agent, and that the profit thence arising should be his. If, however, he had as it were abandoned the empty space to the owner, then it might be held that the master acted as the owner's agent, and filled it on his account, releasing the charterer from his obligation to pay, and giving the freight earned to the owner. And if there is a special agreement made that in case of failure to load the return cargo, the freighters will pay a gross sum less than the amount of freight per ton; the master, on the failure to load, will be entitled to the gross sum and also to the freight which the ship may earn by taking on board another cargo. If the ship-owner takes goods on board with the consent of the charterer in that part of the vessel reserved for the use of the officers and crew, he can maintain an action against a shipper, for the freight thereof.3 And it seems that he may 1 Kleine v. Catara, 2 Gallis. 61. In this case a part of a ship only was chartered by the plaintiff for a voyage from Havana to the United States. Freight was to be paid at the rate of one dollar per quintal of one hundred and twelve pounds net weight on delivery of the cargo in the United States. The owner of the vessel was to send out wine on the outward voyage, on which the plaintiff agreed to advance two thirds of its value, if it could not be sold on its arrival at Havana. The plaintiff wrote to his supposed agent in Cuba to attend to all the stipulations in the charter-party. This he refused to do, but loaded a cargo on the account of, and consigned to strangers to the charter-party. With this cargo the ship sailed, was captured, and released, and finally arrived in Boston. The freight of this cargo amounted to about $5,000 more than that stipulated for in the charter-party. The plaintiff thereupon brought this action to recover the excess. The court held that the contract was put an end to by the failure of the plaintiff to perform his part of the agreement, and that what the captain did, was as the agent of the owner, and for his benefit, more especially as the charterer was not owner for the voyage. Bell v. Puller, 2 Taunt. 285. See also, Puller v. Staniforth, 11 East, 232; Puller v. Halliday, 12 East, 494. In Brown v. Putnam, 2 Met. 275, the defendants agreed with the plaintiffs, the owners of a vessel, to furnish funds to fill eleven twelfths on a joint adventure. The funds not being sufficient, the master obtained goods to fill the deficiency from the consignee, and the defendants received the freight. Held, that the plaintiffs were entitled to it, but as the amount was greater than would have been earned at the current rate, and was allowed by the consignee at such rate, instead of a return commission, which he would have allowed, and which, by agreement, would have belonged to the defendants, they were entitled to deduct it from the freight. 3 In Neill v. Ridley, 9 Exch. 677, 28 Eng. L. & Eq. 436, by the charter-party it was agreed that (the cabin and state-rooms, and sufficient room for cables, ship's stores, etc., throughout the charter-party being excepted) the vessel should take on board from the charterers (who were to have the full reach of the vessel's hold from bulkhead to bulkhead, including the half deck) a full and complete cargo, etc. That such goods only as the charterers might direct should be received on board the said vessel; and that no goods were to be received in the cabin, or any part of the vessel, without the consent of the charterers. Held, that under this charter-party the deck remained in the posses take on board any goods, unless forbidden by the charter-party, which will not enter into competition with the goods of the charterer.1 SECTION III. OF THE LIEN OF A CHARTERED SHIP ON HER CARGO FOR THE FREIGHT. The ship has a lien on the goods she carries for their freight; such, we have repeatedly said, is the general rule; and it is also a favored rule, the policy of the law-merchant binding the ship to the goods, and the goods to the ship, for their mutual benefit, and for the general advantage of commerce.2 Nevertheless it has been made a question, whether, if an owner let his ship to hire by charter-party, he did not thereby give up his possession so far, that he could have no lien on the cargo for his freight. Much confusion has arisen in the English courts, which have extended in some measure, at least, to our own.3 This confusion and difficulty have arisen from the case of Hutton v. Bragg, which was wrongly decided, and from the application of the common law rule that possession is necessary to lien. Abbott (Lord Tenterden), even, in his work on shipping," says, "where there is no possession, actual or constructive, there can be no lien." But this rule is applicable in admiralty, and as we think in commercial law, only so far as it rests on reasonable grounds. We have already had occasion to speak of it in considering the question whether there is a lien for freight when a bill of lading provides that the freight is to be sion of the owners, and they could maintain an action for freight against a person who shipped cattle on board thereof, with the consent of the charterers, the shipper making a verbal promise to the master to pay the general owners. 1 Thus, in Towse v. Henderson, 4 Exch. 890, it was held, that he might take merchandise for freight in the place of ballast, provided it did not occupy more space than ordinary ballast. 2 See ante, p. 124, note 1: p. 125, note 1; p. 145, note 1. 8 See ante, p. 233. 7 Taunt. 14. See also, p. 233, n. 1. 5 Page 288. paid after delivery. We consider that in this country this question in relation to charter-parties is, for all practical purposes, settled, and settled in conformity with reason and justice. The rule we take to be this. If the charterer takes possession of the ship, puts on board a master and crew and pays them and provisions the vessel, he does not bargain for the carriage of his goods, but hires the ship and takes her to himself, and becomes the quasi owner of her, as long as he thus holds her.2 The general owner now carries no goods for any one; and it is nothing to him whether his ship carries goods or not; and if she carries them it is not as his ship, and he has no lien on the goods for his freight,3 and, as we have seen, incurs no liability if they are lost, and this although the charterer is an infant, because the contract between the owner and charterer is in such a case voidable only and not void. Nor are the owners of a chartered vessel liable for wharfage.6 If a charterer chooses to carry goods for others, he, as owner for the time, has a lien on these goods for the freights payable to him. But if the original owner is in possession, his bargain is to carry the goods of the charterer for the money to be paid him; he has, by his servant the master, perpetual possession of the ship, and so of the cargo laden on board of her; and he may retain this possession by his lien on the cargo for his freight, and payment to the charterer by a shipper who puts goods on board will be no defence to an action by the owner.8 But payment to the owner will, in such a case, be a good defence to an action against that shipper by the charterer.9 1 See ante, p. 125, n. 1. 2 Vallejo v. Wheeler, 1 Cowp. 143; Marcardier v. Chesapeake Ins. Co. 8 Cranch, 39; Lander v. Clark, 1 Hall, 355; Pickman v. Woods, 6 Pick. 248; Clarkson v. Edes, 4 Cow. 470; Drinkwater v. Brig Spartan, Ware, 149; The Phebe, Ware, 263, 265; Belcher v. Capper, 4 Man. & G. 502. 3 Drinkwater v. Brig Spartan, Ware, 149; Marquand v. Banner, 6 Ellis & B. 232, 36 Eng. L. & Eq. 136. 8 Clarkson v. Edes, 4 Cow. 470; Ruggles v. Bucknor, 1 Paine, C. C. 358. See also cases, ante, p. 241, note 2. * Holmes v. Pavenstedt, 5 Sandf. 97. If, however, the charterer is in possession of the ship, then payment of freight by the shipper to the charterer would discharge the lien of the owner, certainly if it were paid without notice of the claim and lien of the owner; and we incline to think it would have this effect even with notice, because the owner has authorized by such a charter-party other persons to contract in this way with the charterer. And it is quite clear and well settled, that the owner's lien extends only to the amount actually due from the shipper to the charterer by their contract, although this be less than the amount due from the charterer to the owner.2 1 If the charterer is in possession, and freight is paid to the master, who delivers it to the owner, the master will be liable in an action, brought against him by the charterer, for money had and received. Lander v. Clark, 1 Hall, 355. See also, Shaw v. Thompson, Olcott, Adm. 144. The facts of this case were somewhat peculiar. The action was in personam against the respondents to recover three hundred and fifty dollars, claimed to be due for freight on goods consigned to them. The vessel was chartered to one Stearns, the owner retaining the command, on a voyage from New York to Cuba and back. On the return voyage, goods were shipped consigned to the respondents, for which the freight alleged to be due was payable. The bill of lading contained the clause that freight was payable to the consignees. On arrival, notice was given to the respondents that freight was to be paid to the master or owner. The charterer was indebted on the charter-party more than the amount of freight payable on that shipment. The respondents were willing to pay over $258.10 to whomsoever it belonged, but claimed a right to retain $91.90, which they alleged was due to them from the charterer. The sum of $258.10 was subsequently, but before this action was brought, paid over to the charterer by the consent of the libellant. Held, that as to this, the owner of the vessel had no claim against the respondents, but that he could recover the $91.90. 2 We have seen, ante, p. 241, n. 2, that where a vessel is chartered and the master appointed by the owner, the master cannot sign bills of lading for a less amount than the freight stipulated for in the charter-party, in behalf of the charterer, or one having knowledge of the charter-party. But where the shipper acts in good faith, and has no knowledge of the charter, we apprehend it is well settled that the general owner has no lien except for the amount stated in the bill of lading. Paul v. Birch, 2 Atk. 621; Faith v. East India Co. 4 B. & Ald. 630; The Sch. Volunteer, 1 Sumner, 551, 573, per Story, J. In Christie v. Lewis, 2 Brod. & B. 410, the general owner claimed only the freight due on the bills of lading, and the only question was whether the ship was so let to the hirer that he had no lien. In Mitchell v. Scaife, 4 Camp. 298, it was held that a bona fide indorsee of a bill of a lading, who took it without knowledge of the charter-party, was obliged to pay only the freight due as per bill of lading. So in Howard v. Tucker, 1 B. & Ad. 712, the same principle was applied in the case of an indorsee of a bill of a lading which stated that the freight had been paid. See also, Gilkison v. Middleton, 2 C. B. N. s. 134, 40 Eng. L. & Eq. 295; Gledstanes v. Allen, 12 C. B. 202, 22 Eng. L. & Eq. 382, ante, p. 242, note. In Small v. Moates, 9 Bing. 574, it was held that where the charter-party expressly reserved a lien on all goods laden on board, and goods were once shipped on board by the charterer, And if a vessel is let on shares to the master, the owners cannot maintain an action for the freight; and they are not, on the weight of authority, liable for the wages of the crew.2 We have seen that the charter-party usually provides expressly, that the owner binds the ship and freight to the performance of his part of the bargain, and the shipper binds the cargo to the ship for his performance. But, without these expressions, the law-merchant creates, or implies, this mutual obligation, in every case of a contract of affreightment, whether by bill of lading or charter-party. If, however, the parties choose to stipulate other the lien of the owner attached for all the freight due under the charter-party, and that this lien would not be devested even by a sale of the goods to a third party without notice of the stipulations in the charter-party, and that if the master gave bills of lading to the vendee, and they were indorsed by him for a valuable consideration, the indorsee could not obtain possession of the goods at the end of the voyage by a tender of a reasonable freight for their carriage. The court, however, admitted the general principle that an owner has a lien on goods shipped by a third party only for the freight due on them. 1 Manter v. Holmes, 10 Met. 402. But in Sims v. Howard, 40 Maine, 276, where the master sailed the vessel on shares, paying one half the pilotage and all extra expenses, the captain paying the crew and victualling the vessel, the court held that the master did not have such absolute control of the vessel as precluded the owners from suing for freight. 2 In Skolfield v. Potter, Daveis, 392, which was an action against the owners by seamen for their wages, the defence was that the vessel was let on shares to the captain. Ware, J., expressed his dissatisfaction with the modern cases so far as they hold the owners discharged where the parties furnishing supplies had no notice of the agreement at the time, and refused to extend the doctrine to the case at bar. The language of the learned judge in this case would go to the extent of holding the owners liable in all cases for the wages of seamen, but the case was decided partly on other grounds. The rule as laid down in the text is supported by McCabe v. Doe, 2 E. D. Smith, 64, in which case the master was a part-owner but hired by the charterers, and by Giles v. Vigoreux, 35 Maine, 300, where the court said: "In the case of Skolfield v. Potter, there was a special promise made by the owners to the plaintiff to pay the order drawn on them in his favor by the master when it was presented, and the freight earned on the cargo brought home was collected by one of the owners and retained in his hands. These facts might warrant the decision in favor of the plaintiff, although the vessel was let to the master on shares." See also, Aspinwall v. Bartlet, 8 Mass. 483. And Mr. Justice Curtis, in Webb v. Peirce, 1 Curtis, C. C. 104, speaking of Skolfield v. Potter, said: "There are elements in that case upon which the decision may rest consistently with the principles upon which this case has been decided; and I do not intend to express any opinion as to a claim for wages on a general owner who has received freight earned in the voyage for which wages are claimed." 3 See ante, p. 124, 125. The Brig Casco, Daveis, 184. It is, however, always safer for the owner to make a special contract that he shall have a lien for the freight whatever be the provisions of the charter-party. See Small v. Moates, 9 Bing. 574. Whether VOL. I. 22 |