A bill in equity in a state court to foreclose a common law lien
upon a raft for towage services is not an invasion of the exclusive
admiralty jurisdiction of the district courts, but is a proceeding
to enforce a common law remedy, and within the saving clause of
section 583 of a remedy which the common law is competent to
give.
This was a bill in equity filed in the Circuit Court for the
County of Mercer, Illinois, by the defendant in error, John
McCaffrey, against the Knapp, Stout & Co. Company (hereinafter
called the Knapp Company), and the Schulenburg & Boeckler
Lumber Company (hereinafter called the Schulenburg Company), and
its assignees, to enforce a lien for towage upon a half raft of
lumber then lying at Boston Bay, in Mercer County.
The suit arose from a contract made April 6, 1893, by McCaffery
with the Schulenburg Company in which, after reciting that
McCaffrey had purchased of this company three steam towboats for
the sum of $17,500, it was agreed that McCaffrey was to tow all the
rafted lumber such company would furnish him at or below their mill
at Stillwater, Minnesota, to St. Louis, and deliver the same there
to the company in quantities not exceeding one-half a raft at a
time, for which service he was to be paid $1.12 1/2 per thousand
feet, board measure, for the lumber contained in the raft. The
other provisions of the contract, of which there were many, were
not material to the present controversy. After towing a number of
rafts for the company, the charges for which remained unpaid, one
of McCaffrey's steamers, known as the
Robert Dodds, left
Stillwater October 13, 1894, with raft No. 10 of that year. The
river being low and navigation difficult, McCaffrey was instructed
to divide the raft, to bring one-half to St. Louis, and to lay up
the other half in some safe harbor. In compliance with these
instructions,
Page 177 U. S. 639
McCaffrey divided the raft on October 20 at Boston Bay Harbor in
Mercer County, leaving one-half there while the other half was
towed to St. Louis and delivered to the lumber company on November
2. The company paid the clerk of the boat $1,250 without directions
as to its application, and McCaffrey applied it on the amount due
him for the towage of other rafts. The steamer returned to Boston
Bay the morning of November 4, and laid up outside the raft for the
winter.
On the next day, November 5, the Schulenburg Company sold the
half raft in Boston Bay to the Knapp Company for $15,000, part in
cash and the remainder in a note due in four months, which was paid
at maturity. A bill of sale was given for the lumber, and a letter
written to the watchman in charge of the raft informing him of the
sale. On November 9, the Schulenburg Company made a voluntary
assignment in St. Louis for the benefit of creditors. McCaffrey,
hearing of the assignment, offered both companies to tow the half
raft to St. Louis under his contract, but the Knapp Company
informed him that they did not wish him to do so, saying that they
did their own towing, whereupon McCaffrey, claiming to be still in
possession of the half raft and believing that the company was
about to take it from him by force, filed this bill to foreclose
his lien for towage. The Knapp Company gave a bond for the amount
of the claim and took the raft away.
The case came on for hearing in the circuit court upon pleadings
and proofs, and resulted in a decree dismissing the bill without
prejudice. McCaffrey appealed to the appellate court, which
reversed the decree of the circuit court and remanded the cause
with directions to enter a decree for the sum of $3,643.17, with
interest thereon. The Knapp Company appealed to the supreme court
of the state, which affirmed the judgment of the appellate court,
178 Ill. 107, whereupon defendant sued out a writ of error from
this Court.
Page 177 U. S. 640
MR. JUSTICE BROWN delivered the opinion of the Court.
Defendants set up in their answers and insisted, both before the
appellate court and the Supreme Court of Illinois, that if
plaintiff had any lien upon the raft at all for his towage
services, it was a maritime lien, enforceable only in the district
court of the United States as a court of admiralty. This is the
only federal question presented in the case.
By article three, section two, of the Constitution, the judicial
power of the general government is declared to extend to "all cases
of admiralty and maritime jurisdiction," and, by section 9 of the
original Judiciary Act of September 24, 1789, 1 Stat. 73, 76, c.
20, it was enacted
"that the district courts shall have, exclusively of the courts
of the several states, . . . exclusive original cognizance of all
civil causes of admiralty and maritime jurisdiction, . . . saving
to suitors in all cases the right of a common law remedy where the
common law is competent to give it."
This language is substantially repeated in subdivision 8 of
Rev.Stat. ยง 563, wherein it is expressly stated that "such
jurisdiction shall be exclusive, except in the particular cases
where jurisdiction of such causes and seizures is given to the
circuit courts."
The scope of the admiralty jurisdiction under these clauses was
considered in a number of cases, arising not long after the
district courts were established, notably so in that of
De
Lovio v. Boit, 2 Gall. 398, wherein Mr. Justice Story brought
his great learning to bear upon an exhaustive examination of all
the prior authorities upon the subject both in England and in
America.
But the exclusive character of that jurisdiction was never
called to the attention of this Court until 1866, when the states
had begun to enact statutes giving liens upon vessels for causes of
action cognizable in admiralty, and authorizing suits
in
rem in the state courts for their enforcement. The validity of
these laws had been expressly adjudicated in a number of cases in
Ohio, Alabama, and California. The earliest case arising in this
Court was that of
The Moses
Taylor, 4 Wall. 411, in which was considered a
statute of California creating a lien for the breach
Page 177 U. S. 641
of any contract for the transportation of persons or property,
and also providing that actions for such demands might be brought
directly against the vessel. The act further provided that the
complaint should designate the vessel by name; that the summons
should be served upon the master, or person in charge, the vessel
attached, and, in case of judgment recovered by the plaintiff, sold
by the sheriff. An action having been brought by a passenger before
a justice of the peace of the City of San Francisco for failure to
furnish him with proper and necessary food, water, and berths, the
defense was interposed that the cause of action was one of which
the courts of admiralty had exclusive jurisdiction. The case
finally reached this Court, where the defense was sustained, the
court holding that the contract for the transportation of the
plaintiff was a maritime contract; that the action against the
steamer by name, authorized by the statute of California, was a
proceeding in the nature and with the incidents of a suit in
admiralty. Upon this point, Mr. Justice Field observed:
"The distinguishing and characteristic feature of such suit is
that the vessel or thing proceeded against is itself seized and
impleaded as the defendant, and is judged and sentenced
accordingly. It is this dominion of the suit in admiralty over the
vessel or thing itself which gives to the title made under its
decrees validity against all the world. By the common law process,
whether of mesne attachment or execution, property is reached only
through a personal defendant, and then only to the extent of his
title. Under a sale, therefore, upon a judgment in a common law
proceeding, the title acquired can never be better than that
possessed by the personal defendant. It is his title, and not the
property itself, which is sold."
The Court also held that the statute of California, to the
extent to which it authorized actions
in rem against
vessels for causes of action cognizable in admiralty, invested her
courts with admiralty jurisdiction, and to that extent was
void.
At the same term arose the case of
The Hine
v. Trevor, 4 Wall. 555, in which a statute of Iowa
giving a lien for injuries to persons or property and providing a
remedy
in rem against the vessel was held to be obnoxious
to the exclusive jurisdiction
Page 177 U. S. 642
of the federal courts. Speaking of the common law remedy, saved
by the statute, Mr. Justice Miller observed:
"But the remedy pursued in the Iowa courts in the case before us
is in no sense a common law remedy. It is a remedy partaking of all
the essential features of an admiralty proceeding
in rem.
The statute provides that the vessel may be sued and made defendant
without proceeding against the owners or even mentioning their
names. That a writ may be issued and the vessel seized, on filing a
petition similar in substance to a libel. That after a notice in
the nature of a monition, the vessel may be condemned and an order
made for her sale if the liability is established for which she was
sued. Such is the general character of the steamboat laws of the
western states."
The same principle was applied in the case of
The
Belfast, 7 Wall. 624, to a statute of Alabama under
which contracts of affreightment were authorized to be enforced
in rem in the state courts by proceedings the same in form
as those used in the courts of admiralty. This was also held to be
unconstitutional.
The principle of these cases was restated in
The
Lottawanna, 21 Wall. 558,
88 U. S. 579,
although the question settled by that case was that materialmen
furnishing repairs and supplies to a vessel in her home port do not
acquire thereby a lien upon the vessel by the general maritime law.
To the same effect is
The J. E. Rumbell, 148 U. S.
1, in which a lien by a state law for such repairs and
supplies was given precedence of a prior mortgage. Finally, in the
case of
The Glide, 167 U. S. 606, it
was held that the enforcement of such a lien upon a vessel, created
by a statute of Massachusetts, for repairs and supplies in her home
port, for which a remedy
in personam may be had in
admiralty, was exclusively within the admiralty jurisdiction of the
courts of the United States, and that the statute of Massachusetts,
to the extent that it provided for a proceeding
in rem,
and for a sale of the vessel, was unconstitutional and void.
See also Moran v. Sturges, 154 U.
S. 256.
The rule to be deduced from these cases, so far as they are
pertinent to the one under consideration, is this: that wherever
any lien is given by a state statute for a cause of action
cognizable in admiralty, either
in rem or
in
personam, proceedings
Page 177 U. S. 643
in rem to enforce such lien are within the exclusive
jurisdiction of the admiralty courts.
But the converse of this proposition is equally true -- that if
a lien upon a vessel be created for a claim over which a court of
admiralty has no jurisdiction in any form, such lien may be
enforced in the courts of the state. Thus, as the admiralty
jurisdiction does not extend to a contract for building a vessel or
to work done or materials furnished in its construction --
61 U. S. v.
Beers), 20 How. 393;
63 U. S.
Chapman), 22 How. 129 -- we held in
Edwards v.
Elliott, 21 Wall. 532, that, in respect to such
contracts, it was competent for the states to enact such laws as
their legislatures might deem just and expedient, and to provide
for their enforcement
in rem. The same principle was
applied in
Johnson v. Chicago &c. Elevator Co.,
119 U. S. 388, to
a statute of Illinois giving a lien upon a vessel for damage done
to a building abutting on the water, upon the ground that the court
had previously held that there was no jurisdiction in admiralty for
damage done by a ship to a structure affixed to the land.
The Plymouth, 3
Wall. 20;
Ex Parte Phenix Ins. Co., 118 U.
S. 610. There was really another sound reason for the
decision in the fact that the suit was
in personam, with
an attachment given upon the property of the defendant, which, as
we shall see hereafter, is quite a different case from a proceeding
in rem.
To establish the proposition that the proceeding in this case
was an invasion of the exclusive jurisdiction of the admiralty
courts, defendants are bound to show, first, that the contract to
tow a raft is a maritime contract; second, that the proceeding
taken was a suit
in rem within the cases above cited, and
not within the exception of a common law remedy, which section 563
was never designed to forestall.
The first of these conditions may be readily admitted. That a
contract to tow another vessel is a maritime contract is too clear
for argument, and there is no distinction in principle between a
vessel and a raft. Whether the performance of such a contract gives
rise to a lien upon the raft for the towage bill admits of more
doubt -- indeed the authorities as to how far a raft is within the
jurisdiction of admiralty are in hopeless confusion;
Page 177 U. S. 644
but for the purposes of this case, we may admit that such lien
exists. But, if existing, it would not oust or supplant the common
law lien dependent upon possession.
The real question is whether the proceeding taken is within the
exception of "saving to suitors in all cases the right of a common
law remedy where the common law is competent to give it." It was
certainly not a common law action, but a suit in equity. But it
will be noticed that the reservation is not of an
action
at common law, but of a common law
remedy, and a remedy
does not necessarily imply an action. A remedy is defined by
Bouvier as "the means employed to enforce a right, or redress an
injury." While, as stated by him, remedies for nonfulfillment of
contracts are generally by action, they are by no means universally
so. Thus a landlord has at common law a remedy by distress for his
rent -- a right also given to him for the purpose of exacting
compensation for damages resulting from the trespass of cattle. A
bailee of property has a remedy for work done upon such property,
or for expenses incurred in keeping it, by detention of possession.
An innkeeper has a similar remedy upon the goods of his guests to
the amount of his charges for their entertainment, and a carrier
has a like lien upon the thing carried. There is also a common law
remedy for nuisances by abatement; a right upon the part of a
person assaulted to resist the assailant, even to his death; a
right of recaption of goods stolen or unlawfully taken, and a
public right against disturbers of the peace by compelling them to
give sureties for their good behavior. All these remedies are
independent of an action.
Some of the cases already cited recognize the distinction
between a common law action and a common law remedy. Thus, in
The Moses
Taylor, 4 Wall. 411,
71 U. S. 431, it is
said of the saving clause of the Judiciary Act: "It is not a remedy
in the common law courts which is saved, but a common law remedy."
To same effect is
Moran v. Sturges, 154 U.
S. 256,
154 U. S.
276.
In the case under consideration, the remedy chosen by the
plaintiff was the detention of the raft for his towage charges.
That a carrier has a lien for his charges upon the thing carried,
and may retain possession of such thing until such charges are
Page 177 U. S. 645
paid is too clear for argument. We know of no reason why this
principle is not applicabble to property towed as well as to
property carried. While the duties of a tug to its tow are not the
duties of a common carrier, it would seem that his remedy for his
charges is the same, provided that the property towed be of a
nature admitting of the retention of possession by the owner of the
tug. But whatever might be our own opinion upon the subject, the
Supreme Court of Illinois, having held that, under the laws of that
state, the plaintiff had a possessory lien upon this raft, that
such lien extended to so much of the raft as was retained in his
possession, for the entire bill, and that, under the facts of this
case, plaintiff did have possession of the half raft until he
surrendered it under order of the court for its release upon bond
given, we should defer to the opinion of that court in these
particulars, as they are local questions dependent upon the law of
the particular state.
Whether a bill in equity will lie to enforce a possessory lien
may admit of some doubt, and the authorities are by no means
harmonious. That a person having a lien upon chattels has no right
himself to sell such chattels in the discharge of his lien is well
settled.
Doane v. Russell, 3 Gray 382;
Jones v.
Pearle, 1 Strange 557;
Lickbarrow v. Mason, 6 East
21;
Briggs v. Boston and Lowell Railroad, 6 Allen 246;
Indianapolis & St. Louis Railroad v. Herndon, 81 Ill.
143;
Hunt v. Haskell, 24 Me. 339, and in the case of the
Thames Iron Works &c. Co. v. Patent Derrick Co., 1 J.
& H. 93, it was held by Vice Chancellor Wood that shipbuilders,
having a lien upon the ship built by them according to the contract
for the purchase money, could not enforce their lien by sale. But
in some jurisdictions, and notably so in Illinois, it is held that
liens for the enforcement of which there is no special statutory
provision are enforceable in equity.
Black v. Brennan, 5
Dana 310;
Charter v. Stevens, 3 Denio 33;
Dupuy v.
Gibson, 36 Ill. 197;
Cushman v. Hayes, 46 Ill. 145;
Cairo & Vincennes Railroad v. Fackney, 78 Ill. 116;
Barchard v. Kohn, 157 Ill. 579. Such being the practice in
Illinois, we recognize it as expressive of the local law. There
were circumstances in this case which appealed with peculiar force
to the discretion of a court of equity. The
Page 177 U. S. 646
defendant disputed McCaffrey's lien and right of possession to
the raft, and announced its intention of towing it to St. Louis
itself. It was in a position where it might have been taken away by
a superior force unless the plaintiff incurred the expense of
employing a gang of men to watch it. Under such circumstances, it
was not only natural but just that he should have applied to a
court of equity for relief in the enforcement of his common law
remedy.
We have held in several cases that analogous proceedings were no
infringement upon the exclusive admiralty jurisdiction of the
federal courts. Thus, in
Leon v.
Galceran, 11 Wall. 185, three sailors brought suits
in a state court against the owner of a schooner to recover their
wages, and had the schooner, which was subject to a lien or
privilege in their favor, according to the laws of Louisiana,
similar, in some respects, to the principles of the maritime law,
sequestered by the sheriff of the parish. The writ was levied upon
the schooner, which was afterwards released upon a forthcoming
bond. This was held to be an ordinary suit
in personam
with an auxiliary attachment of the property of the defendant, and
no infringement upon the admiralty jurisdiction. Said Mr. Justice
Clifford:
"They brought their suits in the state courts against the owner
of the schooner, as they had a right to do, and, having obtained
judgment against the defendant, they might levy their execution
upon any property belonging to him, not exempted from taxes or
execution, which was situated in that jurisdiction."
In
Steamboat Co. v.
Chase, 16 Wall. 522, a steamboat owned by the
company ran over a sailboat containing the plaintiff's intestate,
and killed him. His administrator brought suit against the company
in a state court of Rhode Island under an act making common
carriers responsible for deaths occasioned by their negligence and
providing that the damages be recovered in an action on the case.
Defendant took the position that the saving clause must be limited
to such causes of action as were known to the common law at the
time of the passage of the Judiciary Act, and as the common law
gave no remedy for negligence resulting in death, an action
subsequently given by the statute was not a common law remedy. The
contention was
Page 177 U. S. 647
held to be unsound. So also in
Schoonmaker v. Gilmore,
102 U. S. 118, it
was held that courts of admiralty had no exclusive jurisdiction of
suits
in personam growing out of collisions.
In the case already cited of
Johnson v. Chicago &c.
Elevator Co., 119 U. S. 388, a
petition was filed by the elevator company against the owner of a
tugboat for injuries done by the jib boom of a schooner in tow of
the tug to the wall of plaintiff's warehouse. The petition prayed
for a writ of attachment against the defendant, commanding the
sheriff to attach the tug, summon the defendant to appear, and for
a decree subjecting the tug to a lien for such damages. The statute
under which the proceedings were instituted gave a lien for all
damages arising from injuries done to persons or property by such
watercraft. It was held that, the damage having been done upon the
land, there was no jurisdiction in admiralty, and that the suit was
in personam with an attachment as security, the attachment
being based upon a lien given by the state statute. Said the
court:
"There being no lien on the tug by the maritime law for the
injury on land inflicted in this case, the state could create such
a lien therefor as it deemed expedient, and could enact reasonable
rules for its enforcement not amounting to a regulation of
commerce."
It would seem that even if the suit had been
in rem
against the vessel, it would have been sustained, as the injury was
not one for which an action would have lain in admiralty.
In the case under consideration, the suit was clearly one
in
personam to enforce a common law remedy. It was no more a suit
in rem than the ordinary foreclosure of a mortgage. The
bill prayed for process against the several defendants; that they
be required to answer the bill; that plaintiff be decreed to have a
first lien upon the raft for the amount due him; that the
defendants be decreed to pay such amount, that in default of such
payment the raft be sold to satisfy the same; and that in case of
such sale, the purchaser have an absolute title, free from all
equity of redemption and all claims of the defendants, and that
they be debarred, etc. This is the ordinary prayer of a foreclosure
bill. The decree of the appellate court reversed that of the
circuit court and directed a recovery of a specified
Page 177 U. S. 648
amount. It resembles a decree
in rem only in the fact
that the property covered by the lien was ordered to be sold. Such
sale, however, would pass the property subject to prior liens,
while a sale
in rem in admiralty is a complete divestiture
of such liens, and carries a free and unencumbered title to the
property, the holders of such liens being remitted to the funds in
the registry which are substituted for the vessel.
The
Helena, 4 C.Rob.Ad. 3.
The true distinction between such proceedings as are and such as
are not invasions of the exclusive admiralty jurisdiction is this:
if the cause of action be one cognizable in admiralty, and the suit
be
in rem against the thing itself, though a monition be
also issued to the owner, the proceeding is essentially one in
admiralty. If, upon the other hand, the cause of action be not one
of which a court of admiralty has jurisdiction, or if the suit be
in personam against an individual defendant, with an
auxiliary attachment against a particular thing or against the
property of the defendant in general, it is essentially a
proceeding according to the course of the common law, and within
the saving clause of the statute (sec. 563) of a common law remedy.
The suit in this case being one in equity to enforce a common law
remedy, the state courts were correct in assuming jurisdiction.
The decree of the Supreme Court of Illinois is therefore
Affirmed.