Beportedby Douglas Kin g s f o r d, Esq., Barrister-at-Law.
Monday, A p ril 3, 1871.
(Present : The Lo r d Ch a n c e l l o r (Hatherley), Lord Ch e l m s f o r d, Lord We s t b u r y, and Lord
Co l o n s a y.)
McLe a n a n d a n o t h e rv. Fl e m in g.
Charter-party—Bead freight—Deficiency of cargo—
Lien—Indorsees of bills of lading also charterers
■—Quantity specified in b ill of lading.
“ Dead freight ” means compensation, liquidated or unliquidated, for the loss suffered by the shipowner by the fa ilu re on the p art of the charterer to supply a f u ll cargo, and the amount payable in respect thereof, where it is unliquidated, is such reasonable amount as the shipowner would have earned, after deducting such expenses as he would have incurred i f a f u ll cargo had been shipped.
A lien on the cargo actually shipped fo r dead freight may be created by express stipulation in
the charter-party.
Where a charter-party is entered into on behalf of the indorsees of the bills of lading given under the charter, so that they are the actual charterers, they are bound by a stipulation as to lien in the charter-party.
B ills o f lading signed by the master are prima facie evidence that the quantities named therein were received on board by h im ; the onus of rebutting this presumption and of showing that a less quan
tity than that specified was received lies on a ship
owner. (as)
(a) The exact words of the charter party, so far as they are material, are as follow : “ I t is this day mutually agreed between Samuel Donaldson, of the good ship or vessel Persian, of Liverpool, of the measurement of 598 tons or thereabouts, now lying at this port (Constan
tinople), whereof himself is master, and M r. A. Carmusi, of this city, freighter of the said vessel, that the said ship, being tight, staunch, and strong, and in yvery way fitted ;for the voyage, shall with all convenient speed, alter discharging her present cargo, be made ready to sail and proceed to Ounieh, Kerrasounda, in a third place^ of Marmora, and to fill up in a fourth place below, viz., Enos, Khero, Orfano, Port Lagos, Salónica, Smyrna, or Scala Hnova, at charterer’s option, or so near thereunto as she may safely get, and there load from the agent of the said freighter a fu ll and complete cargo of cattle bones in bulk, the captain to sign bills of lading at each port, at the option of the freighter, not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provision, and furniture; and being so loaded, shall therewith proceed to a safe port in the United Kingdom, orders on signing bills of lading on the last port or lay days to commence, and deliver the same, on being paid freight as follows—viz., at the rate of, say, 35s. (thirty-five shillings) sterling English per ton of bones of 20 cwt. Delivered in full. . . . The captain or owner to have an absolute lien on the icargo for all freight, dead freight, and demurrage. The cargo to be brought to and taken from alongside, &c. . . . The freight to be paid on unloading and right delivery of the cargo, half in cash, and the remainder by approved bills, &c.
. . . sixty running days, &c. for loading and unloading,
&e. . . . Penalty for non-performance of this agreement, amount of freight. Charterers binding themselves to ship at Ounieh and Kerrasounda from 170 to 200 tons of said bones. I t is understood that the ship is to be loaded in four of the above places.”
On reference to the case of Gray v. Carr (ante p. 115), it will be seen that the charter parties in the two cases are almost identical, more especially in those parts giving a lien for dead freight. Brett, J., commenting on McLean v. Fleming in his judgment in Gray v. Carr, says : “ The charter party was in respect of the carriage of a uniform cargo, and the freight was payable at a fixed sum per ton, and the charter party ascertained the amount of the cargo that was to be loaded and he distinguished the two oases. In Gray v. Carr i t w ill be seen that the charter party (as to the cargo actually shipped) was in respect of a uniform cargo, that is, of oak staves; that the freight was payable at a fixed sum per 100' pieces of oak staves; and that the charter party, by giving the ship’s tonnage, gave the same means of ascertaining, in that case, the amount of cargo that was to he loaded in the same way as it was given in McLean v. Fleming. In fact, in McLean v. Fleming the actual amount of cargo shipped was only ascertained by weighing at the port of discharge, and in that sense the damages were unliqui
dated. The fact that it might have been easier to mea
sure the damages in the one case than the other cannot affect the principle. The bills of lading were different, as that in Gray v. Carr contained the words, “ Paying freight and all other conditions or demurrage for the said goods as per the aforesaid charter p a r t y w h i l s t in McLean v. Fleming the words were “ paying freight for the said goods as per charter party.” The majority of the oonrt in Gray v. Carr lay down that dead freight does not include damages for not loading a full cargo unless the sum is specified in the charter party. On the other hand, the Lords in McLean v. Fleming say that dead freight means damages for not loading a fu ll cargo, whether snch damages are ascertained by the charter 1 party or not. Therefore the deoisions here given are in
M A R IT IM E LA W CASES.
1 6 1H . o p L . l McLe a n a n d a n o t h e r v. Fl e m i n g.
Th i s was an appeal from a judgment of the second
division of the Court of Session, affirming a judg
ment of the Lord Ordinary.
The appellants, merchants in Edinburgh, or
dered a cargo of cattle bones from Messrs. W., at Constantinople, and Messrs. W. obtained, on pay
ment of 51., a transfer to them, from a broker at Constantinople, of a charter-party of the ship Persian, of which the respondent was owner.
Messrs. W. forwarded the charter to the appel
lants, and charged them with the 50Z. and other advances made in pursuance of the charter, which the appellants paid.
By the charter-party it was “ m utually agreed ” that the ship should proceed to certain ports, “ and there load, from the agents of the freighters, a fu ll and complete cargo of cattle bones in bulk,” the cargo to be completed at four ports, and thence to a port in the United Kingdom, and “ deliver the same on being paid freight at the rate of 35s. per ton. Tho captain or owner to have an absolute lien on the cargo for all freight, dead freight, and demurrage,” &c.
Messrs. W.’s agents at the different ports shipped bones, and received bills of lading, p ur
porting to be for an amount equal in Turkish measure to 701 tons, in the names of the appel
lants, as shippers, “ to be delivered unto order or to their assigns, paying freight for the goods as per charter-party,” and endorsed the bills of lading in the words “ weight and quality unknown.”
Before the ship had received a fu ll cargo, the shipper’s agents at the fourth port found they had no more bones, and told the master he might sail for Great B rita in ; the master noted a protest that he was despatched with a short cargo, and when he arrived at Aberdeen only 386 tons were delivered, and no more were then on board, whereas the measurement tonnage of the ship was from 596 to 598 tons. The respondent (the ship
owner) claimed a lien for “ dead freight ” to the amount of 3671. 10s. as due on 210 tons short shipped, at the rate of 35s. a ton, the stipulated rate of freight; and the consignees (the appel
lants) claimed damages for the nondelivery of the 701 tons stated to have been shipped in the bills of lading. The Lord Ordinary found that the appellants had no rig h t to claim for damages for non-delivery, as the amount actually shipped was only 386 tons.The Court of Session confirmed t l is finding. The facts are sufficiently noticed in the judgments.
Young, Q.C. (Lord-Advocate), S ir 11. Palmer, Q.C., and Lanyon, for the appellants.
Kirchnerx. Venus, 12 Moo. P. C. C. 361;
Abbot on Shipping, 11th edit., pp. 238, 239, 279, and 280 ;
Phillips v. Rodie, 15 East, 547;
Bell x. Puller, 2 Taunt. 285 ; 12 East, 496, note ( a );
Gray x. Carr, ante p. 115; L. Bep. 6 Q. B. 522;
Bell’s Principles of the Law of Scotland, s. 430;
Birley x. Gladstone, 3 Maule & S. 205;
Smith x. Sieveking, 4 E. & B. 945;
Pearson x. Goschen, 17 C. B., N . S., 352; 10 L T Bep. JST. S. 758.
Sir O. Eonyman, Q.C., Jessel, Q.C., and S. W ill, for the respondent.
direct conflict with the majority of the court in Gray v.
Carr. The only distinction that can be drawn between the two oases is, that in this case the consignees were really the charterers, whilst in Gray x. Carr the con
signees claimed under the b ill of lading, and were not Parties to the charter party.—Ed.
Vol I . , N . S .
[H . gpL.
Sm all x. Moates, 9 Bing. 579 ; 2 Man. & S. 674;
Gledstanes x. Allen, 12 C. B. 202 ;
Kern x. Deslandes, 10 C. B., N. S., 205 ; 30 L. J. 297, C. P. ; 5 L . T. Bep. N. S.349;
Bell’s Dictionary and Digest of the Law of Scotland, tit. “ Dead Freight” ;
Haddow x. P arry, 3 Taunt. 303;
Bell’s Commentaries, 7th edit., pp. 620 and621; Gladstone v. Birley, 2 Mer. 401.
The Lo r d Ch a n c e l l o r(Hatherley.)—The case of K irc h n e r v. Venus (12 Moo. P.C. 361) is distinguish
able on the ground that there was no such express contract as there washere. “ Dead freight,” though, as observed by several authorities, not a very accurate term, is intelligible enough. “ Dead freight ” has been defined by Lord Ellenborough in P h illip s x .R o d ie (lh East, 155), as “ unliquidated compensation for loss of freight.” The question whether there has been an engagement by the parties for a lien of such unliquidated damages is matter of proof. There is no difficulty as to what the engagement was in this case. So much per ton was agreed to be paid for a fu ll cargo of a uniform description, and a fu ll cargo was agreed to be supplied, and there was no difficulty in ascer
taining either the quantity of tho cargo agreed for or the amount agreed to be paid per ton. The payment was to be at the same rate in respect of the goods not supplied as for those supplied. Of course there might be always some difficulty in liquidating the damages, because it m ight be that the captain m ight have had it in his power to fill up the deficiency with other cargo; but that was not the case here. I t is enough to say that here there is a clear case of an omission to supply a fu ll cargo as contracted for, and a clear case therefore for applying the definition of Lord Ellenborough as to what “ dead freight ” is—a definition exactly agreeing with that given in Bell’s Commentaries (vol. 1, p. 620, 7th edit.) As to the contention that the appellants claimed under the bill of lading, which did not incorporate the terms of the charter- party, the appellants were, to all intents and pur
poses, in the position of charterers, and were there
fore bound by the terms of the charter-party. I am of opinion, therefore, that the judgment of the court below must be affirmed.
Lord Ch e l m s f o r d.—My Lords, the first ques
tion is, whether there was evidence that the cargo shipped was only to the extent of the quantity found to bo in the ship on arrival at Aberdeen.
On this point your Lordships held so clear an opinion that you did not require any argument for the respondent upon it. The master is the agent of the shipowner in every contract made in the usual course of the employment of the ship ; and though he has no authority to sign bills of lading for a greater quantity of goods than is actually put on hoard, yet, as i t is not to be pre
sumed that he has exceeded his duty, his signature to the bills of lading is sufficient evidence of the truth of their contents to throw upon the ship
owner the onus of falsifying them, and proving that he received a less quantity of goods to carry than is thus acknowledged by his agent. But it being admitted that it lay upon the shipowner to rebut the p rim a fa c ie evidence arising from the bills of lading, he appears to me to have satisfac
torily done so. I f the evidence of the master is to be believed, and there seems no reason to doubti t, it is impossible that the additional quantity of bones could at any time have been on board the vessel. In the course of his evidence, the master
M
162 M A R IT IM E L A W OASES.
H. op L .] McLe a n a n d a n o t h e r v. Fl e m in g. [H . opL.
said, “ I brought to Aberdeen the whole of the cargo that was shipped. No part of i t was put away either by myself or anyone else, nor inter
fered with from the time i t was put on board t ill it was landed at Aberdeen.” I t is no slight confir
mation of the evidence that there was not a fu ll and complete cargo when the ship sailed from Enos, the last place of loading, that the quantity of bones delivered on A p ril 3, 1865, having exhausted all that were there for delivery, the captain on the following day went before the Vice- consul at Enos, and in a formal document stated that be had informed the agent of W hittaker and Co., in the presence of the Vice-Consul (who must have known whether the statement was correct), that not having received a fu ll cargo for his vessel, he reserved his rig h t to protest, and formally pro
tested against the freighter. The appellants were not able to meet this evidence by proof that the quantities mentioned in the b ill of lading, or any more than the 386 tons, were actually shipped, and this question was therefore properly determined by the Lord Ordinary, and by the court of second division in favohr of the respondent. The ques
tions then rem ain: F irst, whether the 210 tons short of a complete cargo can be regarded as dead freight, to which the lien in the charter-party applies ? and, secondly, supposing a lien to have existed, whether it was available against the ap
pellants ? The Lord Advocate argued that the rule as to dead freight was inapplicable to a case where the neglect to supply a fu ll cargo under a charter-party, results in a claim to unliquidated damages, and that by law dead freight can exist only where there is an express stipulation for a cer
tain amount to be payable eo nomine. Upon the question of enforcing the lien against the appellants in respect of dead freight, he contended that they were indorsees for value of the bills of lading, which bound them merely to pay “ freight for the goods as per charter-party,” and imposed upon them no lia b ility for dead freight, even if any were payable under the charter-party. I t must be admitted that the term “ dead freight ” is an inaccurate expres
sion of the thing signified by it. “ I t is,’ as Lord Ellenborough said in Phillips v. Bodie (15 East, 554), “ not freight, but an unliquidated compensa
tion for the loss of freight recoverable in the absence and place of freight.” The learned counsel for the appellants, in support of their argument that no dead freight properly so called was agreed to be paid under the charter-party in question, cited the cases of Kirchner v. Venus (12 Moo. P.C.
361) and Pearson v. Goschen (17 C. B., N. S. 352), Pearson v. Goschen was referred to for some dicta of the judges, not defining what dead freight was, but stating what i t was not. In the case of Kirch
ner v. Venus there was no attempt to define, and no necessity for a definition of the term “ dead freight.” The Judicial Committee merely decided that a sum of money payable before the arrival of a ship at her port of discharge, and payable by the shippers at the port of shipment, did not acquire the legal character of freight because i t was described under that name in the b ill of lading; that it was in effect money to be paid for taking the goods, and not for carrying them. W ith respect to t|ie obser
vations of the learned judges upon the subject of dead freight in Pearson v. Goschen, your Lord- ships were told that there is a case Gray v.
Carr (sup.) standing for judgment in the Court of Exchequer Chamber, in which their opinions
may have to be considered. I shall therefore abstain from any remarks upon them. I t was argued for the appellants that, even if a claim for damages for breach of a covenant in a charter-party to furnish a full lading to a ship may correctly be called “ dead freight, and yet that no lien can exist where the damages are un
liquidated. B ut I understand the case of Phillips v. Bodie not to have denied that though the damages were unliquidated, there m ight have been a lien upon tbe cargo for them i f the contract of the parties had stipulated for it, whieh i t had not.
A nd in the case of Birley v. Gladstone (3 Mau. &
Sel. 205), cited by counsel for the appellants, there was no actual decision upon the question of lien for dead freight ; but it was held that a clause mutually binding the shipowners and the ship, and the freighter and the cargo in a penalty, could not be considered as intended to give the shipowner a lien for the performance of the covenant in the charter party to load a fu ll cargo. I t may be ob
served that even where there is an express stipula
tion to pay fu ll freight, as i f the goods had been actually loaded on board, and that the master shall have the same lien upon the goods actually on board as if the ship had been fu lly laden, the case may be one of unliquidated damages, for the master may have filled the vacant space with the goods of other persons, and the freighter would be entitled to have any allowance for the profit thus made. In construing the charter-party it must be assutped that the parties understood the meaning of the terms they employed, and that, amongst others, the term “ dead freight ” meant (according to Lord Ellenborough’s definition) “ an unliqui
dated compensation for the loss of freight. The freighter with this understanding agrees to load on board the respondent’s ship a fu ll and complete cargo of cattle bones, and to pay freight at the rate of 35s. sterling English per ton. He knows that, i f he fails to perform his covenant to load a fu ll and complete cargo, he w ill be liable to the ship
owner in damages under the name of dead freight, and he agrees to give the captain or ship
owner an absolute lien on the cargo for all freight, dead freight and demurrage. W hy should not his agreement have its intended effect ? This case can hardly be considered to be one of
owner an absolute lien on the cargo for all freight, dead freight and demurrage. W hy should not his agreement have its intended effect ? This case can hardly be considered to be one of