« 이전계속 »
charter-party," gives a lien for freight at the rate named in the charter-party as against the indorsee.1
But a bond fide indorsee of a hill of lading who takes it, in the ahsence of fraud, without notice of other freight to he paid upon it, is entitled to the goods on payment of the freight expressed in the bill of lading.' To this extent Gilkison v. Middleton is a valid authority. The shipowners there being entitled to 900?., in the name of freight, by the charter-party became parties to a bill of lading expressing the freight to be no more than 196Z., and to that, therefore, their lien was confined.' And, therefore, where the freight appeared by the bill of lading to have been paid, it was not open to the shipowners as against a bond fide indorsee for value to show that in fact it had not been paid.4
A vessel belonging to a person at Liverpool was, in 1851, loaded with cotton for owner's account at New Orleans, and a bill of lading was taken from the master " to be delivered unto order or to assigns, he or they paying freight for the said cotton, Is. per bale, being owner's property when draft against same is paid, say 3590Z. with primage and average accustomed." The bill of exchange named in it was sold to the plaintiff, to whom also the bill of lading was indorsed. In May, of the same year, the owner of the ship mortgaged her with all her freight and earnings to the defendant, who, on her arrival at Liverpool, took possession and claimed of the plaintiff the current rate of freight. The plaintiff paid it under protest, in order to get the cotton, but recovered of the defendant afterwards all that he had paid in excess of the I s. per bale mentioned in the bill of lading.'
The lien which attaches on goods in a general ship for the bill of lading freight remains the same, whether the bill of lading is subsequently indorsed to a third person for valuable consideration, or the goods are in fact delivered to the original consignee.6
1 Smith v. Sieveking, 24 L. J. (Q. B.) N. S. 134, ante, p. 434; Neishn. Gra257; (in error) 5 E. & B. 589. ham, 8 E. 4 B. 505.
■ Foster u. Colby, 23 L. J. (Ex.) 81, 4 Howard v. Tucker, 1 B. & Ad.
3 H. 4 N. 705, S. C.; Mitchell v. Scaife, 712.
4 Camp. 298. * Brown v. North, 8 Exch. 1.
» GiUcison v. Middleton, 2 C. B. 6 Per Tindal, C. J., Sinall v. Montts,
Foster r. Colby. Several points to be found separately in other cases upon this question are presented together in the charter-party in Foster v. Colby,1 which on that account is deserving of consideration. A vessel lying at Liverpool was chartered for a voyage to Calcutta with cargo out and home, the return cargo to be delivered " on being paid freight in full, all port charges, pilotage, and primage, at and after the rate of 7000J. lump sum. The freight to be paid as follows:—1250/. in cash on vessel's clearing from Liverpool; 1000J. on right delivery of the outward cargo at Calcutta in rupees at the exchange of the day, for the bills in London at three months' sight; and the remainder in cash two months from the vessel's report inwards, at London or Liverpool, and after right delivery of the cargo, or under discount at 5 per cent, per annum at freighter's option . . . The master to sign bills of lading at any rate of freight required without prejudice to the charter-party . . . The owners of the ship to have an absolute lien on the cargo for all freight, dead freight, and demurrage."
The stipulated advances of money were paid at Liverpool and Calcutta, and at the latter port, after being partly loaded as a general ship for London, she received on board 1652 bags of linseed, purchased with the money of the consignees of the outward cargo, Stewart & Calrow, for account of Syers, Walker, & Co,, the freighters, but without orders from them. By the bill of lading for this linseed, it appeared to be shipped by Stewart & Calrow, deliverable to their order on payment of freight at the rate of 5s. per ton, the current rate at the time being 5l. or 51. 10s. per ton. Stewart & Calrow having drawn on Syers, Walker, & Co., for the value of the linseed, sold the bill of exchange and indorsed the bill of lading also to the purchasers, who afterwards indorsed both over to the plaintiffs, their creditors at the time for a large amount. The freighters became bankrupt, the bill of exchange was dishonoured, and the linseed was delivered into the London Docks, subject to the master's claim for freight according to
9 Bing. 574 ; and acted on in Tate r. Colby, 28 L. J. (Ex.) 81.
ston, 2 id. 294; Yates v. Mennell, 2 id. the same points were raised, and de
297; Small v. Moates, supra; Gled- cided upon the authority of this case, in
ttaucs r. Allen, 12 C. 13. 202; Foster*. Shaud r. Sanderson, 28 L. J. (Ex.) 27S. charter-party, and any right of the plaintiffs to have the goods on payment of the bill of lading freight merely.
Upon this charter-party and bill of lading, the Court were of opinion, first, that the shipowner had no lien for the freight, having stipulated that it should not be paid until two months after being reported and until after delivery of the cargo, the merchant, however, having the option of paying within the two months and thereby entitling himself to a proportionate discount; secondly, that the parties intended to stipulate for a hen so far as a lien was possible for the different matters mentioned, leaving, therefore, freight as at common law, and providing by contract for dead freight and demurrage whenever it could take effect; and thirdly, that a bond fide indorsee of the bill of lading in the absence of fraud, and without notice of other freight to be paid, was entitled to have the goods on payment of the freight expressed in the bill of lading, irrespective of the statute,1 and equally so, when considered in relation to it, the bill of lading having thereby become a written contract with the indorsee, binding in all its terms upon the shipowner.'
The effect of the clause " without prejudice to the charter- "Withont preparty," is not that the holder of the bill of lading is to pay to-party."" freight according to the charter-party, but that the fact of the master signing bills of lading at a less freight than is stipulated in their contract, shall not prejudice the shipowner's right to recover the charter-party freight from the charterer.'
Payment determines the lien, and anything accepted as Patment or
• • * • FRFI(iHT
payment, although in its nature conditional,4 such as a bill of
exchange, has the same effect;' unless there is an agreement
to the contrary. But there may be doubt about the intention
of the party in whose hand lies the bill and the lien, until he Effect of.
negotiates the one, and thereby determines the other. Thus,
where a charter-party stipulated for delivery of the cargo on
1 The Bills of Ladiug Act, 18 &. 19 * Belshaw v. Bush, 11 C. B. 191.
Vict c 111. 6 Horncastlo v. Farran, 3 B. & Aid.
5 So put, per Bramwell, B., Foster v. 497; Bunney v. Poyntz, i B. & Ad.
Colby, supra. 568; Hewison v. Guthrie, 2 Bing. N. C.
* Per Pollock, C. B. Shand v. San- 756. Chitty on Bills of Exchange, 121. dcrioa, 23 L. J. (Ex.) 278, 282.
What amounts to Payment.
Freight paid in advance cannot be recovered back.
Sectu, when a mere Loan.
payment of the freight in good and approved bills, but the owner took objections to one of the bills that were given him, and yet negotiated it, the Court held this to be an approval of the bill and a relinquishment of his lien on the goods.1
But although a bill of exchange when taken for freight, determines the lien, and suspends also the right to sue whilst the bill is running, it is only conditional payment' unless accepted as complete satisfaction.3 Yet, if the master, acting within his authority, or the owner, prefer a bill of exchange when he might have had cash, delivery of the bill to him is payment notwithstanding it is afterwards dishonoured.*
When the mode of payment is by bill of exchange, it is the master's duty to draw and present the bill for acceptance, and in that case if he refuse to draw, notwithstanding an offer to accept, this is evidence for the defendant of a good tender of the freight.5
Money advanced by way of freight, under a contract to that effect, between the parties, cannot be recovered back, although the ship be afterwards lost on the voyage,' such payment being by intention of the parties exempt as between themselves from the risk and contingency incident to freight at common law/ But a mere loan, though stipulated in the charter-party, is not such an advance; it is therefore not insurable,' and it may be recovered back. And whether it be the one or the other is a question of construction on the instrument of contract. Therefore Lord Ellenborough finding that the stipulation was for an advance "to be free from interest and commission, and the residue of such freight to be paid on delivery of the cargo," held it to be an advance by way of freight, and the rest of the Court agreed with him.' This was also the opinion of the
Court in a subsequent case, where "cash for ship's disburse- ^an n(,t instable.
ments was to be advanced to the extent of 300Z. free of interest, but subject to insurance,1 and 2j per cent, commission," since it was not an insurable interest if it was not freight.' But where the parties had insured an advance of money made under a clause at the end of the memorandum of charterparty in these words, " The captain to be supplied with cash for the ship's use," and there was nothing more in the charterparty relating to it, they did not recover it from the underwriters, as it was a mere loan and no insurable interest.3
As between the charterer and the shipowner, these stipulated advances are properly not freight,—the one party having no lien for them, though freight be earned, and the other having no protection from loss, if it is not;4 the case is obviously different between the charterer and underwriter, as to whom any advance by way of freight to the shipowner retains the incidents of freight-risk and contingency.5 Such an advance, provided it appear to be of freight, without other stipulation annexed, is viewed by the law of England as an absolute payment, exempt from all risk and contingency.'
Foreign jurists have laid down a different rule,7 and the Foreign Law as French law also expressly provides* that when freight is Fright"0630° advanced, but for reasons not imputable to the shipper is not earned, it shall be recovered back, unless there is an agreement to the contrary. The courts of the United States have in American Law several cases avowedly followed the foreign rule; * Chancellor Kent," Parker, C. J.," and Story, J.," giving it the sanction of
1 Such a stipulation, it seems, does not bind the shipowner to insure, but only to allow for the premium of insurance, Jackson r. Isaacson, 27 L. J. 392; 3H.4N. 405.
■ Hicks v. Shield, 7 E. k B. 633.
3 >tanfield v. Maitland, 4 B. &. Aid. 582.
* Ante, p. 433.
4 Hicks r. Shields, supra.
• See the judgment of Lord Ellenborough, De Silvale r. Kendall, 4 M. k SeL 37, 42.
'Pothier, Charte-partic, no. 63; 1 Valin, 661; Cleirac, Us et Cout. 42,
note 9; Straceha de Nav. 3 n. 24;
9 Ord. 1681, liv. 3, t. 3, art. 18—
• Griggs i). Austin, 3 Pick. 20; Watson v. Duykinck, 3 Johns. 335 ; Pitman v. Hooper, 3 Sumner, 50, 66; 1 Parsons, Shipping, 222, note.
10 3 Kent, Com. 226 ; and per Kent, C. J., in Watson v. Duykinck, 3 Johns. 335.
11 In Griggs v. Austin, 3 Pick. 20.
ls See Story's note to Abbott, Shipping