1 F.2d 16 | 2d Cir. | 1924
(after slating the facts as above). Argument for appellant asserts that the charter party gave tho vessel a lien for freight. Such lien “generally is favored by the courts” (The Kimball, 3 Wall. 37-42, 18 L. Ed. 50), and the usual charier party engagement clause here used, and quoted above, although in itself a mere penalty (Watts v. Camors, 115 U. S. 353, 6 Sup. Ct. 91, 29 L. Ed. 406), is evidence that the creation of a lien to enforce the provisions of the charter party -was present in tho minds of the parties when they signed agreement (The Kimball, supra, at page 44). The lien has been held to arise by legal implication. Davis v. Smokeless Co., 196 Fed. 753, 116 C. C. A. 381. It may then be assumed (not held) that a lien for freight arose from this charier party. Yet the question remains: What freight? The chartered freight, or the bill of lading freight ?
It may be said on authority that all goods shipped by the charterers themselves, in the absence of any special agreement modifying or supplementing the charter party, would he subject to a lien for the chartered freight. Carver (6th Ed.) §§ 655 and 668. So far as charterer’s liability is concerned, the issuance of a bill of lading is immaterial.
But this shipowner is asserting a lien for chartered freight against goods shipped by and belonging to third parties, who received therefor bills of lading. We shall assume, but not hold, that said bills were issued by the master, and not the charterer. If there had been a freight rate specified in those bills, the shipowner could have exercised his lien to the extent of the bill of lading freight and no more. The Albert Dumois, 54 Fed. 529; Larsen v. 150 Bales of Sisal (D. C.) 147 Fed. 783; Jebsen v. A Cargo of Hemp (D. C.) 228 Fed. 143. Of these cases, tho one most often cited, The Dumois, is a case of a subeliarier; but the owner of goods, who contracts with a charterer for carriage, is in the position of a subcharterer. Ho engages or charters enough space to accommodate his goods,. It formally follows that, there being no freight, there was nothing on which a lien could operate.
But it is urged the master, by signing a bill of lading- that on its face showed no freight due or to become clue, varied the charter, something he could not do; wherefore any attempt at doing it was and is a nullity. . This assertion we think untrue. The master certainly had no authority as master to change any agreement contained in the charter party, but in point of fact he changed nothing. '
On principle, irrespective of the terms of this particular charter party, the general rule was expressed in Brown v. Tanner, L. R. 3 Ch. 597; freight cannot be due from charterers on a charter party until they have had the full user of the ship for the purposes for which they chartered it. The transaction is analogous to the demise of property until the given purpose is answered. Therefore there is no general principle giving1 the master or owner any supervision or control over freight charges until the time comes for payment of charter hire. But here the charter party is plain, that no chartered freight was due until the vessel arrived in New York. Consequently the general principle was here specifically agreed to.
But equally was there no prohibition upon the charterers, who admittedly could and did put the schooner “on the berth,” from collecting any charge for freight at any agreed time. Consequently it results, from the lawful rights of charterer and shippers, that when the master signed these bills of lading there was no freight due or to grow
It seems to be thought that the union of ship and eargo, the engagement of each to the other, creates a lien, irrespective of whatever may he done before or at the effective date of union. The general doctrine is that the act of voluntary lading for transportation does create a mutual lien to secure performance of the contract made, and ordinarily one term of that contract is to pay freight (The Owego [C. C. A.] 270 Fed. 967); but here that term was absent, and again there was nothing out of which any lien could grow.
It is probably true that the master, having some suspicion of his charterer, yet unwilling to refuse to sign bills of lading, thought to save the situation by requiring the bills to be stamped “all conditions as per charter party.” But it is too well settled for discussion that such a clause in a bill of lading “brings in only those clauses of the charter party which are applicable to the contract contained in the bill.” Gardner v. Trachmann, 15 Q. B. D. 154; Serraino v. Campbell, [1891] 1 Q. B. 283-301. Here there was nothing at all in the bill as issued which was or could be affected by the charter party. No conflict can be found between the charter provision for paying hire at so much per D. W. ton when the vessel reached New York, and collecting freight from strangers before shipment. Indeed, non constat that the schooner would ever get to New York.
Finally, it is most strenuously urged that the ease below was erroneously decided in view of Gracie v. Palmer, 8 Wheat. 605, 5 L. Ed. 696. That report shows a charter party by Gracie to Chambers for a voyage from Philadelphia to Calcutta and return. The charterer, Chambers, went with the ship, and a eargo was brought back. This return eargo was (as found by the court) “expressly laden on board as the property of Chambers on his account and risk.” Litigation arose because Chambers bad made some agreements in Calcutta, with persons from whom he had procured the cargo, by whieb in effect be sought to postpone the payment of freight until the Calcutta vendors had been paid their price for the goods. The point is stated by Johnson, J. (page 634): “The question is not, how far his [Chambers’] contract may exempt the goods of another from freight, but how far he may incumber his own goods with a lien, which shall ride over or supersede their general liability for the freight'.” We think this citation sufficient to show the inapplicability of the decision.
The facts excite some sympathy, but, bard as it is to trust a perhaps dishonest charterer, it would be harder still to make shippers pay twice.
Decree affirmed, with costs.
