Howard v. Wissman/Concurrence Daniel
Mr. Justice DANIEL.
In the opinion just pronounced, so far as it goes to demonstrate the entire want of justice in the demand of the libellant, I entirely concur, the testimony in this case having satisfactorily ascertained that the loss, of the cargo was inevitable from the character of the subject of which that cargo consisted, and that by no degree of diligence or care could it have been transported in good condition to its point of destination. But, independently of these considerations, and in advance of them, there is another which of itself, in my judgment, should have prevented the claim of the libellant from being established or entertained at all in the district and circuit courts, and which should operate with equal effect in preventing its being entertained here.
This case is one of contract between the owner of property and the master of a vessel to transport a cargo of potatoes from Hamburg and to deliver them in New York. It is nothing more than a contract between the owner of property and a carrier to convey a given subject for hire. It was a contract made upon land to be terminated and executed upon the land for a stipulated compensation, and not strictly or properly a maritime contract, in any sense beyond any other contract, in the performance of which a party or agent would be compellable to cross the ocean or even to pass a river. It did not begin and terminate on the sea. Upon this contract an action might have been instituted in a court of law either upon the charter-party or the bill of lading, in conformity with ancient and well-settled practice, and could have been as speedily and efficiently decided in such a court as it could be in the present form of proceeding, less familiar to the common understanding and habits of the country, dubious and undefined in its claims to power, and attended with expenses beyond those incident to the usual tribunals of the land.
My opinion is, that for want of jurisdiction in the case presented upon the face of the libel, that libel should have been dismissed by the circuit court, and that this court should now, for that cause, order it to be dismissed.