“With regard to the question of lien, the law is stated in Carver on Carriage by Sea, 7th Ed., p. 605, Sect. 442:- “The shipowner has a lien upon the goods for general average contributions due in respect of them, whether the claim be on his own behalf or on behalf of other cargo-owners. The matter is dealt with in Art. 117 of Scrutton on Charterparties and Bills of Lading, in these terms:- “Where a general average loss has occurred on a voyage, the shipowner or master has the right to retain the cargo until he is paid or tendered the amount due on it for general average: he is under a duty to persons entitled to a general average contribution from the cargo so to do, and is liable to an action if he omits to do so.”
“The lien attaches to the preserved cargo at the time when the sacrifice is made or the liability to the expenditure incurred. The lien is a possessory lien and it is the duty of the master of the vessel to exercise the lien at the time of discharge of the preserved cargo in such a way as will provide equivalent security for contributions towards general average sacrifices made or expenditure incurred not only by those concerned in the ship but also by those concerned in cargo in respect of which a net general average loss has been sustained. The lien, being a possessory one and not a maritime lien, is exercisable only against the consignee, but it is exercisable whether or not the consignee was owner of the consignment at the time of the general average sacrifice or expenditure that gave rise to the lien: a fact of which the shipowner may well be unaware. At the time of discharge the sum for which the lien is security (save in the simplest cases, which do not include that of a general ship) is unquantifiable until after there has been an average adjustment. Indeed in the case of some consignees of cargo that has been preserved in part only or damaged in consequence of a general average loss, so far from being liable to a net general average contribution they may eventually turn out to be entitled to a net payment in general average. … In practice what happens is what happened in the instant case; the master, acting on behalf of the shipowner and of any persons interested in cargo who will be found on the adjustment to be entitled to a net general average payment, releases the preserved cargo to the consignees upon the execution by each consignee of an average bond in one or other of Lloyd's standard forms accompanied, in the comparatively rare cases of cargo that is uninsured or underinsured, by a deposit in a bank in joint names of money as security or, more usually, by a letter of guarantee from the insurer of the cargo.”
“6 – Although Owners have no power to compel MMO to provide GA security, their requests for GA security from MMO in the form of a bond supported by an insurer’s guarantee or cash deposit were reasonable in principle, form, amount and circumstance. ” “7 – MMO’s failure to discharge the lien by way of GA security or otherwise in respect of the entire cargo was a breach of its obligation to take delivery pursuant to the contracts of carriage. MMO’s refusal to provide GA security other than a guarantee for 9% of the cargo was unreasonable, incomprehensible and irrational. ” “8 - The actions taken by Owners to preserve their lien were reasonable, including taking the cargo to Hamina and placing it in secure storage and not releasing the 98 coils covered by an insurer’s GA guarantee and not releasing a value related proportion of the balance of the Cargo. ” “9 - MMO’s conduct subsequent to the placing of the Cargo in store in Hamina has manifested not merely an abject failure to mitigate any losses they might be suffering as a consequence of being kept from the Cargo but also, inexplicably, an apparent intention to do all that was possible to avoid any form of negotiated outcome and to delay ultimate resolution.”
“In consideration of the delivery in due course of the goods specified to the Consignees thereof without collection of a deposit. . . .”
“The onus therefore is cast upon the Defendants to shew that, by the general law of England, an artificer who, exercising his right of lien, detains a chattel, in making or repairing which he has expended his labour or materials, has a claim against the owner for taking care of the chattel while it is so detained. But the claim appears to be quite novel; and on principle there is great difficulty in supporting it either ex contractu or ex delicto. The owner of the chattel can hardly be supposed to have promised to pay for the keeping of it while, against his will, he is deprived of the use of it; and there seems no consideration for such a promise. Then the chattel can hardly be supposed to be wrongfully left in the possession of the artificer, when the owner has been prevented by the artificer from taking possession of it himself. … The right of detaining goods on which there is a lien is a remedy to the party aggrieved which is to be enforced by his own act; and, where such a remedy is permitted, the common law does not seem generally to give him the costs of enforcing it. Although the lord of a manor be entitled to amends for the keep of a horse which he has seized as an astray (Henly v Walsh (2 Salk. 686)), the distrainor of goods which have been replevied cannot claim any lien upon them; Bradyll v Ball (1Bro. C.C. 427). So, where a horse was distrained to compel an appearance in a hundred court, it was held that, after appearance, the plaintiff could not justify detaining the horse for his keep (Bul.N.P. 45). If cattle are distrained damage feasant, and impounded in a pound overt, the owner of the cattle must feed them; if in a pound covert or close, “the cattle are to be sustained with meat and drink at the peril at him that distraineth, and he shall not have any satisfaction therefore” (Co. Litt. 47b.). For these reasons, on the questions submitted to us, we give judgment for the plaintiffs”
“I think the analogy between a lien and distress at common law very strong; and the authorities are decisive that at common law the distrainor had no compensation for the costs of impounding the chattel or of feeding it if he did.”
“Where goods are delivered to have any work done upon them… the person doing those repairs has a lien upon the goods for the amount of the sum charged; but that is confined to a lien for the amount of that sum, and the party doing the repairs cannot add to that lien a charge for the use of his premises while keeping the goods (in this case the ship) not for the benefit of the ship owner, but for his own. It must be taken to be now decided, that at common law there is no right to such a demand.”
“But the short question is only this, whether Messrs Somes retaining the ship, not for the benefit for the owners of the ship, but for their own benefit, in order the better to enforce the payment of their demand, could then say “we will add our demand for the use of the dock during that time to our lien for the repairs”
“My Lords, I am of entirely the same opinion. Two principal points have been made in this case. The first is, whether if a person, who has a lien upon any chattel, chooses to keep it for the purpose of enforcing his lien, he can make any claim against the proprietor of that chattel for so keeping it. No authority can be found affirming such a proposition, and I am clearly of the opinion that no person has, by law, a right to add to his lien upon a chattel a charge for keeping it till the debt is paid; that is, in truth, a charge for keeping it for his own benefit, not for the benefit of the person whose chattel is in his possession. That was the opinion of all the Judges of the Courts below, and I think their opinion is perfectly right.”
“[The cargo owner sought] … to avail itself of the principle, which it contended was laid down by this House in Somes v Directors of British Empire Shipping Co (1860) 8 H.L. Cas.338, to the effect that where a person entitled to a possessory lien over goods incurs expenses in maintaining possession of them in the exercise of his right of lien and preserving in the meantime their value as security for the owner’s indebtedness to him, he cannot recover such expenses from the owner. That case is, in my view, authority for the proposition that, where a lienee remains in possession of goods in the exercise of his right of lien only (ie, one who has refused a demand by the lienor for redelivery of the goods with which, in the absence of the lien, the lienee would be under a legal obligation to comply), he cannot recover from the lienor loss or expenses incurred by him exclusively for his own benefit in maintaining his security as lienee and from which the lienor derives no benefit as owner of the goods. I would not seek to suggest that this authority has become outdated for the proposition that was then laid down; but I would deny that it is authority for anything more and, in particular, for the further proposition that expenditure necessary for the preservation of the goods from deterioration from which the owner does derive benefit is irrecoverable, where such expenditure is made by bailee at a time before possession of the goods has been demanded of him by the owner and his only right to retain lawful possession of them thereafter rests upon his own election to continue in possession, after such demand, in the exercise of the rights of lienee.”
“The owners are on stronger ground in relation to expenses since The Winson is authority that, in some circumstances, some such expenses can be recovered. I would, however, draw a distinction between expenses incurred during the first period when the parties were discussing whether to make a new contract at market rate or not. During that period the vessel was idle for the benefit of both parties in case a further agreement could be made. Expenses incurred during that time were not expenses incurred in taking care of the cargo let alone in preserving the cargo (which was the position in The Winson: see pages 960E to F and 961F per Lord Diplock). Once the decision to discharge was finally made, that discharge required cooperation between the owners and the charterers. Although the true position was that the owners were requiring the charterers to discharge the cargo and the charterers were complying with that requirement, the nature of the discharge meant that the owners did have to use bunkers in the course of that cooperative endeavour. The expenses of those bunkers were expenses incurred in taking care of the cargo during actual cargo operations. The Winson is authority for the proposition that the cost of those bunkers can be recovered from charterers.”
“23 Arrived Ship The vessel is deemed to be an arrived ship only after it is in free pratique and customs cleared after the shippers/receivers have received the notice of readiness to load/discharge from the Master … The notice of readiness may only be tendered in writing after ship’s arrival at the designated berth whether customs cleared or not, whether in free pratique or not within regular working hours … … 25 Load/Discharge, Tally … The cargo to be loaded and stowed by shippers’ stevedores free of risk and expense to the vessel, under deck only, on customary quick despatch att (sic) all ends with no demurrage/no despatch, in the ship’s main cargo compartments and discharge free of risk and expense to the vessel on customary quick despatch att (sic) all ends with no demurrage/no despatch. … 30 Bill of Lading … In case originals BS/L are not available on vsl’s arrival in discharging port owners/master to discharge the cargo immediately upon arrival into custody of the port and the cargo to be released to receivers against presentation of original BS/L or charterers’ letter of indemnity in shipowners’ P&I wording. … 32 Discharge Port Notices Owners/Master to tender to Chrs 10/8/6/4 days approximate and 3/2/1 day(s) definite notice of arrival at load/discharge port to enable charterers/shippers/receivers to get cargo/documents ready accordingly. … 40 Detention Money Detention rate of USD8500 PDPR all ends to apply in case: Ldports : A) cargo is not ready for shipment Detention rate of USD8500 PDPR all ends to apply in case: Ldports : A) cargo is not ready for shipment B) customers/export documents are not in order Disport : A) customs/import documents are not in order Detention is not applicable in case of port or berth congestion Shipowners grant charterers 24 hours grace before detention at both ends Detention, if any, to be paid within 20 days after receiving all supporting documents and detention amount mutually agreed”
“In respect of the demurrage at Freemantle the ship owners, in my opinion, were, at the time they made this claim, entitled to exercise their lien; nor did they destroy that right by putting forward a claim larger than was justified; for in putting it forward I do not think they seriously meant that they would not give up the remainder of the cargo at all, until the whole of that amount was paid to them. They only intended to claim what was really due; and I do not think that their conduct was such as to relieve the defendants from the obligation to tender such a sum as would be in fact sufficient to discharge the lien. Then, if the plaintiffs were acting rightly in exercising their lien, can they claim damages for detention of the ship during its exercise? This depends, in my opinion, on whether they exercised their lien in a reasonable manner. ”
“I come to the conclusion, therefore, that the plaintiffs were disposed to act reasonably, and that they did adopt a reasonable course in keeping the cargo on board. There was every likelihood of the dispute being settled in a few days, and it would have been unreasonable, under the circumstances, to have landed the cargo and have incurred warehouse rent. The plaintiffs are, therefore, entitled to damages for four days’ detention.”
“The charterers’ submission predicates that there has been a refusal by the shipowners to discharge in accordance with the charter-party. The right to exercise a lien is given expressly by the charter-party itself. It can only operate as a qualification of the undertaking to give discharge. By exercising the right, the shipowners in my judgment do not refuse to give discharge in accordance with their undertaking. Rather, they rely, as they are entitled to do when freight or demurrage is due and unpaid, upon the qualification in their favour of what would otherwise be their obligation, which in the circumstances frees them from it. Therefore, in my judgment, the case is not one where the shipowners have refused to perform their undertaking to give discharge, because the obligation itself is qualified, nor where they have done anything equivalent to removing the ship from the discharging berth.”
“In Lyle Shipping Co Ltd v Cardiff Corporation (1899) 5 Com. Cas.87, the second question argued was whether the shipowners could recover damages for detention, not demurrage, during the period when they exercised their lien for loading port demurrage. The charterers’ response was that the exercise of the lien was unreasonable because it was for an excessive amount (5 Com. Cas at page 96) and that the ship owners could not recover damages caused solely by their own act (page 97). They did not contend that the shipowners could not recover even if the exercise of the lien was reasonable and lawful. Since the charterers’ case was argued by Carver QC and Scrutton, this omission was one of double, or perhaps twin, Homeric proportions. (emphasis in original) ……….. The judgment does therefore support the view that the shipowner can recover damages for detention of the ship during a period where delay was caused by his own, reasonable, exercise of a lien, at least where the charterer’s obligation is to discharge with customary despatch, as it was in that case.”
“This is a claim for damages; a person cannot recover damages which have been caused by his own acts: Möller v Jecks (1865) 19 C.B.N.S. 332. A still nearer authority is an American case, “Ten thousand and eighty-two Oak-Ties” [1898] 87 Fed. Rep.935. The question is not whether the plaintiffs were within their rights in exercising their lien, but whether they can recover damages caused solely by its exercise.”
“The judgment does therefore support the view that the shipowner can recover damages for detention of the ship during a period where delay was caused by his own, reasonable, exercise of a lien, at least where the charterer’s obligation is to discharge with customary despatch, as it was in that case.”