ferred to in the third section of this chapter have proceeded, it is impossible not to regret the uncertainty introduced, by their almost irreconcileable conflict, into the construction of contracts of charterparty. The maritime law, as far as it relates to the owners and masters of ships, is founded upon the principle that the master is the servant of the owner. As such servant, the master is entrusted with authority over the property in his charge much more extensive than that which the lessee of a vessel for a voyage or a term could have power to delegate. In our law, also, he possesses the same authority. By the master's contract with sub-freighters the owner of a chartered ship is bound; by his bottomry bond the ship itself may be pledged to an extent much beyond the interest of the charterer; to him is entrusted the certificate of registry on which the names of the proprietors and the incumbrances on their property in the ship appear; for losses occurring through his misconduct, and the misconduct of the mariners engaged by him, the owners are responsible to the extent of the value of the ship and her freight; and yet, when it becomes necessary to enforce the ordinary common-law security for that which alone makes a ship valuable to her owner-the freight earned by her-by dint of subtle distinctions between the contract of locatio rei et operarum and the contract of locatio operis, the possession of the master is made out not to be the possession of the owner. There seems, indeed, to be little ground for wonder, that, in most of the cases which have been determined against the shipowner's lien for freight, and against his liability for the acts of the master, learned judges of eminent authority have been reluctant to acquiesce in the decision.

Except in the case of a simple locatio rei (z)—the lease at a rent of a ship, to be manned and navigated by the lessee,-every object which a prudent merchant and a prudent shipowner can be supposed to contemplate on entering into a contract of affreightment, would be effected by considering the master to be the servant of the owner; a relation between them which may well consist with the agency of the master for the freighter, in his dealings with third parties. The maritime law of France is founded, like our own, upon the doctrines of the civil law; and the incidents to the different descriptions of the contract of hiring are not overlooked by the distinguished jurists whose works in the French language we are accustomed to consult. Pothier, adverting, in his Treatise on Charterparties, to the locatio rei et operarum and the locatio operis, says, that the difference between them is purely speculative, and that in both the obligations of the master and the merchant are the same (a). The contract of charter-party to which the regulations of the ordinance of Louis the Fourteenth, and of the Code de Commerce, apply, is a contract by which the proprietor of a ship already manned and

(z) The charter-parties of the East India Company appear to have been of this description.

(a) Charter-partie, p. 1, s. 5, p. 232.

equipped for mercantile adventure, engages to employ her in the service of the freighter in the same way that the proprietor of a coach undertakes to carry goods or passengers from place to place (b). The services of the master and mariners are contracted for and let with the ship; but they do not cease to be the servants of the owner, to whom all the rights, and among them the right of retention for his freight, as well as all the responsibilities of ownership, attach.

The courts of the States of the American Union (c), on the other hand, in their adoption of our refinements, have reaped for their mercantile communities all the uncertainty attending them; and there and here, as the law now stands, it will be useful for the shipowner 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 charterparty, 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 (d).

(b) Rogron, Code de Commerce, art. 273.

(c) This highly vexed question, and so important in its consequences to the claim of lien, and the responsibilities of ownership, depends on the inquiry, whether the lender or hirer under a charty-party be the owner of the ship for the voyage. It is a dry matter-of-fact question, who by the charterparty has the possession, command, and navigation of the ship. If the general owner retains the same, and contracts to carry a cargo on freight for the voyage, the charter-party is a mere affreightment, sounding in covenant: and the freighter is not clothed with the character or legal responsibility of ownership. The general owner, in such a case, is entitled to the freight, and may sue the consignee on the bills of lading in the name of the master; or he may enforce his claim by detaining the goods

until payinent, the law giving him a lien for freight. But where the freighter hires the possession, command, and navigation of the ship for the voyage, he becomes the owner, and is responsible for the conduct of the master and mariners; and the general owner has no lien for the freight, because he is not the carrier for the voyage. This is the principle declared and acted upon in the greatly litigated and ably discussed case of Christie v. Lewis. And it is the principle declared by the supreme court of the United States in Marcardier v. The Chesapeake Insurance Company, and Gracie v. Palmer, and followed generally by the courts of justice in this country. Kent's Com. and Mer. Law, Edin. edition, p. 135; 2 Brod. & Bing. 410; 8 Cranch's Rep. 49; 8 Wheat. Rep. 605.

(d) Small v. Moates, 9 Bing. 574.

But even this precaution will not enable the master to assert a right 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 (e).

ton.

In a very recent 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 1,500l., 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 1,000l. were made by the defendants' agents to the captain in the 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 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

(e) Ante, p. 254; and see Smith v. Sieveking, 5 E. & B. 589; 24 L. J. Q. B. 257.

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 that 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 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 (b)."

7. Regulations of the Merchant Shipping Act Amendment Act, 1862.

Where the owner of any goods imported in any ship from foreign parts into the United Kingdom fails to make entry thereof, or having made entry thereof to land the same or take delivery thereof, and to proceed therewith with all convenient speed, by the times severally hereinafter mentioned, the shipowner may make entry of and land or unship the said goods at the times, in the manner, and subject to the conditions following; (that is to say,) (c)

(1.) If a time for the delivery of the goods is expressed in the charter-party, bill of lading, or agreement, then at any time after the time so expressed:

(2.) If no time for the delivery of goods is expressed in the charterparty, bill of lading, or agreement, then at any time after the expiration of seventy-two hours, exclusive of a Sunday or holiday, after the report of the ship:

(3.) If any wharf or warehouse is named in the charter-party, bill of lading, or agreement, as the wharf or warehouse where the goods are to be placed, and if they can be conveniently there received, the shipowner in landing them by virtue of this

(b) Matthews v. Gibbs, 30 L. J. Q. B. (N. S.) 55.

(c) 25 & 26 Vict. c. 63, ss. 67-78.

enactment shall cause them to be placed on such wharf or in such warehouse :

(4.) In other cases the shipowner in landing goods by virtue of this enactment shall place them in or on some wharf or warehouse on or in which goods of a like nature are usually placed; such wharf or warehouse being, if the goods are dutiable, a wharf or warehouse duly approved by the Commissioners of Customs for the landing of dutiable goods :

(5.) If at any time before the goods are landed or unshipped the owner of the goods is ready and offers to land or take delivery of the same, he shall be allowed so to do, and his entry shall in such case be preferred to any entry which may have been made by the shipowner:

(6.) If any goods are, for the purpose of convenience or assorting the same, landed at the wharf where the ship is discharged, and the owner of the goods at the time of such landing has made entry and is ready and offers to take delivery thereof, and to convey the same to some other wharf or warehouse, such goods shall be assorted at landing, and shall, if demanded, be delivered to the owner thereof within twenty-four hours after assortment; and the expense of and consequent on such landing and assortment shall be borne by the shipowner : (7.) If at any time before the goods are landed or unshipped the owner thereof has made entry for the landing and warehousing thereof at any particular wharf or warehouse other than that at which the ship is discharging, and has offered and been ready to take delivery thereof, and the shipowner has failed to make such delivery, and has also failed at the time of such offer to give the owner of the goods correct information of the time at which such goods can be delivered, then the shipowner shall, before landing or unshipping such goods under the power hereby given to him, give to the owner of the goods or of such wharf or warehouse as last aforesaid twenty-four hours' notice in writing of his readiness to deliver the goods, and shall, if he lands or unships the same without such notice, do so at his own risk and expense.

If at the time when any goods are landed from any ship, and placed in the custody of any person as a wharf or warehouse owner, the shipowner gives to the wharf or warehouse owner notice in writing that the goods are to remain subject to a lien for freight or other charges payable to the shipowner to an amount to be mentioned in such notice, the goods so landed shall, in the hands of the wharf or warehouse owner, continue liable to the same lien, if any, for such charges as they were subject to before the landing thereof; and the wharf or warehouse owner receiving such goods shall retain them until the lien is discharged as hereinafter mentioned, and shall, if he fail so to do, make good to the shipowner any loss thereby occasioned to him.

Upon the production to the wharf or warehouse owner of a receipt for the amount claimed as due, and delivery to the wharf or ware