*the time at which the freight was payable, there is no difference between this and the preceding cases.

In a late case of Belcher v. Capper, the decision was that the possession of the ship had passed to the charterer, and that the owner had no lien for the stipulated hire (1).

The right may exist, if it appears from the instrument in any way that the payment is to be made in cash or bills, before or at the delivery of the cargo; or, even if it does not appear that the delivery of the cargo is to precede such payment.

On the other hand, it may distinctly appear from the charter-party that the owner has been content to trust to the personal responsibility of the merchant, and by fixing a specific term of payment, before or after the delivery, to waive his right of lien (m).

If there be a special contract for a particular time and mode of payment, and that contract is inconsistent with the right to retain the possession, it will of course defeat a claim to exercise such right (n). When the payment is to be made by bills, the right of retention continues until they are given, and would, it is conceived, revive, in case of their dishonour, before the shipowner had parted with the goods (o). But where the payment was to be made by approved bills, and the owner objected to a bill delivered to him, but afterwards negotiated it, it was held that he thereby lost the benefit of his objection, and his right to retain the goods (p).

The master being turned out of possession upon the vessel's being captured, will not deprive him of his lien for freight in case of recapture (9).

The cases also show that the goods of the charterer may be detained, not only for freight properly so called, but also for a sum agreed to be paid for the use and hire of the ship, although the goods of others laden on the ship can only be detained for the sums that they may have agreed to pay the charterer, or that may be mentioned in the bill of lading; and that the bankruptcy of the charterer, or any assignment or pledge * made by him of his goods, does not deprive the owner of his right (r).

he had voluntarily quitted possession of the ship, that would indeed have made a difference." Sed quære; the master's right of lien is the right of the owner.

(r) Faith v. East India Company, 4 B. & A. 630. In Thompson v. Trail, 2 C. & P., 334, Lord Tenterden is reported to have decided, that a master of a ship who had. refused to re-deliver goods to the owner of them, on the ground that they were shipped for a particular port to which he should convey them, was not guilty of a conversion. In that case there was no tender of the freight which had begun to be earned, or of any compensation for the trouble of getting them from the hold; it was a general ship, and the master had signed a bill of lading to a different person. But in an action of trover against the master of a vessel chartered for a gross sum payable at a future time, for goods which had been sold to the

Where it appeared that the goods had been deposited, in pursuance of an act of Parliament, in the East India Docks, or the warehouses of the East India Company, and notice given to detain the goods or their proceeds for the freight by which the lien of the owner was preserved; the Company has been, under such circumstances, considered as the agent of the owner for this purpose (8). The bankruptcy of the charterer, or any assignment or pledge made by him of his goods, does not deprive the owner of his right of lien (t).

*4. On a review of these decisions respecting the shipowner's lien for freight, it is impossible not to regret the uncertainty introduced, by their almost irreconcilable conflict, into the construction of contracts of charter-party. The Maritime Law, as far as it relates to the owners and masters of ships, is founded upon the principle that the master is the servant of the owner. As such servant, the master is entrusted with authority over the property in his charge much more extensive than that which the lessee of a vessel for a voyage or a term could have power to delegate. In our law, also, he possesses the same authority. By the master's contract with sub-freighters the owner of a chartered ship is bound; by his bottomry bond the ship itself may be pledged to an extent much beyond the interest of the charterer; to him is entrusted the certificate of registry on which the names of the proprietors and the incumbrances on their property in the ship appear; for losses occurring through his misconduct, and the misconduct of the mariners engaged by him, the owners are responsible to the extent of the value of the ship and her freight; and yet, when it becomes necessary to enforce the ordinary common-law security for that which alone makes a ship valuable to her owner-the freight earned by her-by dint of subtle distinctions between the contract of locatio rei et operarum and the contract of locatio operis, the possession of the master is made out not to be the possession of the owner. There seems, indeed, to be little ground for wonder, that in most of the cases which have been determined against the shipowner's lien for freight, and against his liability for the acts of the master, learned Judges of eminent authority have been reluctant to acquiesce in the decision.

Except in the case of a simple locatio rei (u)—the lease at a rent of a ship, to be manned and navigated by the lessee-every object which a prudent merchant and a prudent shipowner can be supposed to contemplate on entering into a contract of affreightment, would be effected by considering the master to be the servant of the owner; a relation between them which may well consist with the agency of the master *for the freighter, in his dealings with third parties. The Maritime

charterer, and shipped on his account, by the plaintiff, who still held the mate's receipt for them, and between whom and the charterer an agreement had taken place to rescind the contract of sale, the refusal of the master to re-deliver the goods on demand, and offer to pay all reasonable charges, and every lawful claim the owners might have on the goods, was held to be a wrongful conversion.

Thompson v. Small, 1 Com. B. Rep. 328.
(s) Faith v. East India Company, 4 B. &
A. 630.

(t) Faith v. East India Company; Campion v. Colvin, supra; and Small v. Moates, 9 Bing. 574.

(u) The charter-parties of the East India Company appear to be of this description. See p. 199.

*Law of France is founded, like our own, upon the doctrines of the Civil Law; and the incidents to the different descriptions of the contract of hiring are not overlooked by the distinguished jurists, whose works in the French language we are accustomed to consult. Pothier, adverting, in his Treatise on Charter-parties, to the locatio rei et operarum and the locatio operis, says, that the difference between them is purely speculative, and that in both the obligations of the master and the merchant are the same (v). The contract of charter-party to which the regulations of the ordinance of Louis the Fourteenth and of the Code de Commerce apply, is a contract by which the proprietor of a ship already manned and equipped for mercantile adventure, engages to employ her in the service of the freighter in the same way that the proprietor of a coach undertakes to carry goods or passengers from place to place(x). The services of the master and mariners are contracted for and let with the ship; but they do not cease to be the servants of the owner, to whom all the rights, and among them the right of retention for his freight, as well as all the responsibilities of ownership, attach.

The Courts of America (y), on the other hand, in their adoption of our refinements, have reaped for their mercantile communities all the uncertainty attending them; and there and here, as the law now stands, it will be useful for the shipowner to remember, that although the exercise of his right of lien may be upheld in cases of doubtful construction, an express contract is the surest and strongest ground upon which that right can rest, and that by inserting an agreement respecting it in the charter-party, the parties to it may between themselves obviate all difficulty upon the subject.

Thus, where it was expressly "agreed and understood between the parties that the ownership of the ship should remain firmly and be fully vested in the owner, and that he should at all times during the said intended voyage and service have a full and complete lien upon the lading of the ship, as well for all losses and damage which the said owner might sustain or be put to in consequence of the non-payany of the bills to be given for freight, as for all arrears of

ment of

(v) Charte-partie, p. 1, s. 5.

(x) Rogron, Code de Commerce, art.

273.

*(y) This highly vexed question, and so important in its consequences to the claim of lien, and the responsibilities of ownership, depends on the inquiry, whether the lender or hirer under a charter-party be the owner of the ship for the voyage. It is a dry matter-of-fact question, who by the charterparty has the possession, command, and navigation of the ship. If the general owner retains the same, and contracts to carry a cargo on freight for the voyage, the charterparty is a mere affreightment, sounding in covenant; and the freighter is not clothed with the character or legal responsibility of ownership. The general owner, in such a case, is entitled to the freight, and may sue the consignee on the bills of lading in

the name of the master; or he may enforce his claim by detaining the goods until payment, the law giving him a lien for freight. But where the freighter hires the possession, command, and navigation of the ship for the voyage, he becomes the owner, and is responsible for the conduct of the master and mariners; and the general owner has no lien for the freight, because he is not the carrier for the voyage. This is the principle declared and acted upon in the greatly litigated and ably discussed case of Christie v. Lewis. And it is the principle declared by the Supreme Court of the United States in Marcardier v. The Chesapeake Insurance Company, and Gracie v. Palmer, and followed generally by the Courts of Justice in this country.Kent's Com. and Mer. Law; Edin. edition, p. 135. 2 Brod and Bing. 410. 8 Cranch's Rep. 49. 8 Wheat. Rep. 605.

* freight, &c., and should have full power and authority to hold and retain the said goods until full payment of all such losses, charges, damages, and arrears of freight paid for or on account of the charterer, and which he of right ought to bear and pay according to the true intent of the charter-party," the Court of Common Pleas was of opinion that it was unnecessary, for the purpose of deciding a claim of lien set up by the shipowner, to consider whether the possession of the ship remained in him, or had passed to the charterer (z).

But even this precaution will not enable the master to assert a right of lien on goods for any greater amount of freight or demurrage than is stipulated by the bill of lading which he has signed, or by such contract between the charterer and the shipowner as may be by words of refrence incorporated with it (zz).

(z) Small v. Moates, 9 Bing. 574.

(zz) Ante, p. 207; and see Smith v. Sieveking, 3 C. L. & E., Q. B. 1000.

2. How to be computed.

3. Construction of Stipulations respecting it.

4. How regulated by Usage, in the absence of Express Stipulations.
5. When it ceases.

6. Remarks on Cases relating to it.

1. In charter-parties, clauses are usually inserted purporting that it is covenanted and agreed between the parties that a specified number of days shall be allowed for loading and unloading, and that it shall be lawful for the freighter to detain the vessel for those purposes a further specified time on payment of a daily sum. These clauses constitute a contract on the part of the freighter that he will not detain the ship for those purposes beyond the two designated periods; and if he does so detain her, he is liable to an action on the contract in the form adapted to the nature of the instrument (a).

When goods are shipped on board a general ship, words are also often introduced into the margin of the bill of lading, importing that they must be taken out of the ship within a certain time, or that in default a certain sum per diem should be paid for every day afterwards. In such cases it has been decided, that the person claiming and receiving the goods under the bill of lading is answerable for this payment.

The freighter in the former case, and in the latter the person who claims and receives the goods under the bill of lading, is liable to pay, for every day beyond the time agreed upon, the sum specified in the charter-party or bill of lading. This delay, and the payment agreed upon for it, are called demurrage; and, although, if a ship be improperly detained by the freighter or consignee of goods, the owner may have a special action for the damage resulting to him from such detention (b), demurrage properly so called arises out of the terms of some contract thus expressly entered into between the shipowner and freighter, or thus stipulated in the bill of lading by the master or owners, and adopted (c) and assumed by the consignee. Accordingly, it has been held, that the master of a ship who had undertaken, by a

(a) Where by a charter-party seventy days were to be allowed a ship which was to touch and take in goods at several ports for loading, discharging, and reloading, it was held that the word reloading limited the discharge to a time before reloading, and that therefore the limit of days did not apply to the time taken up in unloading at the end of the voyage. Sweeting v. Darthez, 23 L. J.

C. P. 131.

(b) See Horn v. Bensusan, 9 C. & P. 709. See also the observations of Lord Abinger in Kell v. Anderson, 11 M. & W. 498.

(c) Harman v. Gandolphi, Holt's N. P. 35, and Harman v. Clark, 4 Campb. 161. As to where the indebitatus count may be used, see Cropton v. Pickernell, 16 M. & W. 329.