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Upon the effect of the before-mentioned clause, by which it is agreed, that if the ship shall not arrive in safety in the Thames, the Company shall not be liable for any freight or demurrage, nor subject to any demands of the owners or master on account of the ship's earnings in freight voyages for the Company, or on account of any other employment, two questions have arisen. The first arose in the case of the ship Winchelsea (k), which had been let to the Company by a charterparty containing that clause, and whereby the Company had covenanted to load the ship home within three months after her arrival in India, with a proviso, however, authorizing them to detain her in their service a year after the three months, at certain rates of demurrage therein specified. The Company detained the ship in their service in India, and towards the end of the year, after the three months, sent her to Fort St. David's, where she arrived after the expiration of that year; and the master, upon his arrival, informed the president of that fort, that unless the Company would allow demurrage after the rate of the charter-party, he would protest against them for all damages, loss of time, and other accidents; whereupon the president and council agreed that the owners should be allowed demurrage for so long a time as the ship should be detained in the Company's service in India. She was so detained some time longer, and before she had received any lading homeward, was lost in a storm. The owners sued the Company upon the charter-party. After a trial and verdict, and while the case remained for the judgment of the Court of King's Bench, the cause was compromised by the Company's paying demurrage from the expiration of the year after the three months, until the time of the loss, with the costs. And Lord Mansfield then declared, "that the Court was very clear that the owners were entitled to no more," but declined giving any other opinion.

The second question arose in the case of the ship Ganges; and it arose upon the before-mentioned clause, and another of the clauses in those charter-parties, by which it is agreed that the Company shall pay to the owners in England 14l. for each passenger, ordered on board the ship by any of their agents from any of their settlements. Several passengers were thus ordered on board the ship at Bombay, and were received accordingly. The ship was lost on the homeward voyage. The owners claimed to be paid for the passengers; the Company resisted the demand. The Court decided, that this clause did not apply to the case, and that the owners were entitled to the money (!). Great part of the expense of bringing home the passengers would necessarily be incurred in laying in provisions for them before the ship's departure.

The charter-party of the last-mentioned ship gave occasion also to another question. It is stipulated by one of the usual clauses, that if the ship shall arrive at her consigned port in India or China, the Company's agents shall supply to the master, by way of impress, for

(k) Hume v. East India Company, 1 Blac. 291. But query, whether the form of action was properly adapted to the case?

(1) Moffatt v. East India Company, 10 East, 468. See the chapter on Freight, post.

buying necessary provisions for the ship, 2001. for every calendar month, and so in proportion for a less time, so long as she shall remain in India or China, to be computed from the time of the delivery of the Company's dispatches at her first consigned port in India or China, and to continue until the ship shall be discharged from her last port in India or China, to return to Europe. The Ganges was ordered from England to Madras, Prince of Wales's Island, and China, and performed her outward voyage, and took in her homeward cargo at Canton, with which she sailed for England, but meeting with bad weather on the voyage, was obliged to put into Bombay to refit. She remained at Bombay on this account several months, and was afterwards detained there two months longer by the governor and council of that settlement, and then despatched for Europe. The Company had paid the monthly allowance for the period of the ship's stay in India and China until her departure from Canton, and also for the two months of her detention by the governor and council at Bombay. The owners claimed the allowance for the entire period of her stay at Bombay, contending that Bombay was her last port, within the meaning of this clause. But the Court held that Canton was such last port, and consequently that the owners were not entitled to maintain this claim.

According to the usual form of these charter-parties, a ship is now (m) let to the Company for the voyage therein-mentioned in trade, and also in warfare, and on any other service whatever, as the Company, or any of their governors, &c., shall require or direct; and it is provided, that during the stay in India the Company's presidents, &c., shall have liberty to employ the ship in trade, and also in warfare, and otherwise howsoever, and shall have liberty to let the ship out to freight for the Company's sole benefit, and that the ship shall be furnished and armed with a certain number of guns, &c., specified in the charter-party: and power is given to the Company, their presidents, &c., to remove, restore, and continue the master and officers of the ship; but if the master or other officer be displaced or removed, then the next in degree to the person removed, who shall be approved by the president, &c., shall succeed to the employment. Under the orders of the Company's presidencies in India, the ship Busbridge was made to form a part of a military expedition, intended for an attack upon Manilla, in conjunction with some of his Majesty's ships; her upper works were considerably altered to enable her to carry a greater number of guns, her complement of seamen was much increased, soldiers were taken on board, a King's officer assumed the effective command, and hoisted the King's pendant, and the ship sailed from Calcutta to Madras, and from thence to Prince of Wales's Island: the expedition, however, was abandoned in consequence of a peace with Spain. The expense of the alteration of the ship was defrayed by the Company, and an allowance was made to the master for entertaining the King's officer and his suite. The ship sustained some damage in the service, and repairs became necessary on her return to Bengal,

(m) 1826.

which were made, and she returned to England with her cargo. The owners contended that this employment of the ship was not warranted by the charter-party, and they were entitled to a separate and distinct payment in respect of it. The Company insisted that the ship was during the whole time employed under the charter-party, and to be paid according to the provisions thereof; the Court was of the latter opinion, and decided accordingly (n).

(n) Dobree and Others v. East India Company, 13 East, 290.

CHAPTER II.

OF THE SHIPOWNER'S LIEN FOR FREIGHT; AND HEREIN,

(Ss.) 1. Maritime and French Law on this subject.

2. Of the Clause in Charter-parties whereby the Merchant binds the Goods. 3. Of the Lien for Freight of the Owner of a Chartered Ship.

4. Remarks on decided Cases.

* 1. By the Marine Law, the ship and freight are bound to the performance of the covenants of the shipowner, and the goods to the performance of the covenants of the merchant. "Le batel," says Cleirac, "est obligé à la marchandise et la marchandise au batel" (a). By the French ordinance it is expressly provided, "That the ship, with her furniture, equipment, and apparel, and the cargo, are respectively bound to the performance of the covenants in the charterparty." And this provision is adopted, word for word, in the Code de Commerce. Valin informs us that the word affectés in this article is to be read affectés par privilège (b). But the right of the merchant who would seek to make this privilege available ranks low in the order of precedence of privileged claims against the ship; the legal expenses attending a sale, the demands for pilotage and custody of the vessel, for stowage of furniture and apparel, for repairs at the last port, for the wages of master and mariners accrued due during the last voyage, for moneys borrowed by the master on his last voyage, for purchasemoney of ship, furniture, and stores remaining unpaid, for sums due to material men, ship-wrights, and lenders on bottomry, before her last departure from port, and for premiums of insurance, being preferred to it. The privilege of the shipowner against the goods for his freight is of a more bencficial character. Under the empire of the ordinance, the master was not entitled to detain the goods in his ship until payment of the freight due upon them, because that would have deprived the consignee of the opportunity of inspecting them, and of ascertaining if they had been injured by the master's fault; but he was at liberty to stop them in the lighter, on the quay, or in the warehouse; and if third parties had not previously acquired an interest in them, he might, by a formal demand of the freight within a fortnight of their delivery, preserve his privilege against the creditors of the consignees.

By the Code de Commerce (c), these regulations have been modified. * The master cannot (it would seem) now detain the goods in his ship,

(a) Cleirac on art. 21 of the Jugemens d'Oleron: Us et Coutumes de la Mer, p. 72.

(b) Valin, Com. sur l'Oleron, liv. 3, tit. 1, art. 11. Code de Commerce, art. 191. (c) Art. 306.

*but he has a right to insist upon their deposit in a warehouse until his claim for freight is satisfied; and, within a fortnight after the delivery to the consignee, he may, unless they have passed by sale and transfer to third parties, in which case the maxim, "Meubles n'ont pas de suite étant en tierce main" applies, assert his claim upon them in preference to the claims of other creditors.

Clauses are now usually inserted in French charter-parties, by which the contracting parties expressly recognise these dispositions as the basis * of their agreement (d).

2. In England, also, it is usual for each of the parties to these contracts to bind himself, his heirs, executors, and administrators; and the owner or master to bind the ship and her freight, and the merchant the cargo to be laden, in a pecuniary penalty for the true performance of their respective covenants. This is commonly done by a clause at the end of the instrument. Such a clause is not the absolute limit of damages on either side. The party may, if he thinks fit, ground his action upon the other clauses or covenants, and may in such action recover damages beyond the amount of the penalty, if in justice they shall be found to exceed it (e). On the other hand, if the party sue on such a penal clause, he cannot in effect recover more than the damage actually sustained.

But although the ship and freight are by the terms of a charterparty expressed to be bound to the performance of the covenants on the part of the owners or master, and this is conformable to the Maritime Law; yet, as I have before observed (f), there does not appear to be at present any mode of obtaining in this country the benefit of the security of the ship itself in specie for the performance of such a contract made here.

The clause whereby the merchant binds the cargo does not give to the owner a lien on the cargo by way of general security for the performance of the covenants in the charter-party, nor for any payment for which he might not detain it in the absence of such a clause; so that, with us, the clause is inoperative. In the cases where a lien is allowed, it is not derived from this clause, but either from some general principle of law or some special contract. Where it depends upon a general principle of law, it is confined to the specific chattels, or some part thereof, in respect of which the payment is claimed, and consequently, goods actually brought by a ship cannot be detained for a breach of a covenant to furnish a full cargo; nor for demurrage (g); nor for pilotage or port charges, although the freighter may have engaged to pay them (h). A lien may be extended further, or wholly excluded, by particular contracts, or special circumstances.

In the case of Birley v. Gladstone, an entire ship was chartered for a voyage out and home, and by the terms of the charter-party the merchant covenanted to pay for the homeward cargo at certain rates per ton, on delivery of the cargo at Liverpool, by bills at three months;

(d) Formulaire, tit.6; Code de Commerce, par Rogron.

(e) Harrison v. Wright, 13 East, 343. f) Ante p. 93.

(g) Phillips v. Rodie; Birley v. Gladstone, 3 M. & S. 205.

(h) Faith v. East India Company, 4 B. & A. 630.

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