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sel's next employment may be. The reasons of policy respecting aid given to a vessel in itinere, or in stranger ports, to enable her to do her work, giving her what has been called her viaticum, do not apply, at least in their full force, at the “ home port.” The Roman law made no distinction, as to the home port, as respects the lien for supplies and repairs, acting upon the general rule of policy favoring the employment of vessels and the security of laborers, as does much of our state legislation in respect to the work and materials of mechanics upon houses as well as ships. In England, nothing seems to have followed from that distinction. The maritime law did not make it. The common law in its war upon the admiralty did not rest upon it. The position of the common-law courts was, as we have said, that all transactions occurring within the realm were to be adjudged by the common law, in distinction from the general maritime law, utterly irrespective of the domicile or the national character of the owner or of the vessel. And now it is only by force of acts of Parliament that the common law has exclusive jurisdiction over all such transactions, if any owner or part owner is domiciled within the realm, while the admiralty jurisprudence applies in all other cases. In the United States, a good deal has been said by jurists, and some things decided by judges, based on the distinction between home ports and stranger ports. Yet it is not easy to see upon what system of jurisprudence, as matter of precedent, these dicta and decisions have rested. They seem to have been a kind of home production. It was early said, on what authority we cannot see, that, in respect to marítime liens, the home port embraced the entire territory of the state, and that it did not embrace that of the republic. The reason for a distinction as to home ports does not warrant any such rule. There is no legislative authority for it, and no distinct original precedents. As respects “ admiralty and maritime causes,” the republic is a unit, whether we regard the jurisdiction of the courts or the jurisprudence they are to apply, and the geographical lines of states are ignored. As respects legislation over commerce, and all navigation laws, the republic is a unit, and the legislative authority is either actually or potentially exclusive in Congress. If our courts wished to treat as domestic all transactions within a political government, irrespective of the home port, the political geography of the transactions should have been that
of the republic, and not that of the state; and so the jurisprudence to be applied to them would have been the maritime law of the republic, if the transactions were maritime, and that of the particular state, if they were not; but that has not been our theory. In The General Smith, the transaction was held to be maritime, and consequently within the jurisdiction of the admiralty courts of the republic, and yet the jurisprudence to be applied to it was not to be the admiralty jurisprudence of the republic, but the statute or customary law of the state. This does not seem to have rested upon any of the reasons drawn from the fact of a home port, but upon reasons of political geography and sovereign jurisdiction. That is, there being no interests outside of the state concerned, the state was held entitled to have its own law applied. Yet an admiralty lien for wharfage and dockage at the home port is sustained. St. Jago de Cuba, Kate Tremaine,? De Soto 3 (Waring v. Clark). But ever since The General Smith, and we were tending that way before, we have united, if it were not disrespectful we might say confounded, the doctrine and the reasons drawn from an actual home port with the political doctrine of state sovereignty. The product of this combination has been that we have treated the whole state as a home port, and all places beyond its geographical line as foreign or stranger ports, and the territoriality of the republic and its maritime jurisprudence have been ignored in all cases of supplies or repairs furnished to a vessel in any port of a state in which the owner or the managing owner resides. Yet Mr. Justice Johnson, in The St. Jago de Cuba,4 says, 6. The home port of a vessel ... has no necessary reference to state or other limits.” Nor has it, as far as concerns any of the reasons which should determine the existence or non-existence of the lien. It is preposterous to say that a ship lying at a slip in New York City, opposite the windows of her owner's counting-house, is a foreign ship, if his dwelling-house is across the North River, at Hoboken, and a domestic ship, if he lodges across the East River, at Brooklyn. If the sole owner, in whose name the vessel must be registered, lives in the interior of the State of New York, and is out of business, the vessel is in her home port if in the city of New York or at Buffalo, but is in a foreign port when in the actual
custody of an owner whose place of business is the pier where she lies in New York City, if his legal domicile is on the Jersey shore. Similar illustrations are to be found where state lipes run through what is practically one port and one town, as in the cases of Kittery, Maine, and Portsmouth, New Hampshire. And all this time we are dealing with a species of property which, when a part of maritime commerce, is under the legislative and judicial jurisdiction of the republic, and knows nothing of state authority.
What bearing upon this subject has the registration of a ship? Our navigation laws know nothing of state lines, as regards the domicile of the ship. She is registered as an American vessel, and not as a vessel of New York or Massachusetts, and the port in the custom-house of which the papers must be recorded, and whose name she must bear upon her stern, is that " at or nearest to which the owner, if there be but one, or, if more than one, the husband or acting or managing owner, of such ship or vessel usually resides.” If the owner resides in a town which is not a port, and the nearest port to that town is in a different state, she must be registered in that port, without regard to state lines; and the result would be that the vessel - belongs ” in a port of one state, while the owner resides in another state. As a matter of fact, Kittery, in Maine, is by act of Congress a part of the commercial district of the port of Portsmouth, and all that part of the State of New Jersey which lies north and east of Elizabethtown and Staten Island is annexed to the district of New York. Yet Chief Justice Taney, in The Loper,1 decides that the port at which the vessel is registered or enrolled, and to which she “ belongs,” under our navigation laws, is her home port as to all rights arising out of repairs and supplies, although the domicile of both the owner and the charterer is in a different state.
At the same time, we find it held in The Golden Gate,2 that if the owner has let his vessel to a charterer, her home port is that in which the charterer resides, although the residence of the owner and the port in which she is registered and to which she belongs, be in a different state. If this is not confusion, we should like to see a definition of that word which would not cover this state of things. We can imagine the perplexity of a ship-owner whose
Taney's Decisions, 500.
2 6 Am. Law Reg. 273.
place of business is upon a pier in the city of New York, and his dwelling-house in Jersey City or Hoboken, and whose ship, engaged in the India trade, is lying at the same pier, let for the ensuing voyage to a merchant at the next door, who lodges at a town on the New York and New Haven Railroad, within the territory of Connecticut, if he should try to learn what was the commercial status and domicile of his ship, and what the maritime law applicable to her. His counting-room and his dwellinghouse are in different states of the Union, but in the same commercial district ; but the ship is registered in the district of New York City, is engaged in foreign commerce, and the domicile of the charterer or lessee, who is in some aspects the owner pro hac vice, is in still a third state in the Union and a different commercial district. What is her “home port,” as respects supplies ? The jurisprudence of which state is to be applied to such a case ? What are the obligations of the owner and charterer? And what are the rights and remedies of the material-man? And where are they to be prosecuted? These are something which, we fear, would be a severe strain upon the human understanding. Certainly this state of things requires the application of some judicial or legislative force. We think the former is sufficient. If we rightly understand The General Smith and The Lotawana, the last case has done a good deal in that direction. It ignores or overrides the rule of The General Smith, that in a case of repairs done to a vessel in a port of a state in which the owner resides, the local law of that state, as distinguished from the general maritime law of the republic, must determine the rights of parties ; for, having decided that there was no lien by the local law, the decision in The Lotawana is made to depend upon whether there was or was not a lien by the general maritime law of the republic. We, therefore, think we may now consider the law on this subject to stand thus : If repairs are put upon a vessel in any port of this republic, the vessel being a subject of maritime commerce, the general maritime law of the republic may be invoked, through the admiralty courts of the republic, irrespective of the domicile of the owner, and if that law gives a tacit hypothecation, it is to be enforced, whatever may be the state law on the subject; and if the general maritime law gives no such lien, but if the law of the state has created a lien, competent for the state law to create, and in its nature and incidents a maritime lien which a court of
admiralty can deal with, it must be enforced, as a right or property of the party proceeding. This seems to us to remove the barrier of state lines on the question both of jurisdiction and of jurisprudence, and to remit all questions of liens for repairs to the admiralty jurisdiction and jurisprudence of the republic, with the further provision that if that jurisprudence does not give the lien, and the case is one as to which a state legislature may create a local and special maritime lien, the party may have the benefit of it; it being understood that no state legislation can deprive him of a right or remedy which he holds under the maritime law of the republic.
The only question that remains is the correctness of the decision that the maritime law of the republic, as distinguished from the local law of a state, gives no lien for repairs done in the home port of a vessel. (We observe that the decision uses the term “home port,” without defining it. Does it necessarily go beyond the home port, in the strict sense ?) Mr. Justice Clifford and Mr. Justice Field dissent. In the dissenting opinion delivered by the former, which is full, learned, and earnest, it is shown that the lien exists by the general maritime law; the condition of things in England is treated as special and as furnishing no precedent for us; and it is contended that The General Smith ought to be overruled, not only on the grounds of scientific and historic correctness, but on reasons of public policy and of professional opinion. The opinion of the majority rests, as we have said, substantially on The General Smith as a precedent, and, without either distinctly admitting or denying the existence of the lien under the general maritime law, as matter of history and science, decides that it is not best to overrule The General Smith, whether correctly decided at the time or not, though the leaning of the court seems to be in favor of its correctness. Against the policy of overruling, it is urged that liens being a species of property, and a judicial decision being necessarily retroactive, it might injuriously affect titles and securities in vessels, if the tacit lien should be acknowledged. There is something, but not of much force, in this objection; for liens, though a species of property, are not permanent, and are not permitted to be enforced to the injury of third parties, unless used with diligence; and vessels are not objects of investment by persons out of mercantile business and unacquainted with the necessity of securing