| E.D.N.Y | Feb 15, 1875
This is an action by Gaspar Monte, owner of the bark Castillo, to enforce a lien upon the cargo of the bark for freight alleged to have been earned under a charter party, made at Palermo, on the 7th day of October, A. D. 1870. The terms of the charter party are not in dispute, and it is admitted that it contains no clause binding the ship to the goods and the goods to the ship for the duo performance of the contract. The fact is also undisputed that the cargo here proceeded against was transported in the vessel. But the libellant’s right to recover is disputed upon two grounds: First, that, if freight be-same due, the lien therefor has boon lost by an unqualified delivery of the cargo, without any indication of an intention to claim a lien for freight. Second, that by reason of a failure to perform the stipulations of the charter in respect to the time when the vessel should be ready to receive the cargo, the charterers sustained damages exceeding the freight, which they have the right to set off by way of recoupment against the claim for freight. It is only necessary to consider the first named ground of defense, for the testimony brings the case within the ruling of the supreme court in the case of The Bags of Linseed, 1 Black [00 U. S.] 10S. As in that case, so here, the cargo was delivered without any condition or qualification.
There is no evidence of any understanding, or of any local usage of the port from which an understanding can be inferred, that the