Article 156.-Lien of Broker.

A shipping agent or broker has a lien on the bill of lading, and so indirectly on the goods, for his charges (k).

Article 157.-Lien by express Agreement.

Where a lien for certain charges is expressly stipulated for, the fact that such a lien is inconvenient will be no answer to the express terms of the agreement (1).

Thus there may be liens by contract for :

(1.) Dead freight (m).

(2.) Demurrage or damages for detention (n). (3.) Advance freight (0).

(4.) Charterparty freight, as against the holder of the bill of lading (p).

(5.) "All moneys becoming in any way due to the shipowners under the provisions of the bill of lading."

(6.) "All fines, and expenses, or losses by detention of or damage to vessel or cargo, caused by incorrect description of goods, or shipment of dangerous goods without notice."

(7.) "All previously unsatisfied freight and charges on other goods due in respect of any shipment by any steamer or steamers of this line from either shipper or consignee, such lien to be made available at shipowner's option by sale or otherwise" (q).

(k) Edwards v. Southgate (1862), 10 W. R. 528.

(1) McLean v. Fleming (1871), L. R. 2 H. L., Sc. (at p. 135). The fact that a clause giving the lien is in the bill of lading, is not conclusive that it is part of the contract between the parties: see Crooks v. Allan (1879), 5 Q. B. D. 38, and pp. 7, 8, ante.

(m) See Article 161.

(n) See Article 54. (0) See Article 137.

(p) See Articles 19, 144, 152.

(4) This clause would seem to require a good deal of large print to call shipper's attention to it.

SECTION XII.

DAMAGES.

Article 158.-Rule of Damages.

WHERE two parties have made a contract, which one of them has broken, the damages which the other ought to receive should be such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.

Thus where special circumstances exist, by reason of which a breach of the contract would cause greater loss than would naturally occur from the breach of a contract of that kind:

(1.) If those special circumstances were known to both parties at the time of making the contract, and such knowledge formed the basis of the contract, the person breaking the contract will be liable for the damages naturally resulting from a breach under such special circumstances.

(2.) If such special circumstances were either unknown to the party breaking the contract, or being known did not form the basis of the contract, he would only be liable for the damages naturally and usually resulting from a breach of the contract, as he understood it (a).

Article 159.-Damages for failure to carry safely.

Where goods are not delivered by the vessel contracting to carry them (b), the damages will, in the absence of special

(a) Hadley v. Baxendale (1854), 9 Ex. 341, at p. 354; Lepla v. Rogers (1893), 1 Q. B. 31; Mayne on Damages.

(b) Cf. Smith v. Tregarthen (1887), 56 L. J. Q. B. 437.

circumstances in the contract, be the market value of the goods when they should have arrived, less the sums which the cargo owner must have paid to get them, such as freight (c). Where goods are delayed by the late arrival of the ship contracting to carry them, through causes for which the shipowner is responsible, semble, that the cargo owner can only recover damages in the form of interest on their value during the delay (d). The damages recoverable will not include damage by loss of market (e), or by a fall in the price of such goods (f), or by stoppage of business through their non-delivery (g), and will not be affected by the fact that the cargo owner had sold the goods to arrive at a price higher (h) or lower (i) than the market price in fact on the presumed date of arrival.

But, where it is part of the common knowledge of the contracting parties that the goods are wanted for a particular market, or for a particular season, at which they will command a special price, or to fulfil a special sub-contract, damages for the loss of such market, season, or sub-contract may be recovered (k).

Case 1.-Goods shipped on A.'s ship were lost through causes for which A. was liable. The shippers had paid part of the freight in advance, and without A.'s knowledge had sold the goods to arrive for £3 per ton. The market price on the day when the ship should have arrived was £3 5s. per ton. Held, that the shippers were entitled to recover £3 5s. per ton less

(c) Rodocanachi v. Milburn (1886), 18 Q. B. D. 67.

(d) Cf. British Columbia Co. v. Nettleship (1868), L. R. 3 C. P. 499. (e) Many bills of lading expressly provide that the ship shall not be liable for claims for delay, loss of market, or sea risks, if the goods are carried past their destination. The Eastern trade, however, has usually the clause: "That such goods are when found to be sent back at ship's risk and expense, and subject to any proved claim for loss of market." The stipulation that the shipowner shall not be liable for more than the invoice cost of the goods is very usual. There is sometimes a clause, "price, in case of short delivery, to be the market price of the day at port of discharge, on the day of steamer's reporting, less charges and brokerage." There are usually clauses limiting the time within which claims will be recognised. See ante, pp. 164, 222.

(f) The Parana (1877), 2 P. D. 118. See also, for case of tort, The Notting Hill (1884), 9 P. D. 105; and the principles laid down in the collision cases of The Argentino (1889), 14 App. C. 519 (loss of freight); The Blenheim (1885), 10 P. D. 167 (damage to cargo); The City of Peking (damages for detention) (1890), 15 App C. 438.

(9) British Columbia Co. v. Nettleship (1868), L. R. 3 C. P. 499.

(h) The St. Cloud (1863), B. & L. 4.

(i) Rodocanachi v. Milburn (1886), 18 Q. B. D. 67.

(k) The Paruna (1877), 2 P. D.

what they must have paid to get the goods; viz. the balance of the freight (1).

Case 2.-F. shipped goods on A.'s ship, and afterwards, unknown to A., effected a sub-contract for resale of them. The goods were damaged by bad stowage, and in consequence F. was unable to fulfil the sub-contract. Held, that F. could not recover the profits lost under the sub-contract as damages from A. (m).

Case 3.-A.'s master, E., signed bills of lading for 400 bales of cotton at Wilmington, "shipped on board the Carbis Bay for Liverpool." That ship could only take 165 bales, and E. ordered the remaining 235 bales to be shipped on board the Wylo also for L. The Carbis Bay arrived on October 26, the Wylo on October 29; between these dates the price of cotton fell. The shippers sued E. under the Bills of Lading Act for damages for the non-delivery by the Carbis Bay. Held, that on such non-delivery, the shippers were entitled to the market value of the goods on October 26 as damages; that they might receive the goods ex Wylo on October 29, in part satisfaction of such damages; but were still entitled to recover the difference in price between October 26 and 29, as damages (n).

Case 4.-F. shipped hemp on A.'s ship; owing to defective engines, the ship took 127 days on the voyage, 65 days being an average voyage. During the delay the price of hemp fell; and the consignee claimed his loss as damages from A. Held, he could not recover it (0).

Case 5.-F. ships cattle from the States for the Christmas Smithfield market, such shipment and the usual fall of the price of dead meat after Christmas being well known in the cattle trade. Owing to the ship's unseaworthiness, the cattle miss the Christmas market. Submitted, that the shipper can recover the loss by the fall of price, from A. (p).

Case 6.-F. shipped on A.'s ship several cases containing machinery for a sawmill at Z., and described as "merchandise." A. knew the general nature of the shipment. On arriving at Z. one of the cases was missing, and the sawmill could not be erected till it had been replaced. Held, that F. was entitled to the costs of replacing the missing machinery at Z., and to 5 per cent. interest on such cost, for the delay, but not to damages for the estimated profits of the mill during the delay (1).

Article 160.-Damages for failure to load under Charter (r).

In an action against charterer for not loading a cargo, the measure of damage is the amount of freight which would

(1) Rodocanachi v. Milburn (1886), 18 Q. B. D. 67. (m) The St. Cloud (1863), B. & L. 4.

(n) Smith v. Tregarthen (1887), 56 L. J. Q. B. 437. If the Carbis Bay had been unjustifiably delayed from Oct. 26 to Oct. 29, the shippers could not have recovered for the fall in the market. See The Parana (1877), 2 P. D. 118. (0) The Parana (1877), 2 P. D. 118.

(p) On authority of Mellish, L.J., in The Parana, supra, at p. 121, but a similar point was actually so decided by the Court of Appeal in an unreported case in

1881.

British Columbia Co. v. Nettleship (1868), L. R. 3 C. P. 499.

This will be the form of action if a charterer wrongfully throws up the charter under a cancelling clause: Hick v. Tweedy (1890), 63 L. T. 765.

have been earned under the charter (s), after deducting the expenses of earning it, and also any net profit the ship may have earned during the period of the charter (t). It is probable that any freight the ship might have earned by reasonable diligence after the final breach is to be deducted also (u).

In an action against shipowner for not furnishing a ship to receive cargo under a charter, the measure of damage is the market value of the ship to the charterer at the time she should have loaded, viz., the rate of freight she could obtain at that time, less the amount which the charterer must have paid to get her, i.e. the freight payable under the charter which was broken. If the charterer in fact charters a vessel to replace her, the excess freight he has to pay will be, primâ facie, the measure of damages (v); but he need not make a substituted charter if the rate of freight demanded is unreasonable (x).

The owner, or captain, or charterer is not bound to accept another offer inconsistent with the charter before there has been a final breach of the charter by the charterer or shipowner, accepted by himself (y): it is probable that after such final breach he is bound to do the best for himself and the charterer or shipowner (u).

Case 1.-Charterers of a vessel, alleging that through delay in the ship's arrival they were not liable to load her, offered, before the expiration of the lay-days, to provide a cargo if the master would go under protest to an island ninety miles off. Held, that the master was not bound to accept such an offer, which he might reasonably believe would amount to rescinding the original charter (z).

Case 2.-A ship was chartered to go to X., where the charterer was

(s) As to method of calculation, see Article 144; and Capper v. Forster (1837), 3 Bing. N. C. 938; Cockburn v. Alexander (1848), 6 C. B. 791; Warren v. Peabody (1849), 8 C. B. 800; see also Mayne on Damages, p. 271.

(t) Smith v. Maguire (1858), 3 H. & N. 554; Staniforth v. Lyall (1830), 7 Bing. 169.

(u) See Note 2, and cases cited: for special cases of damage, see Sparrow v. Paris (1862), 7 H. & N. 594; Heugh v. Escombe (1861), 4 L. T. 517.

(v) Featherston v. Wilkinson (1873), L. R. 8 Ex. 122; see also Parker v. James (1814), 4 Camp. 112.

(x) See Note 2, sub.

(y) Harries v. Edmonds (1845), 1 C. & K. 686; Hudson v. Hill (1874), 43 L. J., C. P. 272.

(z) Hudson v. Hill, vide supra.