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,

1 L. R. 2. H. L. Sc. 128.

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

Salvage in

case of

chartered

vessel.

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.1 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 H. L. Sc. 128.

M. M. N. Vol. 7, 165.

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

average.

Charter-parties 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

1 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."

991

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.

3

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."

1

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. 401; 54 L.J.Q.B.497,