1. Personal property of the United States on board of a vessel,
for transportation from one point to another, is liable to a lien
for salvage services rendered in saving the property.
2. Such lien cannot be enforced by the courts by a suit against
the United States.
Page 77 U. S. 16
3. Nor by a proceeding
in rem when the possession of
the property can only be had by taking it out of the actual
possession of the officers or agents of the government charged
therewith.
4. It may be enforced by a proceeding
in rem where the
process of the court can be enforced without disturbing the
possession of the government, which, being thus compelled to appear
in the court to assert its claim, must discharge the lien before
the property will be delivered to it.
In 1865, Simeon Draper, treasury agent of the United States,
shipped from Savannah a quantity of cotton on the schooner
Davis, of which one Kemplen was master, to be carried and
delivered to him, the said cotton agent of the United States, or
his assigns, in New York. For this the master gave the usual bills
of lading, and was to run freight at the rate of fifteen cents a
ton per day. On the voyage the vessel met with a disaster, and she
and her cargo were saved from total loss by the meritorious service
of one Douglas and others. The vessel was carried by Douglas and
the others, her salvors, to a place of safety, and left to find her
way into the port of New York. Immediately on her arrival and
before any of the cotton was delivered to the agent, Douglas
libeled the vessel and cargo, and, a writ being issued, the marshal
took possession of them under it. The United States appeared by
attorney as claimant of the cotton, and interposed the defense that
it was not liable to salvage under the circumstances.
The district court admitted that the services were salvage
services, and fixing their worth at a certain sum, entered a decree
against the vessel for its proportion of the same; but
"inasmuch as the cotton saved was in possession of and claimed
by the United States, as the United States intervened, claiming the
said cotton, and setting up that no lien existed, and that no
attachment could be made against it in possession of the United
States,"
dismissed the libel as to the cotton. The circuit court reversed
the decree so far as it relieved the cotton, affirming it in other
respects.
From this decree of the circuit court the United States
appealed, and two questions were raised by the record:
Page 77 U. S. 17
1st. Whether personal property of the United States, on board a
vessel for transportation from one point to another, was subject to
a lien for salvage services rendered in saving the property.
2d. Under what circumstances, if any, could the lien be
enforced, if any lien existed.
Page 77 U. S. 18
MR. JUSTICE MILLER delivered the opinion of the Court.
Two questions are raised by the record in this case, both of
which are of importance.
The first is whether personal property of the United States on
board a vessel for transportation from one point to another is
subject to a lien for salvage services rendered in saving the
property.
The second is under what circumstances, if any, can the lien be
enforced if one exists.
Of the first proposition there does not seem to be any
reasonable doubt upon a view of the authorities.
Brown v.
Stapyleton, [
Footnote 1]
The Marquis of Huntley, [
Footnote 2]
The Lord Nelson, [
Footnote 3]
The United States v. Wilder,
[
Footnote 4]
The
Siren, [
Footnote 5] are
all cases in which maritime liens are recognized and enforced
against the property of the supreme government, the liens having
their inception while the ownership of the property was in the
government. The case of
Briggs v. Light Boats, [
Footnote 6] is a case in which a lien
is recognized on property of the United States, created before the
title and possession passed to the United States, but in which it
was finally held by the Supreme Court of Massachusetts that it
could not be enforced because the United States could not be sued
in a personal action, and their possession could not be disturbed
by a suit
in
Page 77 U. S. 19
rem. The proposition is treated by the modern text
writers as settled. [
Footnote
7] We are quite satisfied with the reasons on which the
principle rests, and are of opinion that when the property of the
government has been saved from destruction by salvors or by those
sacrifices which are compensated by a contribution in general
average, justice and sound policy require that it should be held to
bear its share of the burden which the unanimous voice of maritime
nations imposes on all other property in like condition.
The second of the questions above stated presents the more
difficult problem.
Perhaps the two most authoritative and well considered cases on
that subject are
The Siren [
Footnote 8] and
Briggs v. Light Boats. [
Footnote 9] Both these cases assert the
doctrine, after a full review of the authorities, that such a lien
cannot be enforced where, in order to do this successfully, it is
necessary to bring a suit against the United States, because the
doctrine is well established that no suit can be sustained in which
the United States is made an original defendant, to be brought into
court by process, without some act of Congress expressly
authorizing it to be done.
They also both assert the proposition that no suit
in
rem can be maintained against the property of the United
States when it would be necessary to take such property out of the
possession of the government by any writ of process of the
court.
There are some expressions in the opinion of this Court in the
case of
The Siren which seem to imply that no suit
in
rem can be instituted against property of the United States
under any circumstances. But a critical examination of the case and
the reasoning of the Court will show that that question was not
involved in the suit, and that it was not intended to assert such a
proposition without qualification. In that case, a prize, after
capture and before condemnation,
Page 77 U. S. 20
had collided with another vessel and was in fault, and it was
held that as the government had brought the prize into the court
for condemnation, and was before the court as plaintiff, and had
placed the
res in possession of the court, the lien for
the damages growing out of the collision could be enforced against
the United States. It was not, therefore, necessary to define all
the circumstances under which the court, having control of the
res, might enforce a lien on property of the United
States, and the learned judge who delivered the opinion cites with
approval the case of
The Light Boats in 11 Allen, in which
the doctrine is laid down and well supported that proceedings
in rem to enforce a lien against property of the United
States are only forbidden in cases where, in order to sustain the
proceeding, the possession of the United States must be invaded
under process of the court. With the principle as thus stated we
agree, and do not see in it anything inconsistent with the case of
The Siren.
In the English courts, when it is made to appear that property
of the government ought in justice to contribute to a general
average or to salvage, it seems to be the usual course of
proceeding for the proper officer of the government to consent in
court that it may take jurisdiction of the matter. This consent is
given by the authority of the King, who thus submits to be sued in
his own courts. The liberal exercise of this authority removes the
difficulty presented here, where no power to do this exists in any
officer of the government, and prevents any apprehension of gross
injustice in such cases in England. [
Footnote 10]
We are therefore compelled to inquire into the special
circumstances of this case to ascertain whether the cotton which
was the subject of salvage can be brought within the jurisdiction
of the court without violating the principle we have stated. In
doing this, the absence of any such power to submit the case to the
jurisdiction of the court as that exercised in England seems to
justify a liberal construction
Page 77 U. S. 21
of the rule on which we are to act in favor of the promotion of
justice. That rule, as we have already stated, recognizes the
existence of the lien for salvage and admits that the lien can only
be enforced by the courts in a proceeding which does not need a
process against the United States and which does not require that
the property shall be taken out of the possession of the United
States. But what shall constitute a possession which, in reference
to this matter, protects the goods from the process of the court?
The possession which would do this must be an actual possession,
and not that mere constructive possession which is very often
implied by reason of ownership under circumstances favorable to
such implication. We are speaking now of a possession which can
only be changed under process of the court by bringing the officer
of the court into collision with the officer of the government if
the latter should choose to resist. The possession of the
government can only exist through some of its officers, using that
phrase in the sense of any person charged on behalf of the
government with the control of the property, coupled with its
actual possession. This, we think, is a sufficiently liberal
definition of the possession of property by the government to
prevent any unseemly conflict between the court and the other
departments of the government, and which is consistent with the
principle which exempts the government from suit and its possession
from disturbance by virtue of judicial process.
Bringing the facts of the case before us to the test of these
principles, the case was the usual one of a common carrier
contracting to deliver goods on his own responsibility, and not the
case, as alleged by the United States, of a charter of the vessel.
The goods were then delivered to the master, and he contracted to
deliver them to the agent of the United States in New York.
Immediately on her arrival, and before any of the cotton was
delivered to the agent, the vessel and cargo were libeled and taken
possession of by the marshal under the writ which issued on the
libel being filed. The possession of the master of the vessel was
not the possession of the United States. He was in no sense an
officer
Page 77 U. S. 22
of the government. He was acting for himself under a contract
which placed the property in his possession and exclusive control
for the voyage. His obligation was to deliver possession in New
York to the agent of the government. This he had not done when the
process was served on the cotton. The marshal served his writ and
obtained possession without interfering with that of any officer or
agent of the government. The United States, without any violation
of law by the marshal, was reduced to the necessity of becoming
claimant and actor in the court to assert her claim to the cotton.
Under these circumstances, we think it was the duty of the court to
enforce the lien of the libellants for the salvage before it
restored the cotton to the custody of the officers of the
government.
Decree affirmed.
[
Footnote 1]
4 Bingham 119.
[
Footnote 2]
3 Haggard 246.
[
Footnote 3]
Edward's Admiralty 79.
[
Footnote 4]
3 Sumner 308.
[
Footnote 5]
74 U. S. 7 Wall.
152.
[
Footnote 6]
7 Allen 287;
S.C., 11
id. 157.
[
Footnote 7]
See Marvin on Wreck and Salvage ยง 122; 1 Parsons,
Maritime Law 324; 2
ib. 625.
[
Footnote 8]
74 U. S. 7 Wall.
152.
[
Footnote 9]
11 Allen 157.
[
Footnote 10]
Marquis of Huntley, 3 Haggard 246.