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and without any demand of freight, two of the thirtyfive, thus received being nearly empty. The remaining four casks came out on Saturday, and their delivery was refused to the carman, unless the freight was then paid. The consignee, on being notified of this fact, with all reasonable dispatch, caused the freight to be tendered to the master of the ship on board, and demanded the four casks then on the wharf ready for delivery, the discharging for the day not being ended, although it was just about five o'clock P. M.

The master of the ship declined to receive the freight tendered, and refused to deliver the casks, assigning as a reason, that he did not know the amount of the freight. At the same time while he referred the consignee to the office of the consignee of the ship, as the place to pay the freight, he offered to deliver the casks as demanded, if a sum, exceeding by a considerable amount the freight actually due, were deposited with him as security therefor.

The libellant not assenting to this, the goods were not delivered on Saturday, but were sent to store subject to the order of the consignees of the ship. On Monday morning the libellant paid the freight to the consignees of the ship, who received the same, and tendered to the libellant an order on the storehouse, for the delivery of the goods, on payment of the charges i. e., cartage and a month's storage. The libellant decliped to pay the charges and demanded an order, on which he could obtain his goods, free of all charges. This was refused. Thereafter this action was commenced in which the libellant seeks to recover the value of the four casks not delivered to him, and the loss on the two casks which were delivered nearly empty of their contents.

For libellant, Francis H. Dykers.

For claimant, James K. Hill.

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BENEDICT, J. As to the claim for the wine lost from the two casks, I am of the opinion, that upon the proofs the libellant cannot recover that portion of his demand. The cause of the loss of the wine, was doubtless owing to the pressure of the cargo, and the heavy weather. The proofs do not make out a case of bad stowage; and if they did the ship would not be responsible, as this wine was stowed in the ship by stevedores employed, directed and paid by the shippers of the wine.

As to the four casks demanded on Saturday and not delivered, I consider the libellant entitled to recover their value. These casks were duly demanded of the master of the ship, at the ship, during proper hours, and when they were on the wharf for delivery. The demand was accompanied with a tender of all the freight due on the whole consignment, of which all, but these four casks, had already been delivered without objection or demand of freight.

There is no evidence of a notification to the libellant, that he must pay his freight at the office of the consignee of the ship, nor that a pre-payment must be made before delivery, and the delivery of the casks was offered, provided a sum greater than the freight was deposited with the master.

The master of this ship, having designated his consignees to collect his freight, and having deposited with them his bills and documents, showing the amounts of the freight, had the right, upon the tender of freight being made to him at the ship, to take a reasonable time to enable him to ascertain the correctness of the amount of the freight, before accepting the tender and delivering the cargo; but he had no right meanwhile to store the merchandise at the expense of the freighter. It is not shown that any difficulty existed to prevent his taking in these four casks, and holding them until Monday, which was the earliest time at which the freight could be ascertained by him, or be paid at the office

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of the consignee. Nor under the circumstances of this case, could the master be held to have the right to store the goods at the expense of the consignee after tender of freight, were it to be considered proved, as the claimants insist, that according to the usage of this port, in the case of a foreign ship, freight must be always paid in advance, and to the consignee of the ship alone. For here the greater part of the consignment was delivered without any payment or demand of freight, or any order of the consignee, and the master offered to deliver the balance on a deposit being made with him. And when the libellant was notified of the stoppage of the four casks, it was at such a late hour on Saturday, that the libellant was justified in proceeding at once to the ship, where the demand of freight had been made, to pay his freight there in time to prevent his goods from going to store. The freight being then tendered and refused, he was, even under the usage as claimed, entitled to a reasonable time, after he was notified, to proceed to the office of the consignee, and there pay his freight. This was not afforded him, but the goods were at once stored, and thus subjected to cartage, and a month's storage.

The position taken on the trial, that the master was justified in refusing to deliver the casks, when the freight was tendered, because no bill of lading or other evidence of property was there produced, is untenable, for the reason that the libellant's right to receive the goods had already been acknowleged by the delivery to him, of the greater part of the consignment.

The libellant was justified in refusing to pay the charges on the goods, and, having paid all the freight due and demanded his goods free of charges, on being refused became entitled to maintain an action for the non-delivery of the four casks, according to the bill of lading.

The decree will accordingly be that the libellant

William Muir v. The Brig Brisk and Alfred Morine.

recover the value of the four casks, with interest and costs. Let a reference be had to ascertain the value of these casks, if it cannot be agreed to.

JUNE, 1870.

WILLIAM MUIR et al. v. THE BRIG BRISK AND ALFRED MORINE.

POSSESSION.-MASTER.-LIEN.-LOADING VESSEL WHILE IN CUSTODY.BONDING AFTER DECREE. -APPEAL.

Where owners of a British vessel filed a libel, to recover possession of her, against the master who claimed to have a lien upon her, under the English law, and to hold her by reason of such lien; and, after the vessel had been seized by the master, under the process in the action, the owners, through a new master whom they had appointed, chartered the vessel, and by consent of the marshal, but without the permission of the Court, began to load the vessel under the charter:

Held, That the fact, that the master claimed a lien on the vessel, under the English law, furnished no ground for his refusal to deliver the vessel to her

owners.

That a Court of Admiralty has the right to decline to entertain jurisdiction, where all the parties are foreigners resident abroad.

That the act of the owners, in interfering as they had done with the vessel, while in the custody of the law, would well justify the Court in declining to exercise jurisdiction in the premises, but as that had been done with the consent of the marshal, and the rights of the defendant could be otherwise protected, the Court would decree that the libellants recover possession of the vessel without costs, on their paying into Court the inward freight collected by them, less the usual inward charges, including unloading and crew's wages, as security for the payment of any sum found due to the master, in an action to be brought by him within twenty days, if he was so advised. After such decree was entered, the respondent gave notice of appeal, but took no steps to perfect his appeal for several days, and the owners applied to the Court for leave to bond the vessel:

Held, That the Court would not grant leave to bond the vessel, but would direct that the decree be executed, unless the respondent perfected his appeal, and procured the cause to be transmitted to the Appellate Court within two days.

William Muir v. The Brig Brisk and Alfred Morine.

BENEDICT, J. This is an action brought by the libellants William Muir and others, claiming to be the sole and only owners of the British Brig "Brisk," to obtain possession of that vessel from the defendant, Alfred Morine, who claims to hold the vessel as the master thereof, and denies the right of the libellants to remove him. The defendant by his answer puts the libellants to their proof of ownership, and sets up in opposition to the demand of the libellants, the fact that he has a claim against the owners for wages and advances as master, which the libellants have not offered to pay, and for which by the law of England, he has a lien upon the vessel and her freight, by reason of which he insists that this Court should refuse the decree prayed for by the libellants.

The evidence of ownership introduced by the libellants, I consider to be sufficient to entitle them to the relief prayed for; certainly, in the absence of any countervailing evidence, or any suggestion that any other parties are the owners of this vessel. As to the fact that the defendant has an unpaid demand for wages and disbursements, for which the law of England gives him a lien upon the ship and freight, it is only necessary to say that, assuming the facts to be as set up, they afford no reason for refusing to the owners the possession of the ship, to which they are entitled as being the sole owners. A lien for wages and disbursements cannot give to the master a legal right to the possession of the vessel, as against his owners. Cases might be imagined, disclosing such equities and presenting such features of hardship in the dealings of owners with their master, as would justify a Court of Admiralty in refusing the aid of its decree in favor of owners who refuse to do equity, but this case presents no such features. These owners are not shown to be irresponsible-they offer to give the defendant security to pay any sum which may be due him, while they deny that