value at the end of the voyage. The res must be surrendered entirely free of prior liens; otherwise, the owners could always mortgage and make the value of the thing surrendered trifling. The owner must surrender any damage recovered from other vessels, and pending freight, including the passenger fare prepaid, must be surrendered. The Act may be set up either as a defense to a suit in any court, or an independent proceeding may be brought in admiralty. The practice in such a case is to appoint a trustee and order a reference to take proof of claims and an injunction against pending suits. All claims in such a proceeding are paid pro rata. Admiralty liens give

no advantage.

22.

Maritime liens.-Maritime liens differ radically from common law liens. A maritime lien is a jus in re (right in a thing). It does not depend on possession, and it gives no right to possession. It can be enforced only by a proceeding in rem (against the thing). The authorities are not clear in all respects in relation to the relative rank of maritime liens. Tort claims take precedence.24 There is no doubt in respect to the rule in the case of pure torts like collisions. The reason is that the vessel as a whole is considered a wrongdoer. The various claims already existing against the offending vessel are immaterial to the party injured. All tort claims rank prior contract claims, and probably subsequent contract claims, where the injured party has a right of action against the owner in personam (in person).

Salvage claims take rank over all contract claims 24 The John G. Stevens, 170 U. S. 113.

The reason is Seamen's wages

except subsequent seamen's wages.25 that the salvors saved the res. rank all other contract claims except subsequent salvage claims.26 It was the ancient rule that seamen's wages are nailed to the last plank of the ship. The reason is that but for the seamen's services the ship would not have reached port. Claims for materials, supplies, advances, towage, pilotage, and general average rank equally in the absence of special circumstances. Bottomry ranks low among maritime liens, because the risk is compensated for by a high rate of interest.

23. Mortgages.-A mortgage on a vessel does not create a maritime lien.27 A mortgage cannot be foreclosed in the admiralty. The recording of a mortgage does not affect this principle. But when the proceeds of the sale of a ship are in the registry for distribution, admiralty awards payment to a mortgagee after all maritime liens are paid.

24. Contracts of affreightment.-A vessel may be operated by her owners, or leased to others. If she is operated by the owners on their own account, on contracts direct with the shippers, such contracts are called contracts of affreightment. The reward which a vessel earns for transporting merchandise is called freight. The rules regarding freight often apply to the compensation for carrying passengers. In contracts of affreightment there are two implied warranties: one of seaworthiness, and the other against

25 The Fort Wayne, 1 Bond 476 (U.S.).

26 The Virgo, 46 Fed. 294.

27 The J. E. Rumbell, 148 U. S. 1.

28

deviation. The warranty of seaworthiness, so far as the rights of the ship are concerned, is one of the most rigid known to the law. It is a warranty that at the commencement of the voyage the vessel shall be thoroughly fitted for the voyage. It is more than a warranty that the owner will exercise reasonable care. It is an absolute warranty of fitness for the voyage, even against latent and entirely unsuspected defects.2 A warranty against deviation is that the vessel will pursue her proposed voyage by the accustomed route without unnecessary delay.29 It is one of the ancient doctrines of the admiralty that the ship is pledged to the cargo and the cargo to the ship for the fulfillment of the contract of carriage. The cargo has a lien on the ship if it is not properly delivered, and the ship has a lien on the cargo for the freight money. The lien on the cargo for the freight money differs from the ordinary admiralty lien, and is similar to a common law lien in being dependent upon actual or constructive possession. The vessel owner who delivers the cargo or possession of it to the consignee loses his lien on the cargo for the freight. Freight, however, is not due until the cargo is unloaded and the consignee has had an opportunity to inspect the goods. The master cannot demand freight before unloading, nor can the consignee demand the goods before paying the freight. The proper procedure is to discharge the goods in a pile by themselves on the wharf, or into a warehouse, notifying the consignee that the lien for freight is not abandoned; then if the consignee, after

a reasonable time for inspection, does not pay the freight, the master can proceed in rem against the goods.30

25. Contract of affreightment an entire contract. -The contract of affreightment is an entire contract, so that the general rule is that the freight is not earned until the contract is completed. Under this principle, in case of a marine disaster, the master has the right to repair the vessel and complete the voyage, or he may transship the goods into another vessel and so save the freight. If neither of these can be done profitably, he may sell the goods, but if he does not complete the voyage he is not entitled to freight. The parties, however, may by mutual agreement provide for paying freight pro rata at an intermediate port, if the voyage is broken up, and this agreement may be implied if the consignee voluntarily receives his goods at such an intermediate port.

26. When a ship is a common carrier.—A ship may or may not be a common carrier. A common carrier exercises a public employment, and must undertake to carry goods for persons generally as a business. Regular liners are common carriers. On the other hand, a ship chartered for a special cargo or for a special purpose is not a common carrier.

27. Bills of lading.-A bill of lading is a document evidencing the contract for shipment. It is usually given by the master directly to the shipper. It binds the vessel or her owners to the shipper. Originally it was a very simple paper, consisting substantially of a receipt for the goods, specifically de

30 Brittan v. Barnaby, 21 How. 527 (U. S.).

scribing them, and of a contract to carry and deliver them at a designated place of delivery. At the present time bills of lading, particularly through bills of lading for the carriage of property by rail and water for long distances, are often very complicated documents. A bill of lading given by the master of a vessel for goods not actually on board does not bind the vessel or its owner, under the decision of the federal courts,31 although under the decisions of some of the state courts such a bill of lading is valid. Under the decisions in this country, a common carrier cannot stipulate for exemption from negligence in a bill of lading.32 Bills of lading usually contain various exceptions. One is of "the perils of the sea." This usually means all inevitable accidents incident to the sea which are the proximate cause of the loss. The accident must arise independently of the crew's acts.

28. Charter parties.-If a vessel is leased to others, it is usually done by an instrument called a charter party. There are many different kinds of charter parties. A time charter is when the ship is hired for a definite time, as for a month or a year. A lump sum charter is one where a lump sum is paid for the ship for a certain time. A voyage charter is when she is hired for a definite voyage. A tonnage charter is where the charterer pays a certain rate per ton. There are charters relating to different kinds of business, as grain charters, cotton charters, petroleum charters, etc. An owner may demise his bare ship, leaving the charterer to furnish the crew, or he may

31 Mo. Pac. Ry. Co. v. McFadden, 154 U. S. 155.

32 New York, etc., Co. v. Lockwood, 17 Wall. 357 (U. S.).