Page:Federal Reporter, 1st Series, Volume 2.djvu/415

i08 FKDEBAL REPORTER. �that the dicta în The Freeman and The Yankee Blade are "now expressïy overruled." While the point has not been directly adjudicated in the court of last resort, I findno intimation in any of the later cases of a disposition on the part of that tribunal to recede from the doctrine there announced. �The continental authorities are explicit to the effect that there is no privilege upon the ship until the goods are laden on board. Indeed, they seem to go further, and hold that even after they are shipped they may be withdrawn by the freighter at any time before the vessel breaks ground. By section 191 of the French commercial code, among the debts which are termed privileged are damages due to shippers for a failure to deliver merohandise which they have put on board, or for reimbursement of injuries suffered by the cargo through the fault of the captain or crew. By section 280 the ship, her tackle and apparel, the freight and the cargo, are respectively bound to the covenanta of the parties. These Bections are substantially repeated in the codes of Belgium, §§ 191, 280; Italy, §§ 285, 288; and Spain, §§ 596, 797. �In commenting upon these provisions Dufour observes, (1 Maritime Law, 325 :) "With regard to cases which give birth to a privilege in f avor of the shippers it will be seen that by the Code they are limited to two, viz. : damages — First, forfaiture to deliver the merchandise shipped; second, for reimburse- ment of the damages suffered through the negligence of the captain or crew." These are the same theories that obtain in the Consolato del Mare, as the foundation of the privileges of merchants, and experience has not indicated that it is necessary to extend them to other cases. I believe, then, that I ought to add, with Valin, that this disposition is limited. Thus, although article 280 declares that the ship is bound to the performance of the charter-party, this obligation does not confer a lien in favor of the merchant, if the non-per- formance of which he complains does not fall within one of the cases provided by our article, (191.) Valin cites as ex- ample, in this regard, the damages obtained by a shipper who, upon the occasion of the seizure of the ship or otherwise, has been obliged to withdraw the marchandise which he has put ����