Northern Times.
Liverpool, Merseyside, England, 1859-03-18 00:00:00

when - called upon.

superior

peculiarities of t

se 'into their iminediate consideratio❑

In answer to Mr. O'llagun

His Lordship said he intended taking up the Placeni

The Grand Jury— returned true bills, at four o'clock,
against Murty Monaghan, William O'Shea, Denis O'Sul-
livan, -Mortimer Downing, Daniel M'Carthy, Jeremiat
Donavan, Rossa and Patrick Downing, for treason aric
felony, that being the charge laid against them in the
indictment.

LAW
JUDICIAL COMMITT.

INTELLIGENCE.
EE or THE PRIVY COUNCIL,

MARCH 16

?resent -- Lord Kingsdown, Lord Justice Knight Mu(
Sir B. Ryan, Sir L. Peel, and Sir Cresswell Cresswell.)

KIRCHNER AND OTHERS V. THE VENUS,

IMPORTANT

DECISION ON MERCANTILE LAW

Lord Kingsdown delivered the judgment of their lordships
in this case, which is one of considerable importance to the
public interest, as affecting the question of general mercan-
tile law. The judgment being most elaborate, we give a
resume embracing the more saliciat points, and which have

a general effect.

, His Lordship observed that the appellants were British
merchants, carrying On business at Sydney, in NeW South
Wales ; and the respondent is the master of the. sailing
Ship:Countess of Elgin. In Feliruary 1854, seven parcels
of goods were shipped at Liverpool, on board this ship, by
John W. Faircloagh and Co., upon all of which the
respondent gave bills of, lading in the margin of the
bills the sums due for freight and average were Stated,
and -the following words were stamped in print :

" Freight payable 'ln Liverpool, to .-Eneas Macdonnell, one
month after sailing, vessel lost or not." One of these bills,
that to which their lordships' attention was confined, had
passed iuto the hands of the appellants, as endorsees, for
value before the ship arrived at Sydney, add on her arrival
in August, 1854, they applied to the respondent for the de-
livery of the goods. The respondent learned that the freight
agreed upon had not been paid, and he accordingly refused
to deliver up the goods without payment. The appellants
thereupon brought an action against him in the Supreme
Court of New South Wales for the wrongful conversion ; to
which the defendant pleaded, " that he claimed to hold the
goods as a lien and security for the sum due to him for the
freight and carriage of the goods by him as a common
carrier from England to Sydney, for the plaintiffs, and
which sum, although demanded, had not been paid." At
the trial evidence taken by commission was given, "that
by the usage or custom of merchants, the shipowner,
iu case of non-payment of freight, does not lose his
lien, security, or claim upon the goods upon the arrival
of the ship at her port of discharge, notwithstanding that by
the terms'of the bill of lading freight is stated to be made
payable in England." The Chief Justice told the jury that
if they believed such aeusage as that relied on prevailed
generally in the town of Liverpool, their verdict should be
for the defendant, and if not, for the plaintiffs. The jury
found for the plaintiffs. An application was made for a new
trial, on the ground that inasmuch as by the bills of lading
the goods were deliverable to the shipper's orders or assig-
nees, he or they paying freight ; such freight was in point of
law payable by the plaintiffs as consignees and endorsees,
either in Liverpool, or in default thereof in Sydney, before
they could demand delivery of the goods. The court granted
a new trial, 'when the jury found a-Nerdict for the defendant.
An application was made for a new trial, which was refused,

the court expressing on opinion " that irrespective of any
question of usage no lien for freight exists in cases of
this kind ; but, secondly, that a custom or usage in
favour of such a lien existing in the port of shipment where
the contract was made will (the stipulated freight or sum so
called not being paid) confer the right of lien; on these
grounds the court refused the' plaintiff's motion, and frem
that order the present appeal was brought. The court below
had referred the case of "Kirchner v. How," which was
confirmed by the Privy Council on appeal. If that decision
were correct, the only question now for consideration was,
whether the court below had properly found that the rights
of the parties in this case were altered by the effect of the
custom alleged to exist in Liverpool. In the course of the
argument their lordship's attention had been called to two
" Gilkinson and Middleton" in the Common Pleas,

Neish and Graham" in the Queen's Bench, in which
it was said in a state of circumstances' not distin-
guishable in principle from "How and Kirchner" those
courts had arrived at a conclusion different from that of
the Judicial Committee. His lordship then proceeded to -lay
down the principle of law. The
,right of lien may arise' either
by implication of law or by express contract between the
parties. Freight is the reward payable to the carrier for the
safe carriage and delivery of the goods; itis payable only on
the safe carriage and delivery. If the goods are lost on the
voyage nothing is payable. On the other hand, if the goods
are safely carried, the master of the ship has a lien on the
goods for the amount of freight due for such carriage, and
cannot be compelled to part with the goods till such freight
be paid. These incidents to freight exist by rule of law,
without reference to any bill of lading or other written con-
tract between the parties. Nit a sum of money payable
before the arrival of the ship at.her port of discharge, and
payable by the shippers of the goods at the port of shipment,
does not require the legal character of freight, because it is
described under the name of a bill of lading., nor does it
acquire the legal incidents of freight. It is in effeCt money
to be paid for taking the goods on board and undertaking
to carry, and not for carrying them. Having alluded to the
inconveniences of establishing a lien, in proof of which was
adduced the case of a master of a vessel who would
not not on her arrival know whether the freight
had been paid, and would be uncertain "whether to
deliver up • the goods, his lordship proceeded to ex-
amine the cases previously .alluded to, which the Courts of
Queen's Bench and Common Pleas had decided. Their
lordships having again carefully examined the law they had
laid down in "How and Kirchner " with the most earnest
desire to correct their view of it if erroneous, were still of

poitanco to the

interest and

mercantile law should be determined upon broad principles
and not turn upon nice diAinetions. Their lordships therefore
preferred to rest their decision on the ground that where

parties, instead of trusting to the general rule of law with
respect to freight, had made a special contract for them-
selves for a payment which was not freight, it must depend

;ems of that

contrac

whet'

al did or did

not exist; and that When the contract gave no lien, , the
law would not supply one by
_implication. For these

reasons their lordships were of Opinioli that unless the con-
tract in this case could be extended by the Usage of the

so as to has