1780.
meant by high ſeas.—A road, haven, or even river, not within the body of the county, is high ſea, in the idea of Civilians. Therefore, if the river Delaware is out of the body of any county, we think it clear, that it is within the Admiralty juriſdiction. And the Court would endeavour to enlarge its juriſdiction, rather than a place ſhould remain ſubject to no control. The place when the fact was done which is complained of as an injury, is expreſsly alledged in the libel, to be within the juriſdiction of the Admiralty.—This is not contradicted in the anſwer; and we muſt take up the matter as it ſtands upon the libel, not on the evidence; becauſe there is no opportunity to traverſe. On this point, therefore, we rather incline to ſay, the juriſdiction is well laid.
But what we found our decree upon, is the other particular, the ſubject matter.—It had been contended by the council for the reſpondents, that the Court of Admiralty cannot carry an agreement into ſpecific execution; and, alſo, that this is never done, even in a Court of Chancery, for one party, unleſs they could do it for the other, in caſe they wiſhed for a ſpecific performance. To this, it has been anſwered, that otherwiſe there is no compleat remedy.
It was obſerved, by one of the council for the reſpondents, that it is difficult to know in what light to conſider the application in the inſtance. It appears to us, however, that it can be conſidered in no other light, than as an application to compel a ſpecial performance of an agreement: And to ſhew that this can be done by a Court of Admiralty, Vent. 32 was cited; where, it appears, that a maſter of a veſſel in Spain, had been obliged to take on board his veſſel forty butts of wine. But the determination of the Admiralty in England ſeems to be rather out of reſpect to the foreign court, than from an opinion, that they could do this by virtue of their authority originally; for, it is introduced by ſaying, that the judgment of a foreign court ought to be ſupported, even as to what might not be cognizable originally there.
It has been ſaid that the Court of Admiralty acts in rem, that is, only to make the objects of diſpute reſponſible. This, however, is a confidential truſt, and we ſee no inſtances of any ſuch juriſdiction. Does the maſter ſhip himſelf on the credit of the ſhip? No: It is no more than a contract. Whether the doctrine of mutuality of remedies be a fixed rule in the Court of Chancery, I am not altogether certain; but it is reaſonable that the parties ſhould ſtand on an equal footing. No ſuch remedy could be obtained by the owners againſt the captain. It is ſaid he might be attached if he failed of his duty;—ſo might the owners;—ſtill the ſhip would be liable as againſt the owners. Indeed, I know of no caſe where an Attachment has iſſued, unleſs for ſome contempt; nor does Carthew contradict this.
If the libel is conſidered as complaining of a Treſpaſs, inſtead of demanding performance of the agreement, I do not ſee that this will help the Appellant; for, an Admiralty Court cannot give damages.
