The Pauline

MILLER, District Judge. This libel is brought against the vessel, her master, and owners. The libel propounds, that the said owners of the schooner, by their agent chartered said schooner to libellant, verbally, for a voyage from the port of Milwaukee to the port of Buffalo, to be provided by, and to carry for, said libellant a cargo of eight thousand bushels of wheat, under deck, from Milwaukee to Buffalo, at the freight of eight and one half cents per bushel, to be paid on the discharge of said cargo at Buffalo; said voyage to be made and said wheat taken immediately on the return of the vessel to Milwaukee, she being at the time on her way from Buffalo to Milwaukee; that the vessel reached Milwaukee, and a better offer having been made for said vessel by other parties, the defendants chartered her to other persons, and refused to comply and fulfill the charter to libellant. The libellant sustained damage to the amount of four hundred dollars. The defendants filed exceptions to the libel, as follows: (1) That the libel does not allege sufficient to give jurisdiction to the court, over the contract or over the vessel. (2) That the cause of action, as laid in the libel, is purely of common law jurisdiction, and not of admiralty. (3) That a proceeding in rem and in personam is impropierly joined. There is no objection to the contract, as being by parol. It is sufficient for the coasting trade, although a loose way of doing business. Oouk. Adm. 131, and cases cited. In England, the admiralty has not allowed jurisdiction of contracts of affreightment. The common law courts claimed the jurisdiction. In this country, the constitution of the United States and the acts of congress are construed as conferring upon the district courts admiralty jurisdiction of contracts of af-freightment.2 A maritime contract depends on its subject matter, and the courts have jurisdiction of contracts, which relate to the service or employment of a vessel. And contracts of affreightment entered into by the master or agent of the vessel in good faith, and within the scope of his apparent authority, bind the vessel to the merchandise. 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 a cargo, until the cargo is shipped under it. The Freeman v. Buckingham, 18 How. [59 U. S.] 182, 188. In Vandewater v. Mills, 19 How. [60 U. S.] 82, the court lay down and establish the following rules in admiralty, to wit: “Maritime liens are stricti juris, and will not be extended by construction, analogy, or inference. Contracts for the future employment of a vessel do not, by the maritime law, hypothecate the vessel. The obligation between the ship and cargo is mutual and reciprocal, and does not take place till the cargo is delivered on board.” The opinion of the court expressly repudiates the doctrine, that mere agreements for the service or employment of a vessel may be enforced against the vessel by admiralty proceedings in rem. The same principle is reiterated in Bulkley v. Naumkeag Steam Cotton Co., 24 How. [65 U. S.] 386. The master had receipted for the cotton to be carried on his vessel, and placed it on a steam lighter, of which he had control, to be transferred from the warehouse to his vessel. and it was lost by fire. The court held that a delivery of the cotton to the lighter-man was a delivery to the master, and bound the vessel, the voyage being considered to have commenced. On page 392, the court remarks: “It is insisted that the vessel is exempt from responsibility, upon the ground that the one hundred bales were never laden on board of her, and we are referred to several cases in this court, and in England, in support of the position. The [4] Freeman, 18 How. [59 U. S.) 189; Vanderwater v. Mills, 19 How. [60 U. S.] 90; Grant v. Norway, 2 Eng. Law & Eq. 337; Hubbersty v. Ward, 18 Eng. Law & Eq. 551; Coleman v. Riches, 29 Eng. Law & Eq. 323. But it will be seen, on reference to these cases, the doctrine was applied or asserted upon a state of facts wholly different from those in the present case. In the cases where the point was ruled, the goods were not only not laden on board the vessel, but they never had been delivered to the master. There was no contract of affreightment binding between the parties, as there had been no fulfillment on the part of the shipper, namely, the delivery of the cargo. It was conceded no suit could have been maintained upon the original contract, either against the owner or the vessel.” In the case of The R. C. Winslow [Case No. 11,736] decided in this court, the master had contracted to receive on board his vessel for transportation a quantity of wheat from a warehouse, where wheat is weighed in one hundred bushel drafts, tallied by the first mate, and discharged through an iron pipe, extending from the warehouse to the vessel; the second mate being on deck to watch the flow of wheat from the pipe into the hold of the vessel, to shift the pipe, to control the discharge of wheat into the pipe, and to trim the vessel; and through the negligence of this mate seven drafts of the wheat were lost in the river by the parting of the pipe. It was held that the wheat was delivered to the vessel when it passed from the warehouse into the pipe, and that the vessel was liable for the wheat lost. I remarked, “This case is different from a contract merely ex-ecutory, where there has been no delivery of the goods to the master, nor change of possession, nor effort to deliver. When there is no delivery of the goods, the contract of the master for their transportation creates no lien.” In Hannah v. The Carrington [Id. 6,029], the ship was withdrawn from the trade, and refused further to comply with a contract of affreightment, and the vessel was not liable. The cases here referred to are wanting in the essential particular of delivery to the vessel. NOTE. Nor is a contract to furnish materials for the construction of a vessel even on the shores of tide waters, within the admiralty jurisdiction. Young v. The Ornheus [Case No. 18,169]. See The Dick Keyes [Id. 3,898], where it is held that a contract for the use of a barge at a stipulated rate is cognizable in admiralty. Admiralty has no jurisdiction over a preliminary agreement. Andrews v. Essex Fire & Marine Ins. Co. [Id. 374]. In the great case of New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. [47 U. S.] on page 392, it is remarked by the court: "Some question was made on the argument founded on the circumstance, that this was a suit in personam. The answer is, if the cause is a maritime cause subject to admiralty cognizance, jurisdiction is complete over the person as well as over the ship; it must, in its nature, be complete, for it cannot be confined to one of the remedies on the contract when the contract itself is within its cognizance.” In Morewood v. Enequist. 23 How. [64 U. S.] 491, the admiralty jurisdiction of the courts of the United States extends to contracts of charter party, &c., affreightment; and are cognizable in courts of admiralty by process either in rem or in personam. But no responsibility can attach to the owners if the ship is exempt and not liable to be proceeded against. Freeman v. Buckingham, 18 How. [59 U. S.] 182-189. It is not necessary to pursue this inquiry any further, notwithstanding the voluminous and ingenious argument of libellant's advocate. The agreement propounded in the libel is cognizable in the common law courts, and is not the subject of . admiralty cognizance. It was a mere executory contract for the service of the vessel; or rather an agreement preliminary to a maritime contract Such contracts must be equally binding on both parties. And it could not be pretended that this court in admiralty would have jurisdiction of a libel against Newhail, at the suit of these owners, if he had been the delinquent party. The state law authorizing proceedings against boats and vessels does not create such a lien as is cognizable in the admiralty, and consequently there is not to be a proceeding in personam. By rule 12, proceedings in personam, but not in rem, shall apply to cases of domestic ships for supplies, repairs, or other necessaries. This case does not come within the rule. In the case of Vandewater v. Mills, 19 How. [60 U. S.] 82, the court dismissed the libel on exceptions. Following that precedent, this libel, for the reasons here given, will be dismissed on the exceptions herein filed. Footnotes [2] [See The A. M. Bliss, Case No. 274.]