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importance, and must be well understood and borne steadily in mind by the reader.
The Lotawana was a case of repairs put upon a vessel in New Orleans, the owner being an inhabitant of that port,, the vessel having an American register, and being engaged in maritime commerce beyond the limits of the state. The proceeding was in rem, to enforce a maritime lien. This lien was claimed under the general maritime law, and under the civil code of the state of Louisiana. The whole court agreed that the libellant failed to comply with the terms required by the civil code of Louisiana, and the decision was left to turn upon the question whether the lien existed by the principles of admiralty jurisprudence. There is not even a suggestion in the opinion of the majority that the case must be governed by the municipal law of Louisiana, as distinguished from the general maritime law, and that if the state law did not give the lien, the general maritime law could not be invoked. This statement is also necessary to be borne in mind throughout the discussion.
Mr. Justice Clifford, in delivering the opinion of the minority, takes the position that, by the general maritime law, the lien for repairs on a ship is irrespective of the domicile of the owner; that this principle is recognized in the admiralty jurisprudence of all the commercial nations of the continent of Europe ; was recognized and enforced in the admiralty tribunals in England, until the prohibitions by the King's Bench, and except as restrained by special acts of Parliament; and that the admiralty jurisprudence in these colonies, and under our Constitution afterwards, recognized this principle down to the time of the case of The General Smith, in 1819. For these positions he cites various authorities. It is not necessary to comment upon them, for the opinion of the majority concedes, or, more strictly, perhaps, assumes that all this may be so, and places its decision solely upon the authority of the case of The General Smith. It treats that case as authority for the position that by the general maritime law of the United States now, whatever it may have been elsewhere and in other times, there is no maritime lien for repairs upon a ship in her home port, or, as the current phrase seems to be, upon a domestic ship; and that by home port or domestic ship is meant a ship repaired in a port of the state of the Union in which the owner resides. There can be no doubt of the
doctrine, to which Mr. Justice Bradley, in delivering the opinion of the majority, devotes a good deal of attention, that it is competent for any nation to make exceptions, in its own jurisprudence, from the maritime law of the rest of the commercial world. There is, also, great force in his suggestion that such exceptions can be the subject of no just complaint where they do not affect the rights of other nations or their citizens, as is the case of repairs made in the United States upon a vessel in which only American citizens are interested. He reminds us that there has never been a maritime law, all of whose principles have been universally received by the commercial world; and he attaches some importance to the consideration that the maritime law as administered in Great Britain for two hundred years, in its practical operation, whatever may be its theory, has not recognized the lien in question. Stating these positions, which are incontrovertible, and citing no authorities and offering no reasonings as to whether the lien existed or not under our admiralty jurisprudence prior to 1819, he holds that The General Smith is an authority against the lien; that, whether well or ill adjudged at the time, it has been followed as a precedent ever since; that there are not sufficient reasons for overruling it, and considerable practical objections against overruling it. This brings us directly to the consideration of The General Smith. We purpose to inquire whether it is, in fact, an authority for the position taken by the court. Incidentally, some light may be thrown upon the extent and value of its authority, if it be an authority at all.
The General Smith was a ship engaged in foreign commerce, owned in Baltimore, where supplies were furnished to her by a ship-chandler who also lived in Baltimore.
The suit was in rem to enforce a maritime lien. There was no statute of Maryland purporting to give a maritime lien. The District Court sustained the lien as given by the general maritime law. The Circuit Court gave a pro forma decree to the same effect. The case came by appeal before the Supreme Court in 1819. Mr. Winder, in support of the lien, contended that it existed by the universal maritime law, and that it had been lost in England only because the common-law courts would not permit the only court which could enforce the lien to take cognizance of it. He cited only The Sandwich, in a note to 1 Peters's Adm. Dec., and passages from De Lovio v. Boit. The argument, cer
tainly as reported, did not go deep or widely into the subject. Mr. Pinkney argued against the lien. Mr. Pinkney was far too good an admiralty lawyer not to know that by the general maritime law the lien existed, and his object was to prevent that law being invoked. His argument was that the case must be governed by the local or municipal law of Maryland, as distinguished from the general maritime law; and that, as there was no statute bearing upon the case, and the customary or common law of Maryland was the English common law, which gave no lien in such a case, there could be no proceeding in rem.
The only authority he cites is The Levi Dearborn, decided as early as 1811, in the Georgia circuit, by Judge Johnson, a jealous opponent, of admiralty jurisdiction, who based his decision on two grounds : first, that the admiralty law of Great Britain is the admiralty law of the United States; and second, that the admiralty law of Great Britain is so much of the general admiralty law as the Court of King's Bench permits the Lord High Admiral to administer, which position has been long since repudiated by the Supreme Court. Mr. Pinkney put the case as depending upon a single question, — by what system of jurisprudence is the case to be governed? And, contending that it was to be governed by that of the State of Maryland, which was the English common law (in the absence of a statute), it followed that there could be no tacit hypothecation. He did not even suggest that the general maritime law of the United States was an exception to the general maritime law elsewhere, so as to exclude the lien in the case of domestic ships. He put his case upon the ground that as the transaction and the parties in interest were of Maryland, and no interests outside of the state were involved, the case was to be governed by the state law, and that law was the English common law.
We will now consider the decision of the court as given by Judge Story. The opinion occupies but one page, and to the point decided he gives but three or four lines. The learned judge simply adopts the position taken by Mr. Pinkney, that the case is to be governed, not by the general maritime law, but by the municipal law of the State of Maryland, which is the English common law. And by the common law, he meant the municipal law of England in its straitest sense, that is, as exclu
14 Hall's Am. Law J. 97.
sive of the admiralty law. If there were any doubt that that was what he meant, it would be removed by the next sentence, in which he says that the common law knows no lien except the right of retention. “ A shipwright, indeed, who has taken a ship into his own possession to repair it, is not bound to part with the possession until he is paid for the repairs, any more than any other artificer. But if he has once parted with the possession, or has worked upon it without taking possession, he is not deemed a privileged creditor having any claim upon the ship itself.” In further proof, if any were needed, that such was his position, we find it stated in the note to the case that as to supplies to domestic ships, “the common law is the municipal law of most of the states," that in New York a recent statute gives a lien to shipwrights irrespective of the domicile of the owner, and it is added that on the principle of the above case this lien, so given by the local law, may be enforced in the , admiralty. The reason given is not because it so becomes a part of the general admiralty law of the United States, but because it becomes a part of the municipal law of the state, which alone governs a case of work done within the state, for parties residing there. This note is very likely to have been furnished by Judge Story himself, from his known habit and his known relations with the reporter. At the beginning of the opinion, the learned judge says that where repairs are done to a ship to which there are foreign owners, there would be a lien under the general maritime law; and then, instead of saying that the general maritime law gives no lien in the case of a domestic ship, he says that the case of a doméstic ship is to be adjudicated, not in accordance with the general maritime law, but by the local municipal law of the state, and the existence of the lien depends upon that law.
We are well aware that The General Smith has been frequently, we may, perhaps, say generally, treated as having decided that by the general maritime law there is no lien for repairs in a port of a state in which the owner resides. This is assumed to have been the decision by the court whose judgment we are now con-. sidering. But after a most careful examination of the opinion and the arguments of counsel, seen in the light of the prior and contemporaneous history of the subject, and remembering the known familiarity of the judge and of Mr. Pinkney with the
whole subject, we are brought to the conclusion that such a view of the case is incorrect. At least, there is certainly great doubt as to the court's having intended to assert the doctrine attributed to it. We think a fair interpretation of the decision puts it upon the single ground that where the transaction is in a port of a state of the Union, and the interests involved are those of inhabitants of the state, it is to be governed solely by the local municipal law of that state, as distinguished from the general maritime law; while, if the interests of owners not inhabitants of the state are involved, the general maritime law may be invoked. If the decision is, as we understand it, that, the transaction and interests being local, the local law is to govern, the short and summary character of the opinion is to be accounted for, for it was conceded that the local law gave no lien. But if the court meant to take up the question whether, if the general maritime law governed the case, there was by that law, as to be administered in this republic in all ports and states, no lien for repairs on domestic ships, by virtue of an exception from the ancient and general maritime law, we feel quite sure that the author of the opinion in De Lovio v. Boit, with its seventy pages of discussion, bristling with citations, would not have disposed of this greater question in a dozen lines, without discussion, and without the citation of a single authority.
The case of The Planter1 is generally cited, and is treated in The Lotawana, as having followed the precedent of The General Smith. It was not inconsistent with The General Smith, becanse it sustained the lien as existing by the Civil Code of Louisiana ; but there was no call in that case for a decision on the subject of the general maritime law. In referring to The General Smith, Mr. Justice Thompson says: “It decided that the jurisdiction of the admiralty in such cases, where the repairs are upon a domestic ship, depends upon the local law of the state." And Judge Story, in The Chusan, cites this language as having stated the doctrine “ with great precision and accuracy ;” and, in answer to the arguments of .counsel, he says, with some warmth, that it is only cases of repairs on domestic ships that are governed by the local law of the state, while cases of repairs on foreign ships do not depend upon the state law, but are governed by the general maritime 1 Peyroux v. Howard, 7 Peters, 341.
? 2 Story, 463.