contract as maritime, and then the lien, being attached to it, might be enforced according to the mode of administering remedies in the admiralty.1 Third. That the court having jurisdiction over the subject-matter of the contract may, in its discretion, enforce the contract in any way it sees fit, either by a process in rem or by one in personam.2 It is not necessary for our purpose to demonstrate that a court of admiralty has jurisdiction over a matter which is merely "in its nature maritime," or that it has the power to enforce a lien by saying that it is merely enforcing the contract, and that the lien is simply an incident of the contract; or that it may, where it has jurisdiction in personam, allow in its discretion a proceeding in rem. It is sufficient to show that the proceeding in rem has been maintained on these grounds, and not upon the ground that a lien given by a State statute is a maritime lien. Whether the United States courts may properly exercise jurisdiction in such cases or not, it is clear that they have exclusive jurisdiction only over "civil causes of admiralty and maritime jurisdiction ;" and not over causes which are merely "in their nature maritime," or "quasi maritime."3 In 1819, it was decided by the Supreme Court of the United States that a material-man, who furnished supplies and repairs to a domestic ship in a State where there was no statute giving a lien, could not maintain an action in rem in admiralty. Story, in delivering the opinion of the court, said, Mr. Justice "Where repairs have been made, or necessaries have been furnished to a foreign ship, or to a ship in a port of the State to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security; and he may well maintain a suit in rem in the admiralty to enforce his right. But in respect to repairs and 1 Steambout Orleans v. Phœbus, 11 Pet. 175. 2 The Steamer St. Lawrence, 1 Black, 522. The language of the court in this case appears at first sight to warrant the doctrine that the Supreme Court has the right to so regulate admiralty process as to deprive a suitor of a proceeding in rem to enforce a maritime lien whenever it sees fit. But a lien is a right and not a remedy, and can be available only by a process in rem. If, therefore, a person has a maritime lien, we consider that the Supreme Court has no power to destroy the remedy; although it may, under the Act of 1842, regulate it. We think, however, that the language is only applicable to such cases as the one then before the court; viz., where the suitor appealed only to the discretion of the court, and could not maintain his action as of right. 3 The Steamer St. Lawrence, 1 Black, 522. 4 The General Smith, 4 Wheat. 438. necessaries in the port or State to which the ship belongs, the case is governed altogether by the municipal law of that State; and no lien is implied, unless it is recognized by that law." This case, while it decides that where supplies are furnished to a domestic vessel, there is no maritime lien, asserts that there is such a lien in the case of a foreign ship, and implies that the admiralty may allow a proceeding in rem in the case of a domestic ship where the local law gives a lien. The right of the courts to permit this remedy was recognized, in 1845, by the passage of the twelfth admiralty rule by the Supreme Court of the United States. This rule was as follows: "In all suits by material-men 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 and freight in rem, or against the master or the 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 material-men for supplies, repairs, or other necessaries." At the December term, 1858, of the Supreme Court, this rule was repealed, and a new rule substituted for it. By this rule, "In all suits by material-men 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 and freight in rem, or against the master or owner alone in personam. And the like proceeding in personam, but not in rem, shall apply to cases of domestic ships for supplies, repairs, or other necessaries." In 1861, a proceeding in rem was sustained by the Supreme Court, where the lien was given by the State law of New York, the libel having been filed prior to the repeal of the old rule.1 This case has sometimes been supposed to decide, 1. That the Admiralty has jurisdiction over the contract of a domestic material-man. 2. That the lien given by a State statute is a maritime cause of action, and may be enforced in admiralty. A careful examination of the case shows, however, conclusively, that there is in it no foundation for the second proposition. On p. 530, Taney, C. J., says, "The State lien, however, was enforced, not as a right, which the court was bound to carry into execution upon the application of the party, but as a discretionary 1 The St. Lawrence, 1 Black, 522. power, which the court might lawfully exercise for the purposes of justice, where it did not involve controversies beyond the limits of admiralty jurisdiction." And, on p. 531, "The proceeding, therefore, in rem, upon the ground that the local law gave the lien where none was given by the maritime code, was found, upon experience, to be inapplicable to our mixed form of government.' In these sentences are two statements which are entirely inconsistent with the theory, that the State cannot enforce a lien by a proceeding in rem in the case of supplies furnished a domestic vessel. The learned Chief Justice distinctly asserts that there is no lien in such a case by the maritime law, and that the United States courts have allowed the proceeding in rem, merely as a matter of discretion. But this is not all, he also says, "Such duties and powers are appropriate to the courts of the State which created the lien, and are entirely alien to the purposes for which the admiralty power was created, and form no part of the code of laws which it was established to administer. The case of The St. Lawrence proceeds upon the ground, that where the admiralty has jurisdiction over the subject-matter of a contract, it has the power to enforce the contract by a process in personam; and may, in its discretion, also enforce it by a process in rem, although there is no lien by the maritime law. Whether the court has such a power, however, is doubtful. In the case of the Rock Island Bridge, the court refused to allow a proceeding in rem against a bridge with which the vessel of the libellant had come into collision, on the ground that there was no lien, the bridge being fixed and immovable. The court speak of the proceeding in rem as the remedy for the enforcement of maritime liens, and say that the only object of the proceeding is to make the lien available. "The lien and the proceeding in rem are, therefore, correlative, where one exists, the other can be taken, and not otherwise." The court also cite the language of the Privy Council, in the case of The Bold Buccleugh, as follows: "A maritime lien is the foundation of the proceeding in rem, a process to make perfect a right inchoate from the moment the lien attaches; and whilst it must be admitted that where such a lien exists a proceeding in rem may be had, it will be found to be equally true, that, in all cases where a proceeding in rem is the 1 6 Wallace, 213. proper course, there a maritime lien exists, which gives a privilege or claim upon the thing to be carried into effect by legal pro A distinction may, however, exist between the power which the court has over matters which are the subjects of its jurisdiction as matters of right, and those which the court may take cognizance of, or not, as it sees fit. It would seem to be clear that the court could not, in the first class of cases, refuse a process in rem where there was a maritime lien, and could not give the process where there was no lien. It has, however, not been unusual for the admiralty to allow the process in rem where the subject-matter was maritime, and a lien was created by a foreign legislature, although there was no maritime lien by the law of this country. Familiar examples are the cases above referred to of liens given by State statutes, and the lien given by an English statute to a master for his wages; or in suits between foreigners. In the latter class of cases it has been said, by Mr. Chief-Justice Taney, that: "The admiralty courts act as international courts, and enforce the lien upon principles of comity." This comity has been carried to such an extent that Mr. Justice Story in one case enforced the commonlaw lien of a shipwright; although no one, probably, would claim that this was a maritime cause of action, and within the exclusive jurisdiction of the admiralty. 2 This distinction may serve to reconcile the language of the court in the case of The St. Lawrence with that in the Rock Island Bridge. It must be admitted that a State legislature cannot confer jurisdiction upon a court of the United States; 5 or make a cause of action maritime which was not so before; and this being so, it follows that no objection can exist to the exercise of the process in rem by a State court in the case of a domestic material-man. That this is the law, is distinctly asserted by the Supreme Court of the United States in a recent case, and although the language was obiter, it was doubtless intended as an expression of the opinion of the court on the subject, and we will conclude this part of our 1 7 Moore, P. C. 284. 2 The Havana, 1 Sprague, 402. 4 The Sch. Marion, 1 Story, 68. 3 Taylor v. Carryl, 20 How. 611. 5 Steamboat Orleans v. Phabus, 11 Pet. 175. See also Maguire v. Card, 21 How. 248; Roach v. Chapman, 22 How. 129. article by citing it: "Authority does not exist in the State courts to hear and determine a suit in rem in admiralty to enforce a maritime lien. Such a lien does not arise in a contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts, it is competent to the States, under the decisions of this court, to create such liens as their legislatures may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement." 1 THE LIEN OF A MATERIAL-MAN FURNISHING SUPPLIES OR REPAIRS TO A FOREIGN VESSEL. The decision of the Supreme Court of the United States in the case of Pratt v. Reed,2 in the year 1856, worked an entire change in the law applicable to material-men. In many cases, it was held that not only must the supplies or repairs be necessary, and furnished on the credit of the vessel, but the libellant must show that there was a necessity for a credit on the vessel, and that the supplies or repairs could not be obtained on the credit of the owner. This doctrine was so contrary to what had previously been understood to be the law, and worked so much hardship, that it was strenuously resisted by the bar; but the courts, although free in their expressions of opinion that the case of Pratt v. Reed was not good law, considered themselves bound by it. It was not until 1867, that the true ground of the decision in Pratt v. Reed was pointed out. In The James Guy, Judge Benedict said, "Now, with the most sincere desire to give to this and all other decisions of the appellate court their full force and effect as the authoritative guides of the courts below, I find it difficult to consider the case of Pratt v. Reed as deciding more than this: that when the circumstances of the case are such as to raise a presumption that there was no necessity for an implied hypothecation, it then becomes incumbent on the libellant to show a necessity for a credit." The same case came on appeal before Mr. Justice Nelson, who delivered the opinion in Pratt v. Reed, and the decision below was affirmed; the learned judge saying, "The necessity for the repairs and for the lien must depend upon the facts and circumstances of 1 The Belfast, 7 Wallace, 645. 8 1 Bened. Adm. 112. 2 19 How. 359. |