An acceptance of the goods by the consignee, on the line of the transit or at the place of destination, does not waive the consignee's action for damages to the property by the carrier's negligence. Nor does a payment of freight under protest, prevent a subsequent action to recover it back. On these grounds the better opinion is that the consignee cannot reject goods brought to him, and discharge himself from freight, on the ground that they are so much damaged and depreciated that they are not equal in value to the freight. And it is quite clear that a consignee cannot refuse to receive part of a cargo on the ground that the other part has been lost or injured. A diminution in the contents of casks containing wine, rum or other liquids, by leakage, fermentation, or inherent waste, without fault on the part of the carrier, does not diminish his right to recover freight. On the other hand, a diminution in the quantity arising from causes for which he is answerable under his contract, will deprive him of his freight on the part thus lost. Receiving the casks in good order, it is for him to show a loss of their contents by some cause for which he is not responsible.

§ 641. It is very common for the owner of a vessel taking in a cargo for a given voyage, to procure a policy on the freight to be earned on the transportation of the goods. In effect, the insurer contracts that the vessel shall be capable of performing the voyage so as to earn her freight money, notwithstanding the perils insured against: and his contract is made upon certain implied conditions, among which are these; that the vessel shall be navigated with skill and vigilance, and that being disabled on the voyage, it shall be repaired where that can be done within a reasonable time, and then continue the voyage and earn the freight money. The same diligence and skill which are due to the shipper, are also due to the insurer of the freight money, or to the insurer of passage money.3

7

1 Bowman v. Teall, 23 Wend., 306; Withers v. N. J. Steamboat Co., 48 Barb., 455; S. C., 51 N. Y., 626; 22 Barb., 278; 56 Barb., 121.

2 Harmony v. Bingham, 12 N. Y., 99.

3 Abbott on Ship., 427; Bartram v. M'Kee, 1 Watts, 39; Basten v. Butler, 7 East, 479; Griswold v. N. Y. Ins. Co., 3 John. R., 321; Herbert v. Hallett, 3 Jolin. Cas., 93; Saltus v. Ocean Ins. Co., 14 John., 138.

4 M. S. & N. I. R. Co. v. Bivens, 13 Ind., 263.

Nelson v. Stephenson, 5 Duer, 538.

6 Arend v. Liverpool, N. Y. & Phila. Steamship Co., 6 Lans., 457; S. C., 64 Barb., 118; 53 N. Y., 606.

Allen v. Mercantile Mut. Ins. Co., 44 N. Y. 437; S. C., 46 Barb., 642; Scottish Marine Ins. Co., 20 Eng. Law and Eq., 24; Hugg v. Augusta Ins. Co., 7 How. U. S., 604.

* Ogden v. N. Y. Mut. Ins. Co., 4 Bosw., 447; S. C., 35 N. Y., 418.

Expressed in another form, the insurer assumes certain risks of loss on the freight, and no others; and he becomes liable for loss in those cases only which fall within the scope of his undertaking, or within the risks assumed by him. Eliminating all causes of loss except those covered by the policy, and the underwriter must answer for the ship's failure to earn freight or passage money by a safe conveyance of the goods and passengers to the place of destination.1

The assured may abandon a vessel to the underwriter, when she is injured by the perils insured against, to a moiety of her value; that is, when she is so injured that it will cost more than half her value, as stated in the policy, to place her in as good order and condition as she was in when the policy took effect. Having a right to abandon the ship as a technical or constructive total loss, the shipper cannot require him to repair for the purpose of sending on the cargo; and so a total loss of the vessel involves the loss of the freight. Where the law does not justify the owner in thus abandoning the ship, he cannot by surrendering the goods to the shipper free of freight, establish a right to recover freight on the policy. But where a vessel is insured by one company, and her cargo by another, and the vessel proceeding on her voyage goes ashore in a storm near the place of destination, and becomes a complete wreck; and the owner abandons the vessel and cargo to the respective underwriters, who accept the same; the shipowner is entitled to recover full freight in an action on the policy, notwithstanding a part of the cargo is subsequently saved from the wreck, in a damaged condition, by the use of other vessels. The transaction, the abandonment and acceptance of the vessel, and of the cargo, and of the freight list, by the respective underwriters thereon, operated as a transfer of the property.

Disabled on the voyage, after the service has been partly performed, it is the master's duty to earn freight if he can, by forwarding the cargo by another vessel. He is under no such obligation, where no other conveyance can be found at the port of necessity, where no freight has

'DeWolf v. State M. F. & M. Ins. Co., 6 Duer, 191; Ogden v. N. Y. Mut. Ins. Co., supra; and Allen v. Mercantile Mut. Ins. Co., supra.

2 American Ins. Co. v. Center, 5 Wend., 45; as to the mode of estimating the cost of repairs and the deduction to be made, one-third new for old. See Depuy v. United Ins. Co., 3 John. Cas., 182; Dunham v. Com. Ins. Co., 11 John., 315; Peele v. Merchants' Ins. Co., 3 Mason, 27; 3 Wend., 658; 1 Cowen, 265; 5 Cowen, 63; 21 Pick., 456.

3 Allen v. Mercantile Mut. Ins. Co., 44 N. Y., 437. Buffalo City Bank v. N. W. Ins. Co., 30 N. Y., 251.

Kinsman v. N. Y. Mut. Ins. Co., 5 Bosw., 460, 472; 9 John. R., 21.

been earned, or where the expense of sending on the cargo by another vessel will exceed a moiety of the freight.'

When the master hires another vessel at an intermediate port, to carry forward the goods, the cargo is chargeable on its arrival at the port of destination, with the increase of freight arising from the charter of the new ship; that is to say, rateable freight to the port of distress, and the freight on the new ship, together with the expenses of transshipment. From necessity the master becomes the agent of the owner of the cargo.2

§ 642. The carrier has a right to demand payment of his freight as a condition of the delivery of the goods, or final surrender of them to the consignee; and is nevertheless obliged to take proper steps towards making a delivery, so as to give the consignee an opportunity to examine the goods before he accepts them.3 The right to retain the goods for the freight, grew out of the usage of trade, and is waived by an agreement regulating the time and manner of paying the freight, without reference to the time when the goods are delivered.1

5

§ 643. The party receiving goods under a bill of lading, which is by its terms assignable, becomes thereby a party to its stipulations respecting freight. The bill under which the goods are deliverable to the shipper's order or to his assigns on paying freight, may be transferred by indorsement from party to party, without rendering each person to whom it is assigned, answerable for the freight. The carrier's contract is in the first instance with the shipper, and afterwards with the assignee holding the bill of lading and receiving the goods under it. The consignee or the indorsee of the bill, becomes a party to it when he receives the goods under it; and when it is so drawn that the carrier's authority to deliver the goods is conditioned upon the consignee's paying the freight,

1 American Ins. Co. v. Center, 7 Cowen, 564; 4 Wend., 45. Searle v. Scovell, 4 John. Ch. R., 218; 4 Wend., 54; Mumford v. Com. Ins. Co., 5 John. R., 262; 2 Duer, 204, 216; Worth v. Mumford, 1 Hilton, 1-34.

3 Clarkson v. Coles, 4 Cowen, 470; Chandler v. Talbott, 18 John. R., 157; ante ó 633.

4 Chandler v. Talbott, 18 John. R., 157; see Ward v. Whitney, 8 N. Y., 442, as to the effect of a failure to give the security for freight required by contract.

Tobin v. Crawford, 5 Mees., and Welsb., 235; 9 id., 716.

6 Merian v. Funck, 4 Denio, 410; Trask v. Duvall, 4 Wash. C. C., 184. The contract is the basis of liability for freight; Martin v. Smith, 58 N. Y., 672; N. Y. Nav. Co. v. Young, 3 E. D. Smith, 187; see Bills of Lading Act, 18 and 19 Vict., c. 111; Smurthwaite v. Wilkins, 11 C. B. N. S., 842.

7 Idem; Morse v. Pleasant Brothers, 7 Bosw., 199; ante § 592.

he cannot deliver without collecting the freight and after that collect it of the consignor ; as where goods are sold and consigned to a purchaser, the consignor retaining no interest in them; and where the freight should be collected of the consignee as the owner.3

Under the contract as evidenced by the bill of lading, the consignor is liable for the freight; the carrier's lien being considered as only an additional security given to him for the freight; so that where he fails to collect his freight of the consignee, without fault on his part, he may collect it of the shipper under the contract.1

The consignee acting as an agent does not become liable for the freight from the mere fact of receiving the goods; and yet cannot excuse himself from liability where he receives the goods before his agency is made known to the carrier.5

§ 644. A carrier can hardly assign his liabilities under a contract for the conveyance of goods: and yet where the owner of a canal-boat contracted to carry property from Buffalo to Albany, and in the course of the trip, after he had lost a part of the goods, sold his boat, the remainder of the cargo being on board, to another person, who received the bill of lading and an order from the shippers of the cargo on the consignees for the freight, and then performed the remainder of the trip and delivered the bill of lading with the residue of the property to the consignee; it was adjudged that the purchaser stood in the place of the former owner of the boat in respect to the claim for freight, and could recover only where such former owner could recover, being entitled to freight on the goods delivered and liable to a recoupment of damages on account of the part not delivered. On the transfer here, the shippers gave to the purchaser of the boat an order on the consignee to pay the amount of the freight to him on the delivery of the cargo with the original bill of lading; and the transaction was considered as having substituted the purchaser in the place of the original owner of the boat. The freight is allowed on the wheat delivered, and the substituted car

1 Thomas v. Snyder, 39 Penn. St., 317.

2 Krulder v. Ellison, 47 N. Y., 36; 10 English (Moak), 25.

3 Dart v. Ensign, 47 N. Y., 619; Coleman v. Lambert, 5 M. and W., 502; Amos v. Temperly, 8 M. and W., 798; Barker v. Havens, 17 John. R., 234.

• Holt v. Westcott, 43 Maine, 445; Shephard v. De Bernales, 13 East, 568; Gilson v. Madden, 1 Lans., 172; Jobbitt v. Goudry, 29 Barb., 509; Wooster v. Tarr, 8 Allen, 270; Fox v. Nott, 6 H. and N., 630; Collins v. Union Trans. Co., 10 Watts, 384.

• Boston & Maine R. v. Whitaker, 1 Allen, 497; Sheets v. Wilgus 56 Barb.,, 662; Dart v. Ensign, supra.

6 Hinsdell v. Weed, 5 Denio, 172.

rier can only recover the freight thus earned, after deducting the loss or deficiency.1

Not being recognized by the shipper, a purchaser of a vessel having goods on board for transportation, must naturally assume the liabilities of the former owner; and the shipper may insist upon his contract against a party thus coming into the custody of the goods, or upon the liability imposed upon the carrier by the common law.

IX. CARRIER'S LIEN.

§ 645. As a general rule, one who is obliged to receive and carry or perform work on goods, has a lien on them. The law which imposes the burden, gives also the power of retaining the goods as a security for the services rendered. The carrier's lien is given for the price or hire due for the conveyance of the particular goods on which it rests. It is a particular or specific lien on the goods for the price of their carriage, entitling the carrier to detain them until that price has been paid. It grew out of a general custom, fostered by the policy of the law for the protection of the bailee, and is favored by the courts in furtherance of substantial justice.*

General liens by the carrier are not favored;-such as a lien for a general balance, which is not recognized unless it is established by proof of a general usage of trade, so well known and clearly defined as to justify the inference that the parties dealt with each other on the basis of a general lien.5

§ 646. An innkeeper is allowed to enforce his lien on the goods brought by a guest to his inn, without regard to the ownership of the property. And it has been urged that, since the carrier like an innkeeper is obliged to receive all goods tendered to him, there is the same reason to uphold the lien in both cases. But it appears to be settled, that no lien can be enforced in favor of a carrier for the conveyance of goods received by him without authority from the owner; on the ground that no

1 Ogden v. Coddington, 2 E. D. Smith, 317, 326; Davis v. Pattison, 24 N. Y., 317.

2 Mallory v. Burritt, 1 E. D., Smith, 234; Hunt v. N. Y. & Erie R. Co., 1 Hilton, 228; Le Sage v. Great Western R. Co., 1 Daly 306; 2 Daly, 454, 490. 3 Hartshorne v, Johnson, 2 Holst. R., 108.

4 Jeremy on Carriers, 70, 71, Crommelin v. N. Y. & Harlem R. Co., 4 Keyes, 90.

Rushforth v. Hadfield, 6 East, 519; Whitehead v. Vaughn, 6 East, 523; Holderness v. Collison, 7 B. and C., 212; Butler v. Woolcott, 2 N. R., 64; Wright v. Snell, 5 B. and A., 350.

6 Yorke v. Grenaugh, 2 Ld. Raym., 867; ante § § 473, 474; Johnson v. Hill, 3 Starkie, 172.