# Raymond v. Tyson

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## Dissenting Opinion

    Campbell
United States Supreme Court
58 U.S. 53
Raymond v. Tyson
THIS was an appeal from the district court of the United States for the northern district of California. The libel was filed in the district court, held by Mr. Ogden Hoffman, Jr., who decreed that the libellant, Tyson, had a lien upon the cargo of coal, for the sum of twelve thousand dollars. The libellant was part owner, and agent, and ship's husband, of the ship Orphan, and resided in New York. The claimant appealed to the circuit court, which was also held by Mr. Ogden Hoffman, Jr., where the decree of the district court was affirmed. The claimant then appealed to this court.
The nature of the case is fully stated in the opinion of the court.
It was argued by Mr. Lord, for the appellant, and Mr. Cutting, for the appellee.
The points made by the respective counsel were the following: -
Mr. Lord, for appellant.
The appellant and claimant conceives the decree to be erroneous, and that it should be reversed, on the following grounds:
1. That by the general character of the charter, the ship was hired to J. Howard and Son, to be employed in voyages, to and fro, in the Pacific Ocean. That the deliveries of cargoes there, were to be at ports there; while the payments of the monthly charter money were to be made in New York. And it could not be contemplated, that the deliveries of cargoes should be delayed to wait intelligence from the Atlantic ports, whether the payment of the monthly charter, at the end of each half year, had been made at the day it was due, or afterwards.
2. That the coasting voyages, from port to port in the Pacific, which might be seeking voyages, could not be expected to be carried on, if the cargoes were to be subjected to the lien of six months' charter money, without the possibility of knowing, in the Pacific ports, whether that freight had not been paid at New York.
3. A lien or detention of cargo, under such uncertainty of facts, to transpire at a distant place, would be dangerous both to ship-owner and charterer and freighter. The ship-owner and master might be exposed to heavy damages for withholding the property, when the charter money may have been paid at New York without his knowledge. The owners of cargoes, and especially their consignees, could not know whether they were entitled to them or not.
4. The provision as to payment of freight, up to the time of news of the loss of the ship, rendered the amount of freight payable at New York always uncertain, at the day it was reserved, or at any time, until news at New York of the ship being in safety at the end of each six months.
5. No express terms of hypothecating the cargoes, or subjecting them to hen, are found in the charter-party; the omission of which usual provision in charters of American ships, confirms the inference from the general character of the instrument, that it was made on the credit of the charterers, without the exaction of any lien. The Volunteer, 1 Sumn. R. 551; 3 Kent Com. *220.
6. The charter-party binding the ship-owner to deliver the cargoes, without any reference to payment of charter money, supports the same construction. P. 6.
7. The reservation of payment, in such mode and under such circumstances as are above referred to, is inconsistent with the implication of any lien; and the absence of any express creation of any lien, excludes its existence in this case. 2 Kent's Com. *635, *636, 639; Chase v. Westmore, 5 M. and Selw. 180; Crawshay v. Homfray, 4 Barn. and Ald. 50; Pickman v. Woods, 6 Pick. R. 248; Alsager v. St. Catharine Dock Co. 14 Mees. and W. 799; Belcher v. Capper, 4 Man. and Gr. 502.
8. The sentence of the court below should be reversed, and a decree directed for the damages of the claimants, to be ascertained by a proper reference.
Mr. Cutting, for the appellee, made the following points:--
1. Under the terms of the charter-party, the libellant continued to be owner, and in possession of the ship, during the voyages contemplated by the parties.
He was to employ the master, victual and man her, and keep her in repair, during the whole term, at his own expense. He agreed to freight the whole ship, or sufficient room for the cargo specified, expressly reserving the deck, cabin, and necessary room for the crew; the charterers contracted for the privilege of putting in coal to ballast the ship from London to Cardiff, in case they desired so to do. The owner stipulated to receive and deliver such merchandise as the charterers should provide.
There are no words of demise, or any clear letting of the ship; and, taking all the stipulations together, the result is, that the contract is a mere covenant for the transportation of merchandise, and the performance of the service stipulated for. Possession of the ship continued in the owner, and he was to manage, control, and navigate her. The master was his agent, and not the agent of the charterer. The libellant remained subject to all the responsibilities and obligations of ownership, and was answerable to the charterers for the acts and conduct of the master and mariners. Certain Logs of Mahogany, 2 Sumn. R. 589; Marcardier v. Chesapeake Ins. Co. 8 Cranch, 49; Palmer v. Gracie, 4 Wash. C. C. R. 110-123; S.C.. 8 Wheat. 605; McIntyre v. Bowne, 1 Johns. R. 229; Clarkson v. Edes, 4 Cow. R. 470; Holmes v. Pavenstedt, 5 Sandf. R. 97; 3 Kent's Com. 138; 1 Parsons on Cont. 657.
If, upon the whole instrument, it be doubtful what was intended, the general owner continues such during the term; his rights can only be displaced by a clear and determinate transfer of them. Logs of Mahogany, 2 Sumn. R. 589.
2. The ship-owner has a lien upon the cargo, for the freight of its transportation, unless it has been waived or abandoned by agreement. Gracie v. Palmer, 8 Wheat. 605, 635; S.C.. 4 Wash. C. C. R. 110-123; 4 Cow. R. 481, per Savage, C. J.; The Volunteer, 1 Sumn. R. 551; Ruggles v. Bucknor, 1 Paine's R. 358; Drinkwater v. Brig Spartan, 1 Ware's R. 156; Holmes v. Pavenstadt, 5 Sandf. R. 97; Small v. Moates, 9 Bing. R. 574; Gladstanes v. Allen, 12 Com. Bench. R. 202, 22 Eng. Law and Eq. R. 382; Angel on Car. §§ 385, 386; Abbott on Ship. 287, 288-299.
3. The right of lien upon the cargo of the charterers, for charter money due and in arrears, has not been waived or abandoned by the respondent.
The stipulation that the charter money should be paid in New York-semiannually, is not a waiver of, nor is it incompatible with, the right of lien for freight money due and unpaid. Saville v. Campion, 2 Barn. and Ald. 503; The Volunteer, 1 Sumn. R. 371; Logs of Mahogany, 2 Sumn. R. 589; Saville v. Campion, 3 Bing. N. C. 17.
It was not even an agreement to give credit for the earnings of the ship. According to the ordinary length of a voyage from London or Cardiff to Panama or California, the time for the payment of the first six months' service, would have matured before the ship had reached her port of delivery. The actual time was eight months and over. (Page 20.)
The charterers agreed to furnish the master, from time to time, with any funds he might require for the ship's ordinary expenses, which were to be deducted out of the semiannual instalments, if advices thereof were received. Upon the return of the vessel to New York or Great Britain, all moneys due at that time were to be paid forthwith, on demand.
It had no other effect than to fix the periods of payment, and to suspend the right to enforce a lien upon the cargo, until default of payment. New v. Swain, 1 Dan. and Lloyd, 193.
The length of the term of employment, which was to be at least fifteen months, with the privilege to the charterers of extending it nine months, and the large amount at risk, preclude the idea of an agreement to waive or abandon the right of lien, in the event of default in payment.
Default was made in the payment of the freight money due at the end of the six months; and the ship-owner was thereupon at liberty to proceed and enforce his lien. New v. Swain, 1 Danson & Lloyd, Merc. Cases, 193; Dixon v. Yates, 2 Nev. and Man. R. 177; Saville v. Campion, 2 B. & Al. 503, 513; Abbott on Ship. 289.
There are no other provisions in the charter-party that operate as a waiver or release of the right of lien.
The covenant, by the charterers, that they will provide a full cargo, strongly implies that the security of a lien upon it was contemplated and reserved.
The bill of lading delivered by the master, and accepted by the charterers, shows that both the parties understood that the delivery of the cargo was upon the condition of payment of freight, as per charter-party; if it were unpaid in New York, delivery could not be compelled by the consignee, without satisfying the amount due. Small v. Moates, 9 Bing. 574. Gladstanes v. Allen, 12 Com. Bench, 202.
4. A lien for freight is favored in the law, and ought not to be displaced without a clear and determinate abandonment of it.
It is not excluded in the present case by any express or absolute terms, or by unavoidable implication, or by any provisions repugnant to, or inconsistent with, the right to enforce it.
The burden is on the appellant to establish a waiver or extinguishment of the right.
5. The decree of the court below ought to be affirmed, with costs.
Mr. Justice WAYNE delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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