Part IV.

come to a conclusion different from that at which the court arrived in Saville v. Campion, Tate v. Meek, and some other cases, in which it was held, that an owner retaining the possession of his ship has a lien on the cargo for the hire of the ship under the charter-party. It has been attempted to distinguish this case in two particulars: first, that this charter-party does not leave the owner in possession of the ship-and, if it does not, he can have no such possession of the cargo as to entitle him to a lien for the hire of the ship; further, that according to the decisions, the holder has only been held entitled to enforce his lien where the payment of the freight for the ship is to accompany or precede the delivery of the goods. With respect to the possession of the ship, the main reliance has been on Newberry v. Colvin. Let us see, then, whether this case is distinguishable from Newberry v. Colvin. I think it is distinguishable in most material points this is the case of an owner in possession of the ship, who covenants by his captain to carry out goods to their destination, and to bring a cargo home; the ordinary case in which the owner has a lien for the hire of the ship. But such was not the case of Newberry v. Colvin, where the owner had parted with the possession of the ship, the charterer having taken her into his service, and agreed to pay for the use and hire of her a certain freight. We have, then, to see here whether the goods brought home were to be delivered before the payment of the tonnage freight stipulated for by the charter-party, and it is only necessary to look at the terms of the charter-party to see that such is not the case. In the first place, the freight is to be calculated by the registered tonnage of the ship, perfectly independent of the value of the goods that compose the cargo; in the next, 5007. of this freight is to be paid down at the expiration of six months from the date of the charter-party, a moiety of the remainder by bills at two months to be delivered on the day of the ship's arrival in the Thames, and the residue by bills at four months, to be delivered the same day—that is, at a time necessarily anterior to the delivery of the goods, if we look to another part of the charter-party, which provides that the ship, after her arrival in the Thames, shall take her regular turn in the East India Docks for the purpose of such delivery. Looking, therefore, to the intention of the parties, it is clear that the shipowner meant to insist on the delivery of the bills before the delivery of the cargo; so that with respect to the time at which the freight was payable, there is no difference between this and the preceding cases."

In the case of Belcher v. Capper (a), in which it was agreed by charter-party that the owners should let and the charterer hire the vessel for six months, during which the charterer was to possess the entire and exclusive use and disposal of the whole reach and burthen of the vessel, with the exception of the space occupied by the cabin, together with room for the usual accommodation of the crew and for

(a) 4 M. & G. 502; 5 Scott's N. R. 257.

the stowage of stores and provisions; that the master should receive Chap. 2. a full and complete cargo, and proceed therewith on such lawful voyage or voyages as the charterer should direct him to do; that he should deliver the goods agreeably to bills of lading; that the freight and primage should be payable to his order; that the owners should keep the vessel tight and manned and provided with necessary stores; that the charterer should pay to the owner at a certain rate per ton per month at specified intervals, and the balance in cash on the ship's final discharge; that the charterer should have the privilege of putting in a master of his own appointment, he finding the cabin with all stores, the owner allowing whatever rate of wages he paid his own master, the owner not to be responsible for the master's acts should he deviate from the charter, but the charterer to be responsible to the owner for the conduct and integrity of the master while he should have the navigation of the vessel; 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. "In each case," said Chief Justice TINDAL, after observing upon the cases referred to in this and the following section, "the whole contract must be taken together, and due effect given to the several clauses that controvert or qualify each other; and thus it often happens that the same expressions will bear different meanings and require a different interpretation according to the context of the instrument in which they are found. In considering this charter-party, therefore, we have not relied implicitly upon the interpretation put by judges in other cases on any particular expression also found in this contract; but we have collected the intention of the contracting parties from the whole scope of the instrument, having reference nevertheless to the several authorities cited at the bar as guides to our decision; and we are satisfied that in this particular case, according to the terms of this particular charter, the possession of the vessel was given up by the owners to the charterer during the continuance of the contract; that the master was in possession of the cargo as agent for the charterer and not as servant of the owners; that personal credit was given to the charterer for the payment of the hire of the vessel, and that no lien or right of stoppage of the goods was intended to be reserved to the owners as a security for the payment of the contract price. And we come to this conclusion because we find words of demise large enough to transfer the possession, if such words were necessary. We find also the owners giving to the charterer the power of appointing his own master and requiring him to be responsible for the conduct of the master so appointed, as he would be for the conduct of his own servant, and we find that, in fact, the master was so appointed by the charterer. We find further, that the freight for the goods was to be paid according to the bills of lading to the master thus appointed by the charterer, for the charterer's use, without any stipulation for its application towards the payment of the agreed price for the hire of the vessel. And we further find, that according to the terms of the contract the parties contemplated that every part of the cargo would be delivered before

Part IV. the balance reserved would become payable; and, on the other hand, we find nothing in the contract that indicates any intention to make the delivery of the cargo depend upon the precedent or concomitant payment of any portion of the stipulated freight" (a).

In a subsequent case, though the possession of the ship does not appear to have passed to the charterers, the decision was against the shipowner (b). By a charter-party between the master of the ship and the charterers, it was agreed that (the cabin, state-rooms, and room for stowage of cables, &c., and crew excepted,) the ship should take on board from the charterers, who were to have the full reach of the hold from bulkhead to bulkhead, including the half-deck, a full and complete cargo (the owners employing sufficient hands for that purpose), proceed to her destination, and there deliver the cargo agreeably to bills of lading; in consideration whereof the charterers were to deliver the cargo alongside to be laden, and cause it to be received at the port of discharge, and "pay for the use and hire of the said vessel for the said voyage" a lump sum; payment to be made by the captain receiving "such freight as the charterers may have payable abroad as per bills of lading, not exceeding one-half, or by an order handed over to him by the charterers at their option, at the current rate of exchange, which order is to be payable at the port of discharge; and the balance to be paid by the charterers' acceptance payable in London at three months from the day of sailing-the master at the charterers' request to sign bills of lading in the usual and customary manner, and at any rate of freight that may be filled-up and made payable in any manner the charterers may choose without prejudice to this charter. The vessel to be consigned to the charterers' agents at her port of discharge." The ship was put up by the charterers as a general ship, and they having suspended payment, and bills given by them for part of the lump sum, which they had agreed to pay to the owner for the use and hire of the ship, being dishonoured, he claimed from the shippers the freight payable by them under bills of lading signed by the master. It was held that he was not entitled to it. The question," said WIGHTMAN, J., delivering the judgment of the Court of Queen's Bench, " is, whether the plaintiff under the circumstances of this case, is entitled to require payment to himself of the freight under the bills of lading. That depends upon the question whether the contract into which the master and shippers have entered is made by the master as agent of the charterers or as agent of the shipowner. Looking at the terms of the charter-party, I find it difficult to doubt that he is the agent of the charterers and not the agent of the shipowner. By the terms of the charter-party, the ship is let for a particular voyage, and the charterers are to pay the shipowner a lump freight for the whole voyage, and the master, at the request of the charterers, is to make bills of lading at any rate, and payable in

(a) Faith v. East India Co., ante, p. 227 ; Campion v. Colvin, ante, p. 225; and Small v. Moates, 9 Bing. 574. Peek v. Larsen, 40 L. J. Ch. 763.

(b) Marquand v. Banner, 6 E. & B. 322 ; 25 L. J. Q. B. 313.

any manner, the charterers may choose, without prejudice to the Chap. 2. charter. This, therefore, gives the charterers the direct management as to the terms on which the bills of lading are to be signed. In fact the bills of lading are not signed in any manner compromising the rights of either party; for all the freight now in question is to be paid in Liverpool as per margin, and the margin specifies only that it is to be paid within a month of the ship's sailing, not specifying to whom it is to be paid, leaving thus open the question who is entitled to claim the freight; in other words, whose agent the master is. As far as the parties shipping the goods are concerned, there may be an unnamed principal to whom they are to look. But when it is once shown that the master was in fact agent only for the charterers, and this is made known to the shippers, it appears to me that the charterers are entitled to recover the freight under the general authority which the shipowner has conferred upon them. Whatever might have been the result if the charter had not contained these terms, I think it is clear that the charter here makes the charterers entitled to the freight."

It has been observed (c) of this case, that, "if sustainable at all, it must rest upon the authority of Colvin v. Newberry" (d) before cited; but the reasoning of WIGHTMAN, J., proceeds upon the ground rather of an entire cession to the charterers of the owner's right to the freight to be stipulated by bills of lading, which it appears to have been considered that the plaintiff, who was the principal owner, and the master of the ship, had, without any reservation of his own right, undertaken to sign on behalf of the charterers, than as in Colvin v. Newberry, on a change of the ship's possession. "In effect," said CROMPTON, J., "the owner claims to have a right of lien contrary to the contract under the charter-party."

4. Of Cases in which the Shipowner's Lien for Freight has been held to have been limited by him.

We have seen, that without entirely parting with the possession of his ship, and with the right of lien for freight which attaches to the possession of it, a shipowner may so limit that right as to render it inoperative against the goods of third parties, to a greater extent than has been stipulated by bills of lading signed for their goods by the master, acting with his sanction on behalf of the charterer.

In the case of Mitchell v. Scaife (e), an action of trover for the cargo of a ship which the defendant, being part owner of her, had let for a voyage from Liverpool to Jamaica and back for a gross sum by way of freight, the master had signed bills of lading for the cargo, which belonged to a third person, specifying a rate of freight amounting to a less sum than that mentioned in the charter-party. "I am

(c) Per CRESSWELL and WILLES, JJ., in Gilkison v. Middleton, 2 C. B. (N.S.) 134; 26 L. J. C. P. 209.

(d) Ante, p. 30.
(e) 4 Campb. 298.

Part IV. of opinion," said Lord ELLENBOROUGH, "that the shipowner had no right to detain the cargo for more than the freight mentioned in the bill of lading. The plaintiff is the bonâ fide indorsee of the bill of lading. We know that this is an instrument which the master has in general authority to sign, and the plaintiff seems to have had no reason to suspect that this authority was not properly exercised. Under such circumstances, the owner of the ship cannot be heard to aver against the contract created by his own agent through the medium of the bill of lading." "It is true," said RICHARDSON, J., in the case of Christie v. Lewis, (a), "that the owner has not a lien on the goods mentioned in the bills of lading for all his freight due on the charter-party, but he is entitled to the freight on the bills of lading in preference to the freighter"-" I think," said ABBOTT, C. J., in the case of Faith v. The East India Company (b), "that the owner of the ship is entitled to a lien upon the goods put on board by the different shippers abroad to the extent of the freight due upon each of those consignments "-"That a shipper," said TINDAL, C. J., in the case of Small v. Moates, "putting his goods on board the ship, upon the faith of a bill of lading signed by a person whom the owner has allowed to bear the character of master, would be entitled to receive his goods at the end of the voyage, upon payment of the freight reserved by the bill of lading, may be readily admitted as well upon the reasonableness of the proposition itself as upon the authority of decided cases"-"I am of opinion," said CRESSWELL, J., in the case of Odams v. Avery (c), "that when a ship is chartered as a general ship, and the captain signs bills of lading for payment of a certain freight, the consignees cannot be made liable for anything beyond that freight"-"The cargo," said COCKBURN, C. J., in Gilkison v. Middleton (d), "being expressly made liable for all freight due under the charter-party, it follows that on the arrival of the ship there was 9001. due for freight, for which the cargo was liable. If matters had so remained, the owners clearly would have had a lien for that amount. But they have by their master become parties to bills of lading making the goods deliverable to the consignees on payment of certain specified freight, and the defendants have made advances on the faith of those bills of lading. The owners, therefore, have by their own act placed third parties in a situation in which they would sustain prejudice by their insisting on the full freight to which they would otherwise have been entitled. That being so, the utmost that the plaintiffs can be entitled to recover as against the consignees is the freight mentioned in the three bills of lading"-"If," said POLLOCK, C. B., in Foster v. Colby (e), "a shipowner so conducts his business as to permit the master to sign bills of lading at a lower freight than that payable by the charter-party, in consequence of which parties are induced to make advances on such bills of lading,

(a) Ante, p. 226.

(b) Ante, p. 227.

(c) 19 L. T. C. P. 68.

(d) 2 C. B. (N.s.) 134; 26 L. J. C. P. 209. (e) 3 H. & N. 705; 28 L. J. Ex. 81.