yet may notice an equitable title alleged by a claimant in possession.'
And further at page 173, Section 108: 'Bottomry loans are those in which a sum of money is loaned for a particular voyage, at maritime interest, on the security of the ship, or the ship and freight, or the ship, freight and cargo, on condition that if the voyage be performed safely, the loan shall be repaid with the interest, and if she do not so arrive but is lost by a peril of the sea, nothing shall be paid. The lender thus takes the risk of the voyage and the loss of the vessel discharges the obligation as completely as payment. Such loans are within the admiralty jurisdiction even if they are given in part to secure non-maritime disbursements. But if it be stipulated that the lender shall not incur maritime risk, admiralty has no jurisdiction although the loan be such that without such stipulation the court would have jurisdiction. Suits on bottomry bonds are governed by General Admiralty Rule Seventeen.'
In Bogart et al. v. The Steamboat John Jay, 17 How. 399, at page 401, 58 U.S. 399, at page 401, 15 L. Ed. 95, Mr. Justice Wayne, in speaking of the jurisdiction of the admiralty court, said: ' * * * Its foundation is, that the mere mortgage of a ship, other than that of an hypothecated bottomry, is a contract without any of the characteristics or attendants of a maritime loan, and is entered into by the parties to it, without reference to navigation or perils of the sea. It is a security to make the performance of the mortgagor's undertaking more certain; and, whilst he continues in possession of the ship, disconnecting the mortgagee from all agency and interest in the employment and navigation of her, and from all responsibility for contracts made on her account. Such a mortgage has nothing in it analogous to those contracts which are the subjects of admiralty jurisdiction.' (Italics ours.)
And further at pages 401 and 402 of 17 How.: 'Courts of admiralty have always taken the view of a mortgage of a ship, and of the remedies for the enforcement of them, that courts of chancery have done of such a mortgage and of any other mortgaged chattel. But, from the organization of the former and its modes of proceeding, they cannot secure to the parties to such a mortgage the remedies and protection which they have in a court of chancery. They have, therefore, never taken jurisdiction of such a contract to enforce its payment, or by a possessory action to try the title, or a right to the possession of a ship. It is true that the policy of commerce and its exigencies in England have given to its admiralty courts a more ample jurisdiction in respect to mortgages of ships, than they had under its former rule, as that has been given in this opinion. But this enlarged cognizance of mortgages of ships has been given there by statute 3 and 4 Victoria, ch. 65. Until that shall be done in the United States, by Congress, the rule, in this particular, must continue in the admiralty courts of the United States, as it has been. We affirm the decree of the court below.'
In Re Amelia, C.C., 23 F. 406, Fed. Cas. No. 275, it was said: ' * * * The case, therefore, is substantially, as it is stated in the the opinion of the district court, an attempt to enforce an equitable interest as against a legal title. This the court of admiralty does not undertake. When it proceeds in a petitory suit, it proceeds upon legal title.'
In Atamanchuck v. Atamanchuck et al., D.C., 61 F.Supp. 459, at page 460, Judge Meaney said: 'An admiralty Court will not undertake to enforce an equitable interest as against legal title. When it proceeds in a petitory suit, it proceeds upon legal title.'
In The Steamer Eclipse, Braithwaite, 135 U.S. 599, at page 608, 10 S. Ct. 873, at page 876, 34 L. Ed. 269, Justice Fuller, who delivered the opinion of the court, said: ' * * * While the court of admiralty exercises its jurisdiction upon equitable principles, it has not the characteristic powers of a court of equity. It cannot entertain a bill or libel for specific performance, or to correct a mistake, Andrews v. Essex (Fire & Marine) Ins. Co., (Fed. Cas. No. 374); 3 Mason, 6, 16; or declare or enforce a trust or an equitable title, ,ard v. Thompson, 22 How. 330 (350), (16, L. Ed. 249); The Amelia, (Fed. Cas. No. 6,487), 6 Ben. 475; Kellum v. Emerson, (Fed. Cas. No. 7,669), 2 Curtis 79; or exercise jurisdiction in matters of account merely, Grant v. Poillion, 20 How. 162, (15 L. Ed. 871); Minturn v. Maynard, 17 How. 477 (15 L. Ed. 235); The Ocean Belle, (Fed Cas. No. 10,402), 6 Ben. 253; or decree the sale of a ship for an unpaid mortgage, or declare her to be the property of the mortgagees, and direct possession of her to be given to them. Bogart v. The John Jay, 17 How. 399, (15 L. Ed. 95).' (Italics ours.)
In The J. E. Rumbell, 148 U.S. 1, at page 15, 13 S. Ct. 498, at page 501, 37 L. Ed. 345, Mr. Justice Gray, who delivered the opinion of the court, said: 'An ordinary mortgage of a vessel, whether made to secure the purchase money upon the sale thereof or to raise money for general purposes, is not a maritime contract. A court of admiralty, therefore, has no jurisdiction of a libel to foreclose it, or to assert either title or right of possession under it.' (Italics ours.)
In this district, Judge Forman felt that there was no distinction between a mortgage and a bill of sale as far as admiralty jurisdiction was concerned when he expressed himself in The Captain Johnson, D.C., 64 F.Supp. 559, at page 560:
'In The Helys, D.C., 173 F. 928, the libellants alleged that they were the lawful owners of a gasoline yacht which had been wrongfully withheld from them by one holding their mortgage, the execution of which had been induced by fraudulent misrepresentations. The court said: 'So far, however, as appears from the libel, the question involves a mortgage of the vessel and the court in order to determine the action would be required to adjudicate upon the validity of the mortgage and try the questions of fraud and mistake. Gillespie is apparently rightfully in possession and until these questions are determined adversely to him, should continue in possession. It is well settled that admiralty will not entertain jurisdiction of a matter of this kind. The G. Reusens, D.C., 23 F. 403; The Amelia, C.C., 23 F. 406, (Fed. Cas. No. 275).' 173 F.at page 929.
'Substitute 'bill of sale' for mortgage and Lillian B. Johnson for Gillespie and the language is dispositive of the case before us.'
The same view was expressed by Judge Holly for the Northern District of Illinois in William v. The Cabin Cruiser 'Atte-Wod', 1941 American Maritime Cases 1428.
It is, therefore, quite apparent to this court that admiralty cannot be used to enforce a loan, not maritime in nature, upon the ship given to secure it. In the words of Justice Hughes in Detroit Trust Co. v. Barlum S.S. Co., supra: 'If the mortgage is not within the Act, there can be no suit for foreclosure in the admiralty.'
In this case there is no diversity between the parties and jurisdiction could not be maintained unless in admiralty. The court naturally is bound by precedent as hereinbefore expressed and is of the opinion that the suit is one to foreclose a lien given to secure a debt not maritime in nature and consequently admiralty is without jurisdiction. The libel is accordingly dismissed.
This makes it unnecessary to decide the other defenses presented and considered by the court upon this hearing.