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The ship is arrested and made the reus, or defendant, without regard to the owner. The seizure of the ship is equivalent to the personal service of common law. The person to whom the right of property adheres, and all interested, may come forward, assert their claims, and become parties to the suit. But there is no obligation to do this. The owner may abandon his property; and, if he does so, no decree will be made against him, and the claim of the suitor is satisfied by sale of the ship.

To such a degree has this process, in rem, become identified as the distinguishing and exclusive remedy of admiralty, that attempts have been made by the advocates of a limited jurisdiction in the United States, to confine its proceedings entirely to this method, although there was an established jurisdiction in personam long before the process in rem was exercised. Judge Johnson dissenting in the case of Ramsay v. Allegre, endeavored to restrict the proceeding in personam in cases ex contractu, to suits for seamen's wages. A similar attempt is made by Judge Daniels, in the case of the N. J. Steam Nav. Co. v. Merchants' Bank. These two methods are not convertible, and must be governed by the rules adopted by the Supreme Court of the United States.

Courts of common law are allowed to proceed by personal action alone against the party interfering with the rights of others, and by attachment of his goods. The enforcement of liens created by a State statute is sometimes called a proceeding in rem. But this must not be confounded with the proceeding in rem of a court of admiralty. The meaning of a lien is, that the property is liable to certain claims, without a previous judgment or decree of court.3 In case of the sale of property to satisfy the liens of a court of common law, the title acquired by the vendee can never be better than that of the defendant in the action. It is his title, and not the property itself, which is sold. The judgments of common law courts bind only parties and privies. But a sale of the ship, when made by order of the admiralty, gives a valid title against the whole world ; and this is so, whether the ship be foreign or domestic, and without regard to the owner. A State court has no power to divest a lien existing by the general maritime law.? “ The possession of the sheriff under a State process does not exclude the marshal from taking possession under a process of the United States court;” and in such a case the title acquired by the marshal's vendee is good against all the world.

1 12 Wheat. 611.

2 6 How. 344. 3 The Globe, 2 Blatchf. 427.

4 The Hine v.

Trevor, 4 Wall. 555. 5 Ashbrook v. The Golden Gate, Newb. 296, 300. 6 The Mary, 9 Cranch, 126.

7 The Globe, 2 Blatchf. 427; The Henrietta, Newb. 284; Bronson v. Kinzie, 1 How. 311.

The district court derives its admiralty powers from art. 3d, sec. 2d of the Constitution, which declares that “the judicial power shall extend to all cases of admiralty and maritime jurisdiction," and from the Judiciary Acts of 1789 and 1845. The 9th section of the Act of 1789 provides : 1st. That the district courts shall have jurisdiction concurrent with State and circuit courts, of certain cases where an alien is a party ; 2d. That the jurisdiction shall be exclusive of State courts, in certain cases where a consul of a foreign State is a party; and 3d. That “the district courts shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.” The only exception to the exclusive jurisdiction of the district courts in this third class of cases, is the clause, “ saving to suitors in all cases the right of a common law remedy where the common law is competent to give it.” To what extent the jurisdiction conferred by this statute, and by the Act of 1845, is exclusive, and if not so, whether Congress may make the jurisdiction of admiralty exclusive, has been much discussed, but never directly adjudicated upon by the Supreme Court of the United States until within a period of two years.

The question presents itself in two forms: 1st. Has the District Court exclusive original cognizance of all causes strictly maritime? And 2d. Is the admiralty and maritime jurisdiction in rem exclusively in the Federal courts ? Chancellor Kent seems to think that the jurisdiction of admiralty is, in all cases, exclusive, because it is declared by the Constitution to extend to all cases; and by the Act of 1789, it is made exclusive. “It is certain, however," he says, “ that the State courts take an extensive and unquestioned cognizance of maritime contracts, and on the ground that they are not cases, strictly and technically speaking, of admiralty and maritime jurisdiction. If, however, the claim of the district courts be well founded to the cognizance of all maritime contracts, wheresoever the same may be made, or whatever may be the form of the contract, it would seem that the jurisdiction of the State courts

1 The John Richards, Newb. 73; The Royal Saxon, 1 Wall. Jr. C. C. 311, 325.


over those contracts could not be sustained.” Judge Story, in commenting on this, says, “It is believed that this opinion (of Kent) is founded in mistake. There is nothing in the Constitution necessarily leading to the conclusion that the jurisdiction was intended to be exclusive.” 2

The jurisdiction exercised by State courts does not rest on the ground that these cases of contract are not strictly maritime, but on the saving clause of the Act of 1789; which Chancellor Kent seems to have overlooked.

The nature of certain maritime causes is such, that a remedy can be given by a personal action at common law. In these cases the statute makes it optional with the parties to proceed in admiralty or in State courts. These latter have always been accustomed to deal with ships as with other personal property, and their power to do this is expressly recognized by the Judiciary Act. The way in which this shall be done, is also pointed out; by means of a common law remedy, where the common law is competent to give it. This does not mean any remedy which may be given in a State court, as a proceeding in equity or in rem; but the common law remedy, which existed before the Constitution and Act of 1789, and which is saved, not given.

The only remedies, which the Act of 1789 has reference to, are the common law actions of debt, trespass, assumpsit, &c., brought by the plaintiff against a personal defendant, and enforced by attachment of his goods. Proceedings in equity, and in rem, are unknown to the common law.4

Although cognizance of maritime causes, to this extent, has been readily conceded to State courts, as their undoubted right, the State courts have not so willingly allowed to district courts the exclusive privilege of proceeding after the peculiar forms of admiralty, and by the remedy in rem. These attempts to appropriate admiralty jurisdiction have probably resulted from a misunderstanding of the saving clause of the Act of 1789, in regard to a remedy at common law. In thirteen of the Southern and Western States, actions may be brought in the State courts against vessels by name. The statutes of the several States, conferring this jurisdiction, are substantially the same, and provide for the seizure and sale of foreign a as well as domestic vessels, without any personal process to satisfy all maritime contracts and services, and claims for the misfeasance or malfeasance of the officers or crew, or for torts committed by the vessel. Preference is given to claims prosecuted under these statutes to all other demands, and to liens created by the general maritime law. These have been held constitutional by the supreme courts of the several States where they exist, on the ground that the delegation of admiralty powers was not exclusive, except of the circuit courts, and have been largely administered, with the full effect of admiralty proceedings. In the case of Averill v. Steamer Hartford, the court held that proceedings under these statutes “must be governed by the principles and forms of admiralty courts.”

11 Kent, Com. 377.

2 3 Story, Com. $ 1000, note. 3 Ashbrook v. The Golden Gate, Newb. 296, 303; Bogart v. The John Jay, 17 How. 399.

4 2 Browne, Civil & Ad. Law, 111; Percival v. Hickey, 18 Johnson, 257, 292; 1 Kent, Com. 378.

5 1 Story, Com. on Const. 538; Stinson v. Dousman, 20 How. 461.

These statutes have been tested before the Supreme Court of the United States in only two cases. In the case of The Moses Taylor? (1865), a proceeding in rem was instituted before a justice court in the city of San Francisco against the steamship Moses Taylor, owned in New York, employed in navigating the Pacific Ocean, and in transporting passengers and freight between Panama and San Francisco, for an alleged breach of contract with the libellant to furnish proper food and conveniences during the voyage. The justice decided that he had jurisdiction under a statute of California, applicable to the circumstances, and gave judgment against the vessel. The case was then taken to the county court, and finally, by writ of error, to the United States Supreme

| Alabama, Clay's Dig. 139; Arkansas Rev. Stat. ch. 14; California, Laws of 1853, p. 576; Florida, Thomps. Dig. 414; Kentucky, Stat. Law, 112; Georgia Stat. Law, 625; Indiana Stat. 1838; Illinois Stat. 1845, p. 71; Iowa Rev. Stat. 101 ; Missouri R. C. 1845; Mississippi Hutch. Dig. 288; Wisconsin R. S. 116; Ohio Stat. ch. 26, p. 185.

2 The Steamboat Pawnee, 19 Mo. 517. 3 The Moses Taylor, 4 Wall. 411; The Hine v. Trevor, Id. 555. 4 The Superior, 3 Am. Law Reg. 622 ; Newb. 176; The Globe, 2 Blatch. C.C. 427.

5 Thompson v. Steamboat J. D. Morton, 2 Ohio St. 26; The Owen v. Johnson, Id. 142; Steamboat v. McCraw, 31 Ala. 659; Warner v. The Uncle Sam, 9 Cal. 697; Miller v. Galland, 4 Greene, 191 ; Germain v. The Indiana, 11 Ill. 535; The Clipper F. Logan, 18 Ohio, 375; The Western Belle v. Wagner, 11 Missouri, 30; The Hamburg, 2 Iowa, 460; 1 Greene, 398; 3 Greene, 295; 4 Iowa, 472; 5 Cal. 268. 6 2 Cal. 308.

7 4 Wall. 411.

Court. The counsel for the defendant in error maintained that the grant of admiralty and maritime jurisdiction to the district courts was not exclusive, and is not prohibited to the State courts ; and that the case at bar came within the saving clause of the Act of 1789; also, that if the Constitution does not confer a jurisdiction exclusive, Congress cannot make it so. Mr. Justice Field, in delivering the opinion of the court, says, –

“ The action against the steamer by name, authorized by the statute of California, is a proceeding in the nature, and with the incidents of a suit in admiralty. The distinguishing and characteristic feature of such suit is, that the vessel or thing proceeded against is itself seized and impleaded as the defendant. . . . By the common law process, property is reached only through a personal defendant ... The statute of California, to the extent in which it authorizes actions in rem against vessels, for causes of action cognizable in the admiralty, invests her courts with admiralty jurisdiction. . . . The case before us is not within the saving clause of the Act of 1789. That clause only saves to suitors the right of a common law remedy, where the common law is competent to give it. It is not a remedy in the common law courts which is saved, but a common law remedy. A proceeding in rem, as used by the admiralty courts, is not a remedy afforded by the common law."

The decision of the county court of California was therefore reversed for want of jurisdiction.

The main points decided in this case are, that the jurisdiction, in civil cases, conferred by the Act of 1789, is exclusive, except the common law remedy, and that Congress has full power to legislate on the subject.

At the same term of court, the case of The Hine v. Trevor 1 was decided. This originated in a collision on the Mississippi River, at St. Louis, between the steamers Hine and Sunshine. The Hine soon after was seized, while lying at Davenport, Iowa, in a proceeding under the laws of that State, to subject her to sale in satisfaction of damages sustained by the Sunshine. The laws of Iowa authorize a process in rem against any vessel for injuries to person or property, by the vessel, officers, or crew, without a personal service. This case came before the Supreme Court of the United States, by writ of error to the Supreme Court of Iowa. The argument in favor of State jurisdiction was based on the same

14 Wall. 555.

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