other hand, a lien at common law is simply the right of holding on to something now in possession, until some claim or debt connected with that thing is discharged. We do not call this lien of, the ship on the goods a "privilegium," because we cannot say that it has, no reference, either in origin or continuance, to possession. But neither do we regard it merely as a common-law lien, because we do not consider it as a mere right to retain possession, and as wholly dependent on possession, and as terminated at once and necessarily by the loss of possession.

What are called liens in the law of shipping are none of them, we think, mere common-law liens; or mere continuances of the right of possession. And we have noticed that text-writers who, in the investigation of the principles which govern them, have gone back to the early or foreign law, adopt perhaps without intention the phraseology there used, and call the liens "privileges," or "privileged claims." Thus, Abbott, in the beginning of the chapter on the ship-owners' lien for freight, speaks of the lien of the cargo on the ship, as ranking "low in the precedence of privileged claims," and to illustrate this, enumerates nearly all the known liens against the ship, ten in number, as of more force; and then speaks of the "privilege" of the ship-owner against the goods for his freight.

This right of the ship-owner to hold the cargo as security for the freight, we hold to be in part a privilegium, and so far not a mere lien; and therefore it is not dependent, necessarily and entirely, upon possession, or the right of possession. And the law merchant has many such "privileged claims "; as, for example, contracts of bottomry or respondentia. No one would think of calling the rights which these contracts give, merely liens, or of treating them as liens at common law. Nor is there any more reason in the right itself for calling that of the ship-owner against the cargo a lien only. The cause of this common error, for we regard it as an error, is quite obvious. The main difference between a privilegium and a lien is, as we have seen, this: the former is not dependent upon possession, but the latter is. Now the contract of bottomry, for example, actually provides that the ship shall go away, out of the possession and immediate reach of the creditor (for which departure it provides the means), and that the debt itself shall be due only on condition that the ship

performs the voyage safely. It would, therefore, be merely absurd to say that the security of the creditor depends, in this 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 ship-owner 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.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. But it is certaim that express agreements, as to this lien or claim, might make the 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.4

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

1 See ante, Vol. I. p. 178, n.; and the case of Sears v. Certain Bags of Linseed, there referred to.

* Abbott on Shipping, 286.

See ante, Vol. I. p. 303, note.

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.

And the

lien may be enforced in admiralty by a suit in rem. 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.1 This liability of the ship begins on the reception of the goods by the master or some one authorized by him, either on board the ship or at a wharf. Therefore if while the goods, after coming into the custody of the master, are being transported by him on a lighter in the usual course of trade at that port, and are damaged, the vessel is liable in rem.2 And though this lien will be lost by unreasonable delay, it is not defeated 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 encumbered.3

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 this 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 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. 173, 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.

2 The Bark Edwin, 1 Sprague, 477, s. c. nom. Bulkley v. Naumkeag Steam Cotton Co. 24 How. 386.

The Rebecca, Ware, 188, 212.

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

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.1 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.2

The owners of a vessel let to the United States for a transport, in time of war, have no lien for their charter-money on goods the United States may put on board.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. 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; one 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 1 New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344.

* Jones v. The Floating Zephyr, U. S. C. C. Penn., 7 Am. Law Reg. 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, 5th ed. 666.

* The Undaunted, 2 Sprague, 194.

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