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VOLUNTARY ACCEPTANCE EQUIVALENT TO PERFORMANCE. 387

As delivery and voluntary acceptance of cargo is deemed equivalent to complete performance, and legally discharges the master from the duty of proceeding on to the stipulated port of destination ; so capture may be viewed as a constructive delivery, which equally relieves the carrier from further performance, or further attempt to perform. And should there happen a subsequent recapture, and the cargo shall be ultimately forwarded to its destination, the right to freight would be revived, and full freight become payable, subject only to the salvage claim of the recaptors. Though suspended, this right to freight was never legally extinguished. The voyage having been interrupted by the act of a superior force, and without fault, on the part of the master, no deduction would follow in consequence of the temporary delay and detention occasioned thereby.

With some exceptions, freight is allowed to neutral carriers, where the cargo is condemned as enemy property, according to the practice of the High Court of Admiralty. The Atlas, 3 Ch. Rob. 304 n.

But even on enemy's goods, neutral carriers are not entitled to full freight to their port of destination, if such carriers have been guilty of prevarication or falsehood in their evidence. The Anna Christina, Hay and Marriott, 163.

If a neutral conduct himself with good faith, he may carry the property of an enemy, subject, however, to its capture and the temporary detention of his vessel ; in which case, he would be entitled to freight, and for its security, also to a lien on cargo, which would take precedence of captor's expenses. But where the trade is between ports of allied enemies the rule is reversed ;

388

NEUTRAL CARRIERS, CONDUCTING FAIRLY,

and captors are entitled to a lien on cargo for their expenses: thus taking precedence of neutral masters for freight. Between ports of two belligerents, however, the trade is a kind of middle case. The Vrow Henrica, 4 Ch. Rob. 343.

But as maritime liens will constitute the main subject of the succeeding chapter, the present chapter will be brought to a conclusion, after citing a few authorities, in addition to Muller v. Germon (3 Taunt. 394); in which it was determined that the recovery of freight would be barred by proof of carrying goods on an illegal voyage.

Among other cases in admiralty, is that of the Emanuel (1 Ch. Rob. 296), where it was held, that no freight was due to a neutral ship-owner, who had been engaged in the coasting trade of the enemy, especially if that were a trade not commonly open to foreign vessels; the Rebecca (2 ibid. 101), where freight was refused to a neutral, on cargo between the colonies and mother country of the enemy; the Rising Sun (ibid. 108), where it was held, that an act of spoliation of papers by the master barred the owner's claim for freight; the America (3 ibid. 36), where it was recognized as a general rule, that the owner would lose his freight, if his ship were going with false papers; the Atlas (ibid. 303 n.), where it was held, that neutral ship-owners were not entitled to freight on cargoes which had been condemned in cases of unneutral conduct in the colonial and coasting trade, or trade between the ports of allied enemies, and spoliation of papers; the rule being that property under contract to become the property of an enemy, on arrival in an enemy country, is to be deemed enemy property if taken in transitu.

ENTITLED TO FREIGHT GENERALLY.

389

The Oster Risoer (4 ibid. 199), in which it was not permitted to a neutral master to aver ignorance of the contents of cargo, and freight was refused on sail-cloth,

, described as linen, directed not to be opened by the master, and which was ultimately condemned as contraband; the Allegoria (ibid. 202), when freight was refused to a neutral master going from one enemy port to another.

There are one or two cases, where the contract was for a gross sum for the round voyage, without distinguishing between the outward or homeward freight. In the Lady Durham (13 Jur. 521), this entire sum, agreed to be paid for rent, hire, or freight of the vessel, is termed lump freight. In the Norway (Br. & Lush. 226, 377, and 404), there was a stipulation for a lump freight of £11,500 for a Calcutta voyage, to return with a cargo of rice. There were three several hearings and judgments in this last case, reported as above; and, as it was quite elaborately discussed both before the Admiralty Court and the Judicial Committee of the Privy Council, and at a recent date, its examination may well be commended to the student.

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390

DIFFERENT KINDS OF MARITIME LIEN, RANK

CHAPTER XV.

MARITIME LIENS.

A MARITIME lien is the tacit hypothec of the civil law; and may be defined to be a secret interest in the thing held (re obligatá), which may be enforced against the thing (rem obligatam). In enforcing this right, the

process will issue against it corporaliter.

A lien, therefore, of this description, attaches either to ship, cargo, or freight; and separately or conjointly. It is a legal privilege, taking the form and character of a debt, and may be presupposed to have originated in some contract, express or implied, or proceeding from some tort which may be cognizable in an admiralty

court.

Like other obligations, a maritime lien may arise ex contractu or ex delicto.

If the lien attaches in consequence of wages due, or salvage, towage, pilotage, hypothecation, or bottomry, or for freight even, the lien arises ex contractu or quasi ex contractu.

. But if the lien attaches in consequence of damages suffered by reason of collision, then the offending vessel (if any) would be held subject to a lien for the damage done; and the lien itself may be supposed to have arisen ex delicto or quasi ex delicto.

All liens of the former description, are deemed to be entitled to certain preferences, or ranking rights of

ACCORDING TO SUPERIORITY OF MERIT.

391

precedence and priority. This precedence sometimes depends upon dates; but mainly on superiority of merit. And that superiority of merit entitles a party to superiority of rank, from which legally and logically results his personal title to priority of payment.

In ranking or marshaling such rights of the parties, claiming and controverting, the court may be influenced by two considerations :

First, the nature and value of the service; and
Second, the time when it was rendered.

Wages, ordinarily, take precedence of all other ex contractu liens; pilotage and towage rank next in order; then follow bottomry and salvage.

But supposable circumstances may entirely change the order of preference. For a service, subsequent in

a time, may acquire and possess merit altogether superior to that of a service prior in time, as the condition of things might possibly be such as to render the liens, first in order, totally unavailing, were it not for the superior and timely merit of those last in order; thus inverting the usual order of ranking.

This modification of the original ranking of liens is founded in reason, policy, and justice. In maritime affairs, it is both well and wise to encourage fresh risks for future security. In the Mary Ann (9 Jur. 95), it was held that the holder of a bottomry security might be preferred even to the original or antecedent wages, due to the mariners at the time of executing the bottomry security. The reason is manifest for thus reversing the order of merit and preference; as at that time, without the loan advanced upon bottomry, it may have been utterly impracticable for the master to proceed further on the voyage, unless extensive repairs were

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