Page:Federal Reporter, 1st Series, Volume 2.djvu/379

 873 FEDERAL REPORTBB. �there was also a lien therefor on the vessel by the lawa of tho state of New York. The libel alleged facts which showed that there was a maritime lien on the vessel, if she was a foreign vessel or was a vessel belonging to a port of a state other than the state of New York, The libel did not show where the ves- sel belonged, nor did the answer. The supreme court said, in effect, that it could not prohibit the district court from exer- cising jurisdiction in rem over the vessel, because if the vessel was a foreign one, or belonged to a port of a state other than the state of New York, the district court would have such jurisdiction in rem in the case; and, as the libel did not show that the vessel was not a foreign one, or did not belong to a port of a state other than the state of New York, it was not ehown that the district court was proceeding without jurisdic- tion; and that a matter of defence, going to oust the jurisdic- tion of that court, such as the fact that the ownership of the vessel was such as to oust the jurisdiction, not being shown by the libel when the process was issued, could not be shown on the motion for the writ of prohibition by the petition, or by a reference to the answer, but must be left to be shown by proofs under an answer alleging such fact. Therefore, the opinion goes on to say : "Viewed in the light of these consid- erations, it is clear that a contract for the use of a wharf by the master or owner of a ship or vessel is a maritime contract, and, as such, that it is cognizable in the admiralty; that such a contract, being one niade exclu sively for the benefit of the ehip or vessel, a maritime lien, in the case supposed, arises in favor of ilote proprietor of the wharf against the vessel for the payment of reasonable and customary charges in that behalf for the use of the wharf, and that the same may be enforced by a proceeding in rem against the vessel, or by a suit in per- sonam against the owner." The language is that the lien arises "in the case supposed." The case supposed, in the prior part of the opinion, is stated to be, "if the vessel or water craft is a foreign one, or belongs to a port of a state other than that where the wharf is situated. " Judge McKennan, in the recent case of The Bob Connell, 26 Int. Eev. Eec. 101, says that in the case of Ex parte Easton the supreme court affirmed ����