It is not important to determine upon this appeal whether the plaintiff was entitled to any freight for the transportation of the coal, nor, if any, how much. He was probably entitled to the whole of his freight less his share of contribution on account thereof with the vessel and cargo to *Page 67 the salvage expenses; and for the purposes of this appeal we will assume he was. His complaint was, however, properly dismissed at the trial. The action is purely one for a wrongful conversion of the coal. There is no allegation in the complaint of any contract or of any money due or earned for freight. The allegations are as follows: "That the defendant now is, and at the time mentioned in this complaint was, a domestic corporation. That heretofore, to-wit, on the 5th day of November, 1881, this plaintiff, who then was and now is a common carrier, had in his possession and on board the boat "Arizona," of which he was owner, a large quantity of coal, which he had carried from the port of New York to the port of New Haven on freight. The value of said coal was at least $1,000. On the day last aforesaid the defendant, by its agents and servants, entered upon said boat and by force and arms took therefrom the cargo aforesaid, in all to the damage of this plaintiff in the sum of $1,000, for which sum he prays for judgment against the defendant with interest and the costs and disbursements of this action."
It appears that the coal was shipped by the Delaware, Lackawanna and Western Railroad Company and insured for it by the defendant, and that the railroad company assigned, transferred and abandoned the coal and all its claim and interest therein to the defendant. Hence the defendant had all the right to the coal of a general owner and cannot be treated as a wrongdoer in ordering it to be sold and removed from the boat unless at the time of such sale and removal the plaintiff had a lien thereon for his freight.
While there was not formal proof that the railroad company owned the coal, it may be inferred, in the absence of other proof, that it was owner, from the fact that it shipped the coal and insured it. And further, it was assumed upon the trial that it was owner, and the point that the defendant had not shown sufficient title to the coal and did not stand in the place of the original owner was not taken at the trial.
It remains only to be determined, whether, at the time of the alleged conversion of the coal, the plaintiff had a lien thereon *Page 68 for his freight which was destroyed by the acts of the defendant.
Carriers by land and water have a lien upon the goods transported for their freight, but the lien is lost when they voluntarily allow the goods to pass out of their possession, and in this way we think the plaintiff lost his lien.
Plaintiff's vessel with the coal was sunk in not less than forty feet of water on the 5th day of November, 1881, and he left it where it sank, never thereafter attempting to rescue it, or to complete its voyage, or manifesting the least intention to do so. The cargo was insured for the owner by the defendant, and the vessel was insured for the plaintiff by the Buffalo Insurance Company. Soon after the sinking of the vessel the plaintiff gave notice thereof to the Buffalo Insurance Company, the defendant, and the shipper of the coal, and he made to the Buffalo Insurance Company proofs of a total loss and offered to abandon the vessel. That company refused, under the terms of its policy, to accept an abandonment for a total loss, and announced its intention, in pursuance of the policy, to try to recover the vessel for the benefit of all concerned.
Thereafter, on the 17th day of November, the Buffalo Insurance Company and the defendant made a contract with the Baxter Wrecking Company to recover the vessel and cargo and deliver them at New Haven, the port of destination, for the sum of $1,000, to be apportioned between the vessel and cargo according to the laws and usages of general average in such cases. The wrecking company raised the vessel and cargo and by means of pontoons transported them to New Haven, and while they were there and the vessel was unable to float alone, being held up by chains passing under it and fastened to the pontoons, the defendant ordered the agent of the wrecking company to discharge and sell the coal, and this he did; and after deducting the share of the salvage expenses chargeable to the coal he paid over the balance of the proceeds to the defendant.
After the vessel and coal had reached New Haven, the plaintiff notified the defendant not to remove the cargo from *Page 69 the vessel without paying his freight. But he did not resume actual possession of the vessel until after it was unloaded and removed to a dry dock at Jersey City. The claim of the plaintiff is that he remained during all this time in the constructive possession of the vessel and that the insurance companies and the wrecking company could be treated as his agents. They were not his agents; they did not assume to act as such, and they could not bind him by any thing they did. He was not bound by the agreement made with the wrecking company, nor bound to pay the compensation agreed upon. The three companies were all engaged as salvors, and their primary purpose was to secure benefits to themselves and not to the owner of the property. The fact that the plaintiff might derive some benefit from the salvage service did not make the salvors his agents. The primary purpose of all salvors is to benefit themselves by what they can make out of the salvage, and the fact that the owners of the vessel or cargo may also derive benefits never makes the salvors their agents.
Here the Buffalo Insurance Company owed the plaintiff no duty as to his freight which they had not insured, and it was under no obligation to aid him in earning that. Its sole duty was to indemnify him as to the vessel to the extent of its insurance. It was not bound to raise or save the cargo. For the purpose of raising the vessel it could have removed the coal therefrom and left it beneath the waters without violating any right of the plaintiff. So, too, neither the defendant nor the shipper owed the plaintiff any duty to raise either the coal or the vessel. In the contract with the wrecking company the defendant was seeking to save the coal and the Buffalo Insurance Company to save the vessel, and the one was really to pay for raising the vessel and the other for raising the coal. Under them and for them the wrecking company undertook to perform the salvage service, and it took possession of the vessel and cargo, and took both into the port of New Haven. It cannot be doubted that it then had possession of the vessel and coal and had a lien upon both for the salvage service. It was while it *Page 70 thus had possession that the coal was discharged and sold by it under the direction of the defendant.
It cannot be said that the original taking of the vessel while it was beneath the water was unlawful because that was with the assent of the plaintiff. When informed that the insurance company intended to make efforts to recover the vessel he made no objection. By his silence, making no objection, and making no effort to recover the vessel or cargo, he must be held to have assented to all that was done until the boat reached New Haven, and at that point of time the boat and cargo were out of his possession, and the owner of the cargo had resumed control of the same, and the plaintiff had thus lost his lien.
Thereafter his remedy, if any, for his freight was an actionex contractu against the shipper or the defendant, and not an action in tort on account of any lien upon the cargo; or he might have brought an action in equity against the shipper, the insurance companies and the salvors, and thus obtained an adjustment of the salvage expenses and an award for the balance due him for his freight.
If we hold, as we must, that the plaintiff is not in any form of action entitled to recover for his freight more than what was left, after deducting therefrom his share of the salvage expenses, then it is certainly quite extraordinary to hold that a recovery can be had in a pure action of tort against the defendant, also liable to contribute to salvage expenses, without the presence of all the parties liable to such contribution; or in other words, that in an action of trover or trespass to recover the value of the whole cargo against the owner thereof, the salvage expenses can be adjusted between freight, cargo and vessel without the presence of the other parties interested therein.
I am, therefor, of opinion that the order of the General Term should be reversed and the judgment of the Trial Term affirmed, with costs.
RAPALLO, ANDREWS and MILLER, JJ., concur with DANFORTH, J., for affirmance, RUGER, Ch. J., and FINCH, JJ., concur with EARL, J., dissenting.
Order affirmed.
Judgment accordingly. *Page 71