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 (y) of this case, that, "if sustainable at all, it must rest upon the authority of Colvin v. Newberry" (z) 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 (a), 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 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 (b) "that the owner has not a lien on the goods mentioned in the bills (y) Per Cresswell and Willes, J. J., in Gilkison v. Middleton, 2 C. B. (N. S.) 134. (z) Ante, p. 39. 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 (c), "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, as a general 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 (d), "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 (e), “being expressly made liable for all freight due under the charter-party, it follows that on the arrival of the ship there was 9007. 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 (f), "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, the shipowner is bound"-" If," said Baron Martin, in the case of Shand v. Sanderson (g), "these goods were the charterer's goods, the shipowner, assuming the payment at two months to be out of the question, would have had a right to hold the goods till the charter-party freight had been paid, but in this charter-party there is a provision that the master shall sign bills of lading at any rate of freight without prejudice to the charter-party; and if a third person gets the bill of lading for a good consideration, bona fide, he is entitled to have the goods delivered to him on payment of the freight therein stipulated for"-" With regard," said Pollock, C. B., in the same case, "to the meaning of the clause, without prejudice to the charter-party,' it does not mean that the holder of the bill of lading is to pay freight according to the charter-party, but that the charter-party being made, (c) Ante, p. 248. (d) 19 L. J. 63. (f) 3 H. & N. 705. (g) 4 H. & N. 381; 28 L. J. (N. S.) Ex. as a matter of contract between the parties to it, the master signing bills of lading at a less freight shall not prejudice the shipowner's right to recover the charter-party freight from the charterer." The decision of the courts in all these cases was in conformity with the opinions thus expressed. It has been decided, on the other hand, that, although the goods of third persons laden on the ship can only be detained for the sums that they may have agreed to pay the charterer, or that may be mentioned in the bill of lading, his own goods and the goods of those who stand on his title, or which are linked by collusive arrangements with it, may be detained not only for freight, properly so called, but also for a sum agreed to be paid for the use and hire of the ship, and that the bankruptcy of the charterer, or any assignment or pledge made by him of his goods after their shipment, does not deprive the owner of his right (a). In some of the cases (b) which have been referred to in this section, the owner's right of lien for freight was reserved to him by the charter-party in express terms. The insertion of a clause of this kind will be conclusive in favour of the owner's lien, to some extent, under charter-parties which without it might on this point be of doubtful construction; but it will not enable the master to assert against sub-shippers a right of lien on goods for any greater amount than is stipulated by the bill of lading which he has signed, or by any contract between the charterer and the shipowner which, being expressly referred to in the bill of lading, is incorporated with it (c). The owners in these reservations often stipulate that they shall have an absolute lien on the cargo for all freight, dead freight, and demurrage; and the object of them is rather to secure a right of lien (a) Faith v. East India Company, 4 B. & A. 630. Small v. Moates, 9 Bing. 594. Gledstanes v. Allen, 12 C. B. 202. Kern v. Deslandes, 10 C. B. (N. S.) 205; 30 L. J. (N. S.) C. P. 297. Shand v. Sanderson, 4 H. & N. 381; 28 L. J. (N. S.) Ex. 278. In Thompson v. Traill, 2 C. & P. 334, Lord Tenterden is reported to have decided, that a master of a ship who had refused to re-deliver goods to the owner of them, on the ground that they were shipped for a particular port to which he should convey them, was not guilty of a conversion. In that case there was no tender of the freight which had begun to be earned, or of any compensation for the trouble of getting them from the hold; it was a general ship, and the master had signed a bill of lading to a different person. But in an action of trover against the master of a vessel chartered for a gross sum payable at a future time, for goods which had been sold to the charterer, and shipped on his account, by the plaintiff, who still held the mate's receipt for them, and between whom and the charterer an agreement had taken place to rescind the contract of sale, the refusal of the master to re-deliver the goods on demand, and offer to pay all reasonable charges, and every lawful claim the owners might have on the goods, was held to be a wrongful conversion. Thompson v. Small, 1 Com. B. Rep. 328. See Tindall v. Taylor, 4 E. & B. 219; 24 L. J. (N. S.) 12, where it was held, that a person who has shipped goods in a general ship is not entitled at pleasure to demand them back without payment of the freight. The question of lien did not arise in that case, for a lien only attaches where the freight had been earned by performance of the voyage. (b) Small v. Moates, Bing. 574. Foster v. Colby, 3 H. & N. 705. Gilkison v. Middleton, 2 C. B. (N. S.) 134. (c) Smith v. Sieveking, 4 E. & B. 945; 5 E. & B. 589. for the two last claims than to enlarge the lien for freight or ship's hire, which, within the limits already explained, exists without any stipulation for it. The meaning is, that wherever there can be a lien, the shipowner is to have it, and such lien is to extend to dead freight and demurrage (d). 5. Cases in which Questions have arisen as to the Waiver or Reservation by the Owner of his Lien. The right may exist, if it appears from the instrument in any way that the payment is to be made in cash or bills before or at the delivery of the cargo; or even if it does not appear that the delivery of the cargo is to precede such payment. On the other hand, it may distinctly appear from the charterparty that the owner, has been content to trust to the personal responsibility of the merchant, and by fixing a specific term of payment, before or after the delivery, to waive his right of lien (e). If there be a special contract by the owner, or the master, with his authority, for a particular time and mode of payment, and that contract be inconsistent with the owner's right to retain possession of the goods, it will of course defeat a claim to exercise such right (f). (d) Per Watson, B., Foster v. Colby, 3 H. & N. 705. (e) Lucas v. Nockells, 4 Bing. 729. Cowell v. Simpson, 16 Vesey, 275. Chase v. Westmore, 5 M. & S. 180. Crawshaw v. Homfry, per Holroyd, J., 4 B. & Ald. 52. Thompson v. Small, 1 C. B. 328. Alsager v. St. Katherine's Dock Company, 14 M. & W. 794. Foster v. Colby, 3 H. & N. 705; 28 L. J. (N.S.) 81. Shand v. Sanderson, 4 H. & N. 381; 28 L. J. Ex 278. Tamvaco v. Simpson, 34 L. J. C. P. 268; Exch. 1 L. R. C. P. 363. (f) In a case already cited, and in which the master, being authorized by a charterparty to sign bills of lading, at such freights as might be required by the charterer and his agents, had, by bill of lading, made the goods deliverable to consignees, "or their assigns, paying freight for the said goods here ;" and, in the margin, "freight payable in Liverpool" (the port of shipment)" one month after sailing of the vessel, lost or not lost;" the owners' lien for the bill of lading freight was upheld by the Court of Common Pleas. Gilkison v. Middleton, ante, p. 253. On the authority of that case, and in disregard of the circumstances which had been urged in argument as distinguishing it, the Court of Queen's Bench, in a case in which, by the bills of lading, the "freight" was "to be paid by the shippers," with a memorandum in the margin, "one month after sailing, ship lost or not lost," "to be taken from the ship's tackles, free," the ship having been put up by its owners as a general ship, and the master, therefore, their agent only, in signing the bills of lading, held against assignees of them, that the owners had not waived their lien. Neish v. Graham, 8 E&B. A decision, conflicting with the latter of these cases, and in which, as in it, there was no charter-party, was, however, about the time of its determination, and before it and Gilkison v. Middleton had been reported, pronounced by Lord Wensleydale, delivering the judgment of the Judicial Committee of Privy Council; by whom it was held, on a bill of lading, containing this form, "Freight for the said goods to be paid by the shippers;" and, in the margin, "Freight payable one month after sailing, ship lost or not lost; that, by thus stipulating for a payment to be made in lieu of freight by the shippers, at a time fixed, irrespective of, and having no reference to the safe delivery of the goods at their destination, the owners had waived their lien. How v. Kerchener, 11 Mood. P.C.C., p. 21. To this decision, in a case subsequent to the publication of the Reports of Gilkison v. Middleton, and Neish v. Graham, and in which, also, there was no charter-party, the goods being made deliverable by the bills of lading to “shipper's order or assigns, he or they paying freight for them here; " and, in the margin, "Payable at Liverpool" (the port of shipment) "to E. M." (an appointee of the owners) "one month after sailing, ship lost or not lost"-the Judicial Committee, in a judgment pronounced by Lord Kingsdown, dissenting from both those cases, and treating them as not distinguishable as respects the point in question from each other, or from the case before the committee, adhered. Kerchener v. Venus, 12 Moore, P.C.C. 361. The mischief of perplexing the masters of ships in their dealings with the holders of bills of lading, and of misleading persons to whom bills of lading may be offered by recognizing a lien for freight inconsistent with express stipulations on the face of them for payments, not for the consideration executed of having carried the goods to their destination, but, as was said in Blakey v. Dickson, and Andrew v. Moorhouse, post, pp. 363-4, "for taking the goods on board, in order to their transportation," seems to have been the ratio decidendi in both the cases above stated, to have been determined When the payment is to be made by bills, the right of retention continues until they are given, and would, it is conceived, revive, in case of their dishonour, before the shipowner had parted with the goods (g). Where the payment was to be made by approved bills, and the owner objected to a bill delivered to him, but afterwards negociated it, it was held that he thereby lost the benefit of his objection, and his right to retain the goods (h). The master's being turned out of possession upon the vessel's being captured, will not deprive him of his lien for freight in case of recapture (i). Where it appeared that the goods had been deposited in pursuance of an Act of Parliament, in the East India Docks, or the warehouses of the East India Company, and notice given to detain the goods or their proceeds for the freight, by which the lien of the owner was preserved,-the company was considered to be the agent of the owner for this purpose (k). It has been held that the master may detain, by virtue of his common-law lien, any part of the merchandise for the freight of all that is consigned to the same person (1). But if goods be sent under different contracts to be conveyed to different places, the lien for the freight of each will only attach to the goods in respect of which it has been earned (m). 6. Remarks on the Cases cited. Notwithstanding the elaborate explanation by Tindal, C. J., in Belcher v. Capper (n), of the principle on which the decisions re by the Judicial Committee. Provisions in bills of lading making freight pay able by consignees within a fixed time after shipment, and at the port of shipment, are of a nature to provoke inquiry. They will generally be confined to cases, in which notice of their issue may reach the master, before he is called upon to make delivery. Where freight is payable to charterers under bills of lading, the question whether such express stipulations have been made; and, if made, whether by authority of the owners, and binding upon them, must frequently be a question of construction, and without disputing the principle which the cases in the Privy Council establish, or that the case of Neish v. Graham was within its range, a doubt may be allowable whether the case of Gilkison v. Middleton, was so. In that case, the authority given by the charter-party to the master, to sign bills of lading at any rates of freight the charterers might require, without prejudice to this charter-party," was specially and in the very sentence which conferred it, qualified, by an express reservation of the owners' lien on the cargo for all freight due to him under the charter-party; there was no provision in the charter-party extending that authority beyond the legal significance of the words "at any rates of freight; the eargo on which the lien was claimed belonged to the charterers, and there was nothing in the bills of lading to affect the provision in them making the goods deliverable at the port of discharge "unto Messrs. Middleton & Co. (the consignees), or their assigns, they paying freight for the said goods," except the word "here," and in the margin the words "payable at Liverpool within a month of the ship's sailing, lost or not lost," which seem rather to import a collateral agreement on the part of the consignees, who were in that case represented by a partner at the port of shipment, to pay if called upon, within the time mentioned, than an actual payment in lieu of freight, or, as in Neish v. Graham, How v. Kerchener, and Kerchener v. Venus, the liability to pay it, of any one other than the consignees or their assigns. (g) Stevenson v. Blakelock, 1 M. & S. 535, and the observations of Gibbs, C. J., in Hutton v. Bragg, 2 Marsh. 339. (h) Horncastle v. Farran, 3 B. & A. 497. See Belshaw v. Bush, 11 C. B. 191. (i) Ex parte Cheesman, 2 Eden, 181. "His being taken," said Lord Northington, "and by that means out of possession, can make no difference. The owner received the ship on her arrival after the re-capture loco magistri, and as trustee for the master. If he had voluntarily quitted possession of the ship, that would indeed have made a difference." Sed quære; the master's right of lien is the right of the owner. (k) Faith v. East India Company, Trin. T. 1796, before Lord Kenyon; quoted |