And it is immaterial whether the contract is by a bill of lading or a charter party.

But where by the terms of the contract the charterers have the possession and control of the ship, the charter-party is not a contract for the transportation of goods, but it is a letting of the ship, and the charterers are considered as owners for the voyage.

In this case the general owners have no lien on the cargo for the hire of the ship.

Where by the terms of the contract a ship was chartered for a voyage to be made by the charterers from Portland to the Western Islands and back to her port of discharge, they to pay the expense of victualling and manning, and all port charges, &c. and to deliver her up to the owners on the termination of the voyage, it was held that the possession was with the charterers, and they were owners for the voyage, notwithstanding one of the owners was named in the charter-party as at present master.

The master has a lien on the freight for his necessary disbursements for incidental expenses and the liabilities which he contracts for these expenses during the voyage, and also for his own wages.

Where the charterers of a vessel failed before the termination of the voyage, and transferred all their property to assignees in trust to pay their creditors, including the cargo on board the ship, and it appeared that the freight due on the merchandize taken on freight was exhausted by prior claims, it was held that the master's wages were a privileged claim against the merchandize he had brought home for the charterers, and that he was entitled to a satisfaction out of it before it went to the general creditors.

THIS was a libel on a charter-party, by the terms of which the owners let to freight the whole of the vessel with her appurtenances, for a voyage to be made by the charterers to one or more ports in the Western Canary and Madeira Islands and back to her port of discharge in the United States and to Portland. The owners covenanted that in and during the voyage she should be tight, stanch, and strong, and sufficiently tackled and apparelled for such a ship and voyage, and that it should be lawful for the charterers or their agents or factors, as well at Portland as in foreign ports, to load and put on board such loading and goods as they should think proper, contraband excepted. On the part of the charterers it was agreed that they should pay for the full freight or hire of the brig one dollar per month during the time of the service, in thirty days after the termination of the voyage, and pay the charge of victualling and manning, and all other charges, and deliver her, on her return to Portland to the owners or their order. The charter-party is dated the 12th of Sept. 1827; the brig performed the voyage and returned to Portland the 25th of April 1828, with a cargo, part of which was taken on freight and part shipped on account of the charterers. One of the owners is named in the charter-party as master, but he being unable to go in her when she was ready for sea, a new master was appointed. A question of fact about which the parties.

were not agreed, was, by whom the new master was appointed; but it appeared from the evidence, though the owners were desirous that the person who finally went as master should be the man, that the right of appointing him was claimed and exercised by the charterers. Before the return of the vessel the charterers having become embarrassed in their business, made an assignment of all their property, including this cargo, to Messrs. Quincy & Fox, in trust, to pay their creditors in a certain order of preference fixed by the terms of the assignment. The property was also attached immediately on its arrival by several creditors of the charterers. This libel was filed for the purpose of recovering the amount due on the charter-party from the freight, of that part of the cargo taken on freight, and from that part of the cargo directly which was shipped for the charterers. The master also claimed a lien on them for his wages.

Claims were interposed by the assignees, by the sheriff, and by a Mr. Thayer, each setting forth their title to the property, but the merits of these conflicting claims were in a course of litigation before the State courts, and it was unnecessary to decide upon them in this case. The questions raised in this case were, first, whether under this charter the owners of the vessel had a lien on the freight and cargo for the charter, and secondly, whether the master had such a lien for his wages. They were very elaborately argued at the June term, and the case held under consideration to July 1, when the following opinion was pronounced.

Emery, and C. S. Daveis for the libellants. Longfellow for Messrs. Quincy & Fox. Fessenden & Deblois for Foxcroft.

WARE, J. This is a libel by the master and owners of the brig Spartan, founded on the charter-party, and brought for the purpose of enforcing the stipulated hire of the vessel from the freight and merchandise. The master and owners of the ship have united in the libel, and there is a distinct allegation by the master claiming a lien also on the freight and that portion of the cargo which was owned by the charterers, for his wages. Whatever objections to the union of these different causes of action in one libel may exist in point of law, they were considered as waved by the counsel, and of course the attention of the court has not been directed to this subject. The other points in the case have been argued with distinguish

ed ability, and justice requires me to acknowledge the very material aid I have received in examining the case, from the thorough and acute discussion of all the questions it involves, in the learned and copious arguments of the counsel on both sides.

A preliminary objection is urged by the respondents to the jurisdiction of the court, which must be disposed of before we can approach the case on its merits. It might be sufficient for this court, in claiming jurisdiction over the case, to refer simply to the decision of the Circuit Court in the case of De Lovio v. Boit, 2 Gall. 398, in which the whole learning on the vexed question of extent of the admiralty jurisdiction is completely exhausted. In that case the jurisdiction of the admiralty over bills of lading and charter-parties is distinctly asserted, and as that was a decision of the appellate court, which has the authority to correct the errors of this, it is beyond question binding upon me, unless it has been reversed by the Supreme Court. The case of De Lovio v. Boit, has I know in a recent case been questioned by one of the judges of that court, Mr. Justice Johnson, in 12 Wheaton R. 611, Ramsey v. Allegre, but the court left its authority untouched. That decision, therefore, I should hold still to be binding here, if I did not in my private judgment concur, as I most fully do, in the doctrines maintained in that very learned and masterly opinion. It has been now for twelve years before the public, and though several attempts have been made to answer it, I have yet seen none in which the reasoning is met or the conclusions shaken.

The question now before me was not then in judgment before the Circuit Court; and as it was not a point directly decided, the counsel for the respondent has urged the objection as one still open to argument. Without falling back on the authority of that case, I feel no objection to meet the question and give my own opinion on the point now in controversy. The argument is that this is a sealed contract, and that the admiralty cannot take cognizance of a contract under seal. The 2 Brown's Civil and Admiralty Law, 96, is referred to as confirming this doctrine. That the courts of common law in England will grant a prohibition in such a case is admitted. It has long been the established law of that country and is not now to be controverted. Howe v. Nappier 4 Burr, 1944; 1 Strange 962; 1 Salk. 31. But I considered it as equally well established, that the decisions of the common law courts

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.

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. Without multiplying citations I will refer to one or two only. The 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.

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