APPEAL from the Circuit Court for the District of Wisconsin; the case being this:
The La Crosse and Minnesota Steam Packet Company were, during the year 1865, owners of the steamer Keokuk and of several barges, including one named the Farley, which were running on the Mississippi River between La Crosse and Winona, and engaged in carrying freight. On the 23d of October, in that year, the Keokuk towed the barge Farley to Winona, and left her moored at the dock at that place, not however in any one's charge. On the 27th, at about five o'clock in the afternoon, one Robson, a shipper at Winona, getting on the barge, took her to the elevator near by, and with his own men, loaded her with wheat to be shipped to La Crosse. He did not ask permission of the master of the Keokuk to load the barge, nor inform either him or any other person of his intention to load her. He had, however, previously, at times, taken possession of barges and loaded them, and they were afterwards towed by the packet company to La Crosse; he had done this by permission of the officers of the packet company, but had never had permission to do it from the captain then in command of the Keokuk.
The Keokuk did not arrive at Winona from La Crosse that night until after dark. The night was a very stormy night, and it was snowing hard. The vessel landed at what was known as the lower landing, about fifty rods from the elevator, where the barge then was, and after unloading put off again at about twelve o'clock at night for La Crosse. While the boat was laying where she was, the bookkeeper of Robson came to her second clerk, who was 'very busy checking off freight,' in the dark in the storm, a lantern in one hand and his book in the other, and handed to him two papers, saying, 'Here care the bills of that barge.' The clerk took them with some assenting remark, and put them in his pocket without opening them; 'so that the rain should not spoil them.' There was no explanation what bills the bills were, and nothing further took place between the parties. No book was presented to the clerk to sign and no receipts asked for. This clerk subsequently laid the bills on the first clerk's desk in the boat, the place where he usually put bills. He was not positive, but he thought that when he put them there he said to the first clerk, 'Here are those bills.' He did not himself know their contents. No other notice than that already mentioned was given to the officers of the boat that the barge had been loaded, and none of the officers were aware of the loading of the barge until they were one-third of the way back to La Crosse. The papers were then discovered to be memorandum bills of lading of the barge. The barge was not watched by Robson, and in the morning it was found sunk at the dock where he had left it. Thereupon Robson filed a libel in the District Court of Wisconsin against the steamer, the barge, and the packet company, charging that the barge was unseaworthy, and that the cargo was lost by carelessness of the master and officers of the steamers. There was no proof to sustain the charge of unseaworthiness.
The District Court decreed for the libellant; the Circuit Court affirmed the decree. The packet company appealed.
Mr. J. W. Cary, for the appellant:
The law creates no lien on a vessel as a security for the performance of a contract to transport a cargo, until a cargo is shipped under it. In Vandewater v. Mills,  this court says: 'Maritime liens are stricti juris, and will not be extended by construction. The obligation between the ship and cargo is mutual and reciprocal, and does not take place till the cargo is delivered on board.' Now here there was no sufficient delivery.
Mr. Emmons, contra:
The rule, as laid down by this court, in the case cited by Mr. Cary, is explained by it in Bulkley v. The Naumkeay Steam Cotton Company.  There the master receipted for a hundred bales of cotton, to be carried on his vessel, and placed it on a lighter, of which he had control, to be transferred from the warehouse in the city of Mobile, to his vessel, lying outside the bar. The cotton was lost by fire on the lighter before reaching the vessel. It was held that a delivery of the cotton to the lighterman was a delivery to the master, and bound the vessel.
Mr. Justice DAVIS delivered the opinion of the court.
^1 19 Howard, 82.
^2 24 Id. 386.
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