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quite clear. The shipowner can hold the cargo for the whole of the arrears of the chartered freight. If the charterer is the holder of the bill of lading, and so himself claims the goods, the right of the shipowner is beyond question. The charterer has bound himself by express contract, and he can have no possible claim to receive his goods, until he has freed them from the lien. It is, however, to a certain extent immaterial whether or not the charterer holds the bill of lading. He may consign the cargo to correspondents under advances against the goods, but the lien remains for the whole chartered freight. In the case of Gledstanes v. Allen,1 S. chartered a ship to proceed to Penang and back to London, for a lump sum of 2,8007. She loaded a cargo at Penang belonging to the charterers, for which the master not improperly signed bills of lading, making freight payable of about 1,9007. The goods were consigned for sale to G. & Co. who were under a general engagement to honour bills drawn upon them by S. & Co., upon the faith of consignments to be made to meet them and who were at the time on their advances, creditors of G. & Co., to the extent of some 10,000l. It was held that the shipowner had a lien for the whole of the 2,8007., on the ground that "so long as the goods remain the property of the charterers or their agents they were liable for the lump freight."
Neither is it material that the charterer is neither shipper nor consignee, so long as he is owner of the
112 C. B. 202.
2 See Kern v. Deslandes, 10 C. B. N. S. 205,
cargo. Where, therefore, goods which had been purchased on account of the charterer had been put on board by third parties to whom the charterer was indebted, and for that reason they were consigned to agents of the shippers, the shipowner, it was held, could hold the goods until he was paid the freight due under the charter-party, though the bills of lading freight was much less.1 In many cases, however, the charterer has either parted with the goods or he never owned them at all. Then the rights of third parties intervene, and the lien may be much modified. It is possible that where the bill of lading has been indorsed by the charterer to the person claiming the goods, the indorsee may be made liable for the whole charter freight, and the lien exercised to the full extent. For this to be the case, however, the indorsee (unless he can be identified with the charterer, as in Kern t. Deslandes, where the property had not in fact passed to the indorsee) must be bound by the bill of lading clearly affixing to the goods a lien for the chartered freight. Practically this is equivalent to saying that the holder of the bill of lading, not a party to the charter-party himself as through a principal, is liable to pay the freight specified in that document and no more. This has been a well understood rule of law for many years. One of the first reported cases on the point is Paul v. Birch,3 decided in 1743. "There two persons, who, subsequently be
Faith v. East India Co., 4 B. & A. 630; Campion v. Colvin, 3 Bing. N. C. 17. 2 10 C. B. N. S. 205. 32 Atk. 621.
came bankrupt, hired a ship for a payment at the rate of 487. a month, and executed a charter-party by which the goods to be put on board were made liable to the shipowner," goods were shipped by certain merchants who contracted to pay 97. a ton for the carriage. The shipowner being unable to get his money from the bankrupts attempted to make the shippers liable, insisting "that as the bankrupts are not able to satisfy him the whole hire of the ship, the merchants are liable to do it in respect of their goods which are bound by the charterparty." Lord Chancellor Hardwicke, however, held that the merchants were only to pay the freight agreed by them. Mitchell v. Scaife,' only differed inasmuch as the chartered freight was a lump sum instead of a monthly payment, and the decision of Lord Ellenborough was to the same effect. This principle has been carried out in many cases of very varied circumstances. For instance, in Brown v. North, a cargo of cotton was bought on account of the owner of the ship in which it was brought over to this country. The bill of lading made the cargo deliverable on payment of a nominal freight of 1s. a bale. The ship passed into the hands of the mortgagees who claimed payment from the holders of the bill of lading of the current freight, but the Court of Exchequer held that no more than the bill of lading freight could rightfully be claimed. Howard v. Tucker, is even a stronger case; there the bill of lading contained an acknowledgment 1 4 Camp. 298. 28 Ex. 1; 22 L. J. Ex. 49.
31 B. & Ad. 712,
that the freight had been paid. This was a mistake: but the cargo having been sold in transit, the assignee was held entitled to the cargo without paying any freight at all. The House of Lords, in Keith v. Burrows, unhesitatingly assented to the doctrine that even though the bill of lading freight be obviously fictitious and nominal, the goods cannot be held for more against the bona fide indorsee for value. It never seems to have been disputed that the shipowner can hold the goods to the extent of the bill of lading freight. It seems hardly necessary to say that where the vessel has been put up by the charterer as a general ship, the same rule holds good. Whatever the terms of the charter-party, the cargo can be held for the freight made payable under the bill of lading, no more and no less.
If the ship is disabled, or the voyage is abandoned by the master without transhipping the goods as agent of the shipowner, or forwarding the same to their destination, freight not having been earned, there will be no lien on the goods.
A sum of money payable in advance, though described in the bill of lading as freight, does not acquire its legal character, nor do its legal incidents attach to it, nor has the master any lien on the goods for such sum.2
Neither can any licn be claimed if the shipowner stipulates that the freight shall not be paid until after the delivery of the cargo.3
1 L. R. 2 App. Cas. 636.
Kirchner v. Venus, 12 Moo. P. C. C. 361; 7 W. R. 456; How v. Kirchner, 11 Moo. P. C. C. 21; 6 W. R. 198; Blakey v. Dixon, 2 B. & P. 321.
3 Foster v. Colby, 28 L. J. Ex. 81,
If the goods, even of the same owner, are sent in the same ship, under different contracts to carry with a different terminus in each, no lien attaches for freight under one contract upon goods shipped under the other.1
Where a master in order to preserve cargo, takes measures such as a wise and prudent man would think most conducive to the benefit of all concerned, he has a lien on the cargo for the expenses so incurred.2
The Merchant Shipping Act, 1889, does not give the master of a ship a maritime lien on ship for disbursements for which he has no authority to pledge the shipowner's credit.3
Where there is no maritime lien on ship there can be no lien on freight in respect of the same debt.1 In the absence of express agreement the shipowner and master have no lien on the goods for demurrage, or for wharfage, or for pilotage, or port charges, or for unliquidated damages for short loading, which have been contracted for in the charter-party under the term dead freight, or for unliquidated damages in respect of breaches of covenants contained in the charter-party; and as against
2 Cargo ex Argos, L. R. 5 P. C. 134; 42 L. J. Ad. 49.
3 Morgan v. Castlegate S. S. Co., L. R. (1893) A. C. 38; See The Mary Ann, L. R. 1 A. & E. 8; The Sara, L. R. 14 App. Cas. 209; The Turgot, L. R. 11 P. D. 21.
Morgan v. Castlegate S. S. Co., L. R. (1893) A. C. 38; 62 L.J.P.C. 17. Phillips v. Rodie, 15 East. 547; Gray v. Carr., L. R. 6 Q. B. 537; 40 L. J. Q. B. 257.
Bishop v. Ware, 3 Camp. 360.
7 Faith v. East India Co., 4 B. & A. 630.
Gray v. Carr., L. R. 6 Q. B. 523; McLean v. Fleming, L. R. 2 II. L.Sc. 128. Faith v. East India Co., 4 B. & A. 630.