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Salvage in case of
law, be in no better position as against the shipowner than the charterer would have been, so far as regards the lien on the cargo. The lien is given by the contract of charter, and the goods are shipped with full knowledge of the contract. However this may be, it is not permissible to ignore the judgment in Gray v. Carr; and until over-ruled, effect must be given to it, as well as to that of McLean v. Fleming. There is little doubt, however, that the judgment of the Exchequer Chamber will be confined within strict limits; it will only be recognised where a case comes unmistakably within its authority. Looking, therefore, at both cases, it follows that no lien for damages for short loading can be exercised against the consignees if the amount of such damages is in any way doubtful. If, on the other hand, the damages have been or can at once be ascertained before or on arrival at the port of discharge, the lien can be exercised against the consignee. Where, however, the person claiming the cargo is also charterer, the licn can be put in force against him, however undefined the damages for short shipment may be."2
The charterers of a ship are not entitled to share in the salvage earned by such ship, unless there be express terms in the charter-party, giving the charterer the right to control salvage and the benefit of any salvage if performed.3
But, where the charterer of the salving ship is
1 L. R. 2 II. L. Sc. 128.
2 M. M. N. Vol. 7, 165.
3 The Alfen, Swab. 189; The Waterloo, 2 Dods. 443.
pro hac vice the owner of the ship, and has to bear all expenses incidental to running her, to pay the wages of the crew, and in case of damage to repair her, the charterer (and not the owner,) the master and the crew are entitled to salvage.1
And if the salving ship is chartered, and the charter-party is special in form and amounts to a demise of the ship, and provides, that the charterer shall appoint his own master and crew, then, as such charterer is regarded as the temporary owner of such ship, salvage is not due to such charterer for services rendered by such ship to another ship owned by the charterer.2
The owners of a ship rendering salvage services, who are also the charterers of the ship receiving such services, are not debarred from claiming salvage reward, unless the effect of the charter-party has been to divest the owners of the possession and control of the salved ship, and to transfer the same for the time to the charterers.3
Charter-partics contain various clauses as to the Adjustment of adjustment of general average; in some it is stipulated that "any claim of average is to be settled in London, according to the custom at Lloyds;" or "according to the custom at Lloyds or York Antwerp Rules, 1890;" "according to bills of lading;" in others "average (if any) is to be settled in Lon
The Maria Jane, 14 Jur. 857; The Alfen, Swab. 189; The Collier, L.R.
1 A. & E. 83; The Scout, L. R. 3 A. & E. 514; 41 L. J. Ad. 42.
2 The Maria Jane, 14 Jur. 857; The Alfen, Swab. 189; The Collier, L.R. 1 A. & E. 83.
3 The Collier, L. R. 1 A. & E. 83.
don according to British Custom and Law," or “in case of average, the same to be settled in England, according to York and Antwerp Rules, 1890."
"All loss, which arises in consequence of extraordinary sacrifices made, or expenses incurred, for the preservation of the ship and cargo, comes within gencral average, and must be borne proportionately by all who are interested."
In Stewart v. W. I. & Pacific S. S. Co.,2 it was held, without determining whether the loss was according to the general law of England, that the words "British Custom" in the bill of lading must be taken to mean the practice of British average adjusters, so that the claim for general average was expressly excluded.
In the absence of any express stipulation in the charter-party, the adjustment is generally made at the place of the ship's destination. In Simonds v. White, it was laid down "that there was one point upon which the laws of all Maritime States were agreed, namely, that the place at which a general average should be adjusted was the place of the ship's destination or delivery of the cargo. All agreed likewise in holding that the master was not compellable to part with the possession of the goods, until the sum contributable for them should be either paid or secured to his satisfaction."
Birkley v. Presgrave, 1 East. 220; Covington v. Roberts, 2 B. & P. (N.R.) 379; Job v. Langton, 6 E. & B. 779; Svendsen v. Wallace, L. R. 13 Q. B. D. 73; Cargo ex "Galam," 33 L. J. Ad. 102.
2 L. R. 8 Q. B. 362; 42 L. J. Q. B. 191.
32B. & C. 805; Svensden v. Wallace, L.R. 10 App. Cas. 404; 54 L.J.Q.B.497,
The adjustment of a general average at the port of discharge, according to the law prevailing there, is binding upon the shipowner and the merchant, as they must be taken to have assented to adjustment being made at the usual and proper place, and, as a consequence, according to the law of that place.1
This rule only applies where the voyage is completed by the ship arriving with her cargo at the port of destination; when this happens to be a foreign port, the general average loss is adjusted there according to the law and usage of the country to which such foreign port belongs; and the adjustment so made is called a foreign adjustment."
If owing to sea peril, the voyage is broken up, and the ship and cargo part company at some intermediate point, a different rule is applicable.3
A shipowner who has a lien upon cargo in respect of a general average contribution, may insist upon. payment in money from the consignee, and is not bound to take security before delivery of the goods; but the consignee, if the shipowner has demanded payment before delivery of the goods, must either pay the amount demanded, or at his own risk tender the right amount of his contribution; and to ascertain this he is entitled to proper information from the shipowner as to the value of the ship or other consignments. Where no question of tender is
1 Lloyd v. Guibert, L.R. 1 Q.B. 126; Arnould on M.I., 6th Ed. Vol. 2, 910, 2 Arnould on M. I. 6th Ed. Vol. 2, 910.
Lowndes on G. A., 4th Ed., 251,
raised, but the shipowner insists upon security being given, the question is whether the terms imposed are reasonable.1
Where the clause that average is to be adjusted according to the York-Antwerp Rules, 1890, is inserted in the charter-party, any adjustment of general average affecting the goods mentioned in the bill of lading, would under this contract have to be made in accordance with these rules.
But where there are several consignees and several bills of lading, some of which do not contain the above clause, then as regards the goods covered by the latter, the adjustment will be made in conformity with the law of Great Britain, whilst those goods covered by the clause will be governed by the York-Antwerp Rules.
The cancelling clause in the charter-party that "the charterers have the option of cancelling, should the vessel not arrive at her first loading port, and be ready to load within a specified number of days,' makes the contract voidable at the option of the charterer upon the non-performance of what amounts to a condition precedent, and whether there has been a breach of this condition which would justify the charterer in exercising the option given him of cancelling the contract, must depend upon a consideration of the several clauses in the charterparty, and the facts and circumstances attending each particular case.2
Huth v. Lamport, L. R. 16 Q. B. D. 442, 735; 55 L. J. Q. B. 239. 2 Smith v. Dart, 54 L. J. Q. B. 121,