1 McAll. 9 | U.S. Circuit Court for the District of Southern California | 1855
This case comes before the court on an appeal from the decree of the district court of the United States for the Northern district of California, dismissing the libel upon exceptions taken to it. To the exception taken to the jurisdiction of the court, this inquiry will be limited.
For the past half-century, the extent of the admiralty jurisdiction of the courts of this country has been a fruitful source of controversy; and, though illumined as it has been by the genius of some of our ablest jurists, still remains a vexed question. In 1847, in Waring v. Clarke, 5 How. [46 U. S.] 441, the supreme court decided that in cases where admiralty jurisdiction depends on locality, it extends to all torts committed on the high seas, or within the ebb and flow of the tide as far up a river as the tide ebbs and flows, although the place be infra comitatus. Thus much for the jurisdiction of admiralty over torts. In the same year, in the case of New Jersey Nav. Co. v. Merchants’ Bank, 6 How. [47 U. S.] 344, that court decided that the courts of thé United States had admiralty jurisdiction in personam and in rem over libels founded on contracts of affreightment to be executed on the sea, between the cities of New York and Providence. In 1849, in Cutler v. Rae, 7 How. [48 U. S.] 729, they declined to entertain a like jurisdiction in a cause of contribution, or general average, civil and maritime, and they say, “It is very much to be regretted that the jurisdiction of the courts of admiralty, in this country, is not more clearly defined. It has been repeatedly decided in this country, that its jurisdiction is not restricted to the subjects over which the English courts of admiralty exercised jurisdiction at the time our constitution was adopted.” It is not necessary, for the purposes of this case, to enter the
It is admitted by the proctor for libelant, that there is no case parallel in its details with the present; and this court is asked to extend the principles applicable to charter-parties, and make the lien which the law applies to those instruments, applicable to the case at bar. Before viewing the contract in its supposed analogy to a charter-party, let us consider it per se. It is a contract made by owners of vessels in a home port. This circumstance is worthy of consideration. The question is not whether an instrument known to the maritime law, and to which it has annexed a lien, is to be divested of that lien by the fact that such instrument was made by the owner instead of the master of the ship. The point is, whether there should be an implied lien in a contract, such as the one under consideration, made by the owners in the home port. In the case of The Draco [Id. 4.057], Judge Story, after deciding that a bot-tomry bond may be made by the owners of a vessel in a home or a foreign port, says, “Whether upon contracts so made in a home port a remedy lies in the admiralty in rem, is quite a different question.” When so great an advocate of admiralty jurisdiction doubts, we certainly should pause. Again, in Blaine v. The Carter, 4 Cranch [S U. S.] 328, 331, the court say, “In the case of a bottomry bond, executed by the owner in his own place of residence, the same reason does not exist for giving an implied admiralty claim upon the bottom (of the ship); for it is in his power to execute-an express transfer or mortgage.” In view of foregoing reasoning, in relation to a marine instrument, well known to the laws of the sea, in deciding whether there is an implied lien annexed to the contract in dispute, and which is, sui generis, the fact, that there is no necessity for such implication, as it was in the power of the party to make an express hypothecation, is not to be overlooked. To create such lien it has been urged that the present contract is a charter-party, or if not, so analogous to it that the rule applicable to the one should be applied to the other.
A charter-party is the hiring of the whole or a part of a vessel, for the transportation of merchandise or passengers; and if it does not, ex vi termini, convey a proprietary interest, it certainly does pass a claim or interest in the vessel, recognized by the maritime law, the privilege to look upon her as answerable for the goods placed on board. That she is answerable for them, and they to her, is a well-settled and universal rule of law; and the parties, when they enter into the contract, are presumed to do so with knowledge of the lien implied by law from the terms and character of the instrument they make. The present agreement is a personal one, between the owners of vessels, to embark them in a common enterprise and divide the profits in the mode agreed upon; and includes a personal guarantee of one of the owners for a true and honest return of the moneys received by his vessel. If such agreement be a charter-party, then must every agreement between owners, where their vessels are to be used in carrying it out, be so considered; and the law, where no express lien has been created, must imply one. In charter-parties there is a mutuality of lien. The ship is answerable to the goods, and these again to the ship. They are joined together by the act of the law, and cannot be separated, save by the act of the parties, without the discharge of the respective liens. Here is perfect mutuality. The court can perceive none such in this case. The agreement is simply one of association; its object, to make a direct route through from New York to San Francisco, for the transportation of merchandise and passengers, the owners designing to combine the capacity of their two vessels to keep open a direct, uninterrupted communication between the two termini of the contemplated voyage. The court has been unable to find any case decided by the su-prome court of the United States which has adjudicated that implied liens are annexed by the maritime law to associations made by owners of different vessels for purposes of trade. The case of Andrews v. Wall, 3 How. [44 U. S.] 568, is the only case which refers to these associations between the owners of vessels. But the question did not directly come before the court. Judge Story, argu-endo, did say, “Over maritime contracts the admiralty possesses a clear and established jurisdiction, capable of being enforced in per-sonam as well as in rem.” As general as are
The exception to the jurisdiction is overruled, and the decree of the court below, dismissing the libel, is affirmed.