Page:Federal Reporter, 1st Series, Volume 2.djvu/414

 SCOTT ». THE IBA OHAFFER. 407 �cieion expressly upon the dicta in the cases of The Freeman and The Yankee Blade, "any duty that may be violated by the owner or master, before the cargo is put on board, is not a duty of the vessel, or one for the breach of which a lien on the veseel is created or can be enforced." In The Keokuk, 9 Wall. 517, the dicta in the former cases are repeated, but otherwise the case is not of value here, as there was no con- tract to carry the wheat in question, and no delivery of the barge into the custody of the steamer. In Oakes v. Richard- son, 2 Low. 173, the learned judge for the district of Massa- chusetts held that a court of admiralty had jurisdiction of a Personal action by the charterer against the owner of the ves- sel for damages, in not proceeding to the port of loading, and that such jurisdiction did not depend upon the fact of the cargo or some part of it having been put on board the vessel, but intimated the opinion that until some service had been begun there would be no privilege against the vessel under such circumstances, So in Cox v. Murrey, Abbott's Adm. 340, it was said that the court was incompetent to sustain an action for a mere breach of contract when no services had been rendered nor any material fumished, nor any other acts done under it upon the vessel. See, also, Hannah v. The Schooner Carrington, 2 Law Monthly, 456. �From this review of the cases it will be seen that, with the exception of the dictum in the case of the Williams, there is no authority for saying that a court of admiralty has juris- diction in rem for the breach of a purely executory contract. There is reason as well as authority for the proposition. If the owner of a cargo has a privilege upon the vessel for a breach of his contract, the vessel would be entitled equaUy to a lien on the cargo for a refusai of the owner to put it on board, and it might be seized upon the dock or anywhere else for the satisfaction of such lien. If the jurisdiction is sus- tained in this class of cases it ought also to include cases of contract to repair the vessel or supply her with stores, in which the material-man would be entitled to a lien, though nothing had been done under the contract. I find it impos- sible to say with Judge Emmons, in the case of The Williams, ����