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the ship at her first destined port, this being a condition precedent to the owner's right to recover freight, none is payable where the vessel does not arrive at the first destined port.1
If the freight is made payable on the arrival and discharge of the ship at a particular port, and the voyage is interrupted by the seizure of the ship, and on the vessel being liberated the shipowner offers to complete the voyage, the charterer's refusal to do so does not entitle the shipowner to freight, for if the owner had done all that he offered to do, still it would have amounted at most only to an endeavour on his part to prosecute and complete the voyage, and to procure as far as in him lay, the arrival and discharge of her at her destined port.
If the master abandons his vessel, as where she becomes a derelict, he loses all right to freight, or to carry on the cargo.
Where goods damaged on the voyage are landed at an intermediate port and sold without the consent of their owner, the shipowners are not entitled to freight pro rata itineris.1
If the shipowner or master contracts by the charter-party or otherwise, that the freight should be payable after the delivery of the cargo, or before the goods reach their destination, or within a
'Gibbon v. Mendez, 2 B. & A. 17.
2 Smith v. Wilson, 8 East. 414.
The Kathleen, L. R. 4 A. & E. 269; 43 L. J. Ad. 39; The Cito, L. R. 7 P. D 5; Hickie v. Rodoconachi, 28 L. J. Ex. 273.
Acatos v. Burns, L. R. 3 Ex. D. 282; Duthie v. Hilton, L. R. 4 C. P. 138,
certain fixed time after the sailing of the ship, or at a fixed time after the ship is reported inwards, the lien for freight will be destroyed.
Thus, where the freight was "to be paid on unloading and right delivery of the cargo, less advances in cash at current rate of exchange; one half of the freight to be advanced by the freighter's acceptance at three months on signing bills of lading." The charterer gave his acceptance to the agents of the ship, who thereupon indorsed upon the bill of lading, "Received on account of the within freight 3017. 17s. 6d. as per charter-party.” The charterers indorsed the bill of lading and forwarded it to the plaintiff at Alexandria, who demanded delivery of the goods on payment of the remaining half freight. The charterer having become bankrupt, the master refused to part with the goods except on payment of the whole freight; and in an action against him to recover back the sum which had been paid under protest, it was held that the defendant had no lien on the cargo for the half freight represented by the charterer's acceptance, and that the plaintiff was entitled to recover the amount.1
So, where freight was to be paid at London two months after the ship cleared at the Custom House, it was held, that the payment for hire of the ship being made quite independent of the delivery of any cargo, no question as to lien for freight by the master arose, and the charterer was entitled to
1 Tamvaco v. Simpson, L.R. 1 C.P. 363; Foster v. Colby, 28 L.J. Ex, 81.
remove his goods from the vessel upon paying all reasonable charges for such re-delivery.1
And where freight was to be paid on unloading and right delivery of the cargo in cash, two months after the vessel's inward report at the Custom House, it was held that as the freight was not payable until two months after the inward report, the shipowner had no lien on the cargo for the freight."
The stipulation in a charter-party that freight shall be paid "subject to insurance," means merely that freight is to be paid subject to deduction for premiums on insurance; but not that insurance by the owner is a condition precedent to his recovery of freight.3
The assignee of a ship, or of its freight, is entitled to all freight due after the assignment, which the assignor had at the time of the assignment the right to transfer, from the moment at which he has gone through the forms necessary to complete his title.*
The owner of the ship has a lien on the goods of the charterer or the freighter which have been put on board under a charter-party of which he has notice, as long as the owner retains and holds possession of the ship.5
Thompson v. Small, 14 L.J.C.P. 157; Arbuthnot v. Daigre, 2 M.H.C.R. 88. Alsager v. St. Katherine's Dock Co., 15 L. J. Ex. 34; Lucas v. Nockells, 4 Bing. 729; Oliver v. Muggeridge, 7 W. R. 164; Shand v. Sanderson, 28 L. J. Ex. 278.
Jackson v. Isaacson, 27 L.J. Ex. 392; Watson v. Shankland, L.R. 2 H.L. Sc. 304.
• Lindsay v. Gibbs, 22 Beav. 522; 28 L. J. Ch. 692; Morrison v. Parsons, 2 Taunt. 407; Gardner v. Cazenove, 1 H.& N. 423; Boyd v. Mangles, 3 Ex. 387. 5 Mercantile Exchange Bank v. Gladstone, L. R. 3 Ex. 233; 37 L. J. Ex. 130; Howard v. Tucker, 1 B. & Ad. 712; 9 L. J. K. B. 108; Campion v. Colvin, 3 Bing. N. C. 17; 5 L. J. C. P. N. S. 317; Tamvaco v. Simpson, L. R. 1 C. P. 363.
Plaintiffs agreed with the defendants to convey a cargo to Oporto, and if the river was in possession of an enemy, to unload at F. outside the harbour. The freight was to be 4757. if the vessel could enter Oporto, discharge, and reload there 3007. only: twenty-five days were allowed for unloading. Plaintiffs arrived at F., 2nd June, and, an enemy being in possession of the river, commenced unloading there. The vessel was detained at F. partly for the convenience of defendants, and partly by bad weather, till August 25th, and by that time had discharged seven-eighths of her cargo; the enemy then having quitted the river, she entered Oporto, where she discharged the remaining eighth of her cargo. July, the defendants' agent at Oporto gave plaintiff's a bill for the larger freight. In September the vessel obtained, at Oporto, a full cargo for England: Held, that the plaintiff's were entitled to the larger freight.1
As freight is the compensation payable for the use of the ship from the time of the shipment of the goods until they are ready to be delivered at the port of delivery, so demurrage is a compensation payable for the improper detention of the vessel by the shippers, or their agents, after the goods might have been delivered.2
Demurrage has been defined as an extended freight. The word "demurrage," no doubt pro
1 Gibbens v. Buisson, 1 Bing. N. C. 283.
2 Evans v. Forster, 1 B. & Ad. 120.
Jesson v. Solly, 4 Taunt. 52.
perly signifies the agreed additional payment (generally per day) for an allowed detention beyond a period either specified in, or to be collected from the instrument; but it also has a popular and more general meaning of compensation for undue detention, and from the whole of each charter-party containing the clause in question, must be gathered what is the proper meaning to be assigned to it.1
Bowen, L. J., in Clink v. Radford & Co., whilst accepting this definition of the word "demurrage" observes:- Demurrage' is an elastic word, it has a strict sense but it can be stretched beyond its strict sense. The word 'demurrage' therefore, having two meanings, we must look at the charter-party to see if it is used in the strict sense, or in the more popular and elastic sense."
The difference between charters in which a specific time is allowed, whether for loading or unloading, and those in which the lay-days are wholly undefined is of great importance. In the one case the time is limited without regard to the circumstances under which, when the time arrives, the contract has in fact to be performed. In the other case, the question whether the charterer has been duly diligent must be determined by reference to the conditions under which he has actually worked.
When the time is definitely fixed, or is described so as to be calculable beforehand, there is an ab
1 Lockhart v. Falk, L.R. 10 Ex. 132; Francisco v. Massey, L.R. 8 Ex. 101; 42 L. J. Ex. 75.
2 L. R. (1891) 1 Q. B. 625,