Raymond v. Tyson. by agreement. Gracie v. Palmer, 8 Wheat., 605, 635; S. C. 4 Wash. C. C., 110-123; 4 Cow. (N. Y.), 481, per Savage, C. J.; The Volunteer, 1 Sumn., 551; Ruggles v. Bucknor, 1 Paine, 358; Drinkwater v. Brig Spartan, 1 Ware, 156; Holmes v. Pavenstadt, 5 Sandf. (N. Y.), 97; Small v. Moates, 9 Bing., 574; Gladstanes v. Allen, 12 Com. B., 202; 22 Eng. L. & Eq., 382; Angel on Car., §§ 385, 386; Abbott on Ship., 287, 288-299. 3. The right of lien upon the cargo of the charterers, for charter money due and in arrears, has not been waived or abandoned by the respondent. The stipulation that the charter money should be paid in New York semi-annually, is not a waiver of, nor is it incompatible with, the right of lien for freight money due and unpaid. Saville v. Campion, 2 Barn. & Ald., 503; The Volunteer, 1 Sumn., 371; Logs of Mahogany, 2 Id., 589; Saville v. Campion, 3 Bing. N. C., 17. It was not even an agreement to give credit for the earnings of the ship. According to the ordinary length of a voyage from London or Cardiff to Panama or California, the time for the payment of the first six months' service, would have matured before the ship had reached her port of delivery. The actual time was eight months and over. (Page 20.) The charterers agreed to furnish the master, from time to time, with any funds he might require for the ship's ordinary expenses, which were to be deducted out of the semi-annual instalments, if advices thereof were received. Upon the return of the vessel to New York or Great Britain, all moneys due at that time were to be paid forthwith, on demand. It had no other effect than to fix the periods of payment, and to suspend the right to enforce a lien upon the cargo, until default of payment. New v. Swain, 1 Dan. & L., 193. The length of the term of employment, which was to be at least fifteen months, with the privilege to the charterers of extending it nine months, and the large amount at risk, preclude the idea of an agreement to waive or abandon the right of lien, in the event of default in payment. Default was made in the payment of the freight money due at the end of the six months; and the ship-owner was thereupon at liberty to proceed and enforce his lien. New v. Swain, 1* Dans. & L., Merc. Cas., 193; Dixon v. Yates, 2 Nev. *57] & M., 177; Saville v. Campion, 2 Barn. & Ald., 503, 513; Abbott on Ship., 289. There are no other provisions in the charter-party that operate as a waiver or release of the right of lien. The covenant, by the charterers, that they will provide a Raymond v. Tyson. full cargo, strongly implies that the security of a lien upon it was contemplated and reserved. The bill of lading delivered by the master, and accepted by the charterers, shows that both the parties understood that the delivery of the cargo was upon the condition of payment of freight, as per charter-party; if it were unpaid in New York, delivery could not be compelled by the consignee, without satisfying the amount due. Small v. Moates, 9 Bing., 574. Gladstanes v. Allen, 12 Com. B., 202. 4. A lien for freight is favored in the law, and ought not to be displaced without a clear and determinate abandonment of it. It is not excluded in the present case by any express or absolute terms, or by unavoidable implication, or by any provisions repugnant to, or inconsistent with, the right to enforce it. The burden is on the appellant to establish a waiver or extinguishment of the right. 5. The decree of the court below ought to be affirmed, with costs. Mr. Justice WAYNE delivered the opinion of the court. This is an appeal from the district court for the northern district of California. The suit was brought, by a libel in the admiralty, against 844 tons of coal (of which Raymond was the claimant) on board the ship Orphan of which Tyson, the libellant, was a part owner. Its object was to enforce an alleged lien on the coal claimed under a charter-party between Tyson and J. Howard and Son, of New York, charterers. The charterparty was made at New York, on the 1st February, 1850, the ship at that time being on her voyage to London. The whole ship, with the exception of the deck, cabin, and necessary room for the crew, and stowage of provisions, sails, and cables, was chartered by the owner to J. Howard and Son, for a voyage from London direct, or from thence to Cardiff, in Wales, (if required,) to load for a port or ports on the Pacific, where she was to be employed between such ports as the charterers might elect; thence to be returned back, either to New York or Great Britain, at their option. The time for her employment was to extend to the full term of fifteen months, with a privilege to the charterers to extend it to twenty-four months. The charterers engaged to furnish the ship with a full cargo-bills of lading to be signed for it [*58 without prejudice to the charter-and they contracted to pay to the owner of the ship or his agent, for the use of the vessel, Raymond v. Tyson. at the rate of two thousand dollars per month, commencing in London, if she proceeds thence direct to the Pacific, when ready to load, and notice of the same was given to the charterers or their agent. But if the vessel shall be ordered to Cardiff to load, then the charter was to commence from the time she might be ballasted, and be ready for sea, in London. In that case the ship is to be allowed ten days from the time she is ready to sail from London, until her arrival at Cardiff, and only that time, for which the charterers were to pay, should the ship be a longer or shorter time in making the passage to Cardiff. It is agreed between the owner and the charterers that the charter should be payable in New York semiannually the first payment to be made six months from the commencement of the same, and so every six months during the continuance of the charter, before the arrival of the ship and her being delivered back to the owner, in New York or Great Britain; or upon satisfactory proof of total loss of the ship, all moneys in arrears, and due, up to the time of the loss, were to be paid on demand. Should the vessel be ordered to California, the charterers agree to pay the expense of victualling and manning her, attendant upon the California voyage, and the charter money for any detention caused by desertion of the crew. The charterers agreed also to pay all port charges of the ship incident to her employment, except victualling, manning, and repairs, and to advance funds for the ordinary expenses of the ship after she left Europe, which were to be deducted from the charter payments, on vouchers from the captain. The ship sailed for Cardiff on the 1st April 1850, and arrived there on the 14th April. She there took on board from Branson, Sands, and Co., the agents of the charterers, a cargo of 844 tons of coal, the property of the charterers. For this cargo a bill of lading was signed, May 4, 1850, at Cardiff, expressing that the ship was bound to Panama, for orders, to be delivered to order or assigns, he or they paying freight, as per charter-party. The bill of lading is as follows: Bill of lading.-Shipped in good order and condition, by Branson, Sands, and Co., of Liverpool, in and upon the good ship or vessel called The Orphan, whereof R. C. Williams is master for this present voyage, and now lying in the port of Cardiff, and bound for Panama for orders, eight hundred and forty-four tons of "Nixon's Merthyr and Cardiff steam coal, being marked and numbered as per margin, and are to be delivered in the like *good order and condition, at the port, according *59] to orders, (all and every the dangers and accidents of 844 tons of "Nixon's steam coal." Merthyr and Cardiff Raymond v. Tyson. the seas, and navigation, of whatsoever nature or kind, excepted,) unto "order," or to assigns; he or they paying freight for the said goods, as per charter-party, with average accustomed. The ship proceeded to Panama, with her cargo, and thence, by orders of the charterers, to San Francisco. She arrived at San Francisco, December 2, 1850, and the cargo was retained on board by her captain, to preserve an alleged lien upon it for freight. The libellant avers that $12,000 was due for charter money, on the 1st of October, and that it had not been paid by the charterers; and that they had not furnished funds for the ship's expenses after she left Europe; and for the money due he claims a lien upon the coal. Raymond, the claimant, answers, that the bill of lading of the coal had been transferred to him at the time of its shipment by J. Howard and Son, for a valuable consideration paid; and this is not denied in the case. That he thereby became owner of the coal, and has ever since continued to be so, free from any lien or claim in favor of the owners of the ship, or any other persons; that he had demanded the coal, but that the master refused to deliver it. After the libel was issued and the answer had been put in, the master of the ship petitioned for an order for the sale of the coal, as a perishable commodity. The order was granted, the coal was sold, and the proceeds were adjudged to be liable to a lien for the sum due upon the charter-party, on the 1st October. We shall give our judgment upon the foregoing statement, without considering in detail the general principles governing contracts of affreightment. But we will state two of them, because they have a decisive bearing upon the charter-party, under which this controversy has arisen. First, it must be remembered, that a charter-party is an informal instrument as often as otherwise, having inaccurate clauses, and that on this account they must have a liberal construction, such as mercantile contracts usually receive, in furtherance of the real intention of the parties and usage of trade. So Lord Mansfield said a long time since. Abbott, in his treatise relative to merchant ships and seamen, Story's edition, 188, gives the rule of construction very much in the same words: but perhaps with more precision. The general rule which our courts of law have adopted, in the construction of this as well as other mercantile instruments, is, that the construction should be liberal, agreeable to the real intention of the parties, and conformable to the usage of trade in general, and of the particular trade to which the contract relates." 66 Raymond v. Tyson. Chancellor Kent, in his 47th chapter, *on the contract of Affreightment, cites the rule approvingly. The late Mr. Justice Thompson, of this court, asserts it in Ruggles v. Bucknor, 1 Paine, 358. Judge Story acted upon it ten years afterwards, in the case of The Volunteer, 1 Sumn., 551; and again in another case, 2 Id., 589. The first says: "It was pressed upon me by the defendant's counsel, that I should decide this abstract question, and lay down some general rules as to the lien on the cargo for the freight, when the voyage is performed under a charter-party. This I do not feel disposed to do, especially as it would and ought to be considered as a mere obiter opinion, if not required by the facts of the case. And, indeed, it is impracticable to lay down any general rules to meet the great variety of cases that must necessarily arise in commercial transactions. Each case must depend, in a great measure, upon its own circumstances. Parties are not bound to any fixed and precise stipulations, to be embraced in a charter-party." In the case of The Volunteer and cargo, the most difficult question was, whether there was, under the charter-party, a lien on the homeward cargo for the freight. Judge Story says: "In general, it is well known that by the common law there is a lien on the goods shipped for the freight thereon: whether it arise under a common bill of lading, or under a charter-party. But then this lien may be waived by consent; and in cases of charter-parties, it often becomes a question whether the stipulations are or are not inconsistent with the lien." The other case mentioned in 2 Sumn., 589, (certain Logs of Mahogany v. Richardson,) was one which was decided upon the inaccurate and inconsistent stipulations of a charter-party, by a liberal construction of them, in furtherance of the real intention of the parties and the usage of trade. In Gracie v. Palmer, 8 Wheat., 605, 634, this court has said: "That the contract of affreightment, like any other contract, is the creature of the will of the parties. It may be varied to infinity, and easily adapted to the exigencies of either party or of any trade. It is only where the express contract is silent, that the implied contract can arise." These authorities are sufficient, without citing others, to establish the general rule for the construction of charter-parties. The next rule for the construction of charter-parties, deduced by us from an examination of all of the leading cases in the English and American reports, including those cited in the argument of the counsel of the appellee, is this: that though the owner of a ship, of which the charterer is not the lessee, but freighter only, has a lien upon the cargo for freight, |