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 neces sary 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."

Neither can any lien 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.

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

5

6

Where there is no maritime lien on ship there can be no lien on freight in respect of the same debt.* 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

1 Ang. on Car. s. 373.

8

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.

6 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.

the bond fide holder of a bill of lading at a port of discharge, there is no power to detain goods for a lien acquired by a custom of the port of loading, the holder being ignorant of such custom, and not being bound to take notice of it.1

Even if the charter-party gives to the shipowner a lien on each part of the cargo for the whole freight. or a lien on the goods with regard to the alleged dead freight, demurrage, and damages in the nature of demurrage; such an obligation cannot be imposed upon the owners and consignees of the goods under the bill of lading unless such liability be clear ly imposed by plain words in the bill of lading?

A shipowner may be deprived of the right of lie legally incident to the contract of affreightment, by the express terms of the charter-party or bill of lading: thus, where M. chartered a ship to load a cargo at Cardiff and proceed therewith to Madras, the freight to be paid in London on unloading and right delivery of the cargo, one-third by M.'s acceptance at three months from the sailing of the ship (the same to be returned if the cargo were not duly delivered,) and the remainder by like bill at three months from the date of delivery in London of the certificate of right delivery of the cargo. The charter party provided for payment of a commission on the contract, ship lost, or not lost, and that 1507. should be advanced in cash at the port of discharge on ac count of the freight against the captain's draft on

Kirchner v. Venus, 12 Moo. P. C. C. 361.

Smith v. Sieveking, 24 L. J. Q. B. 257.

M. The cargo was loaded accordingly, a bill of lading was given for the same, and the ship sailed from Cardiff on the 8th October 1863, M. having consigned the cargo to A. & Co. who carried on business at Madras. On the same day the owners drew a bill on M. at three months for 2611. 1s. 10d. being one-third of the freight. On the 10th October 1863, the general agents in London of A. & Co., advanced to M. on A. & Co.'s account and out of their funds 7007., received as security for such advance the bill of lading blank indorsed, and forwarded the same bill to A. & Co. On the 29th October 1863, M. accepted the bill for 2617. 1s. 10d., and in the following December suspended payment. On the 14th January 1864, the ship arrived at Madras and thereupon A. & Co., as holders of the bill of lading, applied for the delivery of the cargo and offered to advance the 1507. in cash pursuant to the charterparty, but the Captain claimed to retain the cargo for the value of the dishonoured bill and the balance of freight due. Held, that the terms of the contract were at variance with the right of lien so claimed, and that it was not suspended by the bill nor revived by the freighter's insolvency.1

In Tamvaco v. Simpson, coals were shipped at Sunderland on the plaintiffs' account under a charter-party between De M. and the defendant (the owner of the vessel,) whereby and by the bill of lading they were deliverable at Alexandria, "to order or

1 Arbuthnot v. Daigre, 2 M. H. C. R. 88.

2 L. R. 1 C. P. 363.

assigns" on payment of freight as per charter-party. The charter-party also contained the following stipulations:-" The freight 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 freighters' acceptance at three months, on signing bills of lading; owner to insure the amount, and deposit with charterer the club-policy and to guarantee same." On the 31st of October 1863, De M. handed his acceptance at three months' date for one half of the freight 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." De M. indorsed the bill of lading in blank, and forwarded it to the plaintiff at Alexandria, who, on the ship's arrival there, on the 5th of January, 1861, demanded the coals on payment of the balance of the charter freight. The master, however, having received information that De M. (whose acceptance was then outstanding) had become bankrupt, refused to deliver the cargo, unless the full freight was paid or a guarantee was given for its payment. B. & Co., the plaintiff's agents, thereupon gave the required guarantee, and the coals were delivered, and the full freight ultimately paid under protest :-Held, that the defendant had no lien upon the cargo for the half-freight represented by De M.'s acceptance, and that the plaintiff was entitled to recover it back, either as damages in an action for a wrongful conversion, or as money received to his use.