in England, as to the limits and extent of the admiralty jurisdiction, have not an authority in this country beyond the reasons on which they are founded.

With-
The

Every admiralty court in this country probably, most of them certainly, have in repeated instances taken cognizance of cases in which a prohibition would go in England. out multiplying citations I will refer to one or two only. case of the Gen. Smith, 2 Wheat. 432, was a suit by material men and not the slightest doubt was expressed of the jurisdiction of the court. It was again positively and distinctly asserted over that class of causes in the St. Jago de Cuba, 9 Wheat. 409. Yet it is perfectly clear that a prohibition would go in these cases to the High Court of Admiralty. The contract is both made and executed on land and within the body of a county, either of which circumstances is held to be conclusive by the courts of common law against the admiralty jurisdiction. This court must, therefore, in deciding this point, be governed by the nature of the case, and the decisions of our own courts. No case directly in point has been cited at the bar or is recollected by me.

The first thing to be considered in deciding the question, is the subject matter or consideration of the contract, whether maritime or not. It is the hire of a vessel for maritime service, and the whole service, from its inception to its termination, is on the high seas. The Judiciary Act, Laws of the U. S. vol. 2. ch. 20, sect. 9, gives to this court exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.' I shall be glad to hear any definition of causes of admiralty and maritime jurisdiction which will exclude this.

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The counsel do not, however, put their objection on this point. They rely on the fact that the contract is under seal. But if the jurisdiction attaches to the subject matter, is it defeated by the peculiar form which the parties have chosen to give to their contract by annexing to it a seal? The reason given by the common law courts of England for ousting the jurisdiction of the admiralty in such cases is, that this court is governed by the civil law and requires two witnesses to prove a deed, when the common law is satisfied with one. Smart v. Wolff, 3 T. R. 348, Mr. Justice Buller. If that is the rule of the Admiralty in England, it may be a good reason for prohibiting the court from taking cognizance of sealed contracts. In this country a deed is proved in the Admiralty by the same

evidence that is held to be sufficient by the courts of common law, and is interpreted by the same rules. The reason, therefore, which may be good in England fails here, and cessante ratione cessat lex. Yet the rule is flexible in England, for there the Admiralty has an undisputed jurisdiction over bottomry bonds. In fact though Brown in the place referred to in the argument, does state the law of England to be as is contended, that is, that a prohibition will go from the common law courts, yet in a subsequent part of the same chapter he says that if a suit is instituted in the admiralty on a charterparty for freight, he does not see how the court could refuse to entertain it, p. 122; and the case of the Jenny, cited in the same volume, which was a decision of the court of admiralty in Ireland, is directly in point to sustain the jurisdiction, p. 535. The court ruled that the jurisdiction of the admiralty was excluded only when the penalty was sued for

But there is another ingredient in this case which I hold to be conclusive in favor of the jurisdiction. I yield to the argument, which was very forcibly urged in another case as well as in this, that this court has a general jurisdiction to enforce maritime liens. I assume the fact in this stage of the inquiry, which is supposed by the suit, and on which it rests as its only foundation, that a lien is created by the maritime law. If there is here an implied hypothecation raised by the law it can be enforced by no other than an admiralty court. It is a right adhering to the thing, a jus in re which is to be made available by process against the thing in specie. It was admitted by the learned counsel for the respondent, that the course of the common law allows of no process upon the hypothecation by which the subject itself is directly reached and a satisfaction for this right extracted from it. If a court of admiralty cannot entertain jurisdiction of the case, then the law has given the right, it has provided the security, but has refused the only means by which it can be rendered with certainty available. It holds out the right, and holds back the remedy.

The libellants assume the fact that theirs is a privileged debt, and for the decision of this point in the case it must be admitted to be true. They claim the right to be paid out of the property, for which the service has been rendered and by which its value has been augmented, before any part of it goes to the general creditors. And when they apply to the only

court which can put them in possession of their rights, shall. they be told that this court has no jurisdiction of the case? Shall they be told that the law sanctions their privilege and holds it sacred, but refuses to them the power to enforce it? Until I am otherwise instructed by the authority of a higher court, I shall not willingly admit that the law thus 'palters in a double sense, and keeps the word of promise to the ear, while it breaks it to the hope.' On the contrary, where the law raises a lien for a maritime service, I hold that this court has the power to carry it into effect.

We come then to the case on its merits. The general right of the master and owner to retain the merchandise for the freight due upon it has not been denied. It is too well established to admit of doubt. It is a principle of the general maritime law, the common law of the commercial world, sanctioned by all the maritime codes, ancient and modern, and confirmed by numerous decisions of the highest courts both in this country and England. Nor does there appear to be any difference in principle, nor is any recognised in law, whether the merchant takes the whole vessel by a charter-party, or sends his goods in a general ship. The lien of the owners is as perfect for the hire of the vessel stipulated in the charter-party, as it is for the freight stipulated in the bill of lading. In both cases the claim is privileged in the same degree and to the same extent. They are contracts of the same general nature, differing only in some unimportant particulars. A charter-party is for the whole or a large and specified part of the vessel; a bill of lading is usually for a smaller and an indeterminate portion of the vessel's capacity. Both contracts, in one aspect, are the hire of the whole or a part of a vessel, both, in another, are contracts for the transportation of merchandise. Boucher Droit Maritime, par. 879. In both cases the owner is the carrier, and he has a lien on the merchandise for the transportation.

There are, however, two kinds of contracts passing under the general name of charter-party, differing from each other very widely in their nature, their provisions, and in their legal effects. In one the owner lets the use of his ship to freight, he himself retaining the legal possession and being liable to all the responsibilities of owner. The master is his agent, and the mariners are in his employment, and he is answerable for their conduct. The charterer obtains no right of control over

the vessel, but the owner is in fact and in contemplation of law the carrier of whatever goods are conveyed in his ship. The charter-party is a mere covenant for the transportation of merchandise or the performance of the service which is stipulated in it. In the other, the vessel is herself let to hire, and the charterer takes her into his own possession. It is a contract for a lease of the vessel. The owner parts with possession and the right of possession, and the hirer has not only the use but the entire control of the vessel herself. He becomes the owner during the term of the contract. He appoints the master and mariners, and is responsible for their acts. If goods are taken on freight, the freight is due to him, and if by the barratry or other misconduct of the master or crew, the shippers suffer a loss, he must answer for it. If he ships his own goods he is his own carrier.

Under a charter-party of the former description the charterer may hire the use of the whole vessel, and it may be employed in carrying his own goods or the goods of other merchants on freight. His own goods become liable to the owner of the vessel for the charter to the full extent of their value, and though he is entitled to the freight of the goods shipped by the subfreighters, the owner of the ship has a lien on that freight for the charter of the vessel; and his lien extends to the goods of each sub-freighter for the amount of freight due on his shipThis was the decision in the case of Paul v. Birch, 2 Atkins, 621, and it has ever since been held to be law. Holt, Law of Shipping, 471. It is so recognised in Christie v. Lewis, 2 Brod. and Bingh. 410, and in Faith v. East India Co. 4 Barn. and Ald. 630.

ment.

In a charter-party of the second kind, not only the entire capacity of the ship is let, but the ship itself, and the possession is passed to the charterer. The entire control and management of it is given up to him. The general owner loses his lien for freight, but the lien itself is not destroyed; the charterer is substituted in his place, in whose favor the lien continues to exist when goods are taken on freight. But the general owner has no remedy for the charter of his vessel but his personal action on the covenants of the charter-party. It is a contract in which he trusts to the personal credit of the charterer. These principles appear to be firmly established by the cases cited at the argument. It was on this principle that the case of Hutton v. Bragg, 2 Marsh. Rep. 339, was

decided; and afterwards that of the Master of Trinity House v. Clark, 4 Maule and Selwyn, 288. The authority of these cases, especially the former, was indeed powerfully attacked in the very able argument of the libellants' counsel, and it may be considered as in substance overruled by that of Saville v. Campion, 2. Barn. & Ald. 503, and still more decisively in that of Christie v. Lewis, 2. Brod. & Bing. 410. But on an examination of the cases in which the authority of Hutton v. Bragg has been called in question, it will be found that they have rather overruled the case than the principle. The application of the principle as made in that case has been shaken, and not the rule of law which the court professedly assume as the ground of their decision. The principle is that when the owners let the entire ship and part with the possession, they lose their lien for freight. The application of the principle is, that when the owners let the whole ship or nearly the whole by a charter-party containing certain technical terms of demise, the legal possession passed to the charterer, notwithstanding the general owner appointed and paid the master and crew. The Court interpreted this to be a contract not for the transportation of goods, but for the lease of the vehicle. The case of the Trinity House, though agreeing in the terms of the charter-party with that of Hutton v. Bragg, is distinguished from it in the nature of the service for which the ship was hired, and may well be defended on its own peculiar circumstances. But the case of Christie v. Lewis, agrees in all its material facts with Hutton v. Bragg, yet the Court, Dallas, Chief Justice dissenting, reversed the decision and held that the owner retained his lien. But it was so ruled on the express ground that the owner retained the legal possession of the ship by his master and crew. In this case as well as in that of Faith v. the East India Co. it is clearly admitted that when the owners part with the possession they lose their lien. The principle of Hutton v. Bragg remains untouched, but the rules of interpretation applied to the charter-party in that case are overturned. All the English cases are reviewed by Holt, in his Law of Shipping, 460-471, and the result of the whole is, that a ship may be so let to hire as to constitute the charterer owner under the charter-party, provided such appears to be the intention of the parties; and that this intention may be collected either from the necessary construction of the terms of the instrument, or from the nature of the service for which