seaman's wages, towage, salvage, and many other things which come under the admiralty jurisdiction would be necessary. But a thing may be necessary without being a necessary. The former is not the meaning when used in connection with supplies and repairs. If it were, then, as necessaries furnished a domestic vessel were prior to the Act the basis of a lien against a vessel only when a state statute gave it, that would have put it in the power of a state legislature to modify some of the most ancient grounds of jurisdiction in admiralty. In the sense in which the word is now being used, it is associated with supplies and repairs, and it means such things of that general nature as are fit and proper for the use of the ship. It is not used in as strong a sense as its colloquial meaning would imply. It does not mean essential, but fit and proper. Whatever is fit and proper for the use of a vessel as a profitable investment, and would have been ordered by a prudent owner if present, comes within the term.12

For reasons given above, salvage is not a necessary in this sense, but an independent ground of admiralty lien, though repairs connected therewith may be. The act uses the word in its former sense, and was not intended to change it.13

43

The same is true as to towage.**

It has been held, also, that the services of a contracting stevedore in furnishing men to load or discharge a ship are necessaries.45

§ 48. 42 GRAPESHOT, 9 Wall. 129, 19 L. Ed. 651; J. Doherty (D. C.) 207 Fed. 997.

48 Convoy (D. C.) 257 Fed. 843.

44 J. Doherty (D. C.) 207 Fed. 997; Hatteras, 255 Fed. 518, 166 C. C. A. 586.

This seems to the author a of a stevedore who works

45 Rupert City (D. C.) 213 Fed. 263. stretch of the doctrine. The services manually are more like those of a seaman; and an attempt to draw a distinction between the man who works and the man who superintends is indulging in mere refinement. But some courts have drawn it. See post, p. 121.

47

46

The definition given in the black-letter heading is that of Lord Tenterden in Webster v. Seekamp. It is adopted by Sir Robert Phillimore in the Riga, a leading case on the subject. It is defined by Judge Dyer to mean "those things which pertain to the navigation of the vessel, and which are practically incidental to, and connected with, her navigation." 48

It is wider in its meaning than when used by the common-law courts in reference to the contracts of infants. For instance, supplies to the restaurant of a passenger steamer have been allowed." And Judge Benedict has carried the principle so far as to hold that liquor furnished to the bar of a passenger steamer comes under the same head, as "supplying the ordinary wants of the class of passengers transported on the boat." 50 It includes muskets or arms to protect a vessel from pirates. It has been held to include provisions, money, rope, life-preservers, chronometers, and nets and other equipment for a fishing vessel.52

53

This doctrine is analogous to the remedy given by section 6438 of the Virginia Code to those who furnish supplies to corporations. In Fosdick v. Schall, the Supreme Court had decided that men who furnished supplies to a railroad necessary to keep it going had an equitable charge on the income prior to a previous mortgage, thus overturning common-law ideas, and ingrafting an admiralty prin

46 4 Barn. & Ald. 352.

47 L. R. 3 A. & E. 516.

48 Hubbard v. Roach (C. C.) 9 Biss. 375, 2 Fed. 393.

49 Plymouth Rock, 13 Blatchf. 505, Fed. Cas. No. 11,237.

50 Long Branch, 9 Ben. 89, Fed. Cas. No. 8,484; Mayflower (D. C.) 39 Fed. 42; compare Sterling (D. C.) 230 Fed. 543.

51 Weaver v. S. G. Owens, 1 Wall. Jr. 359, Fed. Cas. No. 17,310. 52 Ellen Holgate (D. C.) 30 Fed. 125; Ludgate Hill (D. C.) 21 Fed. 431; Belle of the Coast, 72 Fed. 1019, 19 C. C. A. 345; Georgia (D. C.) 32 Fed. 637; Hiram R. Dixon (D. C.) 33 Fed. 297; Geisha (D. C.) 200 Fed. 865; Fortuna (D. C.) 213 Fed. 284.

53 99 U. S. 235, 25 L. Ed. 339.

ciple upon chancery law. Section 6438 of the Code and similar statutes of other states have adopted it as a part of our statute law.

SAME-NECESSARIES FURNISHED DOMESTIC

VESSELS

49. For supplies or other necessaries furnished a domestic vessel there was prior to the Act of June 23, 1910,

no implied lien unless there was a local statute giving it.

As in such cases the owner is accessible, the reason for giving the master power to bind the vessel ceases, and hence the court decided early in its history that in case of supplies to domestic vessels the credit was presumptively given to the owner, and not to the vessel.54

Validity of State Statutes Giving Such Liens

In the course of the opinion the court intimated that if a state statute gave a right against the vessel in such cases they might enforce it. Acting upon the hint, many states passed acts giving rights of action in rem against domestic vessels, and even authorized their own courts to enforce them.

The Judiciary Act of 1789 provided that the admiralty jurisdiction of the federal courts should be exclusive, and conferred this jurisdiction in the first instance on the District Courts, but added a clause saving to the common-law courts all remedies which the common law was competent to give. Hence the courts had to decide that those state enactments which purported to bestow on their courts jurisdiction in rem to enforce a maritime right were unconstitutional. This principle, however, only applied to proceedings in rem pure and simple. For instance, an act which gave seamen a right to sue the owner for their wag§ 49.

54 GENERAL SMITH, 4 Wheat. 443, 4 L. Ed. 609.

es in a state court was held not a proceeding in rem, though, accompanied by an attachment; for it was still against the owner by name, not against the vessel by name, and the attachment was only an incident.55 On the other hand, a statute authorizing a proceeding in rem directly against the vessel, in which any notice to the owners was only an incident, and only given if known, was held unconstitutional.50

But, though the courts decided that state legislation could not confer on state courts the right to enforce an admiralty claim against a vessel by pure proceedings in rem, they also decided that, as it was in its nature a maritime cause of action, the United States courts could enforce it. In other words, the effect of these decisions was that a state statute could create a right to proceed in rem on a maritime cause of action where none had previously existed, and that the federal courts, finding such a maritime right in existence, no matter how it arose, would enforce it.

It is analogous to the principle that an admiralty court will enforce a lien given by a foreign law, though, if the cause of action had arisen in the jurisdiction of the forum, no lien would have been created.57

The power of state statutes to affect admiralty jurisdiction has been greatly restricted by some late decisions of the Supreme Court. In Southern Pacific Co. v. Jensen it was held that the Workmen's Compensation Law of New York did not and could not take away the right of an employé injured on waters within the jurisdiction of the admiralty to pursue the remedies given him by admiralty law. The court says:

55 Garcia y Leon v. Galceran, 11 Wall. 185, 20 L. Ed. 74; Rounds v. Cloverport Foundry & Machine Co., 237 U. S. 303, 35 Sup. Ct. 596, 59 L. Ed. 966.

66 Glide, 167 U. S. 606, 17 Sup. Ct. 930, 42 L. Ed. 296.

57 Maggie Hammond, 9 Wall. 435, 19 L. Ed. 772; Havana, 1 Spr. 402, Fed. Cas. No. 6,226.

"No such legislation is valid if it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations."

1958

In Union Fish Co. v. Erickson59 it was held that the contract of the captain of a ship is maritime, and could not be rendered void by a state statute of frauds requiring contracts to be in writing that were not to be performed within a year.

The Twelfth Admiralty Rule

By the act of August 23, 1842 (5 Stat. 516), Congress conferred upon the Supreme Court power to prescribe the forms and modes of process and proceeding and the practice generally in equity and admiralty for the federal courts of original jurisdiction. Acting under this authority, the court at December term, 1844, promulgated the admiralty rules.

The twelfth of these rules provided: "In all suits by materialmen for supplies or repairs, or other necessaries, for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceeding in rem shall apply to cases of domestic ships, where, by the local law, a lien is given to materialmen for supplies, repairs or other necessaries."

This was a mere affirmation of the then existing practice. It remained in this form until 1859, when the court, impressed by the diversity in the state statutes which it had

58 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. See, also, Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 S. Ct. 501, 62 L. Ed. 1171; Corsica Transit Co. v. W. S. Moore Grain Co., 253 Fed. 689, 165 C. C. A. 283; Western Fuel Co. v. Garcia (C. C. A.) 255 Fed. 817.

59 248 U. S. 308, 39 Sup. Ct. 112, 63 L. Ed. 261.