Page:Federal Reporter, 1st Series, Volume 9.djvu/612

SIX HUNDBBD TONS OF IRON ORE. 59I �and retain a lien on the merchandise for the freight; for, in addition to their right under the law-merehant, they inserted a clause in the bUl of lading that "the captain or owner should have a lien on the goods for the payment of freight and all expenses;" and on the day after the arrivai of the steamer. in New York, they caused a notice to be served upon the superintendent of the dook, as appears to be their custom when the consignee is unknown, or they are not willing to trust to his personal responsibility, to hold the ore until the freight ■was paid. These facts are important, in so far as they rebut any presumption drawn from the acts of the parties of the waiver of the lien. The Kimball, 3 Wall, 44. With the above notice in their pos- session, the agents of the owners began to unload the ore into the canal-boats on the t-wenty-second of April, and continued until it was all discharged, on the 28th. One of the boats, in the mean time, being loaded, left the pier and crossed the river to the Morris canal basin. The remaining two, having received the residueof the cargoi followed her there. The superintendent says that he did not know of the departure of the first boat; but he acknowledges that he was informed of it before the others left, and offered no objections, and took no steps to have it brought back. His testimony in the matter is quite significant. Being asked, "Did you make any remonstranoes to the men that were in the other two boats about the first one going away?" he answered: "No, sir; I thought everything was all right, because the same man had been taking ore from us previous to that, and I supposed there would be no trouble about it." Nor did he make any efforts to ascertain its destination, and did not know where it had gone until some days afterwards, when, at the request of the captain, he visited the boat in the Morris canal basin, to examine into some alleged damage which it had received from the steamer while loading the ore. Libellant's Testimony, pp. 27, 28. It is ofteii a difficult question to determine what acts on the part of the ship- owner amount to a waiver of the lien for freight. It is not divested by a delivery to the consignee or his agents if conditions are annexed to the delivery, or if there be an understanding, express or implied, that the lien shall continue. Bags of Linseed, 1 Black, 108. �In 151 Tons of Coal, 4 Blatchf. 468, Judge Nelson went still fur- ther and said that "the mere manaal delivery of the coal by the carrier to the consignee did not, of itself, operate necessarily to dis- charge the lien. The delivery must be made with the intent of part- ing with his interest in it, or under circumstances from which the law will infer such an intent." Applying these principles to the ��� �