undertaken to recognize, amended it so as to read as follows: "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 personam, but not in rem, shall apply to cases of domestic ships, for supplies, repairs, or other necessaries."

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The effect of this was to take away the right to proceed in rem for necessaries furnished to domestic vessels, though given by a state statute. And in the St. Lawrence, decided soon afterwards, Chief Justice Taney justified this action by saying that the question whether a creditor should proceed in rem or in personam to enforce a maritime right was a question of procedure, which the court might allow or abolish at its pleasure.

This rule remained in this form till May 6, 1872, when the court again amended it so as to read as follows: "In all suits by materialmen for supplies or repairs or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam." The effect of this was to give exactly the same procedure in the case of domestic and foreign vessels.

It does not mention the existence of a state statute as requisite to the enforcement of a lien against a domestic vessel. If, as Justice Taney says, it is a mere question of procedure which the court can give or take away at will, it is difficult to see why the language of this rule did not give the right independent of state statutes, though the decisions have settled that prior to the act of June 23, 1910, in case of domestic vessels it was only enforced when given by a state statute. But, in the great case of the LOTTAWANNA," Mr. Justice Bradley said that a right to proceed in rem was not a mere right of procedure, but a

601 Black, 522, 17 L. Ed. 180. 61 21 Wall. 558, 22 L. Ed. 654. HUGHES,ADM. (2D. ED.)-8

right of property which the court by rule could not give or take away, and that the amendment of 1872 was not intended to give any lien, but merely to remove all impediments in enforcing such as already existed. This being so, the kaleidoscopic changes of the twelfth rule only created confusion. Prior to its enactment in 1844, the right given by state statutes had been enforced, and now, irrespective of the act of June 23, 1910, the rule, as construed by its makers, creates no new right, but merely removes impediments in enforcing a right already existing.

The fact is that the whole doctrine is unsatisfactory and illogical in its development. Its difficulties commenced when the court, following the narrow views of the English law, denied that any right of procedure in rem for necessaries existed in the case of domestic vessels. Any one who reads the dissenting opinion of Mr. Justice Clifford in the LOTTAWANNA CASE will be convinced that by the general principles of maritime law there was no distinction. between foreign and domestic vessels, and that it would have saved much confusion and litigation if the court had promptly come out and corrected its error, as it did on the tide-water question.

It has been corrected at last by the act of June 23, 1910, but it took an act of Congress to do it.

Mr. Justice Bradley, in the majority opinion of that same case, is forced to say that this idea of a state giving an additional remedy to an admiralty contract and of a federal court recognizing and enforcing it is anomalous. He attributes it to the fact that the state admiralty courts prior to the Constitution recognized and enforced it, and that the new federal judges, many of whom had been state judges, continued the same jurisdiction, without recognizing their altered relations.

Perhaps a stronger reason is that state statutes only incidentally affecting commerce, like pilotage laws, quarantine laws, and laws authorizing bridges over navigable

streams, have been upheld as valid in the absence of legislation by Congress, and that these statutes belong to the same category.62

At the same time it must be remembered that the admiralty jurisdiction is not dependent upon the commerce clause of the Constitution, but is derived from an entirely different one."

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The history and changes of the twelfth admiralty rule may be traced in the cases stated in the footnote."

In general, this right against domestic vessels was governed by the principles which apply in case of foreign vessels. It is prior to nonmaritime liens; it is not waived by taking a note; it becomes stale usually in less time than in case of foreign vessels, as it is more easily enforceable; it is given for advances, and for things not merely necessary, but fit and proper.

SAME-DOMESTIC LIENS AS AFFECTED BY OWNER'S PRESENCE

50. Prior to the act of June 23, 1910, the owner's presence rebutted the presumption of credit to the ship in the case of domestic as well as foreign vessels, but the act abolishes this doctrine, so that the furnishing of necessaries to a domestic vessel gives the lien just as in the case of a foreign vessel.

Prior to the act there were some decisions holding that under the general terms of state statutes the mere furnishing of the service gave a lien on domestic vessels, though

62 21 Wall. 581, 582, 22 L. Ed. 664.

63 Const. art. 3, § 2; EX PARTE GARNETT, 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631.

438

64 GENERAL SMITH, 4 Wheat. 443; 4 L. Ed. 609; St. Lawrence, 1 Black, 522, 17 L. Ed. 180; Circassian, Fed. Cas. No. 2,720a; LOTTAWANNA, 21 Wall. 558, 22 L. Ed. 654; J. E. RUMBELL, 148 U. S. 1, 13 Sup. Ct. 498, 37 L. Ed. 345.

the owner was present, and independent of any understanding to that effect."5

But the better opinion was that the presence of the owner rebutted the presumption of credit-and hence of a maritime lien-in the case of domestic vessels also.66

SAME-SHIPBUILDING CONTRACTS

51. A contract for building a ship is not maritime, and hence cannot be enforced in the admiralty, nor

can it be made so by a state statute. Such a statute, however, can give a remedy to the state courts for its enforcement.

The theory on which these state liens were enforced was that they were maritime in their nature. But a state cannot make a contract maritime which is not in its nature maritime, nor attach a maritime lien to a nonmaritime cause of action. For this reason a state statute cannot create a right to proceed in the admiralty to enforce a contract for building a ship, as the courts have held these contracts not marine in their nature. This was first decided by the Supreme Court in People's Ferry Co. of Boston v. Beers." The ground of the decision is that such contracts have no reference to any voyage, that the vessel is then neither registered nor licensed as a seagoing ship, that it is a contract made on land to be performed on land, and therefore nonmaritime.

This decision was during a period when the Supreme Court was leaning against the extension of admiralty juris

65 Alvira (D. C.) 63 Fed. 144; McRae v. Bowers Dredging Co. (C. C.) 86 Fed. 344; Iris, 100 Fed. 104, 40 C. C. A. 301.

66 Guiding Star (C. C.) 18 Fed. 263; Samuel Marshall, 54 Fed. 396, 4 C. C. A. 385; Electron, 74 Fed. 689, 21 C. C. A. 12; Mack S. S. Co. v. Thompson, 176 Fed. 499, 100 C. C. A. 57; Kate, 164 U. S. 458, 17 Sup. Ct. 135, 41 L. Ed. 512.

§ 51. 67 20 How. 393, 15 L. Ed. 961.

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117 diction. It has long repudiated any dependence on the commerce clause for admiralty jurisdiction. And the argument that it was made on land, to be performed on land, recalls the most bigoted period of English common-law jealousy. It is a test no longer insisted on; for it would debar from the admiralty courts all coppering, painting, or calking on marine railways or in dry docks, and even salvage contracts to float a stranded vessel.

A shipbuilding contract is not entirely to be performed on land. When a ship first floats upon her destined element, she is a hulk. Her masts, her sails, her anchors, and general outfit are all added after she is afloat. It might as well be said that a bill of lading signed in an agent's office, and representing cotton alongside a ship in the sheds subject to her order, is a contract made on land, to be performed on land. Under the general maritime law, shipbuilding contracts were maritime."9

But, however it may be on principle, the law is settled. that such contracts are not maritime in their character." This being so, it necessarily followed that a state statute could not make them maritime, and so the court soon held."1

As the limitation upon these statutes is simply that they shall not interfere with the exclusive jurisdiction of the admiralty, it follows that any lien or special process given to enforce any nonmaritime right is valid; and therefore the Supreme Court has upheld a special remedy conferred by a state statute upon a state court to enforce a shipbuilding contract, for the very reason that it is not maritime.72

68 EX PARTE GARNETT, 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631.

69 Ben. Adm. § 264.

70 North Pac. S. S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U. S. 119, 39 Sup. Ct. 221, 63 L. Ed. 510; United Shores (D. C.) 193 Fed. 552.

71 Roach v. Chapman, 22 How. 129, 16 L. Ed. 294.

72 Edwards v. Elliott, 21 Wall. 532, 22 L. Ed. 487; Iroquois Transp.