or wrong done by that structure gives a maritime lien against it. The service or contract may be maritime and no lien follow. This must be carefully understood at the outset; otherwise the student of admiralty law will be misled by the loose expressions of many able judges and become totally helpless in the well nigh inextricable tangle of conflicting authorities. The lien can be expressed by the parties; can be implied by admiralty law from the transactions or given by State statute. Yet in each case the lien does not attach unless the contract is maritime. Parties can create a lien when the contract is maritime; general law implies one in certain forms of maritime contract and State statutes which give liens can give them only when the contract is maritime. A few examples will make this clear: An owner mortgages his ship for his personal debt; there is no maritime character to the lien. Common law courts can therefore alone give a remedy to the mortgagee against the mortgagor on his contract. 13 The owner or master pledges her keel by bottomry bond to raise money for the ship's purposes; a lien is immediately created; and the sole remedy on the lien is in admiralty. 14 The owner can, of course, pledge his boat on bottomry at any time and place for his personal debt, but admiralty will not enforce the lien for there is nothing maritime about the transaction. An owner or master without funds in a foreign port procures supplies or causes his vessel to be repaired; a maritime lien attaches to the ship and pending freight. The same thing is done in an home port; no lien is implied; but the contract is maritime, as the Supreme Court held in the famous General Smith, while if the State gives a lien against a domestic ship for repairs or supplies, etc., it can be enforced in admiralty under the 12th rule as construed by the Court in the Lottawanna, 21 Wall. 551. If the State gives a lien against a vessel in favor of the builder or the furnisher of materials to build her, it can not be enforced in the Admiralty Court, for the contract is not maritime. 15 But a State can enforce that lien for the same reason, and its tribunals do not trespass upon the constitutional domain of the federal jurisdiction. It is the ordinary foreclosure of a mechanic's lien. What, therefore, is a maritime contract? In Insurance Company v. Dunham, 11 Wall. 1, 31, the Supreme Court vainly 18 Bogart v. The John Jay, 17 How. 399. 14 The Belfast, 7 Wall. 624-646. 15 The Pacific, 9 Fed. Rep. 120; The Kingston, 23 Fed. Rep. 200; The Guiding Star, 18 Fed. Rep. 263-268; The Selt, 3 Biss. 344. Mr. Justice Taney decided differently in Tome v. 4 Cribs of Lumber, Taney Dec. 533 (see Palmer v. Rouse, 3 Hurl & Nor. 505). It is suggested in the opinion of Muntz v. A Raft (supra) that there may be a distinction between salvage and other liens; but I cannot see it unless we accept the theory of Story that there is a salvage lien for goods derelict on land; a discussion of the latter subject is given below. We cannot sustain the lien upon the analogy of flotsam, jetsam, etc., or even of a dead whale, for salvage may be predicated of them because they partake of the nature of the ship to which they once belonged. The following cases are libels in personam for conversion: In re Whale, 2 Hagg. Adm. 438; Ghen. v. Rich, 8 Fed. Rep. 159-162; Taber v. Jenny, 1 Spr. 315; Bartlett v. Budd, 1 Low. 223; Swift v. Gifford, 2 Low. 110. A raft is certainly a floating structure used in navigation, although it may be broken up at the conclusion of the voyage. It is the simplest form of a navigating machine. That it has no motive power of its own can, under the decisions, be no objection. Neither are the decisions in reference to possessory actions controlling because the rule refers only to ships. 10 The case of Jones v. Coal Barges, 3 Wall. Jr. 53, it seems to me, was wrongly decided. But he can sue the owner for a recompense for his trouble and disbursements in securing the lost articles. 11 But if the vessel or floating structure belongs to the government a lien cannot be implied against it; even where a municipality is the owner, it is exempt, for a municipality is simply a local branch of the sovereign State. 12 While a maritime lien can attach only to a floating structure used in navigation, that is, in the carriage of persons and property on navigable water; not every service to, contract concerning, 9 In his work on "" 'Bailments," Judge Story has strongly contended for a lien on property saved on land similar to a salvage lien. The lien must be possessory and not maritime. But the weight of authority is decidedly to the effect that no lien can be implied in favor of the finder. Story on Bailments, Sec. 121 a; Binstead v. Buck, 2 Wm. Bl. 1117; Nicholson v. Chapman, 2 H. Bl. 254; Baker v. Hoag, 7 N. Y. 555-560; Wentworth v. Day, 3 Met. 352. 10 Adm. Rule 20, Gastrel v. A Cypress Raft, 2 Woods, 213. 11 Doctor and Student Ch. 51; Nicholson v. Chapman, 2 H. Bl. 254; 2 Kent (6th Ed.) 355; Story on Bailments, Sec. 121 a; Jones on Liens, Sec. 485; Reeder v. Anderson's Adm'rs, 4 Dana (Ky.) 193; Amory v. Flyn, 10 John 102; Preston v. Neale, 12 Gray 222; Chase v. Corcoran, 106 Mass. 286; Sheldon v. Sherman, 42 N. Y. 484-487; Woods v. Pierson, 45 Mich. 313; De La O. v. Acoma, 1 New Mex. 226; Watts v. Ward, 1 Ore. 86. 12 The Fidelity, 16 Blatch. 596; Klein v. New Orleans, 99 U. S. 149. or wrong done by that structure gives a maritime lien against it. The service or contract may be maritime and no lien follow. This must be carefully understood at the outset; otherwise the student of admiralty law will be misled by the loose expressions of many able judges and become totally helpless in the well nigh inextricable tangle of conflicting authorities. The lien can be expressed by the parties; can be implied by admiralty law from the transactions or given by State statute. Yet in each case the lien does not attach unless the contract is maritime. Parties can create a lien when the contract is maritime; general law implies one in certain forms of maritime contract and State statutes which give liens can give them only when the contract is maritime. A few examples will make this clear: An owner mortgages his ship for his personal debt; there is no maritime character to the lien. Common law courts can therefore alone give a remedy to the mortgagee against the mortgagor on his contract. 18 The owner or master pledges her keel by bottomry bond to raise money for the ship's purposes; a lien is immediately created; and the sole remedy on the lien is in admiralty.14 The owner can, of course, pledge his boat on bottomry at any time and place for his personal debt, but admiralty will not enforce the lien for there is nothing maritime about the transaction. An owner or master without funds in a foreign port procures supplies or causes his vessel to be repaired; a maritime lien attaches to the ship and pending freight. The same thing is done in an home port; no lien is implied; but the contract is maritime, as the Supreme Court held in the famous General Smith, while if the State gives a lien against a domestic ship for repairs or supplies, etc., it can be enforced in admiralty under the 12th rule as construed by the Court in the Lottawanna, 21 Wall. 551. If the State gives a lien against a vessel in favor of the builder or the furnisher of materials to build her, it can not be enforced in the Admiralty Court, for the contract is not maritime. 15 But a State can enforce that lien for the same reason, and its tribunals do not trespass upon the constitutional domain of the federal jurisdiction. It is the ordinary foreclosure of a mechanic's lien. What, therefore, is a maritime contract? In Insurance Company v. Dunham, 11 Wall. 1, 31, the Supreme Court vainly 18 Bogart v. The John Jay, 17 How. 399. 14 The Belfast, 7 Wall. 624-646. 15 The Pacific, 9 Fed. Rep. 120; The Kingston, 23 Fed. Rep. 200; The Guiding Star, 18 Fed. Rep. 263-268; The Selt, 3 Biss. 344. endeavored to define it; and finally stated as its conclusions "the best criterion of the maritime character of a contract is the system of law from which it arises and by which it is governed." The old British law was that a maritime contract was one made upon the sea and to be performed thereon ;-but this rule was overthrown in Menetone v. Gibbons, 3 T. R. 269, where the subject matter was made the test; - in that case it was held that a controversy concerning a bottomry bond was within the admirality jurisdiction. The doctrine that the contract must be executed within the ebb and flow of the tide has long since been abrogated, although it caused much trouble in the earlier questions before the U. S. Supreme Court; but in a very strong opinion has lately received a re-exhumation and a last reburial. 16 But the fact that there is a remedy at common law does not prevent the character of the contract being maritime. Sailors are the wards of admiralty, but they have common law rights against the ship's owners. A policy of marine insurance is another instance of concurrent jurisdiction. The subject matter of the contract is therefore the test; if the contract concerns navigation, and ships as floating structures, it is maritime; otherwise the contract is one purely of common law jurisdiction. This was early The contract to build a ship is not maritime. decided. The ship is intended to sail, but until the vessel becomes a floating thing capable of navigation it cannot be subject to admiralty jurisdiction and therefore cannot carry a maritime lien. The matter is analagous to a contract for a marine policy. The The contract is maritime when the policy is made, not when an agreement to make a policy is consummated. Likewise the cargo is bound to the vessel after it is laden, but not before. A ship broker who arranges a charter party has no standing in an attempt to collect his commissions; but the charter when made is a maritime contract, and construed and enforced by the admiralty law. The broker who engages a crew makes no implied maritime contract with the owners for compensation for his services and has no lien against the vessel. 17 Brown, D. J., in The Thames, 10 Fed. Rep. 848, has well said: "The distinction between preliminary services leading to a maritime contract and such contracts themselves have been affirmed in this country from 16 Ex parte Garnett, 141 U. S. 1. 17 Insurance Company v. Dunham, 11 Wall.; The Thames, 10 Fed. Rep. 848; The Crystal Stream, 25 Fed. Rep. 575; Ferris v. Jewett, 2 Fed. Rep. 111. the first and not yet departed from. It furnishes a distinction capable of somewhat easy application. If it be broken down I do not perceive any other dividing line for excluding from admiralty many other sorts of claims which have a reference more or less remote to navigation and commerce. If the broker of a charter party be admitted, the insurance broker must follow, the drayman, the expressman, and all others who perform services having reference to a voyage either in contemplation or executed." But it has been held that although the contract of shipbuilding is not maritime, yet the contract to furnish supplies or material to a ship not yet built, but being built in a foreign port, is maritime, provided the materials, etc., are ordered in contemplation of a voyage, 18 But the writer doubts whether the distinction - anticipation of marine service-is a good one. A ship is built for no other purpose than a voyage, and such intention must be implied in every case. This decision is opposed to the better doctrine that when supplies and materials are furnished for a vessel not yet built, although in contemplation of the vessel's sailing, the contract is not maritime and no lien results. are numerous and better considered. The cases There is no difference in the contract to build and the contract to furnish materials for building. 19 The Manhattan, 46 F. 797, attempts to recognize both lines of cases by holding that a contract of building gives no lien but that a rebuilding before the ship is completed and ready for commerce is a maritime contract and gives a lien. When Judge Benedict says, in 33 Fed. Rep. 299, "The Supreme Court has yet to hold that contracts to make nets for a contemplated fishing voyage of a fishing vessel are not maritime because made on land, and with reference to a voyage to be performed," he is surely wrong, for in Edwards v. Elliot, 21 Wall. 532, 554, Clifford J. said, "Ships are bought and sold in the market just as ship timber, engines, anchors or chronometers are bought and sold, and no reason is perceived why a contract to build a ship any more than a contract for the materials of which a ship is composed or for the instruments or appurtenances to propel or manage the ship, should be regarded as maritime," and fish-nets are surely appurtenances. 20 18 The Hiram R. Dixon, 33 Fed. Rep. 297. 19 In re Glenmont, 32 Fed. Rep. 703; Edwards v. Elliot, 21 Wall. 532; Ferry Co. v. Beers, 20 How. 393; Roach v. Chapman, 22 How. 129; The Pacific, 9 Fed. 120; The Norway, 3 Ben. 163; The Count de Lesseps, 17 Fed. Rep. 460, Contra: the Eliza Ladd, 3 Sawyer 519; The Revenue Cutter No. 2, 4 Sawyer 143. 20 The Witch Queen, 3 Sawyer 201. |