Cobb v. Howard. in April, and sailed from thence to San Francisco on the 3d of the month. The ten passengers took passage in her, and transferred their tickets to her master for their fare, and he transferred them to the libellant. The District Court decreed in favor of the libellant, and the respondents appealed to this Court. Welcome R. Beebe and Charles Donohue, for the libellant. Francis B. Cutting and John Sherwood, for the respond ents. NELSON, J. It is objected that this suit is not brought in the name of the original parties to the contract; but it is every day's practice, in the Admiralty, to allow suits to be brought in the name of the assignee of a chose in action. The libellant is the real owner of the tickets, and, therefore, the proper person to bring the suit, and in his own name. It is also objected, that the disabling of the New Orleans by stress of weather excuses the fulfilment of the contract at the time provided for. How this might be in a case where the passenger was on the vessel at the time of the casualty which caused the delay in the voyage, it is not now necessary to determine. Certainly, until the passenger becomes connected with the vessel as a passenger on board, he is in no way subject to her casualties and misfortunes, occurring through stress of weather or otherwise. He is a stranger to her. The contract bound the owner to have his vessel at the place and time designated. He had stipulated that as part of the consideration for the price paid, and had assumed the responsibility of performance; and the failure operated as a breach of the engagement, and made him liable to return the price paid. The winds and waves, or the weather, are no excuse for the non-fulfilment of the contract as to the time of the commencement of the voyage. If those circumstances had been intended as elements of it, they should have been expressly provided for by the owner; and then all parties concerned would have understood it. The Prospect. It is said that the passengers should have waited at Panama through the month of April, and that the owner had the whole month to furnish his vessel there. Admitting that he had the month, the utmost that can be claimed is, that the passengers took the risk, if the vessel arrived within the month, of losing their right to demand a return of the fare. There was no abandonment of the voyage, for the tickets for the passage-money were appropriated to the completion of it. The passengers doubtless knew the disabled condition of the New Orleans, and that she could not arrive at Panama in time to fulfil her engagement; and it would have been an idle act to have waited through the month, especially as there seems to have been no provision made by the owners for the substitution of another vessel, nor indeed, for aught that appears, any interest or concern taken in the matter. The decree below was right, and should be affirmed. THE PROSPECT. In a libel in rem against a vessel for supplies furnished, the burden lies upon the claimant to show that the credit was given not to the vessel but to her owner. In order to make out a case that will avoid a lien against a vessel because of delay in enforcing it, there must be something more than mere lapse of timeunless the delay be such that the Court, in analogy to the statute of limitations, would hold the debt barred-there must be unreasonable neglect and delay, operating to the prejudice of third persons, after opportunities have existed to enforce the lien. (Before NELSON, J., Southern District of New York, September 24th, 1856). THIS was a libel in rem, filed in the District Court, against the bark Prospect, a foreign vessel, for supplies furnished to her in June and July, 1851, amounting to $455.27. After a decree by the District Court in favor of the libellants, the claimants appealed to this Court. The Prospect. Erastus C. Benedict, for the libellants. Welcome R. Beebe and Charles Donohue, for the claimants. NELSON, J. The main defence in this case is, that the supplies were furnished on the credit of the owners of the vessel. But the bill for them was charged and rendered, in the usual way, against the vessel and owners; and there is nothing in the proofs sufficient to rebut or disprove the presumption of law, arising out of the transaction, that the credit was given to the vessel. The burden lay upon the claimants to show affirmatively that it was given, not to the vessel, but to the owners. It is further insisted, that there has been great and unreasonable delay in enforcing the lien, and that, in the mean time, a portion of the interest in the vessel has passed by transfer into the hands of bond fide purchasers, and that it would be inequitable and unjust, under these circumstances, to enforce the lien. The burden of this ground of defence, also, rests upon the claimants. They must make out such laches as would in law operate to forfeit the lien. On looking into the proofs, I find no such evidence in the case. The vessel left the port soon after the stores were furnished, and, for aught that appears, this libel was filed at the first opportunity that was afforded after her return. In order to make out a case that will have the effect to avoid a lien, from delay in enforcing it against a vessel, there must be something more than mere lapse of time-unless, indeed, the delay be such that the Court, in analogy to the statute of limitations would hold the debt to be barred-there must be unreasonable neglect and delay, operating to the prejudice of third persons, after opportunities have existed to enforce the lien. I think that the decree below is right and should be af firmed. Wortman v. Griffith. ISAAC WORTMAN vs. WALTER S. GRIFFITH AND ANOTHER. Where the owner of a ship-yard hauled up a vessel on his ways, charging for that service, and also a per diem for the time she was on the ways while being repaired by another person: Held, that the service was one rendered in the repair of the vessel, and that the Admiralty had jurisdiction of a libel in personam to recover for the service. The nature of a contract or service, and not the question whether the contract is made, or the service is rendered, on the land or on the water, is the proper test in determining whether the Admiralty has or has not jurisdiction. (Before NELSON, J., Southern District of New York, September 24th, 1856). THIS was a libel in personam, filed in the District Court, to recover compensation for services rendered by the libellant in repairing a steamboat. The District Court decreed for the libellant, and the respondents appealed to this Court. Erastus C. Benedict, for the libellant. Cornelius Van Santvoord, for the respondents. NELSON, J. The libellant is the owner of a ship-yard, together with apparatus, consisting of a railway-cradle and other fixtures and implements, used for the purpose of hauling up vessels out of the water, and sustaining them while they are being repaired. Certain rates of compensation are charged, regulated by the tonnage of the vessel, for hauling her up on the ways, and a per diem charge is made for the time occupied while she is under repair, in cases where the owner of the yard and apparatus is not employed to do the work, but the repairs are made by other ship-masters, as in the present instance. The main controversy in the Court below related to the terms upon which the service was to be rendered. Judge Hall, who heard the case, settled the amount, upon his view of the evidence, at $631.97, and I am not disposed to inter Wortman v. Griffith. fere with his conclusion. The proofs are conflicting, and not very clear either way in respect to the agreement. The doubt I have had in the case is upon the objection raised to the jurisdiction of the Court-a point not taken in the Court below. It is claimed by the counsel for the respondents, that the agreement for the service rendered is to be regarded simply as a hiring of the yard and apparatus; and, certainly, if this be the true character of the transaction, there would be great difficulty in upholding the jurisdiction. On the other side, it is contended that the service rendered was a service in the repairs of the vessel, and was as much a part of them as the work of the ship-master, or the materials furnished by him. There can be no doubt, that in cases where the ship-master owning the ship-yard and apparatus, is employed to make the repairs, the service in question enters into and becomes part of the contract, and is thus the appropriate subject of Admiralty jurisdiction. And the question is, whether any well-founded distinction exists between a transaction of that character and the present one. The owner of the yard and apparatus, together with his hands, superintends and conducts the operation of raising and lowering the vessel, and also of fixing her upon the ways, preparatory to the repairs. The service requires skill and experience in the business, and is essential in the process of repair. I do not go into the question whether this is a contract made, or a service rendered, on the land or on the water. It undoubtedly partakes of both characters. But, I am free to confess, I have not much respect for this and other like distinctions that have sometimes been resorted to, for the purpose of ascertaining when the Admiralty has, and when it has not, jurisdiction. The nature and character of the contract and of the service have always appeared to me to be sounder guides for determining the question. Although a distinction may be made between this case, in the aspect presented, and the case where the ship-master is employed to make the repairs, I am inclined to think that it |