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master was entitled to be paid freight each day for the quantity delivered, for his lien would be given up on delivery of each bag.
Such right, however, extends to the charges for freight only, and not to those for wharfage,1 nor does it exist except in those cases where the master of the vessel has a power to receive the freight. He has no prospective lien thereupon, so as to insist upon payment to himself instead of the owner, although a payment to him in the absence of any notice by the owner to the charterer to withhold it, will be a good and valid payment.2
In England, if goods are placed in the West India or East India Company's dock warehouses, the shipmaster may give notice to those bodies to detain them until the freight is paid."
Section 68, 25 & 26 Vict. c. 63, provides that, "if the shipowner gives to the warehouse owner notice in writing that the goods are to remain subject to a lien for freight or other charges payable to the shipowner to an amount to be mentioned in such notice, the goods so landed shall, in the hands of the warehouse owner, continue liable to the same lien, if any, for such charges as they were subject to before the landing thereof;" and under this section it has been held, that a master who wilfully inserts in a notice a sum in excess of that for which he has a lien, is guilty of a wrongful detention of goods, and is liable in an action for a breach of duty.* 1 Bishop v. Ware, 3 Camp. 360.
Atkinson v. Cotesworth, 3 B. & C. 649.
3 Faith v. The East India Co., 4 B. & A. 630; Horncastle v. Farran, 3 B. & A. 497.
• Miebrodt v. Fitz Simon, L. R. 6 P. C. 306; 44 L. J. Ad. 25,
Certain goods were shipped on board the defendants' ship under a bill of lading by which they were made deliverable at the port of discharge to the plaintiffs, the consignees, the freight to be payable on delivery at the rate of 22s. 6d. per ton, and all other expenses were to be borne by the receivers, "and other conditions as per charter-party." The charter-party, which provided for payment of freight at the rate of 17. 11s. 3d. per ton, contained a clause giving the shipowner "an absolute lien on the cargo for freight, dead freight, demurrage, lighterage at port of discharge and average." There was a further clause under which the captain was to sign bills of lading at any rate of freight, "but should the total freight as per bills of lading be under the amount estimated to be earned by this charter, the captain to demand payment of any difference in advance." When the ship arrived at the port of discharge the shipowner claimed payment of the freight specified in the charter-party, and the plaintiffs, the consignees, in order to obtain delivery of the cargo which had been detained by the defendant under sections 193 and 194 of the Mersey Docks Acts Consolidation Act, 1858, were compelled to pay the difference between the freight specified in the bill of lading and the charter-party freight. In an action to recover the amount so paid,-held, that the shipowner had no right of lien for the charterparty freight, inasmuch as the clause in the charterparty as to the payment of freight was inconsistent with the contract as to the payment of freight con
tained in the bill of lading, and therefore could not be incorporated into the bill of lading, and that the plaintiffs were only liable for the amount of freight specified in the bill of lading.'
In bags of linseed, the Court held that the lien of a vessel for freight depends upon possession, and is lost by delivery; but this important qualification of the rule is thus stated: "It is frequently understood between the parties, that transferring the goods from the ship to the warehouses shall not be regarded as a waiver of the lien, and that the shipowner reserves the right to proceed in rem to enforce it, if the freight is not paid; and if it appears by the evidence that such an understanding did exist between the parties, before or at the time the cargo was placed in the hands of the consignee, or if such an understanding is plainly to be inferred from the established local usage of the port, a Court of Admiralty will regard the transaction as a deposit of the goods, for the time, in the warehouse and not as an absolute delivery; and on that ground will consider the shipowner as still constructively in possession, so far as to preserve his lien and his remedy in rem."
Where by the terms of the charter-party the cargo is to be delivered before payment of freight no lien attaches, and where by the charter-party the freight is made payable at a fixed time after
1 Gardner v. Trechmann, L. R. 15 Q.B.D.154; 54 L.J.Q.B. 515.
the vessel has cleared from the Custom House there can be no lien if the vessel is prevented from proceeding with the cargo though the freight stipulated for is still payable, notwithstanding the goods are not carried on the voyage by reason of some act of the charterer himself, who, prevents them from being carried. In the case of Alsager v. The St. Katherine's Dock Company, the charter-party stipulated that the ship should proceed from London to Bombay and being there loaded, should proceed to London, and discharge in any dock the freighters might appoint, and deliver her cargo "on being paid freight at and after the rate of 47. per ton," &c. By a subsequent clause it was stipulated that the 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:"-Held, that upon the construction of these stipulations taken together, the freight was not payable until two months after the inward report; and the shipowner had not, after the cargo was discharged pursuant to the charter-party, any lien thereon for the freight.
Where goods are not required to be landed at any particular dock and the common practice is to land them at a public wharf, and direct the wharfinger not to part with them until the charges upon them are paid, in such case the wharfinger becomes the ship-master's agent, and the goods remain constructively in the possession of the latter.3
1 Thompson v. Small, 14 L. J. C. P. 157.
2 14 M. & W. 794; 15 L. J. Ex. 34.
Where a ship is chartered, but the shipowner and master are still legally in possession of it, they have a lien against the charterer, and all persons claiming through him, on all goods shipped by the charterer for the sum which is to be paid for the hire of the ship; such possession is necessary, for a person who has not in the law the possession of the goods, cannot have a lien on them' unless such right has been reserved by express agreement in the charter-party or otherwise.2
Where the shipowner is a vendor of the cargo in his ship with a lien for the unpaid purchase-money, and the cargo is delivered without payment of the balance of the purchase-money which is treated as freight, he may sue on an implied contract to discharge the lien by payment of the purchase-money which remains owing.3
Where a vessel, is chartered on time for a certain payment to be made by instalments, one of the terms of the charter-party being "that the owners shall have a lien upon all cargo and sub-freight for arrears of hire,” or a similar condition, and the payment gets in arrears, and the shipowner desires to exercise the powers of lien given to him. The question arises as to the extent to which he can legally put in force his lien. This depends entirely upon the particular circumstances. Where the charterer himself is the owner of the cargo the case is
Saville v. Campion, 2 B. & Ald. 503; Tate v. Meek, 8 Taunt. 280.
2 Small v. Moates, 9 Bing. 574; Faith v. East India Co., 4 B. & A. 630. 3 Swann v. Barber, L. R. 5 Ex. D. 130; 49 L. J. Ex. 253.