Page:Federal Reporter, 1st Series, Volume 2.djvu/411

 404 FEDERAL REPORTER. �and that the vessel was overcrowded and dangerous to lifa. He declined to embark and demanded baok his passage money, whieh was refused. He then filed a libel in rem for a retum of the passage money and for his damages. Objection was made to a recovery upon the ground that at the time of the filing of tiie libel no cause of admiralty cognizance had arisen ; that to give jurisdiction over a maritime contract the ship must have entered upon the performance, and the breach must bave occurred in the coursfe of the performance. Mr. Justice Nelson held this objection untenable, and said that the obli- gation resulted directly from the contract and not from the performance, which is simply in fulfilment and disoharge of it. "The owner is bound as soon as he or the master settles the terms upon which the ship is to enter upon the service, and it is difficult to pei'ceive why the liability of the latter should be postponed till the inception of the performance." Tho reasoning of this case is, undoubtedly, in favor of the libellant. But it would seem that the decision might also be supported upon the ground that the libellant himself had partly performed his contract by the payment of his passage money, and his preparations for settlement in California. 1 do not deem the case inconsistent with the other authorities. which hold that in cases of purely executory contraots the libellant cannot proceed against the vessel. �Ail of these cases were prior to those of the Freeman and Yankee Blade. In the case of The Freeman, 18 How. 182, the question arose as to the liability of the ship for contracta made upon the faith of fraudulent bills of lading given by the «aptain for property purporting to have been shipped on board. In delivering the opinion Mr. Justice Curtis observed : "Tho law creates no lien on a vessel as security for the per- formance of a contract to transport cargo until some law- ful contract of affreightment is made, and a cargo is shipped under it." The case did not call for this opinion, and it must be considered as a dictum. At the same time it bas been repeated so often in the same court, and bas been bo often acted upon as the doctrine of that court by courts of inferior jurisdiction, that it is diffioult to say that it must not now be ����