| Ala. | Jan 15, 1844
1. It is not pretended by the libel-lant’s counsel, that there is any lien on the steamboat independ
The act of 1836, [Clay’s Digest, 139,] after giving a lien upon steamboat^, or other water craft, to any person who shall furnish materials, labor or stores for their use, provides that, if such lien shall not be enforced on or before the first day of July then next ensuing the furnishing of such materials, &c., such lien shall cease to exist. It provides, also, that this lien shall be enforced in any court having jurisdiction of the amount due; and specifies how the boat, &c., may be replevied. The section of the act, which is supposed to govern this case,is in these terms: “Whenever any steamboat, or other water craft, shall receive on board any goods, wares, or merchandise, as freight, to be delivered at any specified landing, and shall fail to deliver the same as specified by the bill of lading, the owner or consignee of such goods, wares or merchandise shall be entitled to a lien on such boat or other water craft, to be sued for and recovered in like manner.”
It is not probable the Legislature intended to provide only for a total loss of the goods shipped ; for that, although somewhat common, was by no means the most frequent cause of loss to the shipper. When goods, which have been received in good order, and, by the terms of the bill of lading, are to be delivered, have been injured on board the craft, and the injury is not within the exceptions contained in the bill of lading, they can never be delivered “ as specified by the bill of lading”; such an injury is then within the words, as well as the spirit of the enactment.
We think the statute intended to make this, as well as all the other liens created by it, determinable on the first day of July, although that day is only mentioned in connexion with materials, &c., furnished. We are induced to this conclusion because, it the lien was to determine with the departure of the boat, it would be ineffectual in all but a very few cases ; as it is notorious they leave, in most cases, within a few minutes, frequently within a few seconds of the delivery.
It never could have been intended to make the lien, in cases of injury, dependent upon the sailing of the craft, as it is by the course of the admiralty law. It would be equally inconsistent to suppose the lien was always to continue ; for this would effectually impede all sales of vessels of this description. We con-
2. The instructions of the county court, with respect to the .supposed waiver of the lien, must be understood in connexion with tire circumstances in evidence: and it would have been proper to have charged the jury, that these did not amount to a waiver. Indeed, it is difficult to imagine how one can waive a matter of which he is ignorant.
. We think no presumption of waiver can arise, unless the party has a knowledge of some injury sustained, and some act is done with the intention to waive the peculiar remedy ; or, unless there is a specific contract inconsistent with the existence of the lien. [Peyroux v. Howard, 7 Pet., 324" court="SCOTUS" date_filed="1833-02-19" href="https://app.midpage.ai/document/peyroux-and-others-v-howard-and-varion-85832?utm_source=webapp" opinion_id="85832">7 Peters, 324. Brig Nelson, 1 Sumner, 73.]
It is evident, that the facts of this case do not bring it within any of these principles ; and that they do not warrant the instructions requested by the claimant. Therefore, although the charges given may not be entirely correct, in the broad terms in which some of them are announced, yet they had no tendency to mislead the jury when considered in connexion with the evidence. In this connexion, they may be considered as free from any error which could affect the verdict.
J udgment affirmed.