Court, Judges, Date:

Court of Exchequer Chamber, England

Cleasby B, Brett J, Channell B, Bramwell B, Willes J, Kelly CB

15 June 1871

Catchwords:

Charterparty – Bill of lading – Incorporation of charterparty terms into bill of lading – Demurrage – Dead freight – Detention – Liability of transferee of bill to pay demurrage, dead freight, detention

Case Report by:

ARUN KASI

Appeal from:

Court of Queen’s Bench

Facts Summary:

A charterparty obliged the charterer to load “full cargo” and conferred a lien on the cargo in favour of the shipowners “for all freight, dead freight, demurrage, and average”. It also provided for “the charterer’s responsibility to cease on shipment of the cargo, provided it be of sufficient value to cover the freight and charges on arrival at port of discharge. The demurrage was specified at a certain rate up to 10 days beyond the laytime (50 days). However, the charterparty was silent about any detention charges should the 10-day demurrage period be exceeded. The charters took, for loading, 18 days in addition to the laytime and the demurrage period. The charterer did also not load ‘full cargo’.

The shipowner issued a bill of lading, stating “[the cargo] to be delivered at the port of discharge, as per the aforesaid charterparty… unto order, or to his or their assigns, he or they paying freight and all other conditions or demurrage. Notably, dead freight, unlike demurrage, was not expressly mentioned in the bill of lading, although mentioned in the charterparty, whist detention charges was not even mentioned in the charterparty. The bill was transferred to a subsequent purchaser. Upon arrival at the discharge port, the shipowner sought to recover from the subsequent purchaser, by exercising a lien on the cargo, the payment for the 10-day demurrage, 18-day detention charges and dead freight of an amount unascertained.

Held:

1. Appeal is dismissed (by majority).

• Claim for demurrage is allowed (by majority of 4:2).

• Claim for detention charges is dismissed (unanimously).

• Claim for dead freight is dismissed (by majority of 4:2).

Observation:

In a nutshell, only what was expressly stated in the bill of lading, i.e. demurrage, was held to be incorporated and allowed to be claimed from the holder of the bill of lading.

Counsels & Solicitors:

Watkin Williams and A. L. Smith for the Plaintiff.

Sir G. Honyman, Q.C. and Lanyon for the Defendants.

Shum & Crossman for the Plaintiff.

Thomas & Hollams for the Defendants.

Cases, Legislation, Convention referred to:

Oglesby v. Yglesias

Milvain v. Perez

Pederson v. Lotinga

The Norway

Russell v. Niemann

McLean and Hope v Fleming (1871) LR 6 QB 558, 2 Sc & Div 128, 25 LT 317

Bannister v Breslauer (1867) LR 2 CP 497, 16 LT 418

Fry v Chartered Mercantile Bank of India (1866) LR 1 CP 689, 14 LT 709

Pearson v Göschen 10 LT 758

Kern v Deslandes 5 LT 349

Chappel v Comfort 4 LT 448

Kirchner v Venus

Smith v Sieveking

Wegener v Smith

Birley v Gladstone

Phillips v Rodie

Judgement:

CLEASBY, B: In this case the defendants were the holders of a bill of lading of the cargo of the ship Superior, of which the plaintiff was owner. The vessel had been chartered on a voyage from Sulina to London. Upon the arrival of the ship at the port of discharge the plaintiff claimed a lien upon the cargo for ten days demurrage, for a proper allowance for a further period of detention, and for dead freight. The Court of Queen’s Bench held the plaintiff entitled to the claim for demurrage, but disallowed the claim for dead freight and for detention. Error has been brought in this Court, and the case has been fully argued.

I am of opinion that the judgment of the Queen’s Bench should be affirmed, so far as relates to the demurrage allowed and the claim for detention disallowed. But it appears to me that the plaintiff is also entitled to the claim for dead freight.

The charterparty is between Gray, the managing owner, and R. Carnegie, of London, charterer, and contains a clause which is now not unusual, viz., that the charterer’s responsibilities were to cease on shipment of the cargo, provided it be of sufficient value to cover the freight and charges on arrival at the port of discharge; and gives the owner an absolute lien on the cargo for all freight, dead freight, demurrage, and average. The first question to be considered is, to what extent could the lien be enforced as between the parties to the charterparty. The charterparty allows fifty running days for loading the cargo, which is to be discharged as fast as the ship can put the cargo out, and ten days are to be allowed on demurrage, over and above the laying days, at 8l. per day. Now the word “demurrage” has a known legal meaning, viz., the additional period during which the vessel may remain by agreement of the parties. It was said upon the argument that by the understanding of shipowners and charterers it had a more extensive signification, and embraced the further period beyond the demurrage days during which the vessel was detained. If that be so, evidence that in such a document as a charterparty the word was so usually understood should have been given, and the opinion of the jury taken, but in the absence of all evidence we must give to the word “demurrage” its known legal meaning, and this excludes from the operation of the lien the claim for damages caused by further detention.

As regards the claim for lien in respect of demurrage, I do not see how there can be any doubt about its existing under the charterparty. It appears clear to me that whether the demurrage days are occupied in the loading of the ship or in the discharge of it, the charterer is equally discharged from personal liability as soon as a sufficient cargo is loaded, and that the claim of the owner in respect of it exists only by virtue of the lien which is given by agreement. This is in conformity with the judgment of the Common Pleas in the case of Bannister v. Breslauer.

As regards the lien for dead freight, I can see no sufficient reason why it should not be conferred by the charterparty. Dead freight is an expression having a well-known signification, viz., the freight which would have been payable for that part of the vessel which has not been occupied by merchandise, but ought to have been. I understand the objection to the lien existing in this case to be, that under this charter the claim for dead freight must be a claim for unliquidated damages, and that the expression has found its way into this charter from others where the claim would be for liquidated damages; and that as applied to a claim for unliquidated damages there would be such delay in the delivery of the goods, and such inconvenience in enforcing it, that it must be regarded as applying only to a charter where the claim for dead freight would be in the nature of a debt. This appears to have been the view taken of the subject by the Court of Common Pleas, in the case of Pearson v. Goschen. It was there said that the words “dead freight” were part of a printed form, and ought to be rejected from such a contract as the present one. But the reason given does not apply to the present case. Upon looking at the printed parts of the charter the words which give the lien for dead freight are in print, but so are the words which make the claim for dead freight a claim for unliquidated damages. The printed part provides for the charterer’s loading a full cargo of grain, seed, or other stowage goods, and the freight is to be paid at so much per quarter of corn, and for other grain, seed, or stowage goods in proportion, according to the Baltic printed rates; so that one cargo might be more profitable to some extent than another, and the calculation of damages for dead freight would be complicated by that consideration. In the charter as it stands altered in writing the calculation would be simple. It obliges the charterer to load a full cargo, and makes the freight payable at so much per 100 pieces of oak staves and other cargo in fair proportion. It does not make the freight payable in respect of different cargo according to different specified rates, so as to make the freight to be earned vary with the cargo carried. But whatever be the cargo carried it would be paid at the same rate as if all had been oak staves. So that although the claim in form would be as damages for not loading a complete cargo, yet as soon as the capacity of the vessel for carrying oak staves is ascertained, the claim is liquidated by deducting the freight actually carried. The shipowner could at once make his claim for the known capacity of the ship, and he would do so at his peril if he claimed too much, and refused to deliver; and any two captains in the docks could settle the amount.

If there was a serious dispute the cargo would be delivered either upon a deposit of a sum of money at a bankers or upon security by bond. The lien for a general average involves much greater difficulties. It appears to have always existed independent of contract, both by the civil law and our law: Abbott on Shipping, p. 247, 5th ed.; and by the American law (which does not lightly esteem convenience), the captain may detain the goods until a bond to pay the sum contributable is paid, or even until the amount is paid: Kent’s Commentaries, vol. iii., p. 339, 10th ed. It is expressly contracted for in the present case. Now we know how many weeks or months the adjustment of a general average claim may take, and what questions arise as to the proper item for allowance, and yet, practically, it never interferes with the delivery of the cargo, proper security being given as a matter of course to pay what in the result is found to be due.

The rule contended for by the defendants, and which is to some extent sanctioned by Pearson v. Goschen, would come to this: that the only case in which there is a lien for dead freight is where the claim is not for dead freight at all. If there is an agreement to pay so much a ton upon the carrying capacity of the ship, it matters not whether the ship is full or empty, the same sum is to be paid by the agreement, and there is nothing like dead freight in the transaction; yet it is said that the clause for dead freight was intended to apply, and can only apply to such a charterparty. But if the agreement is to load a full cargo, and to pay so much a ton for the cargo delivered, then if a short cargo is loaded there is a claim for dead freight, in other words, the freight does not exist, or is dead, which would have existed if the cargo had been loaded, and in this, which is the only real case of dead freight, the agreed lien for dead freight is said not to be applicable, and in that way the agreement of the parties is set aside.

As regards authority, the judgments of all the judges in the case of Birley v. Gladstone may be regarded as almost in point in favour of the view above taken. In that case the freighter engaged to ship a full cargo, and was to pay 2l. 5s. per ton for salt on the voyage out, and 12l. per ton of flax and hemp, and 8l. per ton for tallow, on the voyage home. There was a claim for dead freight, 372l. 12s., in respect of space unoccupied. The question argued was, whether the general clause in the charterparty, by which the shipowner bound the ship and tackle, and the freighter bound the cargo, under a penalty for the due performance of all the covenants, amounted to a contract that the shipowner should have a lien for dead freight. It was held that it did not; and the ground of decision was that this clause was intended to give mutual remedies, and as it could not operate to give the freighter a lien, so it was not intended to give the shipowner a lien. But it was never suggested that if there was a contract for a lien in respect of dead freight, it would not apply to such dead freight as the present because it was unliquidated. The case of Phillips v. Rodie is in entire conformity with this decision. I think it will appear that one of the learned judges who decided the case of Pearson v. Goschen was under an erroneous impression as to the effect of the above two cases, though the error was corrected by the other learned judge, Mr. Justice Willes.

In reality the inconvenience seems to be rather one suggested in the interpretation of the contract than felt by the merchant in acting upon it. I do not think we can upon the ground of inconvenience set aside a contract giving a certain security for dead freight, which must mean the dead freight accruing under the same contract. To do so would be rather adopting that construction which has been much condemned, and which the doctors called “interpretatio viperina,” because it destroyed the text.

If the construction of the charterparty which I have arrived at is the proper one, the remaining question is, whether on the bill of lading the right of lien for the demurrage and dead freight is retained as against the holders of that document. Upon the particular words used in this, as in similar documents, such as policies of insurance, there is abundant room for ingenious argument, both as regards the printed part, “he or they paying freight or demurrage, if any should be incurred,” and upon the written addition, “and other conditions,” coming in so awkwardly as it does between the words “freight” and “demurrage.” But, taking it all together, the effect of it seems to me to be clear enough: when given to the charterer it was intended to retain the whole right of lien; and the fair meaning of the words is to do so.

It was contended by the defendants that the words, “if any should be incurred,” shewed that the demurrage previously incurred could not be intended. But these words are part of the usual form, and are in general really superfluous, because demurrage cannot be payable unless it has been incurred. It would be unwarrantable to make the effect of such an instrument depend upon the retaining of words generally inoperative. And on the other side, it may be said that the word “demurrage” in the bill of lading must refer to demurrage at the port of lading, because, according to the language of the charterparty, none could be contemplated at the port of discharge. And it may be observed that although the words are generally inoperative as regards the right to demurrage, yet they prevent the bill of lading from containing an admission that demurrage is due; and this would be a good reason for retaining them in the present case, because by the charterparty days of frost are not to be included in the loading days; and it might not be known or agreed how much of the delay was from that cause. It appears to me, however, sufficient to say that the language in the present bill of lading includes all the conditions in the charterparty upon the performance of which the cargo is to be delivered, viz., payment of freight, demurrage, dead freight, and average.

This construction is in conformity with the authorities which have been decided upon the effect of the word “conditions” in such a document. In Wegener v. Smith the words of the bill of lading were, “and other conditions, as per charterparty,” and the Court of Common Pleas held that the word “conditions” made demurrage due under the charterparty payable upon delivery. And this decision was entirely approved of by the Court of Queen’s Bench, in Smith v. Sieveking, though in that case, the only words being “paying for the goods as per charterparty,” the Court held the fair meaning of those words was payment of freight at the rate in charterparty. Error was brought into the Exchequer Chamber, and the case was considered too clear for argument. A remark was made referring to the demurrage incurred before the signing of the bill of lading not being covered by the language, but this was not the ground of decision, which Parke, B., stated to be, that the words “paying for the goods” meant payment for the carriage of the goods. There is no authority giving a different meaning to the word “conditions,” and it is the only rational meaning of the word, coupled as it is with “freight and demurrage,” and thus signifying those payments provided for by the charter to be made on delivery, or as a condition for delivery. It must be taken by the reference in the bill of lading to the charterparty that the defendant had notice of the contents of the charterparty, it indeed was admitted upon the case that he had received a copy of it, so that he knew all the conditions upon which the cargo was deliverable.

I am therefore of opinion that the Queen’s Bench were right in giving the plaintiff the demurrage, that they were right in withholding the damages for the detention, but that they would have been right in giving the dead freight, and that their judgment must be corrected to that extent.

I will only add, that from what we were told took place upon the argument of this case in the court below, there is no reason for supposing that the Court of Queen’s Bench would not have given the dead freight if they had not felt bound by the decision in Pearson v. Goschen.

I am informed that in such a case as the present the House of Lords has decided very lately that the lien for dead freight applies. Some of my learned Brothers have seen a note of the case, and will refer to the name and particulars of it. If there was any authorized report of the case I should, of course, have referred to it and corrected my judgment by it, if necessary; so far as I can collect no correction would have been necessary.

BRETT, J: This is a special case stated in an action in which the plaintiff sued the defendants for dead freight and demurrage.

The plaintiff was the owner of a ship called the Superior. The defendants were merchants in London, and consignees of certain timber shipped on board the ship. The plaintiff had chartered the ship to one Carnegie. By the charterparty the ship was with all convenient speed to sail and proceed to Sulina, and there load from the factors of the freighter a full and complete cargo of staves and/or grain, seed, or stowage goods, or lawful merchandise, which the merchant bound himself to ship, and being so loaded should therewith proceed to London, and deliver the same on being paid freight (according to certain specified rates). The freight to be paid in cash on unloading and right delivery of the cargo – fifty running days, not to count before 15th October, if required by merchants’ agents, are to be allowed, if the ship is not sooner despatched, for loading; and to be discharged as fast as ship can put the cargo out; and ten days on demurrage over and above the said laying days at 8l. per day; the owners to have an absolute lien on the cargo for all freight, dead freight, demurrage, and average; and the charterer’s responsibilities to cease on shipment of the cargo, provided it be of sufficient value to cover the freight and charges on arrival at port of discharge. The ship proceeded to Sulina, and loaded a short cargo. The cargo was shipped by the charterer’s agents. A bill of lading was signed by the captain for 283,682 staves to be delivered at the port of discharge as per charterparty, unto order or assigns, he or they paying freight, and all other conditions, or demurrage, if any should be incurred, for the said goods as per charterparty. The claim for cargo short shipped (claimed as dead freight) was 364l. 19s. 5d. The claim for demurrage in respect of the ship being detained ten days on demurrage proper at the port of loading, was 80l. And there was a further claim of reasonable damages for eighteen days detention at the port of loading beyond the ten demurrage days. The defendants were the consignees of the goods named in the bill of lading, and the property in the goods vested in them upon and by virtue of the consignment. The plaintiff claimed a lien on the goods mentioned in the bill of lading for the dead freight and demurrage, and damages in nature of demurrage, which he alleged to be due.

It was argued on behalf of the plaintiff that he would have had by virtue of the charterparty a lien on the goods shipped for the dead freight, demurrage, and damages, if the cargo had not been of sufficient value to cover freight and charges, &c.; but as the cargo was of sufficient value, the charterer’s responsibility under the charterparty had ceased; and that consequently the bill of lading ought to be construed more favourably for the shipowner, and that the plaintiff had a lien on the goods to be delivered according to the bill of lading, because the bill of lading by reference imposed upon the goods to be delivered under it at the port of discharge the lien from which the charterer was relieved under the charterparty, and authorized the plaintiff to exercise that lien in respect of what had occurred at the port of loading against the defendants, the holders at the port of discharge of the bill of lading, and the owners of the goods mentioned in it.

It was contended on behalf of the defendants that the printed words in the charterparty, which were supposed to give a lien for dead freight, had no effect, because no charge for dead freight was stipulated for in the charterparty; that the non-responsibility of the charterers was applicable only to defaults which might occur after the sailing of the ship from the port of loading; that the bill of lading incorporated only such stipulations of the charterparty as were applicable to the goods mentioned in it, and which might take effect in respect of those goods only; and that the claims of the plaintiff in the present action, even though they come within the terms of the charterparty, were not such claims as were imposed on the defendants by the bill of lading.

These arguments raise two questions, namely, first, what is the right construction of the charterparty; and, secondly, what is the right construction of the bill of lading?

As to the charterparty, I am of opinion, in the first place, that it gave no lien to the shipowner for dead freight. It seems to me that a charterparty which leaves damages to be recovered in respect of short loading unspecified, and therefore at large, gives no claim for dead freight properly so called. Such a claim for unliquidated damages is not dead freight: per Williams and Willes, JJ., in Pearson v. Goschen; and, as I have always understood, was intended by Lord Ellenborough in Phillips v. Rodie. I always thought that that great judge was pointing out that, although many people called unascertained damages for not loading a full cargo dead freight, they were wrong. And inasmuch as the charterparty gives an express lien in terms for dead freight only, it is not to be construed as giving it for unliquidated damages for not loading a full and complete cargo. Speaking of a similar claim in respect of pre-paid freight, which was not freight in its ordinary sense, Lord Kingsdown laid it down that “where parties, instead of trusting to the general rule of law with respect to freight, have made a special contract for themselves for a payment which is not freight, it must depend upon the terms of that contract whether a lien does or does not exist; and that when the contract made gives no lien, the law will not supply one by implication:” Kirchner v. Venus. (1) And the application of this doctrine to the present case is not affected by the printed clause, which would, if there had been any dead freight stipulated for by the charterparty, have given an absolute lien for it: Pearson v. Goschen. That case seems to me, if I may be allowed to say so, rightly, and according to the true mode in which the courts ought to deal with mercantile business, to point out a necessary and timely modification of the older rule of construction as to giving, if possible, a meaning to every term in the contract, in cases where a modern mercantile instrument is known to be in a printed and general form, with parts of it to be filled up in writing to apply it to particular transactions.

As to the second point argued with regard to the charterparty, namely, that the liability of the charterer, in respect of damages for short loading, and for demurrage, and damages for detaining the ship at the port of loading beyond the demurrage days, ceased on the loading on board the ship of a cargo of sufficient value, and that as a consequence the bill of lading ought to be construed in favour of the shipowner, so as to throw the burden of the lien on the consignee under the bill of lading at the port of discharge. I cannot agree that the second proposition could properly be affirmed, merely because the first were made good. But further, I do not think that the first proposition is sound. With all respect for the judges who decided Bannister v. Breslauer, I think that their interpretation of the charterparty was too severe. The case was decided on demurrer. The judges relied much on the lien given in respect of demurrage, which they assumed was for delay at the port of loading. But if by other terms of the charterparty than those which were before the court, demurrage was stipulated for in respect of delay in unloading at the port of discharge, the chief ground on which they based their interpretation would be cut away. I cannot but think that the safer and juster and more correct construction of the clause then and now under discussion is, that it absolves the charterer, when once cargo of sufficient value is on board, from all liabilities, which, but for it, he might incur in respect of anything happening after the sailing of the ship, or, more properly speaking, after the bill of lading is given, as it were, to replace the charterparty.

The next question is, what is the true construction of the bill of lading? Even if the charterparty does give to the shipowner the alleged lien with regard to the alleged dead freight, the demurrage, and damages in nature of demurrage, is such lien imposed upon the goods mentioned in the bill of lading as against the defendants, the owners of such goods, and consignees of them under the bill of lading? The answer, as it seems to me, depends entirely on the construction to be put on the terms of the bill of lading. Upon that construction alone depends the question whether there is any evidence from which a contract between the plaintiff and the defendants to the effect contended for by the plaintiff can be implied. The rule or canon of construction is to be deduced from the cases which have been cited. In Smith v. Sieveking, the action was brought against the consignee at the port of discharge under the bill of lading for demurrage incurred at the port of loading. By the terms of the bill of lading, which was for the whole cargo, the goods were to be delivered in London to order, &c., he or they paying for the said goods as per charterparty. By the charterparty an ascertained sum of 5l. per clay was stipulated for as demurrage for delay at the ports of loading and discharge; and it was agreed and understood that for the payment of all freight and demurrage the captain should have an absolute lien and charge on the cargo. The Court of Queen’s Bench decided in favour of the defendants. And Parke, B., in affirming that decision in the Court of Error, said: “In this case you must contend that the consignee at the port of discharge contracted to pay for the antecedent delay of the charterer, which occurred at the port of loading before the consignee had anything to do with either goods or ship. Such a contract is one which requires strong evidence to support it; for it is, to say the least, not a reasonable one.”

In Chappel v. Comfort the action was against the indorsees of the bill of lading for demurrage at the port of discharge. By the charterparty sixteen lay days were allowed for loading and unloading, and there was demurrage at 2l. per day for any detention beyond that time. By the bill of lading the goods were deliverable to order, “paying freight as per charterparty;” and there was a memorandum written in the margin, “there are eight working days for unloading in London.” Upon this memorandum the claim was founded. The Court gave judgment for the defendants, Willes, J. says, “It may be, and it often does happen, that the person who receives the goods intends to pay all the charges mentioned in the charterparty. But when it is intended that such an obligation should be imposed on him, it should be done in plain words, as was done in Wegener v. Smith, and other cases, where by the terms of the bill of lading the goods were made deliverable to order ‘against payment of the agreed freight and other conditions as per charterparty.'” And at the end of his judgment he says, “There must be a plain intention expressed that the consignee of the bill of lading is to pay demurrage before he can be charged with it. This is an established rule, to which it is highly important to adhere.”

So in Fry v. Chartered Bank of India, the charterparty made the goods deliverable on payment of freight at 3l. 10s. per ton, the ship to have a lien on cargo for freight. The terms of the bill of lading were “Freight for the said — payable in Liverpool as per charterparty.” It was contended that the defendants, the holders of the bill of lading, were liable for the unpaid freight of the whole cargo. The Court decided against the claim. “The charterparty,” says Erle, C.J., “also contains the clause, ‘ship to have a lien on the cargo for freight,’ and it is said that this entitles the shipowner to a lien on each part of the cargo for the whole freight. I think the judgment of Willes, J., in Chappel v. Comfort applies in terms to this case, and I agree with it, that if it is wished to include more of the terms of the charterparty,” – i.e., more than to make the freight payable as per charterparty, – “words ought to be introduced into the bill of lading which would shew that intention more plainly.” The plaintiffs counsel, however, relied strongly on the case of Wegener v. Smith. The case, as reported, states that the action was for demurrage, without saying whether for delay at the port of loading or discharge. The charterparty provided for the delivery of the cargo at a certain measurement freight; and in case of detention the captain to be paid 5l. for every proveable lay-day. The bill of lading made the goods deliverable to order “against payment of the agreed freight and other conditions as per charterparty.” The Court held that by the words “and other conditions,” the liability to pay demurrage was incorporated into the bill of lading, and they decided in favour of the plaintiff. This would be a strong case in favour of the present plaintiff if the demurrage therein claimed had been in respect of delay at the commencement of the voyage; “but it has been ascertained on inquiry,” says Lord Campbell in Smith v. Sieveking that “the demurrage sued for in that case had accrued in the port of delivery, and had arisen from the default of the defendant in not sooner receiving the goods.” And upon the case being again cited in the Court of Error, Jervis, C.J., remarked, that “the action was for demurrage accruing from his (the defendant’s) own delay in the port of discharge.” These remarks were intended to point out that the case is not inconsistent with the doctrine laid down in Smith v. Sieveking. The case of Kern v. Deslandes was also relied on. And certainly in it effect was given to a claim for a lien as being introduced from the charterparty into the bill of lading, though the words of the bill of lading were only “he or they paying freight for the said goods as usual.” Great stress was laid by the Court in that case on the fact that the defendants, the consignees claiming under the bill of lading, were mere agents of the charterers. Unless the decision can be supported on that ground, which it seems unnecessary at present to determine, I think it cannot be supported at all. It is stated with some significance by the learned reporters at the end of the case, that “Error was brought upon this judgment; but the matter was compromised before argument.” The rule or canon of construction seems then to be that which is laid down by Willes, J., in Chappel v. Comfort, namely, no liability other than such as naturally attaches in respect of the carriage of the particular goods is to be held to be imposed on a consignee of goods mentioned in a bill of lading, unless such liability is clearly imposed by plain words. Applying that rule to the bill of lading in the present case, it seems to me that we ought not to hold that any liability attached against the defendants in respect of dead freight, demurrage, or damages in the nature of demurrage, incurred at the port of loading. The words, “and all other conditions or demurrage, if any should be incurred,” are satisfied by making them applicable to damages in the nature of demurrage for any delay which may occur through the default of the consignee at the port of discharge. Indeed, they are rather apt to such a liability in the present case; because by the charterparty no specified number of lay days is allowed at the port of discharge, and no demurrage strictly so called is provided for. The ship is to be discharged as fast as ship can put the cargo out. The bill of lading may therefore be construed as if the phrase, “conditions or demurrage” were intentionally alternative, that is to say, applicable to a claim which may more properly be called a condition in the nature of demurrage. The proposed construction also gives full value to the words “for the said goods.” At all events the bill of lading does not clearly and plainly apply to claims made in respect of transactions which occurred before the particular goods were on board, and not in respect of those goods, and which claims, therefore, when made against persons in the position of the defendants are, to say the least, not reasonable.

I therefore am of opinion that the judgment below ought to have been wholly in favour of the defendants. I think that the part of the judgment which was in favour of the plaintiff for 80l. for demurrage ought to be reversed, and the part of the judgment which was in favour of the defendants as to dead freight and damages ought to be affirmed.

Since this case was argued, and since this judgment was written, our attention has been called to the case of McLean v. Fleming, in the House of Lords, and if I had thought that that case overruled anything I have said in this I should have willingly bowed to it. But in that case, as I understand the judgment, the charterparty was in respect of the carriage of a uniform cargo, and the freight was payable at a fixed sum per ton, and the charterparty ascertained the amount of the cargo that was to be loaded. It then put upon the charterers the liability of loading a full cargo, and gave a lien to the shipowner for dead freight. Now, under those circumstances it was pointed out by some, if not all of the learned Lords who took part in the judgment, that the damages for not loading a full cargo were, in point of fact, ascertained, because they would be the specified amount per ton upon the quantity that was really ascertained; and if that were so, that would properly be dead freight within the ordinary meaning of the term, and the lien being given in terms for dead freight, that case would be within the recognised rule; and, as I understand their Lordships, they declined to overrule the case of Kirchner v. Venus, and expressly declined to overrule the case of Pearson v. Goschen, which I think is decided on valuable principles that ought to be generally applied. I therefore do not consider that that case overrules what I have said of this charterparty.

With regard to the question on the bill of lading, even although the charter in this case did give a lien for dead freight, it seems to me that the authority in the House of Lords leaves the case untouched, because the House of Lords, in the case before it, came to the conclusion that the action was between those who were virtually the charterers and the shipowner, and therefore they decided the case on the charterparty alone, and held only that the fact of bills of lading being given to a charterer cannot alter or affect his liability under the charterparty. They seem to me to have decided the case on the charterparty alone. It therefore seems to me that that case does not affect this case, and I adhere to the judgment which I had already written.

The case seems to me to be one of great importance, because bills of lading are the documents on which goods are bought and sold before ships arrive, and if the value of the bill of lading is to be dependent on an unascertained amount to be paid in respect of antecedent transactions which cannot be known, any legitimate, in the sense of wholesome, traffic in such a document cannot be undertaken. This consideration leads to the same conclusion as the legal reasoning which has been before applied.

CHANNELL, B: In this case I think the judgment of the Queen’s Bench should be affirmed.

The question is, whether the plaintiff, who is a shipowner, has a lien on certain timber carried in his ship, as against the defendants, who are indorsees of a bill of lading relating to the timber, for all or any of three distinct claims.

These claims are, first, 80l. for demurrage incurred by the detention of the ship at the port of loading for ten days, during which, according to the terms of the charterparty, the charterer, if he detained the ship, was to pay 8l. per day demurrage; secondly, a further claim for damages for the ship’s detention for a further period of eighteen days beyond the ten days; and thirdly, a claim for what is called dead freight, which is said to be incurred in consequence of a full cargo not having been loaded. It is clear that the plaintiff can only have a lien for any of these claims by express contract, inasmuch as the lien which, as shipowner, he would have independently of any contract would only extend to the actual freight of the goods carried: Phillips v. Rodie; Birley v. Gladstone. Further, although the charterparty may contain an express contract giving him such a lien on the goods as against the charterer, yet he could not have the lien as against the indorsee of a bill of lading, unless it is stipulated for in the bill of lading, either by the incorporation of the clause in the charterparty, or by its being expressly mentioned. The question what lien a shipowner has against the holder of a bill of lading therefore reduces itself into a question of construction, either of the bill of lading alone, or of the bill of lading and the incorporated charterparty combined, as the case may be: see Wegener v. Smith; Smith v. Sieveking.

It is important, however, in construing these documents, to consider both the nature of a lien and the nature of the demands in respect of which a lien is claimed. In Phillips v. Rodie, the difficulties which would be created by a lien for an uncertain amount are pointed out. Where the amount of the demand in respect of which the lien is claimed is capable of being calculated, the holder of the bill of lading will know what to tender; but where the demand is for unliquidated damages no tender can be made; and therefore, except by some arrangement between the parties, such as was arrived at in the present case, but which could not be possible where the solvency of the holders of the bill of lading was at all doubtful, the goods must be detained until these damages have been ascertained. In the very probable case of the parties as against whom the damages have to be fixed being foreigners, or, indeed, in any case, it is obvious that very considerable delay must take place. In the mean time the goods may deteriorate in value. The greatest inconvenience would therefore be caused by construing the shipowner’s lien to extend to unliquidated damages for breach of the charterparty; and although it is not, of course, impossible for the parties to contract for a lien for such damages, unless there was in the contract a very clear expression of their intention to do so, the Court would not so construe the contract.

In the present case both the charterparty and the bill of lading mention a lien for “demurrage.” I think there can be no question that this extends to the 80l. claimed for the ten days during which the charterers detained the ship, as provided for by the charterparty. The plaintiff is therefore entitled to this amount, as decided by the Queen’s Bench.

As regards the further detention for eighteen days, the damages for this are not demurrage at all, properly so called. Demurrage is a sum agreed to be paid for the detention of a vessel, and the term is not applicable to the damages caused by detaining her contrary to agreement. I have therefore no doubt at all that the plaintiff is not entitled to any lien for the damages caused by the further detention for eighteen days.

The point of most difficulty in the case is that relating to what is called “dead freight.” The charterparty gives the shipowner a lien for “dead freight,” it does not, however, in any other way mention any dead freight, nor does it contain any covenant that full freight shall be paid on all the ship could carry, whether a full cargo is loaded or not. The bill of lading provides that the holder shall pay “freight and all other conditions and demurrage (if any be incurred) for the said goods as per the said charterparty.” I think this sufficiently incorporates the charterparty to entitle the shipowner to insist as against the defendants on any lien which he would have under the charterparty for what there is called “dead freight:” see Wegener v. Smith. The question, however, is, what is the true meaning of the expression “dead freight,” so used in the charterparty, and does it cover the claim in the present case, which, as pointed out by Lord Ellenborough in Phillips v. Rodie, is not freight at all, but is unliquidated damages for the loss of the freight? In that case, Lord Ellenborough says, that in order to give the lien claimed, “the covenant should have been to pay full freight as if the goods had been actually loaded on board, and that the master should have the same lien upon goods actually on board as if the ship had been fully laden with all goods covenanted to be loaded.” In the present case, the latter part of the suggested covenant, or something like it, is found, but not the former. It is true that, if we hold that “dead freight” in the charterparty does not include unliquidated damages for loss of freight, we give no effect to the expression at all. I agree, however, with what was said on this point by Williams and Willes, JJ., in Pearson v. Goschen, that when these words occur in an ordinary clause in a mercantile contract it is not necessary to find an application for them in the particular case. If the charterparty had provided for any dead freight, strictly so called, being payable, the clause would have taken effect and conferred a lien, but as it is, it does not take effect, because there is nothing for it to apply to. In the case last referred to, the point in the present case was really decided, as the Court held that a clause giving a lien for “dead freight” was wholly inapplicable to a claim for damages in respect to the charterers having failed to load a full cargo. In this Court we should not be bound by that decision if we did not agree with it; but I do agree with it, and adopt the reasoning on which it proceeds.

We have been pressed in the argument with the clause in the charterparty that the charterers’ responsibilities are to cease on shipment of the cargo, provided it be of sufficient value to cover the freight and charges on arrival at the port of discharge. It has been contended that all the charterers’ responsibilities for all breaches of contract were to cease on shipment; and that therefore it must have been intended that there should be a lien on the goods, otherwise the shipowner would be without remedy. It is not, of course, necessary for us to decide whether the charterers were or were not relieved from responsibility in respect of the claims which we now decide the shipowner cannot maintain against the defendants. As at present advised, however, I think this clause does not apply. At all events, it contains nothing to induce me to put a different construction on the previous clause than I otherwise should. Probably the charterers’ responsibilities which are to cease are the responsibilities in respect of those matters for which a lien is created; but the difficulties in the way of creating a lien for unliquidated damages, and the stipulation that the cargo is to be of sufficient value to cover the freight and charges only, and not the freight charges and all damages, afford a stronger argument for holding that there is no lien and therefore no cesser of responsibility of the charterers as regards the damages, than for holding that there is a cesser, and therefore a lien. A case of Bannister v. Breslauer has been quoted, in which it was held that, under somewhat similar though stronger words in a charterparty, the charterers’ responsibility for demurrage did cease. If the demurrage there referred to was demurrage properly so called, then I agree with the decision. If, however, as certainly rather appears to have been the case from the report, it was merely unliquidated damages for detention of the ship, then I think the decision somewhat doubtful, and to be supported, if at all, by the fact that the words as to the cesser of responsibility were stronger there than here. The attention of the Court there does not appear to have been drawn to the fact that the demurrage there claimed was not demurrage, properly so called, but only unliquidated damages, and therefore the opinion of the judges that a lien was created for this so-called demurrage, is not entitled to the same weight as I should be disposed to give it, if the point had appeared to have been carefully considered. Besides which, it was merely an opinion not absolutely essential to the decision of the case, for although unlikely, it is not impossible, that the parties should so contract as to make the responsibility of the charterer cease, although no lien was effectually created. In such cases where damages have been incurred prior to the shipment, it would be prudent for the master to refuse to sign any bills of lading which did not give express notice to the indorsee of the claim for damages which had accrued, and stipulate for its payment.

For these reasons, I am of opinion that the judgment of the Queen’s Bench should be affirmed on all points.

After the argument of this case, and I had written what I have read as my judgment on the point of dead freight, our attention was called to the case of McLean v. Fleming, decided by the House of Lords on the 3rd of April last. The delivery of the judgment of this Court was postponed till we had an opportunity of inquiring into the case of McLean v. Fleming. My Brother Bramwell considers the decision in the House of Lords governs this case, and must govern him, whatever his opinion otherwise would have been. My Brother Brett, for reasons he has given, considers that McLean v. Fleming does not apply. Other of the judges, including myself, take the same view of the effect of the decision in McLean v. Fleming. If I considered the decision of the House of Lords as one which governs the present case, of course I should be bound by it, and should withdraw so much of the judgment respecting the point of dead freight as I had prepared and have read; but thinking that the decision of the House of Lords does not govern the present case, I abide by the opinion that the plaintiff cannot recover his claim for dead freight; and I therefore think the judgment of the Court of Queen’s Bench should be affirmed on all points.

BRAMWELL, B: The questions in this case depend on the construction of the bill of lading and charterparty. The former refers to the latter; the captain is “bound to consign his cargo as per charterparty dated London, 18th August, 1866,” and payment is to be made as “per the aforesaid charterparty.” A copy of this charterparty was sent to the defendants with the original bill of lading. The bill of lading, then, must be construed in connection with the charterparty and the surrounding circumstances; – perhaps, as the bill of lading is negotiable, not all the surrounding circumstances that would be applicable as between charterer and owner; but one, at least, must be borne in mind, viz., that the defendants were consignees of the whole cargo.

This being so, it seems to me that the best way to examine the matter is first to ascertain the meaning of the charterparty. It was said by the plaintiff that the effect of it was, that on the loading of the cargo the responsibility of the charterer ceased; as well for all things future as for those past; and that therefore a right must be taken to be given, against the person entitled to receive the goods under the bill of lading, to withhold them till satisfied all claims which otherwise would have been enforced against the charterer. It is not strictly necessary to decide this, perhaps, because it may be that from the form of the bill of lading no right is given against the defendants, although all rights are lost against the charterer; and on the other hand it may be, that by the terms of the charterparty, rights remain against the charterer, while by those of the bill of lading they are given against the defendants. But the argument is so important, an answer one way to the question would be so cogent in favour of the plaintiff, that it is necessary to consider it minutely. It seems to me that the plaintiff is wrong in his contention on this point. I do not think that the parties intended, nor that they have expressed an intention, that the charterer’s responsibilities for causes of action then accrued should be extinguished on shipment. Agreements should be construed on the principle that parties when making them contemplate keeping, not breaking them. I do not think this charter contemplated that the charterer will break his contract. It is true the words “dead freight” are used, which certainly are unmeaning in this case, except they provide for the case of a short cargo contrary to the charter. What meaning, if any, is to be given to them, I shall have to examine presently; but I think they are not sufficient to shew that “responsibilities” mean “responsibilities for past breaches of agreement.” Again, the charterer’s “responsibilities” are to “cease.” It is a verbal criticism, but the right words would be “be extinguished” as to accrued claims. Further, they are “to cease on shipment of the cargo, provided it be of sufficient value to cover the freight and charges on arrival at port of discharge.” So that it must be of sufficient value to cover the freight and charges. But why should the shipment of a cargo of sufficient value to cover freight and charges extinguish an already incurred claim for short loading, demurrage, and detention over the demurrage days? Again, it must be of that value “on arrival at port of discharge.” So that if damaged on the voyage to a less value, the other responsibilities would exist. Further, they are to cease on shipment of the cargo, i.e., a full cargo. That is a good reason why the responsibility to ship a full cargo should cease, viz., because it has been done; but why is it a reason why responsibility for delay in loading should cease? Why should shipping a short cargo not only be a cause of action in itself, but also keep alive the cause of action for delay in shipping? It is also certain that all breaches of contract by the charterer are not provided for by a remedy against the person entitled under the bill of lading. For if there was no advance at the port of loading, an action would lie against the charterer; but clearly there is no lien on the goods for the damages thereby recoverable. Of course that is not decisive; it may have been overlooked. But it is an argument. I am of opinion on this part of the case that the responsibilities which are to cease are those which the shipowner, without loss to himself, may render unnecessary in the case supposed, viz., responsibilities for the freight and charges to cover which the cargo is of sufficient value on arrival at port of discharge. The clause should be read thus: “and on shipment of the cargo, provided it is of sufficient value to cover the freight and charges on arrival at port of discharge, the charterer’s responsibilities to cease, for such freight and charges.” It is said this opinion is inconsistent with the case of Bannister v. Breslauer. If so, I respectfully intimate my doubt of that decision. But it is to be observed that every case such as this, where no general principle of law is involved, but only the meaning of careless and slovenly documents, must depend on its own particular words. I may observe that in one sense this question does not arise. For if the plaintiff is right “the cargo” has not been shipped, but something short of the cargo. However, to help the construction of the bill of lading the question does arise; but for the reasons I have given, it should, I think, be answered unfavourably to the plaintiff.

Putting this meaning on this part of the charterparty, it is next convenient to examine what lien by the charterparty would be reserved against the party entitled to the goods, whom I will call “consignee.” The owners are to have an absolute lien for all freight, dead freight, demurrage, and average. The doubts are as to dead freight and demurrage. First, does dead freight include short loading? In strictness, it does not. Dead freight apparently, in strictness, means some agreed sum, fixed or capable of calculation, for short loading. Now, it is certain that general damages, which are all the plaintiff could recover here, are something very different from that. Here the plaintiff might recover more than a sum equal to the charter freight for goods carried; or less, if he filled up advantageously elsewhere. Why, then, are these words, which do not naturally signify damages for short loading, to be held to do so in this case? The burthen of shewing this is on the plaintiff. The argument he uses is, that, unless so interpreted, the words “dead freight” have no application; that a meaning ought to be given to them if they are capable of it; that damages for short loading are often called “dead freight”; that words may be construed in a secondary sense when not applicable in their primary sense; that otherwise no lien is given for dead freight, though the parties intended to give very extensive liens. This argument is, I think, of great force; still its value must be tried and compared with arguments the other way. Those arguments seem to be these: That the parties might have said “damages for short loading” in so many words if they had thought fit; that, as they have not done so, those who have to decide on the charter ought not to say so, without almost a necessity for so doing; that no such necessity exists here: for that, although it is a rule that a meaning should be given to all words if they are capable of one, there is no rule that it must be done in all cases; and that when it is remembered that the forms of these documents are prepared in the same words in print, whatever particular stipulations may be introduced in each, it is more right and more natural to add the words “if any” to all such general words as those in question (as was done in the case of Cross v. Pagliano), than to give any such secondary meaning; for that where a secondary meaning is given to words incapable of their primary meaning the words properly have that secondary meaning, as where “son” is held to mean “illegitimate son” where there is no legitimate son. Further, to suppose that a lien is given for damages for short loading is to suppose that the parties contemplated that the agreement would be broken, not kept, which is a wrong way of construing agreements, as, presumably, parties making them contemplate keeping them. Now, when dead freight is agreed to be paid, the charterer has the right to load a short cargo on paying the dead freight. Another argument against the plaintiff is, that the construction he contends for is inconvenient; that it is not likely a merchant would charter a ship in such terms that he would not be entitled to a bill of lading without the goods in it being liable to a thing so uncertain and open to dispute as a claim for short freight; and that, though in this case there is but one bill of lading, there might have been several, and the goods in each subject to this claim. Which of these reasonings should prevail might be matter of much doubt but for the case of McLean v. Fleming, recently decided in the House of Lords, where a lien for “dead freight,” under circumstances very similar to those of this case, was held to give a lien for damages for short loading. Pearson v. Goschen is, no doubt, the other way, though certainly there the matter was rather assumed than determined. Anyhow, if it conflicts with McLean v. Fleming, of course the latter must prevail.

It remains to consider, as to this point, whether, the shipowner having a right to this lien, that right has been preserved in the bill of lading. But I will first examine what other liens are given by the charterparty. Analogous considerations to the foregoing shew, to my mind, that “demurrage” means demurrage strictly so called. In the first place, demurrage, though sometimes used to signify any undue delay in loading, is an expression in common use to signify an agreed time, and is so used in this charterparty. Demurrage proper is contemplated by this charter, and the word therefore is satisfied; so that, if the plaintiff is right, “demurrage” would have two meanings, viz., “demurrage proper,” and “damages for detention,” which may be at a greater or less rate than the agreed demurrage. In the next place, there is the argument that the parties are not to be taken to contemplate breaking their agreement. In the result, then, I think the charterparty enables the owner to insist on a lien for demurrage strictly so called, but not for delay in loading ultra the demurrage days.

If, then, these are the proper constructions of the charterparty, what is that of the bill of lading? If the master has not reserved the liens he was entitled to, or has stipulated for those to which he was not entitled, why has he? Shortly, the meaning to be expected in the bill of lading is one in conformity with the charterparty. Let us examine it. The goods “are to be delivered unto order or his or their assigns, he or they paying freight and all other conditions or demurrage if any should be incurred for the said goods, as per the aforesaid charterparty.” It is certainly impossible to speak with confidence as to the meaning to be put on this document. In the first place, the word is “or” demurrage. Of course this must be read “and.” Then the words are, “if any should be incurred.” This means, on the face of it, I suppose, “should thereafter be incurred.” But when it is remembered that the charter “per” which this is to be paid makes no provision for demurrage at the port of discharge (and it certainly does not), while it does for demurrage at the port of loading, and when it is remembered how commonly the mistake is made of using the “should” or “shall be” for “shall have been” to comprehend possible past and future, must not this be read as a bit of bad grammar for “if any shall have been incurred”? It seems to me it must be so read, especially when read in conjunction with the words “he or they paying freight, and all other conditions.”

These words I now have to consider in reference to the remaining question, viz., is there a lien under the bill of lading for the damages for short loading? But for the words “all other conditions” there clearly would not be. But those words must be read as “performing or satisfying all other conditions” for the said goods as per the aforesaid charterparty: for “paying” conditions is insensible. But if I am right in my construction of the charterparty, one of the conditions the consignee might be required per the charterparty to satisfy in order to have the goods is paying damages for short loading under the name of “dead freight”; for it seems to me that the word “conditions” has no application, unless it is to secure the liens to which the shipowner is entitled by the charterparty. It supposes the performance of some condition precedent or concurrent by the consignee. What? What is he to do by the charterparty? Pay freight? That is expressly provided for. Unload as fast as the ship can put the cargo out? But that is not a condition precedent or concurrent to or with his having the cargo. He may be bound so to unload, but not for “the goods”; for he must have them, whether he unload at that rate or otherwise. Besides, that would only be one condition, and not conditions. The clause about heated or damaged condition does not create any condition to be performed, but provides for a way in which, in a certain event, the freight is to be computed.

It seems to me, then, that by the charterparty there is a right to insert in the bill of lading a lien for the demurrage and dead freight, or damages for short loading; that there is no reason to suppose the captain intended to give up that right; that there are words sufficient to carry it; that those words have no application unless they have that effect; and that consequently they have that effect, and the plaintiff is entitled to his lien for those damages and demurrage. It is said that the words are “paying for the goods.” I think that the words must be read “paying and satisfying all other conditions for the goods”; for “paying conditions” for the goods is insensible. Even then it is argued that the paying and satisfying are to be “for the goods,” which means “for the carriage of the goods.” I do not think so. It means “to have the goods.” Demurrage is not paid for the carriage of the goods, but for delay in loading, nor is average; yet, by the bill of lading, demurrage and average may have to be paid for the goods, which must mean “to have them.” Smith v. Sieveking is cited to shew that those words “for the goods” are to be so understood; and certainly that case tends that way. But Wegener v. Smith is an authority the other way. And it seems to me clear that each of those cases must depend on the very words used. Here, again, the argument is used, that if there were several consignees and several bills of lading it would be impossible to construe them in this way; that either there would be liens on small parcels for large damages, or other difficulties would arise. I doubt the difficulty practically. But the question does not arise. There is only one bill of lading. It may be if there were several it would be impossible so to construe them, though I do not think so. But, if so, the conclusion to be drawn is, that in that case the bills of lading would have been differently framed. In this particular case (if such a matter may be noticed) the fact is, that “all other conditions” are inserted in writing in an otherwise printed form obviously for some important purpose. While the clause about demurrage, “if any should be incurred,” is in print, and good enough, at the time of printing, to comprehend all demurrage, whether incurred before or after the signing of the bill of lading.

Supposing that by the words “demurrage, if any should be incurred,” no lien for the demurrage anterior to the bill of lading would be given, I think it would be given by the words “all other conditions.” I think those words, for the reasons I have given, would suffice without express mention of demurrage, and I think that express mention does not lessen their effect.

In conclusion, I think the plaintiff entitled to a lien for the demurrage, and the dead freight or damages for short loading; and that the judgment should be affirmed as to the former, and reversed as to the latter. But I speak with great doubt, seeing the state of the authorities, and knowing the different opinions entertained on the questions, and considering what they are, viz., what meaning is to be put on loose and careless expressions? But I cannot help thinking that if we decide against the plaintiff, he will lose a benefit he clearly meant to have, and the charterers intended he should have. The questions ought to have no importance except to the parties interested, and except as a warning to others not to let them arise again.

WILLES, J. I entirely concur with the judgment delivered by my Brother Brett – a judgment written with such fresh and accurate acquaintance with the mercantile and maritime law applicable to the subject, that I will not attempt to add anything.

KELLY, C.B. Three questions arise upon this appeal. One, and the most important, for it governs the entire case, is whether the words interlined in the bill of lading so far incorporate into that instrument the conditions in the charterparty as to entitle the plaintiff to a lien upon the cargo, of which the defendants have become the owners under the indorsement of the bill of lading. The first point is as to demurrage in respect of the ten days from the 8th to the 18th of December, amounting to £80. Under the bill of lading the cargo was to be consigned “as per charterparty,” and the cargo is to be delivered “as per charterparty unto order or assigns, he or they paging freight and all other conditions”

[these words being interlined in writing in the printed bill of lading]

“or demurrage, if any should be incurred for the said goods, as per the aforesaid charterparty.” This must be read as paying freight and demurrage, if any; and the question is, how much of the charterparty is imported into the bill of lading by the words interlined in the bill of lading, “and all other conditions?” These words must be read “performing all other conditions,” to make them intelligible and sensible. When we look to the charterparty, we find after the provision for the payment of the freight on unloading, and for fifty lay days from the 15th of October, and ten days on demurrage at 8l. per day, the charterparty proceeds thus: “The owners to have an absolute lien on the cargo for all freight, dead freight, demurrage, and average, and the charterer’s responsibilities to cease upon shipment of the cargo, provided it be of sufficient value to cover the freight and the charges upon arrival at the port of discharge.” And the question is, whether this condition is binding upon the defendants under the words “and all other conditions” interlined as before mentioned.

I think it is. First, because these words cannot be treated as words of form and superfluous, or as having no meaning or effect, seeing that they are introduced expressly and in writing by interlineation in the printed bill of lading, and must, therefore, point to something intended and distinctly agreed upon between the parties; and I see no other condition to which they can apply, but the very important one that the owner was to have a lien upon the cargo for all freight, dead freight, and demurrage.

It has been contended that the words apply only to any condition touching these goods, the freight payable under the bill of lading being the freight only for this shipment; but I think the reasonable interpretation is, that any and every condition is imported which affects in any way the interests of the owner, or of the defendants in relation to the cargo thus consigned. I do not say that notice of the contents of the charterparty would have bound the defendants by this condition, but assuming the words to mean “performing all other conditions,” I think the only reasonable effect to be given to them is to preserve to the owner the lien for which he had stipulated upon the cargo consigned to the defendants, which otherwise they would not have been liable to satisfy. It is unnecessary to determine whether, upon the shipment of this cargo, the liability of the charterer and the lien of the owner altogether ceased, as well in respect of demurrage already incurred, as of any species of liability that might afterwards arise; for whether such liability wholly or in part continued or ceased, the owner might claim the benefit of his lien against the consignee of the cargo, either as a substituted or an additional or a collateral security for the freight and demurrage. No case has been decided in which the question has turned upon words like these; we must, therefore, decide this case according to what we believe to have been the intention of the parties, to be collected from the language of the two instruments taken together. It is true that, had the two constituted but one contract between the owner and the consignees, it is most unlikely that the consignees would have allowed their cargo to stand as a security for demurrage already incurred, and not by reason of any act or default of theirs; but we must remember that the charterparty was entered into between the owner and the charterer before it could be known what compensation the owner would become entitled to, whether in respect of freight or demurrage, or any other incident of the adventure. I think, therefore, that the verdict for the plaintiff for 80l. ought to stand, and the judgment of the Court of Queen’s Bench upon this point should be affirmed.

The next question is, whether the lien extends to the compensation claimed for the detention of the ship after the lapse of ten days on demurrage. Now the words are, “freight, dead freight, demurrage, and average;” and it seems to me impossible that this claim should come within either of these words. I think, therefore, the judgment below must also be affirmed upon this point.

It remains to be considered whether the claim to unliquidated damages for the not having shipped a complete cargo can be claimed as dead freight, and so brought within the lien to which the owner was entitled. Now, inasmuch as we have no means of ascertaining the amount of these damages, except by consent or by the verdict of a jury, they cannot be brought within the strict legal meaning of the term “dead freight,” which must be a sum ascertained or ascertainable by the charterparty itself, as where a complete cargo is agreed to be 1000 tons at a specific sum, as 20s. per ton; and, therefore, the term “dead freight” in this condition must mean the unliquidated damages for not shipping a full cargo, or it has no meaning at all with reference to the whole effect of this charterparty. But we often find words in these printed instruments which are so framed and introduced as to be applicable to a great variety of different cases, and which have no application at all, and therefore no meaning and effect whatever in the particular case in which such a question as this arises. I am far from saying that a different construction is to be put upon words in print and words in writing; but it may be in an instrument of either character, but more especially where it is in a printed form, that a word or term of this description must be read with the implied addition of the words “if any.” After all, we are in this case to draw our own inferences as to the meaning of the parties in the use of these words, and if they are doubtful, and there be no evidence on the one side or the other of their bearing a particular meaning among commercial men, we must put such a construction upon them as we think calculated to give effect to the real intention of the parties; and if they are of a doubtful import, they should have a reasonable interpretation; and it certainly does not seem reasonable that these parties should have agreed upon a lien like this, the effect of which would be, that whenever the cargo becomes deliverable upon the arrival of the ship, it will be impossible for the consignees to satisfy the lien and to obtain possession of their property, unless by agreement between the parties as to the amount of damages claimed by reason of the deficiency of the cargo, a matter upon which they are very unlikely to agree, or by means of the verdict of a jury or the award of an arbitrator, which might not be obtained for months, or even for years, after the arrival of the vessel.

I may add, that if we are to put a strictly literal construction upon these words, a claim to damages by reason of the shipment of a deficient cargo cannot be brought within the true meaning of the word “freight,” which imports a sum certain to be paid in respect of the conveyance of goods in a ship, and therefore the term “dead freight,” as well observed by Lord Ellenborough in the case of Phillips v. Rodie, cannot be properly used as designating the unliquidated damages recoverable by reason of the breach of a contract to ship a full and complete cargo. And this view of the question last raised being supported by the case of Pearson v. Goschen, I think that the plaintiff cannot be entitled to a lien for a short shipment, as in this case, under the term “dead freight.” I have, indeed, great difficulty in understanding how a lien can exist for a sum of money, not ascertained at the time when the goods upon which the lien is supposed to attach are deliverable according to the contract, nor capable of being ascertained but by the award of an arbitrator or the verdict of a jury. But since this case was argued, we have been informed of the judgment delivered by the House of Lords in a case of McLean v. Fleming, and in which it was held that damages by reason of the shipment of less than a full cargo might be recovered as dead freight, and we are no doubt bound by that decision. In that case, however, the amount of the damages was capable of being at once ascertained, inasmuch as the short shipment was of the specific quantity of 210 tons of bones, the stipulated freight being 35s. per ton. This is in the nature of dead freight, strictly so called, and is thus distinguishable from the case now before the Court. Upon the whole, therefore, I am of opinion that the judgment of the Court of Queen’s Bench should be affirmed.

Appeal dismissed.