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to that freight, but to the shipowners' lien for a balance due to him under the charter-party; whether possession of the ship was by the charter-party completely out of the shipowner and vested in the charterer or not.1
If the consignee of a cargo charters a vessel for the shipment of it and properly incurs expenses in relation thereto, he is entitled to a lien on the cargo, and the proceeds arising from a sale of it. If a person other than the consignee has advanced money for the shipment of the cargo, with the consent of the principal, he is entitled to a lien on the proceeds, if he can stop them before they come to the hands of the shipper.2
Lien on cargo
When, by the terms of a charter-party, a lien upon the cargo is given to the shipowners for "dead freight. freight," and the charter-party is recited in the bill. of lading, it is a question whether the shippers can exercise the lien against all parties interested for freight which should have been earned on cargo short-shipped. It is generally believed that damages for short loading are synonymous with "dead freight;" this is not altogether a safe assertion. Before the case of McLean v. Fleming3 was decided in the House of Lords, in 1871, the term "dead freight" had been frequently defined by the judges as denoting an agreed sum to be paid in respect of space not filled according to charter-party, in the
1 Small v. Moates, 9 Bing. 574.
2 Young v. Neill, 9 L. T. 9.
L. R. 2 H. L. Sc. 128,
event of the freighters not loading a full cargo. For this fixed sum, and for no other, it was said an absolute lien would be given, if a lien for dead freight was stipulated for, and the charter-party, or this term of the charter-party, was recited in the bill of i lading. Unliquidated damages for short loading were not considered to be covered by the words "dead freight." Whether or not the judgment in McLean v. Fleming has made any alteration in the law, is a question which has not only puzzled the shipping and commercial public, but it has produced also a considerable divergence of opinion among Her Majesty's Judges. The action in which this judicial difference was chiefly shown was that of Grey v. Carr, tried in the Exchequer Chamber, in the same year 1871. How the respective judg ments in these cases are to be reconciled is a matter of extreme difficulty. The material facts in McLean v. Fleming, are as follows:-McLean & Hope, merchants of Edinburgh, purchased 701 tons of bones of a merchant at Constantinople, and through an agent chartered a vessel belonging to Fleming to carry the bones to the United Kingdom. An "absolute lien on the cargo" was given, not only for actual freight, but for "dead freight." The freight was Bills of lading were signed for the whole 701 tons, but only 386 tons were shipped, the vessel being able to carry in fact 210 tons more. On the arrival of the vessel at her port of discharge (Aberdeen) the master refused to deliver to McLean
to be 35s. a ton.
1 L. R. 6 Q. B. 522.
L. R. 2 H. L. Sc. 128,
& Hope unless he was paid freight for the 386 tons carried and "dead freight," i.e. a proportionate sum for the 210 tons not shipped but for which there was room in the vessel. Other questions of fact and law arose, but the question of law as to "dead freight," arising on the deficiency of the cargo is the only one to which it is necessary to refer. The House of Lords unanimously pronounced in favor of the shipowner, the respondent, Fleming, Lord Hatherly and Lord Chelmsford both adopting an old definition by Lord Ellenborough, pointing as they considered to the effect that "dead freight" was "unliquidated compensation for loss of freight generally." generally." Lord Colonsay held, that "dead freight' was the only expression we have for the claim which arises in consequence of the failure to furnish a full cargo. While Lord Westbury considered that the charterparty gave the shipowner a right to a reasonable sum, that is unliquidated damages, by way of compensation for 'dead freight.' In the face of these expressed opinions, if this case stood alone, there would be great difficulty in coming to any other conclusion than that a lien for 'dead freight,' must now be held to give generally a lien for any damages sustained by reason of short shipment; a lien, indeed, which could be exercised against any one who had notice of the term in the charter-party, and even if the damages were wholly undetermined and doubtful in amount. Previous, however, to the decision of this action the case of 'Gray v. Carr, "
1 L. R. 6 Q. B. 522.
in which arose apparently precisely the same point of law, was argued before six judges in the Exchequer Chamber; judgment had been reserved and was delivered subsequent to the House of Lords' decision in McLean v. Fleming. The material facts in Gray v. Carr were these:-A vessel belonging to the plaintiff was chartered to proceed to Sulina and there load a full cargo of staves, and deliver the same at London on freight being paid at 8s. per (100) hundred, "the owners to have an absolute lien on the cargo for all freight, dead freight, &c.," a large quantity of oak staves were shipped but not a full cargo. In the bills of lading the charter-party was referred to, freight being made payable, "and all other conditions as per aforesaid charter-party." On the ship's arrival in London the plaintiffs claimed a lien on the cargo for, amongst other things, some two or three hundred pounds "as dead freight for the cargo short shipped" and claimed to exercise this lien against the defendants, who were the consignees named in the bills of lading and owners of the staves. The circumstances of the two cases are very similar, and the two cases are, as far as this point of law is concerned, most difficult to distinguish. Four judges, however, out of the six, who delivered judgments while admitting that the authority of McLean v. Fleming' was, if applicable, binding upon them, yet decided that no lien was given for damages for the short loading under the term "dead freight," to the plaintiffs, shipowners,
against the defendant consignees. The other two judges, Bramwell, B., and Cleasby, B., either considered that McLean v. Fleming was directly in point, or came to the conclusion independently that the lien was given. Of the judgments of the majority that of Brett, J., adopted by Willes, J., and approved by Kelly, C. B., and Channel, B., is the most important as affording an explanation of the decision in McLean v. Fleming. In that case said Brett, J., it was pointed out that "the damages for not loading a full cargo were in point of fact ascertained, because they would be the specified amount per ton upon the quantity that was really ascertained, and, if that were so, that would properly be dead freight within the ordinary meaning of the term." A second point of distinction which Brett, J., drew was that in the House of Lords' case the action was between the charterer and the shipowner, and not between consignee and shipowner. As to the first, Lord Chelmsford alone in the House of Lords suggested that in the case before their Lordships the damages were fixed, and he distinctly gave his judgment irrespective of this fact. Whether the amount of the shipowner's damages is to be regarded as ascertained or not, I am of opinion that the charter-party gives him a lien for his claim on account of the deficient cargo.' As to the second point, if goods are shipped upon a bill of lading which recites the contract between the charterer and shipowner, the person claiming under the bill of lading, should, by every principle of