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General Average. Possessory Lien Over the Cargo

NYPE. Clause 23. Lien


Law and Sea.
Time Charterparty. Liens.

A lien is a right in one man to retain that which is in his possession belonging to another, till certain demands of him the person in posssession are satisfied.
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Lien
Last updated: 06-Oct-2014

Per Grose J in Hammonds and Another, Executors of Blight, against Barclay and Others, Assignees of Fentham a Bankrupt [1802] EngR 107; (1802) 2 East 227 at p.235:

A lien is a right in one man to retain that which is in his possession belonging to another, till certain demands of him the person in posssession are satisfied.

Per Lord Campbell CJ in Somes v British Empire Shipping Co (1858) El. Bl. & El. 353(QB):

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.

By Greer J in Molthes Rederi Akt v Ellerman’s Wilson Line Ltd [1927] 1 KB 710 at 716:

A lien is a claim by a person in possession of the property of another who has the right to keep possession until the owner pays the debt in respect of which the possessor is entitled to the lien. It seems a misuse of words to say that a shipowner has a lien on the debt due to him under the contract made with him by the bill of lading. The lien clause in the charterparty is needed to give the owner a lien in those cases where the sub-freight is due to the charterer and not to the owner, as where goods are carried on a sub-charter without any bill of lading. In such a case the owner could only become entitled to the sub-freight by virtue of the lien clause, and it would be too late to exercise this lien after the debt had been paid to and received by the charterer or through his agent.

Per Mr. Justice Donaldson in The Mihalios Xilas [1978] 2 Lloyd’s Rep. 186, at p. 191:

…I do not think that a shipowner can usually be said to be exercising a lien on cargo simply by refusing to carry it further. The essence of the exercise of a lien is the denial of possession of the cargo to someone who wants it. No one wanted the cargo in Augusta and the owners were not denying possession of it to anyone.

Mocatta J in The Chrysovalandou Dyo [1981] 1 Lloyd’s Rep. 159 said at p.164:

A lien operates as a defence available to one in possession of a claimant’s goods who is entitled at common law or by contract to retain possession until he is paid what he is owed.


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