1. A vessel was chartered for a voyage from Boston to Calcutta
and back, and the agents of the charterers at Calcutta subchartered
her to other persons there, who loaded her with goods consigned to
parties in Boston, under special bills of lading, which did not
refer to the original charter party.
Held that the rights
of the shipowners to the freight, payable by the consignees, and
their lien for it upon the goods depended entirely on the contract
expressed in the bills of lading, and not upon anything contained
in the charter party.
2. The lien of a shipowner for freight being but a right to
retain the goods until payment of the freight, is inseparably
associated with the possession of the goods, and is lost by an
unconditional delivery to the consignee.
3. But if the cargo is placed in the hands of the consignee,
with an understanding that the lien for freight is to continue, a
court of admiralty will regard the transaction as a deposit of the
goods in the ware house, and not as an absolute delivery, and on
that ground will consider the shipowner as being still
constructively in possession so far as to preserve his lien.
4. That such an understanding did exist between the parties must
appear in the evidence, or be plainly inferable from the
established local usage of the port, otherwise there is no
possession, actual or constructive, to support the lien.
The libel in this case was filed in the district court by Paul
Sears, Reuben Hopkins, James Smith, Alexander Child, William N.
Batson, and Rowland H. Crosby, owners of the ship
Bold
Hunter, against four thousand eight hundred and eighty-five
bags of linseed, seven thousand pockets of linseed, and fifteen
hundred and thirty bags of pegue cutch. The goods libeled were part
of a larger quantity brought to Boston from Calcutta by the
Bold Hunter for Augustine Wills, and were at the time in
store. The libellants demanded $14,948.57 as freight, less $5,000,
which had been paid on account, and for
Page 66 U. S. 109
this balance of freight they insisted that their lien had not
been waived or impaired by the delivery of the goods under the
circumstances.
After warrant and monition were issued, and the goods seized by
the marshal in pursuance thereof, Rufus Wills, administrator of
Augustine Wills, deceased, came in as claimant, and made answer to
the libel, denying that the libellants had any lien on the goods
for the freight.
The parties did not dispute about the facts of the case. It
appeared by their mutual admissions that the libellants were owners
of the
Bold Hunter, and in October, 1856, chartered her to
Tuckerman, Townsend & Co. for a voyage from Calcutta to Boston
at $15 per ton on whole packages and half that rate on loose
stowage. The charter party contained the usual lien clause, with a
stipulation that the freight should be paid in five and ten days
after discharge at Boston, the credit not to impair the shipowner's
lien for freight. On the ship's arrival at Calcutta, the charterers
did not furnish an entire cargo, and procured some shipments on
freights -- among others, one to Augustine Wills -- for which the
master signed bills of lading, in the usual form, at various rates
of freight, all less than the charter rates. These bills of lading
were passed over to the libellants by Tuckerman, Townsend & Co.
in part settlement of the charter money, and the libellants
undertook to collect the freights. The ship arrived at Boston in
October, 1857. The larger portion of the goods consigned to Wills
were discharged by the consent of all parties, without being
landed, into the ship
Cyclone, bound to London, and the
remainder were delivered to the claimant, who took them to the
custom house stores, and entered them in bond in the name of
Augustine Wills. When the
Bold Hunter arrived, Augustine
Wills, the consignee, was sick, and he died before the goods were
all discharged. Rufus Wills, the claimant, acted as his agent
before his death, and was his administrator afterwards. The goods
were discharged and delivered without qualification, and nothing
was said about holding them or any part of them for freight. The
claimant, before the death of the consignee, paid $5,000 on the
freights, but afterwards declined to pay any
Page 66 U. S. 110
more, saying that he did not know how the estate of Augustine
Wills would turn out.
The district court dismissed the libel, and the decree was
afterwards affirmed by the circuit court. Whereupon the libellant
took this appeal to the Supreme Court of the United States.
Page 66 U. S. 112
MR. CHIEF JUSTICE TANEY.
The rights of the parties in this case depend altogether on the
contract created by the bill of lading. That instrument does not
refer to the charter party, nor can the charter party influence in
any degree the decision of the question before us. Augustine Wills
was not a party to it, and it is not material to inquire whether he
did or did not know of its existence and contents, for there is
nothing in it to prevent Wills & Co., the subcharterers, or
Augustine Wills, the consignee, from entering into the separate and
distinct contract stated in the bill of lading, and the assignees
took the rights of Wills & Co. in this contract, and nothing
more. The circumstance that it came to hands of the shipowners by
assignment from the subcharterers, who knew and were bound by all
the stipulations of the charter party, cannot alter the
construction of the bill of lading, nor affect the rights or
obligations of Augustine Wills.
Undoubtedly the shipowner has a right to retain the goods until
the freight is paid, and has, therefore, a lien upon them for the
amount, and, as contracts of affreightment are regarded by the
courts of the United States as maritime contracts, over which the
courts of admiralty have jurisdiction, the shipowner may enforce
his lien by a proceeding
in rem in the proper court. But
this lien is not in the nature of a hypothecation, which will
remain a charge upon the goods after the shipowner has parted from
the possession, but is analogous to the lien given by the common
law to the carrier on land, who is not bound to deliver them to the
party until his fare is paid,
Page 66 U. S. 113
and if he delivers them, the encumbrances of the lien does not
follow them in the hands of the owner or consignee. It is nothing
more than the right to withhold the goods, and is inseparably
associated with his possession, and dependent upon it.
The lien of the carrier by water for his freight, under the
ordinary bill of lading, although it is maritime, yet it stands
upon the same ground with the carrier by land, and arises from his
right to retain the possession until the freight is paid, and is
lost by an unconditional delivery to the consignee. It is suggested
in the argument for the appellant, that, as a general rule,
maritime liens do not depend on possession of the thing upon which
the lien exists; but this proposition cannot be maintained in the
courts of admiralty of the United States. And, whatever may be the
doctrine in the courts on the continent of Europe, where the civil
law is established, it has been decided in this Court that the
maritime lien for a general average in a case of jettison, and the
lien for freight, depend upon the possession of the goods, and
arise from the right to retain them until the amount of the lien is
paid.
Rae v. Cutler,
7 How. 729;
Dupont de Nemours &
Co. v. Vance, 19 How. 171
In the last mentioned case, the court, speaking of the lien for
general average, and referring to the decision of
Rae v.
Cutler on that point, said:
"This admits the existence of a lien arising out of the
admiralty law, but puts it on the same footing as a maritime lien
on cargo for the price of its transportation, which, as is well
known, is waived by an authorized delivery without insisting on
payment."
After these two decisions, both of which were made upon much
deliberation, the law upon this subject must be regarded as settled
in the courts of the United States, and it is unnecessary to
examine the various authorities which have been cited in the
argument. But it may be proper to say, that while this Court has
never regarded its admiralty authority as restricted to the
subjects over which the English courts of admiralty exercised
jurisdiction at the time our Constitution was adopted, yet it has
never claimed the full extent of admiralty
Page 66 U. S. 114
power which belongs to the courts organized under, and governed
altogether by, the principles of the civil law.
But courts of admiralty, when carrying into execution maritime
contracts and liens, are not governed by the strict and technical
rules of the common law, and deal with them upon equitable
principles, and with reference to the usages and necessities of
trade. And it often happens that the necessities and usages of
trade require that the cargo should pass into the hands of the
consignee before he pays the freight. It is the interest of the
shipowner that his vessel should discharge her cargo as speedily as
possible after her arrival at the port of delivery. And it would be
a serious sacrifice of his interests if the ship was compelled, in
order to preserve the lien, to remain day after day with her cargo
on board, waiting until the consignee found it convenient to pay
the freight, or until the lien could be enforced in a court of
admiralty. The consignee, too, in many instances, might desire to
see the cargo unladen before he paid the freight, in order to
ascertain whether all of the goods mentioned in the bill of lading
were on board, and not damaged by the fault of the ship. It is his
duty, and not that of the shipowner, to provide a suitable and safe
place on shore in which they may be stored; and several days are
often consumed in unloading and storing the cargo of a large
merchant vessel. And if the cargo cannot be unladen and placed in
the warehouse of the consignee, without waiving the lien, it would
seriously embarrass the ordinary operations and convenience of
commerce, both as to the shipowner and the merchant.
It is true that such a delivery, without any condition or
qualification annexed, would be a waiver of the lien, because, as
we have already said, the lien is but an incident to the
possession, with the right to retain. But in cases of the kind
above mentioned it is frequently, perhaps more usually, understood
between the parties, that transferring the goods from the ship to
the warehouse shall not be regarded as a waiver of the lien, and
that the shipowner reserves the right to proceed
in rem to
enforce it, if the freight is not paid. And if it appears by the
evidence that such an understanding did exist between
Page 66 U. S. 115
the parties, before or at the time the cargo was placed in the
hands of the consignee, or if such an understanding is plainly to
be inferred from the established local usage of the port, a court
of admiralty will regard the transaction as a deposit of the goods,
for the time, in the warehouse, and not as an absolute delivery,
and on that ground will consider the shipowner as still
constructively in possession, so far as to preserve his lien and
his remedy
in rem.
But in the case before us, there is nothing from which such an
inference can be drawn. The goods were delivered, it is admitted,
generally, and without any condition or qualification. Upon such a
delivery there could be neither actual nor constructive possession
remaining in the shipowner, and consequently there could be no
right of retainer to support his lien.
The decree of the circuit court, dismissing the libel, must
therefore be affirmed.
Decree affirmed.
