THE RIPON CITY, 102 F. 176

After stating the case as above, the opinion of the court was delivered by PARDEE, Circuit Judge. ’ The clause of the charter pariy which is the basis of this suit so far relates to the rendition of maritime services that it may he called a maritime contract, and, as to its enforcement, held to be within the jurisdiction of the admiralty; but whether, to recover damages for the breach of the contract, the libelant can proceed in rem, and cause the seizure of the ship, is another question.

To warrant the seizure of the ship as the thing indebted, the libelant must have a lien on the ship to the extent of his damages. It is clear that he has no express lien.

The charter party expressly contracts for and preserves a lien on the freight for the difference in amount of freight as shown by the bills of lading and the freight agreed upon in the charter party, a lien on the ship and freight for inland charges and ship’s disbursements, and a lien in favor of the ship for the freight on the cargo and goods laden on board, but gives no other liens; wholly omitting the usual provision where a general lien is given to carry out the provisions of the charter party, to wit: “To the true and faithful performance of all and every of the foregoing agreements we, the said parties, do hereby bind ourselves, our heirs, executors, administrators, and assigns, and also said vessel, freight, tackle, and appurtenances, and the merchandise to be laden on board, each to the other, in the penal sum of estimated amount of freight.” Expressio unius est exclusio al-terius.

It follows that, if the present libelant has a lien, it must be because allowed and provided under general admiralty and maritime law. “Admiralty and maritime liens are stricti juris, and are not given by implication.” Vandewater v. Mills, 19 How. 89, 15 L. Ed. 554 Mr.

Justice Curtis gives the rule applied in the United States courts as follows: “For I understand it to be a settled rule that privileged liens constituting a jus in re, accompanying the property into the hands of bona fide purchasers, and operating to the prejudice of general creditors, are matters stricti juris, which cannot be extended from one case to another argumentatively, or by aRalogy or inference. They must be given by the law itself, and the case must be found described in the law.

Privilegia, cum sunt stricti juris, nec ex-tendi possunt de re ad rem, nee de persona ad personam. 1 Boulay Paty, Cours de Droit Com. et Mar. p. 86; Emerigon, Contrat a la Grosse, c. 12, § 1. Even when the court may be of opinion that the law might be beneficially extended to include cases not described in its terms, it must be left to the legislative power so- to extend it. This is even expressed by Pardessus (3 Droit, Com. pp. 597, 598), when reasoning on the policy of allowing a privilege for premiums of insurance. ‘Analogy 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.’ ” The Kiersage, 2 Curt. 421, 424, Fed. Cas. No. 7,762. It is settled with substantial unanimity that unexecuted maritime contracts carry no lien. See, as to affreightment, The Freeman v. Buckingham, 18 How. 188, 15 L. Ed. 341, and Vandewater v. Mills, supra; towage, The Prince Leopold (C. C.) 9 Fed. 333; furnishing supplies, The Cabarga, 3 Blatchf. 75, Fed. Cas.

No. 2,276; wages, 1 W. Rob. Adm. 89. In some instances, where services are rendered or supplies are furnished, no lien follows; for, by the maritime law, the master has no lien on the ship even for wages, nor the ship’s husband any lien. See The Orleans v. Phoebus, 11 Pet. 184, 9 L. Ed. 677; Norton v. Switzer, 93 U. S. 365, 23 L. Ed. 903; The Larch, 2 Curt. 428, Fed. Cas. No. 8,085; The Shortcut (D. C.) 6 Fed. 631; The Daniel Kaine (D. C.) 35 Fed. 787; The Nebraska, 21 C. C. A. 448, 75 Fed. 599.

Conceding that the libelant in this case had a valid contract with the ship to employ his services in and about the affairs of the ship in case of general average, and that the master intentionally violated the contract, and refused to employ libelant, to his damage, still it seems clear, on general principles, that no lien on the ship result ed.

It is, however, contended that as the contract to employ libelant’s services was one of the provisions of a charter party, contracting for the affreightment of the ship, which contract of affreightment was. executed by the delivery and acceptance of cargo duly loaded, and the ship begun her voyage under said contract, a lien resulted; and reliance is had upon the well-settled proposition that after cargo1 is delivered the ship is hound to the cargo, and the cargo is hound to the ship, for the full performance of the contract.

The libelant was not the owner, nor shipper, nor consignee of the cargo of the Itipon City. His sole interest, alter the Itipon 'City was loaded and started on her way. was to he employed as the ship’s agent in the matter of general average resulting from the fire which broke out on board. His employment or nonemployment in no way affected tlie ship’s liability to the cargo.

If employed, it was to be for the ship, and, it may he presumed, if he had been employed his services would have benefited the ship; bul it can hardly be pretended that his employment to represent the ship in general average could or would have been in the interest of the cargo, if, for no other reason, because in general average the interests of the ship and those of the cargo are adverse.

That the ship is bound to the cargo, and the cargo hound to the ship, for the fulfillment of the contract of affreightment, is in all maritime codes, and we may examine text-hooks and adjudged cases to see how the principle has been applied, controlled, and limited. Conkling, in his trea Lise on Admiralty, says: “It may be safely said, therefore, it is presumed that in this country the •rale declaring the liability of the ship to the merchandise, and of the merchandise to the ship, is practically, as well as theoretically, true.

As it is hern hitm-preied and applied, it imports that the freighter has a lien on the ship and freight for the safe conveyance and delivery of Ms goods according to the contract under which they are shipped; that the owners, upon the fulfillment of their engagement, have a lien on the goods for their freight; and that these liens may be enforced by admiralty process In rem.” Volume 1, p. 16ti. In The Maggie Hammond, 9 Wall. 435, 19 L.

Ed. 772, the supreme court of the United States said: “Undoubtedly the owner of the cargo has a lien, by the maritime law, upon the ship for the safe custody, duo transport, and right delivery of the same, as much as the shipowner has upon the cargo for the freight, as expressed in the maxim, ‘Le batel est oblige it la marchandise et la marchandise an batel.’ Subject to tbe exception that the lion of the shipowner may be displaced by an unconditional delivery of the goods before the consignee is required to pay the freight, or by an inconsistent and irreconcilable provision in the chartin’ party or bill of lading, the rule is universal, as understood in the decisions of the federal courts, that 1he ship is bound to the merchandise, and. the merchandise to the ship, for the performance on the part of the shipper and shipowner of their respective contracts.

Shipowners contract for the safe custody, due transport, and right delivery of the cargo, and for the performance of their contract the ship, her apparel and furniture, a,re pledged in each particular case, and the shipper, consignee, or owner of the cargo contracts to pay the freight and charges, and to the fulfillment of their contract the cargo is pledged to the ship, and those obligations are reciprocal, and the maritime law creates reciprocal liens for their enforcement.” Judge Ware, whose admiralty decisions are of very great authority, expresses himself to the effect: “The reciprocal lien exists only between the goods and the carrier.” The Drinkwater v.

Spartan, 1 Ware, 149, Fed. Cas. No. 4,085. The vessel is liable in specie to the shippers. The Phebe, 1 Ware, 263, Fed. Cas. No. 11,064. The ship is, by operation of law, hypothecated to the shippers for any. loss they may sustain from the insufficiency of the vessel or the fault of the master and. crew. The Casco, Davis, 184, Fed. Cas. No. 2,486. A lien on the vessei is called by Lord Tenterden “a security to the merchant who lades goods on board.” See Abb. Shipp. 322. In the Code de Commerce there are two articles that deal with the subject, as follows: “280.

Le navire, les agres et apparaux, le frét et les marcliandises cliargés sont respectivement áffectés a l’exécution des conventions des parties.” “191. Sont. privilégiées et dans l’ordre ou elles sont rangées, les dettes ci-aprés désignées: * ⅜ * 11° Les dommages-intérSts dus aux affréteurs pour le défaut de délivrance des marcliandises qu’ils ont chargées, ou pour remboursement des avaries souffertes par les dites marchandises par la faute du capitaine ou de réquipage.” In 1 Traité de Droit Maritime par Lyon-Caen & L. Renault, pp. 559, 560, we find the following: “Privilege of tbe Charterer.

The privilege granted by the law to the charterer upon the ship does not secure all ae charterer’s claims against the owner, as might be inferred by the provision of

article 280 that the ship, its taeMe and apparel, the freight, and the goods laden, are, respectively, liable for the fulfillment of the conventions of ae parties.

Article 191, subd. 11, restricts the privilege to the damages due to the charterers by failure in delivering the goods which they have loaded, or for recovery of the damages which the goods have sustained by fault of the master or crew. Privileges are matters of strict law. The charterer is not privileged for the damages due by reason of delay occasioned by fault of the owner, or by those for whom he is liable.” In respect to the contention that the maritime lien resulting from a contract of affreightment extends to all agreements in a charter party, whether relating to cargo or not, Mr.

Justice Thompson says: “If a charter party embraces stipulations purely of a personal nature, having no relation to a maritime service, in the safe carrying and delivery of the cargo, the admiralty jurisdiction of the district court could not reach the case, and afford relief for a breach of such part of the contract.” Alberti v. The Virginia, 2 Paine, 115, 128, Fed. Cas. No. 141. It seems to be text-book law that there is no lien for dead freight, i. e, unliquidated damages under the name of freight. 1 Pars. Adm. 292; Macl. Shipp. 435.

Indeed, it has' been so held in many English cases where the charter party expressly, stipulated for a lien for dead freight. Id., and notes. And it is the same for money in the name of freight, stipulated to be paid in advance. Id. The learned judge in the court below maintained the proceeding in rem in this case on general principles, and cited in support thereof several decisions and opinions of the supreme court of the United States, to wit: Insurance Co. v. Dunham, 11 Wall. 1, 20 L. Ed. 90; New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344, 12 L. Ed. 465; Morewood v. Enequist, 23 How. 493, 16 L.

Ed. 516. These cases were proceedings in personam where was discussed the general jurisdiction of (he admiralty courts oyer maritime contracts, and the particular question as to whether a lien was given by the general maritime law to cover every stipulation in a charter party, or even to cover every maritime contract, was not before the court nor discussed. The learned judge also cited a number of cases arising in the circuit and district courts, and we And many others in the brief died by the learned counsel for the appellee.

So far as we have been able to examine these cases, we find that no one of them involved the question here pending, and, while we do not question that these cases were correctly ruled, we do not feel called upon to reconcile all the expressions used in the several opinions with our own views on the subject.

We are satisfied that for the damages which libelant may have suffered by the failure of the master of the ship to employ his sendees, as propounded in the libel, he has no lien, either by contract or under the general maritime law, and therefore we conclude that there was error in the court below in overruling the exceptions to the libel in rem.

On the merits of the case, we agree with the court below in holding that when the Are broke out: on board the Sipón Oily the libelant was in no position to have afforded assistance to the master; that ihe emergency was immediate, and that the master properly acted in the employment of experienced agents to assist him, and in making contracts looking to the preservation of the ship and cargo.

But we do not agree that when the libelant arrived in the port of Savannah, after the above steps had been taken by the master, and demanded the discharge of the agents theretofore employed and the employment of himself, it was the duty of the master to comply with his request. The result of this action would have been to fasten double liens on the ship for one set of services. We do not undertake to determine exactly the meaning of the clause of the charter party which is the basis of libelant’s suit.

As propounded in the libel, and as contended for in argument, to wit, that immediately upon the ship’s taking Are the libelant had the right under his contract to take entire charge of the ship, and of the matter and means of extinguishing the Are, loading and unloading cargo, and otherwise performing the duties which, under the maritime law, devolve upon the master, we are satisfied it is contrary to public policy.

The duty of preserving the ship and cargo, and of protecting the lives of people aboard, devolves on the master, and by express statutes the owners of no English or American steamship can employ as a master any but a duly-qualified and licensed seaman, and any contract which undertakes to set aside the master, and to put in charge of a going steamship any unlicensed person, — ■ no- matter how well qualified otherwise, or how much interested in ship or cargo, — ought to be held void in any court of admiralty.

The decree of the district, court is reversed, and the cause is remanded, with instructions to dismiss the libel.