the owner was present, and independent of any understanding to that effect.05

But the better opinion was that the presence of the owner rebutted the presumption of credit-and hence of a maritime lien-in the case of domestic vessels also."

SAME-SHIPBUILDING CONTRACTS

51. A contract for building a ship is not maritime, and hence cannot be enforced in the admiralty, nor

can it be made so by a state statute. Such a statute, however, can give a remedy to the state courts for its enforcement.

The theory on which these state liens were enforced was that they were maritime in their nature. But a state cannot make a contract maritime which is not in its nature maritime, nor attach a maritime lien to a nonmaritime cause of action. For this reason a state statute cannot create a right to proceed in the admiralty to enforce a contract for building a ship, as the courts have held these contracts not marine in their nature. This was first decided by the Supreme Court in People's Ferry Co. of Boston v. Beers. The ground of the decision is that such contracts have no reference to any voyage, that the vessel is then neither registered nor licensed as a seagoing ship, that it is a contract made on land to be performed on land, and therefore nonmaritime.

67

This decision was during a period when the Supreme Court was leaning against the extension of admiralty juris

65 Alvira (D. C.) 63 Fed. 144; McRae v. Bowers Dredging Co. (C. C.) 86 Fed. 344; Iris, 100 Fed. 104, 40 C. C. A. 301.

66 Guiding Star (C. C.) 18 Fed. 263; Samuel Marshall, 54 Fed. 396, 4 C. C. A. 385; Electron, 74 Fed. 689, 21 C. C. A. 12; Mack S. S. Co. v. Thompson, 176 Fed. 499, 100 C. C. A. 57; Kate, 164 U. S. 458, 17 Sup. Ct. 135, 41 L. Ed. 512.

§ 51. 67 20 How. 393, 15 L. Ed. 961.

diction. It has long repudiated any dependence on the commerce clause for admiralty jurisdiction." And the argument that it was made on land, to be performed on land, recalls the most bigoted period of English common-law jealousy. It is a test no longer insisted on; for it would debar from the admiralty courts all coppering, painting, or calking on marine railways or in dry docks, and even salvage contracts to float a stranded vessel.

A shipbuilding contract is not entirely to be performed on land. When a ship first floats upon her destined element, she is a hulk. Her masts, her sails, her anchors, and general outfit are all added after she is afloat. It might as well be said that a bill of lading signed in an agent's office, and representing cotton alongside a ship in the sheds. subject to her order, is a contract made on land, to be performed on land. Under the general maritime law, shipbuilding contracts were maritime."9

But, however it may be on principle, the law is settled that such contracts are not maritime in their character." This being so, it necessarily followed that a state statute could not make them maritime, and so the court soon held.71

As the limitation upon these statutes is simply that they shall not interfere with the exclusive jurisdiction of the admiralty, it follows that any lien or special process given to enforce any nonmaritime right is valid; and therefore the Supreme Court has upheld a special remedy conferred by a state statute upon a state court to enforce a shipbuilding contract, for the very reason that it is not maritime."

72

68 EX PARTE GARNETT, 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631.

69 Ben. Adm. § 264.

70 North Pac. S. S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 219 U. S. 119, 39 Sup. Ct. 221, 63 L. Ed. 510; United Shores (D. C.) 193 Fed. 552.

71 Roach v. Chapman, 22 How. 129, 16 L. Ed. 294.

72 Edwards v. Elliott, 21 Wall. 532, 22 L. Ed. 487; Iroquois Transp.

SAME-VESSELS AFFECTED BY STATE STAT

UTES

52. The better opinion is that state statutes created this lien only on domestic vessels, and that the rights

of material men against foreign vessels depended upon the general maritime law.

As stated above, the distinction between supplies furnished to domestic vessels and to foreign vessels is largely artificial, and it is to be regretted that it was ever made. The symmetry of marine law requires that the general doctrine be modified as little as possible. If state statutes can regulate not only claims against domestic vessels, but against foreign vessels, they can add liens to maritime causes of action that did not exist before, and take them away where they did exist. Consequently, a foreign vessel would find a different law in every port. It is more consistent with principle to hold, as is historically true, that the sole purpose and object of these state laws were to put domestic vessels on the same footing as foreign vessels. The converse of this, that they can reduce foreign vessels to the basis of domestic vessels, would be a great anomaly. Accordingly, the best-considered decisions have held that the maritime rights of foreign vessels are independent of these state statutes (as an attempt to regulate them would be to interfere with the general admiralty jurisdiction), and that these statutes regulated only rights against domestic vessels.7

73

For this reason the fifth section of the act of June 23, 1910, provided that it should supersede all state statutes on the subject.

Co. v. Delaney Forge & Iron Co., 205 U. S. 354, 27 Sup. Ct. 509, 51 L. Ed. 836.

73 CHUSAN, 2 Story, 455, Fed. Cas. No. 2,717; Lyndhurst (D. Č.) 48 Fed. 839; Electron, 74 Fed. 689, 21 C. C. A. 12; Roanoke, 189 U. S. 185, 23 Sup. Ct. 491, 47 L. Ed. 770; Corsica Transit Co. v. W. S. Moore Grain Co., 253 Fed. 689, 165 C. C. A. 283.

CHAPTER V

OF STEVEDORES' CONTRACTS, CANAL TOLLS, AND TOWAGE

53. A stevedore is a workman or contractor who loads or discharges a ship and properly stows her cargo.

SAME MARITIME CHARACTER OF CONTRACTS, AND LIENS ON FOREIGN AND DO

MESTIC VESSELS

54. A contract for such service is maritime, and gives a maritime lien.

The services of a stevedore are essential to the financial success of a ship. The modern ship is intricate and complicated in her cargo spaces, and it requires the skill of an expert to load her to advantage. He must not only know how best to stow the cargo without loss of space, but also how to arrange it so as to trim her properly, putting the heavy nearest the bottom so as not to make her crank; and he must work with rapidity, for the daily demurrage of vessels amounts to a large sum, and every delay means heavy

loss. In view of the narrow margin on which business is conducted nowadays, the proper stowage, of the cargo makes all the difference between a profit and a loss.

In view of the importance of these services, it is surprising that its maritime character could ever have been questioned, yet until recently the preponderance of authority was against it. The probable explanation is that, when vessels were small, no great skill was required, and the loading was mainly done by the crew themselves.

In the Amstel,1 Judge Betts denied the maritime character of the service on the ground that it was partly to be performed on land, and was no more connected with the good of the vessel than a man who hauls goods to the wharf, and many cases follow this decision without question.

But it has been seen that in matters of contract the test is the character of the service, and not its locality. Accordingly, in the GEORGE T. KEMP, Judge Lowell held that such services were maritime, and gave the stevedore a right to hold the vessel itself, at least if she was a foreign vessel, and this has been followed in many later cases.3

Some of these cases hold that, although the service is maritime, the stevedore has his remedy in rem only against a foreign ship, or against a domestic ship where there is a state statute giving it. A typical case drawing this distinction is the Gilbert Knapp. It is a good illustration of the confusion caused in marine law by the distinction drawn between foreign and domestic vessels in connection with

§§ 53-54. 11 Blatchf. & H. 215, Fed. Cas. No. 339.

2 Fed. Cas. No. 5,341.

3 Luckenbach v. Pearce, 212 Fed. 388, 129 C. C. A. 64; Rupert City (D. C.) 213 Fed. 263; Atlantic Transport Co. of West Virginia v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157. This last case was a suit by a stevedore for personal injuries, not a suit to enforce a lien for services rendered. It decided that such service is maritime in character, from which the right to proceed in rem ought to follow as a corollary.

4 (D. C.) 37 Fed. 209.