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and dismissed by the charterers, but the shipowners were to provide and pay for all provisions and wages of the Captain and crew, and for the necessary equipment for the efficient working of the ship, and that the charterers should pay for all the coals, port charges, and other expenses, except those above stated; and the Captain instituted an action in rem against the owners of the ship claiming in respect of disbursements, consisting of provisions and coals, for which latter item he had given a draft on the shipowners, which draft had been dishonoured; the Court held that the master, having notice of the charter-party, was agent for both the owners and the charterers in respect of the liabilities of each, as determined by the charter, and that therefore the owners were liable in respect of the provisions, but not in respect of the coals.1
In Morgan v. the Castlegate S. S. Co., the charter-party for the hire of the vessel stipulated that the charterers should provide and pay for coals. In the course of the voyage it became necessary to procure coals to enable the ship to prosecute the voyage and earn freight. The master, who had notice of the terms of the charter-party, obtained the coals and drew on the charterers for the value. The bill having been dishonoured the master was sued on it, and he then instituted a cause of disbursements in the Court of Admiralty against ship and freight-Held, that as the shipowner was not personally liable for the disbursements, the master 1 The Turgot, 5 Asp. M. L. C. 548, 2 L. R. (1893) A. C. 38.
had no maritime lien on the ship, and that although his claim for payment out of the freight was supported by considerations of equity, he had no lien on freight, since by the practice of the Admiralty Courts there cannot be a maritime lien on freight where there is no lien on ship in respect of the same debt.
When a master is the servant of the charterers and not of the shipowners, he has no right against the owners in respect of wages and disbursements. So where a ship was chartered under a time-charter providing that the master shall be appointed by the charterers, that the owners are to provide and pay for all provisions and wages of captain and crew, and for the necessary equipment and efficient working of the ship; that the captain is to be dismissed by the owners if he fails to give satisfaction, and that the charterers shall provide and pay for all coals, pilotages, port charges, &c., the master is the servant of the shipowners, and hence he had a right in rem for his wages and such disbursements as are necessary for the navigation of the ship, and which the charterers had not by the provisions of the charter-party undertaken to pay. If the charterers had refused to make these disbursements, without which the ship could not be navigated, the master would be entitled to charge them against the shipowners.1
Sometimes it is intended that the charterer shall liability clause. not continue responsible for the performance of the
1 The Beeswing, 5 Asp. M. L. C. 484.
charter-party after he has provided the agreed cargo; but that the shipowner shall have his remedies against the goods, and under the bills of lading only. The charterer may be, in fact, acting for other persons; or he may mean to sublet to others in need of tonnage; or may intend to ship a cargo which he has sold, or will sell when it has been shipped. Hence, clauses are frequently introduced into charter-parties, known as cesser clauses, which run somewhat as follows:-"Charterer's liability to cease when the ship is loaded, the captain having a lien upon the cargo for freight, dead freight, and demurrage."
Clauses of this kind have given rise to numerous decisions, in which the difficulty has usually been to determine whether the clause exempted the charterer from a liability already incurred at the time when the cargo was loaded, for instance, demurrage at the port of loading.
The question frequently arises whether all the charterer's liabilities and possibilities of liability under the charter-party are to disappear? or merely that no more are to accrue ?
The cases have proceeded on the interpretation that the words may be treated as covering accrued as well as subsequent liabilities; and are to be so construed where it appears from the rest of the contract that another remedy is given for the accrued claims.
The result has been a group of perplexing cases which have established that the same form of cesser
clause may have opposite effects in charters which differ in their loading clauses, and that in the same charter-party the clause is retrospective as to some claims, and not so as to others. In cach case the effect depends upon the interpretation of other parts of the contract.1
The charterer may express a limitation of his liability as to all matters and things as well before as after the shipping of the cargo, and if he does this in express terms the shipowner will be bound by it. Charters made by alleged agents without disclosing their principals, frequently contain a stipulation that the agent's liability "shall cease as soon as the cargo is shipped." When that is the case, the agent appears to be liable to the shipowner on the contract until the shipment has been made, but not after.2
In Milvain v. Perez, where by a charter-party entered into between the plaintiffs as owners of a ship, and the defendants as agents for the charterers who were persons resident in Spain, it was agreed that the ship should proceed to J., and there load in regular turn from the agents of the said charterers a full and complete cargo. It was also agreed that all liability of the defendants "in every respect and as to all matters and things, as well before and during as after the shipping of the said cargo, shall cease as soon as they have shipped the cargo.' The cargo was loaded and shipped, but not in
1 Carver, s. 645.
Oglesby v. Yglesias, 27 L. J. Q. B. 356. $30 L. J. Q. B. 90.
regular turn:-Held, in an action brought for not so loading in regular turn, that the defendants were protected by the clause above set out from liability, they having loaded and shipped the cargo before the commencement of the action. On the other hand where a charter-party contained the following clause: "This charter being concluded by the defendants for and on behalf of another party, it is agreed that all liability of the former shall cease as soon as the cargo is shipped, loading excepted, the owners and master of the vessel agreeing to rest solely on their lien on the cargo for freight, demurrage and all other claims, which lien it is hereby agreed they shall have:"-It was held, that the shipowner was entitled to recover damages from the defendants for delay in loading, as the exception extended to all liability of the latter connected with the loading, and was not satisfied merely by loading a complete cargo, and that the words 'loading excepted' did not relate merely to loading a full cargo, but to all liabilities connected with the loading.'
In Gray v. Carr, it was held that the lien for "demurrage" given by the charter-party, and preserved in the bill of lading, only related to the agreed payment for the "ten days on demurrage" allowed by the charter at the port of loading, and not to the damages payable for detention at that port beyond those demurrage days.
1 Lister v. Van Haansbergen, L. R. 1 Q. B. D. 269; 45 L. J. Q. B. 495. L. R. 6 Q. B. 522; 40 L. J. Q. B. 362.