they were entitled to pursue the wrongdoer | at L. 828, chap. 517, U. S. Comp. Stat. 1901, in courts of admiralty. The Quickstep, 9 pp. 549, 550.] So, also, cases may be Wall. 665, 19 L. ed. 767; The Syracuse, 12 brought under the patent and copyright Wall. 167, 20 L ed. 382; The Atlas, 93 U. laws, quite irrespective of the amount inS. 302, 23 L. ed. 863; The L. P. Dayton, 120 volved. U. S. 337, 30 L. ed. 669, 7 Sup. Ct. Rep. 568; The E. A. Packer, 140 U. S. 360, 35 L. ed. 453, 11 Sup. Ct. Rep. 794. But it would seem like sticking in the bark to hold that a canal boat might recover for a collision while in tow of a tug, but might not recover while in tow of a horse. The case does not raise the question whether hay and oats furnished the horses are necessaries within the meaning of the admiralty law, though a casuist might have difficulty in drawing a distinction between coal and oil furnished to one engine of propulsion and hay and oats to another, or between food furnished to a crew and food furnished to the horses.

3. As heretofore observed, the exclusive jurisdiction of the admiralty court in this case was attacked upon the grounds, already discussed, that artificial canals and the vessels plying thereon are not within its jurisdiction. A further suggestion, however, is made, that the contract in this case was not only made on land, but was to be performed on land, and was, in fact, performed on land. This argument must necessarily rest upon the assumption that repairs put upon a vessel while in dry dock are made upon land. We are unwilling to admit this proposition. A dock is an artificial basin in connection with a harbor, used for the reception of vessels in the taking on or discharging Replying to the suggestion that, if juris- of their cargoes, and provided with gates for diction were sustained of repairs upon a preventing the rise and fall of the waters canal boat drawn by horses, it would apply occasioned by the tides, and keeping a uniwith equal propriety to a blacksmith's bill form level within the docks. A dry dock for shoeing the horses, it is only necessary differs from an ordinary dock only in the to say that, for incidental repairs made on fact that it is smaller, and provided with land to articles of a ship's furniture or mamachinery for pumping out the water in orchinery, it has never been supposed that a der that the vessel may be repaired. All incourt of admiralty had jurisdiction. In-juries suffered by the hulls of vessels below deed, it would seem extremely doubtful if liens for these trivial bills were intended to be created by the state law. Articles removed from a vessel and repaired or renovated upon land at the shop of the artisan, stand upon quite a different footing from repairs made upon the vessel herself, and are the subject of a possessory lien at common law.

The truth is, the present employment of horses is a mere accident, and likely to be changed at any time by an enlargement of the canal, now in contemplation, when steam or electricity will probably supplant the present methods of locomotion. The modern law of England and America rules out of the admiralty jurisdiction all vessels propelled by oars, simply because they are the smallest class and beneath the dignity of a court of admiralty; but long within the historic period, and for at least seven hundred years, the triremes and quadriremes of the Greek and Roman navies were the largest and most powerful vessels afloat.

It is true, the amount involved in this case is a small one, but the jurisdiction of the admiralty court has never been determined by the amount, though appeals from the district court to the supreme court were first limited to cases involving $300, subsequently reduced to $50, and finally, by the court of appeals act, allowed, apparently, in all cases, regardless of amount. [26 Stat.

the water line, by collision or stranding, must necessarily be repaired in a dry dock,

to prevent the inflow of water, but it has

never been supposed, and it is believed the that such repairs were made on land. Had proposition is now for the first time made, the vessel been hauled up by ways upon the land and there repaired, a different question

might have been presented, as to which we express no opinion; but, as all serious repairs upon the hulls of vessels are made in dry dock, the proposition that such repairs are made on land would practically deprive the admiralty courts of their largest and most important jurisdiction in connection with repairs. No authorities are cited to this proposition, and it is believed none such

exist.

Suppose, for instance, it were believed that the repairs could be made upon this vessel without going into dry dock, but it was afterwards discovered that the injuries were more extensive and that a dry dock were necessary; would a court of admiralty thereby be deprived of jurisdiction? Or, suppose such repairs were made in a floating dry dock, as sometimes happens, would they be considered as made upon land or water? Or, suppose they were made in dry dock upon a seagoing vessel ?

There is no doubt of the proposition that a dry dock itself is not a subject of salvage service or of admiralty jurisdiction, because it is not used for the purpose of navigation.

*

*33

That was settled in Cope v. Vallette Dry | navigable rivers above tide waters, and apDock Co. 119 U. S. 625, 30 L. ed. 501, 7 plicable to vessels engaged in commerce beSup. Ct. Rep. 336. But the case was put tween ports in the same states. [9 Stat. at upon the express ground that a dry dock L. 635, chap. 43, U. S. Comp. Stat. 1901, was like a ferry bridge or sailors' floating p. 2943.] In delivering the opinion Mr. Jusmeeting house, and was no more used for tice Bradley said (p. 15, L. ed. p. 634, Sup. the purposes of navigation than a wharf or Ct. Rep. p. 843): "In some of the cases it a warehouse projecting into or upon the was held, distinctly, that this jurisdiction water. does not depend on the question of foreign or interstate commerce, but also exists where the voyage or contract, if maritime in character, is made and to be performed wholly within a single state,"-citing all the cases noticed in this opinion.

In The E. M. McChesney, 8 Ben. 150, Fed. Cas. No. 4,463, Judge Blatchford, more re

a canal boat for nondelivery of a cargo shipped on a canal boat in Buffalo to be carried* to New York. In that case, as in this, it was contended that neither the canal, nor the canal boat, were subjects of the admiralty jurisdiction. The case is directly in point.

4. Suggestion is also made that the admiralty jurisdiction of the Federal courts does not extend to contracts for the repair of vessels engaged wholly in commerce within a state. It is true that, as late as 1858, in The Fashion (Allen v. Newberry, 21 How. 244, 16 L. ed. 110), it was held that, under the act of Congress of 1845, extending juris-cently of this court, sustained a libel against diction of the Federal courts to vessels employed in navigation upon the Great Lakes, between ports and places in different states, it did not extend to the case of a shipment of goods from a port in one state to another port in the same state; and that, in the case of The Goliah (Maguire v. Card, 21 How. 248, 16 L. ed. 118), the same doctrine was extended to a contract for supplies furnished to a vessel engaged in trade between different ports in the state of California. These cases, however, were practically overruled by that of The Belfast, 7 Wall. 624, 19 L. ed. 266, in which a state statute, similar to the statute of New York involved in this case, for a breach of contract of affreightment between ports in the same state (Alabama), was held to be unconstitutional and void, although the shipment was between ports of the same state. The contention was distinctly made (p. 635, L. ed. p. 269), that the state court had jurisdiction because the contract of affreightment was between ports and places in the same state, but it was as distinctly disclaimed by the court, and the prior cases practically overruled. So, also, in Ex parte Boyer, 109 U. S. 629, 27 L. ed. 1056, 3 Sup. Ct. Rep. 434, the doctrine of The Belfast was reiterated and applied to a collision between canal boats, Mr. Justice Blatchford saying that "it makes no difference, as to the jurisdiction of the district court, that one or the other of the vessels was, at the time of the collision, on a voyage from one place in the state of Illinois to another place in that state." To the same effect are The Daniel Ball, 10 Wall. 557, 19 L. ed. 999; The Montello, 20 Wall. 430, 22 L. ed. 391; The Com-guishing and characteristic feature of such inerce, 1 Black, 574, sub nom. Commercial Transp. Co. v. Fitzhugh, 17 L. ed. 107, and Lord v. Goodall, N. & P. S. 8. Co. 102 U. S. 541, 26 L. ed. 224.

So, too, in Re Garnett, 141 U. S. 1, 35 L. ed. 631, 11 Sup. Ct. Rep. 840, the limited liability act was held to be a part of the law of the United States, enforceable upon

It is believed that, since the case of The Belfast, the distinction has never been admitted between contracts concerning vessels engaged in trade between ports of the same, and between ports of different, states. Of course, nothing herein said is intended to trench upon the common-law jurisdiction of the state courts, which is, and always has been, expressly saved to suitors "where the common law is competent to give it." Rev. Stat. § 563, sub. 8 (U. S. Comp. Stat. 1901, p. 457). By that law, an action will always lie against the master or owner of the ves sel, and, if the laws of the state permit it, the vessel may be attached as the property of the defendant in the case. But, as remarked by Mr. Justice Miller in The Hine v. Trevor, 4 Wall. 555, 571, 18 L. ed. 451, 456: A statute providing that a vessel may be sued and made defendant without any proceeding against the owners, or even mentioning their names, partakes of all the essential features of an admiralty proceeding in rem, of which exclusive jurisdiction is given to the district courts of the United States. See also The Moses Taylor, 4 Wall. 411, 427, 18 L. ed. 397, 400, wherein it is said: "The action against the boat by name, authorized by the statute of California, is a proceeding in the nature, and with the incidents, of a suit in admiralty. The distin

suit is that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly."

In The Belfast, 7 Wall. 624, 19 L. ed. 266, a proceeding was taken in a state court in Alabama for the enforcement of a lien for the loss of certain cotton. The statute was,

PERRY v. HAINES.

15

in its essentials, a reproduction of the New | law, and § 3419, providing for their enforce-
York statute under consideration.
tiffs contended that, admitting the admi- maritime contract, we think the state courts
Plain- ment, also excludes liens founded upon a
ralty courts had jurisdiction, the state were in error in enforcing this lien, thereby
courts had concurrent jurisdiction to afford holding that a contract for the repair of a
the parties the same remedies. It was held canal boat while lying in the Erie canal was
that state legislatures had no authority to not a maritime contract, and that the stat
create a maritime lien, or to enforce such a ute so construed is pro tanto unconstitu-
lien by a suit or proceeding in rem, as prac- tional.
tised in the admiralty courts.

re

therefore, be reversed, and the case
The judgment of the court below must,
manded to the Supreme Court of the State
of New York for further proceedings not in-
consistent with this opinion.

Mr. Justice Brewer, dissenting:

judgment in this case, and deem the matter I am unable to concur in the opinion and of sufficient importance to justify an expression of my reasons therefor.

of the case. Sections 30 and 35 of the Laws It is well to understand exactly the facts of New York, 1897, chap. 418, are quoted in the opinion of the court. By the first, a lien is given on a seagoing or ocean-bound vessel, if the amount of the debt is $50 or upwards, and on any other vessel if $15 or upwards. And, among other things, the lien is for work done, or material or other articles furnished, for the building or repairing of such vessel. By the second, the lien, if founded upon a maritime contract, can be enforced only in the United States courts; if not founded upon such a contract, by proceedings in the state courts, in the manner provided by the Code of Civil Procedure.

In all these cases the distinction is sharply drawn between a common-law action in personam, with a concurrent attachment against the goods and chattels of the defendant, subject, of course, to any existing liens, and a proceeding in rem against the vessel as the debtor or "offending thing," which is the characteristic of a suit in admiralty. The same distinction is carefully preserved in the general admiralty rules prescribed by this court; rule 2d declaring that, in suits in personam, the mesne process may be "by a warrant of arrest of the person of the defendant, with a clause therein that, if he cannot be found, to attach his goods and chattels to the amount sued for;" and rule 9, that in suits and proceedings in rem the process shall be by warrant of arrest of the ship, goods, or other things to be arrested, with public notice to be given in the newspapers. The former is in strict analogy to a common-law proceeding, and is a concur rent remedy. The latter is a proceeding distinctively maritime, of which exclusive jurisdiction is given to the admiralty courts. That the New York statute belongs to the latter class is evident from the Code, by which, upon written application to a justice claimed, was not a seagoing or ocean-bound The canal boat, upon which the lien was of the supreme court, a warrant is issued vessel, but engaged in carrying merchandise for the seizure of the vessel, and for an or- between Buffalo and other ports within the der to show cause why it should not be sold limits of the state of New York. The stateto satisfy the lien. The warrant in this ments in two affidavits, one of the plaintiff' case recites "that an application had been and the other the defendant (the plaintiff made to me for a warrant to en- being the owner of the claim, and the deforce a lien against the canal boat or vessel fendant the owner of the boat), were, by called Rob't W. Parsons," and commands stipulation between the parties, agreed upon the sheriff "to seize and safely keep said as the facts in the case. canal boat to satisfy said claim above set forth, to be a lien upon said vessel bility of the owner of the boat therefor. as made of the justice of the claim or the liaNo question was according to law." The proceeding author- The work consisted in "permanent repairs ized by the New York statute in question upon the boat," in this, that "a part of one was held to be in the nature of a suit in side of said boat was taken out and her admiralty in Bird v. The Josephine, 39 N. check plank removed, and the side of the Y. 19, and Brookman v. Hamill, 43 N. Y. boat and the cheek plank were rebuilt into 554, 3 Am. Rep. 731. The proceeding is also said boat." The work was done upon dry similar to that provided by the laws of Mas- docks belonging to the plaintiff in the vil sachusetts, which, in the case of The Glide, lage of Middleport, a village located on the 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct. Erie canal. The boat, at the time, was on a Rep. 930, was held to be, as to repairs and trip from New York to Buffalo. The value supplies in the home port, exclusively within of these permanent repairs was $154.40, and the admiralty jurisdiction of the Federal the boat, when thus repaired, sold for only courts. ticulars, 727 feet of lumber, 47 bolts, 165 $155. Further, according to the bill of parpounds of spikes, and 265 pounds of iron,

As 30 of the New York statute excludes a debt which is not a lien by the maritime

as well as three hundred and thirty-four | Judge Betts that work done upon a vessel
hours of labor, which, at ten hours a day, in a dry dock in scraping her bottom, pre-
amounted to over thirty-three days, were paratory to coppering her, is not of a mari-
used in the work. The size of the canal time character, and that compensation for
boat is not given, but, from this statement such labor cannot be recovered in a court of
as to the amount and value of the work, it admiralty. Judge Betts says, in his opin-
is evident that the repairs might well be ion, that the court had repeatedly held that
considered a rebuilding of the boat. Be that contracts of that description do not consti-
as it may, the contract was made on land, tute a lien upon vessels which can be en-
to be performed on land, and was, in fact, forced in admiralty. In Boon v. The
performed on land. The plaintiff was a Hornet, Crabbe, 426, Fed. Cas. No. 1,640, a
canal-boat builder, having dry docks and canal boat was hauled on shore on the bank
yards at the village of Middleport, and on of a river where the tide ebbed and flowed,
these dry docks the work was done.
and there repaired. It was held that, al-
though the law of the state gave a lien, the
admiralty court would not take cognizance
of such a claim.

the water, it is not, of itself, directly con- ing the issuance of the warrant, the date nected with navigation.

thereof, the amount of the claim specified therein, the name of the applicant, and the time and place of the return of the order to show cause." By § 3425, the owner or consignee, or any other person interested, may appear and contest the claim of the lienor. Subsequent provisions authorize an appeal, as in other civil cases. The record shows that the proceedings had were substan

Further, no objection can, of course, be made to the New York statutes. Section 30 gives a lien, and no one questions the power of a state to provide for such a lien to be enforced in some court. Section 35 provides that, if the lien is founded on a maritime contract, it is enforcible only in the courts of the United States. Surely, that is as far as the most strenuous advocates of an ex-tially in accordance with these provisions. tended admiralty jurisdiction can claim, and it is only in those cases, as the section provides, where the lien is not founded upon a maritime contract that the state courts may exercise jurisdiction. The state courts of New York, from the trial through the supreme to the court of appeals, have all held that this lien was not founded upon a maritime contract. Upon what just ground can this court disturb this finding? If it

be a pure question of fact, we have often held that we are bound by the action of the state courts. If it is one partly of fact and partly of law, then, surely, we ought not, except in the clearest case, to reverse those courts.

Still again, it has been repeatedly declared by this court, following the statute, that a claim cognizable in admiralty can be enforced in the state courts by common-law remedies. Now, whatever may be the nature of the contract (the foundation of the lien in this instance), the only provision in § 35 is that it can be enforced in the manner provided by the Code of Civil Procedure.

The application, called a petition, was filed,
setting forth all the facts required, including
the name of the owner. An order of sale and
an order to show cause were both issued, and
the owner appeared in response to such no-
tice. It is true, there is in the record no
proof of service upon the owner, but the
fact of her appearance to contest the appli-
cation is shown. It is also true that she did
not, after her
appearance, contest the
amount of the claim, but contented herself
with challenging the jurisdiction of the
court. But such action on her part does not
obviate the fact that the proceedings on be-
half of the petitioner were substantially
those to collect a civil debt by attachment
against the property of the defendant. In
this connection, reference may be had to The
Hine v. Trevor, 4 Wall. 555, 18 L. ed. 451, in
which an Iowa statute was held unconstitu-
tional, but, as said by Mr. Justice Miller,
speaking for the court on page 571, L. ed.
p. 456, describing the remedy provided for
by that statute:

"The remedy pursued in the Iowa courts, in the case before us, is in no sense a common-law remedy. It is a remedy partaking of all the essential features of an admiralty proceeding in rem. The statute provides that the vessel may be sued and made defendant without any proceeding against the owners, or even mentioning their names. That a writ may be issued and the vessel seized, on filing a petition similar, in substance, to a libel. That, after a notice in the nature of a monition, the vessel may be condemned and an order made for her sale, if the liability is established for which she was sued. Such is the general character of the steamboat laws of the western states."

Turning to the Code of Civil Procedure, we find, in title 4 of chapter 23, the provisions for the enforcement of liens on vessels. These provisions are, first, the lienor is to make a written application to a justice of the supreme court for a warrant to enforce the lien and to collect the amount thereof, which application must state substantially the same facts as in an ordinary pleading to enforce a mechanic's lien on buildings. 3420. Upon the filing of such application, the justice is directed to issue a warrant for the seizure of the vessel, and, at the same time, to grant an order to show cause why the vessel should not be sold to satisfy the lien. A copy of the order and the application for the warrant must be served personally upon the master or other person "While the proceeding differs thus from in charge of the vessel, "and personally up- a common-law remedy, it is also essentially on the owner and consignee of such vessel different from what are in the west called if a resident of the state, or, if not a resi- suits by attachment, and, in some of the dent of the state, by mail addressed to such older states, foreign attachments. In these owner or consignee at his last known place cases there is a suit against a personal deof residence, within ten days after the exe- fendant by name, and, because of inability cution of such warrant." §§ 3422 and 3423. | to serve process on him on account of By 3424, the applicant is also required to nonresidence, or for some other reason mengive notice, in some paper published in the tioned in the various statutes allowing atcounty where the vessel was seized, "stat-tachments to issue, the suit is commenced

24 S. C.-2.

But in the very same case it was also said by the learned justice: