1. Whilst the general maritime law is the basis of the maritime
law of the United States, as well as of other countries, it is only
so far operative in this or any country as it is adopted by the
laws and usages thereof. It has no inherent force of its own.
2. In particular matters, especially such as approach a merely
municipal character, the received maritime law may differ in
different countries without affecting the general integrity of the
system as a harmonious whole.
3. The general system of maritime law which was familiar to the
lawyers and statesmen of this country when the Constitution was
adopted was intended and referred to when it was declared in that
instrument that the judicial power of the United States shall
extend "to all cases of admiralty and maritime jurisdiction." Thus
adopted, it became the maritime law of the United States, operating
uniformly in the whole country.
4. The question as to the true limits of maritime law and
admiralty jurisdiction is exclusively a judicial question, and no
state law or act of Congress can make it broader or narrower than
the judicial power may determine those limits to be. But what the
law is within those limits, assuming the general maritime law to be
the basis of the system, depends on what has been received as law
in the maritime usages of this country and on such legislation as
may have been competent to affect it.
5. The decisions of this Court illustrative of these sources,
and giving construction to the laws and Constitution, are
especially to be considered, and when these fail us, we must resort
to the principles by which they have been governed.
Page 88 U. S. 559
6. It is settled by repeated adjudications of this Court that
materialmen furnishing repairs and supplies to a vessel in her home
port do not acquire thereby any lien upon the vessel by the general
maritime law as received in the United States.
7. Whilst it cannot be supposed than the framers of the
Constitution contemplated that the maritime law should remain
unchanged, the courts cannot change it; they can only declare it.
If, within its proper scope, any change is desired in its rules
other than those of procedure, it must be made by the legislative
department.
8.
Semble that Congress, under the power to regulate
commerce, has authority to establish a lien on vessels of the
United States in favor of materialmen uniform throughout the whole
country.
9. In particular cases in which Congress has not exercised the
power of regulating commerce with which it is invested by the
Constitution, and where the subject does not in its nature require
the exclusive exercise of that power, the states, until Congress
acts, may continue to legislate.
10. Hence, liens granted by the laws of a state in favor of
materialmen for furnishing necessaries to a vessel in her home port
in said state are valid, though the contract to furnish the same is
at maritime contract and can only be enforced by proceedings
in
rem in the district courts of the United States.
11. Any person having a specific lien on, or a vested right in,
a surplus fund in court may apply by petition for the protection of
his interest under the forty-third admiralty rule.
12. Separate libels were filed in 1871, against a steamboat for
wages for salvage, for supplies furnished at her home port, and for
the amount due on a mortgage.
Held, on the evidence, that
the lien for supplies had not been perfected under the state law,
and if it had been, that the libels for such supplies could not be
sustained prior to the recent change in the twelfth admiralty rule.
Held also that the libel upon the mortgage could not be
sustained as an original proceeding, but that the mortgagees,
having petitioned for the surplus proceeds of the vessel, were
entitled to have the same applied to their mortgage.
In the year 1819, this Court, in
The General Smith,
[
Footnote 1] decided (as the
profession has generally understood) that in respect to repairs or
necessaries furnished to a ship in the port or state to which she
belongs, no lien is implied unless it is recognized by the
municipal law of the state, declaring the
Page 88 U. S. 560
rule herein to be different from that where the repairs or
necessaries are furnished to a foreign ship, in which case it was
admitted that the maritime law of the United States gives the party
a lien on the ship itself for his security.
In view of this decision most, or all of the states enacted laws
giving a lien for the protection of materialmen in such cases.
In the year 1833, in the case of
The Planter, [
Footnote 2] the converse of the rule in
The General Smith was laid down, and process against a
vessel in her home port was used and supported, the state law
giving a lien in the case.
In 1844, this Court, acting in pursuance of acts of Congress
which authorized it to adopt rules of practice in the courts of the
United States in causes of admiralty and maritime jurisdiction
[
Footnote 3] (and adhering to
the practice declared as proper in the cases mentioned), adopted
the following rule of practice:
"
RULE XII"
"In all suits by materialmen for supplies, repairs, or other
necessaries for a foreign ship or for a ship in a foreign port, the
libellant may proceed against the ship and freight
in rem
or against the master and owner alone
in personam, and the
like proceeding
in rem shall apply to cases of domestic
ships where by the local law a lien is given to materialmen for
supplies, repairs, and other necessaries."
On the 1st of May, 1859, a new twelfth rule was adopted as a
substitute for the one above given. It was thus:
"
RULE XII"
"In all suits by materialmen for supplies or repairs or other
necessaries for a foreign ship or for a ship in a foreign port, the
libellant may proceed against the ship or freight
in rem
or against the master or owner alone
in personam. And the
like proceedings
in personam, but not
in rem,
shall apply in cases of domestic ships for supplies, repairs, or
other necessaries. "
Page 88 U. S. 561
The reasons for the substitution of this latter rule for the
former one are stated by Taney, C.J., in the case of
The
Steamer St. Lawrence, [
Footnote 4] to have been that in some cases the state laws
giving liens, and the constructions put on them by state courts,
were found not to harmonize with the principles and rules of the
maritime code, and embarrassed the federal courts in applying
them.
In this state of things, William Doyle and another filed a libel
in the District Court of the United States for the District of
Louisiana, abovementioned,
on the 10th day of June, 1871,
against the steamer
Lottawana, of New Orleans, for
mariners' wages. The vessel being seized, libels of intervention
were afterwards filed by various parties, some for mariners' wages,
some for salvage services, some for supplies, materials, and
repairs furnished in the port of New Orleans for the use of the
steamer. On the 20th day of June, 1871, Catharine Rodd,
administratrix, together with several commercial firms of the City
of New Orleans, filed a libel of intervention by which they set up
a mortgage on the vessel, given to them by the owner, on the 20th
of May, 1871, and duly recorded in the custom house on the 22d of
May, to secure the payment of various promissory notes of the same
date, given to said libellants by the said owner, and amounting to
more than $14,000.
The steamer, up to the 16th of May, had been engaged in the
river trade on the Mississippi and Red Rivers between New Orleans
and Jefferson, in Texas, and was laid up for repairs at New Orleans
on that day. Most of the claims for wages and supplies arose before
the date of the mortgage, although some arose afterwards. The
steamer was sold for $7,500, and, after deducting expenses of sale,
costs, salvage and wages of mariners (which were admitted to have
preference), there remained a surplus of $4,644.42, which the
district court, by a decree rendered February 26, 1872,
and
signed on the 1st of March following, decreed
Page 88 U. S. 562
to be paid
pro rata to the mortgage creditors, to the
exclusion of the claims for repairs and supplies.
On the 6th of May, 1872, about two months after the decree was
finally rendered, this Court promulgated yet a third twelfth rule
in admiralty. It was in these words:
"In
all suits by materialmen for supplies or repairs or
other necessaries, the libellant may proceed against the ship and
freight
in rem, or against the master or owner alone
in personam."
In this state of things,
on the 3d of June, 1872, the
abovementioned decree of the district court was reversed by the
circuit court on appeal and the surplus was decreed to be paid
pro rata to the claimants for repairs and supplies, to the
exclusion of the mortgage creditors, the amount not being
sufficient to pay either class of creditors in full. From the
latter decree an appeal was taken to this Court.
The principal question presented by the appeal, therefore, was
whether the furnishing to a vessel on her credit, at her home port,
needful repairs and supplies created a maritime lien. If it did,
such lien would take precedence of a mortgage given for the payment
of money generally, and the decree must be affirmed. If it did not,
the decree was to be reversed unless the appellees could sustain
themselves on some other ground.
Such other grounds they asserted existed in what they alleged to
be a fact, to-wit, that by the law of Louisiana they had a
"privilege" for their claims giving them a lien on the vessel and
her proceeds, which lien, though not strictly a maritime one, the
court was bound to enforce.
[On that part of the subject, the case was said by the
appellant's counsel to be thus:
The Constitution of Louisiana of 1869, ordains: [
Footnote 5]
"No mortgage or privilege shall hereafter affect third parties
unless recorded in the parish where the property to be affected is
situated. "
Page 88 U. S. 563
The Revised Civil Code of Louisiana says:
"ARTICLE 3237. The following debts are privileges on the price
of ships and other vessels:"
" Sums due to sellers: to those who have furnished materials,
and to workmen employed in the construction, if the vessel has
never made a voyage, and those due to creditors for supplies,
labor, repairing, victuals, armament, and equipment."
"ARTICLE 3273. Privileges are valid against third persons from
the date of the recording of the act or evidence of indebtedness,
as provided by law."
"ARTICLE 3274. No privilege shall have effect against third
persons unless recorded, in the manner required by law, in the
parish where the property to be affected is situated."
"ARTICLE 3093. If the mortgage or privilege be a notarial or
public act, the same shall be recorded. . . .
If the same be
not in writing, the person claiming the mortgage or privilege,
his agent, or some person having knowledge of the fact, must make
affidavit of all the facts on which it is based, stating the amount
and all the necessary facts, which affidavit shall be recorded in
the mortgage book as other acts of mortgage or privilege."
No record of mortgage was shown in the transcript.]
Page 88 U. S. 571
MR. JUSTICE BRADLEY delivered the opinion of the Court.
The principal questions raised in this case were decided by this
Court adversely to the lien more than fifty years ago in the case
of
The General
Smith, reported in 4 Wheat. 438, and that decision
has ever since been adhered to, except occasionally in some of the
district courts. A solemn judgment relied on so long by the
commercial community as a rule of property and the law of the land
ought not to be overruled except for very cogent reasons. If,
however, in the progress of investigation and with the new lights
that have been thrown upon the whole subject of maritime law and
admiralty jurisdiction, a more rational view of the question
demands an adverse ruling in order to preserve harmony and logical
consistency in the general system, the court might, perhaps, if no
evil consequences of a glaring character were likely to ensue, feel
constrained to adopt it. But if no such necessity exists, we ought
not to permit any consideration of mere expediency or love of
scientific completeness to draw us into a substantial change of the
received law. The additional security which has been extended to
bills of sale and mortgages on ships and vessels since the passage
of the act for recording them in the custom house and the
confidence with which purchasers and mortgagees have invested money
therein under the existing course of decisions on this subject have
placed a large amount of property at undue hazard if those
decisions may lightly or without grave cause be disturbed.
The ground on which we are asked to overrule the judgment in the
case of
The General Smith is that by the general maritime
law, those who furnish necessary materials, repairs, and supplies
to a vessel upon her credit have a lien on such a vessel therefor
as well when furnished in her home port as when furnished in a
foreign port, and that the courts of admiralty are bound to give
effect to that lien.
The proposition assumes that the general maritime law governs
this case and is binding on the courts of the United States.
Page 88 U. S. 572
But it is hardly necessary to argue that the maritime law is
only so far operative as law in any country as it is adopted by the
laws and usages of that country. In this respect, it is like
international law or the laws of war, which have the effect of law
in no country any further than they are accepted and received as
such, or, like the case of the civil law, which forms the basis of
most European laws but which has the force of law in each state
only so far as it is adopted therein and with such modifications as
are deemed expedient. The adoption of the common law by the several
states of this Union also presents an analogous case. It is the
basis of all the state laws, but is modified as each sees fit.
Perhaps the maritime law is more uniformly followed by commercial
nations than the civil and common laws are by those who use them.
But, like those laws, however fixed, definite, and beneficial the
theoretical code of maritime law may be, it can have only so far
the effect of law in any country as it is permitted to have. But
the actual maritime law can hardly be said to have a fixed and
definite form as to all the subjects which may be embraced within
its scope. Whilst it is true that the great mass of maritime law is
the same in all commercial countries, yet in each country
peculiarities exist either as to some of the rules or in the mode
of enforcing them. Especially is this the case on the outside
boundaries of the law, where it comes in contact with, or shades
off into the local or municipal law of the particular country and
affects only its own merchants or people in their relations to each
other. Whereas, in matters affecting the stranger or foreigner, the
commonly received law of the whole commercial world is more
assiduously observed -- as in justice it should be. No one doubts
that every nation may adopt its own maritime code. France may adopt
one; England another; the United States a third; still, the
convenience of the commercial world, bound together, as it is, by
mutual relations of trade and intercourse, demands that in all
essential things wherein those relations bring them in contact,
there should be a uniform law founded on natural reason and
justice. Hence the adoption
Page 88 U. S. 573
by all commercial nations (our own included) of the general
maritime law as the basis and groundwork of all their maritime
regulations. But no nation regards itself as precluded from making
occasional modifications suited to its locality and the genius of
its own people and institutions, especially in matters that are of
merely local and municipal consequence and do not affect other
nations. It will be found, therefore, that the maritime codes of
France, England, Sweden, and other countries, are not one and the
same in every particular, but that whilst there is a general
correspondence between them arising from the fact that each adopts
the essential principles and the great mass of the general maritime
law as the basis of its system, there are varying shades of
difference corresponding to the respective territories, climate,
and genius of the people of each country respectively. Each state
adopts the maritime law not as a code having any independent or
inherent force
proprio vigore, but as its own law, with
such modifications and qualifications as it sees fit. Thus adopted
and thus qualified in each case, it becomes the maritime law of the
particular nation that adopts it. And without such voluntary
adoption it would not be law. And thus it happens that, from the
general practice of commercial nations in making the same general
law the basis and groundwork of their respective maritime systems,
the great mass of maritime law which is thus received by these
nations in common comes to be the common maritime law of the
world.
This account of the maritime law, if correct, plainly shows that
in particular matters, especially such as approach a merely
municipal character, the received maritime law may differ in
different countries without affecting the general integrity of the
system as a harmonious whole. The government of one country may be
willing to give to its citizens, who supply a ship with provisions
at her home port where the owner himself resides, a lien on the
ship, whilst that of another country may take a contrary view as to
the expediency of such a rule. The difference between them in a
matter that concerns only their own citizens in each case
Page 88 U. S. 574
cannot seriously affect the harmony and consistency of the
common maritime law which each adopts and observes.
This view of the subject does not in the slightest degree
detract from the proper authority and respect due to that venerable
law of the sea, which has been the subject of such high encomiums
from the ablest jurists of all countries; it merely places it upon
the just and logical grounds upon which it is accepted, and with
proper qualifications received with the binding force of law in all
countries.
The proposition, therefore, that by the general maritime law a
lien is given in cases of the kind now under consideration does not
advance the argument a single step unless it be shown to be in
accordance with the maritime law as accepted and received in the
United States. It certainly has not been the maritime law of
England for more than two centuries past, and whether it is the
maritime law of this country depends upon questions which are not
answered by simply turning to the ordinary European treatises on
maritime law, or the codes or ordinances of any particular
country.
That we have a maritime law of our own, operative throughout the
United States, cannot be doubted. The general system of maritime
law which was familiar to the lawyers and statesmen of the country
when the Constitution was adopted was most certainly intended and
referred to when it was declared in that instrument that the
judicial power of the United States shall extend "to all cases of
admiralty and maritime jurisdiction." But by what criterion are we
to ascertain the precise limits of the law thus adopted? The
Constitution does not define it. It does not declare whether it was
intended to embrace the entire maritime law as expounded in the
treatises, or only the limited and restricted system which was
received in England, or lastly such modification of both of these
as was accepted and recognized as law in this country. Nor does the
Constitution attempt to draw the boundary line between maritime law
and local law; nor does it lay down any criterion for ascertaining
that boundary. It assumes that the meaning
Page 88 U. S. 575
of the phrase "admiralty and maritime jurisdiction" is well
understood. It treats this matter as it does the cognate ones of
common law and equity, when it speaks of "cases in law and equity,"
or of "suits at common law" without defining those terms, assuming
them to be known and understood.
One thing, however, is unquestionable: the Constitution must
have referred to a system of law coextensive with, and operating
uniformly in, the whole country. It certainly could not have been
the intention to place the rules and limits of maritime law under
the disposal and regulation of the several states, as that would
have defeated the uniformity and consistency at which the
Constitution aimed on all subjects of a commercial character
affecting the intercourse of the states with each other or with
foreign states.
The question is discussed with great felicity and judgment by
Chief Justice Taney, delivering the opinion of the Court in the
case of
The St. Lawrence, [
Footnote 6] where he says:
"Judicial power in all cases of admiralty and maritime
jurisdiction is delegated by the Constitution to the federal
government in general terms, and courts of this character had then
been established in all commercial and maritime nations, differing,
however, materially in different countries in the powers and duties
confided to them; the extent of the jurisdiction conferred
depending very much upon the character of the government in which
they were created, and this circumstance, with the general terms of
the grant, rendered it difficult to define the exact limits of its
power in the United States. This difficulty was increased by the
complex character of our government, where separate and distinct
specified powers of sovereignty are exercised by the United States
and a state independently of each other within the same territorial
limits. And the reports of the decisions of the court will show
that the subject has often been before it, and carefully
considered, without being able to fix with precision its definite
boundaries; but certainly no state law can enlarge
Page 88 U. S. 576
it, nor can an act of Congress or rule of court make it broader
than the judicial power may determine to be its true limits. And
this boundary is to be ascertained by a reasonable and just
construction of the words used in the Constitution, taken in
connection with the whole instrument and the purposes for which
admiralty and maritime jurisdiction was granted to the federal
government."
Guided by these sound principles, this Court has felt itself at
liberty to recognize the admiralty jurisdiction as extending to
localities and subjects which, by the jealously of the common law,
were prohibited to it in England, but which fairly belong to it on
every ground of reason when applied to the peculiar circumstances
of this country, with its extended territories, its inland seas,
and its navigable rivers, especially as the narrow restrictions of
the English law had never prevailed on this side of the Atlantic,
even in colonial times.
The question as to the true limits of maritime law and admiralty
jurisdiction is undoubtedly, as Chief Justice Taney intimates,
exclusively a judicial question, and no state law or act of
Congress can make it broader or (it may be added) narrower than the
judicial power may determine those limits to be. But what the law
is within those limits, assuming the general maritime law to be the
basis of the system, depends on what has been received as law in
the maritime usages of this country, and on such legislation as may
have been competent to affect it.
To ascertain, therefore, what the maritime law of this country
is, it is not enough to read the French, German, Italian, and other
foreign works on the subject, or the codes which they have framed,
but we must have regard to our own legal history, constitution,
legislation, usages, and adjudications as well. The decisions of
this Court illustrative of these sources, and giving construction
to the laws and Constitution are especially to be considered, and
when these fail us, we must resort to the principles by which they
have been governed.
But we must always remember that the court cannot
Page 88 U. S. 577
make the law; it can only declare it. If, within its proper
scope, any change is desired in its rules other than those of
procedure, it must be made by the legislative department. It cannot
be supposed that the framers of the Constitution contemplated that
the law should forever remain unalterable. Congress undoubtedly has
authority under the commercial power, if no other, to introduce
such changes as are likely to be needed. The scope of the maritime
law and that of commercial regulation are not coterminous, it is
true, but the latter embraces much the largest portion of ground
covered by the former. Under it, Congress has regulated the
registry, enrolment, license, and nationality of ships and vessels,
the method of recording bills of sale and mortgages thereon, the
rights and duties of seamen, the limitations of the responsibility
of shipowners for the negligence and misconduct of their captains
and crews, and many other things of a character truly maritime. And
with regard to the question now under consideration -- namely the
rights of materialmen in reference to supplies and repairs
furnished to a vessel in her home port -- there does not seem to be
any great reason to doubt that Congress might adopt a uniform rule
for the whole country, though of course this will be a matter for
consideration should the question ever be directly presented for
adjudication.
On this subject, the remarks of Mr. Justice Nelson, in
delivering the opinion of the Court in
White's Bank v.
Smith [
Footnote 7] (which
established the validity and effect of the act respecting the
recording of mortgages on vessels in the customhouse), are
pertinent. He says:
"Ships or vessels of the United States are creatures of the
legislation of Congress. None can be denominated such or be
entitled to the benefits or privileges thereof except those
registered or enrolled according to the Act of September 1, 1789,
and those which, after the last day of March, 1793, shall be
registered or enrolled in pursuance of the Act of 31st December,
1792, and must be wholly owned by a citizen or citizens of the
United
Page 88 U. S. 578
States, and to be commanded by a citizen of the same. . . .
Congress having created, as it were, this species of property, and
conferred upon it its chief value under the power given in the
Constitution to regulate commerce, we perceive no reason for
entertaining any serious doubt but that this power may be extended
to the security and protection of the rights and title of all
persons dealing therein. The judicial mind seems to have generally
taken this direction."
This case was subsequently affirmed by
Aldrich v. AEtna
Company. [
Footnote 8]
Be this, however, as it may, and whether the power of Congress
is or is not sufficient to amend the law on this subject (if
amendment is desirable), this Court is bound to declare the law as
it now stands. And according to the maritime law as accepted and
received in this country, we feel bound to declare that no such
lien exists as is claimed by the appellees in this case. The
adjudications in this Court before referred to, which it is
unnecessary to review, are conclusive on the subject, and we see no
sufficient ground for disturbing them.
This disposes of the principal question in the case.
But it is alleged by the appellees that by the law of Louisiana
they have a privilege for their claims, giving them a lien on the
vessel and her proceeds, and that the court was bound to enforce
this lien in their behalf, though not strictly a maritime lien.
On examining the record, however, it appears that the appellees
never caused their lien (if they had one) to be recorded according
to the requirements of the state law. By the one hundred and
twenty-third article of the Constitution of Louisiana, adopted in
1869, it is declared that no "mortgage or privilege shall hereafter
affect third parties unless recorded in the parish where the
property to be affected is situated." And an act of the
legislature, passed since that time, adopts the very terms of the
constitutional provision. And a further act provides that if the
privilege be not in writing, the facts on which it is based must be
stated in an
Page 88 U. S. 579
affidavit, which must be recorded. [
Footnote 9] None of these requisites having been
performed, no lien can be claimed under the state law.
But if there were any doubt on this subject, the case of the
appellees is met by another difficulty. The admiralty rule of 1859,
which precluded the district courts from entertaining proceedings
in rem against domestic ships for supplies, repairs, or
other necessaries, was in force until May 6, 1872, when the new
rule was promulgated. Now this case was commenced in the district
court a year previous to this, and final judgment in the district
court was rendered two months previous. It is true that the
judgment of the circuit court, on appeal, was not rendered until
the 3d day of June, 1872, but if the new rule had at that time been
brought to the attention of the court, it could hardly have been
applied to the case in its then position. All the proceedings had
been based and shaped upon other grounds and theories, and not upon
the existence of that rule. It would not have been just to the
other parties to apply to them a rule which was not in existence
when they were carrying on the litigation.
As to the recent change in the admiralty rule referred to, it is
sufficient to say that it was simply intended to remove all
obstructions and embarrassments in the way of instituting
proceedings
in rem in all cases where liens exist by law,
and not to create any new lien, which, of course, this Court could
not do in any event, since a lien is a right of property, and not a
mere matter of procedure.
Had the lien been perfected, and had the rule not stood in the
way, the principles that have heretofore governed the practice of
the district courts exercising admiralty jurisdiction, and which
have been repeatedly sanctioned by this Court, would undoubtedly
have authorized the materialmen to file a libel against the vessel
or its proceeds. [
Footnote
10] It seems
Page 88 U. S. 580
to be settled in our jurisprudence that so long as Congress does
not interpose to regulate the subject, the rights of materialmen
furnishing necessaries to a vessel in her home port may be
regulated in each state by state legislation. State laws, it is
true, cannot exclude the contract for furnishing such necessaries
from the domain of admiralty jurisdiction, for it is a maritime
contract, and they cannot alter the limits of that jurisdiction;
nor can they confer it upon the state courts so as to enable them
to proceed
in rem for the enforcement of liens created by
such state laws, for it is exclusively conferred upon the district
courts of the United States. They can only authorize the
enforcement thereof by common law remedies, or such remedies as are
equivalent thereto. But the district courts of the United States,
having jurisdiction of the contract as a maritime one, may enforce
liens given for its security, even when created by the state laws.
[
Footnote 11] The practice
may be somewhat anomalous, but it has existed from the origin of
the government, and perhaps was originally superinduced by the fact
that prior to the adoption of the Constitution, liens of this sort
created by state laws had been enforced by the state courts of
admiralty, and as those courts were immediately succeeded by the
district courts of the United States, and in several instances the
judge of the state court was transferred to the district court, it
was natural, in the infancy of federal legislation on commercial
subjects, for the latter courts to entertain jurisdiction over the
same classes of cases, in every respect as the state courts had
done, without due regard to the new relations which the states had
assumed towards the maritime law and admiralty jurisdiction. For
example, in 1784, the Legislature of Pennsylvania passed a law
allowing persons concerned in building, repairing, fitting out, and
furnishing vessels for a voyage to sue in admiralty, as mariners
sue for wages. Two cases, those of
The Collier and
The
Enterprise, arising under this law and coming before the
admiralty court of Pennsylvania, are reported in
Page 88 U. S. 581
Judge Hopkinson's works. [
Footnote 12] No doubt other cases of the same kind
occurred in the courts of other states.
But whatever may have been the origin of the practice, and
whether or not it was based on the soundest principles, it became
firmly settled and it is now too late to question its validity.
It is true that the inconveniences arising from the often
intricate and conflicting state laws creating such liens induced
this Court, in December Term, 1858, to abrogate that portion of the
twelfth admiralty rule of 1844, which allowed proceedings
in
rem against domestic ships for repairs and supplies furnished
in the home port, and to allow proceedings
in personam
only in such cases. But we have now restored the rule of 1844 -- or
rather we have made it general in its terms, giving to materialmen
in all cases their option to proceed either
in rem or
in personam. Of course this modification of the rule
cannot avail where no lien exists; but where one does exist, no
matter by what law, it removes all obstacles to a proceeding
in
rem, if credit is given to the vessel.
It would undoubtedly be far more satisfactory to have a uniform
law regulating such liens, but until such a law be adopted
(supposing Congress to have the power) the authority of the states
to legislate on the subject seems to be conceded by the uniform
course of decisions.
Indeed there is quite an extensive field of border legislation
on commercial subjects (generally local in character) which may be
regulated by state laws until Congress interposes and thereby
excludes further state legislation. Pilotage is one of the subjects
in this category. So far as Congress has interposed, its authority
is supreme and exclusive; but where it has not done so, the matter
is still left to the regulation of state laws. And yet this
exercise by the states of the power to regulate pilotage has not
withdrawn the subject, and indeed cannot withdraw it from the
admiralty
Page 88 U. S. 582
jurisdiction of the district courts. [
Footnote 13] And, of course, as before intimated, this
jurisdiction of the state legislatures in such cases is subject to
be terminated at any time by Congress' assuming the control. In
some cases, this is not so desirable as in others, but in the one
under consideration, if Congress has the power to intervene, it is
greatly to be desired that it should do so. It would be better to
have the subject regulated by the general maritime law of the
country than by differing state laws. The evils arising from
conflicting lien laws passed by the several states are forcibly set
forth by Chief Justice Taney in the case of
The St.
Lawrence, before cited. It may be added that the existence of
secret liens is not in accord with the spirit of our commercial
usages, and a uniform law by which the liens in question should be
required within a reasonable time to be placed on record in the
custom house like mortgages, and otherwise properly regulated,
would be of great advantage to the business community.
But there is another mode in which the appellees, if they had a
valid lien, could come into the district court and claim the
benefit thereof -- namely by a petition for the application of the
surplus proceeds of the vessel to the payment of their debts under
the forty-third admiralty rule. The court has power to distribute
surplus proceeds to all those who can show a vested interest
therein, in the order of their several priorities, no matter how
their claims originated. [
Footnote 14] The propriety of such a distribution in the
admiralty has been questioned on the ground that the court would
thereby draw to itself equity jurisdiction. [
Footnote 15] But it is a wholesome jurisdiction
very commonly exercised by nearly all superior courts to distribute
a fund rightfully in its possession to those who are legally
entitled to it, and there is no sound reason why admiralty courts
should not do the
Page 88 U. S. 583
same. If a case should be so complicated as to require the
interposition of a court of equity, the district court could refuse
to act, and refer the parties to a more competent tribunal.
[
Footnote 16]
In this case, the appellants themselves have no maritime lien,
but merely a mortgage to secure an ordinary debt not founded on a
maritime contract. They therefore have no standing in court except
under the forty-third admiralty rule and in the manner above
indicated. Their libel was inadmissible, even under the admiralty
rule as recently modified. [
Footnote 17] But before the final decree, they filed a
petition for the surplus proceeds, and as there is no question in
the case about fraudulent preference under the Bankrupt law, they
are entitled to those proceeds towards satisfaction of their
mortgage.
Decree reversed and the record remanded with instructions to
enter a decree in favor of the appellants in conformity with this
opinion.
[
Footnote 1]
17 U. S. 4
Wheat. 443.
[
Footnote 2]
Reported under the name of
Payroux v.
Howard, 7 Pet. 324.
[
Footnote 3]
Acts of May 8, 1792, 1 Stat. at Large 275, and of August 23,
1842, 5
id. 516.
[
Footnote 4]
66 U. S. 1
Black 529.
[
Footnote 5]
Article 123.
[
Footnote 6]
66 U. S. 1
Black 526,
66 U. S.
527.
[
Footnote 7]
74 U. S. 7
Wall. 655,
74 U. S. 656.
[
Footnote 8]
75 U. S. 8 Wall.
491.
[
Footnote 9]
Revised Civil Code, Articles 3273, 3274, 3093.
[
Footnote 10]
The General
Smith, 4 Wheat. 438;
Peyroux v.
Howard, 7 Pet. 324;
The
Orleans v. Phoebus, 11 Pet. 175;
The St.
Lawrence, 1 Black 522.
[
Footnote 11]
Cases
supra.
[
Footnote 12]
Volume 3, pp. 131, 171.
[
Footnote 13]
Cooley v. Port
Wardens, 12 How. 299;
Ex Parte
McNiel, 13 Wall. 236.
[
Footnote 14]
Schuchardt v.
Babbidge, 19 How. 289.
[
Footnote 15]
The Neptune, 3 Knapp's Privy Council 111.
[
Footnote 16]
See cases reviewed in 1 Conklin's Admiralty, pp. 48-66,
2d ed.
[
Footnote 17]
The John Jay,
17 How. 399.
MR. JUSTICE CLIFFORD, dissenting:
Controversy, sometimes of an embittered character, existed in
the courts of the parent country respecting the jurisdiction of the
admiralty court for a century before the American Colonies
separated from that country and proclaimed their independence.
Differences of opinion also have existed here as to the proper
extent of that jurisdiction ever since the adoption of the federal
Constitution, as evidenced by the decisions of the Supreme Court at
different periods in our judicial history.
Attempt was made at an early period to limit the jurisdiction of
the admiralty courts to tidewaters, and to exclude its exercise
altogether from waters within the body of a county, whether the
waters were or were not affected by the ebb and flow of the tide.
Express decision to the effect that the admiralty had no
jurisdiction, even in a suit for
Page 88 U. S. 584
seamen's wages, was made in the case of The Jefferson, [
Footnote 2/1] except in cases where the
service is substantially performed upon the sea or upon waters
within the ebb and flow of the tide.
Jurisdiction of the admiralty courts at that period in the
parent country did not extend to any case where the common law
courts could give the parties a remedy in a trial by jury, and the
theory here for a long time was that the clause of the ninth
section of the Judiciary Act which saves to suitors the right to a
common law remedy, where the common law is competent to give it,
excluded all cases from the jurisdiction of the admiralty courts if
the cause of action arose or accrued
infra corpus
comitatus. Protracted acquiescence in that theory gave it for
a time the force of law, until the question was presented directly
to the Supreme Court, when the whole theory was completely
overturned in all cases where the cause of action, whether tort or
contract, had respect to acts done or service performed upon
tidewaters. [
Footnote 2/2]
Doubts of a perplexing character arose in some of the circuits
whether affreightment contracts were cognizable in the admiralty,
which ultimately culminated in an absolute denial of the
jurisdiction in all such cases. Wide differences of opinion upon
the subject existed, and in order to its final settlement, the
question was presented to the Supreme Court in its whole length and
breadth. [
Footnote 2/3]
Nothing was left undone in that case on either side which could
be accomplished by a skillful argument and indefatigable research.
Two of the propositions, one selected from each side, will serve to
illustrate the nature of the contention and the wide range of the
discussion. By the appellants it was insisted that the district
courts had no jurisdiction over such a contract because it was made
on land, within the body of a county, for the transportation of
goods
Page 88 U. S. 585
in a described route over inland waters landlocked the whole
way, and because the contemplated voyage terminated
infra
fauces terrae. Opposed to that, the appellees contended that
in all cases of contract, the question is whether the contract or
service to be performed is in its nature maritime, and that in all
cases of maritime contract, the proceeding may be
in rem
or
in personam, at the option of the libellant. Elaborate
discussion followed, but the Supreme Court silenced forever all
well founded doubts upon that subject.
Such jurisdiction, however, was in the united view of the
Supreme Court at that time limited to tidewaters; nor did either of
the learned Justices who delivered the opinions of the Court in
those cases even intimate that the Court could entertain appellate
jurisdiction in such a case if the cause of action consisted of
acts done or service performed on waters not affected by the ebb
and flow of the tide.
Admiralty jurisdiction, by virtue of those decisions, continued
in our jurisprudence to be limited to the ebb and flow of the tide
for more than a quarter of a century, in spite of the deep-seated
dissatisfaction which existed in all parts of the country
interested in Western commerce or in the navigation of the great
lakes and rivers of that portion of the Union.
Subsequent attempt was made by Congress to furnish a remedy for
the difficulty, which was by no means satisfactory, and expedients
to obviate the embarrassment were also attempted by the courts, all
of which were equally unsuccessful until the Supreme Court was
brought face to face with the question whether the rule of decision
that the jurisdiction of the admiralty was limited to the ebb and
flow of the tide could be upheld as a correct exposition of that
clause of the Constitution which provides that the judicial power
of the United States shall extend to all cases of admiralty and
maritime jurisdiction.
Opposition to change induced the cry of
stare decisis,
just as when the argument was presented that the admiralty
jurisdiction followed the tide even within the body of a county.
Such a cry proved to be insufficient to restrain the advance
Page 88 U. S. 586
of admiralty jurisdiction or to prevent it from entering even
into the acknowledged limits of states having tidewaters within
their borders, and it was again destined to a still greater defeat
when it was invoked as the means of perpetuating the great error
that the admiralty jurisdiction did not extend to the great lakes
and fresh water rivers of our country.
Public duty required the court to review the former case, and
the great magistrate presiding over the court did not hesitate to
reverse the rule of decision there established and to determine to
the effect that the admiralty jurisdiction is not limited to
tidewaters, and that it extended to all public lakes and rivers
used for the purpose of commerce and navigation between the states
or for foreign trade. [
Footnote
2/4]
Strenuous effort was subsequently made to induce the Court to
qualify the rule there laid down or to restrict its application so
that the jurisdiction of the admiralty courts should not extend to
acts done or service performed within the body of a county if the
waters were above the flux and reflux of the tide, but this Court
refused to adopt any such qualification and reaffirmed in the most
authoritative manner the rule previously announced in the two
leading cases upon those subjects. [
Footnote 2/5]
Unquestionably the jurisdiction of the admiralty is by those
cases made to depend upon the navigable character of the water, and
not upon the ebb and flow of the tide, and the Court said, in the
case last cited, if the water is navigable, it is deemed to be
public, and if public it is regarded as within the legitimate scope
of the admiralty jurisdiction of the Constitution.
Except for one or two expressions contained in the opinion of
the Chief Justice, which are much intensified in the headnote of
the case, and which are repeated in the opinion in the case of
The Magnolia, those two decisions would, in
Page 88 U. S. 587
all probability, have settled the general question of admiralty
jurisdiction under the Constitution, free from several perplexing
embarrassments which presented themselves in subsequent
litigations. Considerable weight is given in those opinions to the
circumstance that the great lakes and fresh water rivers are the
theater of extended commerce between different states and with
foreign nations, and this Court subsequently fell into the error
that the admiralty jurisdiction of the district courts was limited
by the commercial power of the Constitution, and decided in two
cases that an affreightment contract for the transportation of
goods from one port in a state to another port in the same state,
or that a contract for necessary repairs and supplies furnished to
a vessel in such a trade, is not within the admiralty jurisdiction
of the federal courts. [
Footnote
2/6]
Such an error was too palpable not to attract the attention of
the court as soon as a case was presented involving the same
question, and two or three years later, such a question was
presented in the form of a libel for a collision, and the court
unanimously decided that the admiralty jurisdiction was conferred
by the Constitution; that in cases of tort, the question is wholly
unaffected by the consideration that the ship was not engaged in
foreign commerce or in commerce between the states; that the
jurisdiction, whether the cause of action is contract or tort, does
not depend on the regulations of commerce; that the two matters of
jurisdiction are entirely distinct things, and that they were
conferred by separate and distinct grants; that locality is the
test of jurisdiction in cases of tort, and that consequently if the
wrongful act is done on navigable waters, the case is one properly
cognizable in the admiralty courts. [
Footnote 2/7]
Attention was again called to those two cases in an
affreightment suit, when they were both distinctly overruled
without hesitation, and the whole court decided that contracts,
claims, or service purely maritime and touching
Page 88 U. S. 588
rights and duties appertaining to commerce and navigation, are
of admiralty cognizance and properly cognizable in the district
courts. [
Footnote 2/8]
Pending these difficulties and before the Supreme Court decided
that the Judiciary Act extended the admiralty jurisdiction over all
our navigable waters, the restriction that it did not extend to
voyages from a port in one state to another port in the same state
had become incorporated into the Act of Congress passed professedly
to extend such jurisdiction to the great lakes and the rivers
connected with the same; but the Supreme Court, in view of the
constant and perplexing embarrassment growing out of that
restriction, did not hesitate to decide that the Act of Congress in
that regard had become obsolete and inoperative, and that the
admiralty jurisdiction created by the Constitution and conferred by
the Judiciary Act was the same everywhere within the United States,
and that every distinction between tidewaters and other navigable
waters was in that regard obliterated and overruled. [
Footnote 2/9]
Erroneous theories also became prevalent in certain quarters in
respect to the true nature of the liability of the owners of ships
and vessels for necessary repairs and supplies furnished to the
master on the credit of the ship, that the burden of proof was in
all cases upon the merchant to show both that the ship needed such
necessaries and that the master was justified in resorting to the
credit of the vessel. Decrees to that effect were rendered in the
circuit courts, but on appeal to this Court, the error was
corrected and the true rule applied in the case. [
Footnote 2/10]
Where it appears that the repairs and supplies are necessary to
enable the ship to proceed on her voyage the presumption is, if
they are furnished in good faith, that the ship as well as the
master and owner is responsible to those who supplied such
necessaries, unless it appears that the master had funds which he
ought to have applied to those
Page 88 U. S. 589
objects, and that the furnishers knew or ought to have known
those facts. [
Footnote 2/11]
Sufficient has been remarked to show that the several decisions
referred to had the effect to remove every stumbling block in the
way of the full legitimate exercise of admiralty jurisdiction
except two -- the one arising from the long acquiescence of the
legal profession in the opinion that the admiralty courts could not
take cognizance of suits founded upon marine policies of insurance,
and the other growing out of an early decision of this Court which
it is supposed prohibits the admiralty courts from taking
jurisdiction of a libel
in rem filed by a materialman to
enforce a contract for necessary repairs and supplies furnished to
a ship in her home port.
Happily the first of the two obstructions mentioned is removed
by a more recent decision of this Court, and it is much to be
regretted that the majority of this Court have decided not to
remove the other until they "have" a more "convenient season" to
accomplish that great purpose. [
Footnote 2/12]
Promptitude in correcting such an error, when it is discovered,
is very desirable, as the longer it is suffered to prevail the
greater is the danger that the correction will impair vested
rights. Justice is slow but sure, and it is not doubted that sooner
or later the correction will come, as the rule of decision which
prohibits the exercise of jurisdiction in such a case is manifestly
founded in mistake.
Enough of the facts of the case appear in the statement of them
already given, [
Footnote 2/13]
without reproducing the details of the evidence. Suffice it to say
that the controversy has respect to the balance of a fund in the
registry of the district court, derived from the sale of a steamer
seized and sold for the payment of seamen's wages. Both parties in
this Court were intervenors in the district court. Appellants claim
what remains of the proceeds of the sale as mortgagees by virtue of
a mortgage of the steamer executed to
Page 88 U. S. 590
them by the owner. On the other hand the appellees make claim to
the same by virtue of the lien which they insist they have for
repairs and necessary supplies furnished to the master on the
credit of the vessel. Proofs were taken and the parties heard, and
the district court ultimately determined that the mortgagees were
entitled to the balance of the fund. Due appeal was taken by the
intervenors who furnished the repairs and supplies, to the circuit
court, where the parties were again heard, and the circuit court
reversed the decree of the district court and entered a decree in
favor of the intervenors who furnished the repairs and supplies.
Prompt appeal was taken by the intervening mortgagees to this Court
from that decree.
Two errors are assigned, in substance and effect as follows:
(1) That the circuit court erred in giving effect to the new
twelfth admiralty rule, which had not been adopted when the libels
of intervention were filed.
(2) That the circuit court erred in awarding the fund to the
materialmen, as it is not shown that such creditors have any
privilege by the laws of the state.
Contracts or claims for service or damage purely maritime and
touching rights and duties appertaining to commerce and navigation
are cognizable in the admiralty. Whenever a maritime lien arises in
such a contract or claim, as in controversies respecting repairs
made or supplies furnished to a ship, or in case of collision, the
libellant may pursue his remedy, whether it be for a breach of a
maritime contract or for a marine tort, by a suit
in rem
against the vessel, or by a suit
in personam against the
master and owner in cases where they are jointly liable for the
alleged default. By the civil law, a lien upon the ship is given,
without any express contract, to those who repair the vessel or
furnish her with necessary supplies, whether the vessel was at her
home port or abroad when the repairs and supplies were made and
furnished. [
Footnote 2/14]
Page 88 U. S. 591
Every man, says Abbott, [
Footnote
2/15] who had repaired or fitted out a ship, or lent money to
be employed in those services, had by the law of Rome, and still
possesses in those nations which have adopted the civil law as the
basis of their jurisprudence, a privilege or right of payment in
preference to other creditors upon the value of the ship itself
without any instrument of hypothecation, or any express contract,
or agreement, subjecting the ship to such a claim.
"
Qui in navem exstruendam vel instruendam credidit vel etiam
emendam privilegium habet. [
Footnote 2/16] . . .
Quod quis navis fabricandae
vel emendae, vel armendae, vel instruendae causa, vel quoquo modo
crediderit vel ob navem venditam petat, habet privilegium post
fiscum. [
Footnote 2/17]"
Wherever a maritime lien exists, it gives a claim upon the ship
a
jus ad rem to be carried into effect by legal process,
and the claim travels with the ship into whosesoever possession she
may come, and is enforced in the court of admiralty by a proceeding
in rem. [
Footnote
2/18]
Beyond all doubt such is the rule of the civil law, but the only
lien recognized by the common law in such cases, independent of
statutory regulations, is the possessory lien which arises out of,
and is dependent upon, the possession of the ship, as in cases
where goods are delivered to an artisan or tradesman to be
manufactured or repaired. Such a lien, as understood at common law,
did not attach unless the ship was in the possession of the person
who set up the claim, and the extent of the privilege which it
conferred was that he might retain the ship in his possession until
he was paid the money due him for the repairs made or the supplies
furnished.
Undisputed matters need not be discussed; consequently it may be
assumed that a contract for necessary repairs or supplies is a
maritime contract, whether the vessel was at
Page 88 U. S. 592
home or abroad when the repairs and supplies were made and
furnished; and it may also be assumed that neither a contract for
building a ship nor to furnish the materials for the construction
of the same is a maritime contract, because such contracts are not
directly connected with maritime commerce. They are contracts made
on land and are to be performed on land. Contractors of the kind
collect their materials very largely from the forests and the
mines, and until the ship is launched there is no necessary
connection between the subject matter of the contract and her
subsequent employment as a vehicle of commerce and navigation.
[
Footnote 2/19]
Repairs and supplies were furnished by the intervening appellees
to the steamer in her home port, and they claim that they have a
lien upon the balance of the fund in the registry of the court for
the payment of their demand, which is resisted by the appellants
chiefly upon two grounds:
(1) They deny that any maritime lien arises in such a case.
(2) Because, as they contend, they, the appellants, have a
superior claim to what remains of the fund by virtue of the
mortgage of the steamer executed to them by the owner.
Support to the first proposition is chiefly drawn from a
decision of this Court, which it is supposed establishes that rule
of decision. [
Footnote 2/20]
Claims of the kind, the Court admits in that case, give rise to a
maritime lien where the repairs or supplies are furnished to a
foreign ship or to a ship in a port of a state to which the ship
does not belong, and that the general maritime law, following the
civil law, gives the party a lien on the ship itself for his
security, and that he may well maintain a suit
in rem in
the admiralty to enforce his right. All the authorities, ancient
and modern, admit that proposition, but the court proceed to say
that, in respect to repairs and necessaries in the port or state to
which the ship belongs, the case is governed altogether by the
municipal
Page 88 U. S. 593
law of that state, and that no lien is implied
unless it is
recognized by that law. Taken as a whole the opinion in that
case is more unsatisfactory than anyone ever given in a commercial
case by that learned judge. It is unaccountable, says a
distinguished jurist, that Judge Story in delivering the opinion of
the court on a question so interesting and pregnant, should have
done so little. He gives but one page to the entire opinion, cites
no authorities, and treats the subject in a slight and
unsatisfactory manner. [
Footnote
2/21] Other judges have attempted to give the reason for the
distinction set up in that case between the remedy given to a party
who furnishes necessary repairs and supplies to a ship in the port
of a state other than that to which she belongs and the remedy
given to the party who furnishes like necessaries to a domestic
ship. Those reasons are frankly stated by the late Chief Justice
Taney in endeavoring to vindicate the action of the court in
denying the process
in rem to a party who had furnished
such necessaries to a domestic ship in a state where the state law
made such claims a lien upon the vessel. His view is that the
Supreme Court, being invested with the power to make rules, may in
its discretion grant or withhold the right to use the process
in rem as may seem best suited to promote the ends of
justice in such controversies; that the process
in rem is
granted to the party furnishing necessaries to a foreign ship or a
ship in the port of a state to which she does not belong because
"the supplies," in such a case, "are presumed to be furnished on
the credit of the vessel," and that the process
in rem is
denied to the party who furnishes such necessaries to the domestic
ship because it is presumed that they were "furnished on the
personal credit of the owner or master." [
Footnote 2/22]
Sometimes it is said that the process is granted in the former
case because the presumption is that the owner is absent, and that
it is denied in the latter case because the presumption is that the
owner is present, which is but another mode of stating the same
rule of decision. Unless
Page 88 U. S. 594
the credit is given to the ship, the true rule is that there is
no maritime lien in either case, and if the credit is given to the
ship, reason and sound policy dictate that the party furnishing the
necessary repairs and supplies to the domestic ship should be
allowed to proceed against the ship as well as the party who
afforded similar relief to the foreign ship or to the ship of a
state to which she did not belong.
Examples almost without number may be given to illustrate the
impolicy, injustice, and absurdity of a rule of decision founded on
such a distinction. Suppose a vessel whose home port is York,
Maine, all of whose owners except one reside in Portsmouth, N.H.,
nine miles distant. Well manned and equipped, the vessel starts on
a voyage for St. Johns, but meeting with rough weather and
receiving damage, she puts into Eastport, four hundred miles
distant from her home port, for repairs and supplies. Materialmen
there, under the supposed rule of decision, would have no maritime
lien upon the ship, and the master being unknown there and without
credit, the necessary repairs and supplies could not be procured,
although the presumption of law is that the owners in such a case
are present, because the port of Eastport is in the state to which
the ship belongs. Unable to find relief there for the want of
credit, the ship being only crippled and not entirely disabled, may
possibly be able to return, and suppose the master decides to make
the attempt, and that the ship arrives in safety off the port of
Portsmouth, and puts in there for the relief she vainly sought in
her first port of refuge, it may now be assumed that she will meet
with no difficulty at that port in obtaining credit, as the
materialmen there will have a lien upon the ship, because the legal
presumption is that the owners are absent, though they all reside
there except one, whose residence is only nine miles distant.
Apply these suggestions to the different localities of
navigation, and it will be easy to see that such rules of decision
must lead to unparalleled mischiefs and perplexities. Commerce
requires more sensible rules of decision, and those whose interests
are embarked in such perilous pursuits are
Page 88 U. S. 595
entitled to better protection than such rules of decision
afford.
Executory contracts for repairs and supplies to a domestic ship
it is admitted, are as much within the jurisdiction of the
admiralty court as one for similar necessaries furnished to a
foreign ship or to the ship of a state other than that to which the
ship belongs, but the argument of the opinion under consideration
is that the party in the case of the domestic ship must seek his
remedy against the person and not against the vessel. What Judge
Story's reasons were for his conclusion does not appear, as he gave
none, but it is safe to conclude, in the absence of such, that the
best which exist are those given by the organ of the court in the
case last cited. [
Footnote 2/23]
He expressly conceded that the contract was a maritime contract,
and placed the vindication of the prior decision upon the ground
that the process
in rem given for repairs and supplies to
a domestic vessel by the court of admiralty, in those countries
where the principles of the civil law prevail, is no part of the
general maritime code, and he insists that it is obvious that the
court in the prior case based the decision upon the ground that the
laws of those countries are local laws. Here, then, all interested
in the question may see the fatal error pervading those decisions,
which is, that the rule of decision embodied in the several
maritime codes are mere local laws, each of the particular country
where the code was framed and ordained.
Unless the principles embodied in the ordinances, treatises, sea
laws, digests, and codes adopted by the countries where the civil
law prevails, constitute, to the extent that they concur in the
rule of decision, the general maritime code as known in judicial
investigation, it is difficult even to imagine what does, as it is
known to every legal reader of judicial history that those
countries never convened, as in a congress of nations, and ordained
a system of maritime regulations which can properly be regarded as
the standard authority upon that subject.
Page 88 U. S. 596
Such a maritime code as that referred to, in that opinion, does
not exist, and if not, and all the codes of the respective
countries which adopt the civil law are to be regarded as mere
local laws, the inquiry arises, from what source came the rule of
decision that the district courts as courts of admiralty have
jurisdiction over contracts for repairs and supplies furnished to a
foreign ship or to the ship of a state to which the ship does not
belong, or over contracts of affreightment. Certainly the rule of
decision was not derived from the jurisprudence of the parent
country as administered at the period of the Revolution, as the
prohibition of the common law courts had, long before that event,
compelled the admiralty to relinquish all claim to the exercise of
such jurisdiction.
Support to such a claim of jurisdiction could not be drawn from
that source, and if not, and the civil law codes are to be regarded
as mere local laws, it is impossible to see, if the views of the
appellants are correct, that the admiralty has no jurisdiction over
contracts for repairs and supplies to domestic ships, from what
source the rule of decision was derived that the words "all cases
of admiralty and maritime jurisdiction" include jurisdiction over
contracts for repairs and supplies even to a foreign ship or to the
ship of a state to which the ship does not belong, as no such
jurisdiction was exercised by the admiralty court of the parent
country at the time of the separation.
Two suggestions may be made in response to that argument:
1. That the words of the Constitution may refer to the admiralty
jurisdiction of the parent country before it had been narrowed by
the unfriendly prohibitions of the common law courts.
Admit that, but then it follows beyond peradventure that the
same rule of decision which construes the words of the Constitution
conferring admiralty power as including jurisdiction over contracts
for repairs and supplies to foreign ships, must lead to the same
conclusion in respect to contracts and supplies furnished to
domestic ships, as the ancient
Page 88 U. S. 597
jurisdiction of the admiralty courts of the parent country
extended to such contracts, whether the repairs and supplies were
furnished to foreign or domestic ships. By the civil law, everyone
who repaired or supplied a ship had a privilege or lien upon the
ship herself for the amount of the debt thus contracted, and for
centuries the admiralty courts of that country exercised such
jurisdiction, in respect to which the best text writers say that
the lien or privilege extended to all ships and vessels, without
any distinction between foreign and domestic ships. [
Footnote 2/24]
Indeed it is not easy to see, says Benedict, how any difference
can exist in principle; if one is a ship or vessel, so is the
other; if one is a maritime contract, so must be the other; and the
same law and the same reason which give the rule in the one case
give it in the other. In both it is for service, labor, materials,
and supplies furnished, which, when used for the purpose, become a
part of the vessel, and a lien attaches to her because the repairs
and supplies were for her benefit, which is just as true of a
domestic ship as of a foreign ship. [
Footnote 2/25]
By the civil law and the general maritime law, says Parsons, the
lien or privilege extends to all ships, without any distinction
between foreign and domestic vessels, and he asserts that the
admiralty courts of the parent country exercised that jurisdiction
until they were compelled to abandon it by the prohibitions of the
common law courts, for which there is the highest authority.
Furnishers of repairs and supplies, says Lord Stowell, in most
of the countries governed by the civil law have a lien on the ship
itself, and in our country the same doctrine had for a long time
been held by the maritime courts, but after a long contest it was
finally overthrown by the courts of common law and by the highest
judicatory of the country. [
Footnote
2/26]
Argument to show that a contract to furnish repairs and
Page 88 U. S. 598
supplies, whether to a domestic or foreign ship, is a maritime
contract is hardly necessary, as there is not a well considered
decision to the contrary in our language, and the twelfth admiralty
rule, throughout all its mutations, from the time it was first
adopted to the present time, has always given the district courts
jurisdiction over such contracts either
in rem or
in
personam. Both the enemies and the friends of the admiralty
have always concurred in that proposition, which leaves nothing in
controversy in this case except the question whether a maritime
lien arises where the contract is to furnish repairs and supplies
for a domestic ship, as it must be conceded that wherever there is
a maritime lien, it may be enforced in the admiralty.
Maritime liens differ from common law liens in important
particulars, as common law liens are always connected with the
possession of the thing, and are lost when the possession is
relinquished. On the other hand, a maritime lien does not in any
manner depend upon the possession, as it is a right affecting the
thing itself which gives a proprietary interest in it and a right
to proceed against it to recover that interest. Jurisdiction exists
in the admiralty in all such cases, and the rule is that wherever
there is a maritime lien upon the property, it adheres to the
proceeds in case of sale and follows the same into whose hands
soever they may go, and the proceeds under such circumstances may
be attached in the admiralty. Jurists and civil law writers
frequently call it a privilege, and it is well settled that the
proceeding
in rem in the admiralty is the only proper
process to enforce such an interest.
Usually a maritime lien is the proper foundation of a proceeding
in rem, as such process is seldom or never appropriate for
any purpose except to enforce the inchoate interest created by such
a lien, and the law appears to be well settled that where a
proceeding
in rem is the proper pleading there, a maritime
lien exists in the thing which it is the office of such a process
or pleading to perfect. [
Footnote
2/27]
Page 88 U. S. 599
Successful contradiction of the proposition that the party
furnishing repairs and supplies to a domestic ship, as well as he
who furnished such repairs and supplies to a foreign ship, had a
lien upon the ship by the ancient admiralty law of the parent
country cannot be made, as the judicial history of that country is
full of evidence to establish the affirmative of the proposition in
its full length and breadth. [
Footnote 2/28] Admitted or not, the proposition is
established, and it would seem to follow that if it was that
practice which led the Supreme Court to the conclusion that the
words "all cases of admiralty and maritime jurisdiction" must
include contracts for repairs and supplies furnished to foreign
ships, that the same practice should induce the court to hold that
the same words also include repairs and supplies furnished to
domestic ships, inasmuch as that ruling will correspond as well
with the civil law and the general maritime law, as with the
ancient practice of the admiralty court of the parent country.
2. All agree that the framers of the Constitution, when they
employed the words "all cases of admiralty and maritime
jurisdiction," must have had in view some system of maritime
jurisprudence, and those who deny that the reference was to the
general maritime regulations of the commercial world usually insist
either that the reference was to the English system as known at the
date of the Revolution or to the system and practice known in the
states prior to the adoption of the federal Constitution.
Much discussion at this day to refute the theory that it was the
crippled and servile system of the parent country as it existed at
the dawn of our independence is quite unnecessary, as the reports
of the decisions of the Supreme Court are interspersed throughout
with cases in which that theory is denied and overruled. None, it
is believed, will
Page 88 U. S. 600
now deny that the better source of reference in expounding that
part of the Constitution, in order to ascertain the extent and
boundaries of the admiralty jurisdiction, is to the system and
practice in that regard of the admiralty courts during colonial
times and before the federal Constitution was ratified.
Still the same conclusion must follow as if the question was
tested by the system and practice of the admiralty courts of the
parent country as it existed before the essential features of that
system were annulled and overthrown by the prohibitions of the
courts of common law, for the reason that the history of that
period shows to a demonstration that the admiralty courts,
organized in the Colonies prior to the Revolution, claimed and
exercised such jurisdiction over contracts for repairs and supplies
furnished to domestic ships as well as over contracts to furnish
such necessaries to foreign ships.
Matters of admiralty cognizance were in most cases reserved to
the Crown in the colonial charters, but the first charter granted
to the colony of Massachusetts Bay contained no such reservation.
Consequently jurisdiction of such matters was exercised in that
colony under that charter by a Court of Assistants organized by the
colony, whose powers and functions were prescribed and regulated by
a colonial ordinance, the last article of which ordained that
"All cases of admiralty shall be heard and determined by the
Court of Assistants without a jury unless the court shall see cause
to the contrary, provided always that this act shall not be
interpreted to obstruct the just plea of any mariner or merchant,
impleading any person in any other court upon any matter or cause
that depends upon contract, covenant, or other matter of common
equity in maritime affairs. [
Footnote
2/29]"
Without any explanation, it is apparent from the words of the
ordinance that it vests in the court thereby created full
jurisdiction over all maritime cases of contract, covenant, or
other matters of equity, reserving to the suitor the right to
Page 88 U. S. 601
choose a common law remedy in cases where the common law is
competent to give it. Eighteen years later, the charter was granted
to the Province of Massachusetts Bay, and by that charter all such
jurisdiction, power, and authority were reserved to the Crown, to
be exercised by virtue of commissions issued under the great seal.
Commissions of the kind issued to the judges of the provincial
admiralty courts have been published, and they prove that those
courts were vested with jurisdiction over all maritime causes and
cases in the most unqualified terms. [
Footnote 2/30]
Two volumes of the proceedings of those courts in colonial times
have recently been found among the papers of a registrar of the
court and deposited in a public library in the City of Boston,
which are full of instruction on the subject. Libels for
contribution are there found both
in rem and
in
personam, and libels on charter parties and on contracts of
affreightment, and libels by materialmen, both
in rem and
in personam, for repairs and supplies furnished in the
home port, showing conclusively that the jurisdiction of those
courts extended to all cases of admiralty and maritime jurisdiction
as understood for centuries in the parent country until the power
of the admiralty court was paralyzed by the prohibitions of the
courts of common law. [
Footnote
2/31]
Throughout many years of our judicial history, it was a vexed
question whether the district courts could exercise jurisdiction in
cases founded upon marine policies of insurance, and all agree that
the discovery of those volumes containing the proceedings of the
colonial admiralty courts contributed very much to the true
solution of that question. Authentic proof is there exhibited that
the colonial admiralty courts exercised jurisdiction in such cases,
and the proof is equally full and undeniable that those courts also
exercised jurisdiction
in rem in favor of materialmen to
enforce the payment of their claims for repairs and supplies
furnished to domestic ships.
Page 88 U. S. 602
Creditors of the kind have suffered very severely for nearly
twenty years, and it seems cruel to deny them all means of
proceeding against the ship when every proctor knows that it is the
only remedy they ever had which is of much value.
Suggestion is sometimes made that the court may restore the old
twelfth rule and give the district courts authority in such cases
to enforce the state law lien by a proceeding
in rem. Such
an expedient was tried for many years, and it seems to me that the
experience of that trial, as given by the late Chief Justice Taney,
ought to deter any well wisher of the federal system from any
attempt to reestablish a practice which so signally failed in the
former trial.
Necessaries, whether for repairs or supplies, are usually
ordered by the master, and the best text writers say that his
authority is sufficient to cover all such repairs and the supply of
such provisions and other things as are necessary to the due
employment of the ship, and that it extends even to the borrowing
of money in the absence of the owner, if ready money is required
for the purpose of the same employment. [
Footnote 2/32]
Frequent credit is indispensable in cases of emergency, and all
experience shows that in many cases it cannot be obtained unless
the merchant, provision-dealer, materialman, or ship chandler is
allowed a lien on the ship which may be enforced by a libel
in
rem, as the master and owner are often of too doubtful
responsibility and too frequently become insolvent to enable the
master to procure such necessaries without other security. State
lien laws are too complicated and pregnant with too many conditions
and special regulations in their machinery to be administered in a
court of admiralty, even if it be competent for this Court to
provide for the exercise of such a jurisdiction by a district court
sitting as a court of admiralty.
Authority to make rules, it is conceded, is vested in this
Page 88 U. S. 603
Court, and it may be that such a rule might not be productive of
very serious embarrassment if the state lien laws were permanent
laws and gave the lien in general terms, without specific
conditions or limitations inconsistent with the rules and
principles of the maritime lien. But the state lien laws, even in
such a case, were enforced under the old twelfth rule, not as a
right which the admiralty court was bound to carry into execution
upon the application of the libellant. On the contrary, those who
framed the rule always regarded it in the light of a lien
established by a foreign country which the admiralty court might at
its discretion enforce under that rule in cases where it did not
involve controversies beyond the limits of admiralty jurisdiction.
[
Footnote 2/33]
Process
in rem was authorized by that rule upon the
ground that the local laws gave the lien where none was given of a
maritime character, and the court in that case proceeded to say
that the practice was found to be inconvenient in most cases and
absolutely impracticable in others, which induced the court to
repeal the rule. Different expedients have since been tried, as
appears from the various modifications to which that rule has been
subjected, and now it is suggested that it may become advisable to
return to the practice which the justices who framed that rule
found it necessary to abandon
"as entirely alien to the purposes for which the admiralty power
was created, and decided that it formed no part of the code of laws
which the admiralty was established to administer."
Before doing so, it may be wise to weigh the reasons given by
the justices who framed that rule as the grounds for its
abandonment.
In many of the states, said the Court, the laws were found not
to harmonize with the principles and rules of the maritime code.
Certain conditions and forms of proceeding were required to obtain
the lien, and it was generally declared to be forfeited or regarded
as waived after the lapse of a certain time, or upon some future
contingency. These
Page 88 U. S. 604
conditions and limitations differed in different states, and if
the process is to be used wherever the local law gives the lien, it
will subject the admiralty court to the necessity of examining and
expounding the lien laws of every state and of carrying the same
into execution, and that too in controversies where the existence
of the lien is denied and the right depends altogether on a
disputed construction of a state statute, or indeed, in some cases,
of conflicting claims under the statutes of different states, as
when the vessel formerly belonged to the port of another state
where she also became subject to a state law lien. Cases also arise
where a third party claims a lien prior and superior to that of the
libellant under the provisions of a statute of another state, and
where such a controversy arises, say the court, in such a
proceeding
in rem, the admiralty court clearly has no
power to decide or to adjust the prior claims in dispute, and
consequently would be compelled to abandon the contest and recall
its process whenever the controversy assumed that shape.
Reasons such as those given by the court in that case certainly
deserve mature consideration, and it will be sufficient to refer to
the lien laws of two or three of the states to show that the
picture there portrayed is not overdrawn.
Work done or material furnished for or towards the building,
repairing, fitting, furnishing, or equipping ships or vessels
constitutes, by the law of the state of New Jersey, a lien upon the
ship or vessel, her tackle, apparel, or furniture, and the
provision is that the lien shall continue for nine months after the
debt is contracted, and that it shall be preferred to all other
liens except mariners' wages. [
Footnote 2/34] Means are also provided in the same act
to enforce such a lien if the debt amounts to the sum of twenty
dollars. Application in writing must be made by the creditor to one
of the magistrates named in the act for a warrant to enforce the
lien and to collect the amount, but if the application is drawn in
due form the officer or magistrate to whom the same is
addressed
Page 88 U. S. 605
is required to issue his warrant to the sheriff, or other proper
officer, commanding him to attach, seize, and safely keep the ship
or vessel, to be disposed of as directed in the same act. He must
also make return of his doings in the premises within ten days to
the officer who issued the warrant, and make out, subscribe and
annex thereto a just and true inventory of all the property so
seized, to be signed by him and annexed to his return.
Important duties are also imposed upon the officer who issued
the warrant. He must direct that a notice containing certain
prescribed requisites shall be published in one or more of the
newspapers printed in the county in order that any other person
having such a lien upon the ship or vessel may deliver to the said
officer an account in writing of his demand, accompanied by the
prescribed affidavits and proofs, and the act provides that every
such person shall be deemed an attaching creditor and shall be
entitled to the same benefits and advantage and be subject to the
same responsibilities and obligations as the creditor who made the
first application, and the further provision is that liens not so
presented and verified shall be deemed inoperative and cease.
Massachusetts has also passed laws to accomplish the same
general purpose, which in effect give a lien on the ship to the
materialman who, in that state, has furnished labor or labor and
materials, or provisions, or stores, for or on account of such
ship, to secure the payment of such debt, the lien to continue
until the debt is satisfied, unless it be dissolved, as it may be
if the creditor does not within four days from the time the ship
departs from the port file in the clerk's office of the city or
town a statement, subscribed and sworn to as prescribed giving a
just and true account of his demand, with all just credits and the
other particulars therein required. Provision is also made for the
enforcement of the lien by petition to the superior court of the
county where the vessel was when the debt was contracted, and the
mode of proceeding prescribed is that the petition may be entered
in court or filed in vacation, in the clerk's
Page 88 U. S. 606
office, or may be inserted in a writ of original summons, with
an order of attachment, and be served, returned, and entered as
other civil actions, and that the subsequent proceedings for
enforcing the lien shall, except as therein further provided, be as
prescribed in the act for enforcing liens on buildings and land.
[
Footnote 2/35]
Any number of persons having such liens upon the same ship may
join in the same petition to enforce the same, and the same
proceedings shall be had in regard to the respective rights of each
petitioner, and the claims of all shall be marshaled to prevent a
double lien for the same labor, materials, stores, or provisions,
and to secure the just rights of all. Proper costs and expenses are
to be deducted from the proceeds, and the residue is to be
distributed among the several claimants, paying them in full or
pro rata as circumstances may require.
Laws to the same end have been passed by the Legislature of New
York. Debts contracted within that state, to the amount of fifty
dollars, by the master, owner, charterers, builder, or consignee of
any sea-going or ocean-bound ship, on account of work done or
materials or other articles furnished towards the building,
repairing, fitting, furnishing, or equipping such a ship are made a
lien upon the ship, her tackle, apparel, and furniture in
preference to all other liens except mariners' wages. Provisions
and stores furnished, wharfage and the expense of keeping the ship
in port, and services in loading and unloading the ship, and debts
for towing or piloting, of the amount of twenty-five dollars, are
also included in the same category and are entitled to the same
lien.
Detailed means are also provided for enforcing the lien, whether
the repairs and supplies are to ocean-bound ships or smaller
vessels. Liens of the kind cease at the expiration of six months
after the debt was contracted unless the ship was absent from the
port when the six months expired, in which case the provision is
that the lien shall continue ten
Page 88 U. S. 607
days after the ship shall next return to the port, subject,
however, to the condition that the debt shall cease to be a lien
whenever the ship shall leave the port unless the creditor shall,
within twelve days after her departure, cause to be drawn up and
filed specifications of such lien as therein provided, with a
statement under oath of the amount claimed to be due, and file the
same specification in the office of the clerk of the county or
city, as therein more fully set forth.
Compliance with these requisites being shown, the creditor may
apply to a justice of the supreme court at chambers in the proper
county for a warrant to enforce the lien and to collect the amount.
All the various steps required to be taken to enforce the lien and
to collect the debt are then prescribed, every one of which is
"alien to the purposes for which the admiralty power was created,
and forms no part of the code of laws which it was established to
administer." [
Footnote 2/36]
Separate examination of the different features of these several
enactments will not be attempted; nor is it necessary, as it is
manifest that anyone at all acquainted with the practice in suits
in rem will see at a glance that the admiralty courts as
now organized are utterly incompetent to execute such conditions
and regulations. Alterations, it is said, may be made in the
organization of the district courts to obviate that difficulty, but
the incompetency of those courts to administer such regulations
under existing laws is by no means the only objection to such an
experiment, as it may well be doubted whether this Court, in view
of the great number of such enactments and the frequent changes to
which the enactment of each state is annually exposed, will be able
to perform all the duties which the adoption of such a system would
impose, without leaving unperformed many of the high purposes
contemplated by the Constitution and the original Judiciary
Act.
These several conclusions render it unnecessary to give much
examination to the other objections urged by the appellees to the
pretensions of the appellants, that they are
Page 88 U. S. 608
entitled to the balance of the fund in the registry of the court
by virtue of their mortgage, which has never been formally
foreclosed. They are mortgagees, and inasmuch as their mortgage has
never been foreclosed and their claim is opposed by the owner of
the steamer, I am of the opinion that the district court sitting as
a court of admiralty had no jurisdiction of the cause of action,
and that the decree of the circuit court reversing the decree of
the district court is correct. [
Footnote 2/37]
Even suppose that difficulty may be obviated, which is denied,
still the governing rule of decision remains that the appellees as
materialmen have a superior lien by virtue of the maritime law.
Clearly that would be so in any commercial country in the world
except England, unless our own country must be included in that
category. Commentators everywhere agree that by the civil law and
the law of those countries which have adopted its principles, a
lien upon the ship is given without any express contract, to those
who repair her or furnish her with necessaries, either at home or
abroad. [
Footnote 2/38]
Sufficient has been remarked to show that the jurisdiction of
the district courts is not limited to the particular subjects over
which the admiralty courts of the parent country exercised
jurisdiction when the colonists immigrated here and formed
themselves into new communities, and it may be admitted that it
does not extend to all cases which would fall within it according
to the civil law and the practices and usages of continental
Europe.
Our ancestors, when they immigrated here, organized themselves
into colonies and assumed and exercised all the powers of
government. They enacted new laws, and those in operation were in
many cases modified. Judicatories
Page 88 U. S. 609
were created and empowered to hear and determine legal
controversies, including all those of a maritime character, wholly
unrestricted by the prohibitions of the common law courts of the
country from which they had emigrated, and when in the progress of
events they found it necessary and proper to frame the federal
Constitution and saw fit to provide that the judicial power shall
extend to "all cases of admiralty and maritime jurisdiction," it
was to the admiralty jurisdiction as it was known and understood in
the states to which they referred.
Proofs of the highest character are now exhibited that the
admiralty courts of the states did exercise jurisdiction over
contracts for repairs and supplies furnished to domestic ships as
well as to foreign ships, and it follows, as it seems to me, that
the appellees in this case had a maritime lien upon the steamer and
that the same attaches to the proceeds in the registry of the court
below, and that the decree of the circuit court should be
affirmed.
MR. JUSTICE FIELD also dissented.
[
Footnote 2/1]
1.
23 U. S. 10 Wheat.
428.
[
Footnote 2/2]
Waring v.
Clarke, 5 How. 452.
[
Footnote 2/3]
The
Lexington, 6 How. 392.
[
Footnote 2/4]
The Genesee
Chief, 12 How. 454.
[
Footnote 2/5]
The
Magnolia, 20 How. 298;
Waring
v. Clarke, 5 How. 452;
The
Genesee Chief, 12 How. 454.
[
Footnote 2/6]
Allen v.
Newbury, 21 How. 245;
Maguire v.
Card, 21 How. 250.
[
Footnote 2/7]
The
Commerce, 1 Black 578.
[
Footnote 2/8]
The
Belfast, 7 Wall. 637.
[
Footnote 2/9]
The Eagle, 8
Wall. 20.
[
Footnote 2/10]
The Lulu,
10 Wall. 197;
The Grapeshot,
9 Wall. 129.
[
Footnote 2/11]
The
Kalorama, 10 Wall. 205;
The
Custer, 10 Wall. 215.
[
Footnote 2/12]
Insurance Company v.
Dunham, 11 Wall. 21.
[
Footnote 2/13]
Supra, pp.
88 U. S.
561-563 -- REP.
[
Footnote 2/14]
Williams & Bruce's Practice 154;
The John, 3
Robinson's Admiralty 288;
Hosmer v. Bell, 7 Moore's Privy
Council 24; 3 Kent, 12th ed. 168; 3
id. 169, note
a.
[
Footnote 2/15]
On Shipping 142.
[
Footnote 2/16]
Digest, L. 42, Tit. 5, l. 26.
[
Footnote 2/17]
id. L. 42, Tit. 5, l. 34; Code du Commerce, Art. 197;
French Code, Liv. 1, Tit. 12, Art. 3;
The Harrison, 2
Abbot's United States Reports 74;
Ex Parte Kirkland, 12
American Law Register, New Series, 301;
The Nestor, 1
Sumner 79.
[
Footnote 2/18]
Addison on Contracts (6th ed.) 273; 1 Wynn's Life of Leoline
Jenkins 76 to 99.
[
Footnote 2/19]
The
Jefferson, 20 How. 400;
Roach v.
Chapman, 22 How. 129;
Morewood v.
Enequist, 23 How. 494;
Young v. Ship
Orpheus, 2 Clifford 36;
Edwards v. Elliott, supra, p.
553.
[
Footnote 2/20]
The General
Smith, 4 Wheat. 443.
[
Footnote 2/21]
7 American Law Review 2.
[
Footnote 2/22]
The St.
Lawrence, 1 Black 527.
[
Footnote 2/23]
The St.
Lawrence, 1 Black 529.
[
Footnote 2/24]
The Nestor, 1 Sumner 79; 2 Parsons on Contracts, 6th
ed. 260.
[
Footnote 2/25]
Benedict (2d ed.), § 272; 2 Parsons on Shipping 322.
[
Footnote 2/26]
The Zodiac, 1 Haggard's Admiralty 325;
Rich v.
Coe, 2 Cowper 639;
Farmer v. Davies, 1 Term 109.
[
Footnote 2/27]
Harmer v. Bell, 7 Moore's Privy Council 284;
The Rock Island
Bridge, 6 Wall. 215.
[
Footnote 2/28]
The Neptune, 3 Haggard 142; 2 Life of Jenkins 746; 1
Parsons' Maritime Law 490;
Hoar v. Clement, 2 Shower 338;
Justin v. Ballam, 1 Salkeld 34;
Watkinson v.
Bernardiston, 2 Peere Williams 367;
Wilkins v.
Carmichael, 1 Douglas 105;
Ex Parte Shank, 1 Atkyns
234; 1 Parsons on Shipping 322.
[
Footnote 2/29]
Ancient Charters, App., p. 716.
[
Footnote 2/30]
Benedict's Admiralty, 2d ed., § 151; Stokes's Colonial History
166;
Waring v.
Clarke, 5 How. 454;
Insurance
Co. v. Dunham, 11 Wall. 1, 10 [argument of counsel
-- omitted].
[
Footnote 2/31]
Insurance Co. v.
Dunham, 11 Wall. 1, 10 [argument of counsel --
omitted].
[
Footnote 2/32]
Maclachlan on Shipping 129;
Beldon v. Campbell, 6
Exchequer 886; 1 Conkling's Admiralty 73.
[
Footnote 2/33]
The St.
Lawrence, 1 Black 522.
[
Footnote 2/34]
Sessions Acts, 1857, p. 382.
[
Footnote 2/35]
General Statutes of Massachusetts 768.
[
Footnote 2/36]
4 Stat. at Large New York 653.
[
Footnote 2/37]
Schuchardt v. Ship
Angelique, 19 How. 241;
The
John Jay, 17 How. 401;
The Neptune, 3
Haggard 132;
The Dowthorpe, 2 W.Robinson 73;
The
Sailor Prince, 1 Benedict 461.
[
Footnote 2/38]
Maude & Pollock on Shipping 67; 1 Valin 363, 369; Ordonnance
de la Mer, Title 2, Art. 1; Cleirac Jur. de la Mer 351, Art. 6;
Casaregis Dis. 18; 2 Brown's Civil and Admiralty Law 142; Roccus de
Nav. et Nat. 82, 91-93.