Raymond v. Tyson/Dissent Campbell
Mr. Justice CAMPBELL.

I dissent from the opinion of the court; and, as the question is one of importance, I think it proper to record the reasons for the dissent.

The parties agree, that the contract of affreightment, between the libellant and Howard and Son, did not displace the owner from the control and possession of the ship for any portion of the term of its duration.

When the master arrived at San Francisco, with the vessel, he found the first instalment of the freight money due and unpaid, and that he was in the lawful possession of a cargo, shipped according to the charter-party, for the voyage which was then completed. The coexistence of such a debt, with the lawful possession of such property, form the conditions upon which a lien depends; and the owners claim to detain the as a security for the debt, and which must be allowed, unless he has defeated it by some obligation indicative of its 'determinate abandonment.' The claimant supposes that the evidence of such a contract exists in the charter-party.

Holt, in his work on shipping, (part 3, ch. 6, § 63,) upon a review of the cases, concludes, 'that the language of a charter-party must be very strong, indeed, to exclude, under any circumstances, the lien of the owner. This right, being both legal and equitable, the courts are naturally disposed to favor it, and not to impair or diminish its exercise, except under circumstances where it would be unreasonable to enforce it, and contrary to the intention of the parties.' And further, 'that the owner's right of lien is so far favored in law, that whilst he keeps possession, by his master and crew, it can only be excluded by the most express and absolute terms, or by a necessary implication from the contract.' And so are adjudged cases. Saville v. Campion, 3 Bing. N. C. 17; Gladstanes v. Allen, 12 C. B. R. 202; 1 Sumn. 551; 2 H. 597. There is no express stipulation in this contract to defeat the lien of the libellant, and the case of the claimant, therefore, depends upon the discovery of an article wholly incompatible with its existence.

Lord Tenterden, discussing clauses of a charter-party that affect a lien, says: 'the right may exist, if it appear from the instrument in any way that the payment is to be made in cash or bills before, or at, the delivery of the cargo, or even if it does not appear that the delivery of the cargo is to precede such payment;' and 'that when the payment is to be made by bills, the right of retention continues till they are given, and would, it is conceived, revive, in case of their dishonor, before the shipowner has parted with the goods.' And so are adjudged cases. Abb. Ship. 299; 1 Dans and Ll. 193; 1 Maule and S. 535; Cross on Lien, and cases cited, 311. The circumstances that appear in the record seem to bring this case fully within the operation of these principles. It is not shown that the voyage from Cardiff to Panama 'for orders,' and the voyage from Panama to San Francisco pursuant to orders, were otherwise than in strict accordance with the calculations of the parties. The cargo taken at Cardiff, by contract, did not reach San Francisco until after the first instalment for the use of the vessel, upon these voyages, became due, and advices from New York had been received at San Francisco of the default of the shipper.

That a right should arise for the detention of the cargo, until the freight was paid, would seem to follow, from the principles before stated.

But it is said, that, there having been no express reservation of a lien, and the owner having consented to receive his money in New York, by instalments, present conditions inconsistent with the existence of a lien.

The reply is, that the commercial law does not exact a stipulation to support the lien of the ship-owner, but requires circumstances expressive of 'a determinate abandonment,' as the condition of its removal; no deduction can, therefore, be legitimately drawn from the silence of the contract. And the requisitions for payment in New York, by instalments, show that the owner had some confidence in the personal responsibility of Howard and Son, and did not rely exclusively upon the profits of the adventure, or the security of the cargo; but they cannot fairly be held to establish any renunciation or determinate abandonment of the remedies the law affords, in case of their default. And this evidence of a waiver of the lien, imperfect as it is, is still more impaired by the facts, that though the amount of the freight did not depend upon the lading of the vessel, but was payable in any event; and though a full cargo for so long a voyage could not fail to injure the vessel, nevertheless the owners stipulated that a 'full cargo of lawful merchandise' should 'be provided,' and bills of lading signed, without prejudice to the charter.

I admit that, after the completion of her first voyage, and after the arrival of the vessel at San Francisco, and she had then entered upon the coasting trade between ports on the Pacific, cases may be put where a cargo might not be subject to a lien; and others, where the libellant would find embarrassment in enforcing one. But this case involves no difficulty. And to allow the lien, will be, in my opinion, a consistent application of familiar and well-settled principles of commercial law.

I am authorized to say, Mr. Justice GRIER concurs in this opinion.