Cranston v. A Cargo of Two Hundred & Fifty Tons of Coal , 22 F. 614 ( 1884 )

Nixon, J.

Homo maritime liens may be enforced, like the privi-iegirni of the civil law, by parties who never were in possession; but this is not the nature of the ship-owner’s or master’s lien upon the cargo Cor his freight. His right depends upon his detention of the goods until the payment is made. If he parts with them voluntarily, and without notice that he looks to them for the freight and charges against them, he loses all right to enforce a lieu upon them by a proceeding in rein. A different rule is recognized by the courts of continental Europe, but this is the well-established doctrine in admiralty of tlie supreme court of the United States. See Cutler v. Rae, 7 How. 729; Dupont, De Nemours v. Vance, 19 How. 171; Bays of Linseed, 1 Black, 113.

The right to maintain this suit depends upon the question whether the coal was delivered to the respondent without condition or notice of the libelant’s claim. There is a difference in law between the discharge of a cargo and its delivery. It may be discharged, but cannot bo delivered unconditionally, without divesting the vessel’s lien thereon for freight or demurrage. The respondent being in possession, the burden of proof is on the libelant that the delivery was not absolute, but qualified by some conditions. A careful examination of the testimony shows the following facts :: The libelant received notice while lying at Hoboken that the coal had been sold to the Standard Chemical Company, and was to bo shipped to its wharf at Twemley Point. He demurred to the change of destination, and had one or more interviews with Compton (the owner and shipper) demanding more freight than was allowed in the bills of lading. lie states that Compton finally agreed to pay him 20 cents per ton, but this Compton denies. Before starting with the load, lie called upon the superintendent of the company in New York, (Mr. Reynolds,) and complained to him that Compton was unwilling to pay him the going freight to Twemley Point. He was informed by the superintendent that it was a matter entirely between him and the shipper, Compton; that the company had no interest in it, as they had purchased the coal alongside, and that, if it was not delivered to them free of claim, they would have nothing to do with it. The libelant says that he then and there gave notice to the superintendent that ho should retain his lion upon the cargo for the freight if Compton did not agree to his terms.' The superintendent, on the other hand, swears that no such notice was given or intimated, and that the libelant left him with the explicit information that the company had no interest or concern about the freight, and that he must settle all .differences with Compton.

The libelant further testifies that wbeii he reached the company’s wharf at Twemley Point he again gave notice, on the day of his arrival, to the clerk or agent (Metz) having their business in charge, that he should hold the cargQ for his freight if he could not make satisfactory arrangements with Mr. Compton, and that the discharge of the coal took place after such notice. Mr. Metz was called, and makes oath that no such conversation was had; that libelant delivered the cargo to the company, and it was mixed with other coal on hand, and that no reference was made about holding it responsible for freight until the eighth of A ugust, when the whole had been delivered unconditionally. The witness says, that on that day, just as the libelant left for New York, he stated he should see Mr. Compton, and if he had any trouble with him he should look to the coal for his pay. He further testifies that he would not have allowed the coal to be discharged if the libelant had intimated to him that he had an intention or purpose, under any circumstances, to demand payment of the company for the freight.

I find no corroboration of the libelant’s testimony in the case, and other facts appear which impair its probative force. The weight of the evidence undoubtedly is that the coal was delivered without conditions. , The consignee has paid the owner its full value before the libel was filed, and he is entitled to hold the cargo discharged from the lien. Much time was taken, on the argument, in discussing whether the bill of lading, dated July 10, 1883, was a forgery, or whether it was, in fact, signed by the libelant. I have a decided opinion in regard to this question, but do not deem it necessary to express it here. It has no relevancy to the ease, as I am viewing it. It would be pertinent in an action in 'personam against Compton for the freight and demurrage alleged to be due. The present libel must be dismissed, with costs.