LIEN FOR
FREIGHT.

goods have been delivered to the consignee without obtaining the freight, unless there has been what amounts in substance to payment by the consignee. Thus, where cash has been offered, but the master has elected to take from the consignee a bill of exchange which is afterwards dishonoured, the remedy against the consignor is lost (n). The mere taking of a bill from the consignee, however, does not affect the remedy against the consignor, unless there has been an option to take either a bill or cash, and the master has, for his convenience, preferred the former (o).

We will conclude this portion of the Chapter by considering the shipowner's lien for freight,-a right which exists without any express stipulation, but which has a material bearing on the contract of affreightment.

The shipowner has, independently of contract, a lien on the goods actually carried for the freight due in respect of them (p). He has also a lien on the cargo for any sum which by the charter-party is to be paid for the hire of the ship, although it may have no relation to the quantity of goods actually carried, but is calculated only on the tonnage of the vessel (q). He has, however, no lien either at law or in equity, in respect of breaches of covenants in the charter-party other than those relating to the payment of freight for goods actually carried (r). No lien, therefore, exists, in the absence of express stipulation, for dead freight, demurrage (s), wharfage (t), or port charges (u).

The general rule is as stated above, but it often happens that the effect of the particular contract of carriage which the parties have entered into is to deprive the owners of this right, owing

(n) Tapley v. Martens, 8 T. R. 451; Christy v. Row, 1 Taunt. 300; Shepard v. De Bernales, 13 East, 565; Dommett v. Beckford, 5 B. & Ad. 521; Tobin v. Crawford, 5 M. & W. 235; 9 M. & W. 716.

(0) Marsh v. Pedder, 4 Camp. 257. In Strong v. Hart, 6 B. & C. 160, there was no evidence that cash had been tendered, yet it was held that the jury was properly directed that the consignor was discharged if the master took the bill voluntarily and for his own convenience. See also Anderson v. Hillies, 12 C. B. 499.

(p) It has been held that there is a

lien on every part of the merchandize belonging to the same person and under the same consignment, for the freight of the whole. Sodergreen v. Flight, cited 6 East, 622.

(q) Campion v. Colville, 3 B. N. C. 17; Neish v. Graham, 8 E. & B. 505.

(r) Birley v. Gladstone, 3 M. & S. 205; Gladstone v. Birley, 2 Mer. 401; Faith v. East India Company, 4 B. & A. 630.

(s) Phillips v. Rodie, 15 East, 547. (t) Bishop v. Ware, 3 Camp. 360. (u) Faith v. East India Company, ubi supra.

to the terms of the contract being inconsistent with it. Questions of considerable nicety have arisen on this point.

by reason of particular

Thus, there is usually no lien for freight which has not become Loss of lien due at the time when the goods are to be delivered. It was accordingly held that no question of lien could arise where the contracts. contract made between the shipper of the goods and the shipowner was that a gross sum for the use of the ship was to be paid within a certain period after she had cleared from the Custom House, and the shipper had insisted (there being nothing in the charter-party to prevent him) on taking out the cargo before the ship sailed (x). And where by a charter-party the ship was to deliver her cargo "on being paid freight" at a certain rate, but by a subsequent clause it was agreed that the freight was to be paid "on unloading and right delivery of the cargo, in cash, two months after the vessel's inward report," it was held, that taking these stipulations together, the intention was that the freight was not to be paid until two months after the inward report, and that the shipowner had therefore no lien (y). So where the freight is payable by the bill of lading according to the charter-party, and the charter-party fixes a certain period after the delivery of the goods for the payment, there is no lien (z). Where good and approved bills were to be given in payment of the freight, and the shipowner took a bill in payment, and although he objected to it at the time, he afterwards negotiated it, he was held to have relinquished his lien (a). But where a tonnage freight was payable partly during the voyage, and the remainder by bills at two and four months from the day on which the ship should arrive in the Thames on her return, and there was a provision in the charter-party that the ship should after her arrival take her regular turn for delivery in the Docks, the Court held that the intention of the parties obviously was that the bills should be delivered before the

(x) Thompson v. Small, 1 C. B. 328. A person who has shipped goods on a general ship cannot, however, demand them back at pleasure without payment of freight; although, by the usage of trade, the merchant may under ordinary circumstances re-demand the goods a reasonable time before the ship sails, on paying the freight which would become due, and indemnifying the master against the consequences of any bills of

lading signed for the goods. See Tindall
v. Taylor, 4 E. & B. 219.

(y) Alsager v. St. Katharine's Dock
Company, 14 M. & W. 794.

(z) Admitted in Lucas v. Nockells, 4 Bing. 729; see as to the analogous case of a shipwright who has worked on credit, ante, p. 68.

(a) Horncastle v. Farran, 3 B. & Ald. 497.

cargo, and that as they had never been delivered, the lien still existed (b).

As possession is necessary to a lien, it follows that where the owner absolutely demises the ship, and thus parts with the possession of her, and of her cargo, he can have no lien for her earnings. On this account it often becomes material to consider the construction of the charter-party; and the real question in these cases always is, whether it was the intention of the parties that the owner should part with the control over the ship for a given time, or whether the contract was the ordinary one under which the constructive possession of the ship is preserved? In each case the whole contract contained in the charter-party must be taken together (c), and the result will depend upon the particular expressions used. It is now, however, necessary, that strong and distinct terms should be used before the Courts will put a construction upon the agreement which will deprive the shipowner of his lien. In the earlier cases, the use of express terms of demise was held to afford a nearly decisive criterion of the intention to part with the possession of the ship (d). But in some of the later cases the owner's lien has been supported, notwithstanding the existence of such expressions, where in the other parts of the contract language inconsistent with that intention was found. Such, for instance, as stipulations showing that the payment of the hire was to be either precedent to, or concomitant with, the delivery of the goods (e); or providing expressly for the preservation of the lien (ƒ).

The mere use, therefore, of words of demise, although often material, does not necessarily show that the intention of the owner is to transfer the actual possession of the ship; and, on

(b) Campion v. Colvin, 3 B. N. C. 17. As to what terms introduced into the bill of lading will amount to a waiver of the lien as against the consignee, see Gilkison v. Middleton, 2 C. B., N. S. 134, Neish v. Graham, 8 E. & B. 505, and Kirchner v. Venus, 12 Moo. P. C. C. 361, where these cases were disapproved of. See also post, p. 298.

(c) Soares v. Thornton, 7 Taunt. 627; Newberry v. Colvin, 7 Bing. 190; S. C. 1 Cl. & F. 283; Belcher v. Capper, 4 M. & Gr. 502; Dean v. Hogg, 10 Bing. 345; see also post, Chap. VI., Part II., STOPPAGE IN TRANSITU.

(d) See the judgment of Tindal, C. J.,

in Belcher v. Capper, 4 M. & Gr. 541; Hutton v. Bragg, 7 Taunt. 14; Saville v. Campion, 2 B. & A. 503.

(e) Birley v. Gladstone, 3 M. & S. 205; Tate v. Meek, 8 Taunt. 280; Yates v. Meynell, ib. 302; Yates v. Ralston, ib. 293; Faith v. East India Company, 4 B. & A. 630; Christie v. Lewis, 2 B. & B. 410.

(f) Small v. Moates, 9 Bing. 574. If such a provision is inserted, the lien is preserved, although the effect of the contract may be to vest the possession in the charterer. S. C. See also Gledstanes v. Allen, 12 C. B. 202, and the cases cited, post, p. 298.

the other hand, the charter-party may have this effect, although no words of demise have been used (g). The fact of the owners appointing the master does not afford a strong presumption that they intend to retain possession of the vessel; for it is an almost invariable usage for the owners themselves, although they let out the ship upon freight to a charterer, to appoint the captain and crew; since the chartering of a vessel is not so much the chartering of the hull, as of a ship in a state fit for the purposes of mercantile adventure (h). Where a ship was chartered to the commissioners of the transport service on behalf of the Crown, the owners providing the master and crew, but the terms of the charter-party showed that the whole use of the ship was to be vested in the Crown, and that the owners were not to interfere with it, it was held, that, looking at the terms of the charter-party, coupled with the whole nature of the service, a temporary ownership passed to the Crown (i).

Where, as is not now uncommon, a ship is chartered at a lump sum, and it is intended that she shall be put up by the charterers as a general ship (the master and crew being still employed and paid by the owners) and the charter-party provides that the master shall sign bills of lading at such rates of freight as the charterers may direct, without prejudice to the charter, it is a question of difficulty, and upon which a differ-· ence of opinion has prevailed, whether the master acts, in signing the bills of lading, as the agent of the charterers or of the owner. According to the view which has been taken by the Court of Queen's Bench in some cases he acts on these occasions as the agent of the charterers (j). But, whether this be so or not, the shipowner's lien against the charterers for the charter freight, and against the indorsees of the bills of lading for the bill of lading freight, is not taken away (k). Where, however, a bill of lading of goods shipped for Sydney, stated in the margin that the freight was to be paid at the port of shipment at or within a certain time from the sailing of the ship, the vessel

(g) Newberry v. Colvin, 7 Bing. 190. (h) See the judgment in Newberry v. Colvin, ubi supra.

(i) The Trinity House v. Clark, 4 M. & S. 228. See further as to what terms show an intention to part with the pos. session of the ship, Fletcher v. Braddick, 2 N. R. 182; Parish v. Crawford, 2 Str. 1251; Vallejo v. Wheeler, 1 Cowp. 143; Dean v. Hogg, 10 Bing. 351; Reeve v.

Davis, 1 A. & E. 312; Fenton v. Dublin Steam Packet Company, 8 A. & E. 835; and post, Chap. IX., COLLISION.

(j) See Marquand v. Banner, 6 E. & B. 232; the judgment in Schuster v. M'Kellar, 7 E. & B. 704; Gilkison v. Middleton, 2 C. B., N. S. 134; and Neish v. Graham, 8 E. & B. 565.

(k) See the cases cited in the last

note.

To what goods it extends.

For what amount of freight it ex. ists.

lost or not lost, it was held in the Privy Council that this sum, although called freight, was really only money paid for taking the goods on board and undertaking to carry them, and that the shipowner had no right of lien in respect of the goods, by reason of the money being unpaid; but that the master was bound to deliver them to the assignee of the bill of lading, although they were deliverable by its terms to the shipper's order or assigns," he or they paying freight for the goods as per margin" (1).

The lien is not lost by the forcible removal of the master after a capture of the ship; thus, where a ship was captured and the master was taken out, and afterwards she was recaptured, it was held that this removal from possession made no difference, and that the shipowner received the ship on her arrival as trustee for the master, and consequently that his lien for freight still existed (m).

Where a sum, regulated by the tonnage of the ship, was payable by the charterer for her use, it was considered that the lien was not confined to the charterer's goods, but that it extended also over goods consigned to others (n). Where goods were put on board, which had been purchased on account of the charterer, but as he was indebted to the persons who shipped them they were consigned to the agents of the shippers, it was held, that as between the owner of the ship and the agents, the goods must be considered as the goods of the charterer, and liable to his lien for the freight due under the charterparty (o).

This lien exists as against sub-freighters to the extent of the freight they have contracted to pay, although the ship be employed by the freighter as a general ship; but where the bills of lading mention a less rate of freight than the charter-party the owner can only retain the goods, as against sub-freighters who have no notice of the charter, for the freight named in their bills of lading (p).

(1) Kirchner v. Venus, 12 Moo. P. C. C. 361, where Gilkison v. Middleton and Neish v. Graham were disapproved of so far as these decisions dealt with this question, and the earlier case of How v. Kirchner, 11 Moo. P. C. C. 21, was upheld.

(m) Ex parte Cheesman, 2 Eden, 181.

(n) Campion v. Colvin, 3 B. N. C. 17. (0) Faith v. East India Company, 4 B. & A. 630.

(p) Faith v. East India Company, ubi supra; Mitchell v. Scaife, 4 Camp. 298; Paul v. Birch, 2 Atk. 261; see also Mitchenson v. Begbie, 6 Bing. 190; Zwilchenbart v. Henderson, 9 Ex. 722;