Page:Federal Reporter, 1st Series, Volume 9.djvu/611

 596 FEDERAL REPORTER. �Schenck & Co. agreeing, if the ore did not arrive, to pay back the said $200. The steam-ship reached her pier in the port of New York on the twentieth of April, 1881. Schenck & Co. paid the duties and obtained the usual custom-house permit for the landing of the ore, which they delivered to Wells on the next day, (21st,) and received from him $1,670 on account of payment on the -whole ship- ment. Wells then procured and sent to the steam-ship three barges or canal-boats, with instructions to take the ore on board and proceed to the railroad dock of the Morris & Essex road, at Hoboken, New Jersey, and there remain until he gave further orders. The steam- ship company began to discharge the ore on the twenty-second and jS.nished on the twenty-eighth of April, the three boats crossing the river at different times and mooring in the basin of the Morris canal. On the twenty-ninth the collector of New York, discovering a frauda- ient undervaluation of the goods by Schenck & Co., the importers, caused the same to be seized while yet in the basin of the Morris canal at Hoboken ; reported the seizure to the district attomey for this district, who iiled the usual information in such cases for for- feiture, and duly condemned the cargo, no one appearing to contest the forfeiture. Pending these proceedings the marshal took posses- sion of the ore, and, by order of the court, sold it for $3,200, and paid the proceeds of the sale into the registry of the court, where they still remain. Are the owners of the steam-ship entitled to demand and receive from these proceeds the freight money still due and impaid on the importation, or are they obliged, under the circumstances, to look to the consignees for payment ? �The case presents two questions for consideration : (1) Was the lien of the ship-owners on the cargo for freight lost by the delivery made ? (2) If not, does the forfeiture of goods, under sections 2839, 2864, Eey. St., extend to and include the interest of bonajide lien- ors without notice of the fraud? �It is coneeded that by the maritime law the ship-owner had a lien upon the goods transported for the freight, unless there be some stip- ulations in the contra&t of affreightment inconsistent with the exer- cise of the lien ; as, for instance, when the freight is made payable at a date subsequent to the delivery of the cargo. For, unlike the priv- ileg'mm under the civil law, the lien for freight depends upon the pos- session, and is lost when an uneonditional delivery is made, or when any agreement is entered into by the parties in regard to the pay- ment of freight, which involves a prior surrender of the possession. In the present case, the ship-owners, undoubtedly, intended to have ��� �