The libel in this case is in rem against the libellee for an assault and battery upon the libelant by the second mate of the libellee while the ship was lying in the port of Honolulu, Territory of Hawaii. The grounds of the exceptions are as follows:
“1. That the allegations in the said libel contained do not disclose any admiralty or maritime claim or lien upon the said bark whereupon an attachment should be founded; and
2. That the court has no jurisdiction in the premises on the ground that the claim set forth in the libel can not be litigated 'in a suit in rem, such suit being barred by admiralty rule No. 16.”
Admiralty rule 16 is as follows: “In all suits for an assault or beating on the high seas or elsewhere within the Admiralty jurisdiction, the suit shall be in personam only.”
*93The admiralty rules are established as rules of practice for the courts of the United States in admiralty and maritime jurisdiction in pursuance of an act of Congress. If this rule applies to this complaint, the court is bound by it.
The libelant complains that such assault and battery was a violation of his contract with the libellee and the duty cast on the owners thereof and the master and officers to treat libelant humanely while upon said vessel as an articled seaman. Counset for the libelant, referring’ to admiralty rule 16, cites from Benedict’s Admiralty, third edition, page 175, which, in referring to the rule providing that all suits for assault and battery or beating must be in personam only, uses the following language:
“ This is undoubtedly true, where the action is technically for the assault and battery, as a mere tort; but it would seem, on principle, that if the action be brought on the contract, as for not carrying a passenger safely and without injury, or for not treating with proper kindness a passenger or seaman, an assault or beating being the gravamen of the breach, the suit may be in rem against the vessel.”
Although this expression by Benedict is plausible and appears reasonable, to my mind it is not sufficient to remove a complaint for assault and battery from the rule, for the assault is the whole complaint and calling it a violation of a contract does not essentially change the character of the case except to make it a suit for damages for a breach of contract instead of a suit for damages for a tort. I find no cases which support this citation from Benedict, except under circumstances where there is a continued course of ill treatment known to and tolerated by the master, which is not the fact as alleged in this case.
If such a course of treatment is not within the 16th admiralty rule, it is because it is distinctively a breach of the implied contract to protect the crew from violence, being a course of conduct toward a seaman which is within the power of the master, the representative of the owners, to prevent. *94But where a single assault takes place, not in the presence of the master, which he had no opportunity of preventing, there seems no ground for the contention that rule 16 does not apply, oven though it is nominally brought for violation of contract instead of in tort, unless it could be held that the ship was liable in that the master representing the owners was guilty of negligence in providing a man of a brutal disposition as second mate, which proposition might be tenable under an allegation that such disposition was known to the master when he engaged him.
Under the first ground of the exceptions there is no allegation in the libel that the assault complained of was known to the master or was in his presence.
The exceptions are allowed on both grounds.