
    JUAN CRESUS VENUS v. THE SS. “QUEBEC” ET AL.
    Admiralty,
    No. 756.
    1. One wli-o makes a contract to be carried on a boat from Porto Rico to a place named in the contract has no right of action against the boat, but merely one in personam against the owners, where neither the passenger nor the boat entered upon the performance of the contract, as no maritime lien was created.
    2. A libel in an action against a boat and the owners for nonperformance of a contract of carriage of passengers may not be amended so as to set out a cause of action against the owners, where the court had no jurisdiction of the boat, and the owners were not in court, and the action as claimed was simply against the boat, and an amendment which would make the owners liable would make an absolute substitution, creating a new action.
    Opinion filed April 5, 1911.
    
      Messrs. Anderson & Sweet, for libellant.
    
      Mr. Antonsantl for respondents.
   Jenkins, Judge,

delivered tbe following opinion.

Under tbe circumstances I deem it best to make a short memorandum expressive of my views.

I never bad any doubt but that tbe plaintiff bad a right of action, not against tbe boat, but one in personam.

Tbe plaintiff made a contract to be carried on the defendant boat from Porto Pico to a place named in tbe contract, but neither tbe plaintiff nor tbe boat entered upon tbe performance of tbe contract; hence, no maritime lien was' created. There being no maritime lien, no action could be maintained against tbe boat. It will make no difference upon what theory tbe libel was framed, tbe action is against tbe boat. It is true that tbe owners are also made defendants, but if there is no lien the libel would have to be amended so as to show tbe cause of action against tbe owners, and tbe question arises, whether an amendment could be made which could sustain tbe present action.

Tbe service of the libel upon tbe owners through their agents here, while it might bring tbe owners into court, does not dispose of the important and interesting question in the case. The fact that a monition issued including both the boat and the owners will not make any difference. There was no service upon the owners, the owners were not in court, and could not be brought in court by the arrest of the vessel. The vessel could only be reached, as any other property of the owners, by a foreign attachment.

To permit an amendment as the case now stands would be extending the doctrine of amendment far beyond what was ever contemplated. The amendment of the pleading merely means that the pleading is defective and that it can be amended as an original bill. The action now is framed against the boat, and it will make no difference what is in or out of the libel, as far as that is concerned; and to make the owners liable, an amendment would be required that would make an absolute substitution. Instead of an action pending against the boat, it would be necessary to have an action against the owners, independent and separate of the boat.

So the amendment would be extended to the creation of a new action. This is said, keeping in mind that the facts in both actions are the same.

While I may not make myself entirely clear, under all the circumstances, I am well satisfied that the exceptions should have been sustained at the outset; and in consequence of these views and other views I have not time to express, the exceptions have been sustained.  