Reported b y H . Pe a t, Th o m a s Br e t t, and G. We b b y Kin g, Esqrs., Barristers-at-Law.
July 17 and 18, 1871.
Pe e k v. La r s e n.
Ship—Charter-party—Lien on cargo fo r freight—
Advertisement as general ship—Shipment without notice of charter-party.
O. and Go., who chartered a foreign vessel under a charter-party, which provided that the captain should have a, lien on the cargo fo r freight, dead freight, and demurrage, advertised the vessel as a generalship,the advertisement inviting applications as to the freight, fyc., to he made “ to G. and Go.
brokers." The plaintiffs entered into an agreement with C.and Go. fo r the carriage of certain goods at a certain rate of freight, and put the goods on hoard without notice of the charter-party. The captain refused to sign the bills of lading, except subject to the charter-party, and claimed a lie n on goods fo r expenses:
Held,that the plaintiffs were not boundby the charter- party as they had no notice of it when they put the goods on board, and that they were entitled to have the goods returned to them free from any claim by the captain:
Held, also, that as the'vessel was advertised as a general ship, the plaintiffs were not bound to inquire whether it was subject to a charter-party or not. (a)
Th i s was a suit by a firm of tea merchants, carry
ing on business in the city of London under the style of Francis Peek, Winch, and Co., against Larsen, the master, and Bjorn, the owner, of the Norwegian ship Alliance, praying that the defen
dants m ight be restrained from sailing with, or removing certain packages of tea, which the plain • tiffs had put on board the ship, and that they might be ordered to concur in the transfer of the tea into the plaintiffs’ names at the London Docks.
The circumstances of the case were as follows.
In Feb. 1870 Messrs. Claxton and Co. advertised the Alliance as about to sail. The advertisement, so far as material, was in these words :
Gu a r a n t e e d Fir s t Sp r in g Sh i p. To sail March t, 1870.
Direct for St. John, N. B.
The splendid and fast clipper Alliance, 5-6ths in Veritas (a) As to the liability of holders of bills of lading for claims arising under the stipulations of a charter-party, see Gray v. Carr (ante, p. 115); and McLean and another v. Fleming (ante, p. 160).—Ed.
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Pe e k v. La s s e n. [ Po ll s.
Ro l l s.]
and coppered, 800 tons, Niels Larsen commander, loading in London Docks. For freight or passage apply to J. D . Claxton and Co., brokers, 51, Lawrence-lane, Cheapside.
In the course of the same month, the plaintiffs entered into an agreement with Claxton and Co.
for the carriage of 149 packages of tea from Lon
don to St. John’s at 17r. 6<f. per ton and 5 per cent freight, payable at St. John, primage allowed.
The sum payable under this agreement was 101.16s. 8d. less 5 per cent, primage. The tea was delivered out of bond and put on board the Alliance on the 1st March, a receipt being given to the dock company by the mate.
On the same day the plaintiffs presented to Claxton & Co. the bills of lading for the captain’s signature.
On the 7th March, Claxton & Co. returned the bills of lading unsigned, inclosed in a letter, in which they stated that, owing to certain unfounded rumours, they were obliged to remove the Alliance from the berth, and that they would be glad if the plaintiffs would apply to Messrs. Dahll and Go., the agents for the ship, for the removal of their goods from the ship.
Thereupon the plaintiffs immediately applied to Dahll and Co. for information why the ship was not to sail, and requested their goods to be returned to them. And they were then informed that, in consequence of Claxton and Co. being unable to carry out the terms of their charter-party, the captain claimed a lien on the tea for expenses incurred through waiting for freight and bringing his ship into dock.
This was the first intimation received by the plaintiffs as to the existence of any charter-party affecting the ship. They at once made further inquiries, and learned that the ship was char
tered to Claxton and Co. by a charter-party, dated the 27th Jan. 1870, which provided that the ship should, with all convenient speed, proceed to a safe loading place in the London Docks, and load afloat from the factors of the charterers a fu ll and complete cargo of lawful merchandise, including lucifer matches, acids, and gunpowder, the freighters binding themselves not to ship more than she could reasonably stow away, and, being so loaded, should proceed to St. John, New Brunswick, and deliver the goods, on being paid freight as follows 30s. British sterling per British register ton, five guineas gratuity in full of all port charges and pilotage. The freight to become due and paid in cash on unloading, and rig h t delivery of the cargo. The charterer’s re
sponsibility to cease as soon as such difference as m ight exist between the freight payable by bills of lading at St. John, and the freight due to the vessel in virtue of the charter-party was paid, such difference to be paid the captain in cash on sign
ing bills of lading. The captain to have an abso
lute lien on the cargo for freight, dead freight, and demurrage.
The captain, on being formally requested to sign the bills of lading, refused to do so except subject to the charter-party, and he also refused to de
liver up the tea, claiming a lien on it for expenses.
Thereupon, the plaintiffs instituted the present suit.
An interlocutory order was soon afterwards made in the suit that the tea should be removed to London docks and placed there in bond, in the join t names of the solicitors of both parties, to abide the result of the suit.
The cause now came on for hearing.
Sir Richard Baggallay, Q.C. and Marten for the plaintiff.—We submit that, as we had no notice of the charter-party, the defendants are not entitled to the lien which they claim. The present case, we submit, is governed by Paul v. Birch (2 A tk.
621), where it was held that where a factor makes an agreement for the hire of a ship w ith the master on his own account for a certain sum a month, and not on the part of the merchants, his principals, they are not liable, nor their goods put on board, to satisfy the master’s demand, but they are liable to pay the factor for the cargo ; and as he was bound by the charter-party, which gave the master a specific lien on the goods, he had a rig h t to be paid in the first place. In Mitchell v.
Scaife (4 Camp. 298), where a ship was chartered for a particular voyage for a gross sum by way of freight, and the captain signed bills of lading for the cargo (which was the property of and con
signed to a third person), specifying a rate of freight amounting to a less sum than that men
tioned in the charter-party, it was held that the shipowner had no lien on the cargo beyond the freight specified in the bills of lading. In F ry v.
The Chartered Mercantile Bank of India, London, and China (14 L. T. Rep. N. S. 709; L. Rep. 1 C. P. 689), where a vessel was chartered to ship cotton to a certain place under a charter-party con
taining the stipulation,t( the ship to have a lien on cargo for freight, 3L 10s. per ton, payable on rig h t delivery at the port of discharge; ” the goods shipped fell short of a fu ll cargo; the b ill of lading of these goods stated “ freight to be payable as per charter-party;” the rest of the cargo was shipped at a lower freight, and the defendants were indorsees for value of the b ill of lading, and i t was held that the plaintiffs (the owners of the vessel) had no lien on the goods for the whole amount of freight, and that the provision as to freight being payable as per charter-party only in corporated the charter-party as far as the rate of freight was concerned. In his judgment in that case, Montague Smith, J. said that “ i t would re
quire very strong words to render the defendants liable for "the freight, payable under the charter- party for the whole cargo.” Here it would be im possible to hold the shippers’ goods liable for the whole cargo, as they had no notice of the charter- party. They also referred to
Howard v. Tucker, 1 B. & Ad. 712 ; Foster v. Colby, 3 H . & N . 705 ; Shand v. Sanderson, 28 L. J. 278, E x .;
Sandeman v. Scurr, 15 L. T . Rep. N . S. 608 ; L. Rep.
2 Q. B. 86.
Southgate, Q.C., J. C. Mathew (of the Common Law Bar), and F. II. Colt for the defendants.—We contend that we are entitled to a lien on the goods in question for general freight. The plaintiffs knew that the ship was a foreign ship, and m ight have inferred that i t was chartered. By the charter- party we were to have an absolute lien on the cargo for freight, dead freight, and demurrage.
In McLean and Hope v. Fleming (L. Rep. 2 Sc.
App. 128 ; ante, p. 160) dead freight is defined to be simply an unliquidated compensation recover
able by the shipowner from the freighter for defi
ciency of cargo. They also referred to K ernv. Deslandes, 10 C. B., N . S., 205;
Blaihie v. Stembridge, 6 C. B., N . S., 894;
Gladstone v. Birley, 2 Mer. 401;
Champion v. Colville, 3 Bing. N . Cas. 17;
Small v. Moates, 9 Bing. 574.
i No reply was called for.
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July 18.—Lord Ro m i l l ysaid that the case turned upon the question whether the plaintiffs had notice of the charter-party, and whether it was their duty to inquire whether there was a charter-party or not. Every person who had notice of a charter- party was bound by its contents, but u ntil he had notice of the charter-party or was set upon inquiry, he was not bound. A ll that the plaintiffs knew in this case they learned from the advertisement, which would have led anyone to suppose that Messrs. Claxton and Co. were the agents of the owner of the ship, and not the charterers of the ship. True it was that the master could not enter into a fresh contract, but he was bound to sign a bill of lading as soon as he re
ceived the goods on board. He ought to have signed the bills “ as per charter-party,” and then the plaintiffs would have been put on inquiry as to the charter-party. How was a shipper to get notice of a charter-party except from the master on board the ship ? I t was the duty of the master to give that notice on signing the b ill of lading. I f the plaintiffs had been guilty of laches, they m ight have lost their claim to relief, but there was no such thing in this case ; the moment they heard of the charter- party, they refused to be bound by it and de
manded back their goods. No authority was pro
duced to show that persons acting as the plaintiffs had done could be bound by a charter-party of which they had no notice at the time they put their goods on board.. Of the cases cited the near
est to the present case was Small v. Moates (9 Bing.
574). But that was nothing more than this : the master on board the ship had goods which be
longed to the owner; that is, the owner had a lien on them and the master chose to sell those goods and to treat them as if there was no lien on them at a ll; then the court had to consider which of two innocent parties was to suffer—whether the man who sold the goods as his own gave a good title to them, or whether he could only sell what he himself possessed, which was subject to the lien of the owner of the vessel. That did not govern the present case; there the judge said
“ that a shipper putting his goods on board the ship a general ship,” —which was the case here—
“ upon the faith of a b ill of lading signed by a person whom the owner has allowed to bear Lhe character of master, would be entitled to re
ceive the goods at the end of the voyage upon payment of the freight reserved by the b ill of lading, may be readily admitted, as well upon the reasonableness of the proposition itself as upon the authority of the cases referred to by the plain
tiffs in the course of the argument.” That merely showed that i f the master had signed a b ill of lading for these goods simpliciter, without any notice of the charter party the shippers would have been entitled to receive the goods at the end of the voyage upon the ordinary payment of freight.
But, in the present case, the master had not done that, but had said that he would only sign the bills of lading subject to the charter-party. Could that bind a shipper who then heard of the charter party for the first time and refused to be bound by it ? Why was the shipper under such circumstances not to have back his goods ? He had entered into no contract, and the offect of holding him to be bound by the charter party would be to bind him by a contract into which he had not only not en
tered, but had refused to enter, and which was of
a very onerous character, to be carried out by the
[ Ad m.
owner and charterer, and of the existence of which he had had no previous intimation. His Lordship was of opinion that such a decision would not be according to equity. That was not the doctrine of notice in the courts of equity. The doctrine of those courts was that a man was bound by notice whenever he had either distinct notice, or such in formation as should set him on inquiry ; and accordingly, in Small v. Moates (sup.), one of the persons was treated as having been set upon in quiry. But there was nothing in the present case to set the plaintiffs on inquiry ; the advertise
ment was simply an advertisement of a general ship, w ith nothing about i t to suggest such a thing as a charter-party. Therefore his Lordship was of opinion that the plaintiffs were not bound by the charter-party, as they had not received any b ill of lading, and no transaction was completed between the parties, and as they knew nothing of the charter-party, and had no notice of it, and were not set on inquiry as to whether a charter-party existed or not.
Decree accordingly in the terms of the prayer of the bill.
Solicitor for the plaintiffs, H . G. Stokes.
Solicitors for the defendants, Flews and Irvine.
COURT OP ADMIRALTY.
Reported b y J . P . As p i n a l l, Esq., Barrister-at-Law.
Tuesday, Nov. 28, 1871.
Th e Ac h i l l e s.
Costs—Consent to a motion—Practice.
The court w ill not give the costs of appearing to con
sent to a motion where the party so appearing is not in any way prejudiced by the motion.
Th i s w a s a s u i t i n s t i t u t e d b y t h e h o l d e r s o f a b o t t o m r y b o n d o n t h e Achilles a n d h e r c a r g o a g a i n s t t h e c a r g o o n l y .
The Achilles broke down on her voyage home, and her master chartered the Ellen Aslicourt to bring the cargo home. The Achilles and her cargo were subject to a bottomry bond. On the arrival of the Ellen Ashcourt at Liverpool the bond
holders seized the cargo. The consignees refused to receive it, and thereupon the master of the Ellen Ashcourt discharged the cargo under the Mersey Dock Acts Consolidation A ct (21 & 22 Viet. c. xcii), s. 166. The owners of the Ellen Ashcourt claimed a lien on the cargo for freight, and gave notice to the Mersey Docks and Harbour Board to detain i t under sects. 193 and 194 of the same Act.
E. C. Clarkson now moved the court for an order to sell the cargo for the benefit of all parties, as the Mersey Docks and Harbour Board had no power to do so.
Bruce for the trustee in bankruptcy of the holders of the b ill of lading consented, and claimed the costs of appearing on the motion.
Clarkson objected, as the sale was for the benefit of all, and the trustee of the holders of the bill of lading was not in any way prejudiced. He did not appear to oppose the motion, and need not havp appeared at all.
Sir R. Ph i l l i m o k e.—There is no practice of the court by which I can give Mr. Bruce his coBts.
The principle on which costs are awarded to a partv appearing on amotion,is that he appears to protect his own interests from something in the
Th e Ac h i l l e s.
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166
■^-DM0 Th e Th u r i n g i a. [ Ad m.
motion -which prejudices them, Here the motion is for the benefit of all parties, and nobody can be prejudiced. M r. Bruce’s clients could have com
municated their consent to this motion without appearing in court. I cannot give costs here.
Proctor for the owners of the Ellen Ashcourt, Ayrton.
Proctor for the holders of the b ill of lading, Stokes.
Tuesday, Dec. 5,1871.
Th e Th u r i n g i a.
Collision—Objection to registrar's report—Motion fo r further evidence—Affidavits—Practice.
The court w ill not hear further evidence in objection to the registrar's report, unless the party making the application can satisfy the court that the further evidence could not, by proper diligence, have been produced before the registrar and mer
chants, or that they aslced at the reference fo r an adjournment to produce it, and were refused.
The affidavit in support of a motion fo r leave to produce further evidence, where the object is to vary the evidence already given, should be clear and precise as to the witnesses it is proposed to call, and the nature of their testimony.
The affidavit of a\witness, who is not tendered fo r cross-examination, and who deposes to a fact material to the inquiry before the registrar and merchants, should be filed before the hearing.
The adjournment of the hearing of the motion fo i the convenience of counsel does not preclude the parties making' the motion from filin g and using a fu rth e r affidavit.
Th i s was a motion for leave to adduce further evidence on the hearing of the objection to the registrar’s report on the case. The Thuringia was a German steamer, bound for Hamburgh, and on the 14th Oct., 1870 she ran into the English steamer,/. B. Walt, which was bound from Ham
burgh to West Hartlepool, in ballast. The colli
sion took place about 18 miies north-west of Heligoland, and the master and crew of the / . B.
Watt abandoned her, and went on board of the Thuringia. The Thuringia was arrested at the suit of the owners of the J. B. Watt, and the case was beard before the Judge of the Adm iralty Court, and he found that the Thuringia was
Watt abandoned her, and went on board of the Thuringia. The Thuringia was arrested at the suit of the owners of the J. B. Watt, and the case was beard before the Judge of the Adm iralty Court, and he found that the Thuringia was