case, upon his retaining possession, for the very essence and purpose, and the very words of the contract, require the ship to pass out of his possession.

But in the contract for freight, the bargain is that the goods shall be put into the possession of the ship-owner, and shall remain in his possession until the freight becomes due and is paid. Here, therefore, the nature of the bargain, and the terms of the contract, give to this "privileged claim" that element of possession which the common law gives to every lien. The essence of the bargain is, that the ship shall take possession of the goods and carry them, and then keep possession of them for the freight. And if the parties agree that the goods shall be delivered first, that is, shall pass out of the possession of the shipowner before he gets his freight, and that he shall then look, not to the goods, but to the shipper for his freight; this would destroy the security by terminating the lien; and thus, in effect, it appears, to convert the privilege into a lien. Or, in other words, this right of the ship to the goods seems, for these reasons, to be perfectly dependent upon possession, and therefore, we think, it has been called and treated as a mere lien. But there is still a difference between these two views of this right, which is more than technical, and may be very substantial. It is this. If this right be a lien, it is at once destroyed by any agreement which provides that the possession of the ship-owner shall terminate in any way before he gets his freight. Not so, if it is, or so far as it is, a privilegium. There the security of the cargo will not be lost, unless it is a fair inference from all the terms and circumstances of the contract, that the parties intended to take this security away; or unless (whatever be their intention) it could not be enforced without injury to an innocent third party who had purchased the cargo, or acquired rights over it. Valin says, as we have seen, that the ordinance of Louis XIV. in practice permitted the ship-owner to retain his right against the cargo fifteen days after it had been delivered, unless it were in the mean time sold to a purchaser without notice. We do not suppose our admiralty courts would adopt this or any other exact rule; but wherever there was a bargain which provided that the shipper, or consignee, might take the goods first, and afterwards pay for them, but which, by reason of its terms or its circumstances, should be construed as indicating no intention on the

part of the ship-owner to give up his security on the cargo, we should confidently expect a court of admiralty to protect this security by a process in rem against the cargo. But, it must be confessed, that recent decisions have shaken this confidence somewhat.1

Abbott remarks: "The clause whereby the merchant binds the cargo, does not give to the owner a lien on the cargo for the performance of the covenants in the charter-party, nor for any payments for which he might not detain it in the absence of such a clause, so that with us the clause is inoperative."2 We apprehend that an American court of admiralty, always of course regarding the equities of each case, would generally enforce by adequate process that security upon the cargo, which the terms of the contract would purport to give. express agreements as to this lien or

But it is certain that claim, might make the

1 See ante, Vol. I. p. 125, n. 1; and p. 145, n. 1. The case of Sears v. Certain Bags of Linseed, there referred to as then pending before Mr. Justice Clifford, has been decided since that portion of our work was in press, in favor of the claimants, affirming the decision of Mr. Justice Sprague. An appeal has been taken to the supreme court and is now pending. The case was argued on an agreed statement of facts which were in substance as follows: The libellants being owners of the ship "Bold Hunter," chartered her to Tuckerman, Townsend & Co., for a voyage from Calcutta to Boston, at a specified rate of freight per ton. The charter-party contained the usual lien clause, and stipulated that freight should be paid, “one half in five, the balance in ten days after discharge in Boston, said credit on payment of charter not to impair ship-owner's lien, on cargo for freight." On arrival at Calcutta, the agents of the charterers did not deem it expedient to load the ship on their account, and assigned the charter-party, with the consent of the master, to Wills & Co., who agreed to furnish a cargo at a lower rate of freight. Wills & Co. furnished a cargo, of which the principal part was on account of, and consigned to, Augustin Wills of Boston. The bills of lading were filled up in the usual form at the new rates of freight, without reference to the charter-party. On arrival of the ship at Boston, the goods were discharged and delivered to the agent of the consignee, and nothing was said of the intention of the ship-owners to look to the goods for their freight. During the time of the discharge, five thousand dollars were paid to the ship's husband on account of freight, not, as was afterwards alleged, as a matter of right, but merely as an accommodation. Applications were made after the expiration of the five and ten days, for the payment of the balance, which were refused, first, on the ground that as the consignee had died, nothing could be done until administration was taken out, and afterwards because, as it was said, the estate might prove to be insolvent. This action was then brought in rem against the goods, they being still in the hands of the administrator of the consignee. The administrator claimed them, and his claim was allowed. The practical effect of the decision is, that the libellants come in with the other creditors for their dividend, instead of holding the goods as security for their whole claim. 2 Abbott on Shipping, 286.

3 See ante, Vol. I. p. 254, note.

question whether they confirmed, or annulled, or in any way qualified the claim as given by the maritime law, one of great difficulty. And, if a ship-owner who has this privileged claim, delays long, and without cause or excuse, to enforce it, he would be held in this case, as in all other cases of maritime lien, to have renounced or lost it.1

The owner of the cargo has a lien on the ship, for any injury he may sustain by the fault of the ship or of the master. And this lien may be sustained in admiralty by a suit in rem. And the vessel is regarded as pledged to the owners of the goods, from the moment the misfortune happens, and their claim will be held prior to the general creditors of the owners.2 And though this lien will be lost by unreasonable delay, it is not defeated even by a bona fide sale with transfer of possession, if made before the shipper had the opportunity of enforcing his lien. This would be so, even if the purchaser were ignorant of the lien, unless the delay had been such, as to cause or substantially contribute to the purchaser's buying a vessel thus incumbered.3

1 In The Rebecca, Ware, 188, 211, which was an action in rem against a vessel for damages sustained by goods on board, it was contended that the shipper had lost his lien by neglecting to enforce it within a reasonable time. The evidence was, that the shipper resided in New York, and the vessel belonged to Portland, in Maine; that as soon as the shipper heard of the loss he ordered process to be commenced, but before it could be served she left the port and did not return for nine months, when she was immediately arrested. In the intervening period, she was engaged in transporting rocks between the Hudson River and the Delaware Breakwater, and passed the city of New York at every trip, and that twice she stopped at that port for a few days; but there was no evidence that these facts were known to the libellant, and the court was of the opinion that the circumstances were not strong enough to justify a presumption of knowledge on the part of the libellant that the vessel was at New York, and it was held that the delay was no bar to suit.

2 The Rebecca, Ware, 188, 211; The Phebe, Ware, 263; The Waldo, Daveis, 161; The Sch. Volunteer, 1 Sumner, 551; Certain Logs of Mahogany, 2 Sumner, 589; Steamboat Robert Morris v. Williamson, 6 Ala. 50; and cases cited ante, Vol. I. p. 124, n. 1. In Rich v. Lambert, 12 How. 347, which was an action in rem, no question was made as to the jurisdiction of the court, except by Mr. Justice Daniel, who dissented on the ground that as the contract was made on land, that is, in the city of Liverpool, and was to be fulfilled on land by the delivery of the merchandise in the city of Charleston, there was no jurisdiction in admiralty. We should suppose, however, that most maritime contracts are made on land; and nearly all suppose an arrival somewhere, and the completion and consummation of the contract on or after such arrival.

Nor will acceptance of the goods by the consignee or a receipt that they are delivered in good order, defeat or waive this lien, unless made with a knowledge of the injury, or under circumstances which fairly indicate an intention to waive the lien.

In a case where a person took passage on board a vessel, but his personal baggage did not reach him before he sailed, and it was afterwards put on board another vessel by the agent of the libellant and a bill of lading given therefor, but the baggage never arrived, it was held, that the vessel was liable in rem, the case being considered as an ordinary shipment on freight, and the owner of the vessel not a gratuitous bailee.1

The jurisdiction of the admiralty over actions in personam, for the non-delivery of the cargo, has been fully sustained by the Supreme Court of the United States.2 But it has been held, that where a vessel is detained in her port of lading by ice, and her cargo is damaged before she can proceed, a shipper cannot, without rescinding the contract, sustain a libel in rem for a breach of the bill of lading, until the term for the performance of the contract has expired.3

SECTION III.

OF FREIGHT IN CASES OF PRIZE.

In reference to the questions of freight in cases of prize and capture, they belong, for the most part, exclusively to admiralty.

1 The Elvira Harbeck, 2 Blatchf. C. C. 336.

2 New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344.

3 Jones v. The Floating Zephyr, U. S. C. C., Penn., 7 Am. Law Register, 494. The vessel, in this case, was lying at the port of Philadelphia bound for Liverpool. In the month of December, a number of barrels of flour belonging to the libellant were shipped on board and bills of lading given. A quantity of corn was also shipped by other persons, by which it was alleged the flour was damaged. In the month of February following, the flour was taken on shore by order of the master, and surveyed and ordered to be reshipped. The vessel sailed after the filing of the libel in this case, and delivered her cargo to its consignees. The court held, that the action was prematurely brought, and the libel was dismissed. This decision is, however, we think, open to the objection that at the time the suit was brought, the vessel had incapacitated herself from delivering the flour in good condition, and therefore an action would lie immediately. See 2 Parsons on Contracts, 179.

The first question is this, if an enemy's cargo is captured in a neutral vessel, has the vessel a claim on the captors for freight? It would seem that it has; for the cargo is distinct from the freight; ane belongs to an enemy and may be made prize of, but the ship belongs to a friend and must not be taken. But the rule is limited by the reason of it; and if the cargo be contraband, or the voyage be quasi contraband, or undertaken to

1 In a note to The Atlas, 3 Rob. Adm. 304, in answer to an assertion of M. Schlegel, a French author, that the English never gave freight to a neutral vessel, the reporter makes the following reply: "So long back as the year 1640, it is asserted on the authority of Sir H. Martin, who was an eminent practitioner and afterwards judge of the court of admiralty, that it had never been the practice to condemn neutral ships for having enemy's goods on board, but the freight of the enemy's goods condemned was always paid. Sydn. St. Papers, vol. 2, p. 662. In the year 1704, in the court books of the admiralty, there is the case of The Pearl, Thompson, in which a question was raised on this point, though the particular circumstances on which the demand was resisted, do not appear. In the result, freight was decreed to the ship, restored on a claim of a Mr. Eliason, a Danish merchant, although the cargo claimed for him also was condemned. In the year 1753, in the celebrated answer to the Prussian memorial, it is asserted, that in the case of ships restored, freight was paid for such of the goods as manifestly belonged to the enemy and were condemned; and among the list of Prussian cases referred to, there is a class described, 'Ships restored with freight according to the bills of lading for such goods, which were found to be the property of enemy, and condemned as prize.' Conformable to the ancient principle of the Consolato and these precedents, has been the invariable practice of the British court of admiralty during the last and the present war, unless in cases where some circumstance of mala fides occurs," etc. etc.

The general rule and its exceptions are thus stated by Mr. Justice Story in The Commercen, 2 Gallis. 261, 264, 1 Wheat. 382: “The general rule, that the neutral carrier of enemy's property is entitled to his freight, is now too firmly established to admit of discussion. But to this rule, there are many exceptions. If the neutral be guilty of fraudulent or unneutral conduct, or have interposed himself, to assist the enemy in carrying on the war, he is justly deemed to have forfeited his title to freight. Hence, the carrying of contraband goods to the enemy, the engaging in the coasting or colonial trade of the enemy, the spoliation of papers, and the fraudulent suppression of an enemy's interest, have been held to affect the neutral with the forfeiture of freight. And in cases of a more flagrant character, such as carrying despatches or military passengers, for the enemy, or an engagement in the transport service of the enemy, or a breach of blockade, the penalty of confiscation of the vessel has been also inflicted." See also, The Prosper, Edw. Adm. 72.

2 The Sarah Christina, 1 Rob. Adm. 237; The Mercurius, 1 Rob. Adm. 288.

3 In The Commercen, 2 Gallis. 261, it was held, that a neutral cannot lawfully be the carrier of provisions for the supply of the army of a belligerent, although such army may be in a neutral country and directly engaged in hostilities against a third belligerent. This was affirmed by the supreme court, 1 Wheat. 382, Marshall, C. J., Livingston, J., and Johnson, J., dissenting.