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A treatise on the law of carriers (Volume 4) online

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18 Pick. 530; Manter v. Holmes (Mass.), of Paradise (U. S.), 5 Wall. 545, 18 L.
10 Mete. 402; Welch v. McClintock Ed. 662; The Maggie Hammond (U. S.),
(Mass.), 10 Gray 215. 9 Wall. 435, 19 L. Ed. 772; The Delaware

5. Lien for freights, primages and (U. S.), 14 Wall. 579, 20 L. Ed. 779.
charges. — Portland Flouring Mills Co. v. 9. Waiver of lien. — The Delaware (U.
Portland, etc.. Steamship Co., 145 Fed. S.), 14 Wall. 579, 20 L. Ed. 779; The Bird
€87. of Paradise (U. S.), 5 Wall. 545, 18 L.

6. Includes expense of preservation of Ed. 662; 4,885 Bags of Linseed (U. S.),
goods.— Symons v. 10,466 Barrels of Cc- 1 Black 108, 17 L. Ed. 35; The Eddy (U.
ment, 195 Fed. 1017. S.), 5 Wall. 481, 18 L. Ed. 486.

7. Operates as pledge or mortgage. — 10. Time lien attaches. — The Bird of
Miners' Co-Op. Ass'n v. The Monarch, 2 Paradise (U. S.), 5 Wall. 545, 18 L. Ed.
Alaska 3S3. 662.

8. Reciprocal liens. — Schooner Free- 11. Property subject to lien. — The So-
man V. Buckingham (U. S.), 18 How. cicte (U. S.), 9 Cranch 209, 3 L. Ed. 707,
182, 15 L. Ed. 341; Vandewater v. Mills in which it is said: "The court can per-
•(U. S.), 19 How. 82, 15 L. Ed. 554; Du- ceive no principle on which a cargo to
pont, etc., Co. v. Vance (U. S.), 19 How. be delivered freight free can be burdened
162, 15 L. Ed. 584. See, also, Bulkley v. with the freight agreed to be paid on a
Naumkeag Steam Cotton Co. (U. S.), 24 cargo to be afterwards taken on l)oard."

§§ 4349-4350



of cargo, in the hands of the underwriter, whether the assured is the owner of
the ship or not. ^2

§ 4350. Displacement and Waiver of Lien. — The Hen may be displaced
by an inconsistent and irreconcilable provision in the charter party or bill of lad-
ing, making it the duty of the master to deliver the goods unconditionally before
the consignee is required to pay the freight; or it may be waived. ^-^ The usual
provision of a bill of lading that the cargo shall be delivered to the person named
or his assigns, "he or they paying the freight," is designed for the benefit of the
owner or master in recognition of his right to a lien, and does not impose on him
the duty of insisting on payment of the freight before delivery, but he is free to
waive his lien and hold the shipper, therefor. ^-^

By Unconditional Delivery of Goods. — Where a cargo is transported by a
vessel under a charter containing no clause binding the goods to the ship and the
ship to the goods, and the cargo is delivered unconditionally, and without any
understanding that it should be subject to a lien for charter money, the lien of the
vessel on the cargo for her freight is lost.^^ But if the cargo is placed in the
hands of the consignee, with an understanding that the lien for freight is to con-
tinue, a court of admiralty will regard the transaction as a deposit of the goods in
the ware house, and not as an absolute delivery, and on that ground will consider

12. Columbian Ins. Co. v. Catlett (U.
S.), 12 Wheat. 383, 6 L. Ed. 664.

13. Displacement and waiver of lien. —

The Eddy (U. S.), 5 Wall. 481, 18 L. Ed.
486; The Bird of Paradise (U. S.), 5
Wall. 545, 18 L. Ed. 662; 4,885 Bags of
Linseed (U. S.), 1 Black 108, 17 L. Ed.
35; Raymond v. Tyson (U. S.), 17 How.
53, 15 L. Ed. 47; The Maggie Hammond
(U. S.), 9 Wall. 435, 19 L. Ed. 772; The
Kimball (U. S.), 3 Wall. 37, 18 L. Ed. 50.

But if it be only doubtful in the con-
struction of a charter party whether the
owner has waived his lien upon the cargo,
he must have the benefit of that doubt;
his lien being given by force of the com-
mon law, which can not be taken from
him, "though there is a special contract,
unless there is something in that contract
inconsistent with that lien, or unless it is
waived by his implication." Raymond v.
Tyson (U. S.), 17 How. 53, 15 L. Ed. 47.

A clause in a charter party, by which
the owner binds the vessel, and the char-
terers bind the cargo, for the perform-
ance of their respective covenants, is suf-
ficient to repel doubt arising upon the
construction of other stipulations not
plainly controlling them, as to whether
the lien for freight was intended to be
waived by the parties. The Kimball (U.
S.), 3 Wall. 37, 18 L. Ed. 50. _

The lien may be waived without ex-
press words to that effect, if the charter
party contains stipulations inconsistent
with the exercise of such a right, or
where it clearly appears that the ship-
owner meant to trust to the personal re-
sponsibility of the charterer. The Bird
of Paradise (U. S.), 5 Wall. 545, 18 L.
Ed. 662; The Kimball (U. S.). 3 Wall.
37. 18 L. Ed. 50; Raymond v. Tyson (U.
S.), 17 How. 53, 15 L. Ed. 47.

Insolvency of the shipper occurring
while the goods are in transit, or before
they are delivered, will not absolve the
carrier from an agreement to take an ac-
ceptance on time, instead of cash, for
the freight, nor authorize him, when he
had made such an agreement, to retain
the goods until the freight is paid. A bill
or note falling due before the unloading
of the cargo, and protested and unpaid,
is no discharge of the lien; and the ship-
owner, in such a case, may stand upon it
as fully as if the acceptance had been
given. The Bird of Paradise (U. S.), 5
Wall. 545, 18 L. Ed. 662, so holding where
the charterers' acceptance had been dis-
honored and he become a bankrupt.

14. Portland Flouring Mills Co. v.
Portland, etc., Steamship Co., 145 Fed.

15. By unconditional delivery of goods..
— -In re Cargo of Brimstone, Fed. Cas.
No. 2,405, 8 Ben. 45; The Eddy (U. S.),
5 Wall. 481, 18 L. Ed. 486; Dupont, etc.,
Co. V. Vance (U. S.), 19 How. 162, 15
L. Ed. 584; 4,885 Bags of Linseed (U.
S.), 1 Black 108, 17 L. Ed. 35; The Kim-
ball (U. S.), 3 Wall. 37, 18 L. Ed. 50;
The Bird of Paradise (U. S.), 5 Walk
545, 18 L. Ed. 662.

Such precedent delivery, if absolute
and unconditional, displaces the lien for
freight, because it is repugnant to it and
incompatable with it, but where the pay-
ment or security of payment is to be
concurrent or simultaneous with the de-
livery of the cargo the lien exists in full
force, and the shipowner can not be re-
quired to make the delivery until the pay-
ment of freight, or security, as the case-
may be, is tendered. The Bird of Para-
dise (U. S.). 5 Wall. 545, 18 L. Ed. 662.

3947 CARRIAGE OF PROPERTY. §§ 4350-4352

the shipowner as being still constructively in possession so far as to preserve his

Delivery to Warehouse. — A vessel, by delivering her cargo of flaxseed in a
warehouse at the end of the voyage, and taking a receipt therefor, which was re-
tained until a libel was filed, did not thereby lose her lien on the cargo for

Stipulations as to Place and Time of Payment and Delivery. — A credit
for the freight may be given for so great a period as to justify, in the absence of
any provision for the delivery of the cargo, the inference that the shipowner in-
tended to waive his right to a lien and to look solely to the personal responsibility
of the charterers. ^-^

§ 4351. Preserving and Enforcing Lien. — The ship is not bound to land
an entire shipment in a day; and when landed on different days, if the shipper
disregards the notice that such will be the case, and shall not be present to receive
the goods, and has made no arrangement for the freight, then they may be stored
in the shipowner's name, to preserve his lien upon them for freight, for safe-
keeping, at the consignee's expense and risk.^^ But the shipowner can not de-
tain the goods on board the ship until the freight is paid, as the consignee or owner
of the cargo would then have no opportunity of examining their condition. ^o

Enforcement of Lien. — As contracts of aft'reightment are regarded by the
courts of the United States as maritime contracts, over which the courts of ad-
miralty have jurisdiction, the shipowner may enforce his lien by a proceeding in
rem in the proper court. -^ A master, having a cargo under a bill of lading for
delivery to order, was ignorant as to who were the indorsees, and was therefore
unable to notify them of his arrival. The day after arrival he libeled the cargo
for freight, but on the third day he received a letter from the attorneys of the
indorsees of the bill of lading, who, after naming the principles, said, "We have
for them to offer to pay the freight, * * * and to demand delivery, as per
bill of lading, on paying freight." The freight was not, however, paid or ten-^
dered, and five days later the master discharged the cargo upon the wharf, and
caused another writ of seizure to be executed upon it. While the first seizure
was premature, because made while the cargo was still on board, yet the proceed-
ings taken by the master did not amount to a conversion, for which the consignees
could clami even nominal damages against the ship. 22

§ 4352. Subrogation to Lien. — Libelant as shipper of a cargo of flour, be-
came bound for the freight, but only as surety for the consignees, who were the
owners of the cargo and primarily liable for the freight. The vessel having
stranded, her owner abandoned her to the insured as well as the cargo, a portion
of which was salved and sold and the proceeds received by respondent, which was
its insurer. Subsequently the insurer of the freight recovered the same from li-

16. 4,885 Bags of Linseed (U. S.), 1 discharge" of the cargo, are not incon-
Black 10H, 17 L. Ed. 35. sistent with the right of the ownerto re-

17. Delivery to warehouse. — Davidson tain tiie cargo for the preservation of
Steamship Co. v. 119,254 Bushels of Flax- his lien. The Kimball (U. S.), 3 Wall.
seed, 117 Fed. 283. 37, 18 L. Ed. 50; The Bird of Paradise

18 Stipulations as to place and time of (U. S.), 5 Wall. 545, 18 L. Ed. 662.

payment and delivery.— The Kimball (U. 19. Preserving and enforcing lien.—

S.), 3 Wall. 37, 18 L. Ed. 50; The Bird of Brittan v. Barnaby (U. S.), 21 How. 527,

Paradise (U. S.), 5 Wall. 545, 18 L. Ed. ic L Ed 177

662. See, also Raymond ^'. Tyson (U. ^^ ^, p ,,, (u. S.), 5 Wall. 481, 18

S.), 17 How. 53, 15 L. Ed. 47. _ t ^^j ^^g^. J' v />

A stipulation in a charter party rcquir- ' , ' U r ' r i- ti c

ing the delivery of the cargo within reach ^ .21- Enforcement of lien.— 4,885 Bags of

of the ship's tackle, and providing that Linseed (U. vS.), 1 B ;ick ]08 17 L. Ed.

the balance of the charter money remain- 35; The Bird of 1 araclise (U. S.), 5 Wall,

ing unpaid on the terminatiorr of the \\^,^',/^ L- Ed. 662; The Eddy (U. S.), 5

homeward voyage shall be "payable, one Wall. 481, 18 L. Ed. 486.

half in five, and one half in ten days after 22. The Ravensdale, 75 Fed. 413.

,;§§ 4352-4354 carriers. 3948

belant, which thereupon brought suit to recover the amount from respondent,
claiming to be subrogated to the carriers' hen for the freight upon the cargo and
its proceeds. It was held, that such lien was lost by the abandonment of the
cargo to the respondent, which the carrier had the right to make, and there was
therefore no claim against the fund arising therefrom to support a right of sub-
rogation. ^^

§ 4353. Actions to Recover Freight. — Nature of Action. — A claim for
dead freight is not recoverable in an action in rem against the cargo. ^■^ A claim
by a vessel owner for the extra cost of handling timber of larger dimensions than
that specified in the charter can only be recovered in rem against the cargo in so
far as it is a claim for the services of stevedores who would be entitled to a lien,
and is not so recoverable where the stevedores w^ere furnished by the charterer. ^^
The demand of a shipowner for freight in a case of civil salvage is to be pursued
against that portion of the proceeds of the cargo which is adjudged to the owners
of the goods, by a direct libel or petition by way of libel ; and not by a claim in-
terposed in salvage cause.-''

Limitation of Actions for Recovery of Freight. — The article 3499, of the
Civil Code of Louisiana, which prescribes that "actions for the payment of freight
of ships and other vessels are prescribed by one year," does not apply to a case
where the plaintiffs were shipbrokers only and not shipowners, and where the
contract was not one of aft'reightment.-"

Burden of Proof. — The libelant steamship company brought suit to recover a
balance of freight money for the carriage of a cargo of oil in cases, which was
withheld by the charterer to cover a shortage in delivery. The cargo was dis-
charged at Whampoa, China, into lighters provided by the charterer, in w^hich it
was taken fourteen miles up the river to Canton, where it was stored in ware-
houses. The tally on the ship was kept by Chinese tallymen employed by the cap-
tain, and showed a shortage, as did the tally at the warehouses. The libelant
claimed that the whole number of cases was in fact delivered to the lighters, and
the missing cases were stolen between the ship and warehouses, an incorrect and
fraudulent tally having been made through collusion between the Chinese tally-
men and lightermen. The burden rested upon it to prove such fact, and that,
while the evidence established its probability, it was not sufficient to entitle the li-
belant to recover, in view of the fact that the captain failed in his duty to have
the tally taken or supervised by white men, as he could have done and was ad-
vised to do.-'^

Evidence. — \\'here the defense to an action for the freight of a cargo is that
it was carried under special charter by the day, and a bill of lading of the cargo
had been introduced, evidence that it is not customary to give a bill of lading
where the boat is chartered by the day is admissible.-^ An estimate of the quan-
tity of lumber in a cargo, based on the carrying capacity of the vessel, should not
be accepted in an action for the freight as against what appears to have been a
reasonably accurate tally, made when the lumber was loaded ; but such tally may
be corrected by evidence that the shipper received a greater quantity from the ves-
sel at the place of delivery.""^

§ 4354. Recovery Back of Freight. — Freight being the compensation for
the carriage of goods, if paid in advance, is in all cases, unless there is a special

23. Subrogation to lien. — Portland 27. Action for freight. — Railroad Co. v.
Flourinij Alills Co. v. Portland, etc., Lindsay (U. S.), 4 Wall. 650, 18 L. Ed.
Steamship Co.. 145 Fed. 687. 328.

24. Actions to recover freight. — Hagan 28. Burden of proof. — \'illage Steam-
■V. Cargo of Lumber, 163 Fed. 657. ship Co. v. Standard Oil Co., 171 Fed.

25. Hagan v. Cargo of Lumber, 163 243. decree affirmed in 177 Fed. 1006, 100
Fed. 657. C. C. A. 669.

26. Pursued by libel or petition by way 29. Evidence. — Zimmerman v. Rainey,
of libel.— The Sybil (U. S.), 4 Wheat. 56 N. Y. S. 199, 26 Misc. Rep. 795.

98, 4 L. Ed. 522. 30. Murray v. Jump Co., 148 Fed. 123.

3949 CARRIAGE OF PROPERTY. §§ 4354-4355

agreement to the contrary, to be refunded, if from any cause not attributable to
the shipper, the goods be not carried.^^

Vessel Unseaworthy at Commencement of Voyage. — In an action by a
shipper of goods against the consignee of the cargo to recover money retained
for freight, the plaintiff was at liberty to show the vessel not to have been sea-
worthy at the commencement of her voyage.-" -

Freight Earned, Ship Lost or Not Lost.— The general rule that freight
prepaid, but which is not earned by delivery of the goods must be refunded, does
not apply as between owner and charterer, where by reference in the charter
party the bills of lading are incorporated therein, and they contain a provision
that freight prepaid shall be considered as earned, ship lost or not lost.=^^

An agreement not to refund freight money in advance, in case goods are
not carried through, can not be inferred from a clause in the bill of lading that
the goods are to be delivered safely "dangers of the seas excepted ;"" the design of
that clause being only to save the master and shipowner from being answerable
for goods lost.^4

Goods Damaged. — A\'here consignee of goods pays the freight in advance,
and on delivery the merchandise was found to be seriously damaged by the
negligence of the vessel, the freight so paid in advance could be recovered

§ 43 55. Lighterage. — Which party is chargeable with the expense of light-
erage is governed by the terms of the contract of affreightment or the charter
party, and in the absence any stipulation in respect to such expense, by the custom
of the port of discharge.^o A bill of lading provided that, unless the bill by
■express written agreement was to bear the cost of lighterage, it was agreed that
the lighterage was for account and risk of the cargo, custom of the port not-
withstanding. The bills contained a written clause that the freight was to be
delivered by steamer or lighter at the steamer's option at a certain railroad in
Rio de Janeiro, provided there was enough water and length to get alongside
•dock. The freight contract was indorsed, "These rates include delivery * "* *
providing there is water enough for craft to get alongside dock, and also include
all derrick costs in discharging." The bill of lading did not provide that the
■cost of lighterage should not be at the expense of the cargo, but should be con-
strued to mean that, if there was water and length enough to get the steamer
alongside the dock, it was then at the steamers option to discharge at the dock,
or deliver by lighter at her own expense; the word "craft"' meaning the steamer
in (|uestion.-^'

31. Recovery back where goods not charged both at Nome, the sailing point.

carried. — The Bird of Paradise (U. S.). 5 and thev were not afterward forwarded,

Wall. 545. 18 L. Ed. 662; The Kimball held, that on the total failure of the voy-

(U. S.\ 3 Wall. 37. 18 L. Ed. 50; Griggs age the passengers are entitled to have

V. Austin (.Mass.), 3 Pick. 20, 15 Am. Dec. the return of their freight money. The

175; Brown i: Harris (Mass.), 2 Gray 359; Arthur B., 1 Alaska 403.

IVIinturn r. Warren Ins. Co. (Mass.). 2 32. Vessel unseaworthy at commence-

Allen 86; Benner z'. Equital)le Safety Ins. merit of voyage. — Dickinson z\ Haslet

Co. (Mass.). 6 Allen 222; Chase v. Alii- (Md.), ;: Har. & J. 345.

ance Co. (Mass.), 9 Allen 311. 33. Freight earned, ship lost or not

By the American law freight is due lost. — Burn Line z\ United States, etc.,

only if the goods are carried to destina- Steamship Co., 150 Fed. 423.

tion. and, even if prepaid, may be recov- 34. Griggs v. Austin (Mass.), 3 Pick,

•ered back on a failure to make delivery, 20, 15 Am. Dec. 175.

unless expressly otherwise provided in 35. Goods damaged. — The Konigin

the contract. Decree, 150 Fed. 423, re- Luisc, 173 I-'cd. 811.

versed in Burn Line z>. LTnitcd States. 36. Lighterage. — Mencke v. Cargo of

etc.. Steamship Co., 162 Fed. 298. Java Sugar, 187 U. S. 248, 47 L. Ed. 163,

Where a vessel took freight and pas- 23 S. Ct. 86.

sengers for Kotzebue Sound, but wholly 37. Herr v. Tweedie Trading Co., 181

failed to make the voyage, and dis- Fed. 483.

§§ 4356-4357 carriers. 3950

§§ 4356-4378. Demurrage— § 4356. In General,— Definitions. — Ordi-
narily demurrage is the agreed additional payment by the charterer for the al-
lowed detention of the vessel beyond the period specified in the charter party .^^

Necessity for Pecuniary Loss. — It is not the mere fact that a vessel is de-
tained that entitles the owner to demurrage. There must be a pecuniary loss,
or at least a reasonable certainty of pecuniary loss, and not a mere inconvenience
arising from an inability to use the vessel for the purpose of pleasure.^'' A ship
is not entitled to an allowance or demurrage for delay under a contract for
repairs where the vessel had no charter, and was not employed when the work
was commenced, and was not offered a charter until after its completion."*^

Demurrage in Nature of Penalty. — If a sum agreed to be paid for delay in
completing repairs on a ship is regarded as a penalty, a court of admiralty will
not enforce the payment where the facts are such that a court of ecjuity would

Damages in Nature of Demurrage. — An action can not be maintained for
demurrage where the bill of lading says "no demurrage." Nevertheless, an ac-
tion for damages in the nature of demurrage may be maintained where the con-
signee has been guilty of unnecessary and unreasonable delay. ■*-

§ 4357. Charter Party Provisions. — A deliberate contract, made by the
parties in a charter party, giving the charterer the right to designate the place of
discharge, and providing that lay days shall commence when the vessel is ready
to discharge, can not be varied or relaxed on the ground that its enforcement
subjects the vessel to an unreasonable delay. "^^

Erased Clauses. — The erasure, before execution, from a printed form of a
charter party, of the clauses fixing the number of lay days and the rate per
day for demurrage, or the failure to fill the blanks therein, leaves the rights
of the parties with respect to demurrage or damages for detention to be deter-
mined by the general rule as to reasonable dispatch."*"*

Charterer Required to Pay Towage.— A provision of a charter party re-
quiring the charterer to pay towing charges from the mouth of a creek to the
dock of the charterer thereon for discharge does not require the charterer to
provide the tug to 'do such towing nor render it liable for delay in obtaining such

Construed in Connection "with Telegram. — A bill of lading containing the
words "no demurrage," and a contemporaneous telegram from the consignor, a
quartermaster, to the consignee, another quartermaster, directing him to "be

38. Demurrage. — Morgan v. Garfield, to lose, and can only be allowed when
etc., Coal Co., 113 Fed. 520. profits have either actually been lost or

Demurrage is, strictly, a sum due by may be reasonably supposed to have

express contract for the detention of a been lost. The Colombia, 197 Fed. 661,

vessel, in loading and unloading, beyond decree affirmed in Rasmussen v. Home

the time allowed in the contract of af- Industry Iron Works, 199 Fed. 990, 117

freightment, and may also apply to the C. C. A. G66.

improper detention or delay of a vessel. 40. The Colombia, 197 Fed. 661.

Southern R. Co. v. Lewis, 165 Ala. 451, 41. Demurrage in nature of penalty. —

51 So. 863. The Colombia, 197 Fed. 661.

Every improper detention of a vessel 42. Damages in nature of demurrage.

may be considered a demurrage and com- —Philippine Trading Co. v. United States

pensation in that way may be obtained nj c^ ~) 47 Ct CI 328

?'p'^-««-^°.".^?'r" ?:^^°- '''• ^^^^°"' ^^ 43.^' Charter' party provisions.-Ander-

oa tIt ■ ^-^V, '^^ ''"• . , rr, son v. Moore & Co., 102 C. C. A. 362,

39. Necessity for pecuniary loss. — The ir.Q r- 1 r^
Conqueror, 17 S. Ct. 510, 166 U. S. 110, "^ ^^^" ^^-

41 L. Ed. 937, reversing decree, 49 44. Erased clauses.— Donnell v. Amos-

Ped. 99. keag Mfg. Co., 118 Fed. 10, 55 C. C. A.

Necessity for loss of profits. — "Demur- l''^-

rage," in the proper sense of the term, is 45. Charterer required to pay towage,

an allowance to a vessel in compensation — Eaton v. Cargo of Lumber, 180 Fed.

for the earnings she is improperly caused 513.



§ 4357

ready to unload promptly," may be taken together to constitute an agreement
that reasonable diligence will be exercised in discharging the cargo. •*'^

Provision as to Precedence in Discharging- Freight. — Where a bill of
lading, besides the general provision fixing the lay days for discharging, contained
a clause providing that the vessel should have precedence in discharging over all
vessels arriving or giving notice after her arrival, and should be compensated in
demurrage for any violation of such provision, the provision for demurrage for
a delay caused by a failure to discharge the vessel in her turn controlled the
provision fixing the time allowed for lay days.'*'''

Provision for No Demurrage. — An action can not be maintained for demur-
rage where the bill of lading says "no demurrage." Nevertheless, an action for
damages in the nature of demurrage may be maintained where the consignee
has been guilty of unnecessary and unreasonable delay. ■^^

Contract Impossible of Performance. — Alleged impossibility of perform-
ing the conditions of a contract does not relieve the owners from fulfilling a
provision requiring the collection of demurrage or an indorsement on the bill

Online LibraryThomas Johnson MichieA treatise on the law of carriers (Volume 4) → online text (page 158 of 214)