GILKISON and Another v. MIDDLETON and Others. April 23. By a memorandum of charter, made at Liverpool, it was agreed that the ship should load a cargo there, and proceed to China, and there deliver the same agreeably to bills of lading, and afterwards load a full cargo of tea or other lawful merchandise for Liverpool or London, and deliver the same to the charterers or their assigns, they paying freight for the same at the rate of 71. 108. per ton of 50 cubic feet for tea delivered, for the round out and home; other goods, if shipped, to pay in customary proportion: in consideration whereof, the outward cargo to be carried freight-free: payment to become due and to be made as follows,--8007. on sailing, by charterers' acceptance at three months' date, and the balance on the unloading and delivery of the cargo, by approved bills on London at two months' date, or cash: "the master to sign bills of lading at such rates of freight as may be required by the agents of the charterers, without prejudice to this charter-party; and the owners to have an absolute lien upon the cargo for the recovery of all freight, dead-freight, demurrage, &c., due the ship under this charter-party." By another memorandum, endorsed on the above, Singapore was substituted for China: and it was agreed, that, on delivery of the cargo in Singapore, the freighters' agents there should have the option of loading the ship for London or Liverpool, or for China; that, in the event of the vessel returning from Singapore, the freight for the round should be 33757. in full; that, should the vessel proceed to China, the freighters should pay an additional freight of 308. per ton on the homeward cargo from thence, for the privilege of carrying intermediate freight from Singapore to China; and an acceptance at three months for 9007., on the ship's sailing from Liverpool, was substituted for 800%. The ship was laden by the charterers chiefly as a general ship; but they shipped on their own account goods for which the master signed bills of lading making the goods deliverable at Singapore to M. & Co., or assigns, paying freight as per margin: in the margin, the freight (in the aggregate, 1967. 128.) was declared to be "payable in Liverpool one month after sailing of vessel, lost or not lost." The vessel sailed from Liverpool on the 21st of February, 1856, and the charterers gave their acceptance at three months for 900., which became due on the 23d of May, and was dishonoured: Held, that the owners had a lien upon the goods so shipped by the charterers, for the amount of the bill of lading freight, as against the consignees (M. & Co.), who had advanced money to the consignors upon the shipment; but not for the 9007. THE following case was stated for the opinion of this court, without pleadings, by consent of the parties, and by judge's order. *The plaintiffs are shipowners, and are the owners of the ship James Scott, of Port Glasgow. [*135 The defendants are merchants in Singapore, where they carry on business under the firm of Middleton & Co.; and they have also a house in Liverpool, which trades under the firm of C. S. Middleton & Son. On the 24th of December, 1855, the plaintiffs chartered the James Scott to the firm of Syers, Walker & Syers, merchants, of Liverpool, for a voyage from Liverpool to Hong Kong or Shanghai as ordered before sailing, and to return to Liverpool or London, at certain rates of freight therein mentioned. The following is a copy of the charter-party : "Liverpool, 24th Dec., 1855. "It is this day mutually agreed between Messrs. Newall, Burt & Co., agents for owners of the good ship or vessel called the James Scott, A. 1. 12, and newly coppered, of, &c., of the burthen of 340 tons register measurement or thereabouts, whereof is master, now in Liverpool, and Messrs. Syers, Walker & Syers, of Liverpool, mer chants, that the said ship, being tight, staunch, and strong, and every way fitted for the voyage, shall with all convenient speed load in Prince's or Salthouse Dock a full and complete cargo of lawful merchandise, not exceeding 400 tons in weight, and therewith proceed to Hong Kong or Shanghai, as ordered before sailing, or so near thereunto as she may safely get, and there deliver the same agreeably to bills of lading; after which, she shall load there, or, if required, proceed to one other safe port in China, and there load in the usual and customary manner from the agents of the said charterers a full and complete cargo of tea or other lawful merchandise,-the cargoes being brought and taken from alongside the vessel at charterers' risk and expense: ship is to have liberty to put on board 80 tons kentledge, copper-dross, or other equally dead weight, and to retain *it on board during the *136] voyage, which the said merchants bind themselves to ship,-not exceeding what she can reasonably stow and carry over and above her tackle, apparel, provisions, and furniture, and, being so loaded, shall therewith proceed to Liverpool or London, as ordered on signing bills of lading abroad, or so near thereunto as she may safely get, and there deliver the same in the usual and customary manner to the said charterers or their assigns, they paying freight for the same at the rate of 71. 108. sterling per ton of 50 cubic feet for tea delivered, for the round out and home: a reduction of 58. per ton to be made if ship be discharged and loaded at Hong Kong: other goods, if shipped, to pay in customary proportion: in consideration whereof, the outward cargo to be carried freight free: payment whereof to become due and to be made as follows,-8007. on sailing, by charterers' acceptance at three months' date: what money the master may require for the ordinary disbursements of the vessel at her port of discharge and loading abroad, free of interest, paying 23 per cent. commission, subject to insurance, at the current rate of exchange; and the balance on the unloading and right delivery of the cargo by good and approved bills on London at two months' date, or cash equal thereto. Thirty running days (Sundays excepted) are to be allowed the said merchant, if the ship is not sooner despatched, for loading, in Liverpool, and forty-five like days for all purposes abroad, and ten days on demurrage over and above the said laying days and time herein stated at 107. sterling per day, paying day by day as the same shall become due. The time occupied in changing ports not to count as laying days. Should it be necessary for the vessel to take in dunnage or ballast, the same to be provided by the owners. The master to sign bills of lading at such rates of freight as may *137] required by the agents of the charterers, without *prejudice to this charter-party; and the owners to have an absolute lien upon the cargo for the recovery of all freight, dead freight, demurrage, &c., due the ship under this charter-party. The act of God, the Queen's enemies, fire, strike of pitmen, and all other dangers and accidents of be the seas, rivers, and navigation, of what nature and kind soever throughout this voyage being excepted. It is agreed that the charterers are to have the option of naming the lumpers and stevedores who are to take in and stow the outward cargo; and the ship is to pay the charterers for so doing one shilling per ton; but it is expressly agreed that the cargo shall be stowed under the direction of the master, and the owners of the vessel responsible for improper stowage. The vessel to be consigned to the charterers' agents abroad, free of commission. "On the return of the ship to Liverpool, she shall be addressed to Newall, Burt & Co., brokers, or to their agents at any other port of discharge. Penalty for non-performance of this agreement, the estimated amount of freight. For the owners, It was afterwards agreed between the plaintiffs and Messrs. Syers, Walker & Co., that the destination of the vessel should be changed to Singapore, and thence either home or by way of China: and the following endorsement was thereupon made upon the charter-party :Liverpool, 7th Feb., 1856. "It is this day mutually agreed that the following alterations shall be made in the within charter, viz. that freighters shall load the James Scott for Singapore, in lieu of China. "That, on delivery of cargo in Singapore, the freighters' agents there shall have the option of loading the *vessel for London or [*138 Liverpool, or for Hong Kong or Shanghai. In the event of the vessel returning from Singapore, the freight for the round to be 33752 in full. The ballast to be discharged in Singapore, freighters agreeing to pay any loss or expense on said ballast. Should the vessel proceed to China, the freighters to pay an additional freight of 30s. per ton on homeward cargo from thence, for the privilege. of carrying intermediate freight from Singapore to China. The terms of payment to be altered as follows,-9007. instead of 8001. to be paid on sailing hence, by charterers' acceptance at three months' date. "Should the vessel load from Singapore to China, the sum of 7501. to be paid to the captain there, and in China say the amount of freight payable in Singapore by bills of lading to be received by the captain, and the balance on delivery of cargo in China, both at current rate of exchange. "The freighters to be allowed seventy running days for loading here and discharging and loading in Singapore, if the vessel return direct, and ninety-six running days for all purposes of loading and discharging here and abroad if she proceeds to China. The vessel to retain her N. S., VOL. II.—8 ballast on board if she proceeds to China; and the homeward cargo thence to consist entirely of measurement. "All other terms and conditions of the within charter to remain in force. NEWALL, BURT & Co. The vessel was laden by Messrs. Syers, Walker & Syers, chiefly as a general ship, but they shipped on board of her, on their own account,325 barrels of ale and porter, 100 ditto pitch, 25 ditto tar, and 120 bales merchandise, which goods they consigned to the *defend*139] ants' house at Singapore for sale on their (Syers, Walker & Syers') account. The master of the vessel signed bills of lading for these goods as follows: Shipped in good order and well conditioned, by Syers, Walker & Syers, in and upon the good ship James Scott, whereof is master for this present voyage Putt, and now riding at anchor in the port of Liverpool, and bound for Singapore, "Two hundred and fifty barrels bottled ale. "Seventy-five barrels bottled porter, being marked and numbered as in the margin, and are to be delivered in the like good order and well-conditioned at the aforesaid port of Singapore, the act of God, the Queen's enemies, fire, and all and every other dangers and accidents of the seas, rivers, and navigation, of whatever nature or kind soever excepted, save risk of boats so far as ships are liable thereto, unto Messrs. Middleton & Co., or their assigns, paying freight for the said goods here as per margin: 5 per cent. primage, and average accustomed. "In witness whereof, the master or purser of the said ship hath affirmed to three bills of lading, all of this tenor and date, the one of which bills being accomplished, the others to stand void. Dated in Liverpool, 18th February, 1856. "FRANK PUTT." There were two other bills of lading of the same date, and in similar terms, one for 120 bales of merchandise, and the other for 100 barrels coal pitch, and 25 barrels Stockholm tar. The freight mentioned in the margin of *the former is 65l. 148. 10d., and in the margin of the latter, 421. 38. 7d. *140] These three bills of lading, with invoices of the goods shipped, were handed by Syers, Walker & Syers, to C. S. Middleton & Son on the 20th of February, 1856, who thereupon in exchange for the same, pursuant to previous arrangement, accepted Syers, Walker & Syers's draft for 21897., being 80 per cent. on the invoice amount of the goods so shipped, as an advance on the consignment. This draft (which was dated on the 20th of February, 1856, and was payable four months after date, and was duly paid at maturity), was accepted by C. S. Middleton & Son on the 21st of February, 1856. The bills of lading were transmitted by C. S. Middleton & Son to the defendants, Middleton & Co. The invoice amount upon which 80 per cent. was advanced by the defendants as above mentioned, included the freight mentioned in the bills of lading. It is a very usual practice in Liverpool for freights reserved under bills of lading to Singapore, to be made payable in Liverpool one month after the ship's sailing. The vessel sailed from Liverpool for Singapore on the 21st of February, 1856; and thereupon, in conformity with the terms of the charter-party, the plaintiffs drew a bill of exchange upon Syers, Walker & Syers, for 9001. This bill (which was dated the 20th of February, 1856, and was made payable three months after date), was accepted by Syers, Walker & Syers on the 21st of February, 1856. It fell due on the 23d of May, 1856, and was dishonoured: and it is still in the plaintiffs' hands wholly unpaid. Messrs. Syers, Walker & Syers stopped payment early in April, 1856. The vessel arrived out at Singapore on the 13th of June, 1856; and the master, having received advices from the plaintiffs of the stoppage of the charterers, and that he was to insist upon a lien upon their goods, refused to deliver the goods so shipped by them as aforesaid to [*141 the defendants, who claimed them under the said bills of lading, unless they paid the amount of the said bill of exchange for 9001. for which the plaintiffs claimed a lien on the goods. The defendants refused to acknowledge the lien, and claimed delivery of the goods under the bills of lading. The master of the vessel thereupon wrote to them a letter, of which the following is a copy: "Messrs. Middleton & Co. "Singapore, 17th June, 1856. "Dear Sirs,-With reference to the goods shipped by Messrs. Syers, Walker & Syers, on board the James Scott, marked and numbered as under noted, and on which I maintain that the owners of that vessel have a lien for the amount of freight due on a voyage from Liverpool to this port as per charter entered into with the said shippers, I regret that you should have refused to grant a letter submitting the dispute in reference to the said lien to the decision by law or otherwise as might appear most advantageous to our respective friends in England. "Being anxious to avoid litigation here, I would now propose that you pay over the amount in dispute, say 9001., to any third party which we may mutually agree upon, to be by them held until it is decided by appeal to law in England whether the ship is justly and legally entitled to the said or any other amount. On your doing this the goods |