Part IV. owner 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 nonpayment of any of the bills to be given for freight as for all arrears of 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 not necessary, 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 (a). But even this precaution will not enable the master to assert a right against the consignee of lien on goods for any greater amount of freight or demurrage than is stipulated by the bill of lading or by any contract between the charterer and the shipowner which by words of reference may be incorporated with it (b). In one case, where a cargo of guano was re-shipped in consequence of the vessel in which it was first loaded becoming disabled and incapable of conveying it to its destination, and the captain of the disabled vessel entered into a new charter-party with the captain of the vessel on board of which the cargo was re-shipped, a question arose as to the extent of the captain's lien for freight under the second charter-party. The defendants had chartered the ship Planter in London to proceed from Liverpool to Callao and bring back a cargo of guano, at 70s. per ton freight, the master to be supplied in the Pacific with a sum not exceeding 1,5007., which was to be deducted from the freight and the balance paid in cash and by bills on arrival at the port of discharge. Advances to the extent of more than is a question, who by the charter-party has the voyage, he becomes the owner, and is (b) Ante, p. 233; and see Smith v. Sieveking, 5 E. & B. 589; 24 L. J. Q. B. 257. 1,000l. were made by the defendants' agents to the captain in the Chap. 2. Pacific. After the Planter had sailed with her cargo she became disabled, and was obliged to put back to Callao; and her captain chartered the Alarm in his own name to convey the cargo to England at 70s. per ton. On arriving at the port of discharge, the plaintiff, who was captain of the Alarm, demanded the whole freight at 70s. per ton as per charter-party, but the defendants claimed to deduct the advances made to the captain of the Planter. The cargo was by consent discharged without prejudice to the plaintiff's lien upon it, and an action being brought for freight, the defendants paid into court the balance due upon the original charter-party between themselves and the captain of the Planter, after deducting the amount of the advances made to him. "A question," said COCKBURN, C. J., in delivering judgment, " presents itself which may be open to some doubt; although the original shipowner may be entitled, on account of the physical impossibility of conveying the goods to their destination in the bottom originally contracted for, to employ another to carry the goods and receive the freight, can he, when he parts with the possession of the goods, transfer his right of lien to the substituted shipowner? I by no means desire to be understood as saying that he cannot; it may be that the same rule of law which empowers the original shipowner, under circumstances of necessity, to tranship the goods, and by sending them to the place of delivery in another ship, to retain his right to recover the freight, as against the owner of the goods, gives also at the same time, as incidental to this right, that of transferring also the lien which he would have had upon the goods for the freight, if he had himself conveyed them to their destination. But it is not necessary to decide that question in the present case. It is enough to say that supposing the right exists to transfer the lien under such circumstances, from one shipowner to another, at all events the first can transfer to the other no greater right of lien than he himself possessed. The utmost that the plaintiff can claim if the second charter is considered, as it must be, as one between Carlisle (the captain of the vessel) and him, is to stand in the shoes of the original shipowners, for whom Carlisle was acting. Then, what was the lien which these owners had at the time when the goods were transferred? not a lien on the goods for the whole of the freight; for considerable advances had been made on account of the freight, and the lien of the owners of the Planter remained only for the residue. The defendants were entitled to demand the delivery of their goods, had they been in the hands of the original shipowners, on the payment of the balance, and the lien of such shipowners could exist only for such balance. The plaintiff, who is substituted for the original shipowners, and stands in their place, can be in no better condition; and, therefore, on the payment of the balance due on the original charter-party, the defendants were entitled to the delivery of their goods in whosesoever hands they were at the place of delivery. In addition to the sums paid on account of freight to the plaintiff, the defendants claimed to deduct the amount of the advances made to the master of the Planter, and on Part IV. this action being brought they paid the amount of the balance into court. I am of opinion that the plaintiff could have no lien beyond that amount" (a). Discharging cargo and 7. Enactments in the M. S. Act Amendment Act, 1862, and Customs Act. See 25 & 26 Vict. c. 63, ss. 67-78, noticed in the Appendix, which give the master the means of discharging his cargo, retaining his retaining lien. lien for freight, and other charges. Customs Act. See also 39 & 40 Vict. c. 36 (the Customs Consolidation Act), s. 73, by which "any officer of customs having the custody of any goods which shall have come to his hands under the Customs Acts, may refuse delivery thereof from the Queen's warehouse or other place of deposit until proof be given to his satisfaction that the freight due upon such goods has been paid." (a) Matthews v. Gibbs, 30 L. J. Q. B. 55. CHAPTER III. OF DEMURRAGE; AND HEREIN, SECT. 1. What Demurrage is, p. 241. 2. How Demurrage is to be computed, p. 243. 3. Construction of Stipulations respecting Demurrage, p. 246. 4. How Demurrage is regulated by Usage in the absence of Express Stipula- 5. When Demurrage ceases, p. 252. 6. Remarks on Cases relating to Demurrage, p. 253. 1. What it is. [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. When goods are shipped on board a general ship, words are also often introduced into the body or 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 is liable to pay, for every day the ship is detained beyond the time agreed upon for loading or unloading during the further specified time, the sum mentioned in the charter-party, which is called demurrage. If a ship be improperly detained by the freighter after the further specified time, the owner may have an action for the damage resulting to him from such detention (b). In some cases the consignee or assignee of a bill of lading is liable for demurrage upon a contract, express or implied, to pay the same. In some cases the contract is implied by the party (b) See Horn v. Bensusan, 9 C. & P. 709. Kell v. Anderson, 10 M. & W. 498, per ABINGER, C. B. R Chap. 3. Part IV. claiming and receiving the goods under the bill of lading (a). The master of a ship who has undertaken by bill of lading to deliver goods to the consignee "on payment of freight," cannot maintain an action against the consignee or assignee of the bill of lading, on an implied contract to pay demurrage (b); an inconvenience which may be avoided by the insertion of words in the body or margin of the bill of lading, notifying in distinct terms that it is a condition of the contract to carry and deliver the goods that the consignee shall clear them in a certain number of days after the ship's arrival, or pay so much per day for demurrage (c). Sometimes the terms of a charter-party are incorporated by reference to them in the bill of lading; most frequently as to freight only, in which case the consignee or assignee of the bill of lading is not bound by any other terms of the charter party than those which relate to freight. If the reference be more comprehensive, e. g "against payment of the agreed freight and other conditions as per charter-party," and the payment of demurrage be one of those conditions, the claim and acceptance of the goods upon a bill of lading thus referring to them, will be cogent evidence of a new contract by the consignee or assignee of the bill of lading with the master to pay demurrage (d), though not if the demurrage be claimed for the detention of the ship at the port of shipment, before the bill of lading is signed (e). "Paying for the said goods as per charter-party," has been held to mean-paying freight for said goods as per charter-party (f). Limited references to the charter-party, e. g. "on payment of freight as per charter-party;' on payment of freight as agreed (g); or "on being paid for freight the sum of, according to charter-party, and, in addition, the averages according to maritime usage and custom;" have been held not to extend to demurrage, although in addition to the last of these forms in the margin of the bill of lading which contained it, the words, "There are eight days for unloading in London," were inserted. This memorandum was said to be quite as consistent with the owner of the vessel looking for payment of demurrage to the charterer as to the consignee of the vessel. And it was thought to be a circumstance (a) Harman v. Gandolphi, Holt's N. P. 35, and Harman v. Clark, 4 Camp. 159. Harman v. Mant, ibid 163. As to when the indebitatus count might be used before the Judicature Acts, see Cropton v. Pickernell, 16 M. & W. 329. Jesson v. (b) Evans v. Foster, 1 B. & Ad. 118. (c) See the above cases, and Chappell v. (d) Wegener v. Smith, 15 C. B. 285; 24 L. J. C. P. 25. See Russell v. Niemann, 17 C. B. (N.S.) 163; 34 L. J. C. P. 10, where it was held that the words "restraint of princes" mentioned in the charter were not incorporated by reference in the bill of lading. (e) Chappell v. Comfort, 10 C. B. (N.s.) 802; 31 L. J. C. P. 58. Gray v. Carr, 40 L. J. Q. B. 257. (f) Smith v. Sieveking, 4 E. & B. 945; 24 L. J. Q. B. 257. (g) Young v. Moeller, 5 E. & B. 755. |