Vandewater v. Mills, Claimant Steamship Yankee Blade.

to convey freight and passengers between New York and California. Among other things, it was agreed that the America should proceed to Panama, and the Yankee Blade should leave New York at such time as to connect with the America. The owner of the Yankee Blade refused to employ his vessel according to this agreement, and sent her to the Pacific under a contract with other persons. For this breach of contract the libellant demands damages, assuming that the vessel is subject, under the maritime law, to a lien which may be enforced in rem in a court of admiralty.

The Circuit Court dismissed the libel, being of opinion "that the instrument is of a description unknown to the maritime law; that it contains no express hypothecation of the vessel, and the law does not imply one."

In support of his allegation of error in this decree, the learned counsel for the appellant has endeavored to establish the following proposition:

"Agreements for carrying passengers are maritime contracts, pertaining exclusively to the business of commerce and navigation, and consequently may be enforced specifically against the vessel by courts of admiralty proceeding in rem. Assuming, for the present, the premises of this proposition to be true, let us inquire whether the conclusion is a legitimate consequence therefrom.

The maritime "privilege" or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. It is a "jus in re," without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of courts of admiralty. The foreign and other attachments of property in the State courts, though by analogy loosely termed proceedings in rem, are evidently not within the category. But this privilege or lien, though adhering to the vessel, is a secret one; it may operate to the prejudice of general creditors and purchasers without notice; it is therefore stricti juris," and cannot be extended by construction, analogy, or inference. "Analogy," says Pardessus, (Droit Civ., vol. 8, 597,) "cannot afford a decisive argument, because privileges are of strict right. They are an exception to the rule by which all creditors have equal rights in the property of their debtor, and an exception should be declared and described in express words; we cannot arrive at it by reasoning from one case to another."

These principles will be found stated, and fully vindicated

Vandewater v. Mills, Claimant Steamship Yankee Blade.

by authority, in the cases of The Young Mechanic, 2 Curtis, 404, and Kiersage, Ibid., 421; see also Harmer v. Bell, 22 E. L. and E., 62.

Now, it is a doctrine not to be found in any treatise on maritime law, that every contract by the owner or master of a vessel, for the future employment of it, hypothecates the vessel for its performance. This lien or privilege is founded on the rule of maritime law as stated by Cleirac, (597:) "Le batel est obligée à la marchandise et la marchandise au batel." The obligation is mutual and reciprocal. The merchandise is bound or hypothecated to the vessel for freight and charges, (unless released by the covenants of the charter-party,) and the vessel to the cargo. The bill of lading usually sets forth the terms of the contract, and shows the duty assumed by the vessel. Where there is a charter-party, its covenants will define the duties imposed on the ship. Hence it is said, (1 Valin, Ordon. de Mar., b. 3, tit. 1, art. 11,) that "the ship, with her tackle, the freight, and the cargo, are respectively bound (affectée) by the covenants of the charter-party." But this duty of the vessel, to the performance of which the law binds her by hypothecation, is to deliver the cargo at the time and place stipulated in the bill of lading or charter-party, without injury or deterioration. If the cargo be not placed on board, it is not bound to the vessel, and the vessel cannot be in default for the non-delivery, in good order, of goods never received on board. Consequently, if the master or owner refuses to perform his contract, or for any other reason the ship does not receive cargo and depart on her voyage according to contract, the charterer has no privilege or maritime lien on the ship for such breach of the contract by the owners, but must resort to his personal action for damages, as in other cases.

See 2 Boulay, Paty Droit Com. and Mar., 299, where it is said, "Hors ces deux cas, (viz: default in delivery of the goods, or damages for deterioration,) il n'y a pas de privilege a pretendre de la part du marchand chargeur; car si les dommages et intêrets n'ont lieu que pour refus de depart du navire, pour depart tardif ou precipité, pour saisie du navire ou autrement il est evident que a cet egard la créance est simple et ordinaire, sans aucune sorte de privilege.'

Thus, in the case of the City of London, (1 W. Robinson, 89,) it was decided that a mariner who had been discharged from a vessel after articles had been signed, might proceed in the admiralty in a suit for wages, the voyage for which he was engaged having been prosecuted; but if the intended voyage be altogether abandoned by the owner, the seaman must seek his remedy at common low by action on the case.

Vandewater v. Mills, Claimant Steamship Yankee Blade.

And this court has decided, in the case of The Schooner Freeman v. Buckingham, 18 Howard, 188, "that the law creates no lien on a vessel as a security for the performance of a contract to transport cargo, until some lawful contract of affreightment is made, and a cargo shipped under it."

Now, the damages claimed by the libellant, in this case, are not for the non-delivery of merchandise or cargo at the time and place according to the covenants of a charter-party, or for their injury or deterioration on the voyage, but for a refusal of the owners to employ the vessel in carrying passengers and freight from New York, so as to connect with the America when she should arrive at Panama. The owners have not made it a part of their agreement that their respective vessels should be mutually hypothecated as security for the performance of their agreement; and, as we have shown, there is no tacit hypothecation, privilege, or lien, given by the maritime law.

We have examined this case from this point of view, because the libel seems to take it for granted that every breach of contract, where the subject-matter is a ship employed in navigating the ocean, gives a privilege or lien on the vessel for the damages consequent thereon, and because it was assumed in the argument, that if this contract was in the nature of a charter-party, or had some features of a charter-party, the court would extend the maritime lien by analogy or inference, for the sake of giving the libellant this remedy, and sustaining our jurisdiction. But we have shown this conclusion is not a correct inference from the premises, and that this lien, being stricti juris, will not be extended by construction. It is, moreover, abundantly evident that this contract has none of the features of a charter-party. A charter-party is defined to be a contract by which an entire ship, or some principal part thereof, is let to a merchant for the conveyance of goods on a determined voyage to one or more places. (Abbott on Ship., 241.)

Now, by this agreement, the libellant has not hired the Yankee Blade, or any portion of the vessel; nor have the master or owners of the ship covenanted to convey any merchandise for the libellant, nor has he agreed to furnish them any. But the agent for the Yankee Blade "agrees that when the America arrives at Panama, the Yankee Blade shall leave New York, conveying passengers and freight," which were afterwards to be received by the America, and transported to San Francisco; and the passage money and freight earned was to be divided between them-25 per cent. to the Yankee Blade, and 75 to the America.

United States v. Brig Neurea.

This is nothing more than an agreement for a special and limited partnership in the business of transporting freight and passengers between New York and San Francisco, and the mere fact that the transportation is by sea, and not by land, will not be sufficient to give the court of admiralty jurisdiction of an action for a breach of the contract. It is not one of those to which the peculiar principles or remedies given by the maritime law have any special application, and is the fit subject for the jurisdiction of the common-law courts.

The decree of the Circuit Court is therefore affirmed.

THE UNITED STATES, APPELLANTS, v. THE BRIG Neurea, her TACKLE, &C., WILLIAM KOHLER, CLAIMANT.

Where a libel for information, praying the condemnation of a vessel for violating the passenger law of the United States, states the offence in the words of the atatute, it is sufficient,

THIS was an appeal from the District Court of the United States for the northern district of California.

The case presented a general demurrer to the following libel for information:

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA. IN ADMIRALTY.

To the Hon. Ogden Hoffman, Jr., Judge of the District Court of the United States for the Northern District of California:

The libel of Samuel W. Inge, attorney of the United States for the northern district of California, who prosecutes on behalf of the said United States against the brig Neurea, and against all persons intervening for their interest therein, in a cause of forfeiture, alleges and informs as follows:

1. That Richard P. Hammond, Esq., collector of the customs for the district of San Francisco, heretofore, to wit, on the thirty-first day of August, in the year of our Lord eighteen hundred and fifty-four, at the port of San Francisco, and within the northern district of California, on waters that are navigable from the sea by vessels of ten or more tons burden, seized as forfeited to the use of the said United States the said brig Neurea, being the property of some person or persons to the said attorney unknown.

2. That one Kohler, master of the said brig Neurea, which is a vessel owned wholly or in part by a subject or subjects of

United Stutes v. Brig Neurea.

the kingdom of Sweden, did on the first day of June, in the year of our Lord eighteen hundred and fifty-four, at the foreign port of Hong Kong, in China, take on board said vessel two hundred and sixty-three passengers, which was a greater number of passengers than in the following proportion to the space occupied by them and appropriated for their use on board said vessel, and unoccupied by stores or other goods not being the personal luggage of such passengers, that is to say, on the lower deck or platform, one passenger for every fourteen clear superficial feet of deck, with intent to bring said passengers to the United States of America, and did leave said port with the same; and afterwards, to wit, on the twenty-sixth day of August, in the year of our Lord eighteen hundred and fifty-four, did bring the said passengers, being two hundred and sixty-three in number, on board the said vessel, to the said port of San Francisco, within the jurisdiction of the United States, and that the said passengers so taken on board of said vessel, and brought into the United States as aforesaid, did exceed the number which could be lawfully taken on board and brought into the United States as aforesaid, as limited by the first section of the act of Congress approved February 22, 1847, entitled "An act to regulate the carriage of passengers "in merchant vessels," to the number of twenty in the whole, in violation of the act of Congress of the United States in such cases made and provided, and that by force and virtue of the said acts of Congress, in such case made and provided, the said vessel became and is forfeited to the use of the said United States.

And the said attorney saith, that by reason of all and singular the premises aforesaid, and by force of the statute in such case made and provided, the aforementioned vessel became and is forfeited to the use of the said United States.

Lastly, that all and singular the premises aforesaid are true, and within the admiralty and maritime jurisdiction of the United States and of this court.

Wherefore the said attorney prays the usual process and monition of this court in this behalf to be made, and that all persons interested in the said vessel may be cited in general and special to answer the premises, and all due proceedings being had, that the said vessel may be, for the causes aforesaid and other appearing, be condemned by the definitive sentence and decree of this court, as forfeited to the use of the said United States, according to the form of the statute of the said United States in such case made and provided.

The act of Congress referred to will be found in 9 Stat. at Large, 127.