The Belfast, 74 U.S. 624 (1868)

U.S. Supreme Court

The Belfast, 74 U.S. 7 Wall. 624 624 (1868) The Belfast

74 U.S. (7 Wall.) 624

ERROR TO THE SUPREME

COURT OF ALABAMA

Syllabus

1. In all cases where a maritime lien arises, the original jurisdiction to enforce it by a proceeding in rem is exclusive in the district courts of the United States, as provided by the ninth section of the Judiciary Act of 1789.

2. State legislatures have no authority to create maritime liens, nor can they confer jurisdiction upon a state court to enforce such a lien by a suit or proceeding in rem, as practiced in admiralty courts,

3. Upon an ordinary contract of affreightment, the lien of the shipper is a maritime lien, and a proceeding in rem to enforce it is within the exclusive

Page 74 U. S. 625

original cognizance of the district courts of the United States, albeit the contract be for transportation between ports and places within the same state and all the parties be citizens of the same state, provided only that such contract be for transportation upon navigable waters to which the general jurisdiction of the admiralty extends.

4. The "saving," in the ninth section of the Judiciary Act, "to suitors, in all cases, of the right of a common law remedy, where the common law is competent to give it" does not authorize a proceeding in rem to enforce a maritime lien in a common law court, whether state or federal. Common law remedies are not applicable to enforce such a lien, but are suits in personam, though such suits, under special statutes, may be commenced by attachment of the property of the debtor. Proceedings in a suit at common law on a contract of affreightment are the same as in suits on contracts not regarded as maritime, wholly irrespective of the fact that the injured party might have sought redress in the admiralty. The judgment in such a case is not against the vessel as the offending thing, but against the parties who have violated their contract, and can only affect the vessel so far as the defendants may have property therein.

5. These principles applied to the provision of the statute of 7th October, 1864, of the State of Alabama, under which contracts of affreightment are authorized to be enforced in rem through courts of the state by proceedings the same in form as those used in courts of admiralty of the United States, and the statute held unconstitutional and void.

The case was thus:

The Constitution ordains that the judicial power of the United States shall extend "to all cases of admiralty and maritime jurisdiction." And the ninth section of the Judiciary Act of 1789 provides that the district courts of the United States

"Shall have 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."

In this state of federal law, fundamental and statutory, the State of Alabama, by enactments, entitled "PROCEEDINGS IN ADMIRALTY," [Footnote 1] provided that there should be a lien on all vessels for work and materials done or furnished and for all debts contracted by the master, owner or consignee

Page 74 U. S. 626

and for the wages of the officers, crew &c., in preference to other debts due from the owners thereof. By the terms of the code, the lien is to be asserted by filing a complaint in any county in which the vessel may be found, stating the amount and nature of the claim and praying a seizure of the vessel. Thereupon the clerk is to issue a writ commanding the sheriff to seize the vessel, her tackle, apparel and furniture. At any time before judgment, the master, owner or other persons may release the vessel by entering into bond in double the amount of the claim stipulating to pay the amount of the judgment. Any number of persons may unite in the same complaint, and if more than one complaint be filed, the court must consolidate them and render but one judgment against the vessel, which is to be considered several as to each complainant. If a stipulation be entered into, the stipulators are defendants. If none, the court must render a judgment ex parte condemning the boat, tackle &c., to be sold in satisfaction of the claim, and the affidavit of complainant is made presumptive evidence of the justice of the demand.

Finally, the code provides that,

"unless where otherwise provided in this chapter, the proceedings to enforce the lien shall be the same as in the courts of admiralty of the United States, but either party may have any question of fact decided by a jury, upon an issue made up under direction of the court."

By the act of 7th October, 1864, "to amend the admiralty laws of the state," these provisions are extended to the contract of affreightment.

Under this statute, Boone & Co. filed their libel, March 30, 1866, in the City Court of Mobile, claiming $5,800 for the loss of certain bales of cotton shipped to them from Vienna, in the State of Alabama, to Mobile, in the same state, and prayed "process in admiralty" for the seizure of the steamboat Belfast.

In the same court a libel was also filed by J. & S. Steers, claiming compensation for other bales, shipped by them from Columbus, Mississippi, to Mobile, in Alabama, already mentioned. And a libel by Watson & Co. claiming it for cotton shipped by them, from and to the same points.

Page 74 U. S. 627

All the navigation which was the subject of the case was upon the Tombigbee River, navigable water of the United States.

Under these several libels, the sheriff, by virtue of writs of seizure, took the steamer into possession and posted his monitions, and the causes under the statute were consolidated and heard together. The answer, applicable to the three cases alike, set forth that the steamer was duly enrolled and licensed in pursuance of laws of the United States, and that on the 15th January, 1866, she was regularly cleared at Mobile, Alabama, for Columbus, Mississippi, and that on her downward trip, the cotton claimed was lost, and therefore that the city court had no jurisdiction.

A decree was rendered on 28 July for the three libellants. Appeal was taken to the Supreme Court of Alabama, where one assignment of errors was: "That the city court erred in overruling the protest to the jurisdiction." The decree of the city court was, however, affirmed by the supreme court, and deciding, as that court thus did, in favor of the validity of a statute of a state drawn in question on the ground of its being repugnant to the laws of the United States, the case was brought here under the twenty-fifth section of the Judiciary Act.

Not much contesting the point that if the court had no jurisdiction in the two cases where the carriage was not wholly within one state no agreement below could authorize what it did about these two (jurisdiction being of course to be conferred by the law alone), the matter of debate was reduced here chiefly to the first case -- that, namely, of Boone & Co. -- where the whole carriage was within the State of Alabama and to the question of constitutional law arising upon it, to-wit: whether the contract, made as it was for the transportation of goods from one place to another both in the same state and without the goods being carried in transitu into or through any other state or foreign dominion, was a contract which could be enforced by a proceeding in admiralty in the federal courts alone.

Page 74 U. S. 628

If the state court had no jurisdiction in that case, a fortiori it could have none in the two others.

Page 74 U. S. 631

MR. JUSTICE CLIFFORD delivered the opinion of the Court.

Persons furnishing materials or supplies for ships or vessels within the State of Alabama have a lien by the law of that state on the same for all debts contracted by the master, owner, or consignee thereof for the work done, and for the materials and supplies furnished, in preference to other debts due and owing from the owners of such ships or vessels. By the code of that state it is also provided, under the title "proceedings in admiralty," that whenever any steamboat or other watercraft shall receive on board, as a common carrier, any goods or merchandise as freight to be delivered at any specified place and shall fail to deliver the same as directed in the bill of lading or other contract of shipment, the owner or consignee of such goods or merchandise shall have a lien on such boat or other watercraft

Page 74 U. S. 632

for his loss or damage, to be enforced in the same manner and subject to the rules and regulations prescribed in relation to similar liens for labor, materials, and supplies furnished to such steamboats or other watercraft as described in the antecedent provision. [Footnote 2]

Pursuant to those statutory rules and regulations of the state, the libel in this case was filed in the City Court of Mobile, and the libellants alleged that they, on the twenty-third of January, 1866, shipped on board the steamboat Belfast, then lying at Vienna in that state, one hundred bales of cotton to be transported to Mobile, in the same state, and there to be delivered to certain consignees, they paying freight therefor at the rate of five dollars per bale, the dangers of the river excepted; that on the way down the river, below Vienna, twenty-nine bales of the cotton were lost not by the dangers of the river, and were never delivered to the consignees, whereby the libellants suffered loss to the amount of five thousand eight hundred dollars. Introductory allegations of the libel, also, are the same as in a libel in rem in the district courts of the United States, and in conclusion, the "libellants pray process in admiralty" against the steamer, "her tackle, apparel, and furniture," and that the same may be condemned to satisfy their damages and costs. Process was accordingly issued commanding the sheriff to seize and take the steamer &c., into his possession, and to hold the same until released by due course of law. Respondents appeared as claimants and alleged that they were the owners of the steamer, and they admitted that the cotton was shipped on board at the time and place, and on the terms and for the purpose alleged in the libel; but they excepted to the jurisdiction of the court and alleged that the steamer, at the time the cotton was shipped, was duly enrolled and licensed under the laws of the United States; that she was then and there regularly engaged in commerce and navigation between the City of Columbus, in the State of Mississippi, and the City of Mobile, in

Page 74 U. S. 633

the State of Alabama, and that the cotton described in the libel was lost in her trip down the river from the former city to her port of destination. Defense of the respondents upon the merits was that the steamer and cargo were captured by a band of robbers in the trip down the river, within the ebb and flow of the tide and within the admiralty and maritime jurisdiction of the United States, and without any negligence or fault on the part of the officers and crew of the steamer. They also set up the defense that it was agreed between the master and the shippers that the vessel should not be liable for the loss of the cotton if it was captured by armed men during the voyage without any negligence or fault on the part of the carrier. Libellants excepted to that part of the answer denying the jurisdiction of the court as insufficient and invalid, and they also excepted to the defense, as pleaded, that the steamer was robbed of the cotton, as no bar to a recovery in the case, and the court sustained the views of the libellants in both particulars, and the respondents excepted to the respective rulings of the court.

Two other consignments of cotton were also on board the steamer at the time the alleged robbery occurred. Ninety bales were shipped by J. H. Steers & Company at Columbus, and one hundred bales were shipped by John Watson & Company at the same place. Both shipments were to be transported to the port of Mobile, and there to be delivered to certain consignees under a similar contract of affreightment as that alleged in the first case, except as to the price to be paid for the transportation. Steers & Company lost thirty-four bales of their shipment, and Watson & Company lost thirty bales, as alleged by the respective parties. Libels in the same form were also filed by those parties about the same time in the same court, and the owners of the steamer appeared in each case as claimants and pleaded the same defenses in the three cases.

Evidence was introduced by the respective libellants proving that the entire cotton lost and not delivered was of the value of four thousand dollars. They also introduced

Page 74 U. S. 634

the several bills of lading, and the respondents admitted the shipments as alleged in the respective libels. On the other hand, the libellants admitted that the steamer was robbed as alleged in the answer, and without any neglect or fault of the owners of the steamer or those in charge of her navigation.

Agreement of the parties, as stated in the bill of exceptions, was that the three cases should be tried together, and they were all submitted at the same time and upon the same issues. Finding of the court was that the whole loss in the three cases was four thousand dollars, and of that sum the decree of the court allowed one thousand dollars to the libellants in the first case, fourteen hundred dollars to the libellants in the second case, and sixteen hundred dollars to the libellants in the third case, with costs to the prevailing party.

Exceptions were seasonably tendered by the respondents to the rulings and decision of the court, and the exceptions were duly allowed by the court. Appeals were then taken by the respondents to the supreme court of the state, where the objections to the jurisdiction of the court were renewed in the formal assignment of errors. The parties were heard, but the court overruled the objections to the jurisdiction of the court and affirmed the respective decrees rendered in the subordinate court. Writs of error were then sued out under the twenty-fifth section of the Judiciary Act, and the respective causes were removed into this Court.

Jurisdiction of this Court to reexamine the questions presented in the pleadings may be assumed as existing without discussion, as it is conceded that the questions are the same as were raised and decided in the state courts, and it is not controverted that the questions are such as may be reexamined here under the twenty-fifth section of the Judiciary Act.

Theory of the respondents is that the respective libels were libels in rem to enforce a maritime lien in favor of the shippers of the cotton under contracts of affreightment for the transportation of goods and merchandise from one port

Page 74 U. S. 635

to another upon navigable waters, and that the state courts have no jurisdiction to employ such a process to enforce such a lien in any case; that the jurisdiction to enforce a maritime lien by a proceeding in rem is exclusively vested in the federal courts by the Constitution of the United States and the laws of Congress. But the libellants controvert that proposition and insist that the state courts have concurrent jurisdiction in these cases under that clause in the ninth section of the Judiciary Act, which saves "to suitors in all cases the right of a common law remedy where the common law is competent to give it." [Footnote 3]

2. They also contend, if their first proposition is not sustained, that inasmuch as the three cases were heard together under an agreement that they should be tried upon the same issues, and that the libel filed by W. C. Boon & Company, as stated in the bill of exceptions, was selected as the case to be tried in the court where the suits were commenced, the rights of the parties in the other two cases must abide the decision of this Court in that case.

Assuming that to be so, then they contend that the state court had jurisdiction in the first case, because the contract of affreightment was for the transportation of goods and merchandise between ports and places in the same state. Impliedly the argument admits that the rule is otherwise where the contract is for the transportation of goods and merchandise between ports and places in different states, but the proposition is that where the contract is between citizens of the same state for the transportation of goods and merchandise from one port to another in the same state, the case is not one within the jurisdiction of the admiralty courts of the United States unless it becomes necessary, in the course of the voyage, to carry the goods or merchandise into or through some other state or foreign dominion.

Obviously the questions presented are questions of very great importance as affecting the construction of the federal Constitution and the rights and remedies of the citizens

Page 74 U. S. 636

engaged in an important and lucrative branch of commerce and navigation.

Judicial power to hear and determine controversies in admiralty, like other judicial power, was conferred upon the government of the United States by the federal Constitution, and by the express terms of the instrument it extends to all cases of admiralty and maritime jurisdiction, which doubtless must be held to mean all such cases of a maritime character as were cognizable in the admiralty courts of the states at the time the Constitution was adopted. [Footnote 4]

Admiralty jurisdiction, as exercised in the federal courts, is not restricted to the subjects cognizable in the English courts of admiralty at the date of the Revolution, nor is it as extensive as that exercised by the continental courts, organized under and governed by the principles of the civil law. [Footnote 5]

Best guides as to the extent of the admiralty jurisdiction of the federal courts are the Constitution of the United States, the laws of Congress, and the decisions of this Court.

Two of the contracts of affreightment in these cases were for the transportation of cotton between ports and places in different states, but as the contract alleged in the libel filed in the first case was for the transportation of cotton from one port to another in the same state, it becomes necessary to determine, irrespective of the questions presented in the other cases, whether such a contract is cognizable in the admiralty courts of the United States, because if not, the libellants in any view of the case must prevail, as there would be, in that state of the case, no jurisdiction in this Court to reexamine the decision of the state court in that case.

Much controversy has existed as to the true extent of the admiralty and maritime jurisdiction of the federal courts, but great aid will be derived in the solution of this question by an examination of the decisions of this Court at different periods since the judicial system of the United States was organized.

Page 74 U. S. 637

Principal subjects of admiralty jurisdiction are maritime contracts and maritime torts, including captures jure belli and seizures on water for municipal and revenue forfeitures.

(1) Contracts, claims, or service, purely maritime, and touching rights and duties appertaining to commerce and navigation, are cognizable in the admiralty. [Footnote 6]

(2) Torts or injuries committed on navigable waters of a civil nature are also cognizable in the admiralty courts.

Jurisdiction in the former case depends upon the nature of the contract, but in the latter it depends entirely upon locality. Mistakes need not be made if these rules are observed, but contracts to be performed on waters not navigable are not maritime any more than those made to be performed on land. Nor are torts cognizable in the admiralty unless committed on waters within the admiralty and maritime jurisdiction as defined by law. [Footnote 7]

Such jurisdiction, whether of torts or of contracts, was and still is restricted in the parent country to tidewaters, as they have no large fresh water lakes or fresh water rivers which are navigable. Waters where the tide did not ebb and flow were regarded in that country as not within the admiralty and maritime jurisdiction, and such was the decision of this Court in the case of The Jefferson, [Footnote 8] and the rule established in that case was followed for more than a quarter of a century.

Attempt was subsequently made to restrict the jurisdiction of the admiralty courts in torts to cases arising on the high seas, but this Court held that it extended to all waters within the ebb and flow of the tide, though infra corpus comitatus, and as far up the rivers emptying into the sea or bays and arms of the sea as the tide ebbed and flowed. And that rule, ever after it was promulgated, prevailed and was universally applied by the district courts in cases of collision. [Footnote 9]

Application of that rule was made by the federal courts

Page 74 U. S. 638

in collision cases arising upon the Hudson, the Penobscot, the Kennebec, the Merrimac, the Alabama, and many other rivers navigable only between ports and places in one state.

Exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, was conferred upon the district courts by the ninth section of the Judiciary Act, including all seizures under the laws of impost, navigation, or trade of the United States, where the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden, within their respective districts as well as upon the high seas.

Remedies for marine torts, it is conceded, may be sought in the admiralty courts under that provision, although committed within the body of a county, but it is denied that redress can be obtained in the admiralty for the breach of a contract of affreightment in a case where the port of shipment and the port of destination are in the same state.

Repeated attempts were made at an early day to induce the court to hold that seizures on water were not cases of admiralty cognizance, and that contracts of affreightment were exclusively cognizable in the courts of common law, but this Court refused to adopt either proposition, and held that the entire admiralty power of the Constitution was lodged in the federal courts and that Congress intended by the ninth section of the Judiciary Act to invest the district courts with that power as courts of original jurisdiction; that the phrase, "exclusive original cognizance" was used for that purpose and was intended to be exclusive of the state courts as well as the other federal courts. [Footnote 10]

When the case of The Lexington was decided, it was still supposed that the admiralty jurisdiction was limited to waters affected by the ebb and flow of the tide, but the case is a decisive authority to show that the jurisdiction of the admiralty in matters of contract was understood to be coextensive with the jurisdiction in cases of marine torts.

Page 74 U. S. 639

Subject matter of the suit in the case of Waring v. Clarke was that of a collision, and the subject matter in the case of The Lexington was a loss of specie in transitu under a contract of affreightment. Viewed in any light, those two cases settle the question that where the voyage and transportation are over tidewaters, the jurisdiction of the admiralty is the same in matters in maritime contracts as in marine torts.

Such was the state of the law upon the subject, as decided by this Court, when the case of The Genesee Chief [Footnote 11] was brought here for reexamination, and in that case this Court held that the jurisdiction in admiralty depended not upon the ebb and flow of the tide, but upon the navigable character of the water; that if the water was navigable, it was deemed to be public, and if public, that it was regarded as within the legitimate scope of the admiralty jurisdiction conferred by the Constitution.

Prior to that decision, the Western lakes and navigable rivers of the United States above tidewaters were not supposed to be waters within the admiralty and maritime jurisdiction of the federal courts. Strange as that proposition may now appear to one familiar with the provision contained in the ninth section of the Judiciary Act, it is nevertheless true that the rule restricting admiralty jurisdiction to tidewaters had prevailed from the organization of the judicial system to that date, but the effect of that decision was to dispel that error and place the admiralty jurisdiction upon its true constitutional and legal basis as defined in the Constitution of the United States and the laws of Congress.

Subsequent decision of this Court in the case of The Magnolia was that the admiralty jurisdiction of the federal courts extends to cases of collision upon navigable waters, although the place of the collision may be within the body of a county and above the ebb and flow of the tide, and this Court also held in that case that the district courts exercise jurisdiction over fresh water rivers, "navigable from the

Page 74 U. S. 640

sea," by virtue of the ninth section of the Judiciary Act, and not as conferred by the act of the 26th of February, 1845, which is applicable only to the "lakes, and navigable waters connecting said lakes." [Footnote 12]

Direct proposition of the respondents in the case of The Commerce [Footnote 13] was that the case before the Court, which was a collision on the Hudson River, was not a case cognizable in the admiralty because it did not appear that either of the vessels was engaged in foreign commerce or in commerce among the several states; but the Court held that judicial power in all cases of admiralty and maritime jurisdiction was conferred by the Constitution, and that in cases of tort, the question of jurisdiction was wholly unaffected by the considerations suggested in that proposition; and we reaffirm the rule there laid down that locality is the true test of admiralty cognizance in all cases of marine torts; that if it appears, as in cases of collision, depredations upon property, illegal dispossession of ships, or seizures for the violation of the revenue laws that the wrongful act was committed on navigable waters within the admiralty and maritime jurisdiction of the United States, then the case is one properly cognizable in the admiralty. [Footnote 14]

Navigable rivers which empty into the sea or into the bays and gulfs which form a part of the sea are but arms of the sea, and are as much within the admiralty and maritime jurisdiction of the United States as the sea itself.

Difficulties attend every attempt to define the exact limits of admiralty jurisdiction, but it cannot be made to depend upon the power of Congress to regulate commerce, as conferred in the Constitution. They are entirely distinct things, having no necessary connection with one another, and are conferred in the Constitution by separate and distinct grants. [Footnote 15]

Congress may regulate commerce with foreign nations

Page 74 U. S. 641

and among the several states, but the judicial power, which, among other things, extends to all cases of admiralty and maritime jurisdiction, was conferred upon the federal government by the Constitution, and Congress cannot enlarge it, not even to suit the wants of commerce, nor for the more convenient execution of its commercial regulations. [Footnote 16]

Remarks, it is conceded, are found in the opinion of the Court in the case of Allen v. Newberry, [Footnote 17] inconsistent with these views, but they were not necessary to that decision, as the contract in that case was for the transportation of goods on one of the Western lakes, where the jurisdiction in admiralty is restricted, by an act of Congress, to "steamboats and other vessels . . . employed in the business of commerce and navigation between ports and places in different states and territories." [Footnote 18]

No such restrictions are contained in the ninth section of the Judiciary Act, and consequently those remarks, as applied to a case falling within that provision, must be regarded as incorrect.

Such a rule, if applied to the commerce and navigation of the Atlantic coast, would produce incalculable mischief, as the vessels in many cases, even in voyages from one port in a state to another port in the same state, are obliged, in the course of the voyage, to go outside of any particular state, and it would not be difficult to give examples where more than half the voyage is necessarily upon the high seas. Unless the admiralty has jurisdiction in such a case to enforce the maritime lien in case of a collision or jettison, it is difficult to see to what forum the injured party can resort for redress. Piracy, it is said, is justiciable everywhere, but it cannot be admitted that maritime torts are justiciable nowhere.

Unable to deny that the admiralty has jurisdiction over marine torts, though the voyage is between ports and places in the same state, the advocates of the more restricted jurisdiction

Page 74 U. S. 642

over maritime contracts set up a distinction, and contend that the admiralty jurisdiction over such contracts is limited by the power granted to Congress to regulate commerce. Reference may be made to the case of Maguire v. Card, [Footnote 19] as one where that distinction was adopted, but the decisive answer to that case, and the one preceding it in the same volume, will be found in the later cases already referred to, and in the case of The Mary Washington, [Footnote 20] where the opinion was given by the present CHIEF JUSTICE. All three of the cases, therefore, as well the case of W. C. Boon & Company as the other two, are cases within the admiralty and maritime jurisdiction of the federal courts.

II. Suppose that to be so, then, it is contended by the libellants, in the second place, that all three of the original actions were well brought in the state court as a court of concurrent jurisdiction with the district courts of the United States in admiralty, and that the particular remedy, given by the statute of the state, and adopted in these cases, is within the true intent and meaning of the saving clause in the ninth section of the Judiciary Act.

Wherever a maritime lien arises, the injured party may pursue his remedy, whether for a breach of a maritime contract or for a marine tort, by a suit in rem, or by a suit in personam, at his election. Attention will be called to three classes of cases only as examples to illustrate that proposition, but many more might be given to the same effect.

Shippers have a lien by the maritime law upon the vessel employed in the transportation of their goods and merchandise from one port to another as a security for the fulfillment of the contract of the carrier that he will safely keep, duly transport, and rightly deliver the goods and merchandise shipped on board, as stipulated in the bill of lading or other contract of shipment. [Footnote 21]

Owners of vessels damaged by collision occasioned without fault on their part and wholly through the fault of those

Page 74 U. S. 643

in charge of the colliding vessel, also have a maritime lien on the vessel in fault as a security for such damages as may be awarded to them in the admiralty for the injury thereby caused to their vessel, and they may proceed in rem to enforce their claim for the damages, or they may waive the lien and bring their suit in personam against the master or owners of the vessel. [Footnote 22]

Materialmen also, who furnish materials or supplies for a vessel in a foreign port or in a port other than a port of the state where the vessel belongs, have a maritime lien on the vessel as a security for the payment of the price of all such materials and supplies. They have such a lien because, upon the principles of the maritime law, such materials and supplies are presumed to be furnished on the credit of the vessel, and consequently they are entitled to proceed in rem in the admiralty court to enforce the lien, but they are not compelled to do so, as they may waive the lien and bring their suit in personam against the master or owners, as they are also liable as well as the vessel. [Footnote 23]

None of these principles is controverted, but the libellants contend that the state courts have concurrent jurisdiction to afford the parties the same remedies in all such cases. No warrant for that proposition, however, is found in the ninth section of the Judiciary Act nor in any other part of that fundamental regulation of our judicial system. On the contrary, the exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction is, by the very terms of that section, conferred upon the district courts of the United States, "saving to suitors in all cases the right of a common law remedy where the common law is competent to give it." Nothing is said about a concurrent jurisdiction in a state court or in any other court, and it is quite clear that in all cases where the parties are citizens of different states, the injured party may pursue the common law remedy here

Page 74 U. S. 644

described and saved, in the circuit court of the district as well as in the state courts.

Original cognizance is exclusive in the district courts, except that the suitor may, if he sees fit, elect to pursue a common law remedy in the state courts or in the circuit court, as before explained, in all cases where such a remedy is applicable. Common law remedies are not applicable to enforce a maritime lien by a proceeding in rem, and consequently the original jurisdiction to enforce such a lien by that mode of proceeding is exclusive in the district courts. [Footnote 24]

State legislatures have no authority to create a maritime lien, nor can they confer any jurisdiction upon a state court to enforce such a lien by a suit or proceeding in rem, as practiced in the admiralty courts. Observe the language of the saving clause under consideration. It is to suitors, and not to the state courts, nor to the circuit courts of the United States. Examined carefully, it is evident that Congress intended by that provision to allow the party to seek redress in the admiralty if he saw fit to do so, but not to make it compulsory in any case where the common law is competent to give him a remedy. Properly construed, a party under that provision may proceed in rem in the admiralty, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all, and may resort to his common law remedy in the state courts or in the circuit court of the United States, if he can make proper parties to give that court jurisdiction of his case.

Undoubtedly most common law remedies in cases of contract and tort, as given in common law courts, and suits in personam in the admiralty courts, bear a strong resemblance to each other, and it is not perhaps inaccurate to regard the two jurisdictions in that behalf as concurrent, but there is no form of action at common law which, when compared with the proceeding in rem in the admiralty, can be regarded as a concurrent remedy.

Page 74 U. S. 645

Consignees or shippers may proceed in the admiralty in rem against the vessel to enforce their maritime lien, or they may waive that lien and still proceed in the admiralty in personam against the owners of the vessel to recover damages for the nonfulfillment of the contract, or they may elect to bring a common action against the owners to recover damages, as in other cases for the breach of a contract to be executed on land.

Proceedings in a suit at common law on a contract of affreightment are precisely the same as in suits on contracts not regarded as maritime, wholly irrespective of the fact that the injured party might have sought redress in the admiralty. When properly brought, the suit is against the owners of the vessel, and in states where there are attachment laws, the plaintiff may attach any property, not exempted from execution, belonging to the defendants.

Liability of the owners of the vessel under the contract being the foundation of the suit, nothing can finally be held under the attachment except the interest of the owners in the vessel, because the vessel is held under the attachment as the property of the defendants, and not as the offending thing, as in the case of a proceeding in rem to enforce a maritime lien. Attachment in such suits may be of the property of nonresidents or of defendants absent from the state, as in suits on contracts not maritime, and the same rules apply in respect to the service of process and notice to the defendants.

Applying these rules to the cases before the court, it is obvious that the jurisdiction exercised by the state court was of the precise character which is exclusive in the district courts of the United States sitting in admiralty. Authority does not exist in the state courts to hear and determine a suit in rem in admiralty to enforce a maritime lien.

Such a lien does not arise in a contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts it is competent for the states, under the decisions of this Court, to create such liens as their legislatures may deem just and expedient, not amounting to a

Page 74 U. S. 646

regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement. [Footnote 25]

Contracts for shipbuilding are held not to be maritime contracts, and of course they fall within the same category, but in all cases where a maritime lien arises, the original jurisdiction to enforce the same by a proceeding in rem is exclusive in the district courts of the United States, as provided in the ninth section of the Judiciary Act. [Footnote 26]

Respective decrees reversed and the several causes remanded with instructions to dismiss the respective libels.

[Footnote 1]

Code, §§ 2692, 2708.

[Footnote 2]

Revised Code, §§ 3127, 3142.

[Footnote 3]

1 Stat. at Large 77.

[Footnote 4]

Waring v. Clarke, 5 How. 454.

[Footnote 5]

Bags of Linseed, 1 Black 108.

[Footnote 6]

Conklin's Admiralty 19.

[Footnote 7]

The Commerce, 1 Black 579; 2 Story on the Constitution (3d ed) §§ 1666-1669.

[Footnote 8]

23 U. S. 10 Wheat. 428.

[Footnote 9]

Waring v. Clarke, 5 How. 441.

[Footnote 10]

The Lexington, 6 How. 390; The Vengeance, 3 Dall. 297; The Betsey, 4 Cranch 443; The Samuel, 1 Wheat. 9; The Octavia, 1 Wheat. 20.

[Footnote 11]

53 U. S. 12 How. 457.

[Footnote 12]

The Magnolia, 20 How. 296; 5 Stat. at Large 516.

[Footnote 13]

66 U. S. 1 Black 578.

[Footnote 14]

2 Story on the Constitution, § 1669.

[Footnote 15]

The Genesee Chief, 12 How. 452.

[Footnote 16]

The St. Lawrence, 1 Black 526.

[Footnote 17]

62 U. S. 21 How. 245.

[Footnote 18]

The Hine v. Trevor, 4 Wall. 555.

[Footnote 19]

62 U. S. 21 How. 249.

[Footnote 20]

14 American Law Register 692

[Footnote 21]

The Bird of Paradise, 5 Wall. 545; The Eddy, 5 Wall. 481; Bags of Linseed, 1 Black 112; Maude & Pollock on Shipping 254.

[Footnote 22]

Sturgis v. Boyer, 24 How. 117; Chamberlain v. Ward, 21 How. 553.

[Footnote 23]

The St. Lawrence, 1 Black 529; Manro v. Almeida, 10 Wheat. 473; The Reindeer, 2 Wall. 384; The General Smith, 4 Wheat. 438.

[Footnote 24]

The Moses Taylor, 4 Wall. 411.

[Footnote 25]

The General Smith, 4 Wheat. 438; The St. Lawrence, 1 Black 529.

[Footnote 26]

Ferry Company v. Beers, 20 How. 402.