10 F. Cas. 182 | S.D.N.Y. | 1868
Authority can bo found for maintaining the libel in this case. Thus, in the ease of The Pacific [Case No. 10,643], decided in 1S50, Mr. Justice Nelson, in the circuit court for this district, says, that it is not necessary, in order to give jurisdiction to the admiralty in rem, in the case of a contract, maritime in its nature and object, that the vessel should have entered upon the performance, and that the breach should have occurred in the course of the voyage; and that, if the vessel refuses to receive the cargo on board, when it is at her side ready to be delivered, she is bound, and the party aggrieved is not obliged to look exclusively to the master or owner. But later cases have overruled this view. In the case of The Freeman v. Buckingham, 18 How. [59 U. S.) 182, decided by the supreme court at the December term, 1855, Mr. Justice Curtis, delivering the opinion of the court, says: “Under -the maritime law of the United States, the vessel is bound to the cargo, and the cargo to the vessel, for the performance of a contract of affreightment. But 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.” In the case of Vandewater v. Mills, 19 How. [60 U. S.] 82, decided by the supreme court at the December term, 1S56, Mr. Justice Grier, delivering the opinion of the court, says: “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.” This view was applied by this court in July, 1857, in the case of Reed v. The Telos [Case No. 11,653); and in May, 1860, in the case of Torrices v. The Winged Racer [Id. 14,102). It is true that, in Vandewater v. Mills [supra], the court says that it was no part of the written agreement sued on in that case, that the vessel libelled in rem therein should be hypothecated as security for the performance of the agreement; and, it is urged on the part of the libel-lant in this case, that the doctrine laid down in Vandewater v. Mills is not applicable to this case, for the reason that by the charter party in this case, there is an express hypothe-cation of the vessel. The libel avers that “the parties to the said charter party did also therein and thereby bind themselves, their executors, administrators, and assigns, and the said vessel, freight, tackle, and appurtenances, and the merchandise to be laden on board, each to the other, for the true and faithful performance of all the covenants and agreements therein contained, in the penal sum of the estimated amount of the said charter.” This is the usual penal clause inserted in charter parties. Maclachlan, Merch. Shipp, c. 8, p. 334. It is founded on the rule of maritime law stated by Cleirac (097): “Le batel est obligée á la marchandise et la marchandise au batel”; and by Valin (1 Valin, Ord. de Mar. bk. 3, tit. 1, art. 11): “The ship, with her tackle, the freight, and the cargo, are respectively bound by the covenants of the charter party.” The express covenant in this charter party binding the vessel to the merchandise to be laden on board, and the merchandise to be laden on board to the vessel, must be construed conformably to the principles of the maritime law, and imports nothing more than would have been held, according to those principles, to be a part of the contract, if the express covenant had not been contained in the instrument. The obligations of the vessel to the merchandise to be laden on board, and of the merchandise to be laden
This view of the covenant in the charter party is sustained by the opinion of the circuit court for this district, in the case of The Hermitage [Case No. G,410]. The charter party in that case contained a clause, whereby, for the fulfilment of the several stipulations of the charter party, each party bound himself to the other — the one, the vessel, freight, and tackle; the other, the merchandise to be laden on board. The charterers put some cargo on board, and then a dispute arose as to some of the provisions of the charter party, whereupon the charterers commenced taking out the cargo, and refused to go on with the charter party. The libellant filed a libel in rem against the cargo, to recover freight, according to the charter party, for the time the vessel was used by the charterers, and damages for the nonfulfillment by them of the charter party. The district court, on exceptions filed to the libel, dismissed it, on the ground that the suit in rem would not lie. On appeal by the libellant, the circuit court (Mr. Justice Nelson) reversed the decree of the district court, and sustained the libel, on the express ground that the cargo had been put on board, and the voyage had, in fact, commenced according to the terms of the charter party, and that the lien on the cargo attached as soon as it was laden on board; and that, so far as the form of remedy was concerned, the case stood in the same position as if the voyage had been broken up by the charterers at any other point in the course of it. And he added: “This case does not fall within that class of cases where nothing has been done under the charter of the vessel, that is, where no goods have been placed on board, and the voyage has not been entered upon; in which cases there can be no lien upon the vessel or cargo under the charter party. In such cases, whether the breach of the agreement is on the part of the owner or of the charterer, there can be no proceeding in rem against the vessel or the cargo, as no lion has attached for the benefit of either party.” These views are decisive as to the present case. They indicate that the doctrine of the case of The Pacific must have been considered by Mr. Justice Nelson himself as unsound, probably in view of the opinion of the supreme court in the case of Yandewater v. Mills.
The exceptions are allowed, and the libel is dismissed, with costs.