Page:Federal Reporter, 1st Series, Volume 9.djvu/613

 698 FBDEBAIi BUPORTEB. �facts, it is a close question whether the lien lias been waived or not. I confess to a serious doubt on the subject. But, remembering that a court of admiralty is the "ehancery of the seas," and that the libellants have a strong equitable claim upon the forfeited goods for f reight, in view of the fact that the transportation added considerably to their value here, I incline to the opinion that the intent of the own- ers was to discharge the cargo, and not to deliver it, and that the lien for the costs of transportation has not been waived. I am strength- ened in this opinion by the additional facts that the bills of lading have never been surrendered, and no receipt given to the steam-ship for the ore, as is cnstomary in such cases, after delivery. �2. The ore has been forfeited under sections 2839, 286e, of the Ee- vised Statutes. Does such forfeiture carry with it the lienor's interest in the oondemned merchandise ? Some discussion took place between the respective counsel, at the hearing, in regard to the effect which the recent legislation of congress had upon this question. By the third section of the aet of March 2, 1867, (section 2981, Eev. St.,) the col- lector, or other ohief officer of the customs, is authorized, on being notified in writing, by the owner or consignee of any vessel, of a lien for freight on any merchandise imported in such vessel, to refuse the delivery of the same from any publia or bonded warehouse, or other place, in which the same shall be deposited, until proof to his satis- faction shall be produced that the freight has been paid or secured. The provisions of this section were modifled by a substitute passed June 10, 1880, (Supp. to Eev. St. vol. 1, p. 547,) in which the proper officer of the customs, on receiving the said notice of lien for freight, is required, before delivering the merchandise to the importer, owner, or consignee, to give seasonable notice to the parties claiming a lien, and containing the further provision that the possession of the goods by the officers of the customs shall not affect the discharge of such lien. Both the original section and the substitute eontain the clausc : "If merchandise so subject to a lien, regarding which notice has been filed, shall be forfeited to the United States, and sold, the freight due thereon shall be paid from the proceeds of such sale in the same manner as other charges and expenses, authorized by law to be paid therefrom, are paid. " The district attorney insists that as no notice was given to the proper officer of the customs the case does not come within the provisions of the act, and no statutory authority can be invoked to pay the freight out of the proceeds of the sale. The counsel for the petitioners, on the other hand, contends that no notice was required, as none of the iron oce went into a public or bonded warehouse. ��� �