Possession of the goods is, generally speaking, essential to the lien for freight or charter hire. It does not attach until the goods have been delivered for transportation. If, by contract, expressed in the bill of lading or otherwise, the freight is not payable until after the goods have been delivered, there is no lien, and the same is true if the freight is payable at a time and place other than those specified for the delivery of cargo. Ordinarily the lien is discharged when possession of the goods is parted with; or by express waiver; or by implied waiver, such as a direction to pay the freight to another person.
It is usual to insert in time charters a clause providing for a lien for charter hire. Such provisions are valid, but they are not effective against the cargo unless the terms of the charter have been brought home to the shipper by a reference to the charter in the bill of lading, which is commonly done. To incorporate the charter in the bill of lading the reference to the charter in the bill must be explicit.
20. Liability for Loss or Damage.—
In the case of goods, there is a primary liability on the ship.
The liability of a vessel in rem for want of due diligence in the care and custody of the goods received on board for transportation is the same whether the owners of the ship remain in possession as carriers or whether the terms of the charter party are such as to constitute a demise of the vessel for the voyage, so as to render the charterers the owners pro hac vice and alone personally responsible for the transportation. The T. A. Goddard, 12 Fed. 174.
As between the shipowner and the charterer, this will be borne as the charter party provides. In the case of loss or damage to the ship, the contract again controls if its provisions are explicit. If not, the ordinary rules of bailment of personal property control. If the charter amounts to a demise of the ship, the charterer is liable, for he engages to return the ship without injury by reason of his own negligence; if not a demise, the shipowner bears the loss. For losses caused by perils of the seas or by ordinary wear and tear, without negligence on his part, the charterer is not liable in the absence of an express stipulation.
In the case of the Barnstable, 181 U. S. 464, the vessel was chartered, the charterer employing the officers and crew to navigate her, as well as providing the ship's stores, supplies and fuel, and undertaking to pay all pilotage, port charges and other expenses. The owner was to keep the vessel insured and in repair. She came into collision with the schooner Fortuna. The owners of the Fortuna libeled the Barnstable and the owners of the latter vessel called upon the charterers to defend the suit. It was conceded that the collision and the consequent damage were due to the negligent operation of the Barnstable by the officers and crew employed by the charterers to operate her. The court held that the owners of the damaged schooner were entitled to look to the offending vessel for their damages. As between the owner and the charterer it was held that the charter amounted to a demise and the charterer was the temporary owner. He was therefore liable to the real owner, since he was bound to return the vessel. In the report of the argument of this case many authorities are cited showing the circumstances under which a charter party becomes a demise of the vessel.
In a contract of affreightment or charter not amounting to a demise—and this embraces time charters—the duty of navigation rests upon the shipowner. He is responsible for any damage due to negligence in navigation, even though the negligent individual had been employed by the charterer. In charters of this class the shipowner is also responsible for loading and discharging cargo. Stevedores are ordinarily regarded as being in the employ of the ship.
21. Demurrage and Laydays.—
Time is usually of the essence of maritime and commercial transactions. Both parties must be punctual in the performance of their obligations. The shipowner must have the vessel at the appointed place and time for delivery to the charterer or to receive the cargo, as the agreement requires. The charterer must be on hand to receive her or to deliver the cargo for loading. The ship must pursue the voyage without deviation or delay. The consignee must be ready to receive his goods on their arrival. Failure to observe these requirements creates a liability for the damages ensuing or may dissolve the charter. If the contract is express in regard to these stipulations, no excuses will be useful unless they can be found in the agreement itself. It is usual to provide for these obligations under the name of demurrage. Of course, where the charter is for a definite period of time, they are unimportant, but otherwise, if it is for one or more voyages. The charterer has a number of days at his disposal for loading and discharging the cargo. These are termed laydays. If not specially provided, or fixed by the usage of the port or trade, a reasonable number will be implied. For the excess, the ship is entitled to demurrage to cover her loss of time and expenses, either at the rate named in the charter or of such amount as may be proved.