Page:Federal Reporter, 1st Series, Volume 8.djvu/780

766 FEDERAL REPORIKE. �value had been given to them by the payment of the diities. Moro- over, they had in part been subjected to land transportation, and a part had been subjected to the risk of a new and different voyage, yiz., to Boston. AU the dealings of the master with the poiatoes irom the time of the stranding up to, I may say, the compienoement of this suit, were inconsistent with the idea of a transhipment of his cargo for the purpose of earning the freight provided for by; the bill of lading of the Porter. If a case may be imagined where the sale of a cargo, by the master, in good faith and under oireumstances of justification, might be rescinded by the master for the purpose of eflfecting a transhipment of cargo, this is no such case. Here it was impossible for the master to restore matters to their former condition. By virtue of the authority conferred upon him by the circumstances, the master became empowered to sell the potatoes, and the power had been exercised. He had thereafter no power to buy them again for account of the consignees, nor any power to pay back duties on account of the consignees, nor, indeed, any power over them as agent of the consignees, and he had, by his own acts, lost the right to earn his freight by means of a transhipment. So he himself seems to have believed, for he made a new shipment of the potatoes on the Altevilia by a new bill of lading, which provided for a delivery on payment of a new freight, viz., $500. There is in the libel an aver- ment that the insertion of the sum of $600, as freight, in the bill of lading of the Altevilia, was by mistake ; but of this there is no proof. It is my opinion, thercfore, that the potatoes in question, when received by Perkins & Job, were not subject to any lien for the freight and demurrage provided for in the bill of lading of the Porter. �The claim for duties is more untenable. In point of fact, the master of the Porter paid no duties on his cargo. What he did was to pay to the parties who had bought the potatoes, subject to duties, the sum they had paid for duties. I am unable to see any ground upon which to charge these potatoes with a lien for moneys paid without any authority from the freighters for such a purpose. As already stated, neither by the libel nor upon the argument has the question of the liability of the potatoes for pro rata freight — distance freight, as it is sometimes called — been presented. In cases where complete performance of a contract of affreightment has been ren- dered substantially impracticable, and benefit has acerued to the freighter by part performance of the contract, courts of admiralty do sometimes administer a larger equity than is permitted to courts of ��� �