wise; as, that there shall be no lien; or, that the lien shall be other than it usually is, they may do so.

We have already given some consideration to the question, whether a master, who delivers the goods without insisting upon and obtaining the payment of freight, to which he is entitled, from the consignee, can fall back on the shipper. The cases, as we have seen, are in some conflict; but, on the reason of the question, and perhaps on the weight of authority, we should come to this conclusion: That the master should collect his freight from the consignee if possible, and should insist upon his lien if necessary for that purpose; but that this obligation is not so peremptory that he loses all right to his freight if he fails in it; because the clause, requiring the consignee to pay on delivery, which asserts the lien of

the general clause, which is usually inserted in the charter-party, amounts to such a special contract, has been disputed. The better opinion seems to be, that it does. Lord Tenterden, in his Treatise on the Law of Shipping, p. 286, speaking of this clause, said: "The clause whereby the merchant binds the cargo, does not give to the owner a lien on the cargo by way of general security for the performance of the covenants in the charter-party, nor for any payment for which he might not detain it in the absence of such a clause, so that with us the clause is inoperative. In the cases where a lien is allowed it is not derived from this clause, but either from some general principle of law, or some special contract." In The Schooner Volunteer and Cargo, 1 Sumner, 551, 572, the question as to what effect was to be given to the clause, came up before Mr. Justice Story. And that learned judge, after referring to Lord Tenterden's remarks above cited, expressed a very strong opinion in favor of considering the above clause as constituting a special contract giving or reserving the lien. There is also a strong dictum of Parker, C. J., to the same point, in Pickman v. Woods, 6 Pick. 248, 252. "And it is also most usual to stipulate that the goods are bound for the freight, or that freight shall be paid or secured on delivery; and in all such cases the lien is considered perfect, notwithstanding there are covenants in the charter-party for the payment of freight." The charter-party, in the case of Howard v. Macondray, S. J. C., Mass., Nov. T. 1856, contained this clause. In delivering the opinion of the court, Dewey, J., spoke of it as follows: "Although it may have no efficacy in securing a lien on the merchandise at the port of delivery, where, by the terms of the contract, the freight is to be paid elsewhere, and at a time different from the delivery of the cargo, yet it may have its full effect in reference to freight to be paid at the place of delivery of the goods, and may operate and have full effect under the new stipulations entered into by these parties, as to the time and place of making the second payment for freight. It furnishes evidence at least, that the parties to the charter-party intended to secure the usual maritime lien, which exists where not displaced by the existence of inconsistent stipulations, and should lead us very carefully to consider whether the usual maritime lien for freight did not exist upon this cargo at the port of delivery. It is to be borne in mind that such lien will exist unless clearly displaced by the terms of the contract between the parties as to the payment of freight."

the master, is intended primarily for his protection and benefit, but not altogether so; and if he gives up the goods in good faith, and afterwards is unable to collect the freight of the consignee, he cannot call on the consignor if the goods belonged only to the consignee, and the consignor was but his agent or factor in the transaction, but may call on the consignor if the goods were his property.1

We should apply this rule equally to the case of a charterparty, and of freight under bill of lading only. For if the consignor own the goods, he is not harmed by being obliged to pay the freight, because he would have been obliged to repay it to the consignee had the master obtained it from the consignee. And this reason may perhaps suggest the only exception; and that is, where the consignor, in good faith and without notice from the master or owner, has, by reason of the laches of the master, paid the consignee for the freight, or so changed the state of his accounts with him, that he would lose the freight if obliged to pay it to the master.2

1 See ante, p. 221, note 3.

2 In Tapley v. Martens, 8 T. R. 451, the consignor requested the consignee to pay the freight as he was indebted to him in more than the amount. The consignee, instead of doing this, drew a bill of exchange on the consignor for the freight, and delivered it to the captain. The consignor was held liable for the freight. So in Collins r. The Union Transp. Co. 10 Watts, 384, the plaintiffs in error purchased goods in Philadelphia. They were carried by the line of the defendants in error to Pittsburgh, consigned to H. & L., merchants there, to be forwarded by them to the plaintiffs. The bills of lading given by the defendants stated that freight was to be paid on delivery to H. & L. They were delivered, however, without payment. H. & L. never paid the freight, but drew upon the plaintiffs for the amount, and the draft was paid at maturity. The plaintiffs were nevertheless held liable. The cases above cited show that the mere fact of the consignor having advanced the money to the consignee to enable him to pay the freight, or a subsequent settlement with him, will not relieve the consignor, if he would be otherwise liable, from his responsibility to the party, who has contracted to carry his goods. But if the master, or the owner of the vessel, neglected to sue the consignor, and in consequence of such delay, the consignor, supposing the consignee had paid the freight, should settle with him on that basis, we should strongly incline to the view that the consignor would not be liable.

SECTION IV.

OF THE PAYMENT BY A CHARTERER.

If the master receives the freight, not in cash, but in a bill or note which turns out to be valueless, he cannot then, perhaps, call on the consignor or consignee, in those States (as Massachusetts and Maine)1 where negotiable paper is primâ facie payment of the debt for which it is given, and not anywhere, if he voluntarily elects to receive payment of the freight in this way. But if he receives bills or notes for his freight because he can get nothing else, and whether it be so or not seems to be a question for the jury, then, if they are dishonored, his claims against the consignee or consignor, revive.2

As the current of authority in this country gives the master a lien on the freight, not only for his disbursements for the ship, but for his own wages also,-on both points differing from the English law,3—it should follow that payment of freight by the shipper to the owner, would not be available as a defence against a demand of freight from the shipper by the master, provided the master had notified the shipper of his claim, and requested him not to pay over the freight, or at least to reserve as much as would satisfy the master's claim.4

1 See 2 Parsons on Contracts, p. 136; and ante, p. 93, note 1.

2 In Tapley v. Martens, 8 T. R. 451, the consignor was held liable. But the court said: "If the fact had been, as supposed in argument by the defendant's counsel, that the consignee had been ready to pay in money and the plaintiff had taken this bill for his own accommodation, there would have been some weight in the argument, but the fact was otherwise." So if the plaintiff had been guilty of any negligence, after he had taken the bill, in not endeavoring to enforce payment of it. See also, Marsh v. Pedder, 4 Camp. 257, 262; Grant v. Wood, 1 Zabris. 292. In Strong v. Hart, 6 B. & C. 160, it was held, that an instruction that the jury should find for the defendants if they thought that the captain took the bill voluntarily and for his own convenience, was correct; and that the defendants were not bound to prove that an offer was made to pay in cash. See also, Anderson v. Hillies, 12 C. B. 499, 10 Eng. L. & Eq. 495. 3 See post, ch. 11, § 2.

White v. Baring, 4 Esp. 22. But see Atkinson v. Cotesworth, 3 B. & C. 647, 5 Dow. & Ry. 552. In this country the law is, as stated in White v. Baring. See Lewis v. Hancock, 11 Mass. 72. In Ingersoll v. Van Bokkelin, 7 Cow. 670, 5 Wend.

The master can retain the goods against a purchaser; and if part be delivered, he can retain the residue; and he may retain any part of the goods belonging to one person, for all the freight due from that person. But if the consignee sells the goods to different purchasers, and the part sold to one is delivered to him, the master can retain the residue, which belongs to other purchasers, only for the freight due on that residue, and not for the freight due on the part delivered. Such at least is the doctrine laid down by all who have treated of this subject, confirmed as we suppose by practice, and resting upon one adjudicated authority at least; but in a recent case the English courts cast some doubt upon it.1

315, a bailee with whom the master had deposited the goods, was held liable for them in trover, he having delivered them over to the consignee by order of the owner of the ship, to whom the consignee had paid the freight.

1 In Sodergreen v. Flight, cited in Hanson v. Meyer, 6 East, 622, the action was brought by the captain of a ship to recover freight on 850 barrels of tar, which had been shipped by one Hippius. He sold the barrels to the defendants before the ship arrived. After arrival 721 barrels were delivered, when, Hippius having stopped payment, the captain refused to deliver the rest, unless they would pay the freight, not only of what remained, but of what had been before delivered, which they refused to do. Subsequently it was agreed that the whole cargo should be delivered up, and an action brought for the freight. Lord Kenyon held that the plaintiff was entitled to recover freight for the whole amount. The Reporter then adds: "His lordship being of opinion that the captain had a lien on the tar remaining on board for the whole freight, as well the freight of the barrels delivered as of those remaining on board, belonging all to the same person and under one consignment. But he thought that if Hippius had sold the tar to different persons, the captain could not have made one pay for the freight of what had been delivered to another." On the authority of this case, it has been laid down in all the works on the law of shipping, that a captain, if he delivers part of a cargo, has a lien on the rest, for the freight of the whole, provided it belong to one person. By the bills of lading in this case, the tar was deliverable unto order, "he or they paying freight for the said goods." The question of the lien of the captain did not arise, the only point in dispute being whether the captain, having delivered the tar could recover freight from the purchaser, which seems under the circumstances not to admit of doubt. The precise question of the lien of the captain was decided in a late case in England. Möller v. Young, 5 Ellis & B. 7, 30 Eng. L. & Eq. 345. The plaintiff, being the owner and master of a ship, sued the defendants for not accepting goods transported in his vessel in a reasonable time. The defendants were indorsees of a bill of lading, by which the goods were deliverable to them, on payment of freight, as per charter-party. This latter instrument provided that the cargo should be delivered on payment of freight, and that freight should be paid on delivery of the cargo. On the arrival of the vessel, a portion of the cargo was delivered. The plaintiff refused to deliver the rest till freight for the part already delivered had been paid, and the defendant refused to pay any freight till the whole had been delivered. Ten

If the voyage for which the vessel is chartered, be, as it often is, a double voyage; that is, a voyage out and home; the question occurs whether any freight is due if the vessel safely performs the outward voyage and delivers her cargo, but is lost before her return home. It is perhaps impossible to give any general rule which shall always answer this question, because each case must be judged of by itself; and these cases, as they are presented in the books, often involve questions of mingled fact and law which are sometimes of great difficulty. There is nothing to prevent the parties from making such a bargain, on this point, as they choose to make. They may say distinctly, that so much freight shall be paid if she performs one passage in safety, so much if another, and so on for the rest; or they may agree that nothing shall be payable by way of freight, unless she performs all of them, and brings the last cargo home in safety. And the question always is, which of these two things did they mean to express by the words which they used.

There is perhaps some tendency in the courts to look upon such voyages as distinct, especially if the shipper or charterer derives a distinct benefit from each voyage, and receives his goods at the end of each with their value enhanced by the carriage; and in such a case, nothing but plain language, providing that no freight shall be earned unless the whole voyage, or all

days, beyond the running days mentioned in the charter-party, elapsed before the plaintiff would consent to deliver the rest of the cargo. As soon as this was done, the defendant paid the freight for the whole. The Court of Queen's Bench held that the plaintiff was entitled to recover on the ground that the master was not bound to deliver the whole till he was paid for that already delivered, and that a delivery of a part did not waive the lien as to the residue. This decision was reversed by the Court of Exchequer Chamber, 5 Ellis & B. 755, 34 Eng. L. & Eq. 92. It was there held that the master might assert his right of lien, and refuse to deliver the goods until he was paid his freight, but that if he waived this right he was bound to deliver the whole cargo, and when this was done there was evidence of a contract on the part of the consignee to pay freight for the whole, It will be observed that in this case the consignee was not owner of the goods. In a case where he is, the law may be otherwise. In Bernal v. Pim, 1 Gale, 17, it seems to have been considered that a delivery of part does not defeat the lien as to the residue, but that if there are two contracts to carry for the same person, with different termini in each contract, no lien attaches for freight under the one upon goods shipped under the other. Sodergreen v. Flight was also fully sustained in Boggs v. Martin, 13 B. Mon. 239. And see Fuller v. Bradley, 25 Penn. State, 120; Barnard v. Wheeler, 24 Maine, 412.

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