1842.

BELCHER

V.

CAPPER.

are proper words of lease, and would of themselves pass the possession." In Saville v. Campion (a), which will probably be cited on the other side, the charter-party contained no express words of demise; and there was, as observed in the judgment, nothing to shew that the delivery of the goods was to precede the payment of the stipulated hire in cash and bills. In Tate v. Meek (b) and Yates v. Railston (c) it is clear there was no demise of the ship, and that the delivery of the cargo and the payment of the freight were to be concomitant acts. Undoubtedly, in Christie v. Lewis (d), although the charter-party contained words of demise, a majority of the judges held that, taking the whole of the charterparty into consideration, the possession of the ship did not pass to the freighter, but remained in the owner; but Dallas C. J. dissented, and thought the case governed by Hutton v. Bragg. The utmost extent to which Christie v. Lewis can be pushed is, that actual words of demise may be controlled by other stipulations in the charter-party, which are inconsistent with an intention to give the charterer possession of the vessel. But here there is nothing to limit or control the words of demise, for every portion of the charter-party is consistent with the charterer having the absolute possession of the ship. In Campion v. Colvin (e) the question arose upon the same charter-party as that in Saville v. Campion. It is submitted that under this charter-party the plaintiffs had a right to the possession of the ship until her cargo was finally discharged, and the plea discloses no answer to the declaration as to the charge of excluding the plaintiffs from the vessel, and refusing to permit them to remove or unload the cargo.

(a) 2 B. & Ald, 503.

(b) 8 Taunt. 280., 2 B. Moore, 278.

(c) 8 Taunt. 293., 2 B. Moore, 294.

(d) 2 Brod. & B. 410., 5 B. Moore, 211.

(e) 3 New Cases, 17., 3 Scott, 338.

With respect to the seventh plea, the validity of that plea depends on the same question as that of the sixth; for the defendants cannot justify the detention of the cargo if they had no lien. The freight for the homeward cargo was payable to the charterer; the captain who was appointed by the charterer as his agent, having signed bills of lading making the goods deliverable to Belcher. As regards the rejoinder to the replication to the seventh plea, it is clearly bad; for all that it traverses is, an inference of law.

The eighth plea sets up an agreement by which Stockdale, before his bankruptcy, agreed with the defendants to deliver to Colchester the bills of lading for the homeward cargo, and to empower Colchester to receive the proceeds, to be applied as in the plea mentioned, and justifies the taking possession of the cargo under such agreement. To this plea the plaintiffs have replied, that at the time of the agreement no part of the cargo was on board the vessel, nor any of the bills of lading in existence, and that before the shipping of the cargo or the existence of the bills of lading, and before Colchester had any control over the cargo, and while Stockdale was the apparent and reputed owner thereof, Stockdale became bankrupt, and the plaintiffs were appointed assignees, whereby the authority given to Colchester and the agreement with the defendants became revoked, &c. The rejoinder states that before the bankruptcy, and before any revocation of the agreement or authority, certain goods were shipped at Sierra Leone by Stockdale's agents, as part of the homeward cargo, which goods were carried to the river Gambia, where, for the more convenient loading of the whole cargo they were landed; and that other goods provided by Stockdale's agents at the river Gambia were, before his bankruptcy, ready for shipment, as a further portion of the homeward cargo; and that afterwards both sets of goods

1842.

BELCHER

V.

CAPPER.

1842.

BELCHER

v.

CAPPER.

were shipped on board the vessel as the homeward cargo thereof. It is clear that the rejoinder affords no answer to the replication; for it appears on the face of the pleadings that Colchester never was in the possession of the cargo under the agreement, or of the bills of lading, previously to the bankruptcy, and consequently that there is no assignment of the goods, at law or in equity, so as to prevent them, on Stockdale's bankruptcy, vesting in the plaintiffs as his assignees.

Bompas Serjt. (with whom was Greenwood), contrà. The tendency of the later decisions has been to increase the power of the ship-owner to hold the cargo until the freight has been paid. Hutton v. Bragg has been repeatedly overruled, and can no longer be considered as law.

The Master &c. of the Trinity House v. Clark was decided on the specific ground that the government had a complete control over the vessel, rather than on the terms of the charter-party. No case has been cited at all analogous to the present, where the point determined was the broad question of lien. There are many cases where, although the charter party contained words of demise, the ship-owner has been held to have a lien. In Paul v. Birch (a), it is said by Lord Hardwicke, "As to the general law, the cargo is no doubt liable to pay the freight, or the expense of carrying the goods." In Mitchell v. Scaife (b) the vessel was let for a voyage from Liverpool to Jamaica and back, and the balance of the freight was to be paid on the delivery of the homeward cargo at Liverpool, by bills, in like manner as here the balance of the freight is to be paid in cash on the vessel's final discharge. In that case the captain had signed bills of lading for the cargo, (which was the property of, and consigned to, a third (b) 4 Campb. 298.

(a) 2 Atkyns, 621.

party), specifying a rate of freight amounting to a less sum than that mentioned in the charter-party. It was held that the owner had a lien on the cargo for the freight specified in the bills of lading, but not beyond. In Birley v. Gladstone (a), where the vessel was let to freight, the owner's claim to freight on the goods actually brought home, was not disputed. In Tate v. Meek, the owner of the vessel covenanted to deliver the cargo at the place of destination, agreeably to bills of lading that should be signed for the same, and the freighters covenanted to pay for the freight and hire of the vessel for the voyage at certain rates per ton, &c.; the said freight to be paid part in cash on the day the vessel should be reported inwards, and the remainder, by bills at two months after date from the day on which the delivery should be complete. The master having signed bills of lading for the delivery of the freighters' goods to order or assigns, they paying freight as per charter-party; it was held that the owner was justified in detaining the goods until payment of the freight stipulated by the charter-party. Gibbs C. J. in delivering judgment says, "The question is, whether the delivery of the goods and the payment by a bill be not concomitant acts, which neither party is obliged to perform without the other being ready to perform the correlative act. We think they are such." In Tate v. Meek undoubtedly there were no words of demise; but such words did occur in Yates v. Railston (b) and Yates v. Meynell (c); notwithstanding which the shipowners were held not to be bound to part with the goods until they received

(a) 3 M. & S. 205. See

(c) 8 Taunt. 302., 2 B. · also Gladstone v. Bailey, 2 Moore, 297.

Meriv. 401.

(b) 8 Taunt. 293., 2 B.

Moore, 294.

1842.

BELCHER

v.

CAPPER.

1842.

BELCHER

v.

CAPPER.

When the fact is

[Maule J. Here,

the freight. Saville v. Campion is in many respects analogous to the present case, and is a strong authority for the defendants. Faith v. The East India Company (a) is also an important case to shew the lien of the ship-owner on the cargo for freight, although such freight is expressed to be payable for the use or hire of the ship. In Christie v. Lewis, Parke J. says, "The question in all these cases generally has been a question of construction, or rather a question of fact arising out of the construction, whether there has been an entire letting or parting with the possession of the ship for given purposes, so that during that time the owner has no efficient control, but the charterer has the full disposition of the ship, or, in other words, to use the language of Gibbs C. J. in Tate v. Meek, whether the delivery of the cargo and the payment of freight are to be considered as concomitant acts. ascertained, the legal result is clear." the bills of lading make the freight on the homeward cargo payable to the charterer.] It is usual where the freight to be paid under the bills of lading is more or less than that stipulated in the charter-party, to make it payable to the charterer. The payment of the freight and the delivery of the cargo clearly are concurrent acts, and the shipowner is not bound to deliver the goods without receiving the freight. In Small v. Moates (b) there was an express contract for a lien, and Tindal C. J. in delivering the judgment of the court says, "An express contract is the strongest and surest ground upon which the right of lien can in any case be placed; and in this charter-party the charterer has, in effect, covenanted with the shipowner, that whatever may be the legal operation of the charterparty as between themselves, the charterer's possession (a) 4 B. & Ald. 630. (b) 9 Bingh. 574., 2 Moo. & Sc. 674.