— The personal obligation to pay freight rests either on the charter party, or on the bill of lading, by which the payment of freight is made a condition of delivery; and the general rule is, that the conveyance and delivery of the goods is necessary to entitle the carrier to freight. [3 Kent’s Com. 219 ; Frith v. Barker, 2 Johns. Rep. 327; Palmer, et al. v. Lorrillaird, et al. 16 Johns. Rep. 348; Andrew v. Morehouse, 5 Taunt. Rep. 435; Gibson v. Mender, 2 B. & A. Rep. 17; Bradhurst v. Col. Ins. Com. 9 Johns. Rep. 17.] In the present case, the agreement as shown by the bill of lading obliges the plaintiff to deliver to the defendant or his order in Mobile, the merchandise designated in it, and the latter in consideration of such delivery, stipulates to pay a gross sum for freight. Now it might admit of question, whether it was not incumbent upon the plaintiff to deliver all the goods, before he could require the payment of the freight. [Vance, et al. v. Clark, et al. 1 Miller’s La. Rep. 324.] Yet we are inclined to think, that the receipt of a part authorizes an apportionment and recovery pro rata. Upon this hypothesis we will consider the case.
That the defendant may resist the recovery of freight upon the ground of inexcusable loss of a part óf his goods, seems to us to be a plain proposition. The principles of maritime law are exceedingly liberal, and controlled by an enlarged equity; the strict rules which govern sets off at law, would not be allowed to operate upon contracts within its influence, when these rules operate injustice. Where there is a state of things growing out of, or resulting from a contract of affreightment, showing that the shipper has been injured by the carrier to an amount equal to the freight, the latter cannot be permitted to recover. This conclusion is supported, not only by the equitable principles to which we have referred, but also by the legal right to rocoupc the damages.
The only remaining inquiry is, docs it appear that the four *346barrels of whiskey were lost under such circumstances as makes the plaint:®' liable to pay for them. In Barber v. Bruce, 3 Conn. Rep. 9, it was decided that where goods were placed on. deck without the consent of the owner, and are in consequence thrown overboard in tempestuous weather, in the absence of a custom thus to stow them, which was binding on the shipper, the carrier was responsible for the loss. [See also Smith, et al. v. Wright, 1 Caine’s Rep. 43; Lenox v. United Ins. Com. 3 Johns. Cases, 178.] These citations we think correctly lay down the law, and it follows, from the proof in the record, that the plaintiff is liable for the loss. The consequence is, that the judgment of the County Court is reversed, and the cause remanded.