he may cause the ship to be sold and pay himself, restoring the surplus to the owner, after his own debt is paid. Sec. 706, 7, 2. Indeed when the law confines a creditor to a particular fund for his remuneration, it cannot be so absurd as to prohibit him from making that fund available, by laying his hand on and securing it. The maritime law is not chargeable with any such absurdity; after it has, on principles of general policy, restricted him to a particular fund, it not only permits him to proceed directly against it in specie, but gives him a privilege against it over the general creditors of his debtor.

This privilege, so far from being dangerous and embarrassing to commerce, as it was represented at the argument, appears to me to be perfectly natural and just, and entirely in harmony with the general spirit of maritime law. It stands on the principle of entire reciprocity. What can be more reasonable and equitable, when a privilege is given to the ship against the merchandise for whatever may be due from it as the price of marine transportation, than to allow a corresponding privilege to the cargo against the ship for whatever losses or average the cargo may sustain in consequence of the insufficiency of the ship, or the fault of the master? What more natural and just, when the ship has been the cause or occasion of the loss or damage, than to look to the ship for reparation? For the fault of the master the owners are responsible, as for their agent. The condition of the owner is not made worse by rendering the ship liable. It is indifferent to him whether the merchant obtains a satisfaction from the ship or from his other property; but it is not equally indifferent to the merchant whether he is allowed or not to look to the ship for security, as this is not only often his best, but sometimes will be found his only security.

It is objected that this is a case of the first impression, and that the reports furnish us with no decision in point. The reason has already been given why the English reports furnish no case. The common law courts cannot give the remedy, and they will not allow the court of admiralty to take cognizance of the case. Whether it be or be not the first impression in this country, I am unable to say. A very small portion only of the decisions of our courts of admiralty is in print, and we cannot, therefore, infer with certainty that the principle has been here decided, because no case is reported. But the true answer to

the objection is, that the law does not consist of cases but of principles, and when a party claims the benefit of a principle, the true question presented for the consideration of the court, is, whether the law is so; if it is, he is entitled to the benefit of the rule, though he may be the first man who has invoked its aid. In this case my opinion is that the lien is sustained by the general principles of the marine law, as well as by the imposing authority of the most respectable writers who have illustrated, by their labors, this branch of jurisprudence. I feel the more confidence in the opinion which I have adopted on an examination of the authorities, from being informed that it corresponds with that of merchants in this place most conversant in maritime

commerce.

Feb. 19. After the decision was pronounced on the question of law raised by the libel and answer, the case was heard on the evidence. The sale of the vessel was proved as alleged in the answer; it was further proved that the rum was stowed on the deck of the vessel and as well secured there as a deck load is ordinarily in a West India voyage; but after the Rebecca left New York she encountered a gale of such unusual violence that it was argued that the loss of the deck load might be inferred as a necessary consequence of the violence of the seas, and the deposition of the wife of the master was offered to prove the fact, but it was rejected as inadmissible on account of the interest of her husband. The freight agreed for was seventy-five cents per hogshead, and the freight of the corn under deck was two cents per bushel; that the ordinary freight in vessels regularly trading between New York and Portland was one dollar per hogshead, and five cents per bushel for corn; but in transient. vessels, as this was, the price varied from seventy-five cents to a dollar. As soon as the libellant heard of the loss of his goods he ordered process to be instituted against the vessel, but before it could be served she had left the port and did not return until a day or two before she was arrested. During the summer she had been employed in carrying rocks from the North River to the breakwater in the Delaware, and had twice stopped at the port of New York for a few days; but there was no proof that the libellant knew of her being there.

WARE, J. The general question of the liability of the vessel to answer in specie for the loss or damage of goods taken

on freight in those cases in which the master and owners are personally liable, having been decided, the case now stands for decision on the facts and principles of law which they involve. The libel is founded on the bill of lading by which the master contracted for the safe carriage of the goods and for their delivery to the consignee, the dangers of the seas only excepted. It is contended, on the part of the respondent, that the loss was occasioned by the dangers of the seas, and is therefore within the exception. The evidence on this point, the deposition of Mrs. Cobb being excluded, is not direct and conclusive, though such as to render it in some degree probable, and if it were material to be proved, the respondent might be entitled to time to procure and introduce the evidence. But in the view which I have taken of the other parts, I do not think it material. All the merchandise stowed in the hold came safe, and there is every reason to believe if this had been thus stowed, that this also would have been brought safe. The inference is, therefore, irresistible, that the goods were lost in consequence of their exposure on the deck.

Even if it were admitted that the written contract might be explained by parol evidence, the respondent has failed in an attempt to prove that they were thus stowed by the consent or with the knowledge of the owner; he has equally failed to prove that they were taken at a reduced freight, from which such a consent might be inferred from the usage of trade. On the contrary the freight hired in this case by the shipper, was at a higher rate than that paid for goods that went in the hold. The freight of the corn and coffee below was at two fifths of the ordinary rate paid in the regular packets, and that agreed upon for the rum was three fourths. The argument, therefore, if any could be derived from the rate of the freight, would be rather against than in favor of the respondent.

The case then is brought to this point; is the master, on a common contract of affreightment, authorized to stow the goods on deck, without the consent of the owner? I think it quite clear that he is not, and that if he does so, it is done at his own risk; if any loss or injury happen to them he must answer for it. When he signs a bill of lading in the common form, he contracts to carry the merchandise safely in the usual mode of conveyance, which is to have it safely stowed under deck. Such is the

present custom. If there may, by the usage of trade, be an exception in particular places in favor of small craft, plying between port and port, such as that mentioned by Valin, vol. i. 397, vol. ii. 203; or should it be admitted that the usage of carrying a deck load in vessels of greater burthen, such as was testified to, as existing between this port and Boston, may in the particular cases protect the captain from his liability, the usage being in derogation of the general rule, in order to avail the captain in his defence, must be strictly proved, and no such usage is proved as existing between this port and New York. On the contrary we learn from the testimony that goods are sometimes taken on deck by agreement, in which case the usual terms are half freight, but that if they are stowed on the deck without the consent of the owner, they are understood to be at the risk of the master. This case then falls under the general rule, and the master, when he signed this bill of lading, bound himself to all the obligations, as to the safe and careful stowing of the merchandise, that he would have been bound to had it been for a foreign voyage. He cannot exempt either himself or the vessel from liability under the contract, within the exception of dangers of the seas, unless the dangers were such as would have occasioned the loss had the goods been safely stowed under deck. See the case of Dodge v. Bartol, 5 Greenleaf, 286. But this, it appears in the present instance, would not have been the case, as the goods under deck came safe. It follows that though in point of fact the goods were washed over by the violence of the seas, the master is responsible, and therefore the vessel, which stands as surety for his default in this particular, unless she is exempted by other facts in the case.

It is contended that she is exempted on two grounds. First, it is said that the shipper has lost his lien by neglecting to enforce it within a reasonable time. It is admitted that the general interests of commerce require that liens of this description should be enforced without undue delay, and the evidence in the present case shows due diligence on the part of the merchant. As soon as he heard of the loss, he ordered process to be commenced against the vessel, but, before it could be served, she had left this, her home port, and did not return until about nine months after, when she was immediately arrested. It is true that in the intervening period she was engaged in transporting rocks between

the Hudson River and the Delaware, passing the city of New York at every trip, and that twice she stopped at that port for a few days. But it is not proved that these facts were known to the libellant. The master at this time was changed, so that if she had been reported in the shipping lists, it would not be obvious that it was the same vessel, and the nature of her employment was not such as would be likely to bring her to the notice of a merchant. These circumstances are certainly not strong enough to justify a presumption of knowledge on the part of the libellant without proof, and the simple delay of nine months, under the existing state of facts, will not create a bar to this suit, in the nature of a prescription.

If the lien is not extinguished by prescription, it is contended that it is defeated by the transfer; that though the vessel might be still liable in the hands of the original owner, it ceases to be in the hands of a bona fide purchaser. Every maritime privilege, says Emerigon, carries with it a tacit hypothecation. Tout privilege emporte avec soi hypotheque tacite. Contrats a la Grosse, ch. 12, sect. 2. It is created by the operation of law without any concurring act on the part of the creditor, and attaches itself to the thing bound, from the moment that the debt exists. The lien or right of the libellant was anterior in date to the title acquired by the purchaser. Will the law permit this right to be defeated by a sale, without any fault or negligence on his part? The policy of the law, in allowing to the shipper a privilege against the vessel, is to give him additional security. He may wish to ship goods in a vessel with whose owner he is unacquainted; or the vessel may be chartered by the master on such terms that the owner would not be responsible for his acts, and the merchant may be entirely ignorant of the terms of the charter. In favor of commerce, the law allows him to look to the vessel herself for his security. If it did not allow him a reasonable time to make this security available, if it could be defeated by an immediate sale of the vessel, it would be usually found to fail precisely on those occasions, and under those circumstances, which are the principal reasons for giving the privilege; that is, when the owner, or the exercitor under the charter-party, is not, in point of property, responsible.

I do not mean to deny, if a privileged creditor remains silent after having had a proper opportunity to enforce his lien, and