These covenants would be perfectly nugatory if the freighter had the entire possession of the ship; for, then, he would receive, stow, and deliver, as and when he pleased. "The ship's boats to be assisting, properly manned, provided no impediment is thereby to be made in carrying the exclusive operations or duties of the ship." What duties of the ship could be inconsistent with those of an absolute owner pro hac vice? Notice, too, is to be given to the freighter's agents of the time of loading, treating him and the ship owner as distinct

persons.

The mode of payment too is material, evidently showing the payment and delivery to be concomitant acts: nay, stronger than concomitant acts; for the delivery of the bills was to precede the delivery, viz. at two months' date from the day the ship was reported at the custom-house. And this fact differs this case from that of Crawshay v. Homfray (a), where the payment was to be long antecedent to the delivery; and, therefore, there could be no lien.

The case, for we are not left to infer it, finds that William Wilson, and the crew of the Ann, were hired and employed to navigate, and that the ship was navigated at the owner's expense.

Under all these circumstances, I cannot bring myself to think that the owner here had given up the controul of his ship; and, as it seems to me, my opinion is well borne out by a vast variety of cases.

The case of Tate v. Meek, decided in this Court, appears to be almost in point. It is true, the words "let to freight" are not to be found in that case; and I have endeavoured to shew that these words are not conclusive to show that the owner has given up all controul over the ship, if it can be shown from the rest of the (a) 4 B. & 4. 50.

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instru

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instrument that such was not the intention; but in all other respects it is decisive. In Yates v. Railston the words "let to freight" are to be found, and yet the same construction prevailed; and so also in Yates v. Mennell, though, in the latter case, these words are not to be found.

Since those cases were decided, the case of Saville v. Campion has arisen in the Court of King's Bench; and every word of Lord Chief Justice Abbott's opinion bears strongly upon the present case. In that case there were no words of letting; but, it was contended, that there need not be express words of demise, but that any words plainly showing that the one party is to give up to the other, and the other to take and hold possession for a definite time, are sufficient to constitute a lease; and this, said his Lordship, is true. "But (he continues), on an attentive consideration of the charterparty in the present case, we find nothing either in its language or in its object, which imports that the merchant charterer was to have the possession of the ship. The whole instrument contains matter of contract and covenant only." Lord Chief Justice Abbott then reviews the contract, in which is a special clause providing that the freighter may appoint a supercargo, to take upon him the authority of the commander in the stowage of the cargo; but not to interfere with the duties of the commander in any other manner, without his leave; and, after many observations, all tending to show that it was not intended that the freighter should have possession of the ship, he confirms the case of Tate v. Meek.

The case of Bohtlingk v. Inglis (a) is not immaterial in the present enquiry. There it was held, that where a ship was chartered for a voyage to Russia, and to bring goods home from the charterer's correspondent

(a) 3 East, 38. Ibid, 396.

there,

there, who accordingly shipped the goods on account,
and at the risk of the freighter, and sent him the
invoices and bills of lading of the cargo, the delivery of
the goods on board such chartered ship did not preclude
the right of the consignor to stop the goods while in
transitu on board the same to the vendee, in case of
his insolvency in the mean time before actual delivery,
any more than if they had been delivered on board a
general ship for the same purpose. Now, why was it
so held? Because the owner had not parted by such
charter with the controul of his ship. If he had, a
delivery on board such a ship to the use of the vendee
of the goods and charterer of the ship, the owner, pro
hác vice, would, as was contended, have prevented the
owner of the goods from exercising his right to stop in
transitu. But Mr. Justice Lawrence, in delivering the
opinion of the Court, says that the vendee had no
controul over the ship, and had merely contracted with
the master, to employ his ship in fetching goods for
him. I may, perhaps, be supposed to run in my
opinion counter to Fowler v. Kymer (a), quoted by Mr.
Justice Lawrence. But that case states the
very distinc-
tion on which I form my opinion; for, in that case,
there was a letting of the ship for a term of years to the
bankrupts, they finding stock and provisions for the
ship, and paying the master, during which time they were
to have the entire disposition of the ship, and the complete
controul over her.

It is supposed, that the decision which I, for one, purpose to make, is in direct contradiction to the opinion of this Court in Hutton v. Bragg, in which I myself concurred. I certainly did concur in the judgment there given; but I hope, if I discover that I have at any

(a) 3 East, 396.

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time erred in judgment, I, in common with my Lord
Chief Justice, who has so well expressed himself on the
point, and my Brothers, shall have the manliness with
cheerfulness to avow my error.
my conscience will be ill at ease.

I am sure, if I do not,
Whether my present

opinion is counter to that, it is not, therefore, my present business to enquire; but of this I am quite satisfied, that the opinion there delivered by Lord Chief Justice Gibbs, Lord Chief Justice Dallas, and myself, proceeded upon the notion that there was an entire letting and parting with the possession of the ship; and then it falls within the principle of the rule which I stated in the outset. That this was so in all our opinions is clear from our decision in Tate v. Meek so shortly afterwards, when the case of Hutton v. Bragg was fully under our consideration; and this struck the mind of the Lord Chief Justice Abbott in giving judgment in Saville v. Campion, for his lordship says, "The case of Hutton v. Bragg was in terms of letting to hire." Whether that case was well or ill decided is not for me to say, (properly, I am sure it was intended to be) but, upon this case, I am satisfied (though not so perfectly as I should be, if I had the good fortune to concur with his lordship) that the Plaintiffs are not entitled to

recover.

BURROUGH J. Before I give my opinion on the main point in this case, I have some observations to make on some other matters which have arisen in the course of the argument.

First, I think, that if a lien ever existed, it has not been divested by means of any thing in the charter-party coupled with the acts stated in the case. The stipulated freight was to be paid by bills, one quarter of it by a good bill or bills, on a right delivery of the cargo at New

foundland,

foundland, at sixty days' sight: The remainder by a good bill or bills at two months from the day of the ship's report inward, in the port of London.

1815.

The first bills were given, but dishonored by the bankrupt when they became due, on the 26th of August, The second set of bills were never given, nor were any tendered. As to this, the first act, the giving or tendering these bills, was to be done by the freighter or his agents. This, therefore, does not affect the Defendant's case.

In the next place, the lien has not, I think, been divested, by a delivery of the cargo; for, on the day the ship was reported at the Custom-house, and, consequently, before any delivery, the Defendant gave notice to the directors of the West India docks, not to deliver the goods without the orders of Messrs. Harrison and Betts, who, afterwards, under the Defendant's employment, received the freight from the consignees of the goods.

It has been urged, that the person who put the goods on board at Demarara, (on which this freight arose) were strangers to the charter-party. In answer to this, I am of opinion, that they cannot be so considered: for, the goods to be shipped on board at Demarara, were by the charter to be such, as the freighter or his agents should send. The shipper of these goods, therefore, must be taken to have acted under the authority of the freighter, and must be deemed to have notice of the charter-party and its contents.

As to the main point, it appears to me that, in former cases of this kind, too much stress has been laid on a supposed analogy between the words "hath granted, and to freight let," and "hath taken to freight," in charter-parties; and the words, " hath granted and to farm let, &c." in leases of land and houses.

When

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