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. 3. As heretofore observed, the exclusive 568; The E. A. Packer, 140 U. S. 360, 35 | jurisdiction of the admiralty court in this 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. 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 of their cargoes, and provided with gates for preventing the rise and fall of the waters occasioned by the tides, and keeping a uniform level within the docks. A dry dock differs from an ordinary dock only in the fact that it is smaller, and provided with machinery for pumping out the water in order that the vessel may be repaired. All in Replying to the suggestion that, if jurisdiction were sustained of repairs upon a canal boat drawn by horses, it would apply with equal propriety to a blacksmith's bill for shoeing the horses, it is only necessary to say that, for incidental repairs made on land to articles of a ship's furniture or machinery, it has never been supposed that a court 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 proposition is now for the first time made, that such repairs were made on land. Had 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. 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 merce, 1 Black, 574, sub nom. Commercial Transp. Co. v. Fitzhugh, 17 L. ed. 107, and Lord v. Goodall, N. & P. S. S. 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 vessel, 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, in its essentials, a reproduction of the New | law, and § 3419, providing for their enforceYork statute under consideration. Plain- ment, also excludes liens founded upon a tiffs contended that, admitting the admi- maritime contract, we think the state courts ralty courts had jurisdiction, the state courts had concurrent jurisdiction to afford the parties the same remedies. It was held ⚫ that state legislatures had no authority to create a maritime lien, or to enforce such a lien by a suit or proceeding in rem, as practised in the admiralty courts. were in error in enforcing this lien, thereby holding that a contract for the repair of a canal boat while lying in the Erie canal was not a maritime contract, and that the stat ute so construed is pro tanto unconstitutional. Mr. Justice Brewer, dissenting: I am unable to concur in the opinion and judgment in this case, and deem the matter of sufficient importance to justify an expression of my reasons therefor. The judgment of the court below must, In all these cases the distinction is sharp- therefore, be reversed, and the case rely drawn between a common-law action in|manded to the Supreme Court of the State personam, with a concurrent attachment of New York for further proceedings not inagainst the goods and chattels of the defend- consistent with this opinion. ant, 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 It is well to understand exactly the facts in personam, the mesne process may be "by of the case. Sections 30 and 35 of the Laws a warrant of arrest of the person of the de- of New York, 1897, chap. 418, are quoted in fendant, with a clause therein that, if he the opinion of the court. By the first, a cannot be found, to attach his goods and lien is given on a seagoing or ocean-bound chattels to the amount sued for;" and rule vessel, if the amount of the debt is $50 or 9, that in suits and proceedings in rem the upwards, and on any other vessel if $15 or process shall be by warrant of arrest of the upwards. And, among other things, the lien ship, goods, or other things to be arrested, is for work done, or material or other ar with public notice to be given in the news-ticles furnished, for the building or repairpapers. The former is in strict analogy to ing of such vessel. By the second, the lien, a common-law proceeding, and is a concur if founded upon a maritime contract, can be rent remedy. The latter is a proceeding dis- enforced only in the United States courts; tinctively maritime, of which exclusive if not founded upon such a contract, by projurisdiction is given to the admiralty courts. ceedings in the state courts, in the manner That the New York statute belongs to the provided by the Code of Civil Procedure. latter class is evident from the Code, by which, upon written application to a justice of the supreme court, a warrant is issued for the seizure of the vessel, and for an order to show cause why it should not be sold to satisfy the lien. The warrant in this case recites "that an application had been made to me . . for a warrant to enforce a lien against the canal boat or vessel called Rob't W. Parsons," and commands the sheriff "to seize and safely keep said canal boat to satisfy said claim as above set forth, to be a lien upon said vessel according to law." The proceeding authorized by the New York statute in question was held to be in the nature of a suit in admiralty in Bird v. The Josephine, 39 N. Y. 19, and Brookman v. Hamill, 43 N. Y. 554, 3 Am. Rep. 731. The proceeding is also similar to that provided by the laws of Massachusetts, which, in the case of The Glide, 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct. Rep. 930, was held to be, as to repairs and supplies in the home port, exclusively within the admiralty jurisdiction of the Federal courts. As 30 of the New York statute excludes a debt which is not a lien by the maritime The canal boat, upon which the lien was claimed, was not a seagoing or ocean-bound vessel, but engaged in carrying merchandise between Buffalo and other ports within the limits of the state of New York. The statements in two affidavits, one of the plaintiff and the other the defendant (the plaintiff being the owner of the claim, and the defendant the owner of the boat), were, by stipulation between the parties, agreed upon as the facts in the case. No question was made of the justice of the claim or the liability of the owner of the boat therefor. The work consisted in "permanent repairs upon the boat," in this, that "a part of one side of said boat was taken out and her check plank removed, and the side of the boat and the cheek plank were rebuilt into said boat." The work was done upon dry docks belonging to the plaintiff in the vil lage of Middleport, a village located on the Erie canal. The boat, at the time, was on a trip from New York to Buffalo. The value of these permanent repairs was $154.40, and the boat, when thus repaired, sold for only $155. Further, according to the bill of particulars, 727 feet of lumber, 47 bolts, 165 pounds of spikes, and 265 pounds of iron, 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, preamounted to over thirty-three days, were paratory to coppering her, is not of a mariused 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 opinis 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 constias it may, the contract was made on land, tute a lien upon vessels which can be ento 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, although the law of the state gave a lien, the admiralty court would not take cognizance of such a claim. Was this a maritime contract? A contract for building a ship or supplying materials for her construction is not a maritime contract. People's Ferry Co. v. Beers, 20 How. 393, 15 L. ed. 961; Roach v. Chapman, 22 How. 129, 16 L. ed. 294. In the former of these cases the court said (p. 402, L. ed. p. 965): "So far from the contract being purely maritime, and touching rights and duties appertaining to navigation (on the ocean or elsewhere), it was a contract made on land, to be performed on land." So, in Sheppard v. Steele, 43 N. Y. 52, 56, 3 Am. Rep. 660, 662: "The claim here is for labor upon the hull of a vessel, while in the process of construction, before launching, while yet on the land. This is not a maritime contract. It is one relating to a subject on the land, and it is to be performed on the land. The admiralty courts have no jurisdiction for its enforcement. Foster v. The Richard Busteed, 100 Mass. 409, 1 Am. Rep. 125." So, also, where damage is done wholly upon the land, admiralty will not take jurisdiction, although the cause of the damage originated on waters subject to its jurisdic tion. The Plymouth, 3 Wall. 20, sub nom. Hough v. Western Transp. Co. 18 L. ed. 125; Ex parte Phenix Ins. Co. 118 U. S. 610, 30 L. ed. 274, 7 Sup. St. Rep. 25; Johnson v. Chicago & P. Elevator Co. 119 U. S. 388, 30 L. ed. 447, 7 Sup. Ct. Rep. 254. Two of these were cases in which fire originating on a vessel communicated to property on land, and the owner of the property attempted to recover in the admiralty courts, but their jurisdiction was denied. The other was where a vessel, while being towed in the Chicago river, struck and damaged a building on the land. For this damage, an action was maintained in the state court, and the jurisdiction of that court upheld. It would seem to follow from these cases that a contract made on land, to be performed on land, and, in fact, performed on land, is not sub that a tort resulting in injury to something on the land is, also, not subject to admiralty jurisdiction, although the tort was on waters subject to such jurisdiction. It is true, many cases may be found in which it is stated, generally, that admiralty has jurisdiction of claims for repairs upon vessels, but, evidently, that contemplates repairs made while the vessel is in the water. That a dry dock is to be considered as land in the maritime law seems to be clear from the decision of this court in Cope v. Vallette Dry Dock Co. 119 U. S. 625, 30 L.ject to admiralty jurisdiction; and, likewise, ed. 501, 7 Sup. Ct. Rep. 336, in which it was held that a dry dock was not a subject of salvage service, Mr. Justice Bradley, speaking for the court, saying (p. 627, L. ed. p. 502, Sup. Ct. Rep. p. 337): "A fixed structure, such as this dry dock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a warehouse when projecting into or upon the water." The dry dock referred to in In this connection, I notice a statement this case was a floating dock fastened by in the opinion of the court, that "for incichains to the bank of the Mississippi river. dental repairs made on land to articles of Whether the dock in this case was likewise a ship's furniture or machinery, it has never fastened by chains, or a structure perma- been supposed that a court of admiralty nently attached to the land, does not appear. had jurisdiction." But if an engine be Certainly, it cannot be presumed, for the purpose of reversing the judgments of the state courts, that it was not permanently attached to, and as much a part of, the land, as a bridge or a wharf. In this connection, reference may be had to Bradley v. Bolles, Abb. Adm. 569, Fed. Cas. No. 1,773, in which it was held by taken out of a steam tug and repaired on land, and a court of admiralty has no jurisdiction of the claim for such repairs, has it any more claim when the hull of a canal boat is brought on the land and the side of it replaced? In each case the contract is one performed on the land, and, although having ultimate relation to navigation on 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 en- | forced 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, "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 men. give 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: |