NELSON, Circuit Justice.
In the case of The Aberfoyle [Case No. 17], which came before this court, on appeal from the decree of the district court, in ISIS, it was held, that ships engaged in carrying passengers on the high seas for hire, stand on the same footing of responsibility, according to the maritime law, as those engaged in carrying merchandize, the passenger money being the equivalent for the freight; that, therefore, on a breach of a passenger contract, and damage resulting, the ship, as well as the owner, is bound to respond; and that all the reasons in the maritime law for charging the ship in case of the breach of a contract of affreightment of goods and merchandize, applied with equal force in the case of the breach of a passenger contract, and the one was as much the appropriate subject of admiralty jurisdiction as the other.
I abide by that decision, as I have seen nothing since to lead me to change or modify it. That was the case of an emigrant-ship from Liverpool to New-Xork. The breach of the contract occurred in the course of the passage, the passengers having been kept for many days on short allowance of bread and water, the master having omitted, intentionally or otherwise, to lay in a proper supply of stores. I thought the ship chargeable, upon established principles, the contract being a maritime contract, to be performed on the high seas, and that the passenger was entitled to the remedy against her, the same as the owner of the cargo in case of the breach of a contract of affreightment. In the one case, the ship is bound to carry the [941]*941goods safely to the destined port, according to contract, for the freight; in the other, the passenger and his luggage, for the passage money.
The present case is supposed to be distinguishable from the one referred to, and from the principle upon which the decision in it was founded, on the grounds: 1st. That admitting the contract for the passage in the ship for the voyage around Cape Horn to California to be a maritime contract, and the subject of admiralty jurisdiction, the voyage was not broken up by the master, but was actually performed; that it was the fault or neglect of the passenger that the contract in this respect was not carried into effect; that the conditions and stipulations in respect to the ship’s accommodations for the voyage, for the breach of which he complains, and which constitute the foundation of his libel, were not, in themselves, the subject of a maritime contract, but related to the fitting up of the ship, and to the limitation of the number of the passengers for convenience and health, and were all of them to be performed before the departure of the vessel on her voyage and preparatory thereto; that these stipulations were not for maritime services, nor was the compensation therefor compensation for maritime services, but were services and duties preliminary to the vbyage. 2d. That, at the time of filing the libel, no cause of action had arisen upon the contract, and especially none of admiralty cognizance; that to give jurisdiction over a contract even maritime in its nature and subject, the ship must have entered upon the performance, and a breach must occur in the course of the performance; and that if nothing is done at sea under it, jurisdiction cannot attach.
1. The first ground of objection is founded upon a course of reasoning which cannot be maintained. It assumes that the contract is severable, and that parts of it may properly be the subject of admiralty cognizance, being for maritime services, and parts of it not, being for services that relate to subjects not maritime in their nature or object; and that, if the cause of action arises from a breach of the latter stipulations, the remedy is in the common law courts, and if of the former, it may be in the admiralty, assigning the jurisdiction to the different tribunals according to the nature of the stipulations of which a breach is charged.
Now, the short and obvious answer to all this is, that the contract is an entirety; and that, in order to ascertain whether it is the proper subject of admiralty jurisdiction, we must look to the whole and every part of it, the same as we must look to the whole and every part of a contract when endeavoring to ascertain its legal import and effect. It must be wholly of admiralty cognizance, or else it is not at all within it. There cannot be a divided jurisdiction.
The argument is also put in another form. Assuming the contract to be an entirety, and not partible, and that it must be so viewed in endeavouring to ascertain its nature and character with reference to the jurisdiction to be exercised, it is urged that it must then appear thatall its material and substantial parts-going to make up the essence of the contract are maritime in their character and object, and for the performance of maritime services; and that, inasmuch as the material parts of the contract in this case are not of that description, but relate to other subjects, such, as the fitting up of the ship and limitation of the number of passengers, it cannot be regarded as the subject of admiralty cognizance.
No doubt, if this analysis and interpretation of the contract could be maintained [that the proposition supposes] 2 the conclusion would be-a sound one. The difficulty lies in that part of the argument. The contract was for the conveyance of the libellant, as a passenger, with his-luggage, in the claimants’ ship, for a single voyage from New-York around Cape Horn to San Francisco, and the compensation paid was for the conveyance upon that voyage. That was the object to be attained by the li-bellant and the service to be performed by the-master and owners; and all the accompanying stipulations were incidental and subsidiary to the main purpose. They were regulations for the comfort and health of the passenger on the voyage, to be found more or less in all contracts of this description, but which have nothing to do with the determination of the nature or character of the contract, or with the question of jurisdiction; any more than the stipulations for a proper supply of bread and water during the voyage had in the case of The Aberfoyle [supra], or than those for stowage and dunnage of the cargo have in a contract of affreightment of merchandize.
The circumstance that the breach of contract relied on consisted only in the omission to comply with these particular stipulations, is supposed to bear upon the question of jurisdiction, on the ground that they were not the subject of a maritime contract. But, as-the contract is an entirety, the failure to comply with any part of it went to the whole, and gave to the libellant such remedy as the nature and character of it entitled him to, whether of admiralty or common law cognizance. He was not bound to accept a part performance, or a tender of part performance, but had a right to demand a strict compliance-with every part, and, in case of refusal, to consider the contract as broken, and resort to the proper tribunal for redress.
2. The second ground of objection is equally untenable with the first. It assumes that, in order to give jurisdiction to the admiralty in rem, even in the case of a contract maritime in its nature and subject, and. therefore, of peculiar admiralty cognizance, it is essential that the ship should have entered upon the [942]
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NELSON, Circuit Justice.
In the case of The Aberfoyle [Case No. 17], which came before this court, on appeal from the decree of the district court, in ISIS, it was held, that ships engaged in carrying passengers on the high seas for hire, stand on the same footing of responsibility, according to the maritime law, as those engaged in carrying merchandize, the passenger money being the equivalent for the freight; that, therefore, on a breach of a passenger contract, and damage resulting, the ship, as well as the owner, is bound to respond; and that all the reasons in the maritime law for charging the ship in case of the breach of a contract of affreightment of goods and merchandize, applied with equal force in the case of the breach of a passenger contract, and the one was as much the appropriate subject of admiralty jurisdiction as the other.
I abide by that decision, as I have seen nothing since to lead me to change or modify it. That was the case of an emigrant-ship from Liverpool to New-Xork. The breach of the contract occurred in the course of the passage, the passengers having been kept for many days on short allowance of bread and water, the master having omitted, intentionally or otherwise, to lay in a proper supply of stores. I thought the ship chargeable, upon established principles, the contract being a maritime contract, to be performed on the high seas, and that the passenger was entitled to the remedy against her, the same as the owner of the cargo in case of the breach of a contract of affreightment. In the one case, the ship is bound to carry the [941]*941goods safely to the destined port, according to contract, for the freight; in the other, the passenger and his luggage, for the passage money.
The present case is supposed to be distinguishable from the one referred to, and from the principle upon which the decision in it was founded, on the grounds: 1st. That admitting the contract for the passage in the ship for the voyage around Cape Horn to California to be a maritime contract, and the subject of admiralty jurisdiction, the voyage was not broken up by the master, but was actually performed; that it was the fault or neglect of the passenger that the contract in this respect was not carried into effect; that the conditions and stipulations in respect to the ship’s accommodations for the voyage, for the breach of which he complains, and which constitute the foundation of his libel, were not, in themselves, the subject of a maritime contract, but related to the fitting up of the ship, and to the limitation of the number of the passengers for convenience and health, and were all of them to be performed before the departure of the vessel on her voyage and preparatory thereto; that these stipulations were not for maritime services, nor was the compensation therefor compensation for maritime services, but were services and duties preliminary to the vbyage. 2d. That, at the time of filing the libel, no cause of action had arisen upon the contract, and especially none of admiralty cognizance; that to give jurisdiction over a contract even maritime in its nature and subject, the ship must have entered upon the performance, and a breach must occur in the course of the performance; and that if nothing is done at sea under it, jurisdiction cannot attach.
1. The first ground of objection is founded upon a course of reasoning which cannot be maintained. It assumes that the contract is severable, and that parts of it may properly be the subject of admiralty cognizance, being for maritime services, and parts of it not, being for services that relate to subjects not maritime in their nature or object; and that, if the cause of action arises from a breach of the latter stipulations, the remedy is in the common law courts, and if of the former, it may be in the admiralty, assigning the jurisdiction to the different tribunals according to the nature of the stipulations of which a breach is charged.
Now, the short and obvious answer to all this is, that the contract is an entirety; and that, in order to ascertain whether it is the proper subject of admiralty jurisdiction, we must look to the whole and every part of it, the same as we must look to the whole and every part of a contract when endeavoring to ascertain its legal import and effect. It must be wholly of admiralty cognizance, or else it is not at all within it. There cannot be a divided jurisdiction.
The argument is also put in another form. Assuming the contract to be an entirety, and not partible, and that it must be so viewed in endeavouring to ascertain its nature and character with reference to the jurisdiction to be exercised, it is urged that it must then appear thatall its material and substantial parts-going to make up the essence of the contract are maritime in their character and object, and for the performance of maritime services; and that, inasmuch as the material parts of the contract in this case are not of that description, but relate to other subjects, such, as the fitting up of the ship and limitation of the number of passengers, it cannot be regarded as the subject of admiralty cognizance.
No doubt, if this analysis and interpretation of the contract could be maintained [that the proposition supposes] 2 the conclusion would be-a sound one. The difficulty lies in that part of the argument. The contract was for the conveyance of the libellant, as a passenger, with his-luggage, in the claimants’ ship, for a single voyage from New-York around Cape Horn to San Francisco, and the compensation paid was for the conveyance upon that voyage. That was the object to be attained by the li-bellant and the service to be performed by the-master and owners; and all the accompanying stipulations were incidental and subsidiary to the main purpose. They were regulations for the comfort and health of the passenger on the voyage, to be found more or less in all contracts of this description, but which have nothing to do with the determination of the nature or character of the contract, or with the question of jurisdiction; any more than the stipulations for a proper supply of bread and water during the voyage had in the case of The Aberfoyle [supra], or than those for stowage and dunnage of the cargo have in a contract of affreightment of merchandize.
The circumstance that the breach of contract relied on consisted only in the omission to comply with these particular stipulations, is supposed to bear upon the question of jurisdiction, on the ground that they were not the subject of a maritime contract. But, as-the contract is an entirety, the failure to comply with any part of it went to the whole, and gave to the libellant such remedy as the nature and character of it entitled him to, whether of admiralty or common law cognizance. He was not bound to accept a part performance, or a tender of part performance, but had a right to demand a strict compliance-with every part, and, in case of refusal, to consider the contract as broken, and resort to the proper tribunal for redress.
2. The second ground of objection is equally untenable with the first. It assumes that, in order to give jurisdiction to the admiralty in rem, even in the case of a contract maritime in its nature and subject, and. therefore, of peculiar admiralty cognizance, it is essential that the ship should have entered upon the [942]*942performance, and that the breach should have occurred in the course of the voyage; and that, if she refuses to receive the cargo on board, when it is at her side ready to be delivered, or the passenger with his luggage when he is ready to embark, the ship is not bound, and the party aggrieved must look exclusively to the master or owner.
No authority has been referred to in support of this distinction, nor have I been able in my researches to find any; and it seems to be unsustained by principle, or by any of the analogies of the law in respect to the obligation and enforcement of contracts. Maritime contracts do not depend upon locality, but upon the subject matter and the nature of the services to be performed; and, when entered into for the conveyance of goods or persons in a particular ship, they bind the ship for the due performance of the service. The ship itself in specie is considered as pledged for the performance, and this, whether the vessel be in the immediate employment of the owner, or be let by a charter-party to a hirer who is to have the whole control of her. The obligation results directly from the contract, and not from the performance, which is simply in fulfilment and discharge 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 perceive why the liability of the latter should be postponed till the inception of performance, or any reason for distinguishing as to the time when the liability of the one and that of the other shall attach.
The distinction cannot depend upon the character of the damages resulting to the shipper or passenger from the breach of the contract at the ship’s side, for these may be quite as serious and prejudicial as if it had occurred in the course of the voyage. In the case before us, the libellant had paid the three hundred dollars passage money, and had made all his preparations for a settlement in a distant country, doubtless at a considerable additional expense. That the vessel should be bound to enter upon the performance of the contract at the port of shipment, would seem to be as important and as material to the security of the shipper or passenger, as that she should do so at any period of time after the voyage had commenced.
A distinction was taken on the argument between a maritime contract and a maritime cause of action, and it was urged that, in a proceeding ex contractu in the admiralty, both must concur to give jurisdiction; and that, admitting the contract in this case to be maritime in its character and object, unless it bound the ship, no cause of action in rem existed. This is no doubt correct, and the whole question turns ujDon the point, whether the ship was bound to the performance. I think it was.
The case was likened on the argument to the case of a contract with a material-man or one for repairs, and it was asked, whether, if the owner should refuse to permit the repairs, the ship would be liable. I suppose not, for the reason that the liability of the vessel in this class of eases arises from the repairs having been made, or the supplies actually furnished, and not in favor of those who have contracted for them. Short of actual repairs or supplies, the parties must look to the master or the owner for any damages in case of a breach of contract, as no lien attaches to the vessel within the terms of the rule.
Upon the whole, I am satisfied that the decree of the court below is well supported upon the principles of maritime law, and is within the doctrine of the case already determined by this court, and that it should be affirmed.