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SECTION XI.

LIEN.

Article 149.-Kinds of Lien.

A SHIPOWNER may have a lien on goods carried for charges incurred in carrying them :

I. By Common Law.

II. By express agreement.

By Common Law he has a lien for :

1. Freight (a);

2. General average contributions (b);

both of which are possessory liens depending on the possession of the goods.

3. Expenses incurred by the shipowner or master in protecting and preserving the goods, which give rise to a maritime lien, independent of possession (c).

Article 150.-Common Law Lien for Freight.

The Common Law lien for freight, which is a possessory lien, only exists where the agreed time for payment of freight is contemporaneous with the time of delivery of the goods (d).

(a) See Articles 150-154.

(b) See Articles 117-120.

(c) See Articles 101, 121, and Hingston v. Wendt (1876), 1 Q. B. D. 367, at

p. 372.

(d) See per Brett, J., in Allison v. Bristol Marine Insurance Co. (1876), 1 App. C., at p. 225, explaining Kirchner v. Venus (1859), 12 Moore, P. C. 361, at p. 390.

In the absence of express agreement there is, therefore, no lien for: :

(1.) Advance freight, or freight payable before the delivery of the goods (e).

(2.) Freight agreed to be paid after the delivery of the goods, or not due when the goods are claimed (ƒ).

Case 1.-Goods were shipped to be carried to Z. under bills of lading, freight for the said goods to be paid at L., ship lost or not lost." The ship was lost, but the goods were saved. The shipowners claimed a lien. Held, that there was no such lien without express agreement (g).

• ...

owner to

Case 2.-Goods shipped under a bill of lading, "deliverable to order or assigns on payment of freight, as per charter the freight to be paid on unloading and right delivery of the cargo less advances in cash (h), at current rates of exchange ... half freight to be advanced by freighters' acceptance at three months on signing bills of lading, insure the amount and deposit with freighter the club policy." The freighter gave his bill at three months for half freight, and the master indorsed on the bill of lading, "received on account of the within freight £300 as per charter." On arrival, before freighter's acceptance became due, the captain heard that the freighter was bankrupt, and refused to deliver the cargo, except the whole freight was paid. Held, that there was no lien on the cargo for the £300 advance freight (i).

Case 3.-A charter provided for payment of freight at 33s. 3d. per ton, the shipowner to have an absolute lien on the cargo for freight; the captain to sign bills of lading at any rate of freight, but, should the total freight as per bills of lading be under the amount estimated to be earned by the charter, the captain to demand payment of the difference in advance. The captain signed bills of lading under the chartered rate, but did not demand payment of the difference. Held, there was no lien for such difference (k).

Case 4.-C. chartered a ship from A., to proceed to L. at 77s. 6d. per ton freight and hire, £250 to be advanced in cash on signing bills of lading,

(e) How v. Kirchner (1857), 11 Moore, P. C. 21; Kirchner v. Venus (1859), 12 Moore, P. C. 361. Ex parte Nyholm, In re Child (1873), 29 L. T. 634; Nelson v. Association for Protection of Wrecked Property (1874), 43 L. J. C. P. 218; Tamvaco v. Simpson (1866), L. R. 1 C. P. 363; Gardner v. Trechmann (1884), 15 Q. B. D. 154. The case of Gilkison v. Middleton (1857), 2 C. B., N.S. 134, adversely criticised in Kirchner v. Venus, is distinguishable on the ground that a lien for all freight due under the charter was expressly given by the charter; though, as this was not incorporated in the bill of lading, to make consignees for value liable for it seems contrary to such cases as Fry v. Mercantile Bank (1866), L. R. 1 C. P. 689. In Neish v. Graham (1857), 8 E. & B. 505, there was no such express lien, and it must be taken as overruled."

(f) Foster v. Colby (1858), 3 H. & N. 705; Thompson v. Small (1845), 1 C. B. 328; Alsager v. St. Katharine's Docks (1845), 14 M. & W. 794; Lucas v. Nockells (1828), 4 Bing. 729; the agreement to receive payment subsequently is treated as a waiver of the lien.

(g) Nelson v. Association for Protection of Wrecked Property (1874), 43 L. J.

C. P. 218.

(h) Held to be paid in cash, less advances.

(i) Tamvaco v. Simpson (1866), L. R. 1 C. P. 363.

(k) Gardner v. Trechmann (1884), 15 Q. B. D. 154.

and clearing at the custom house, and remainder on delivery at L. Ship to have an absolute lien for freight, dead freight, and demurrage. After the ship was loaded, and before she sailed, C. failed, and his trustee disclaimed the charter. A. claimed a lien on the cargo for at least the £250. Held, that, being advance freight, there was no lien for it by common law or custom, and that the clause in the charter was not enough to give a lien for it, and it was not "freight" (l).

Case 5.-C. chartered a ship from A., freight to be paid £1250 at port of loading and £1000 on delivery, the remainder in cash two months from vessel's report inwards, and after right delivery of the cargo. A. to have an absolute lien on the cargo for all freight. Held, that A. had no lien under the charter for the freight payable "after delivery of goods" (m).

Article 151.-On what Goods.

The Common Law lien for freight applies to all goods coming to the same consignee on the same voyage for the freight due on all or any part of them (n), but not to goods on different voyages under different contracts (o).

Article 152.-For what Amount (p).

When, the ship being chartered, the consignee is the charterer or his agent, he will be bound by the lien for freight due under the charter (q), unless a new contract exonerating him has been made in the bill of lading (r).

Where the consignee is an indorsee for value of the bill of lading from the charterer, or represents a shipper, other than the charterer, whether aware of the charter or not, he only will be bound by the lien for freight contained in the charter, as distinguished from the freight specified in the bill of lading, if a clear intention to that effect is shewn in

(1) Ex parte Nyholm, In re Child (1873), 29 L. T. 634.

(m) Foster v. Colby (1858), 3 H. & N. 705.

(n) Sodergren v. Flight (1796), cited, East, 622; Perez v. Alsop (1862),

3 F. & F. 188.

(0) Bernal v. Pim (1835), 1 Gale, 17.

(p) See Article 144. Amount of freight.

(g) McLean v. Fleming (1871), L. R. 2 H. L. (Sc.) at pp. 133, 134; Kern v. Deslandes (1861), 10 C. B., N.S. 205; Campion v. Colvin (1836), 3 Bing., N.S. 17; Small v. Moates (1833), 9 Bing. 574; Gledstanes v. Allen (1852), 12 C. B. 202. These cases, in view of later law, e.g. Fry v. Mercantile Bank (1866), L. R. 1 C. P. 689, must be limited strictly to the charterer and persons identical with him in interest, and many dicta in them are now no longer law.

(r) As in Gullischen v. Stewart (1884), 13 Q. B. D. 317; and as suggested by Willes, J., in Pearson v. Goschen (1864), 17 C. B., N.S., at p. 374. As to new contracts in the bill of lading, see Article 18 a; and Rodocanachi v. Milburn (1886), 18 Q. B. D. 67.

the bill of lading (s). If a shipper ships goods in ignorance of the charter, he can decline to accept bills of lading for them in accordance with the charter but in an unusual form, and can demand his goods back free of expense, the liens in the charter or otherwise not attaching to them (t).

Case 1.-C. chartered a ship from A.:-" The ship to have a lien on cargo for freight, 70s. per ton to be paid on unloading of the cargo." C. shipped goods under a bill of lading:-" Freight for the goods payable in L. as per charter," and indorsed the bill to F. for value. Held, that against F. the shipowners had a lien only for the freight due for the goods included in the bill of lading, and not a lieu for the whole chartered freight (u).

Case 2.-C. chartered a ship from A., and put it up as a general ship: F. shipped goods in ignorance of the charter. The captain refused to sign bills of lading, except in terms of the charter, which gave liens for demurrage, dead freight, &c., and refused to deliver up the goods. Held, that A. was bound to redeliver the goods to F. free of any claim for lien or charges (v).

Article 153.-Lien: how waived.

The shipowner's lien for freight may be waived: as by acceptance of a bill for the freight (x); by making the freight payable after the delivery of the goods (y); or by delivery without requiring payment, unless such delivery was induced by fraud (z).

Article 154.-Lien: how maintained.

The shipowner may do what is reasonable to maintain his lien, e.g. he may bring the goods back from their destination, if the lien is not discharged there (a). He will not lose

(s) Pearson v. Goschen (1864), 17 C. B., N.S. 352; Foster v. Colby (1858), 3 H. & N. 705; Fry v. Mercantile Bank (1866), L. R. 1 C. P. 689; Gardner v. Trechmann (1884), 15 Q. B. D. 154; The Norway (1864), B. & L. 226. See also ante, Articles 18, 19. So far as Gilkison v. Middleton (1857), 2 C. B., N.S. 134, is contrary to this, it must be taken as overruled. See Article 150, note (e). (t) Peek v. Larsen (1871), L. R. 12 Eq. 378. The Stornoway (1882), 51 L. J. Ad. 27, et ante, Article 18.

(u) Fry v. Mercantile Bank, vile supra.

(v) Peek v. Larsen (1871), L. R. 12 Eq. 378, and see ante, Article 18.

(x) Tamraco v. Simpson (1866), L. R. 1 C. P. 363; Horncastle v. Farran (1820), 3 B. & A. 497.

(1) Foster v. Colby (1858), 3 H. & N. 705.

Semble, that as such a delivery would not prevent stoppage in transitu, neither would it waive lien: vide Article 68, ante.

(a) Edwards v. Southgate (1862), 10 W. R. 528; Cargo ex Argos (1873), L. R. 5 P. C. 134.

278

COMMON LAW LIEN FOR FREIGHT.

his lien by consenting to hold as agent for the consignee (b), nor by warehousing the goods ashore, in his own, a statutory, or (semble) a hired warehouse (c).

Submitted.-In the absence of express agreement or statutory powers, the owner or captain has no power to sell goods on which he has a lien, to realise the freight due on them, unless the goods, having been abandoned by all persons entitled to them, have become his property.

Note.-In England, the proceedings for maintaining and enforcing liens by means of warehousing with a stop for freight and sale are contained in 25 & 26 Vict. c. 63, §§ 68-78. Appendix III.

Lien for General Average: see Article 117.
Lien for expenditure on cargo: see Article 101.

Article 155.—Liens not supported by Common Law. There is no lien by Common Law:

(1.) For dead freight (d).

See

(2.) To the holders of a bill of exchange drawn against a particular cargo, on such cargo, in the absence of express intention to give such a lien (e).

(3.) To the shipowner, for wharfage dues on overside goods (f).

(4.) For port charges, though the charterer has agreed to pay them (g).

(5.) For demurrage, or damages by detention (h).

(6.) Nor on goods shipped on ship's account (i).

(b) Allan v. Gripper (1832), 2 C. & J. 218; Kemp v. Falk (1882), 7 App. C., at p. 584.

(c) The Energie (1875), L. R. 6 P. C. 306; Mors le Blanch v. Wilson (1873),

L. R. 8 C. P. 227.

(d) See Article 161.

(e) Robey v. Ollier (1872), L. R. 7 Ch. 695; Phelps v. Comber (1885), 29 Ch. D. 813; Ex parte Dever, In re Suse (1884), 13 Q. B. D. 766: Frith v. Forbes (1862), 4 De G. F. & J. 409, the one case in which an express intention to give such a lien has been found, has been so doubted, see especially Phelps v. Comber, as to be a very unsafe authority to follow; see Brown v. Kough (1885), 29 Ch. D. 848.

(ƒ) See Article 127 and notes; Appendix II.; Bishop v. Ware (1813), 3 Camp. 360. If, however, the goods have been justifiably landed under Article 127, the wharfowner will have a lien for such wharfage dues.

(g) Faith v. East India Co. (1821), 4 B. & A. 630.

(h) Birley v. Gladstone (1814), 3 M. & S. 205, and see Article 54. (i) Swan v. Barber (1879), 5 Ex. D. 130.

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