the freight and other payments due to him, under the express reservation contained in the charter-party. Whether upon the proper construction of the charter-party, the possession of the vessel was completely taken out of the defendant, and vested for the time in the master who was also the charterer of the vessel, as contended on the part of the plaintiffs; or

Gledstanes v. Allen, 12 C. B. 202.

29 Bing. 588.

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whether, as contended on the part of the defendant the possession of the master notwithstanding his being also the charterer, and notwithstanding the peculiar terms of the charter-party, still continued to be the possession of the shipowner; would have been a question which must of necessity have been determined by us in order to decide the right of lien set up on the part of the defendant, if there had not been an express agreement between the parties as to this right of lien inserted in the charter-party itself. The charter-party states that it is expressly agreed and understood between the parties that the ownership of the ship during the continuance of this charter-party shall remain firmly, and be fully vested in the said owner, and that he shall at all times during the said intended voyage and service, have a full and complete lien upon the lading of the said ship, as well as for all losses and damage which the said owner may sustain or be put to in consequence of the non-payment of any of the bills, to be given for freight, as for all arrears of freight, &c.; and shall have full power and authority to hold and retain the said goods until full payment of all such losses, charges, damages, and arrears of freight paid for on account of the said Wilkinson, and which he of right ought to bear and pay agreeably to the true intent of the said charter-party. And after so full and unequivocal a declaration of intention that the owner shall retain the right of lien upon the lading of the vessel, we think it unnecessary

to discuss whether such consequence would, or would not have followed from the relation in which the parties have placed themselves with respect to each other by the other provisions of the charter-party. An express contract is the strongest and surest ground upon which the right of lien can in any case be placed: and in this charter-party the charterer has in effect covenanted with the shipowner, that whatever may be the legal operation of the charter-party, as between themselves, the charterer's possession of the ship shall be the possession of the owner, so far as the right of the latter to a lien on the cargo is in any way concerned. It is contended, however, on the part of the plaintiffs, that, admitting such right of lien to exist with respect to so much of the lading as was the property of the charterer, no such lien can extend to any part of the lading on board the vessel which was the property of third persons, that in the present case the rice and saltpetre are the property of the plaintiffs, who became the indorsees of the bill of lading, for a valuable consideration, without notice of the terms of the charter-party, and consequently, that they stand in the same situation as any shipper, whose goods are put on board under a bill of lading, and who is entitled to receive them after the voyage is performed upon tendering the freight mentioned in the bill of lading, without being affected by any private agreement between the charterer and the owner of the ship. That a shipper putting his

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