necessary. Formerly charterparties frequently concluded Penalty not with a clause, imposing a penalty on the nonperformance of any of the covenants, but at present it appears not to be generally introduced, and it is considered unnecessary, as no practical good is found to accrue from its introduction, sufficient to compensate for the additional length of the instrument. Freight. A full dissertation upon the law of lien, on the Lien on Goods goods on board, for freight, or upon the law of on board for demurrage, does not come within the object of this treatise, yet a few observations upon those subjects, may be introduced here without impropriety, as a guide to the stipulations, necessary to be inserted in charterparties, respecting them. Freight The lien on goods, for payment of freight, The Lien for has long been recognized in our Courts of law, ' favourably but the covenant or agreement in a charter- considered by party to pay freight, must be worded, declaring it payable before, or upon, or at, and not goods, if the right of Unless the owners or the Courts. after the delivery of the lien is to be preserved. master divest themselves, of their right of lien, by their own actions, covenants, or agreements, the Courts of law have always favoured their right, of exercising it, and there has not been Right of exercising it (1) See Soldergreen v. Flight and another, Guildhall Sittings after Trinity Term, 1796, before Lord Kenyon, C. J. cited in Abbott on Shipping, part 3, c. 3, sec. 11, p. 258, as to the detention by the Master of a part of the merchandize, for the Freight of all that is consigned to the same person. before delivery any case hitherto decided, in which a mere custom of the Goods; has been held by the Courts to divest it; nor is Unless the Owner or Master divests Lien by the terms of the Charterparty. there any well founded reason to suppose, that the Courts would consider any custom a reasonable one, by which it should be pretended, that the owners or consignees could require the delivery of their goods before payment, or tender, of the freight, and could insist upon a period of credit for paying it. If any such custom were to exist, at any particular port, it would often operate as a great hardship, upon owners and masters of vessels, and especially of those which did not belong to the port. Unless the owner is indiscreet enough, so to contract, by the terms of the charterparty, as himself of the to part with the absolute possession or control of the vessel, to the freighter, the right of lien will still continue; nor will the introduction into it, of the words of letting to freight, or demising, as they are often called, such as the words "grants, and to freight lets," merely, make any more difference in that respect, than if the words used, were freight let. 66 agrees to grant, and to (1) Tate v. Meek, 8 Taunt. 280; Yates v. Mennell, 2 B. Moore, 297, S. C. 8 Taunt. 302; Saville and others, assignees of Gooch v. Campion, 2 Barn. and Ald. 503; Faith". The East India Company, 4 Barn. and Ald. 630; Campion v. Colvin, 3 Bing. N. C. 17, in none of which, were there any words of demise, or letting to freight; Yates and others, assignees of Ashton and others v. Railston, 8 Taunt. Rep. 293; Christie and others, assignees of Laing v. Lewis, persons for Freight on Goods of on board a And in the case of a chartered ship, the ship- Lien for owner may detain the goods of third freight, where the charterer had taken the goods third persons, on board the vessel as a general freight ship; chartered but the owner has not a lien on the goods of vessel. third persons, mentioned in the bills of lading, for all his freight, due on the charterparty; he is only entitled to a lien upon goods, put on board by the different shippers abroad, to the extent of the freight due upon each of those shipments, and he may receive the freight due from each consignee, for the conveyance of his goods; nor will it prejudice the shipowner's right of lien, against the goods of such third persons, for the freight per bills of lading, if the charterparty should be under seal(2). But the right of lien, has been held good on cotton, belonging to the charterer, which had been consigned, under peculiar circumstances to the 2 Brod. and Bing. Rep. 410, in both of which the Instrument of Charter was by deed under seal, and containing words of demise, or letting to freight. The previous decision in Hutton v. Bragg, 7 Taunt. 14, is now overruled by the above cases. (1) Paul v. Birch, 2 Atkins, 621; Mitchell v. Scaife, 4 Camp. 298; Christie and others v. Lewis, 2 Brod. and Bing. 410; Faith v. The East India Company, 4 Barn. and Ald. 630. See also Tate v. Meek, 8 Taunt. 285, in which case the Shipowner received from the different Consignees, the rates of Freight, mentioned in the respective Bills of Lading, of the goods of third persons, which were less than those stipulated for by the Charterparty. (2) Christie and others v. Lewis, 2 Brod. and Bing. Rep. 410. Lien for When the Goods and the Freight are concomitant acts. defendant, with notice of the charterparty, not only for the freight of that specific cotton, but for the whole freight under the charterparty("). When the delivery of the goods, and the paydelivery of the ment of freight by a bill, are concomitant acts, payment of the neither party is obliged to perform his part, without the other being ready to perform the correlative act(2); and where, by the charterparty a freighter covenanted, to pay part of the freight in cash, on the day the vessel should be reported inward, and the remainder of the freight and primage, by a good and approved bill, at a given date from the day on which the delivery should be completed, and the shipowner had delivered some goods, to various consignees, and received the respective freights on each of those consignments, but at a less rate than that contracted for by the charterparty, the point raised was, whether the shipowner was justified, in detaining the freighter's goods, until payment of the residue of the freight, which he had covenanted to pay by the charterparty, and it was held that the shipowner was justified; and per Gibbs, C. J. "If the whole cargo had been one bale of goods, there would have been no doubt. But the difficulty is, that the remainder of the freight, is to be paid by bills, to bear date from the day of the delivery, and the delivery may take several days. We (1) Campion v. Colvin, 3 Bing. N. C. 17. (2) Per C. J. Gibbs, in Tate v. Meek, 8 Taunt. 292. think the captain might obviate this, by landing Lien for the cargo in his own name, and tendering a bill Freight. for the whole amount, dated from that day"). which the ship The owner of a ship has not a lien for port Matters in charges, where there is no usage on the subject, respect of unless it is clear, from the terms of the charter- owner has not party that it is intended to be allowed(2); nor has a Lien. a shipowner a lien for dead freight, beyond the freight of such goods as had been brought home in her(); nor can a right of lien be enforced upon. the goods for demurrage, in a case where the charterparty does not contain a clause giving such right); nor can a lien be sustained for any breach of covenant, of which the damages are unsettled, and which therefore can only be duly rated, either by a jury or by an arbitrator(5). Whenever a charterparty is entered into, the Demurrage. number of days allowed for discharging, or loading, as the case may be, and the demurrage to be paid in case of delay, ought to be carefully provided for; and, as will be afterwards explained, they should also be inserted in the bills of lading, (1) Per C. J. Gibbs, in Tate v. Meek, 8 Taunt. 292. (2) Faith v. The East India Company, 4 Barn. & Ald. 630 & 642. (3) Phillips and others, assignees of White v. Rodie and others, 15 East, 547; Birley v. Gladstone, 3 Maule and Sel. 205; Gladstone v. Birley, 2 Merivale, 401. (4) Phillips, and others v. Rodie, 15 East, 547; Birley v. Gladstone, 3 Maule and Sel. 205; Abbott, part 3, c. 1, sec. 7, p. 191. (5) Holt on Shipping, vol. 2, p. 7. |