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The article on the Origin of Property, another on Usury, and another on
Art. I. p. 7, 1. 6, for against the principles,' read a general principle.'
THE AMERICAN JURIST.
ART. I.-THE SHIPPER'S LIEN ON THE VESSEL.
DISTRICT COURT OF MAINE, January 3 and 7, 1831.
A merchant who ships merchandise in a vessel on freight has a lien on the vessel for the loss of his goods, or any damage they may sustain from the fault or neglect of the master, or the insufficiency of the vessel.
He may enforce his lien by process in rem against the vessel in the admiralty.
In such a case the vessel is, by the marine law, hypothecated to the merchant for his damages, from the time that the misfortune happens, and his claim against it is preferred to the right of the general creditors of the
The right of preference may be lost by unreasonable delay.
But his lien is not defeated by a bona fide sale before he has had an opportunity for enforcing it, and still less when the purchaser has knowledge of the claim.
The master is not authorized to stow goods on deck without the consent of the owner.
If goods are so stowed they are at the risk of the master, and if they are unavoidably lost or damaged, he cannot protect himself from his liability within the exception of the dangers of the seas.
THE libel in this case alleges that the libellant, on the 20th of March last, shipped at New York, on board of the schooner Rebecca, of which T. R. Cobb was master, ten hogsheads of liquor, consigned to E. Greely & Son, of Portland, to be there safely delivered, the dangers of the seas only excepted, at the stipulated freight of seventy-five cents the hogshead; that the vessel arrived at Portland, and the consignees offered to pay the freight, and demanded the delivery of the goods; and that the captain refused to deliver them, they having been lost in consequence
VOL. VI.-NO. XI.
of having been carelessly and improperly stowed by the captain; and prays for process against the vessel, her tackle, apparel, and furniture, that they be condemned and sold to pay the libellant his damages.
Scott, the claimant, in his plea and answer, states that he purchased the Rebecca on the 20th of December last, of David Jones, who purchased her on the 5th of the preceding April of Francis Chase, (the owner at the time when the liquor in question was shipped); that the vessel in the intermediate time has been repeatedly at New York, where the libellant resides, and might there have been attached if she were liable to this process, and denies that she is by law liable under any circumstances for the damages which the libellant has sustained.
The case was argued, on the question raised by the answer, as to the liability of the vessel, in specie, to answer for the damage sustained in consequence of the fault of the master, by Longfellow for the libellant, and C. S. Davies for the respondent.
WARE, J. The libel and answer present a question of law, which, if decided in favor of the respondent, disposes of the case, without the necessity of going into an examination of witnesses. This question is whether the vessel is liable in specie to answer for the loss or damage, by the fault of the captain, of goods which are taken to be transported on freight. Another question, it is true, arises on the allegations of the pleadings; that is, admitting the general liability to be established, while the vessel remains in the hands of the owner at the time when the damage is sustained, whether this liability continues under any circumstances after a sale. This point, however, has not, in this stage of the proceedings, been argued, for if the first question is decided in the negative, this becomes unimportant, and if decided in the affirmative, it may depend on the facts and circumstances under which the sale was made.
A doubt is suggested in the answer, but it was not insisted upon at the argument, whether the court has jurisdiction of the subject matter of the libel. In a case very similar to the present, as affecting the jurisdiction of the court, I have had occasion heretofore to consider this question, and have seen no reason since for changing the opinion then formed after a very able argument and on mature reflection, that this court has in a case