Page:Federal Reporter, 1st Series, Volume 6.djvu/423

Rh for lighters. On the morning of the 16th there was a very severe gale from the south-east, and the ship was driven on shore and bilged. On the 17th a survey was called and the surveyors reported the vessel a complete wreck, water flowing in and out with the tide, and seven feet of water in the hold at low tide. They recommended that every reasonable measure should be taken to land the cargo. All the cargo between decks was landed, delivered, and freight paid for it by the consignees concerned. A few tons of goods were taken out of the lower hold, among which were some of those insured by the libellants, but not the whole of any one consignment. July 20th, upon a second survey, the surveyors reported that some goods had been discharged, and that no more could be recovered without great expense, the hold being full of water, and that the attempt ought not to be made because the value was insufficient to justify the expense of recovering them, and the risk that must thereby be incurred, and they advised a prompt sale of the ship and cargo as they then lay.

The captain tendered to the consignees the goods which had been landed, and offered to deliver those still on board upon payment of landing charges and freight. The consignees, who were also the absolute owners of the cargo, refused to receive their cargo on these terms, and made no objection to the sale, which was duly made by auction, and the proceeds have come into the hands of the respondents,—the owners of the ship,—and the libellants sue for so much of the proceeds as represent the consignments insured by them. They have paid a total loss upon the goods, and have received from the insured assignments of the bills of lading and of all their rights of salvage. The district court decreed for the libellants, and an assessment was made, which I do not understand to be objected to, if the principle of the decree was right. No question is made that the libellant corporation has the right to receive whatever the consignees might have recovered; but it is insisted by the respondents that the freight of these goods was earned, and was a first lien upon them, and, of course, upon their proceeds. The conclusion is sound if the premises are sound.