
    Henry A. Holmes, Respondent, v. Edmund Pavenstedt and Freeland A. Schumacher, Appellants.
    The owners of a vessel, chartered for a particular voyage, if by the terms of the charter party they appoint the master and control the furnishing and navigation'of the vessel, continue in possession as owners throughout the voyage.
    In all such cases they have a lien for the freight stipulated to be paid by the charter party, upon all merchandise transported on the vessel during the voyage, to the extent of the freight on such merchandise, payable by the shippers.
    
      Hence, the payment of such freight by the shippers or their consignees, to the master or his owner, in discharge of the lien of the owners, is a full defence to an action for the recovery of freight brought against them by the charterer.
    Upon this ground judgment in favor of the plaintiff at special term reversed, and judgment entered for defendants.
    (Before Sandford, Mason, and Campbell, J. J.)
    May 5;
    June 21, 1851;
    This was an action for the recovery of freight on a cargo of logwood, brought in the brig Mary and Jane, from Laguna to New York, and there delivered to the defendants as consignees. The plaintiff claimed to be entitled to the freight as charterer, and therefore owner, of the vessel for the voyage.
    The defence was, that the defendants had paid all the freight due under the bill of lading to the agents of the owners of the brig ; to whom a much larger sum was due from the plaintiff upon the charter party, and that they were compelled to make .this payment in order- to obtain possession of the cargo, the captain refusing to deliver it upon any other terms.
    The cause was tried before the chief justice and a jury, on the 19th June, 1850 ; and on both sides a great, deal of evidence, both oral and documentary, was given, which it is deemed unnecessary to state. It is sufficient to say, that the facts constituting the -defence, as above stated, were fully established by the proofs.
    By consent -of the parties the chief justice directed a verdict and judgment for the plaintiff for $1346.01; the defendants having leave to appeal without security, and to make a case, with liberty to turn the same into a bill of exceptions.
    The cause was now heard upon an appeal from the judgment so rendered and upon the case as settled.
    
      W. Kent, for defendants.
    Even without resorting to the special provisions of the charter party, by the general rules of maritime law, the whole freight of the return cargo from Laguna to New York, was due-to the owners of the vessel, to be applied in satisfaction of what was due to them under the charter party, and the master as their agent was bound to retain the cargo until this freight was paid by the defendants ; but all possible doubt was removed by the terms of the charter party, by which the return cargo was expressly bound as a security to the owners of the vessel. He cited the schooner Volunteer, 1 Sumner, 541, certain logs of mahogany, 2 do. 589 ; Gracie v. Palmer, 8 Wheaton, 605 ; and several other cases.
    
      A. Mathews, for plaintiff.
    The plaintiff is the only person whom the defendants had a right to know as the owner of the vessel. He was the owner for the voyage, and there was no privity between them and the-absolute owners, that could authorize them in paying the freight to the master. If the owners had any claim,, it was a lien upon the merchandise only, which could not entitle them to demand, of the defendants the specific freight mentioned in the bill of lading. If the owners had any claim for the freight as against, the plaintiff, the defendants ought to have commenced proceedings in the nature of a bill of interpleader,.in which proceedings, all the parties being before the court, their relative rights and interests would have been properly determined. The counsel also insisted, that the defendants’ possession of the bill of lading, coupled with the facts, that they had a power of attorney from, the plaintiff to demand a delivery of the- logwood from the-captain, and that they had in fact commenced legal proceedings-to compel its delivery, divested the plaintiff of possession, and of the right of possession, and amounted to, such a delivery of the logwood to the defendants as entitled the plaintiff to' the-payment of freight according to the bill of lading. In support of this last position, the counsel referred to Chapin v. Rogers, 1 East. 192 ; and in the course of his argument he cited Chandler v. Belden, 18 John. 157 ; and Sander v. Clark, 1 Hall, 373.
   By the Court.

Sandford, J.

The defendants have paid the freight demanded by the plaintiff in this suit, to the owners of the vessel. They were right in so paying it, if the owners had a lien for the freight; otherwise it must be paid to the. plaintiff.

This depends upon the question, whether the possession of the vessel passed out of the owners’ hands to the plaintiff as charterer of the vessel; for if it did, it is clear they retained no right of lien as against sub-freighters.

By the charter party, the owners were to keep the vessel “ tight, staunch, well fitted, tackled, and provided with every requisite, and with men and provisions necessary for the voyage” on which she was chartered. They put all the room in the vessel, except the cabin and necessary room for the crew, fitments and provisions, at the disposal of the charterer, who agreed to freight and hire the vessel.

The effect of the Instrument was, to hire the vessel to the plaintiff for a stipulated sum per month, in lieu of freight, at specified rates, on the goods shipped, the owners appointing the master, and controlling throughout the furnishing and navigation of the vessel.

It is well settled that, under such circumstances, the owners continue in possession of the vessel, as owners, during the voyage for which she was chartered, and have a lien for their chartdrfreight upon all merchandise transported in her to the extent of the freight payable by the shippers on such merchandise. There are exceptions to this rule, as when the payment of the freight by the charter is postponed in terms beyond the time for delivering the cargo ; but there is nothing of the sort in this case. The principle is laid down in many cases. We refer particularly to McIntyre v Boune, 1 John. R. 229 ; Marcadier v. Chesapeake Insurance Company, 8 Cranch 49 ; Clarkson v. Edes, 4 Cowen, 470 ; Ruggles v. Bucknor, Paine’s C. C. R. 558; Abbott on Shipp. 63, 288 to 299.

The attempt of the defendants to obtain possession of the merchandise consigned to them, by a legal proceeding, did not affect the lien of the owners, and, therefore, could not preclude the defendants from acquiring the possession, in a lawful manner, by discharging the lien.

The judgment at the special term must be reversed, and a judgment entered for the defendants as upon a ruling of the law in their favor, at the special term.  