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having been stowed with hogsheads of tobacco, it was held that the owner was rightly sued.1
The question of liability of a ship-owner to the consignce of a bill of lading for damages for breach of contract in refusing to deliver goods upon payment of the freight, the same having been shipped in a general ship in ignorance of the charter-party, came before the Court under peculiar circumstances in the case of the "Patria," which sailed under the flag of the North German Confederation, and was chartered by a German firm to sail from America to a port on the Continent between Havre and Hamburg and Bordeaux inclusive, or a port of Great Britain. The charter-party was in the German language, and provided that the master should not be responsible for dangers of the seas, and for events caused by high powers, or any other event of navigation; the vessel was loaded on the West Coast of Central America with a general cargo for Hamburg, part of which consisted of coffee shipped by a foreign firm. This coffee was stowed near the bottom of the hold, and goods consigned to other consignees were stowed above it. The master signed bills of lading for this coffee in English, without reference to the charter-party, to be delivered at Hamburg (the dangers of the seas only excepted) to the plaintiffs or assigns. The plaintiffs were merchants in London and at the time of the shipment, neither they nor the shippers had notice of the charter-party.
The Figlia Maggiore, L. R. 2 A. & E. 106.
2 L. R. 3 A. & E. 436.
On the voyage owing to the master's severe illness, the vessel put into Falmouth, and remained there, war having broken out between Germany and France, owing to which German ships could not sail in safety; the plaintiffs acquiesced in the ship remaining there during but not after, the blockade of Hamburg, and offered to take delivery of the cargo consigned to them at Falmouth and to pay full freight, and after the raising of the blockade of Hamburg again offered to take delivery either at Falmouth or at Hamburg on the same terms. This was refused and the Court held that the contract contained in the bill of lading was not affected by the terms of the charter-party, and that the vessel was liable for any breach of the terms of the bill of lading, and that whether the rights of the parties with reference to the delivery of the coffee at Falmouth, depended upon the provisions. of the English law, the German law, or the general maritime law, the refusal of those in charge of the vessel to deliver the goods to the plaintiffs at Falmouth after the offer to pay full freight, was not justifiable.
Where the vessel has been sub-chartered and the shipper puts his goods on board under this charter without notice of the original charter he will not be bound by the terms of this charter; thus where a ship had been chartered to M. for twelve months at a certain sum per month, the owner to have a lien on the cargo and freight for arrears of hire. M. sub-chartered the vessel to the plaintiff's for a
Where shipper has notice of
voyage to Spain, and she proceeded there and took on board a cargo from them.
After it had been loaded, the Captain required that the bills of lading should contain a stipulation for payment of freight as per the original charter, and that was inserted under protest. But it was held that the owner was not entitled to a lien on the cargo for the arrears of hire under the charter. The goods had been taken on board under the sub-charter, and after that it was too late to insist on the terms of the other.1
When the charterer treats the vessel as his own, the Charter and himself gives bills of lading to the shipper, without any intervention of the master, he himself, perhaps, taking one bill of lading for the whole cargo. In such a case it seems clear that the remedy of the shippers on their contracts is against the charterers only; though they might be able to proceed against the shipowner for acts done to the goods improperly by the master. And, on the other hand, the freight payable by the shippers belongs to the charterer, not to the shipowner.*
Or, again there may be two contracts with the shipper, one made by the charterer, and another by the shipowner.
The charterer may undertake that room shall be provided for the goods in the ship, and that they
1Tharsis Sulphur Co. v. Culliford,22W.R. 46; The Emilien Marie, 44 L.J.Ad.9. 2 Herman v. Royal Exchange Shipping Co., 1 C. & E. 413.
Hayn v. Culliford, L. R. 4 C. P. D. 182.
Zwilchenbart v. Henderson, 23 L. J. Ex. 231,
shall be accepted on board for carriage upon agreed terms; and the master may satisfy that undertaking by taking the goods, and giving a bill of lading on behalf of the shipowner to carry on those terms.1 In Wagstaff v. Anderson, a ship had been chartered for a voyage from London to Callao. By the charter she was to receive at such loading berth as the charterers might appoint, all such lawful goods as might be required; the whole ship was to be at the charterer's disposal; the master and owners were to give the same attention to the cargo, and in every respect remain responsible to all whom it might concern, as if the ship were loaded in her berth by and for the owners independently of the charterers; and the master was to sign bills of lading at any rate of freight the charterers might require without prejudice. The ship on being loaded, was to proceed to Callao and deliver the cargo agreeably to bills of lading, the act of God, &c., excepted. The charterers were to pay a lump freight by their acceptances at ninety days from the ship's final sailing from Gravesend, or in cash, less discount, at Captain's option, but the owners were to accept in satisfaction of freight all bills of lading bearing freight payable abroad not exceeding one-third of the amount of the charter. The charterer's liability, except for freight, to cease on the vessel being loaded.
The charterers "acting for owners" entered into an agreement with the plaintiffs that the ship should
1 Carver, s. 158.
2 L. R. 5 C. P. D. 171.
receive a quantity of cement from them for conveyance to Callao at a certain rate of freight, and the plaintiffs shipped the cement under bills of lading signed by the master. In the course of the voyage the vessel was forced to put into Monte Video; and being unable to carry them on, the master sold the plaintiffs' goods under circumstances which did not justify the sale. The plaintiffs sought to make the charterers responsible.
It was held that they were not liable. For if the agreement that the cement should be received on board was made by the charterers on their own behalf, it had been performed and they were not responsible upon the contract to carry the goods. Thesiger, L. J. said "The goods, the sale of which is the subject of dispute, were carried under a bill of lading, and prima facie the master in signing that bill of lading would be acting on behalf of the persons who were the shipowners, and the shipowners would be the persons responsible for the carriage of the goods, and for all things to which the agent would be able to bind the shipowners in connection with the goods. But it is open to the plaintiffs to negative the presumption of the liability of the shipowner in two ways, either by showing that the transactions between the shipowners and the defendants were such as really put the defendants for that particular voyage in the position of the shipowners, according to the principles laid down in Colvin v. Newberry,' or that,
11 C. & F. 283.