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SUMMARY OF EVENTS.

66

UNITED STATES.

SUPREME COURT. - MARITIME LIEN ON DOMESTIC SHip for MateRIALS. ADMIRALTY RULE XII. - The Supreme Court has decided, in the case of The Lotawana, that there is no maritime lien for repairs and materials furnished to a domestic ship in a home port. The authorities bearing upon the subject were discussed in a former volume of this Review (Vol. 7, p. 1), in a paper upon Admiralty Rule XII.," on occasion of a change in that rule which made it possible to bring the question before the court. In this case Mr. JUSTICE BRADLEY gave the judgment of the court; Mr. JUSTICE CLIFFORD and Mr. JUSTICE FIELD dissented. The following extracts from the judgment of Mr. JUSTICE BRADLEY show the grounds upon which the decision is founded:

"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 Wheaton, 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 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. 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."

"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. . . . 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.

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"But we must always remember that the Court cannot 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 for ever remain unalterable. Congress undoubtedly has the authority under the commercial power, if no other, to introduce such changes as are likely to be needed. And with regard to the question now under consideration, namely, the rights of material-men, 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. . . . 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."

...

Mr. JUSTICE CLIFFORD delivered a dissenting judgment, in the course of which he said :

"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 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."

"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 material-men, both in rem and in personam, for repairs and supplies furnished in the home port, showing conclusively that the jurisdiction of those courts extend 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. Insurance Co. v. Dunham, 11 Wall. 10.

"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 material-men to enforce the payment of their claims for repairs and supplies furnished to domestic ships.

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"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 re-establish 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 employ. Maclachlan on Ship. 129; Belden v. Campbell, 6 Exch. 886; 1 Conkl. Adm.

ment.

73.

"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, material-man, 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."

"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."

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TOWN AND CITY BONDS IN AID OF PRIVATE UNDERTAKINGS. Citizens' Savings, &c., Association v. City of Topeka. It has been determined by the Supreme Court that an act of the Legislature of Kansas, which authorizes the issue of bonds or direct appropriations by cities, to encourage manu

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