Lands v. A Cargo of 227 Tons of Coal

Nixon, D. J. This is a proceeding in rent against a cargo of 227 tons of coal, to recover for freight in transporting it in the libellant’s boat, the E. N. Brooke, from Elizahothport to Newark, in this state, and. for demurrage for the detention of the vessel in discharging the cargo. On the return of the monition the respondents filed two exceptions: (1) That the libel did not disclose a case of which the court had jurisdiction; (2) that the monitions did not sufficiently describe the property to be attached. It is an answer to both to say that, with regard to the first exception, a jurisdictional question is raised, which a court of admiralty requires to be presented by the pleadings and proofs, and ordinarily refuses to decide upon a mere motion, (see Cushing v. Laird, 4 Ben. 88; Dennistoun v. Draper, 5 Blatchf. 336; The Othello, 1 Bon. 43;) and, with regard to the second, there is no pretence that the marshal has been misled, and attached the wrong property for lack of a more definite description. The advocate of the libellant has filed with his brief the affidavit of the libellant that the boat performing the service, for which the freight is alleged to be clue, is a foreign vessel — both the vessel and the owner belonging to the port of New York. If he deem the fact a material one in the case, he has leave to amend his libel in this respect. [480] It is conceded that the jurisdiction of courts of admiralty in matters of contract is confined to those that are maritime, but it embraces all such, (Steam-boat v. Phoebus, 11 Pet. 175;) and a contract for the transportation of freight or merchandise, upon navigable waters has always been reckoned maritime in its character. Canal-boat Walsh, 5 Ben. 73. The libel sets forth a contract of affreightment, the performance of the service, and claims a lien upon the cargo for the freight due. Whether the lien exists or not will depend upon the proofs, and cannot be determined on exceptions to the libel. The court will take judicial notice that the waters on which the contract was performed were navigable, without any allegation of the fact in the libel. The Apollon, 9 Wheat. 374; The Steam-boat Jefferson, 10 Wheat. 428; Peyroux v. Howard, 7 Pet. 342. The exceptions must be overruled, and the respondents having answered let an order be entered referring this ease to the commissioner for proofs.