The Ira Chaffee.

it.

"The owner is bound as soon as he or the master settles the terms upon which the ship is to enter upon the service, and it is difficult to perceive why the liability of the latter should be postponed till the inception of the performance." The reasoning of this case is, undoubtedly, in favor of the libellant. But it would seem that the decision might also be supported upon the ground that the libellant himself had partly performed his contract by the payment of his passage money, and his preparations for settlement in California. I do not deem the case inconsistent with the other authorities, which hold that in cases of purely executory contracts the libellant cannot proceed against the vessel.

All of these cases were prior to those of the Freeman and Yankee Blade. In the case of The Freeman, 18 How. 182, the question arose as to the liability of the ship for contracts inade upon the faith of fraudulent bills of lading, given by the captain for property purporting to have been shipped on board. In delivering the opinion Mr. Justice CURTIS observed: "The law creates no lien on a vessel as security for the performance of a contract to transport cargo until some lawful contract of affreightment is made, and a cargo is shipped under it." The case did not call for this opinion, and it must be considered as a dictum. At the same time it has been repeated so often in the same court, and has been so often acted upon as the doctrine of that court by courts of inferior jurisdiction, that it is difficult to say that it must not now be considered as settled law. In the case of The Yankee Blade, 19 How. 82, there was a contract between the owners of certain steamboats, of which the Yankee Blade was one, 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

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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 sued, assuming the vessel subject to a lien, which might be enforced in rem. The court held this contract to be nothing more than an agreement for a special and limited partnership in the business of transporting freight and passengers, and that the mere fact that the transportation was by sea was not sufficient to give a court of admiralty jurisdiction. In delivering the opinion Mr. Justice GRIER said, in commenting upon the reciprocal obligations of the ship and cargo: "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 contract by the owners, but must resort to his personal action for damages, as in other cases. The case did not necessarily call for the expression of this opinion, as the contract was not, properly speaking, maritime."

Since these cases were decided I have found none in which the courts have sustained a libel upon a purely executory contract, except that of Oakes v. Richardson, 2 Lowell, 173, which was in personam. In Rich v. Parrott, 1 Cliff. 55, Mr. Justice CLIFFORD, in alluding to these cases, intimated the opinion that, if the master or owner refuses to perform his contract, or for any other reason the ship does not receive the cargo, the charterer has no privilege or lien on the ship for such a breach of contract by the owners, but must resort to his personal action for damages. The case, however, went off upon another point. In The Hermitage, 4 Blatch. 474, the charterer put a cargo on board, and then took it out and

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refused to fulfil the charter-party, alleging that it had been violated by the owner of the vessel. It was held that the lien attached as soon as the cargo was put on board, and that the owner could libel the cargo for the breach; but Mr. Justice NELSON put his opinion upon the express ground

that the case did not fall within that class of cases where nothing has been done under the charter that is, where no goods have been placed on board-in which case he says there can be no lien upon the vessel or cargo under the charter-party. In The Pauline, 1 Biss. 390, the vessel had been chartered to the libellant, but nothing was done under the charter when the owners refused to comply with its covenants. The libel was dismissed, the court drawing a distinction between that and the case of The Bark Winslow, 4 Biss. 13, where the master had contracted to receive on board a quantity of wheat from a warehouse. Through the negligence of the vessel a portion of the wheat was lost in the process of delivery from an elevator, and it was held that the wheat was delivered to the vessel when it passed from the elevator to the pipe, and that she was liable for the wheat lost. The decision was put upon the express ground of such delivery. The case of The Bark Edwin (Buckley v. The Naumkeag Steam Cotton Co., 24 How. 386,) contains nothing inconsistent with the dicta in the former cases. The loss was occasioned by the explosion of the boiler upon a lighter upon which the cargo was being carried from the shore to the vessel. It. was held that a delivery to the lighter was a delivery to the vessel, and that the vessel became liable from that moment. The court cited and distinguished the former cases, and held that there was no necessary physical connection between the cargo and the ship as a foundation. upon which to raise a liability.

In the case of The General Sheridan, 2 Benedict, 294, Judge BLATCHFORD refused to sustain an action in rem to

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recover damages occasioned to the charterer by the refusal of the vessel to proceed under her charter, basing his decision expressly upon the dicta in the cases of The Freeman and The Yankee Blade, "any duty that may be violated by the owner or master, before the cargo is put on board, is not a duty of the vessel, or one for the breach of which a lien on the vessel is created or can be enforced." In The Keokuk, 9 Wall. 517, the dicta in the former cases are repeated, but otherwise the case is not of value here, as there was no contract to carry the wheat in question, and no delivery of the barge into the custody of the steamer. In Oakes v. Richardson, 2 Low. 173, the learned judge of the district of Massachusetts held that a court of admiralty had jurisdiction of a personal action by the charterer against the owner of the vessel for damages, in not proceeding to the port of loading, and that such jurisdiction did not depend upon the fact of the cargo or some part of it having been put on board the vessel, but intimated the opinion that until some service had been begun there would be no privilege against the vessel under such circumstances. So in Cox v. Murray, Abbott's Adm. 340, it was said that the court was incompetent to sustain an action for a mere breach of contract when no services had been rendered nor any material furnished, nor any other acts done under it upon the vessel. See, also, Hannah v. The Schooner Carrington, 2 Law Monthly, 456.

From this review of the cases it will be seen that, with the exception of the dictum in the case of the Williams, there is no authority for saying that a court of admiralty has jurisdiction in rem for the breach of a purely executory contract. There is reason as well as authority for the proposition If the owner of a cargo has a privilege upon the vessel for a breach of his contract, the vessel would be entitled equally to a lien on the cargo for a refusal of the owner to put it on board, and it might be seized upon the dock or anywhere else

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for the satisfaction of such lien. If the jurisdiction is sustained in this class of cases it ought also to include cases of contract to repair the vessel or supply her with stores, in which the material man would be entitled to a lien, though nothing had been done under the contract. I find it impossible to say with Judge EMMONS, in the case of The Williams, that the dicta in The Freeman and The Yankee Blade are "now expressly overruled." While the point has not been directly adjudicated in the court of last resort, I find no intimation in any of the latter cases of a disposition on the part of that tribunal to recede from the doctrine there announced.

The continental authorities are explicit to the effect that there is no privilege upon the ship until the goods are laden on board. Indeed, they seem to go further, and hold that even after they are shipped they may be withdrawn by the freighter at any time before the vessel breaks ground. By section 191 of the French commercial code, among the debts which are termed privileged are damages due to shippers for a failure to deliver merchandise which they have put on board, or for reimbursement of injuries suffered by the cargo through the fault of the captain or crew. By section 280 the ship, her tackle and apparel, the freight and the cargo are respectively bound to the covenants of the parties. These sections are substantially repeated in the codes of Belgium, secs. 191, 280; Italy, secs. 285, 288; and Spain, secs. 596, 797.

In commenting upon these provisions Dufour observes, (1 Maritime Law, 325:) "With regard to cases which give birth to a privilege in favor of the shippers it will be seen that by the code they are limited to two, viz., damages: First, for failure to deliver the merchandise shipped; second, for reimbursement of the damages suffered through the negligence of the captain or crew."

These are the same theories that