libel must be taken as true and correct in considering exceptions to the libel. However, it is patent that paragraph 8 of the libel -- alleging that the payment of the $2,000 was for the purpose of making the Valmar seaworthy -- cannot have the effect sought by the libellant, sinde it is well settled that where parties, without any fraud or mistake, have deliberately put their engagements in wiring, the law declares the writing to be not only the best, but the only, evidence of their agreement, and that all preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract, and that unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence. See Harding v. Taubel, 3 Cir., 1 F.2d 614; City of Newark v. Mills (South Shore), 3 Cir., 35 F.2d 110, 1929 A.M.C. 1552; J.I. Case Threshing Mach. Co. v. Buick Motor Co., 8 Cir., 39 F.2d 305.
There was no allegation in the libel that the alleged undertaking to put the vessel in seaworthy condition was omitted from the written charter party by fraud, accident or mistake, and the writing therefore constitutes the sole evidence of the undertaking between the parties.
As to the libellant's second contention that the $2,000 was advanced as prepaid freight to enable the vessel to be put in seaworthy condition -- there is no allegation in the libel that the $2,000 was paid as "prepaid freight" and, even had it been so alleged, it would have come within the parol evidence rule cited above.
Incidentally, in connection with the libellant's argument that the $2,000 was paid to put the vessel in seaworthy condition, the libel itself, in paragraphs 10 and 11
alleges that Jones, the owner of the vessel, failed to make the repairs and this, of course, effectively disposes of libellant's contention that the payment to finance the repairs obligated the vessel itself under libellant's own theory of the law.
The conclusion is inescapable that the present case involves a simple breach of an executory contract of charter party, for which the libellant is not entitled to a maritime lien against the vessel.
"* * * If the cargo be not placed on board, it is not bound to the vessel, and the vessel cannot be in default for the non-delibery, in good order, of goods never received on board. Consequently, if the master or owner refuses to perform his contract, or for any other reason the ship does not receive cargo and depart on her voyage according to contract, the charterer has no privilege or maritime lien on the ship for such breach of the contract by the owners, but must resort to his personal action for damages, as in other cases. * * *
"'And this court has decided, in the case of The Schooner Freeman v. Buckingham, 18 How.  188, 15 L. Ed. 341, that the law creates no lien on a vessel as a security for the performance of a contract to transport cargo, until some lawful contract of affreightment is made, and a cargo shipped under it. '" (Emphasis supplied.) Osaka Shosen Kaisha v. Pacific Export Lumber Co., 260 U.S. 490, 498, 43 S. Ct. 172, 173, 67 L. Ed. 364.
Further, from the same opinion (260 U.S. page 499, 43 S. Ct. page 174):
"'The doctrine that the obligation between ship and cargo is mutual and reciprocal, and does not attach until the cargo is on board, or in the custody of the master, has been so often discussed and so long settled, that it would be useless labor to restate it, or the principles which lie at its foundation. The case of the Schooner Freeman v. Buckingham, decided by this court, is decisive of this case.' The Lady Franklin, 8 Wall. 325, 329 (19 L. Ed. 455).
"'It is a principle of maritime law that the owner of the cargo has a lien on the vessel for any injury he may sustain by the failt of the vessel or the master; but the law creates no lien on a vessel as a security for the performance of a contract to transport a cargo until some lawful contract of affreightment is made, and the cargo to which it relates has been delivered to the custody of the master or some one authorized to receive it.' The Keokuk, 9 Wall. 517, 519 (19 L. Ed. 744)."
See, also, Schooner General Sheridan, 10 Fed.Cas. 182, No. 5,319; Verderwater v. Mills, 19 How. 82, 15 L. Ed. 554; The Trader, D.C., 17 F.2d 623; The Saturnus, 2 Cir., 250 F. 407, 3 A.L.R. 1187; The Tuladi, D.C., 18 F.2d 627; The Arabien, D.C., 11 F.2d 304, 1926 A.M.C. 98.
The libellant, conceding the well-settled rule above cited, attempts to distinguish the instant case on the ground that under the charter party there was no requirement that a cargo be loaded on the vessel on the southbound voyage, and that when he paid the $2,000 called for by the charter party that he had performed his part of the contract, and that when the respondent accepted the $2,000 he, too, had entered upon the performance of the contract. That contention cannot prevail. An inspection of the charter party discloses that the consideration for the charter was to be "$2,000 per trip plus one half or 50 per cent of the money obtained from the cargoes going south". According to the libel itself, no charge was loaded on the ship; indeed the libellant seeks to recover $1,000 in damages (paragraph 13) for "estimated loss of revenue from available cargoes respondent Walter Jones refused to accept for trips south".
The libellant has cited numerous cases in support of his contention that where an advance payment is made for the charter hire, that not only the owner but the vessel itself is responsible for the repayment. I have examined these cases and found in them to support for the libellant's view.
For the reasons stated the exceptions to the libel are sustained, except as to the lien for the provisions placed aboard the vessel. An appropriate order may be submitted in accordance with this opinion.