Page:Federal Reporter, 1st Series, Volume 9.djvu/484

 IHE FEBBEBI. 469 �ing no other reason except that he had already given a bill of lading to Michel, he was guilty of converting the property. A formai de- mand for the retum of the property would have been a vain acl after the master had refused to give a bill of lading to the libellants, placing his refusai of the libellants' demand for a bill of lading upon the ground that he had already given a bill of lading for the goods to Michel. Such a refusai was equivalent to Bg,ying : "I have deter- mined to transport this resin to Marseilles, and there deliver it to the holder of the bill of lading already issued to Michel." Such a refusai rendered a subsequent demand of the goods unnecessary. �Tolar & Hart, upon the master refusing under these circumstances to give them a bill of lading, could waive any right depending upon an implied contract on the part of the master to give them a bill of lading for their goods, then on board his veesel, and proceed for the tort. This right they can enforce in the admiralty. The' goods were on board a veasel for the purpose of shipment. The locality wa^ navigable water. The tort, therefore, was maritime in character, and within the jurisdiction of the admiralty. For such a tort the ship herself is bound. The goods were actnally on board the veasel. The tortious act was that of the master of the vessel. In cases of affreight- ment the goods are bound to the vessel and the veSsel to the goods. This vessel is, therefore, bound to these goods, and. liable to the owners thereof for their loss, destruction, or conversion by the act or the neglect of the master of the ship. �I entertain no doubt, therefore, asto the right of the libellants to maintain an action ire rem against this vessel to recover the value of the resin in question. The difficulty with the case, if any there be, arises out of the method of fraruing the libel. The averments of the libelare these: �Tliat the libellants soM the resin to Micliel to be delivered to the bark for the suni of $553.96, to be paid on delivery of the goods to the vessel and the production of the usaal shipptng receipt therefor; that the resin was de- livered to said vessel and a shipping receipt therefor given to the libellants by the master; that by the custom of the pcfft no bill of lading shall be made or delivered by the master except upon the surrender of the shipping receipt; that the master has given a bill of lading to Michel without a surrender of the receipt, and refused to give a bill of lading to the libellants ; that the vessel is about to proceed to a foreign land, and if she be allowed to depart without giving the libellants a bill of lading and procuring the surrender of the bill of lading given to Michel, or giving indemnity against damage, the libellants will be remediless. ��� �