CHAPTER II OF THE ADMIRALTY JURISDICTION AS GOVERNED BY THE 6. 7. 8-10. 11. 12-19. SUBJECT-MATTER Cases in Contract and Cases in Tort. Tests of Jurisdiction. Contracts of Seamen. Master's Right to Proceed in Rem for His Wages. CASES IN CONTRACT AND CASES IN TORT 6. The sources of admiralty jurisdiction, as in other branches of substantive law, naturally subdivide into rights arising out of contract and rights arising out of tort. (a) Rights arising out of contract are maritime when they relate to a ship as an instrument of commerce or navigation, intended to be used as such or to facilitate its use as such. (b) Rights arising out of tort are maritime when they arise on public navigable waters. 7. TESTS OF JURISDICTION-The test of jurisdiction is different in each of these classes of cases. (a) The test in contract cases is the nature of the trans action. (b) The test in tort cases is the locality. In the warfare made by the common law upon the admiralty courts, one line of attack was the contention that only contracts were maritime which were made upon the sea, and to be performed upon the sea; thus attempting to apply to contractual rights, as well as torts, the test of locality. Under the English decisions this distinction excluded many subjects of marine cognizance which the Con tinental admiralty covered. In some of the earlier decisions of this country traces of this distinction may also be found. But it is now settled that the test in matters of contract is irrespective of locality, and depends upon the nature of the transaction. In England itself the restriction became so intolerable that an act of parliament was necessary, and accordingly the acts defining the jurisdiction of the admiralty courts largely restored the ancient admiralty jurisdiction of the English courts. What Contracts Are Maritime by Nature The courts have in many instances said whether certain particular controversies were maritime or not, but no satisfactory definition has yet been enunciated which will enable the student to say in advance whether a given case is marine or not. In DE LOVIO v. BOIT,1 Mr. Justice Story, in holding that contracts of marine insurance are within the admiralty jurisdiction, discusses with great learning the early extent of that jurisdiction, naming in more than one connection the general subjects which writers and codifiers had enumerated, and says that it includes "all transactions and proceedings relative to commerce and navigation"; also "all contracts which relate to the navigation, business, or commerce of the sea." In New England Marine Ins. Co. v. Dunham the court says: "The true criterion is the nature and subject-matter of the contract as to whether it was a maritime contract, having reference to maritime services or maritime transactions." In Zane v. The President, Mr. Justice Washington says: "If the subject-matter of a contract concerned the navigation of the sea, it is a case of admiralty and maritime jurisdiction, although the contract be made on land." The case was a proceeding by a material man. $$ 6-7. 12 Gall. 398, Fed. Cas. No. 3,776. 2 11 Wall. 1, 20 L. Ed. 90. 34 Wash. C. C. 453, Fed. Cas. No. 18,201. Wortman v. Griffith was a suit by the owner of a shipyard for the use of his marine ways by the vessel. Mr. Justice Nelson decided that the admiralty had jurisdiction, saying: "The nature of the contract or service, and not the question whether the contract is made or the service. is rendered on the land or on the water, is the proper test in determining whether the admiralty has or has not jurisdiction." Under the test as laid down, the fact that a ship may be incidentally connected with the transaction does not make the matter maritime. B In Ward v. Thompson there was an agreement between certain parties to carry on a trade venture, one contributing a vessel and the other his skill and labor, on the basis of a division of profits on a fixed ratio. The court held that this was nothing but an ordinary common-law agreement of partnership, and was not made maritime by the fact that a ship was part of the partnership property. On the same principle a traffic agreement between a railroad company and the owner of a number of steamers to operate as a through line of transportation, dividing the receipts, is not maritime." 7 Bogart v. The John Jay was a proceeding in admiralty 43 Blatchf. 528, Fed. Cas. No. 18,057. See, also, North Pac. S. S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U. S. 119, 39 Sup. Ct. 221, 63 L. Ed. 510. $ 22 How. 330, 16 L. Ed. 249. • Graham v. Oregon R. & Nav. Co. (D. C.) 134 Fed. 454. 717 How. 399, 15 L. Ed. 95. In England, independent of statute, admiralty had no jurisdiction to enforce a mortgage. By 3 & 4 Vict. c. 65, § 3 the mortgagee was allowed to intervene when the ship was under arrest in a case of which the court had jurisdiction. And by 24 Vict. c. 10, § 11, any duly registered mortgagee was allowed to institute an independent proceeding. Mayer, Admiralty Law & Pr. 70; Atalanta, 5 Can. Ex. 57. As Parliament is not bound by the limitations of a written constitution, it can make a thing marine by statute which is not so by nature. But the grant of admiralty jurisdiction in this country is constitutional, and Congress could hardly to foreclose a mortgage on a vessel. There was nothing to show that the money had been borrowed for any purpose connected with the use of the vessel, and the only connection the vessel had with it was the fact that it was his security for the debt, just as any other piece of personal property might have been. It was held that admiralty had no jurisdiction. In Minturn v. Maynard the Supreme Court decided that an admiralty court had no jurisdiction of mere matters of account, though they were accounts relating to a ship. 9 In the Illinois a party had leased the privilege of running a bar on a passenger steamer plying between Memphis and Vicksburg. When the vessel fell into trouble, and was libeled by some other creditor, he, too, came into the admiralty court, and claimed that this was, in effect, a charter of part of the vessel, and that he had a remedy in admiralty. The court, however, could not see that a transaction of this sort had any maritime characteristics, and decided that there was no jurisdiction. 10 In Doolittle v. Knobeloch 19 the owner of a vessel had employed the libelant to purchase a steamer for him, and to look generally after his interests in bringing the steamer. from New York to Charleston, though not in connection with any navigation of the vessel. He attempted to collect his money by a proceeding in rem against the vessel and in give a mortgagee the right to institute an independent proceeding in view of the decision of the Supreme Court that such a right is not by nature maritime. The right to intervene in a proceeding by a holder of a maritime right of action is conferred by rule 43 of the Supreme Court, and rests on a different basis. 8 17 How. 477, 15 L. Ed. 235; Zillah May (D. C.) 221 Fed. 1016. Here, too, express jurisdiction has been conferred in England by 24 Vict. c. 10, § 8, as to registered ships. Lady of the Lake, L. R. 3 A. & E. 29. 92 Flip. 383, Fed. Cas. No. 7,005. 10 (D. C.) 39 Fed. 40. But an agreement to undertake the responsibility of navigating a vessel back to her home port is maritime. Laurel (D. C.) 113 Fed. 373. personam against the owner. The court decided that it was not an admiralty contract. If the principal contract is maritime, jurisdiction is not ousted by the fact that some incidental question growing out of it would not be maritime in case it stood alone.11 On the other hand, preliminary contracts looking to a formal contract are not maritime, though the contract itself, when executed, may be so. For instance, a contract of charter party partly performed is maritime, but a preliminary agreement to make a contract of charter party is not maritime.12 The same transaction may be maritime in one case and not maritime in another. As emphasizing this distinction, there is the maxim that "a ship is made to plough the seas, and not to lie at the walls." Hence, wharfage rendered to a ship while loading or unloading, or in her regular use as a freight-earning enterprise, is a maritime contract.13 On the other hand, wharfage to a ship laid up for the winter while waiting for the season to open is not maritime.14 This distinction is further illustrated by the decisions in relation to watchmen on vessels. Those who are watchmen while vessels are in port during voyages are considered as having made a maritime contract, but those who have charge of her while laid up have no such contract.15 11 Charles F. Perry, 1 Low. 475, Fed. Cas. No. 2,616; Nash v. Bohlen (D. C.) 167 Fed. 427. 12 Andrews v. Essex Fire & Marine Ins. Co., 3 Mason, 6, Fed. Cas No. 374; Tribune, 3 Sumn. 144, Fed. Cas. No. 14,171; Oakes v. Richardson, 2 Low. 173, Fed. Cas. No. 10,390; Eugene, 87 Fed. 1001, 31 C. C. A. 345; Steamship Overdale Co. v. Turner (D. C.) 206 Fed. 339. 13 Ex parte Easton, 95 U. S. 68, 24 L. Ed. 373; Braisted v. Denton (D. C.) 115 Fed. 428. 14 C. Vanderbilt (D. C.) 86 Fed. 785. Wharfage in its proper sense must not be confused with rent due for the lease of a wharf. This latter is not maritime, being simply a contract relating to real estate. James T. Furber (D. C.) 157 Fed. 126. 15 Erinagh (D. C.) 7 Fed. 231; Fortuna (D. C.) 206 Fed. 573. |