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not loading in a reasonable time, the delay complained of having Chap. 1. been caused by an accident to the steam-engine of a colliery, by which accident it was known to both parties at the time of their contract that some delay would be caused, it was held that if the colliery got to work within a reasonable time, and the vessel was loaded within a reasonable time after, the charterers were not liable (e).

By a charter-party the merchant engaged to pay 41. 158. per ton for goods shipped at Bombay for London, cotton to be calculated at fifty cubic feet per ton. In an action brought by the shipowner it was held, that evidence was admissible for the defendant of a usage to pay according to the measurement taken at Bombay before the goods were loaded; but that, in answer to it, the plaintiff was at liberty to prove that the master had objected to receive the goods at the Bombay measurement, measured them himself on board, and delivered an account of that measurement to the shippers (f). Evidence had also been offered at the trial of a bill of lading delivered to the shippers, stating the measurement on board as well as the measurement at the screw, but the learned judge was of opinion that this should have formed part of the original case.

"With respect," said TINDAL, C. J., " to the evidence tendered by the plaintiff in the way of reply, we think such evidence ought to have been received; for, as it appears to us, the evidence tendered had a direct bearing upon the point, whether the usage set up was a reasonable usage or not. Evidence of the extent of the difference between measurement on the merchant's premises and measurement at the time of shipment, might be material to enable the judge to form his opinion upon the reasonableness of the usage; and if the usage should appear to be in a high degree unreasonable on this account, such evidence might also have weight with the jury, on the question whether the usage did or did not exist in fact."

A person who had engaged a passage in a ship advertised to sail on a particular day, and refused to go with her after that day, was, on proof of a usage that in such cases half the passage money becomes forfeited, held liable to that extent (g).

Where proof was given that by the custom of a port three months interest and discount is deducted from freights payable under bills of lading on goods coming from certain ports, it was held in an action by the shipowner to recover the full freight under a bill of lading, "he or they paying freight for the said goods five-eighths of a penny sterling per pound, five per cent. primage and average accustomed;" that the contract in the bill of lading was qualified by the local usage (h).

(e) Norris v. Dresser, 9 Ex. 485; 23 L. J. Ex. 210.

(f) Bottomley v. Forbes, 5 Bing. N. C. 121; 6 Scott, 866. See Gould v. Oliver, 2 Scott, N. C. 241.

(g) Yates v. Duff, 5 C. & P. 369.

(h) Brown v. Byrne, 3 E. & B. 703 23 L. J. Q. B. 313.

Part IV.

So a custom to allow discount on freight proved to have been established in all the ports of North and South America, but not of Central America, was held incorporated in a contract for a voyage from a new state of Central America, which had been lately annexed to the United States (a).

d

Evidence was held admissible to prove that by the usage of trade at Trinidad, a stipulation in a charter-party to provide a "full and complete cargo of sugar, molasses or other produce," was satisfied by providing a full cargo of molasses and sugar, packed in hogsheads and puncheons, with a few tons of other produce; although that mode of packing molasses and sugar left broken stowage, which might have been filled with tierces of sugar, or other small packages (6); and proof being given that those articles could be conveyed with greater safety in that way, the usage was decided to be a legal and reasonable one. But where a ship was chartered to Hong Kong, "the ship to be consigned to the charterer's agents there free of commission on that charter," a declaration alleging that by the usage of the London and China trade the word consigned imported an engagement on the part of the shipowner that the charterer's agents should be entitled to commission on a return cargo, if procured, whether through their agency or not, was held inadmissible (c).

In Cockburn v. Alexander (d), there being no ambiguity in the words of the charter-party by which a different rate of freight was stipulated for pressed and unpressed wool, evidence was held inadmissible to show that by the custom of the place of loading the cost of pressing wool was to be borne by the shipowner.

7. Bills of Lading for Goods shipped under Charter-party.

[When goods are put on board in pursuance of a charter-party, the master is to sign for them bills of lading to the effect mentioned in the fourth chapter of this part, the charter-party being the instrument and evidence of the contract for the conveyance, and the bill of lading the evidence of the shipping of the particular merchandise, to be conveyed in pursuance of the contract. But the master cannot be required to express in the bills of lading a less rate of freight than is mentioned in the charter-party (e).]

Where it was agreed by charter-party that the ship should be at the disposal and direction of the merchant, that the master should

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receive a cargo at London, and proceed therewith to any port or ports Chap. 1. in Spain and Portugal, or either, as he should be ordered by the merchant, and there deliver the cargo agreeably to the bills of lading that should have been signed for the same; the merchant having loaded the ship for Lisbon, and the master signed bills of lading for delivery there-it was held that the merchant could not change the destination and send the ship to Gibraltar, without giving up the bills of lading to the master, or at least offering a sufficient indemnity against any claims that might be made upon him by the holder thereof (f).

(f) Davidson v. Gwynne, 12 East, 381.

Part IV.

CHAPTER II.

OF THE SHIPOWNER'S LIEN FOR FREIGHT; AND HEREIN,

SECT. 1. Maritime and French Law on this Subject, p. 216.

2. Of the Clause in Charter-parties whereby the Merchant binds the Goods p. 217.

3. Of the Lien for Freight of the Owner of a Chartered Ship, p. 221.

4. Of Cases in which the Shipowner's Lien for Freight has been held to have been Limited by him, p. 231.

5. Cases in which Questions have arisen as to the Waiver or Reservation by the Owner of his Lien, p. 234.

6. Remarks on the Cases cited, p. 236.

7. Provisions of the M. S. Act Amendment Act, 1862, and Customs Act, p. 240.

1. Maritime and French Law on this Subject.

By the marine law, the ship and freight are bound to the performance of the covenants of the shipowner, and the goods to the performance of the covenants of the merchant. "Le batel," says Cleirac, "est obligé à la marchandise et la marchandise au batel" (a). By the French ordinance it is expressly provided, "That the ship, with her furniture, equipment, and apparel, and the cargo, are respectively bound to the performance of the covenants in the charter-party." And this provision is adopted, word for word, in the Code de Commerce. Valin informs us that the word affectés in this article is to be read affectés pur privilège (b). But the right of the merchant who would seek to make this privilege available, ranks low in the order of precedence of privileged claims against the ship; the legal expenses attending a sale, the demands of pilotage and custody of the vessel, for stowage of furniture and apparel, for repairs at the last port, for the wages of masters and mariners accrued due during the last voyage, for moneys borrowed by the master on his last voyage, for purchase-money of ship, furniture, and stores, remaining unpaid, for sums due to material men, shipwrights, and lenders on bottomry, before her last departure from port, and for premiums of insurance, being preferred to it. The privilege of the shipowner against the goods for his freight is of a more beneficial character. Under the empire of the ordinance, the master was not entitled to detain the goods in his ship until payment

(a) Cleirac on art. 21 of the Jugemens d'Oleron: Us et Coutumes de la Mer,

(b) Valin, Com. sur. l'Oleron, liv 3, tit. 1, art. 11. Code de Commerce, art. 191.

of the freight due upon them, because that would have deprived the Chap. 2. consignee of the opportunity of inspecting them, and of ascertaining if they had been injured by the master's fault; but he was at liberty to stop them in the lighter, on the quay, or in the warehouse; and if third parties had not previously acquired an interest in them, he might, by a formal demand of the freight within a fortnight of their delivery, preserve his privilege against the creditors of the consignees.

By the Code de Commerce (c), these regulations have been modified. The master cannot, it seems, now detain the goods in his ship, but he has a right to insist upon their deposit in a warehouse until his claim for freight is satisfied; and, within a fortnight after the delivery to the consignee, he may, unless they have passed by sale and transfer to third parties, in which case the maxim, "Meubles n'ont pas de suite étant en tierce main" applies, assert his claim upon them in preference to the claims of other creditors.

Clauses are now usually inserted in French charter-parties by which the contracting parties expressly recognise these dispositions as the basis of their agreement (d).

2. Of the Clauses in Charter-parties whereby the Merchant
binds the Goods.

In England, also, [it is usual for each of the parties to these contracts to bind himself, his heirs, executors, and administrators; and the owner or master to bind the ship and her freight, and the merchant the cargo to be laden, in a pecuniary penalty for the true performance of their respective covenants. This is commonly done by a clause at the end of the instrument. Such a clause is not the absolute limit of damages on either side. The party may if he thinks fit, ground his action upon the other clauses or covenants, and may in such action recover damages beyond the amount of the penalty, if in justice they shall be found to exceed it (e). On the other hand, if the party sue on such a penal clause, he cannot in effect recover more than the damage actually sustained.

But although the ship and freight are by the terms of a charterparty expressed to be bound to the performance of the covenants on the part of the owners or master, and this is conformable to the maritime law; yet (f) there does not appear to be at present any mode of obtaining in this country the benefit of the security of the ship itself in specie for the performance of such a contract made here. Never in this country does the clause whereby the merchant binds the cargo give to the owner a lien on the cargo for any payment for which he might not detain it in the absence of such a clause; so]

(c) Art. 306.

(d) Formulaire, tit. 6; Code de Com. merce, par Rogron.

(e) Harrison v. Wright, 13 East, 343.

(f) See ante, p. 86; see now when the Court of Admiralty has jurisdiction in an action in rem, Index Admiralty.

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