Grand v. Ibis

10 F. Cas. 953 | U.S. Circuit Court for the District of Eastern Louisiana | 1876

WOODS, Circuit Judge.

The question presented is whether, under the circumstances of the case, the respondent had a lien upon the merchandise of libelant for the payment of the gross sum mentioned in the charter-party, or whether it was only liable for its own freight. If the former, then the respondent is only liable for so much of the proceeds of libelant’s merchandise as remained after satisfying the sum due on the charter party; if - the latter, then the respondents are liable for the value of the merchandise in Liverpool, less the freight from New Orleans.

The general rule unquestionably is that, where a vessel is chartered for a voyage for a round sum the charterer has the right to load the vessel himself, or allow others to do it under contract with him, and the goods so placed on board by third persons under such contract, are liable only for their own freight, and not for the payment of the gross sum named in the charter-party: Perkins v. Hill [Case No. 10,987]; 1 Pars. Shipp. & Adm. 301, notes 1 and 2; Drinkwater v. The Spartan [Case No. 4,085]; Faith v. East India Co., 4 Barn. & Ald. 630. But it is claimed in this case, that the clause in the charter-party whereby the master agreed to give bills of lading “without prejudice to this charter-party,” changes the general rule and implies that goods put on board not belonging to the charterer, shall be liable for the gross sum mentioned in the charter-party, and not merely for their own freight. I think the authorities are adverse to this construction of the charter-party. In the case of Paul v. Birch, 2 Atk. 621, it was held by Lord Hardwicke that where the charterers had bound the goods for the payment of the hire or freight and afterwards become bankrupts, full effect should be given to that clause as against the assignees. But an.attempt was made to charge the goods of third •persons who were shippers under the charterers, with the full amount of the hire or freight This last claim was resisted, and Lord Hardwicke held that these latter goods were liable only to the extent of the freight payable to the charterers by the shippers. So in the case of Kerford v. Mondel, 5 Hurl. & N. 931, the managing owner chartered his ship for a voyage to Central America, and return, at certain specified rates of freight, with a provision that the master might sign bills of lading without prejudice to the charter-party. And it was agreed that for the security and payment of all ■ freight, dead freight and other charges, the master or owner should have a lien on the cargo or goods laden on board. On her homeward voyage one Larraondo shipped certain bags of sugar and cochineal, and took separate bills of lading whereby the goods were deliverable “on payment of freight and carriage as agreed.” These bills of lading were signed by the master in pursuance of the charter-party. On tender of the amount due for carriage of the sugar and cochineal, the master refused to deliver, claiming a lien for dead freight under the charter-party. Trover was brought to recover the value of the goods. Watson, Baron, said: “The real question agitated between the parties is, whether there was a lien for dead freight under the circumstances. Now, in the original charter there was a lien for dead freight, but the master was to sign bills of lading for goods shipped on board the vessel, and the goods were shipped on board the vessel, and in tne bill of lading there was no lien for dead freight, but merely for freight (i. e., freight for carriage) as agreed. It is perfectly clear that does not apply to dead freight The price is for the carriage of goods. It would be a monstrous supposition that a man who shipped 100 pounds of goods on board a vessel should be held responsible for 1,500 pounds dead freight”

The fair construction of the clause in the charter-party under consideration, by which the vessel, her freight ana appurtenances, and the merchandise laden on board, are bound to each other for the performance of the charter-party, and that “bills of lading, when presented, are to be signed without prejudice to this charter-party,” is not that the goods of third persons shall be liable for the entire freight, but only for their own freight, and that the clause binding the cargo should only extend to the cargo of the charterer. In accordance with these views, there must be a decree in favor of libelant for the value of his logs in Liverpool, less the freight thereon from New Orleans, and the costs in both the district and circuit courts.