Opinion of the court.

fore, of its having taken place on board the propeller Falcon, in the present case, is not an element that imparts any peculiar character to the nature of the tort complained of. This is so in cases of collision, in which the offending vessel may be attached and proceeded against as one of the remedies for the wrong done. The jurisdiction of the admiralty does not depend upon the fact that the injury was inflicted by the vessel, but upon the locality-the high seas, or navigable waters where it occurred. Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.

We can give, therefore, no particular weight or influence to the consideration that the injury in the present case originated from the negligence of the servants of the respondents on board of a vessel, except as evidence that it originated on navigable waters—the Chicago River; and, as we have seen, the simple fact that it originated there, but, the whole da mage done upon land, the cause of action not being complete on navigable waters, affords no ground for the exercise of the admiralty jurisdiction. The negligence, of itself, furnishes no cause of action; it is damnum absque injuria. The case is not distinguishable from that of a person standing on a vessel, or on any other support in the river, and sending a rocket or torpedo into the city, by means of which buildings were set on fire and destroyed. That would be a direct act of trespass; but quite as efficient a cause of damage, as if the fire had proceeded from negligence. Could the admiralty take jurisdiction? We suppose the strongest advocate for this jurisdiction would hardly contend for it. Yet, the origin of the trespass is upon navigable waters, which are within its cognizance. The answer is, as already given: the whole, or at least the substantial cause of action, arising out of the wrong, must be complete within the locality upon which the jurisdiction depends-on the high seas or navigable waters.

The learned counsel, who argued this case for the appellants with great care and research, admitted that it was one of first impression; that he could find no case in the books

Statement of the case.

like it. The reason is apparent, for it is outside the acknow ledged limit of admiralty cognizance over marine torts, among which it has been sought to be classed. The remedy for the injury belongs to the courts of common law. DECREE AFFIRMED.

THE KIMBALL.

1. Stipulations in a charter-party requiring the delivery of the cargo within reach of the ship's tackle, and providing that the balance of the chartermoney remaining unpaid on the termination of the homeward voyage shall be "payable, one-half in five, and one-half in ten days after discharge" of the cargo, are not inconsistent with the right of the owner to retain the cargo for the preservation of his lien.

2. A clause in a charter-party, by which the owner binds the vessel, and the charterers bind the cargo, for the performance of their respective covenants, is sufficient to repel doubt arising upon the construction of other stipulations not plainly controlling them, as to whether the lien for freight was intended to be waived by the parties.

3. By the general commercial law a promissory note does not extinguish the debt for which it is given, unless such be the express agreement of the parties; it only operates to extend until its maturity the period for the payment of the debt. The creditor may return the note when dishonored, and proceed upon the original debt. The acceptance of the note is considered as accompanied with the condition of its payment. And although in Massachusetts the rule is different, and the presumption of law there is that a promissory note extinguishes the debt for which it is given, yet there the presumption may be repelled by evidence that such was not the intention of the parties; and this evidence may arise from the general nature of the transaction, as well as from direct testimony to the fact.

4. Upon this ground it is not to be presumed that the owner of a ship, having a lien upon a cargo for the payment of the freight, intended to waive his lien by taking the notes of the charterers drawn so as to be payable at the time of the expected arrival of the ship in port. The notes being unpaid, he may return them and enforce his lien.

THE Owner of the Kimball chartered her, in July, 1856, to a Boston firm, for a round voyage from New York to Melbourne, Calcutta, and Boston. The charter-party, in most of its provisions, was in the usual form. A portion of the charter-money was to be paid, and was paid, before or

Statement of the case.

during the voyage; "balance," the instrument proceeded, payable, one-half in five and one-half in ten days, after discharge of homeward cargo."

The charter-party contained, also, a clause that the cargo should "be received and delivered within reach of the ship's tackles at the ports of lading and discharging," and concluded with the not unusual provision, that for the performance of its covenants the parties bound themselves-the party of the first part, the vessel, her freight, tackle, and appurtenances; the party of the second, the freight and merchandise to be laden aboard-each to the other, in the penal sum of $40,000.

While the ship was yet at sea, the charterers, at the owner's request, gave him their notes for $10,000. They were drawn so as to be payable near the time when it was expected that the ship would arrive; and it appeared by the testimony of the broker who had been concerned in the matter, that they were given for the accommodation of the owner, and were to be held over or renewed in case they fell due before the ship reached home. The owner, in a receipt for the notes, stated that he had received them "on account of the charter," and that it was "understood that this amount was to be insured by the charterers and charged to the owners of the ship." The owner used the notes, and obtained money on one of them at a bank where he had an account. The charterers effected insurance on the $10,000, in pursuance of the agreement. The vessel arrived about five weeks before the notes by their terms fell due.

Shortly before the vessel arrived home, and before the notes fell due, the charterers failed. The owner immediately tendered them back their notes, but they would not receive them.

By the terms of the charter-party the cargo was to be deliverable to the consignees, "they paying freight as per charter-party," and after the arrival of the vessel, the owners, asserting a lien on the cargo for the unpaid money, and refusing to credit as payment on account, the notes for $10,000, filed a libel in the District Court for Massachusetts to enforce the lien. This libel was filed on the 18th March, 1858; the

Argument against the lien.

notes, which were produced and tendered in court, having fallen due on the 3d preceding. On appeal to this court from the Circuit Court, where the matter went on appeal from the District Court, two questions arose.

1. Whether the ordinary lien of the ship-owner was displaced by anything in the charter-party?

2. Whether the notes of the charterers were to be considered as payment?

The Circuit Court, reversing the District Court, had held negatively on both points.

Mr. Thaxter for the owners of the cargo, appellants:

I. In Raymond v. Tyson* it is said, by Wayne, J., that the lien of the ship-owner for freight or hire "may be considered as having been waived without express words to that effect, if there are stipulations in the charter-party inconsistent with the exercise of the lien, or where it can be fairly inferred that the owner meant to trust to the personal responsibility of the charterer."

Neither will the subsequent insolvency of the charterer restore a lien once waived or lost. In Alsager v. The St. Katherine Dock Co.,† a case like this, where insolvency had given rise to the litigation, Chief Baron Pollock said, "Did the owner intend to abandon his lien and receive payment of the freight two months after the inward report, or did he mean to retain his lien, and keep his right to refuse delivery of the cargo until the freight was paid? If the ship-owner could not have refused to deliver the goods provided the charterer had continued solvent, he cannot maintain that claim now."

Now, we say that the stipulation in the charter, that the cargo should be delivered within reach of the ship's taekle, is inconsistent with the right of retaining it to enforce the lien set up; which retention involves the unloading and storing of the cargo.

* 17 Howard, 59; see also Dimech v. Corlett, 12 Moore, Privy Council, 199.

14 Meeson & Welsby, 794.

Argument against the lien.

Independently of this stipulation, the credit given for the payment of the balance of the charter-money after discharge at the home port, is inconsistent with the existence of a lien and the discharge of the ship and the delivery of the argo according to the usual and customary manner. This clause giving this credit was inserted for the benefit of the charterers. It is not merely a formal part of the charter, but is a living, active provision, having reference to the contract intended to be made, and such a construction must be given to the charter as shall make this clause operate as a beneficial credit.

Again we think that by the true construction of this charter, the parties intended that the cargo should be discharged and delivered in the usual and customary manner. If, then, the retention of the cargo for the purpose of retaining a lien thereon until the expiration of the credit, will prevent the discharge and delivery of the cargo in the usual and customary way, such retention cannot be authorized.* The usual and customary course is to give notice to the consignee or owner of the goods when his goods are to be discharged, and then to discharge them upon the wharf, when the liability of the carrier as such ceases, and the goods are at the risk of the owner.† But to give full effect to the credit specified, and preserve the lien, the master must have discharged his cargo and stored it, no matter how many different subfreighters there may have been.

The printed clause at the end of the charter-party,—a clause found in nearly all charter-parties-which agrees to bind the freight and merchandise to be laden on board to a performance of the contract,—has no application to this part of the contract. As was said by Baron Bramwell, in Foster v. Colby,*"The true meaning of that clause is, that the owner is to have a lien so far as a lien is possible." Baron Watson, in the same case, said, in reply to the argument that this clause gave an absolute lien on the cargo, "It is impos

*Foster v. Colby, 3 Hurlstone & Norman, 705; Alsager v. St. Katherine Dock Co.

Richardson v. Goddard, 23 Howard, 28; Houlden v. The General Steam Nav. Co., 3 Foster & Finlason, 170; Black v. Rose, 10 Jurist, N. S., 1009.