Maritime liens are
stricti juris, and will not be
extended by construction.
Contracts for the future employment of a vessel do not, by the
maritime law, hypothecate the vessel.
The obligation between ship and cargo is mutual and reciprocal,
and does not take place till the cargo is on board.
An agreement between owners of vessels to form a line for
carrying passengers and freight between New York and San Francisco
is but a contract for a limited partnership, and the remedy for a
breach of it is in the common law courts.
This was a libel, filed originally in the district court by
Vandewater against the steamer
Yankee Blade for a
violation of the following agreement:
"This agreement, made this twenty-fourth day of September, 1853,
at the City of New York, between Edward Mills, as agent for owners
of steamship
Uncle Sam and William H.
Page 60 U. S. 83
Brown, as agent for the owners of steamship
America,
witnesseth, that said Mills and Brown hereby agree with each other,
as agents for the owners of said ships before named, to run the two
ships in connection for one voyage, on terms as follows,
viz.:"
"Of all moneys received from passengers and for freight
contracted through between New York and San Francisco, both ways,
the
Uncle Sam shall receive seventy-five percent, and the
America shall receive twenty-five percent. The money to be
received here, by said E. Mills, and the share of the
America to be paid over to William H. Brown or to his
order before the sailing of the ship, and the share due the
America of moneys received on the Pacific side to be paid
over to said Brown or to his order immediately on the arrival of
the passengers in New York, by E. Mills, who guarantees, as agent
aforesaid, the true and honest return of all funds received by his
agents on the Pacific. It is understood that this trip is to be
made by the
Uncle Sam, leaving San Francisco on or about
the 15th of October, and the
America leaving New York on
or about the 20th of October next."
"Each ship is to pay all expenses of her running and outfits,
and to be responsible for her own acts in every respect. Each ship
is to retain all the money received for local freight or passengers
-- that is, for such freight and passengers as only pay to the
ports the individual ship runs to, without any division with the
other ship."
"No commissions are to be charged anywhere on any receipts for
the
America by said Mills, in division, but the expense of
advertising and the amount paid out for runners at all points are
to be borne by each ship in the same proportion as receipts are
divided between them."
"In consideration of all the above well and truly performed in
good faith, Edward Mills, as agent for the steamship
Yankee
Blade, hereby agrees that when the
America arrives at
Panama on her voyage hence for the Pacific Ocean, said ship
Yankee Blade shall leave New York at such time as to
connect with the
America, conveying passengers and freight
on the same terms as is herein before agreed, say 25 percent to the
Yankee Blade, and 75 percent to the
America,
provided only that said connection shall be made at a time that
will not prevent the
Yankee Blade from making her
connection with the
Uncle Sam at her regular time."
After the usual preliminary proceedings in cases of libel, the
proctors for the claimant filed the following exceptions:
The exceptions of Edward Mills, claimant and sole owner of the
steamship
Yankee Blade, to the libel of Robert J.
Vandewater,
Page 60 U. S. 84
libellant, allege that the said libel is insufficient, as
follows:
"
First Exception. That on the face of said libel it
appears that the alleged cause or causes of action therein set
forth are not within the admiralty and maritime jurisdiction of
this honorable court."
"
Second Exception. There is no cause of action set
forth in said libel, whereby the said steamship
Yankee
Blade can be proceeded against
in rem in this
honorable court."
"
Third Exception. On the face of said libel, it appears
the libellant is not entitled to the relief therein prayed for, nor
to any decree against the said steamship."
"And therefore the said claimant prays that the said libel may
be dismissed with costs."
In June, 1855, the district judge sustained the exceptions and
dismissed the libel, whereupon the libellant appealed to the
circuit court.
In September, the circuit court affirmed the decree, and the
libellant brought the case up to this Court.
Page 60 U. S. 88
MR. JUSTICE GRIER delivered the opinion of the Court.
The libel in this case sets forth a contract between the owners
of certain steamboats, of which the
Yankee Blade was
one,
Page 60 U. S. 89
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 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 demands damages, assuming that the
vessel is subject, under the maritime law, to a lien which may be
enforced
in rem in a court of admiralty.
The circuit court dismissed the libel, being of opinion
"that the instrument is of a description unknown to the maritime
law; that it contains no express hypothecation of the vessel, and
the law does not imply one."
In support of his allegation of error in this decree, the
learned counsel for the appellant has endeavored to establish the
following proposition:
"Agreements for carrying passengers are maritime contracts,
pertaining exclusively the business of commerce and navigation, and
consequently may be enforced specifically against the vessel by
courts of admiralty proceeding
in rem."
Assuming, for the present the premises of this proposition to be
true, let us inquire whether the conclusion is a legitimate
consequence therefrom.
The maritime "privilege" or lien is adopted from the civil law,
and imports a tacit hypothecation of the subject of it. It is a
"jus in re," without actual possession or any right of
possession. It accompanies the property into the hands of a
bona fide purchaser. It can be executed and divested only
by a proceeding
in rem. This sort of proceeding against
personal property is unknown to the common law, and is peculiar to
the process of courts of admiralty. The foreign and other
attachments of property in the state courts, though by analogy
loosely termed proceedings
in rem, are evidently not
within the category. But this privilege or lien, though adhering to
the vessel, is a secret one; it may operate to the prejudice of
general creditors and purchasers without notice; it is therefore
"stricti juris," and cannot be extended by construction,
analogy, or inference. "Analogy," says Pardessus, Droit Civ., vol.
3, 597,
"cannot afford a decisive argument, because privileges are of
strict right. They are an exception to the rule by which all
creditors have equal rights in the property of their debtor, and an
exception should be declared and described in express words; we
cannot arrive at it by reasoning from one case to another."
These principles will be found stated, and fully vindicated
Page 60 U. S. 90
by authority, in the cases of
The Young Mechanic, 2
Curtis 404, and
Kiersage, id.,
421; see also
Harmer v. Bell,@ 22 E.L. & E. 62.
Now it is a doctrine not to be found in any treatise on maritime
law that every contract by the owner or master of a vessel for the
future employment of it hypothecates the vessel for its
performance. This lien or privilege is founded on the rule of
maritime law as stated by Cleirac 597:
"Le batel est obligee a
la marchandise et la marchandise au batel." The obligation is
mutual and reciprocal. The merchandise is bound or hypothecated to
the vessel for freight and charges unless released by the covenants
of the charter party, and the vessel to the cargo. The bill of
lading usually sets forth the terms of the contract and shows the
duty assumed by the vessel. Where there is a charter party, its
covenants will define the duties imposed on the ship. Hence it is
said, 1 Valin, Ordon. de Mar., b. 3, tit. 1, art. 11, that "the
ship, with her tackle, the freight, and the cargo, are respectively
bound
(affectee) by the covenants of the charter party."
But this duty of the vessel, to the performance of which the law
binds her by hypothecation, is to deliver the cargo at the time and
place stipulated in the bill of lading or charter party without
injury or deterioration. If the cargo be not placed on board, it is
not bound to the vessel, and the vessel cannot be in default for
the nondelivery, 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 the contract by the
owners, but must resort to his personal action for damages, as in
other cases.
See 2 Boulay, Paty Droit Com. & Mar. 299, where it
is said,
"
Hors ces deux cas, viz., default in delivery of the
goods, or damages for deterioration,
il n'y a pas de privilege
a pretendre de la part du marchand chargeur, car si les dommages et
interets n'ont lieu que pour refus de depart du navire, pour depart
tardif ou precipite, pour saisie du navire ou autrement il est
evident que a cet egard la creance est simple et ordinaire, sans
aucune sorte de privilege."
Thus, in the case of
The City of London, 1 W. Robinson
89, it was decided that a mariner who had been discharged from a
vessel after articles had been signed might proceed in the
admiralty in a suit for wages, the voyage for which he was engaged
having been prosecuted; but if the intended voyage be altogether
abandoned by the owner, the seaman must seek his remedy at common
law by action on the case.
Page 60 U. S. 91
And this Court has decided, in the case of
The
Schooner Freeman v. Buckingham, 18 How. 188,
"that 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."
Now the damages claimed by the libellant in this case are not
for the nondelivery of merchandise or cargo at the time and place
according to the covenants of a charter party, or for their injury
or deterioration on the voyage, but for a refusal of the owners to
employ the vessel in carrying passengers and freight from New York,
so as to connect with the
America when she should arrive
at Panama. The owners have not made it a part of their agreement
that their respective vessels should be mutually hypothecated as
security for the performance of their agreement, and, as we have
shown, there is no tacit hypothecation, privilege, or lien, given
by the maritime law.
We have examined this case from this point of view because the
libel seems to take it for granted that every breach of contract,
where the subject matter is a ship employed in navigating the
ocean, gives a privilege or lien on the vessel for the damages
consequent thereon, and because it was assumed in the argument that
if this contract was in the nature of a charter party, or had some
features of a charter party, the Court would extend the maritime
lien by analogy or inference for the sake of giving the libellant
this remedy and sustaining our jurisdiction. But we have shown this
conclusion is not a correct inference from the premises, and that
this lien, being
stricti juris, will not be extended by
construction. It is, moreover, abundantly evident that this
contract has none of the features of a charter party. A charter
party is defined to be a contract by which an entire ship or some
principal part thereof is let to a merchant for the conveyance of
goods on a determined voyage to one or more places. Abbott on Ship.
241
Now by this agreement the libellant has not hired the
Yankee
Blade, or any portion of the vessel, nor have the master or
owners of the ship covenanted to convey any merchandise for the
libellant, nor has he agreed to furnish them any. But the agent for
the
Yankee Blade "agrees that when the
America
arrives at Panama, the
Yankee Blade shall leave New York,
conveying passengers and freight," which were afterwards to be
received by the
America, and transported to San Francisco,
and the passage money and freight earned was to be divided between
them -- 25 percent to the
Yankee Blade and 75 to the
America.
Page 60 U. S. 92
This is nothing more than an agreement for a special and limited
partnership in the business of transporting freight and passengers
between New York and San Francisco, and the mere fact that the
transportation is by sea, and not by land, will not be sufficient
to give the court of admiralty jurisdiction of an action for a
breach of the contract. It is not one of those to which the
peculiar principles or remedies given by the maritime law have any
special application, and is the fit subject for the jurisdiction of
the common law courts.
The decree of the circuit court is therefore
affirmed.
