
    No. 982.
    M. Berwin v. Steamship Matanzas, Captain and Owners.
    The Civil Courts of Louisiana are without jurisdiction in admiralty and maritime cases.
    By the judiciary act of 1789, chapter 20, § 9: Exclusive original cognizance of all civil causes of admiralty and mai'itime jurisdiction is vested in the District Courts of the United. States, “ saving to suitors in all cases the right of a common law remedy, where the common law is competent to
    The saving clause, in the judiciary act of 1789, securing to suitors a common law remedy, where the common law is competent to give it, does not give them a remedy at common law, but a common law remedy. A proceeding inrem is a civil law remedy, and when used m the common law courts is provided for by statute.
    A PPEAL from the Fifth District Court of New Orleans, Beaumont, J.
    
      E. Filleul, for plaintiff.
    
      J. T. Tatum and H. B. Kelly, for defendant.
    
      Brief of E. Filleul, for plaintiff and appellee.
    
    i:' * * The defendant made a motion to set aside the sequestration, on several grounds, the first of which is: “ Because the court has no jurisdiction in this case, which is one arising under the admiralty laws of the United States, and in which the United States Courts have exclusive jurisdiction, ”
    
      The defendant, by cumulating other grounds with his plea to jurisdiction, has clearly waived it'or rendered it unavailable; he pleads in the same motion that the affidavit is insufficient according to the laws of Louisiana, and that the surety is not such as the law requires. Such pleas are incompatible with the plea to the jurisdiction of the Court. The Court is bound to exercise its jurisdiction, to act upon what is the subject-matter presented for its decision, and, therefore, the plea to its jurist diction is waived. See Code of Practice, Art. 338; 10 L. R. 228.
    But let us look into that plea.
    A cardinal principle in this matter is, “ that the presumption is that a cause is not within the jurisdiction of the United States Court, until the contrary appears.” Lowry v. Erwin, 6 R. R. 192.
    The State Courts have concurrent jurisdiction, and the judiciary act of 1789, while it gives the Federal Courts exclusive jurisdiction of maritime cases, reserves to parties the right of a common law remedy, when the common law is competent to give it. State v. Watts, 7 L. R. 445.
    But this is not a maritime case. The cause must arise wholly upon the gea, and not within the precincts of any county, to give the admiralty jurisdiction. If the action be founded on a matter done partly on land and partly on water, as if a contract be made on land to be executed at sea, or be made at sea to be executed oh land, the common law has the preference, ápd excludes the admiralty. Kent, vol. 1, 419.
    This case of seamen’s wages, the Courts' of common law admit to be o£ admiralty jurisdiction, and this is an exception in favor of seamen to the general rule, that the admiralty has’ho jurisdiction of any matter arising on land, though it be of a maritime nature, as a charter pai’ty, or a policy of insurance. Kent, vol. 1, p. 421. '
    The plea to the jurisdiction of the' Court is clearly untenable. A simple examination of the record will show that the other grounds of the motion must share the same fate; they rest on no foundation.
    
      Brief for defendants and, appellants.
    
    * * * The Court erred in refusing to set aside the sequestration. It was without jurisdiction of the ease from the beginning. When jurisdiction is wanting raiione malerioe, the Court is bound ex officio to notice it—consent of parties even cannot give jurisdiction; and the judgment of a Court wanting in such jurisdiction is null. C. P. 606, 608. 1 N. S. 200, 703. 3 N. S. 136. 14 L. 177- 6 R. 365. 11 R. 77. Parson’s Mar. Law, vol. 2, p. 710, note.
    It is apparent, on the face of the record, that the Fifth District Court of New Orleans was without jurisdiction of this action raiione materiae, for the reason.that it is a case of admiralty and maritime jurisdiction, the exclusive cognizance of which by the Constitution of the United States, and the laws of Congress passed in pursuance thereof, is vested in the Courts of the General Government.
    In the Constitution of the United States it is declared, in express terms, that the judicial power of the General Government “shall extend to all cases of admiralty and maritime jurisdiction.” Const. U. S. Art. 3 l, 2. Benedict’s Adm. p. 12.
    
      By tlie judiciary act of 1789, ch. 20, \ 9, “ exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction ” is vested in the District Courts of the United States, “saving to suitors in all cases the right of a common law remedy, where the common law is competent, to give it.”
    If this is a case of admiralty and maritime jurisdiction, and if the remedy sought is not one which the common law7 is com jietent to give, tho conclusion is inevitable that the State Court was without jurisdiction.
    This is a case of admiralty and maritime jurisdiction. It is an action on a contract of affreightment.
    “ The primary and principal purpose of a ship is transportation for hire, and therefore contracts of affreightment are of admiralty and maritime jurisdiction.” Benedict’s Admiralty, § 286. See also Conkling’s Treatise, p. 253. Parson’s Mar. Law, vol. 2, p. 508, and note; Benedict’s Admiralty, p. 31.
    The remedy sought in this action is not a common law remedy, if indeed any remedies afforded by the Courts of Louisiana in civil actions can be so denominated. The whole proceeding, as it appears in tho record, is utterly foreign and unknown to the common law system of remedial justice. Nor is the proceeding one, which could be had in the Courts of ordinary civil jurisdiction, under the system of jurisprudence from which that of Louisiana is mainly derived.
    “ The maritime ordinances of Prance have always been held in deservedly high estimation. Her wisest statesmen and monarchs have all along, through many centuries, given the most profound attention to the subject of maritime law; and under the administration of Courts of admiralty, filled by the ablest Judges, a System of maritime law has there been built up more perfectly than in any other country.
    * * The jurisdiction of the French admiralty has always been of the widest and most salutary character. Benedict’s Admiralty, p. 95, ? 172. See also \ 173, et seq.
    
    “Les tribunaux d’amirauté connaissaicnt exclusivement entre toutes personnes de tout ce qui eoncernait la construction, les agres et apparaux, avitaillement et équippement, vente et adjudication des vaisseaux, charteparties, affrétements, etc., ct tout autre concernant le commerce de la mer.” * * if * * “Ilsétaient tribunaux privilégiés, ayant une compétence exclusive et privative, qu’on ne pouvait violer, sous peine d’amende. Du reste ils étaient tribunaux naturels et ordinaires pour les hommes et ohoses de la mer. ” Beaussant, Code Maritime, Tome 1, p. 10. See also Locré, Esprit du Code de Commerce, Livre 4, tit. 2, Art. 631-7. Code de Commerce, 631, 633.
    Finally, the S^jreme Court of the United States, in the case of the Muses Taylor v. Hammons, at the December term, 1866, have decided in a case entirely analogous to this, that the State Courts are without jurisdiction of a proceeding of this nature. A properly authenticated copy of the opinion of the Court will be furnished at the hearing of this case, and reference is made, in this connection, to the laws of the State of California, under which the case of Hammons v. Moses Taylor arose. Garfield and Snyder’s Compiled Laws of the State of California, §§ 318-23, pp. 577-8, * *
   Taliarerro, J.

The plaintiff sues upon a contract of affreightment, alleging that he shipped on board the ship Matanzas, at New York, in November, 1865, one hundred and forty-four cases of merchandize, destined for Now Orleans ; that there was a failure on the part of the captain and officers to deliver nineteen of those cases according to the bill of lading. He claims judgment for $1,741 55, as the value of the lost merchandize, with privilege on the vessel, and costs of suit, etc.

A writ of sequestration was taken out, under which the vessel wa seized by the sheriff. The defendants released the seizure by entering into bond. ■

An exception was filed in the incipient stage of the proceedings to the jurisdiction of the Court, on the ground that the action being founded upon a contract of affreightment, the case is one exclusively of admiralty and maritime jurisdiction, and cognizable only by a Court of the United States. The exception embraced also an objection to the insufficiency of the affidavit, and also to the insufficiency of the bond, in the matter of the sequestration.

The exception was overruled, an answer filed, and after trial had, the Court rendered judgment in behalf of the plaintiff for the amount claimed, with judicial interest from judicial demand, and costs of suit. Defendants have appealed.

By the Judiciary act of 1789, ch. 20, g 9, exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, is vested in the District Courts of the United States, “ saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it. ”

A case deoided by the Supreme Court of the United States, in December last (1866) “The steam-vessel, Moses Taylor, plaintiff in error, v. Wilson Hammons,” is adverse to the view formerly taken by many of the 9 th section of the Judiciary Act of 1789, just referred. The Court say, in the case of the Moses Taylor, that “ the contract for the transportation of the plaintiff was a maritime contract; it related exclusively to a service to be performed on the high seas, and pertained solely to the business of commerce and navigation. There is no distinction in principle between a contract of this character and a contract for the transportation of merchandise. The Court said : “ The case presented, is clearly one within the admiralty and maritime jurisdiction of the Federal Courts.” The decision settles the point, that over these cases the jurisdiction of the Federal Courts is exclusive. In conclusion, the Court remarked : “ The case before us is not within the saving clause of the ninth section. That clause only saves to suitors “ the right of a common law remedy, where the common law is competent to give it. ” It is not a remedy in the common law courts which is saved, but a common law remedy.

“A proceeding in rem is not a remedy affoi-ded by the common law; it is a proceeding under the civil law. When used in the common law courts it is given by statute. ”

In the case now before this Court, the exception taken by defendants must prevail.

It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed; it is further ordered, that the case be remanded to tbe Court of .the first instance, with directions to dismiss the action for want of jurisdiction. The jslaintiff and appellee to pay all costs.  