Maritime liens ■do not depend upon possession. This rule is almost universal, but there is one exception. If the owner of a vessel part with the possession of goods by delivering them to the consignee, he thereby loses his lien for freight. Such is the law at least in this circuit, it having been so declared by the circuit court, and followed by this court. And it has been held, that if an agreement be made between the shipper of goods and the carrier, by which a credit is given for the freight beyond the time when they are to be ■delivered to the shipper, the lien for freight is thereby waived; for in such case the carrier, being bound to deliver the goods before the freight is payable, must, in the performance of that contract, divest himself of the possession, and transfer it to the consignee without payment of the freight, and the lien must be thus terminated. In the present case, the libellant, on the 31st of August, 1857, took two notes for $10,000, payable in six months, for freight.
This necessarily gave a credit until the ■expiration of those notes. It was a new contract entered into by the parties for adequate consideration; both expected that the ship would arrive several months before the maturity of the notes, that is, before the freight would be payable, and both must hare contemplated that the cargo would be ■delivered to the consignee upon arrival. There is no part of the agreement which indicates that the carrier was to hold on to the goods until the maturity of the notes, and the parties must have understood that the cargo would be delivered in the usual time after arrival. It could not have been contemplated, that the owner of the goods should be kept out of the possession and control of them for several months, because he had for an adequate consideration obtained a credit for that time for the freight. The credit upon such a condition would be an injury rather than a benefit. This ship did not arrive as early as was expected, but she arrived more than a month before the expiration of the credit.
The cargo was in a condition to be delivered to the consignee, and the delivery was duly demanded by him before the freight was payable; but the carrier refused to deliver it unless the freight was first paid. This refusal was wrongful. He had by a valid agreement given a credit for the freight which had not then expired, and by so doing had agreed that he would deliver the goods and relinquish his lien, without payment of the freight; and he cannot, by violating his agreement and holding on to the goods, place himself in a situation to maintain- a suit to enforce the lien which he had agreed to relinquish.