The opinion
Locke, D. J.
This is an action in rem on a maritime contract, based upon a charter-party, for a non-compliance with its terms. It appears that after the charter party had been duly executed, the master and part owner, who had made the same, declined and refused to obey the instructions given, and neglected to proceed to the port where it was intended to put on board the cargo, so that the libellant was compelled to charter another vessel, to his damage.
The first question is whether an action in rem can be sustained. The language of the charter-party gives no direct or positive pledging of the vessel, but the binding clause is in these words: “And for the faithful performance of this agreement the respective parties do hereby bind themselves, each unto the other, in the sum of $800, United States currency. ”
There being no binding of the vessel by the terms of the charter-nor taking of cargo on board, there is no maritime lien or hypothecation which will support an action in rem. Vandewater v. Mills, 19 How. 82 .
'The libel'must be dismissed, with costs.