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 cxamination 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

she is hired. But the right of the owner is strongly favored, and while he appoints the master and crew, his lien for freight can only be excluded by the most express and absolute terms of the charter-party or by unavoidable implication. But there is no case where the owners' lien has been sustained, unless where he has retained the possession by the appointment of

the master.

No American case was cited in which this point has come up directly in judgment. But in Kleine v. Catara, 2 Gall. 68, Mr. Justice Story expressed a decided opinion that where the charterer becomes owner for the voyage the general owner has no lien for the freight, but that the rule is confined to cases where the carrier for freight is owner for the voyage. I think it clear both in principle and authority, that where the owner parts with his possession, he parts at the same time with his lien.

This case therefore must turn wholly on the question, whether the general owners or charterers are to be considered as owners for the voyage and as having possession of the ship.

The language of the charter-party leads very clearly, if not unavoidably, to the conclusion that this was a letting of the ship. Violence must be done to several parts of it, before it can be interpreted into a contract on the part of the owners for the conveyance of goods. It is not simply a letting of the whole ship; this it is admitted would not alone be conclusive, but she is let for a voyage to be made by the charterers. The owners covenant, not that they or their master will receive and load the merchandise provided by the charterers, but that it shall be lawful for the Quincies or their agents to load her; and the charterers agree, not only to pay the charter, but also the charges of victualling and manning and all other charges, and finally after she has performed the voyage to deliver her up to the owners. It would seem that language more expressive and significant of an intention on the one side to part with the possession, and on the other to take the possession of the ship, could scarcely be found. How could the charterers perform their covenant to deliver up the possession to the owners after the voyage was completed, if the possession was not to be in them during the voyage?

The libellants rely on the fact that one of the owners is named in the charter as at present master, as a circumstance showing that it was the intention of the owners not to part with the possession. If the intention, as collected from the opera

tive parts of the instrument, was doubtful, this might be entitled to weight, and the inclination of a court to support the equitable lien of the owners would give it all the weight it could justly have. But this of itself is not sufficient to control the general tenor and whole apparent intent of the charter-party. The appointment of the master and crew by the owners is not in all cases conclusive, though they may also be paid by them. As is remarked by Lord Ellenborough, in the case of Trinity House v. Clark, the vessel may be hired and with it the services of a certain number of persons paid by the owners, and necessary to the use of the vessel. In point of fact, however, the master named in the charter-party did not go the voyage, though it was the intention of both parties that he should.

The libellants offered to introduce parol proof that the new master was appointed by the owners, but the counsel on the other side objected to the admission of this species of evidence to control the operation of the charter-party. The testimony was received, de bene esse, subject to the respondents' objection. It is unnecessary to decide on the influence which this fact ought to have, if proved, on the construction of the written agreement. The evidence in support of it is at best but loose and vague, while that by which it is met on the other side is direct and positive, that the new master was appointed by the charterers. Upon this part of the case my opinion is that the libel cannot be supported; that the owners parted with the possession of the vessel and constituted the charterers owners for the voyage, and that they have, therefore, no lien on the cargo for the charter. So much of the libel as claims a lien for the charter is dismissed. This, of course, can be no bar to any right of action which the owners may have personally against the charterers or their assignees.

This view of the question being in my opinion decisive, renders it unnecessary for me to examine other points which were made and strongly urged in the defence.

The master also claims in this libel a lien on the freight and cargo, that is, on that part of the cargo belonging to the charterers, for his own wages and as an indemnity for his liability to the crew for their wages. The decree which has just now been made on the libel of the seamen, is, I think, a sufficient answer to the claim of a lien as an indemnity. Whatever his rights may have been in this respect, it appears to me that that decree must be held at present as a full protection against his