portation at any point without paying full freight. 1 Pars. Shipp. & Adm. 231. The carrier, as before stated, has a lien for his freight and to earn his: freight, so long as he is not in default; and neither the consignor nor the consignee can take from him the power, under such circumstances, to earn his freight, without being held to have waived the performance of the condition precedent to make delivery at the place specified. The authorities are very satisfactory on this point. Moreover, the doctrine stands on principle, and our Code has embodied this rule in statutory form. § 3868, Comp. Laws; -Pars. Merc. Law, 349; The Nathaniel Hooper, 3 Sum. 542-555. Bradstreet v. Baldwin, 11 Mass. 229; Luke v. Lyde, 2 Burrows, 882-887; Palmer v. Lorillard, 16 Johns. 348; Clarke v. Insurance Co., 2 Pick. 104; McGaw v. Insurance Co., 23 Pick. 405-410; Hunter v. Prinsep, 10 East, 394; and cases hereafter cited. We are clear that at the time the master was prevented from completing his transportation of the property he was able, willing, and had the legal right to go on with his contract, and make delivery at Fort Buford. The voyage was merely interrupted. The delay occasioned by this unavoidable accident had not been, nor was it likely to be, so great as to justify the consignee in assuming that the delivery would not be made at Fort Buford within a reasonable time, under aH the circumstances. Even though the master had distinctly informed the consignee that he would not proceed with his contract until he could continue the transportation by river, in the spring, we believe that under the authorities the consignee could not have demanded the goods without entitling the plaintiff to full freight.
In this we are sustained by eminent authority; and on principle the consignor, who had failed to provide against such a contingency in his contract of affreightment, should not be allowed to insist under such circumstances that the carrier, at perhaps an expense so great as more than to destroy the profit of the voyage, should forward the goods by another route, and by other means. A shipment by water on the verge of winter must be understood by both parties to be subject to the risks of delay from the closing of navigation, nothing to the contrary appearing in their contract. The agreement was to transport
