362

ENGLISH AUTHORITIES

Freight, like wages, is earned by performance; and where there is no performance, no freight is due. Howland v. The Ship Lavinia (1801), 1 Pet. Adm. 123; Simonds v. Union Ins. Co. (1806), 1 Wash. 443; Hurtin v. Same, ibid. 530; The Saratoga (1814), 2 Gall. 164; Sampayo v. Salter (1816), 1 Mason, 43; The Nathaniel Hooper (1839), 3 Sum. 542. See also The Frances (1814), 8 Cr. 418; The Société (1815), 9 ibid. 209; The Antonia Johanna (1816), 1 Wheat. 159; Arthur v. The Cassius (1841), 2 Story, 81; Miston v. Lord (1848), 1 Bl. 354; The Ann D. Richardson (1849), Abb. 499, as to voyage broken up; Bork v. Norton (1841), 2 M'Lean, 422, as to full freight; The Lively (1812), 1 Gall. 315, as to illegal capture; The Fanny (1824), 9 Wheat. 658, as to tortious possessor and innocent neutral carrier; Hodgeson v. Woodhouse (1809), 1 Cr. 549, master is justified in retaining cargo until freight be paid, tendered, or payment be waived: The Ann Green, (1812), 1 Gall. 274, where it was held that captors are not, in general, entitled to freight, on the capture of neutral property on board of an enemy vessel, unless the goods be carried to their port of destination; Trask v. Duvall (1821), 4 Wash. 181, where it was declared that an assignee of a consignee, under a bill of lading, was bound for freight before receiving the goods; in Columbian Ins. Co. v. Catlett (1827), 12 Wheat. 383, that a ship-owner had a lien on the cargo, as between him and the owner of the cargo, for full or pro ratá freight; Mason v. The Blaireau (1804), 2 Cr. 240; Palmer v. Gracie (1821), 4 Wash. 110 (but this decis ion was reversed in Palmer v. Gracie, 8 Wheat. 605, and freight was defined to be a compensation for the carriage of goods; meaning doubtless a safe carriage

AND AMERICAN REFERRED TO TOGETHER.

363

and good delivery of the goods; for a complete voyage and safe delivery exacts full freight); The Commercen (1 Wheat. 382), in which is affirmed that reported in 2 Gall. 261; Case et al. v. The Baltimore Ins. Co. (1813), 7 Cr. 358; Kleine v. Catara (1814), 2 Gall. 61; Simmes v. Mer. Ins. Co., Alexandria (1825), 2 Cr. 618; Hammond v. Essex Ins. Co. (1826), 4 Mason, 196; The Henry (1834), Bl. & H. 465, freight belongs to the real owner; Robinson v. Noble (1834), 8 Pet. 181, barrels delivered less in number than those shipped; Harrison v. The Eclipse (1838), Crabbe, 223, an agreement to carry free; Knox v. The Ninetta (1844), ibid. &34, a violation of contract not a forfeiture of freight; Shaw v. Thompson (1845), Olc. 145, notice given a consignee to pay master and not the charterer; Thatcher v. M'Culloch (1846), Olc. 365, deviation not necessarily nullification; The Holden Borden (1847), 1 Spr. 144; ibid. 17, The Mary; Weston v. Minot (1847), 1 Wood. & M. 436, gross freight; Brittan v. Barnaby (1858), 21 How. 527, all stipulations derogating from general rights should be put in writing; 2 Spr. 1, Hunnewell v. Taber (1854), a case of asserted bad-stowage or leakage; ibid. 19, The Ship Zone (1860), goods alleged to have been received in good condition, but delivered in bad order; ibid. 28, The Bark Cheshire (1861), one shipper's goods damaged by those of another, the vessel is liable; ibid. 31, The Schooner Sarah (1861); ibid. 33, The Cargo of the Ship Anna Kimball (1861), and S. C. 3 Wall. 37; 2 Spr. 35, Pierce v. Winsor et al. (1861).

Freight is not payable until there is a delivery of the goods at the port for which they are shipped. The Livonia, 1 Pet. Adm. 126. And if, by reason of any vis major, as stress of weather or other cause, a ship puts

364

FREIGHT PAYABLE ON DELIVERY.

into another port and unloads; or if she be wrecked and goods are saved, they must, at the expense of the ship-owner, be transhipped to the destined port, before freight is payable.

And freight pro rata itineris peracti is not due, unless the owner of the cargo voluntarily agrees to receive it at a place short of its ultimate destination. Case et al. v. Baltimore Ins. Co., 7 Cr. 358; The Hannah M. Johnson (1862), Bl. Prize Cases, 160; 858 Bales of Cotton, ibid. 325; where it was declared that, on general principles, property captured as prize belongs to the government, but cum onere. This condition cum onere appears to be irreconcilable with the doctrine held, in prior decis ions, that no liens lay against the government; nevertheless, in one respect, certainly, in the United States, the equivalent of such a condition not only legally prevails, but is formally incorporated into the legislation of Congress.

By the act of March 2, 1867, in § 3 (Vol. 14, U. S. Sts. at Large, p. 567), it is substantially enacted that every collector of the customs, who shall be notified of freight due on goods in his custody, may refuse delivery thereof from the public warehouses, until he shall have been satisfied that the freight is paid or secured; such refusal to be without prejudice to the United States, or its officers; and if such goods shall be forfeited to the United States, then freight shall be paid from the proceeds of the sale, like other charges and expenses.

So then, in this case, freight is allowed and solemnly recognized to be secured, as a preferred claim, like other expenses, against the government itself, whether its officers shall have in custody goods in specie or the proceeds of a sale of such goods, on which freight is due.

LIEN THEREFOR AGAINST THE U. S. GOVERNMENT. 365

It is undoubtedly novel and special legislation, originating from some well authenticated case of hardship; but not based upon any general principle of legislation. It is, practically, creating a new species of lien, not formerly known to the general maritime law, and which could not have been called into activity, without express legislative enactment. This will be more apparent in the next or a future chapter, when the subject of maritime liens shall be more particularly considered.

It will be seen, on reference to the English cases upon freight, that if the freight claimed be for carriage of goods, then the ship-owner has a lien on the goods to secure payment of the freight; but not so, if there has been a demise of the ship to a charterer, as it is plain that, in this latter case, the cargo is in the possession of the charterer. Newberry v. Colvin, 8 B. & Cr. 166.

What constitutes a demise of a ship is a question of intention; and, if claimed under a charter party, is to be gathered from the whole instrument. Maclachlan, Mar. L. 307 et seq. Tate v. Meek, 8 Taunt. 208; Christie v. Lewis, 2 B. & B. 410; Faith v. East India Co., 4 B. & Ald. 630.

The construction by courts of contracts for affreightment should be liberal, and made to conform to the real intention of the parties, the general usage of trade, and the particular trade to which such contracts relate. 4 East, 130, Robertson v. French; 2 C. B. 412, Same v. Jackson. Although oral evidence is not admissible to vary or contradict such agreements, yet it is admitted for the purpose of explaining what the parties had left in doubt as a local usage of landing cargo at a particular wharf for the consignees' benefit. 9 Cl. & Fin.

366

REFERENCE TO OTHER CASES

557, Shore v. Wilson; 29 L. J. 256, McDonald v. Longbottom.

The following cases may be profitably consulted as leading and latest authorities in English reports: - 5 E. & B. 419, Mitcheson v. Oliver; 2 Camp. 517, Frazer v. Marsh; 7 Taunt. 14, Hutton v. Bragg; 10 Bing. 345, Dean v. Hogg; 2 B. & Ald. 503, Saville v. Campion; 1 M. & Gr. 502, Belcher v. Capper; 1 H. & N. 183, Tarrabochia v. Hickie; 3 B. & Ad. 514, Pittegrew v. Pringle; 4 East, 477, Hall v. Cazenove; 7 Ell. &. Bl. 266, Humphrey v. Dale; 3 Esp. 121, Corkran v. Retburg; 1 M. & Wels. 475, Hutton v. Warren; 7 T. R. 259, Hadley v. Clerk; 4 Ell. & Bl. 979, Reed v. Haskins; 6 Bing. 716, Davis v. Garrett; 7 Exch. 734, De Rothschild v. R. M. St. Packet; 5 B. & Ad. 65, Goss v. Nugent; ibid. 742, Rippinghall v. Lloyd; 6 Exch. 424, Ellen v. Topp; 13 Jur. 639, The Sir Henry Webb; ibid. 531, The Lady Douglas; Swab. 310, The Ringdove; ibid. 335, The Newport; Lush. 57, The Victor; ibid. 444, The Leo; ibid. 578, The Salacia; Br. & Lush. 377, The Norway; and S. C. ibid. 404, in which the judicial committee of the Privy Council reversed the decision of the Admiralty Court.

The foregoing authorities, together with the cases commented upon by C. J. Shaw relating to bills of lading in 8 Pick. 293, supra, and the leading case of Lickbarrow v. Mason, on the same subject, comprise all the varied learning to be found in the reports. Text writers, and especially Maclachlan, will furnish further aid and instruction upon the subject. But whatever may be the controverted question, the learned practitioner cannot well perform his whole duty to the court or his client, without a familar and precise knowledge of the