Note. If the assignment is in writing and absolute, and not by way of chargo (m), the assignee, after giving notice to the persons liable to pay freight, can sue in his own name (n). Where these conditions are not complied with, he can still only sue in the name of the assignor, as before the Judicature Acts (o). An assignment, absolute in form, may be looked into to see whether it is in substance by way of charge (p). Notice of the assignment of freight to the person liable to pay it takes it out of the order and disposition of the assignor (q).

VII. Mortgagee of Ship and Freight.

A mortgagee who has not entered into possession of the mortgaged ship has no absolute right to the freight the ship may be earning, and cannot compel its payment to himself by simply giving notice to the person liable to pay it (r).

On taking actual or constructive possession (s) he then becomes entitled to all the freight that the ship is in course of earning, whether under an express contract (t), or, if none exists, under a quantum meruit (u), or to the freight already earned if it has not yet been paid (v).

Case 1.-E., master of A.'s ship, carried a cargo of wheat" on owner's account," purchased on the credit of P., to whom E. gave bills of lading, for "wheat shipped on owner's account, deliverable to P.'s order at freight of 1s. per ton," and bills of exchange for the price, which A. accepted. A. had mortgaged his ship to M. A. sold the cargo in transitu to K., the

(m) See Burlinson v. Hall (1884), 12 Q. B. D. 347; Tancred v. Delagoa Bay (1889), 23 Q. B. D. 239.

(n) Jud. Act, 1873; 36 & 37 Vict. s. 25, sub-s. 6.

(0) See Pothonier v. De Mattos (1858), E. B. & E. 461; Wilson v. Gabriel (1863), 4 B. & S. 243; and Weguelin v. Cellier (1873), L. R. 6 H. L. 286, as to

set off.

(p) Gardner v. Cazenove (1856), 1 H. & N. 423.

(1) Douglas v. Russell (1831), 4 Sim. 524.

(r) Keith v. Burrows (1877), 2 App. C. 636; Liverpool Marine Co. v. Wilson (1872), L. R. 7 Ch., at p. 511; Gardner v. Cazenove (1856), 1 H. & N. 423; Dean v. M'Ghie (1826), 4 Bing. 45; Kerswill v. Bishop (1832), 2 C. & J. 529; Willis v. Palmer (1859), 7 C. B. N.S. 340.

(s) As by giving notice to the mortgagor and charterer, the ship being at sea, and actual possession impossible; Rusden v. Pope (1868), L. R. 3 Ex. 269: or, where the mortgagor is ship's husband, by his removal by the other part owners and the mortgagee: Beynon v. Godden (1878), 3 Ex. D. 263.

(t) But no more, even though the freight in the contract is nominal: Keith v. Burrows, vide supra.

() Gumm v. Tyrie (1865), 4 B. & S. 680; 6 B. & S. 299.

(e) Keith v. Burrows; Liverpool Co. v. Wilson; Rusden v. Pope, vide supra; Brown v. Tanner (1868), L. R. 3 Ch. 597; Wilson v. Wilson (1872), L. R. 14 Eq. 32. As to priority of mortgagees, see Liverpool Co. v. Wilson; Brown v. Tunner, vide supra.

sale note running: "As cargo is coming on ship's account, freight is to be computed at 55s. per ton." A. indorsed the bills of lading, which he had received from P. on the acceptance of the bills of exchange, to K. with a memo.: “The freight assigned is at the rate of 55s. per ton, and not the nominal amount of 1s. per ton." On the ship's arrival, M., as mortgagee, took possession, and claimed freight at 55s. from K., who refused to pay more than 18. Held, that M. was only entitled to the freight named in the bill of lading, the larger sum being in reality part of the purchasemoney, and no claim of quantum meruit being possible in face of the express contract (w).

Case 2.-A. mortgaged his ship, charters and freight to M., and subsequently chartered her, and mortgaged the freight to N., "the freight to be paid on unloading and right delivery of the cargo." The ship arrived in port, and most of the cargo had been delivered to the consignees, when M. took possession. Held, that as no freight was payable under the charter, till the whole cargo was delivered, M. was entitled by taking possession to the whole freight under the charter (x).

Case 3.-A. mortgaged his ship to M., and afterwards chartered her to C., the charter providing that C. should make advances not exceeding £150 on account of freight, the balance £450 to be paid on delivery of the cargo. C. advanced abroad £300. On the ship's arrival, M. took possession, and claimed £450 balance of freight from C. C. claimed to deduct £150 for advances. Held, that the advance of £150 beyond the £150 warranted by the charter was simply a loan, and not a prepayment of freight, and that therefore C. was not entitled to deduct it from the freight due (y).

Article 148.-Freight: by whom payable.

Freight is primâ facie payable according to the terms of the contract of affreightment, and by the person with whom such contract is made. But a new contract may be presumed as a fact from demand of the goods, and their delivery by the master without insisting on his lien (z). Freight may be payable by

I. The shipper.

II. The consignee.

III. The holder of the bill of lading.

(w) Keith v. Burrows, vide supra.

(x) Brown v. Tanner (1868), L. R. 3 Ch. 597.

(y) Tanner v. Phillips (1872), 42 L. J. Ch. 125. In The Salacia (1862), 32 L. J. Adm. 43, the charter authorised "necessary ordinary expenses": see Article 137.

(z) Cock v. Taylor (1811), 13 East, 399; Sanders v. Vanzeller (1843), 4 Q. B. 260, in which the earlier authorities are discussed. Many of these, e.g., Drew v. Bird (1828), M. & M. 156; Artaza v. Smallpiece (1793), 1 Esp. 23 (on which see Cock v. Taylor, vide supra), and Moorsom v. Kymer (1814), 2 M. & S. 303, must be taken as overruled.

I. The Shipper.

From shipment of goods upon a vessel for a certain voyage, a contract by the shipper to pay freight for such goods is implied (a).

From this implied contract the shipper may be freed, either by express contract in the bill of lading, or by delivery by the master on a bill of lading with an indorsement freeing the shipper, whose terms are known to the master when he delivers the goods (b). The shipper does not free himself from such liability by indorsing the bill of lading so as to pass the property, even to the shipowner (c). Nor will the presence of the clause in the bill of lading, "to be delivered to consignee or assigns, he or they paying freight for the same," free the shipper, if the master deliver under such a bill to the consignee without insisting on his lien for freight (d), unless the master was offered cash by the consignees, and for his own convenience took a bill of exchange, which was afterwards dishonoured, in which case the shipper will be freed (e).

Case.-A. chartered a ship to D. to carry iron at 7s. 3d. per ton; the next day, D., professing to act as A.'s broker, chartered it to C., to carry iron at 8s. per ton; each charter contained clauses making freight payable on signing bill of lading, and giving the owner an absolute lien for freight. Neither A. nor C. knew of the other charter, and D. had no authority to make it as broker for A. C. shipped his iron under bills of lading signed by the master making the goods deliverable to "consignees he or they paying freight as per charter." The master did not demand freight on signing bills of lading, and he delivered to the consignees without insisting on his lien. C. paid 8s. per ton to D., who became bankrupt. A. sued C. for freight at 7s. 3d. Held, there was neither an express, nor an implied contract on which A. could sue C., the parties never having been ad idem (f).

(a) Domett v. Beckford (1833), 5 B. & Ad. 521; G. W. R. v. Bagge (1885), 15 Q. B. D. 626; Shepard v. De Bernales (1811), 13 East, 565; Christy v. Row (1808), 1 Taunt. 300.

(b) Lewis v. McKee (1868), L. R. 4 Ex. 58, a case of consignee: see for the general principles, Watkins v. Rymill (1883), 10 Q. B. D. 178.

(e) Fox v. Nott (1861), 6 H. & N. 630.

(d) Shepard v. De Bernales, vide supra. Such clauses are inserted for the benefit of the master, confirming his lien, and not of the shipper.

(e) Marsh v. Pedder (1815), 4 Camp. 257; Tapley v. Martens (1800), 8 T. R. 451; Strong v. Hart (1827), 6 B. & C. 160.

(f) Smidt v. Tiden (1874), L. R. 9 Q. B. 446.

II. The Consignee.

The consignee named in the bill of lading to whom by the consignment the property in the goods shall pass, is by statute liable to pay freight, on the terms of, and as if, the contract contained in the bill of lading had been made with himself (g). If he is the owner of the goods, he is also prima facie liable to pay freight for them, as being the person with whom the contract of carriage is presumed to be made (h).

If the consignee demands goods under a bill of lading, making them deliverable on payment of freight, though no contract is implied in law from such delivery, it will be evidence from which a jury may find a new contract to pay freight (i), unless the bill of lading clearly negatives such a contract (k). A new contract may also be proved by evidence of previous dealings between the parties (1), or of an usage of trade (m).

Entry of the goods at the custom house is primâ facie evidence that the person in whose name they are entered is their owner and liable to pay freight for them, but he can rebut this presumption by shewing that his entry was merely as agent (n).

(4) Bills of Lading Act (1855), 18 & 19 Vict. c. 111, s. 1. Appendix III. (h) Coleman v. Lambert (1839), 5 M. & W. 502; Dickenson v. Lano (1860,, 2 F. & F. 188. All cases before 1855 freeing the consignee from liability to pay freight must be read in the light of the Bills of Lading Act.

(i) Cock v. Taylor (1811), 13 East, 399: Dougal v. Kemble (1826), 3 Bing., at p. 389; Amos v. Temperley (1841), 8 M. & W. 798, at p. 805; Sanders v. Vanzeller (1843), 4 Q. B. 260; Kemp v. Clark (1848), 12 Q. B. 647.

(k) Amos v. Temperley, vide supra, in which the bill of lading expressly stated that the defendant was consignee as agent for another: Howard v. Tucker (1831), 1 B. & Ad. 712, where the bill of lading contained a statement that the freight had been paid in advance, which, though incorrect, was held inconsistent with a new contract to pay it. See also Ward v. Felton (1801), 1 East, 507; Kennedy v. Gonveia (1823), 3 D. & R. 503.

(1) Wilson v. Kymer (1813), 1 M. & S. 157; where it was proved that, when similar goods had been previously delivered to defendant, he had always paid the freight.

(m) As in Dickenson v. Lano, vide supra, where evidence of a custom of the stone trade that the consignee always, the quarry-owner never, paid the freight, was held admissible.

(n) Ward v. Felton (1801), 1 East, 507; Wilson v. Kymer (1813), 1 M. & S. 157; Artaza v. Smallpiece (1793), 1 Esp. 23.

III. An Indorsee of the Bill of Lading, or Person taking delivery under it.

Indorsees of the bill to whom by the indorsement the property in the goods has passed (o), and who have not freed themselves from liability by such an indorsement as passes the property (p); and indorsees to whom the property in the goods has not passed by the indorsement, but who complete their proprietary rights by taking delivery of the goods under their indorsed bill of lading (q), are by statute liable to pay freight for the goods according to the bill of lading (r).

Other indorsees of the bill of lading who take delivery under it, but who do not acquire proprietary rights by so doing (q), are only liable if a new contract to pay freight can be found as a fact from the circumstances attending delivery (s), and the terms of the bill of lading (t).

(0) Sewell v. Burdick (1884), 10 App. C. 74, and Article 75. (p) Smurthwaite v. Wilkins (1862), 11 C. B., N.S. 842.

(q) Sewell v. Burdick (1884), 10 App. C. 74.

(r) 18 & 19 Vict. c. 111, Appendix III. For cases before this Act, see Crawford v. Tobin (1842), 9 M. & W. 716; Dougal v. Kemble (1826), 3 Bing. 383; Bell v. Kymer (1814), 1 Marsh. 146.

(s) Sanders v. Vanzeller (1843), 4 Q. B. 260; Young v. Moeller (1855), 5 E. & B. 755; Kemp v. Clark (1848), 12 Q. B. 647.

(t) See Howard v. Tucker (1831), 1 B. & Ad. 712; Lewis v. McKee (1868), L. R. 4 Ex. 58; Amos v. Temperley (1841), 8 M. & W. 798.

T