1st. Had the libellants a lien upon the ship for the performance of the contract of affreightment at the place where the contract was made, or by the law of the place where the contract was to be performed?
2d. Did the act of the master in landing and storing the goods, and accepting new employment for the ship when the repairs were completed, create a lien upon the ship in favor of the libellants at the place where the cargo was landed, stored, and left?
3d. If the libellants did not acquire any lien, either by the law of the place where the contract was made, or by the law of the place where the cargo was landed, stored, and left, did the District Court have jurisdiction of the libel and of the cause of action therein set forth?
In connection with these questions it is necessary to state that the British Parliament, in 1861, by act of the 24th and 25th Victoria, gave jurisdiction to admiralty courts, to be exercised either by proceedings in rem or proceedings in personam,
'over any claim by the owner or consignee, or assignee of any bill of lading of any goods carried into any port in England or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of, or for any breach of duty or breach of contract on the part of the owner, master, or crew of the ship, unless it is shown to the satisfaction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales.' II. Assuming jurisdiction to exist.
1st. Whether the master unnecessarily delayed making the repairs? a question of fact merely.
2d. Whether at the date (November 4th) when he was certified that his vessel was in a condition to proceed on her voyage, he could safely have set off for a port so far north as Montreal? another question of mere fact.
3d. Whether, having believed, as he stated in his protest made at Cardiff on the 9th October that he did, that it had been ascertained that the vessel could not be repaired in time to complete her voyage before the close of the season, he was not bound to have procured another vessel if he could have done so, and forwarded the cargo by it? a question of law.
4th. Whether he could have procured such other vessel if he had sought for one? a question of mere fact.
This court assumed, on the evidence, that the master did delay his repairs; that he could have safely set off on the 4th of November; and that he could at an earlier date than this have found other vessels, though he might have had to pay a higher rate of freight than that for which he had himself contracted, and a higher rate of premium for insurance. So that the only questions of law, and the only questions, therefore, for report, were:
1. The point of jurisdiction.
2. The obligation of the shipowners in a case where the facts were as the court here assumed them to be.
Messrs. Brune and Brown, for the appellants:
I. On the three questions put as to jurisdiction, went into a very learned argument to show.
1st. That by the law of Scotland, where the iron was shipped, the libellants had no lien cognizable in courts of admiralty; citing herein the British statute of 1 William IV, ch. 69; Bell, Dictionary of Scottish Law; and the case of The Bold Buccleugh, &c. That the same want of lien existed equally by the law of Canada, where the owners of the vessel and of the cargo resided; the counsel here citing the language of the Commission to the Vice-Admiralty Courts there, essays by Canadian lawyers, British Statutes, the Lower Canada Reports, and old French Arrets.
2d. That the act of the master, in landing the goods and accepting new employment, gave no maritime lien, unless one was created by the statute of 24th and 25th Victoria; but that this act did not profess to create maritime liens, but only to confer jurisdiction by proceedings in rem, as appeared by the case of The Pacific; that there was a great difference between creating a maritime lien and authorizing a proceeding in rem; that the former, if created, would follow the vessel, while the latter, by being merely authorized, came to nothing, unless the proceeding was instituted, and the vessel was a fugitive from justice, which was not the case here.
3d. That there being no maritime lien by the law of England, and the contract being British as to ship, parties, mode of performance, place where made, and place where to be performed British every way, in short, and without any citizen having any interest in the matter-our courts ought not to originate rights, and to give a privilege which would not be given in the home of the parties.