In re The Surplus and Remnants of the Proceeds of the Ship Edith.

was a domestic vessel, being "thus precluded, by their own act, from denying her foreign character."

In 1833, the Court, in Peyroux v. Howard, (7 Peters, 324,) reassert the doctrine of The General Smith in the very terms of the opinion in that case. On the subject of the jurisdiction of the Admiralty over our navigable rivers, subsequent cases correct the observations made in the opinion which assume that it is limited to the ebb and flow of the tide; but that has no bearing on the subject now under consideration.

In 1848, Judge Nelson, giving the opinion in New Jersey Steam Navigation Co. v. Merchants' Bank, (6 How., 344,) reasserts the doctrine, that there is no maritime lien in favor of material men in the home port, as held in The General Smith; and it may be worthy of notice that the question chiefly discussed, and on which the Supreme Court were divided, was, whether the jurisdiction of the Admiralty was even as comprehensive as was assumed in that case.

In 1857, in People's Ferry Company v. Beers, (20 How., 393,) in giving the opinion of the Court, that the ship-builder had no maritime lien, Mr. Justice Catron strongly reaffirms, of repairs and materials, that, "where the owner is present, no lien is acquired by the material man, nor is any where the vessel is supplied or repaired in the home port."

It is, perhaps, necessary to the full history of the subject to state, that, while the existence of a maritime lien for materials and supplies in the home port had been thus frequently denied, the right of the material man to proceed in the Admiralty in rem, where the State law gave him a lien therefor, had been distinctly allowed by the 12th Rule in Admiralty, adopted in 1844. In the cases above mentioned, the power to employ the process of the Admiralty to enforce such liens was admitted. In the inferior Courts, the right had been recognized, and the lien created by the State law sustained. The distinction between cases in which the cause of action was itself within the Admiralty jurisdiction, and the cases in which the Admiralty had, independent of the local law, no jurisdiction, may not always have been attended to. But where, as

In re The Surplus and Remnants of the Proceeds of the Ship Edith.

in case of repairs and supplies to a vessel even in the home port, the contract was itself deemed maritime in its nature, and so within the Admiralty jurisdiction, notwithstanding the absence of a maritime lien, it was not deemed beyond the power of the Admiralty, having acquired jurisdiction by the nature of the contract, to recognize one of the incidents of the contract, although created by the local law, and, in administering upon the subject-matter, to give effect to the lien so created.

Thus, in The General Smith, Judge Story says, that no lien is implied unless it is recognized by the municipal law of the State.

Mr. Justice Thompson, in Peyroux v. Howard, of the particular contract relied on in that case, says: "It is a maritime contract; and, if the service was to be performed in a place within the jurisdiction of the Admiralty, and the lien given by the local law, * it will bring the case within the jurisdiction of the Court."

* *

In The Steamboat Orleans v. Phœbus, (11 Pet., 175,) Mr. Justice Story limits the apparent meaning of the observation last cited, stating that the local laws could not confer jurisdiction upon the Admiralty, and that they could only furnish rules to ascertain the rights of parties, and thus assist in the administration of the proper remedies, where the jurisdiction is vested by the laws of the United States. Hence, in the case then before the Court, the cause of action not being of maritime jurisdiction, the existence of a lien by the State law would not avail the libellants.

So also, Mr. Justice Nelson, in The New Jersey Steam Nav. Co. v. Merchants' Bank, (at p. 390), apparently overlooking, or, at least, not noticing, the distinction stated by Judge Story, states that jurisdiction has always been exercised by the Admiralty Courts in this country, in suits by ship carpenters and material men, for repairs and necessaries made and furnished to ships, whether foreign, or in the home port, if the municipal laws of the State give a lien for the work and materials; and he cites numerous cases from the District and Circuit and Supreme Courts.

In re The Surplus and Remnants of the Proceeds of the Ship Edith.

Mr. Justice Catron, however, in giving the opinion in People's Ferry Co. v. Beers, noticing the fact that District Courts have recognized the existence of Admiralty jurisdiction in rem against a vessel to enforce a carpenter's bill for work and materials furnished in constructing it, in cases where a lien had been created by the local law, (e. g., Read v. Hull of a New Brig, 1 Story, 244; Davis v. A New Brig, Gilpin's R., 473; Id., 536; Ludington v. The Nucleus, 2 Am. Law Journal, 563,) adds: "Thus far, however, in our judicial history, no case of the kind has been sanctioned by this Court." This, it will be observed, was said of a case of the building of a vessel, which the Court held was not a case within the jurisdiction of the Admiralty, that the jurisdiction depended upon the nature of the contract, and that a contract for the building of a vessel is not maritime.

After this decision, and, as explained in the opinion of the Court in Maguire v. Card, (21 Howard, 251,) "so as to take from the District Courts the right of proceeding in rem against a domestic vessel for supplies and repairs, which had been assumed upon the authority of a lien given by State laws, it being conceded that no such lien existed according to the Admiralty law," the Supreme Court, by the amended 12th Rule, to take effect May 1st, 1859, provided for proceedings in rem or in personam, in suits by material men for repairs or supplies to a foreign vessel; and for proceedings in personam but not in rem, in cases of domestic ships, for supplies, re pairs, or other necessaries."

By the course of decision down to that time, above referred to, the Supreme Court affirmed, that the contract for repairs and supplies to a vessel is a maritime contract, and within the jurisdiction of the District Courts, as Courts of Admiralty; that the contract for supplies and repairs to a foreign vessel is attended by a maritime lien in favor of the material man or repairer, as an incident to the contract, which would be enforced in the Admiralty; that the contract for supplies and repairs to a domestic vessel in her home port is attended by no such incident; that no maritime lien is im

In re The Surplus and Remnants of the Proceeds of the Ship Edith.

plied therein or created thereby; and that, although the Admiralty had jurisdiction of the contract, and would sustain suits thereon in personam, there is no lien by maritime law upon the vessel itself, to be enforced as such; and, finally, the Rule last referred to affirms, that such last named contract is a maritime contract of which the Admiralty has jurisdiction, but that it creates no maritime lien upon the vessel, and the Courts are forbidden to proceed in rem to enforce liens claimed in such case under State laws.

The case of Maguire v. Card, decided in 1858, at the same term at which the Rule was adopted, was distinctly in point. The supplies for which a libel in rem was filed were furnished to a domestic vessel engaged in navigating the Sacramento river, and lying in the port of Sacramento. The Court, in that case, wholly denied the jurisdiction of the Admiralty of the subject-matter, in any form or under any process, because the vessel was engaged in the purely internal commerce of the State. This ground of the decision has since then been overruled, (The Belfast, 7 Wall., 624); but the Court explain the Rule then recently adopted, and declare a determination to leave liens asserted under State laws to be enforced by the State Courts. The language of the opinion is very broad; and yet, as it was used in a case in which the Court disclaimed any jurisdiction of the contract, it may be doubted that the Court intended to hold that, where, upon other grounds, the Admiralty has jurisdiction to arrest and sell a vessel in a proceeding in rem, it will not recognize the existence of a lien created by State laws, in the adjustment of the rights of parties intervening for their interest.

That the local laws could not confer jurisdiction upon our Courts of Admiralty was again affirmed in Roach v. Chapman, in 1859, (22 How., 129.)

In 1861, in the case of The St. Lawrence, (1 Black, 522,) the subject was fully reviewed by Chief Justice Taney. He gives the reason for the former Rule of 1844, and for its abrogation in 1859, and recognizes the distinction between the cases in which the Admiralty has no jurisdiction of the subject

In re The Surplus and Remnants of the Proceeds of the Ship Edith.

matter, and can acquire none by virtue of the local or State laws, and those in which, having jurisdiction of the contract, as maritime, it has recognized the lien upon the vessel which the State laws created. He places the authority to make and to change the Rules referred to, not upon the principles of Admiralty law, conclusively determining by what process its jurisdiction should be exercised in any particular case, but on the authority conferred by statute on the Supreme Court, in its discretion, to prescribe the process and modes of proceeding, where jurisdiction does exist. Thereupon, holding that the Rule of 1859 was prospective only in its operation, the Court hold the libellant entitled to the benefit of the proceeding he had taken before that rule was adopted; and, the contract for supplies being maritime and within the jurisdiction of the Court, hold, also, that a decree condemning the vessel should be affirmed.

The cases of The Moses Taylor, (4 Wallace, 411,) and The Hine v. Trevor, (Id., 555,) decided in 1866, are important to the question whether and to what extent State laws purporting to create liens, in cases embraced in the jurisdiction of the Admiralty, and to provide a proceeding in rem for their enforcement, have any validity whatever. But, on the single question, whether there exists a maritime lien for repairs and supplies to a domestic vessel in her home port, they make no change in the course of decision already recited.

In 1868, in the case of The Belfast, in which the Court overrule prior decisions restricting the jurisdiction of the Admiralty to tide waters, the Court reaffirm the decisions last above mentioned; and, in the opinion, Mr. Justice Clifford says: "State Legislatures have no authority to create a maritime lien; nor can they confer any jurisdiction upon a State Court to enforce such a lien by a suit or proceeding in rem, as practiced in the Admiralty Courts." It will be seen, that, as above stated, the Court had already held that the States could confer no jurisdiction of any kind upon the United States. Courts. Again, he says: "Such" (a maritime) "lien does not arise in a contract for materials and supplies furnished to

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