page 98

ought to have excited the suspicion of the holders and put them on inquiry as to the said arrangements. (Priv. Co.) Henderson and another v. The Comptoir D'Escompte de Paris.. 3. "Order or assigns "-Negotiable instrument.— Semble, that in order to make bills of lading negotiable, some such words as "or order, or assigns," ought to be in them. (Priv. Co.) Id. 98 See Carriage of Goods, Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 20, 21, 22, 24, 27, 28, 29, 32, 39, 41, 42-Charter-party, No. 1-General Average, No. 1.

BLOCKADE.

See Marine Insurance, Nos. 38, 39.

BOTTOMRY.

1. Master's liability on bond.—In the absence of any special agreement to that effect, the master of a ship does not incur any personal liability to repay to a bottomry lender the sum borrowed by him on bottomry, where the bottomry bond becomes due by the safe arrival of the ship and the ship and freight prove insufficient to discharge it in full. (U. S. Dist. Ct. East. Dist. of N. Y.) The bark Irma

2. Master's liability-Advances-Implied contract -Extinguishment.-The implied contract of the master. arising under the general rule of the maritime law, out of an advance of money for the ship, is extinguished when a lawful contract of bottomry has been made and the debt has been put at risk. (U. S. Dist. Ct. East. Dist. of N. Y.) Id. See Marine Insurance, No. 43-Master's Wages and Disbursements, Nos. 12, 13.

BROKERS.

See Broker's Lien-Marine Insurance, No. 6.

BROKER'S LIEN.

Retaining mate's receipts—Bills of lading given by master. Brokers purchasing on their own credit cotton for merchants for shipment do not, by retaining the mate's receipts endorsed to them by the merchants, keep their lien upon the cotton after the cotton has been shipped on board a ship belonging to the merchants and bills of lading have been signed by the master, so as to entitle them to claim either as against bankers holding the bills of lading as security for advances made against the cotton, or against the shipowners for the default of their master (he having no notice of the lien) in signing the bills of lading without having the mate's receipts returned to him. (V. C. B.) Hathesing v. Laing......

BUOY.

155

155

..... 170

See Collision, No. 32-Navigable River, No. 4.

CARGO.

See Bill of Lading-Broker's Lien-Carriage of Goods, Nos. 2, 3, 8, 9, 10, 12, 13, 14, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 43-Charter-party, Nos. 2, 3— General Average, No. 1-Interest-Marine Insurance, Nos. 3, 4, 5, 6, 7, 8, 9, 10, 11, 37, 38, 51, 52.

2. Bill of lading-Assignee-Rights of-Arrangement between shipper and consignees-Notice-An assignee of a bill of lading, who has given valuable consideration without notice of any arrangement between the shipper and the various consignees giving priority to the holders of the other bills of lading in the case of short shipment of cargo in bulk, may claim from the shipowner full delivery of the cargo specified in his bill of lading, even though the arrangement has been made without the privity of the shipowner, and the master has indorsed the bill of lading with the words "weight unknown." (Adm.) Id.....

3. Bill of lading-Assignee-Rights of Notice of bankruptcy of consignee-Putting on inquiry— Priority.-A letter written by an assignor of a bill of lading to his assignee, informing the latter that the bankruptcy of the shipper and consignor (who had indorsed to the assignor) may possibly interfere with the proceeds of the shipment, so far as the assignor is concerned; and that he thinks it best to prevent the possibility of a hitch to send the bill of lading for the assignee to deal with, the latter having advanced money thereon, is not such a notice as will oblige the assignee to make inquiries as to the quantity of and the various rights to the cargo, so as to bind the assignee with constructive notice of any arrangement between the shipper and various consignees, giving priority to the holders of other bills of lading in the case of short shipment. Id..

(Adm.)

514

514

4. Bill of lading-Assignee-Rights of-Master signing as agent of charterers.-The rights of an innocent holder of a bill of lading are not affected by the fact that the master signed as agent for the charterers, unless the holder has notice of the charter party, or that the master signed in that capacity. (Adm.) Id... 514

5. Bill of lading-Assignment-Valuable consideration.-A bill of lading assigned in part payment of a debt already due from the assignor to the assignee, is assigned for valuable consideration. (Adm.) Id...

6. Bill of lading-Bills of Lading Act, sect 3—Measurements-Estoppel.-By 18 & 19 Vict. c. 111, s. 3, "every bill of lading is conclusive evidence of the shipment as against the person signing it." Semble that by this statute the bill of lading is not conclusive evidence as to the accuracy of measurements, and does not estop the person signing from disputing those measurements. (Ex.) Blanchet v. Powell's Llantwit Collieries Company, Limited..

514

224

7. Bill of lading-" Good order and condition "Quality and quantity unknown”—No admission as to quality-Damage to cargo.—A bill of lading, stating goods to have been shipped in good order and condition, but indorsed by the master with the words" quality and quantity unknown," does not admit as against the shipowner that the goods were shipped in good order and condition. (Adm. and P.C). The Ida.. .158, 551

8. Bill of lading -" Liberty to tow and assist vessels in all situations "-Deviation to assist-Loss -Liability of shipowner.-A ship carrying goods under a bill of lading containing the usual excep. tions and also a clause "liberty to tow and assist vessels in all situations," is at liberty to deviate for the purpose of rendering salvage assistance to property in danger, and if in so doing she herself is lost with her cargo by an excepted peril the shipowners are not responsible to the owners of cargo for the loss sustained by them. (Ex.) Stuart and another v. The British and African Steam Navigation Co.........

497

page 497

9. Bill of lading-Trans-shipment-Shipper's risk— Loss-Excepted perils—Liability.—Where goods are shipped for Benin, on the West Coast of Africa, under a bill of lading containing the usual exceptions, and a memorandum "the within goods to be trans-shipped at Bonny, and forwarded by branch steamer at ship's expense, but shipper's risk," the words "at ship's expense but shipper's risk," apply to the trans-shipment of the goods at Bonny, and not to the forwarding of them from Bonny to Benin, and impose no new obligation on the shipowner after trans-shipment, and if a loss takes place within the excepted perils the shipowner is not responsible. (Ex) Id. 10. Bill of lading-Signature by master-Shipowner not estopped-Charter party-Full cargo to be shipped-Short shipment-Payment by ship owners to charterers-No right of recovery.-The signature of a master to a bill of lading does not estop the shipowner, and hence where by a charterparty it is agreed that a ship shall take on board a full cargo, to be provided by the charterers, and proceed therewith to a foreign port, the master to sign bills of lading for the weight of the said cargo put on board, as presented by the charterers, and without prejudice to the tenor of the charter-party, and cargo is shipped, and the master signs bills of lading presented by the charterers for a greater quantity than is actually shipped, there is no warranty on the part of the charterers that the bill of lading is indisputably correct, nor is the shipowner under any obligation to pay the consignees anything to make up for the apparent short shipment; hence no action will lie by the shipowner against the charterer to recover back money so paid to consignees. (C.P.) Brown and others v. Powell Duffryn Steamship Company 11. Bill of lading-Charter-party-Excepted perils -Damage to cargo-Charterers-Semble, that charterers proceeding in a Court of Admiralty jurisdiction, for damage to cargo carried under a bill of lading, containing no exceptions, but signed by the master in pursuance of a charterparty containing the usual exceptions (perils of the sea, &c.), are bound by those exceptions. (Adm.) The Catharine Chalmers

12. Bill of lading-Excepted perils-" Thieves

"

Construction of Liability of shipowner-Onus of proof. Where goods are shipped under a bill of lading excepting, amongst other things, "robbery thieves, barratry, of the masters and mariners," and containing a clause that "the shipowner is not to be liable for any damage to any goods which is capable of being covered by insurance," the words "damage to any goods" in the insurance clause does not apply to the case of total abstraction of the goods and the word "thieves applies, as in polices of marine insurances, only to thieves external to the ship, and the onus of showing that a loss occurring, whether by thieves robbery or barratry comes within one of the exceptions, lies upon the shipowner and not the shipper; hence if the goods totally disappear and the shipowner does not show the loss to have been occasioned by one of the excepted perils, the shipper will be entitled to recover their value. (Q.B.) Taylor and others v. The Liverpool and Great Western Steam Company...

13. Bill of lading-Excepted perils-Contagious Diseases (Animals) Act 1869-Liability of shipowner. Where sheep, shipped on board a ship for importation into England under a bill of lading providing that they are shipped at shipper's risk, and that the shipowner is not answerable for washing or throwing overboard, are washed over

578

598

275

board on the voyage in a gale of wind, the Contagious Diseases (Animals) Act, 1869, under which the Privy Council are empowered to make and have made an Order in Council requiring footholds to be provided for the purpose of "protecting animals brought by sea to ports in Great Britain from unnecessary suffering during the passage and when landing," does not give a right of action to the owners of the sheep to recover for their loss happening in consequence of the breach of the statutory duty, on the ground that the object of the statute was not to benefit the owners, but to prevent the introduction of contagious diseases into this country. (Ex.) Gorris and another v. Scott

..page 282

14. Common carrier-Barge owner-LightermanLiability of Goods carried for one person at a time-No special contract.-Where a barge-owner makes it his business to let out barges on hire under the care of his own servants to any persons applying for them as required from time to time to carry cargoes, not between any fixed termini but to and from different points on a navigable river as each customer requires, each voyage being under a separate engagement made for that voyage, and each barge being let to and carrying the cargo of one customer only at a time; such a barge-owner carries on the ordinary employment of a lighterman, and, as such, incurs the liability of a common carrier in respect of the goods he carries, and is liable for all loss sustained except by the act of God or the Queen's enemies. Quare, however, whether such a carrier would be liable for refusing to receive and carry goods. (Ex. Ch. from Ex.) The Liver Alkali Works (Limited) v. Johnson

15. Charter-party-Demurrage-Ship" to be loaded with usual dispatch"-Charterers-Engagements causing delay-Previous knowledge of masterDock regulations.-Where by a charter-party it is mutually agreed between shipowner and charterer that the shipowner's ship is "to be loaded with the usual dispatch of the port, or if longer detained to be paid 40s. demurrage," and that the ship is to be loaded at a named dock, by the regulations of which no shipper could have more than three vessels loading in dock at the same time, and, by reason of the charterer having more than three vessels entered in their books which had to be loaded in the dock before that ship, the ship is delayed an unreasonable time, the contract to load with the usual dispatch of the port must be considered as an absolute contract to load with that dispatch and within a reasonable time, independently of any other engagements of the charterers, even if it can be shown that at the time of the making of the charter-party the shipowner knew that such previous engagements existed, and the shipowner can recover demurrage. (Q.B.) Ashcroft v. Crow Orchard Colliery Company

16. Charter-party-Reasonable cargo-Unseaworthy ship-Unreasonable delay-Frustration of contract-Dissolution.-Where a charter-party is entered into, the shipowner is bound to provide a reasonably fit ship to carry a reasonable cargo of the kind specified in the charter-party, and the charterer is bound to provide such a cargo; and if such a cargo is provided, and the ship after loading turn out unfit to carry such cargo and consequently unseaworthy, and has to be unloaded and cannot be made fit to carry the cargo within a reasonable time, the charterer is absolved from the performance of his contract and is entitled to recover from the shipowner the loss sustained by him in consequence of the ship

332

397

page 288

owner's default. (Ex. Ch. from C.P.) Stanton v. Richardson; Richardson v. Stanton..... 17. Charter-party-Delay of outward voyage by excepted perils-Arrival after expected time-Contract not wholly frustrated-Duty of charterer to load.-Where by a charter-party it is agreed that a ship shall proceed forthwith to a foreign port and there load a cargo for the charterers, taking an outward cargo for the benefit of the shipowner, subject to usual perils excepted in the charterparty, the exception to the perils of the seas applies to the outward voyage; and if the vessel proceeds on her outward voyage as quickly as possible, consistently with the operation of the perils excepted, and arrives within such time that there has been no such delay as to frustrate the object of the contract from a commercial point of view, the charterer is bound, notwithstanding that the ship arrives at the outward port after the expected time, to provide the stipulated cargo at the port; and if he neglects to do so he is liable to an action for not loading according to charter-party, although he may offer a cargo at another neighbouring port. (C.P.) Hudson and another v. Hill and another... 18. Charter-party-Freight-Advance before voyage begins-Not freight-No lien for.-A charterparty, providing that the freight shall be at certain specified rates, and that a certain sum shall be advanced in cash on signing bills of lading and clearing at the custom house of the port of shipment, and that for the security and payment of all freight, dead freight, demurrage, and other charges, the master or owners shall have an absolute lien and charge on the said cargo or goods laden on board, does not, after the loading and clearing of the ship, but before she sails and before the signing of the bills of lading, give the master and owners a lien upon the cargo loaded for the sum agreed to be advanced, such advance not being freight, and no freight having been earned. (L. C. & L. JJ.) Ex parte Nyholm; Re Child

278

165

228

19. Charter-party-Demurrage-Lay days — Civil commotion. &c. excepted in favour of chartererDefault in loading-What will exempt.-Where a charterer by his charter-party undertakes to load a ship within certain given lay days "accidents or causes occurring beyond the control of the shippers or affreighters, which may prevent or delay her loading or discharging, including civil commotion, strikes, riots, stoppage of trains, &c., always excepted," or to pay demurrage, he cannot excuse default in loading within the lay days by giving evidence of general disturbance and cessation of work in the district about the time; but to exempt himself from liability must show a disturbing cause, actually preventing the loading of the particular ship. (Adm.) The Village Belle. 20. Damage to cargo-Bill of lading-Excepted perils-Damage by other causes-) -Liability of shipowner.-A shipowner carrying goods under a bill of lading, by which he contracts to deliver in good order and condition, certain perils excepted, is bound to deliver in that condition, unless prevented by those perils, and is responsible for any damage to goods occasioned otherwise than by those perils. (Adm.) The Chasca..... 600 21. Damage to cargo-Bill of lading-Perils of the seas Barratry of crew-Excepted peril-Liability of shipowner.-Injury to cargo damaged by sea water during a voyage, in consequence of the barratrous act of the crew in boring holes through the sides of the ship for the purpose of scuttling her, is not a loss by perils of the sea, within the

meaning of the usual exception in a bill of lading, such as will exempt the shipowner from his liability for the damage under his contract to deliver in good order and condition. (Adm.) Id....page 600 22. Damage to cargo-Perils of the seas-Bill of lading-Policy of insurance-Barratry-Scuttling ship-Even if damage to cargo by sea water caused by the barratrous act of the crew in boring holes through the ship for the purpose of scuttling her, loss would come within the meaning of the words, "perils of the seas," in a policy of insurance, it is not included in those words as used in a bill of lading. (Adm.) Id... 600

150

23. Damage to cargo-Condition at time of ship. ment-Onus of proof.-In a suit against shipowners for damage to cargo, the onus is upon the plaintiffs to show in the first instance that the goods were shipped in good order and condition, before they can call upon the shipowners to show excuse for the injury done to the goods (overruled, see p. 551). (Adm.) The Prosperino Palasso 24. Damage to cargo-Bill of lading-" Good order and condition "_" Quantity and quality unknown"-Condition at time of shipment-Onus of proof. There is no rule of law by which the consignee of goods under a bill of lading, stating goods to have been shipped in good order and condition, and containing the words "quantity and quality unknown," is bound to show that the goods were shipped in good order and condition, or fail in his suit against the shipowner for damage done to the cargo; but failing proof of the condition of the cargo when shipped, the consignee is bound to show that the damage which is sustained is traceable to causes for which the shipowner is responsible. The Prosperino Palasso (ante, p. 158) disapproved of. (P.C.) The Ida. 551 25. Damage to cargo-Straining-Perils of the seas excepted-Stowage.-Damage to cargo caused by the oozing of wine from casks through straining in bad weather is damage occasioned by perils of the seas, and the shipowners are, under the usual exceptions, exempt from liability therefor where the cargo is properly stowed, or is stowed in snch a manner that the master is not responsible for bad stowage. (Adm.) The Catharine Chalmers 598 26. Damage to cargo-Charter-party-Stowage by charterer's stevedore-Liability.--Where a charterparty stipulates that a vessel is "to be stowed by charterers' stevedore, at risk and expense of vessel," and a cargo is supplied by the charterers and is stowed by their stevedore, the shipowner is not responsible for damage occasioned by bad stowage. Blakie v. Stenbridge (6 C.B., N.S. 874) followed. (Adm.) Id.

27. Delivery of goods-Port-Place of delivery-Bill of lading-Freight--Shipowner's duties and rights. -The duty of a shipowner to deliver goods at the usual place of delivery of a port, to which he has contracted to carry under a bill of lading stipulating only that the goods shall be delivered at the port without any particular part of the port being named, is an implied duty only, and does not amount to an engagement to go to the usual place in all events and under all circumstances. The shipowner's express contract is to deliver in the port, and if it be impossible to deliver at the usual place of delivery by reason of the prohibition of the port authorities, or other accidental cause, the contract is not dissolved, but may be performed by the master being ready to give delivery at some other convenient part of the port, and keeping the cargo in that place for a reasonable time ready for delivery, and the shipowner will thereupon be entitled to his freight. (P.C.) Brown (app.) v. Gaudet (resp.); Cargo ex Argos

598

28. Delivery of goods-Bill of lading-Landing of goods--Shipowner's duty.--A bill of lading by which a shipowner contracts to deliver at a port, "the goods to be taken out within twenty-four hours after arrival or pay demurrage," does not absolutely require that the shipowner should be ready, not merely to deliver, but also to land the goods in the port, or that the merchant should be able, on receiving them, to land them, but it casts upon the merchant the duty of taking the goods out of, or at all events from alongside the ship; hence, if it should be impossible to land the goods, by reason of a prohibition of the port authorities, the shipowner may still perform his part of the contract if he be ready to deliver the goods to the merchant in the port without landing them. (P.C.) Id...... .page

29. Delivery of goods-Demurrage-Expenses-Bill of lading-Default of consignee.-When goods carried under a bill of lading, by which the shipowner is to deliver at the port of destination, and the merchant is to take them out within twentyfour hours or pay demurrage, cannot be landed at, but may be delivered within, that port, the shipownercannot recoverfrom the merchant demurrage and expenses claimed in respect of attempts to land the goods at other ports, before he is ready to give delivery at the port of destination; but he may recover expenses incurred, in consequence of the default of the merchant in taking delivery, after he is ready to give delivery at that port, in hiring a vessel to store the goods, if thereby the merchant is relieved from the demurrage payable in respect of the detention of the ship. (P.C.) Id.

30. Delivery of goods-Freight-Time of payment— General average-Demurrage-Lien-Detention of cargo by master-Liability.-Where, by a charterparty and bill of lading, freight is "to be paid on unloading and right delivery of the cargo," the master having a lien by common law for freight and general average, and a lien by contract for demurrage, the payment of the freight and the delivery of the goods are concurrent acts in which all that is required from the owner of the cargo is readiness and willingness to pay at the time of delivery; and before paying any sum for general average, the owner of cargo is entitled to be satisfied that the amount claimed is the result of a proper adjustment; and if the owner of cargo on arrival of the ship in port, and before discharge, refuses to pay the amount claimed for freight and general average before the amount due is finally ascertained, but offers to pay a large proportion of the freight, and, there being no doubt as to his solvency, to sign an average bond for the payment of the general average when ascertained, but the master, nevertheless, insists upon retaining the cargo on board ship until his lien for freight and general average is satisfied, detention by the master is not wrongful, but, quære, can he impute the delay in the discharge to the owner of cargo or claim for demurrage on that ground? (P.C.) Miedbrodt v. Fitzsimon; The Energie... 31. Delivery of goods-Mate's receipt-Short delivery-Liability of shipowner-Freight.-Where a mate gives a receipt purporting to represent the amount of goods shipped on board a ship, and the charterers pay the consignor for the amount so represented, and also pay the master freight on that amount, but a smaller amount is delivered; the giving of the receipt is not such an act of negligence in itself as will entitle the charterers to recover from the shipowner the amount paid in excess to the consignor if all that was actually shipped was delivered; but the

32. Delivery of goods-Bill of lading-Where responsibility of shipowner ceases.-Where goods shipped under a bill of lading containing the words, " To be delivered from the ship's deck, where the ship's responsibility is to cease," arrive at their port of destination, and the usage of that port is that goods are unloaded by the dock company at the expense of the shipowner on to a quay, and then that the consignee should send lighters into which the goods are delivered also by the dock company and also, if within a specific time, at the expense of the shipowner, the shipowner is not responsible for the loss of any of the goods after they have been unloaded on to the quay in accordance with the usage. (C.P.) Petrocochino and others v. Bott

33. Delivery of goods-Merchant Shipping Act Amendment Act 1862, sect. 67.-Landing and warehousing cargo-Default of consignee-Wilful default not necessary.-To justify the master of a ship in lading or warehousing a cargo under the Merchant Shipping Act Amendment Act 1862 (25 & 26 Vict. c. 63), s. 67, by which it is enacted that where the owner of goods imported "fails to land and take delivery thereof, and to proceed therewith with all convenient speed" by the time named in the charter-party, &c., "the shipowner may land and unship the said goods," and warehouse them, it is not necessary that the failure of the owner of cargo should be a "wilful default" in landing, &c.; but the master is at liberty to land the goods whenever the delivery of them to the owner within the proper time has been prevented by circumstances, whether the latter is or is not to blame. (P.C.) Miedbrodt v. Fitzsimon; The Energie..

310

555

34. Delivery of goods-Merchant Shipping Act Amendment Act 1862, sect. 67-Landing and warehousing cargo-Lien-Stop order-Excessive amount -Wrongful detention.-The provisions of the Merchant Shipping Aot Amendment Act 1862 (ss. 67 and 68), giving power to a master to land and warehouse a cargo, and give notice of his lien to the warehouseman, enable the master to retain his lien but do not extend it to charges not due at the time of landing, and if the master wilfully, and for the purpose of exacting from the cargo owner charges for which he has no lien, places upon the goods a stop order for an excessive amount, which the cargo owner is compelled to pay before he can obtain his goods, the landing and detention of the goods for that amount is a wrongful act, for which the owner of cargo may recover. (P.C.) Id. ... 535 35. Delivery of goods-Merchant Shipping Act Amendment Act 1862, sect. 67-Landing and warehousing cargo-Lien for freight and general average-Stop order-Payment of part.-Where a master lands and warehouses goods under the Merchant Shipping Act Amendment Act 1862, and to preserve his lien for freight and general average, places on them a stop order for the amounts claimed, and one of those amounts is paid by the cargo owner, it becomes the duty of the master to reduce the stop order to the amount for which he can after such payment reasonably claim a lien, and his refusal to do so amounts to a wrongful detention of the cargo. (P.C.) Id.

36. Delivery of goods-Merchant Shipping Act Amendment Act 1862, sect. 67-Lien-Claim exceeding amount due.-Semble, that a master is not liable merely because he lands and warehouses goods under a stop order for a sum in excess of

555

37. Delivery of goods-Mersey Docks Act Consolidation Act 1858, sect. 36-Master porters-Short delivery-Liability.-The Mersey Docks Act Consolidation Act 1858, sect. 36, making the master porters, appointed under that Act to discharge cargoes in the Mersey Docks, responsible for any loss, damage, or injury sustained by the cargoes discharged by them during the receiving, weighing, and loading off by the master porters or their servants, does not in any way discharge the shipowner from his liability existing before he delivers to the master porter, and his responsibility for short delivery remains unaffected by the Act. (Adm.) The Emilien Marie........

38. Freight-Abandonment of ship and cargo by crew-Brought in by salvors-Right of shipowner to recover freight-Sale of cargo by court-Refusal of shipowner to consent.--Where a ship,injured by collision without fault of her master and crew, is abandoned by them, and is afterwards taken possession of and brought in safely into port by salvors, who institute a suit against ship and cargo, the shipowner, having by the abandonment put an end to his contract of carriage, loses all claim to have the cargo put into his possession to enable him to carry it on and so earn his freight, and all claim to be paid full freight out of the proceeds of the cargo, if sold by order of the court. Nor can the shipowner have any claim for pro ratá freight unless there be a new contract express or implied to pay the same, and if the shipowner refuses to consent to a sale of the cargo by the court, when applied for by the salvors and owner of cargo, unless he be paid full freight, no such contract can be implied. (Adm.)

The Kathleen

39. Freight Charter and sub-charter-Bills of lading signed without knowledge of sub-charter-Lien for freight-Delivery without prepayment-Right of recovery of freight.-Where the master of a ship enters into a charter-party with a shipbroker by which it is agreed that goods shall be carried at a certain-named freight, and the shipbroker, without authority from the master, enters into a second charter-party, relating to the same ship and to goods of the same character and quantity, with merchants agreeing that the goods shall be carried to the same port but at a higher rate of freight than that named in the first charter-party; and it is agreed in both charter-parties that the freight shall be prepaid and that the shipowner shall have an absolute lien for freight, and the merchants ship the goods without knowledge of the first charterparty; and the master, without knowledge of the second charter-party, receives the goods and signs bills of lading for them, making the freight payable as per charter-party, and without taking prepayment carries and delivers the goods; the shipowner cannot recover the freight from the merchant after payment of the same by the latter to the shipbroker, because there is no contract between the shipowner and the merchant. There being no consensus ad idem the bill of lading is no contract, as it does not refer in the minds of the shipowner and merchant to the same charterparty, nor is there any implied contract to pay freight other than as agreed upon by the charterparty signed by the merchant. (Q.B.) Smidt v.

Tiden

40. Freight-Charter-party-Lump freight-Short delivery-Excepted perils-Rights of shipowner.— Where by a charter-party, it is agreed that a ship shall load a full and complete cargo to be provided by the charterers or their agents, freight to

514

367

307

be paid in a lump sum fixed by the charter-party, and after the loading of the cargo part thereof is lost without default of the shipowner, by perils excepted in the charter-party, but the remainder is duly delivered according to the charter-party, the charterers are not entitled to deduct from the lump freight a sum proportioned to the amount of cargo which has been so lost; but the shipowner is entitled to his full freight. The Norway (B. & L. 404) followed. Robinson V. Knight. (C.P.)

page 19

41. Freight Charter-party-Freight payable on invoice quantity shipped-Bill of lading-Quantity and quality unknown-Right of shipowner.— When a ship is chartered to load a cargo of grain and deliver at a British port by a charter-party, by which freight is to be paid at so much for a given quantity shipped, and in the event of any part of the cargo being delivered in a damaged condition the freight to be payable "on the invoice quantity taken on board, as per bill of lading, or half freight on damaged or heated portion, at captain's option," and the cargo is shipped under a bill of lading naming the quantity shipped, but the captain, before signing the bill of lading, writes thereon "quantity and quality unknown,' signing of this memerandum will not take away the captain's right to be paid freight on the invoice quantity, if on arrival he claim by notice to the indorsee of the bill of lading to be paid in that way. (C.P.) Tully v. Terry...

42. Freight-Bill of lading-Lump freight-Short delivery. The whole freight, if a lump sum, named in the bill of lading is payable to the shipowner carrying under it, although a less quantity of goods than the quantity named in the bill of lading be delivered. (Ex.) Blanchet v. Powell's Llantwit Collieries Company Limited..

43. Master-Powers and duties of-Agent for shippers-Right to recover expenses.-The master of a ship being, in many cases of accident and emergency, the agent from necessity of the owners of cargo where he cannot obtain instructions from them, has not only the power, but a duty cast upon him to act in such cases for the safety of the cargo in such manner as may be best under the circumstances in which it may be placed, and is entitled as a correlative right to charge the owner of the cargo with the expenses properly incurred in so doing. The obligation on the part of the master to act for the merchant does not cease after a reasonable time for the latter to take delivery has elapsed, and hence, after such time, if it be impossible to land and warehouse the goods, or leave them at their port of destination, the master may, in the absence of all advices, carry or forward them to such place, even back to the port of shipment, as is most convenient to the owner, and charge him with the expense of so doing. (P.C.) Brown (app.) v. Gaudet (resp.) Cargo ex. Argos

See Bills of Lading-Charter-party-Marine
Insurance, Nos. 3, 23, 37, 38, 51, 52, 53.

CARRIERS.

See Carriage of Goods-Marine Insurance,
Nos. 3, 4.

CAVEAT TO PREVENT RELEASE.
See Practice, No. 5.

CHARTERED FREIGHT.

See Carriage of Goods, Nos. 39, 40, 41-Marine Insurance, Nos. 19, 20, 21, 22, 23.

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