accepted the goods at B. Held, that freight pro ratâ itineris was not payable (u).

3. A ship freighted to carry coals to Hamburgh was prevented by restraints of princes from arriving. The consignees directed the master to deliver the coals at G. and accepted them there. Only part of the coals could be delivered there. Held, freight pro ratâ itineris was payable, but only for the coals actually delivered (v).

4. A ship chartered to carry coals from Cardiff to Ceylon at 218. per ton on quantity delivered, was on the voyage damaged, and put into the Cape of Good Hope to repair. The captain not being able to raise funds to pay for the repairs on the owner's credit, sold part of the coals. He then sailed to Ceylon with the remainder. The coals sold there fetched less than those sold at the Cape. The shipowner was held not to be entitled to freight pro rata on the coals sold at the Cape (x).

$ 79.

trans-ship

In cases where the goods after a trans-shipment, ren- Freight after dered necessary through the original ship being disabled, ment, &c. are conveyed in safety to their destination, the freight contracted for will be payable; though the freight on the second ship was at a lower rate (y).

So if in consequence of his ship being disabled, the master detain the cargo for a reasonable time till the vessel is repaired, he will not lose the freight. But if he does not trans-ship and forward the cargo (s), or if the cargo is detained beyond a reasonable time, all right to the freight will be entirely lost.

Where the forwarding the cargo to its destination is prevented by the wrongful interference of the owners, the whole freight will be payable (a).

So, also, where the owner makes default in landing the cargo at its port of discharge, and the master consequently

brings it back to the port of loading (b), not only will the whole outward freight be payable, but also freight for the carriage back.

CASES.

1. The P. was chartered to bring a cargo of guano from Callao to England; freight, at 70s. per ton, to be paid on her arrival here, any advances on account of freight to be deducted. The P. loaded her cargo and sailed for England, large advances on account of freight having been made. Soon after sailing the P. sprung a leak and returned to Callao. The goods were then trans-shipped into the A., to be forwarded to England, a charterparty being entered into between the masters of the P. and of the A., under which freight was made payable at 70s. a ton. Held, that the charterers could deduct the advances made to the master of the P. from the freight payable to the A. (c).

2. Under a charterparty, freight was to be paid at so much per ton "on a right and true delivery of the homeward-bound cargo from Honduras Bay to London. The ship and cargo, after capture and recapture, were wrecked at St. Kitts, to which they were carried by the recaptors. The Vice-Admiralty Court there directed the cargo to be sold on the application of the master, acting bona fide for the benefit of all interested, but without orders from any. Held, freight pro ratâ itineris was not payable (d).

3. The plaintiff let his ship to freight on a voyage from Shields to Lisbon with convoy, the freight to be paid on right delivery of the cargo. The ship with the cargo joined convoy at Portsmouth. She was then detained one month off Lymington, her sailing orders being recalled by the convoy, in consequence of the occupation of Portugal by the French. The freighter having declined to accept the cargo at Portsmouth, to which port the ship returned, it was unloaded by the plaintiff and sold by consent of both parties. Held, the plaintiff could not recover freight or demurrage (e).

4. The plaintiff's ship, with a general cargo, part consisting of petroleum, sailed from London to Havre. On the ship's arrival at Havre, she was ordered away on account of the petroleum. She then went to neighbouring ports, but was not allowed to stay. Returning to Havre, she discharged her general cargo; but no application being made for the petroleum or bill of lading presented,

the master brought it back to London. Held, the plaintiff was entitled to freight, back freight and expenses (f).

§ 80.

lien

freight.

The shipowner has a lien on the cargo for the freight, Shipowner's unless he has waived it, or unless by the charterparty he infor has given up possession of the ship to the charterer. The lien will be destroyed by the shipowner entering into a contract at variance with the lien; for instance, if he agrees to be paid after the delivery of the cargo, and not at the time of delivery (g); or where the freight is payable "ship lost or not lost," and the ship is wrecked (h).

Where the owner does not charter his ship, but demises her, and so places her under the sole control of the freighter, parting with the possession, he will have no lien for freight; for possession is an essential element of a lien (). However, by inserting in the demise an express provision that his lien should not be affected, the shipowner will retain his right to it (k).

If a ship, chartered at a lump sum, be put up as a general ship, and the freight payable under the bills of lading differ from the charter freight, the shipowner will have a lien not only as against the charterers for the charter freight, but also as against the indorsees of the bills of lading for the bill of lading freight (1); but not for the charter freight, unless they had notice of the charter (m). Under such circumstances an intending

(f) The cargo ex Argos, L. R., 5 P. C. 134.

(g) Thompson v. Small, 1 C. B. 328.

(h) Nelson v. The Association for the Protection of Com. Interests, 43 L. J., C. P. 218.

(i) Soares v. Thornton, 7 Taunt. 627; Newberry v. Colvin, 7 Bing. 190; Meiklereid v. West, 1 Q. B. D. 428; Omoa Coal Co. v. Huntley, 2 C. P. D. 464; and see Ch. VII. § 37, p. 50.

(h) Small v. Moates, 9 Bing. 574; Gledstanes v. Allen, 12 C. B. 202.

(1) Marquand v. Banner, 6 E. & B. 232; Gilkison v. Middleton, 2 C. B., N. S. 134; Gledstanes v. Allen, 12 C. B. 202.

(m) Faith v. East India Co., 4 B. & Ald. 630; Fry v. Chartered Merc. Bank of India, L. R., 1 C. P. 689; see "Cases" (1) at end of this; The Stornoway, 51 L. J., P. 27; 46 L. T. 773.

shipper is under no obligation to make inquiries as to the existence of a charter-party (n).

In cases where the freight is made payable in advance, the shipowner will not have a lien; for money payable in advance is not freight stricto sensu, though often called so, and consequently the shipowner can have no lien for it as freight (o).

The goods of a shipper in a general ship will not be affected by a clause in a charterparty, giving the shipowner a lien on all cargo and freight for arrears of hire due under the charterparty, provided only the shipper had no notice or knowledge of the lien. This will be the rule, though no bills of lading were given for the goods (p).

The shipowner will not have any lien on goods actually carried for money due in respect of goods put on board at the loading port, but afterwards relanded and restored to the freighter's agents under process of law. Again, the shipowner has no lien for dead freight or demurrage, wharfage or port charges, unless by special agreement (9).

Dead freight is defined (q) to be simply an unliquidated compensation recoverable by the shipowner from the freighter for deficiency of cargo.

The shipowner, whether he has a lien or not, can sue the freighter on his contract to pay freight (r).

CASES.

1. The charterers of a vessel shipped part of the cargo themselves under a bill of lading containing this clause: "Freight for the said goods payable at Liverpool as per charterparty." The charterparty gave the ship a lien on cargo for freight. The bill of lading was indorsed by the charterers to A. for value. Held, that as against A. the shipowner had a lien only for the freight due for the

(n) The Stornoway, supra. (0) Ib.

(p) How v. Kirchner, 11 Moore, P. C. Ca. 21; Kirchner v. Venus, 12 Moore, P. C. Ca. 361; see "Cases" (2) at end of this §.

(7) McLean v. Fleming, L. R.,

2 H. L. Sc. 128; Gray v. Carr, L. R., 6 Q. B. 522; Faith v. East India Co., 4 B. & Ald. 630.

(r) Tapley v. Martens, 8 T. R. 451; see "Cases (3) at end of this §. Shepard v. De Bernales, 13 East, 565.

goods comprised in the bill of lading, and not for the whole chartered freight (s).

2. D. & Co., of Liverpool, shipped goods for Sydney. The bill of lading stated the goods to be to the shipper's order or assigns, "he or they paying freight for the goods as per margin." In the margin was "Freight payable in Liverpool to M. one month after sailing." The bill of lading was indorsed to K. & Co. for value. On arriving at Sydney, the master refused to deliver the goods to K. & Co., and claimed a lien on them for the freight, which he was advised had not been paid at Liverpool. Held, K. & Co. were entitled to the goods, the master having no lien for freight payable in advance (t).

3. A. freighted a ship to carry goods from London to Ancona, and to deliver them there to B., and engaged to pay the shipmaster for the freight. The shipmaster, on delivering them to B., took a bill of exchange from B. drawn on A., which bill was never paid. Held, A. was liable to pay the freight, notwithstanding the bill of exchange (u).

(s) Fry v. Chartered Merc. Bank of India, L. R., 1 C. P. 689.

(t) Kirchner v. Venus, 12 Moore,

P. C. Ca. 361.

(u) Tapley v. Martens, 8 T. R.

451.