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 cargo, and that as they had never been delivered, the lien still existed. essential to The shipowner loses his lien if he delivers the cargo. He is Possession therefore entitled to refuse to deliver unless the freight is paid. lien. The delivery of the cargo and the payment of freight are concurrent acts, and the master as he delivers the cargo is entitled to demand the payment of a proportional part of the freight (e). 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 (ƒ). demise of the As possession is necessary to a lien at common law, it follows Effect of a that where the owner absolutely demises the ship, and thus parts ship. 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 charterparty must be taken together (g), 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 (e) 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. 394. (f) Ex parte Cheeseman, 2 Eden, 181. (g) 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. To what goods ship (h). But in some of the later cases the owner's lien has been supported, notwithstanding 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 (i); or providing expressly for the preservation of the lien (j). 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 the other hand, the charter-party may have this effect, although no words of demise have been used (k). 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 (7). 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 charterparty, coupled with the whole nature of the service, a temporary ownership passed to the Crown (m). The shipowner's lien extends to every part of the merchandize lien extends. belonging to the same person and under the same consignment, (h) 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. (i) Birley v. Gladstone, 3 M. & S.205; Tate v. Meck, 8 Taunt. 280; Yates v. Meynell, ib. 302; Yates v. Railston, ib. 293; Faith v. East India Company, 4 B. & A. 630; Christie v. Lewis, 2 B. & B. 410. (j) 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, pp. 393, 394. The words "without prejudice to the char ter-party" do not preserve the lien. Shand v. Sanderson, 4 H. & N. 381. (k) Newberry v. Colvin, 7 Bing. 190. (See the judgment in Newberry v. Colvin, ubi supra. (m) The Trinity House v. Clark, 4 M. & S. 228. See further as to what terms show an intention to part with the possession 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; Meiklereid v. West, 1 Q. B. D. 428; Omoa Coal, &c. Company v. Huntley, 2 C. P. D. 464. for the freight of the whole (n); and where a sum, regulated by the tonnage of the ship, is payable by the charterer for her use, the lien is not confined to the charterer's goods, but it extends also over goods consigned to others (o). 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 charter-party (p). Where a ship chartered at a lump sum is put up as a general ship and bills of lading are signed at a rate different from the chartered freight, the shipowner has a right of lien against the charterers for the charter freight, and against the indorsees of the bills of lading for the bill of lading freight (q). amount of The lien exists as against sub-freighters to the extent of the For what freight they have contracted to pay, although the ship be em- freight it ployed by the freighter as a general ship; but where the bills of exists. 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 (r). Where, however, the holders of the bills of lading of part of the goods were only the correspondents of the charterers, under advance against the goods, and were not in the position of bonâ fide indorsees for value of the bills of lading, and the charter provided for the payment of a lump freight, and that the master might sign bills of lading at any rate of freight without prejudice to the charter, it was held that the shipowners had, against such (n) Lodergreen v. Flight, cited 6 East, 622. (0) Campion v. Colvin, 3 B. N. C. 17. (p) Faith v. East India Company, 4 B. & A. 630. (9) 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; and per Lord Chelmsford, in M'Lean v. Fleming, L. R., 2 Sc. & D. 133; and see supra, p. 389. (r) 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; Lien does not exist for payment not in indorsees, a lien upon the goods represented by the bills of lading for the entire lump freight (s). In a later case, a charter-party was negotiated for a charterer by an agent. The charterer engaged to pay a lump freight for a voyage from London to the coast of Africa and back, "payable on correct delivery of return cargo, in cash, less advances in Africa and two months' discount," and the charter contained also the following stipulation," the master to sign bills of lading at any rate of freight, without prejudice to this charter-party." The ship sailed to Africa, discharged her cargo, and afterwards returned to London under the charter. The charterer shipped on the return voyage some oil on his own account for London, for which the master signed a bill of lading, making it deliverable to the agent or assigns, "he or they paying freight for the said goods as usual." The charterer indorsed this bill of lading to the agent in part payment of advances made by him on the purchase of the outward cargo. It was held, under these circumstances, that the agent must stand on the charterer's title, both because he was his agent, and because he had notice of the terms of the charter, and that the shipowner was entitled to a lien on the oil for the entire charter freight (t). Where a bill of lading stated in the margin that the freight was to be paid at the port of shipment at or within a certhe nature of tain time from the sailing of the ship, the vessel lost or not freight. 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 orders or assigns, "he or they paying freight for the goods as per margin” (u). (s) Gledstanes v. Allen, 12 C. B. 202. (t) Kern v. Deslandes, 10 C. B., N. S. 205. See also Shand v. Sanderson, ubi supra; and Kirchner v. Venus, 12 Moo. P. C. C. 361. Where a master withheld a cargo improperly, claiming a sum of money as lump freight and refusing to deduct average, or to give such particulars within his knowledge as would enable the holder of the bill of lading to apportion it, the Court of Admiralty held (the vessel having been arrested by the assignee of the bill of lading), that the owners were liable in that Court for the master's breach of duty, under s. 6 of the Admiralty Court Act, 1861, (24 Vict. c. 10). The Norway, Br. & L. 377. (u) 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. See also Nelson v. The Association for Protection, &c., 43 L. J., C. P. 218. Preservation of lien under To preserve the shipowner's lien, the goods, apart from any statute whereby his right is extended, must remain in his cus- earlier Waretody, actual or constructive, and where, at a foreign port, the housing Acts. consignee is absent or unwilling to receive a cargo consigned to him, the master may find a difficulty in landing and warehouseing it in such a manner as to retain his lien (x). To obviate this difficulty with reference to cargoes coming to this country, and for the convenience of trade, statutes have from time to time been passed whereby goods might be landed and placed in bonded warehouses, without the payment of customs' duty, expressly reserving the shipowner's right of lien. They provided that when goods were so landed they should continue liable to the same claims for freight as they were subject to whilst on board, and the proprietors of bonded warehouses were directed, upon due notice to them, to detain goods in their possession until the freight due for their carriage was paid, or until a deposit had been made by the owners or consignees of the goods equal in amount to the claim made for freight (y). Some of these enactments have been repealed (≈), and the Merchant Shipping Act Amendment Act, 1862 (25 & 26 Vict. c. 63), has substituted for them the following important provisions with reference to the delivery of goods and the shipowner's lien for freight. of lien for By sect. 67 of this act it is provided, that where the owner of Preservation any goods, imported from foreign parts into the United King- freight under dom, fails to make entry of them, or land them, or take delivery Shipping Act, of them (a), and to proceed therewith with all convenient speed 1862. (x) See per Willes, J., in Meyerstein v. Barber, L. R., 2 C. P. 54; Mors le Blanch v. Wilson, L. R., 8 C. P. 227. (y) See 8 & 9 Vict. c. 91, s. 51; 3 & 4 Will. 4, c. 57, s. 47; 6 Geo. 4, c. 112, s. 45; the Sufferance Wharfs Act, 11 & 12 Vict. c. xviii., and Meyerstein v. Barber, ubi sup. By the 7 & 8 Vict. c. 31, goods may be carried inland and placed in bonded warehouses at Manchester, subject to the regulations made by the Commissioners of Customs, and to the same conditions as those under which goods were, before this act, placed in other bonded warehouses. See also the 23 & 24 Vict. c. 36, an act to authorize the appointment and approval of places for the warehousing of goods for the security of duties of customs. (2) The M. S. Act, 1862, has repealed s. 51 of the 8 & 9 Vict. c. 91. See s. 2 of the first-mentioned act and the Schedule Table (A). (a) The words "fails to take delivery" need not be by wilful default of the cargo owner. The shipowner is at liberty to load the goods whenever the delivery of them to the owner within the proper time has been prevented by the force of circumstances (such as a bona fide dispute as to the amount due for freight), whether the latter is to blame or not. If, however, the master wilfully inserts in his notice, under sect. 68, a sum in excess of that for which he had a lien, the detention of the goods is wrongful and actionable. The Energie, L. R., 6 P. C. 306. the Merchant |