Charles Edward Pollock Frederic Philip Maude.

Compendium of the law of merchant shipping online

. (page 34 of 101)
Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 34 of 101)
Font size
QR-code for this ebook


deliverable to order or assigns, " he or they paying freight for
the said goods, five-eighths of a penny sterling per pound, with
five per cent, primage and average accustomed," and by the
usual custom at the port of delivery three months' interest or
discount was deducted firom freights payable under bills of
lading, on goods such as those in question, it was held that
the assignee of the bill of lading who had received the goods
was only liable to pay the freight, less the discount, and that
the custom was binding, and did not contradict the bill of
lading {g).

Where goods were shipped by merchants at Bombay, and by
the bills of lading were to be delivered " unto order, or to his or
their assigns on paying freight for the said goods," and the bills
were indorsed and forwarded to the defendants in London, who
indorsed them in blank to their factors, who received the goods
under the bills but without paying the freight, and were debited
with the amount by the shipowner, who did not know that they
were only agents, and afterwards they became bankrupt, upon
which the defendants obtained the goods from them ; it was held,
that there was no implied contract by the defendants to pay
freight to the shipowner, although the bills of lading had been
indorsed without consideration to the factors as agents only for
the defendants, and the goods, at the time of the delivery to the
factors, were the property of the defendants ; for it was con-
sidered, that as the agents were the only actual indorsees and
holders of the bills, and the shipowner did not require payment
before the delivery of the goods, he must be taken to have given
credit to them alone, and that there was nothing to show that
the defendants had given any authority to their agents to pledge
their credit for the fireight. To the objection that it would be
unjust that the defendants should receive their goods without

(/) Smith V, Sieveking, 4 E. fir B. 945 ; Exchequer Chamber, reversing the dc-

5 E. & B. 589. cisioD of the Court of Queen's Bench ;

(g) Broume v. Byrn«, 3 E. & B. 703 ; see 5 E. fir B. 7.
Moeller v. Young, 5 E. & B. 755, in the



Digitized by



Google



AND IT8 INCLDBNTS. 257

paying any freight, the Court answered that it was the volun-
tary act of the shipowner to give credit to the factors, and that
if be was indebted to them to the amount of the freight, the
freight would be set off against the debt, and then that the
assignees of the bankrupt factors might recover the full amount
of the freight against the defendants, subject to any cross de-
mand (A). So, no promise to pay freight will be implied when,
on the face of the bill of lading, the person who receives the
goods is merely agent for the consignees ; as where the goods
were deliverable to "A. B. (the defendant) for the London Gas
Company, he or they paying freight;" the promise to be in-
ferrU from the receipt of goods under such a bill of lading
being, prim& facie, a promise as agent only to pay the freight on
icconnt of the company (i). And from the fact of the receipt of
goods under a bill of lading which makes them deliverable on
payment of freight as per charter-party, no contract can be im-
pKed on the part of the assignee of the bill of lading to unload
the vessel in a reasonable time, though the charter provide for
ptyment of demurrage after a certain number of lay days {k).

In all these cases, whether the bills of lading refer to a char-
ier-party or not, no contract is implied by law from the facts.
There is no such implication even where a bill of ladmg specifies
Aat the goods are to be delivered by the shipowner to the con-
signee or his assigns, he or they paying a certain specified sum
for freight, without any reference to a charter-party, and an
indorsee receives the goods by virtue of that bill, although
there is evidence in these cases to warrant a jury in finding
such a contract, and it has been so much the practice for the
indorsee of such a bill of lading to pay the specified freight if he
accept the goods under it, that there is little or no doubt that a
jary would, on such a question, find in favour of the shipowner,
if the indorsee received the goods without a disclaimer of his
liability. But there is no authority for saying that, under such
circumstances, there is a contract raised by law to pay the freight
which another, namely, the consignor, has contracted with the
shipowner to pay. And it is clear that the contract does not
(except in cases in which the 18 & 19 Vict. c. Ill, is applicable)
nin with the property in the goods. If there is any liability in

(A) Tobitt V. Craufford, 5 M. & W. case in Story on Agency, p. 8^8, note
tt5 ; in C. S. 9 M. & W. 716. (3), 3rd ed.

(l) Amot ▼. Temperley, 8 M. & W. {k) Young v. Moeller,6 E. ft B. 755.

798 ; mnd tee the observations on this

8



Digitized by



Google



258



CONTRACT OF AFFREIGHTMENT



the indorsee of the bill of lading, by reason of the receipt of the
cargo under it, it is on a new original contract, the consideration
for which is the delivery of the goods to him(Z). Where there
is no bill of lading the consignee is not usually liable, but
prior payments of freight by him on former occasions of a
similar kind are reasonable evidence, even in this case, to show
that on the receipt of the goods he contracts to pay the
freight (m).



Effect on re-
medy against
shipper of
taking a bill
from the con-
signee.



It is now well settled that the usual clause in bills of lading
engaging the master to deliver the goods to the consignees or
assignees, " he or they paying freight," is introduced for the
benefit of the master only, and does not cast upon him the duty
of obtaining at his peril the freight from the consignees at the
time of the delivery. The consignor still remains liable for the
freight on his express contract in the charter-party, or on bis
implied undertaking arising from the shipment, although the *
goods have been delivered to the consignee vnthout 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 con-
signor, unless there has been an option to take either a bill or
cash, and the master has, for his convenience, preferred the
former (o).



Lien for

FREIGHT.



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



(/) See for these positions the judg-
ment of Tindal, C. J., in Sanders v.
Vanzeller, 4 Q. B. 295, Zwilchenbart ▼.
Henderson, 9 Exch. 722, and the cases
cited ante, p. 263, note (x).

(m) Coleman v. Lambert, 5 M. & W.
602.

(n) Tapley v. Martens, 8 T. R. 451 ;
Christy ▼. Row, 1 Taunt. 800 ; Shepard
▼. De BemaUs, 13 East, 565 ; Dommett
V. Bedford, 5 B. & Ad. 521 ; Tobin v.



Crawford, 5 M. & W. 285; 9 M. & W.
716.

(o) Marsh y, 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 con-
signor was discharged if the master
took the bill voluntarily and for his own
convenience. See also Anderson v. HU-
Iks, 12C.B. 499.



Digitized by



Google



AND ITS INCIDENTS. 259

gpods 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 char-
ter-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, how-
ever, no hen 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 hen, there-
fore, exists, in the absence of express stipulation, for dead
freight, demurrage (s), wharfage (0, 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
to the terms of the contract being inconsistent with it. Ques-
tions of considerable nicety have arisen on these points.

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 p^fcular**
therefore held that no question of lien could arise where the contracts.
contract made between the shipper of the goods and the ship-
owner 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 shipp^ had insisted (there being nothing
in the charter-party to prevent him) on taking out the cargo be-
fore the ship sailed (x). And where by a charter-party the ship
was to deUver 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,
m 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 aft;er the

(p) It has been held that there is a (u) Faith ▼. East India Company f ubi

lien on every part of the merchandize supra,

belonging to the same person, and under (x) Thompson y. Small, 1 C. B. 328.

the same consignment, for the freight of A person who has shipped goods on a

the whole. Sodergreen v. Flight, cited general ship cannot, however, demand

6 East. 622. them back at pleasure without payment

(f ) Caampian ▼. ColviUe, Z B. N. C. of freight ; although, by the usage of

17 ; Neish ▼. Graham, 8 E. & B. 605. trade, the merchant may under ordinary

(r) Birley v. Gladstone, 3 M. & S. circumstances re-demand the goods

205 ; Gladstone v. Birley, 2 Mer. 401 ; a reasonable time before the ship

Faith V. East India Company, 4 B. & A. sails, on paying the freight which would

630. become due, and indemnifying the

(«) Phillips ▼. Rodie, 15 East, 547. master against the consequences of any

(/) Bishop ▼. Warcy 3 Camp. 360. bills of lading signed for the goods.

See Tindall v. Taylor, 4 E. & B. 219.

82



Digitized by



Google



260



CONTRACT OF AFPREIGHTMBNT

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 pay-
ment, and although he objected to it at the time, he afterwards
negotiated it, he was held to have relinquished his lien (a). Bat
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 deUvered before the
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 #as 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 conti*act contained in the charter-party must be taken
together (c), and the result will depend upon the particular ex-
pressions used. It appears now, however, to be 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

(y) AJsager ▼. St, KaOierine's Dock bill of lading will amount to a waiver
Company^ 14 M. & W. 794. of the lien as againet the consignee, see

(«) Admitted in Lucas v. NorkelU, 4 Giikison v. Middleton, 2 C. B., N. S. 1S4;
Bing. 729 ; see as to the analogous case NeUh v. Graham, 8 E. & B. 505.
of a shipwright who has worked on (c) ^IwirM v. TAom/on, 7 Taunt. 627 ;

credit, ante, p. 64. Newberru v. Coivin, 7 Bing. 190; S. C

(a) HomcastU v. Farrcm, 3 B. & Aid. 1 01. & F. 283 ; Belcher v. Capper, 4 M.
497. _ _ & Gr. 502 ; /)Mnv./ro^^, 10 Bing. 345;

see also po«/, Chap. VI., Part II., Stop-
page IN Transitu.



(6) Campion v. Ccz/vin, 3 B. N. C. 17.
As to what terms introduced into the



Digitized by



Google



AND ITS INCIDENTS.

the intentioii to part with the possession of the ship(c{). But
in some of the later eases 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 in-
tention 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 (/).

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 (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
oat 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 (A). Where a ship was chartered to
the commission's 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 iitill

(d) Seetbejod^entofTindal, C.J., itanet ▼. JUen, 12 C. B. 202, and the
in Belcher v. Capper, 4 M. & Gr. 641 ; cases cited, post, p. 263.

HmtoH V. Bragg, 7 Taunt 14; Saville {g) Newberry v. Colvin, 7 Bing. 190.

?. Ctmpion, 2 B. & A. 503. (A) See the judgment in Newberry v.

(e) Birley v. Gladstone 3 M. & S. 205 ; Colvin, ubi supra.

TaU r. Meek, 8 Taunt 280 ; Yates v. (i) The Trinity House v. Clark, 4 M.

Mrynell, ib. 802 ; Yates v. RaUsion, ib, & S. 288. See further as to what terms

293 : Faith v. Eeut India Company, 4 B. show an intention to part with the pos-

& A. 630 ; Christie v. Lewis, 2 B. & B. session of the ship, Fletcher v. Braddick,

410. 2 N. R. 182; Parish v. Crawford, 2 Str.

(/) SmaU V. Moates, 9 Bing. 574. If 1251; Vallejo v. Wheeler, 1 Cowp. 143 ;

such a provision is inserted, the lien is Dean v. Hogg, 10 Bing. 351; Reeve y.

preserved, although the effect of the Davis, 1 A. & E. 312 ; Fenton v. DubUn

contract may be to vest the possession Steam Packet Company, 8 A. & £. 835 ;

in the charterer. & C See al^o Gled^ and post, Chap. IX., CoLUSioN. '



261



Digitized by



Google



262



CONTRACT OF AFFREIGHTMENT



employed and paid by the owners, and the charter-party pro-
vides 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 some
difference 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 taken by the Court of
Queen's Bench, he acts on these occasions as the agent of the
charterers (A). But, whether this.be so or not, it is clear that
the shipowner's lien against the charterers for the charter freight,
and against indorsees of the bills of lading for the bill of lading
freight, is not taken away (/).

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 recap-
tured, 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 bis lien
for freight still existed (m).



To what goods
it extends.



Where a sum, regulated by the tonnage of the ship was
payable by the charterer for her use, the lien was considered
not to be confined to the charterer's goods, but to extend also
over goods consigned to others (w). 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 Uable to his
lien for the freight due under the charter-party (o).



For what
amount of
freight it ex-
ists.



This lien exists as against sub-freighters to the extent of the
freight they have contracted to pay, although the ship be em-
ployed 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 the sub-freighters,



(k) Marquand v. Banner, 6 E. & B.
232; and the judgment in Schuster v.
M'Kellar, 7 £. & B. 704. See, however,
Gilkitm V. mddlet(nh 2 C. B., N. S. 134.

(/) See the cases cited in the last



note.



(m) Ex parte Cheetman, 2 Eden, 181.
(n) Campion v. Colvin, 8 B. N. C. 17.
(o) Faith V. East India Qnmpanif, 4
B. & A. 630.



Digitized by



Google



AND ITS INCIDBNTS.

who have no notice of the charter, for the freight named in their
bills of lading (p).

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 bo7i&
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
indorsees, a lien upon the goods represented by the bills of
lading for the entire lump freight {q).



263



It is to be observed, finally, that the statutes which, for the Preservation
convenience of trade, have enabled goods to be landed and wareholwiDg
placed in bonded warehouses, without the payment of customs -A-cts.
duty, have in these cases expressly reserved the shipowner's
right of lien. They provide, that when goods are so landed
they shall continue liable to the same claims for freight as they
were subject to whilst on board, and the proprietors of bonded
warehouses are directed, upon due notice to them, to detain
goods in their possession until the freight due for their carriage
has been paid, or until a deposit has been made by the owners
or consignees of the goods equal in amount to the claim made
for freight (r).



(p) Fidth V. Ea$t India Company , 4 B.
ftA.6S0; Afi<dke//y. J^a^tf,4Camp.298;
PwU V. Birchf 2 Atk. 2&1 ; fee alio
MiUimutm v. Begbit, 6 Bing. 190;
ZwiUkenhart v. Henderton, 9 Ex. 722;
Brown ▼. North, 8 Ex. 1 ; Foster ▼.
CUhy, 3 IL & N. 705 i GilkUon y. Mid-
dkUm, 2 C. B., N. S. 134; Neuh v.
Gtakttm, 8 E. & B. 505 ; Shand v. San-
ier»oii,4H. & N. 381. As to the con-
•miction put by the Courts upon the
expression *' that the captain shall sign
bills of latfing without prejudice to the
charter-party," see the last cited case,



and Kirchner y. Fenus, $ Jur., N. S. 395,
Priyy Council.

(q) Gledstanes v. Jllen, 12 C. B. 202.

(r) 8 & 9 Vict c. 91, s. 51 ; 3 & 4
WiU. 4, c. 57, s. 47 ; (J Geo. 4, c. 112,
s. 45. By the 7 & 8 Vict c. 31, goods
may be carried inland and placed in
bonded warehouses at Manchester, sub-
ject 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.



Digitized by



Google



( 264 )



CHAPTER VI.

CONTRACT OF AFFREIGHTMENT AND ITS INCIDENTS.

PART II.



PAGE

Demurragb 264

Construction of Contract . 265
General Rules as to its Pay*

ment 265

Delays caused by superincum'

bent Goodsy ^c, .... 266
JMode of computing Days . • 266
Parties liable to pay it . . 267
Stoppage in Transitu . . 268
Wherein Piaht consists . . 268
How long Transit continues . 269
General Effect of Delivery to

a Carrier 269

Effect on Eiqkt qf interfere
ence with Carrier by Yen"

dee 270

Of acts of Ownership done
hf Vendee ...... 270

Of Delivery on Board Ven-
dee* s own Ship , , . .271
Of Sale of Goods in a Ware-
house 278

Of Indorsement of BUI of

Lading 274

Of countermand of Delivery 274
Of Eight to refuse to allow

Trannt to begin . . . i 275
Of Part Payment and Part '
Delivery 276



PAGB

Of a Eesak 276

Of a Lien against Consignee 270
Who may exercise Eight . . 276
How it should be exercised . 277
Interpleader Act .... 277
General Ayrraob .... 278
Loss must be voUmtarify tfi-

curred 279

Jettisons 279

No Contribution in respect of

ordinary Sea Perils . . . 279
Damage done to Ship to fa-
cilitate Jettison . • • • -283
Voluntary Stranding . • . 28i^
Loss must be properly in-
curred 289

Sale of Part of Carga fw

Eepairs^ ^c 282

Port Charges, Seamen's
Wages, Sfc. ..... 988

In cases of Embargo, Sfc, . 284

Dech Cargoes 284

Damage done in Action . . 284
Loss must be for general

Safety 285

What Articles contribute . . 285
Adjustment of Average . . 286
Mode of enforcing (Jontribu-
tion 287



Demurrage. DEMURRAGE is the sum which is fixed by the contract of
carriage as a remuneration to the shipowner for the detention of
the ship beyond the number of days allowed for loading or
unloading. The amount is usually calculated at so much per
day ; and the number of days during which the ship may be
detained on demurrage is also generally limited by the con-
tract (a). When the ship is detained by the freighter beyond



(a) 1 Beawes Lex Merc. 197 ; Smith Merc Law, 271.
sometimes called demurrage. .



The delay itself is also



Digitized by



Google



CONTRACT OF AFFRBIOHTMBNT AND ITS INCIDENTS. 266

tbe days of demurrage, a claim of the same nature arises for
damages for the subsequent detention, and the rate which is
agreed upon for the demurrage becomes prima facief but not
aecQ^^ariiyy the measure of this compensation {b).

The contract for demurrage is to be construed like any other ConstructioB
mercantile c<mtract, and the parties may introduce into it special ^ ^°" ^
stipulations. The following general rules, however, are applic-
able where they are not interfered with by the special terms of
the contract.

Demurr^e ceases on the day of sailing from the port of General mlcf
loading; and if the ship afterwards puts back, owing to contrary "gnt.*^ ^^'
winds, and is detained in port by frost or bad weather, the
freighter is not liable (c). Nor is he liable if the ship, after she



Online LibraryCharles Edward Pollock Frederic Philip MaudeCompendium of the law of merchant shipping → online text (page 34 of 101)