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December 1, 1857


THIS case was brought up from the Supreme Court of Pennsylvania, by a writ of error issued under the twenty-fifth section of the judiciary act.

The facts of the case are particularly stated in the opinion of the court.

It was argued by Mr. Cadwallader and Mr. Hood for the plaintiffs in error, and by Mr. Evarts for the defendant.

The Reporter would be much pleased if he could place before his readers an extended report of the arguments of counsel in a case of such importance and general interest to the profession as the present. But he is admonished by the size to which the present volume has grown, that it has already reached the customary limits of such a work; and all that he can do is to present a brief sketch of the views of the respective counsel.

After examining the respective jurisdictions of the State and admiralty courts, and the nature of the process and proceedings, the counsel for the plaintiffs in error deduced the following propositions:

1. That over all maritime liens for seamen's wages, the District Court of the United States has exclusive cognizance whenever invoked by the seamen, and the State courts have no jurisdiction over such liens.

2. Although a State court has no jurisdiction whatever over a maritime lien, yet that court will afford to a seaman, if he choose to resort to it, a remedy by personal action, against the owner or master of the vessel, on the contract for wages, or perhaps by permitting him to intervene in a personal action, already pending; but the cognizance of the State court does not attach, unless specially invoked by the seaman.

3. That the existence of one or more remedies for a seaman to recover his wages in a State court, does not oust the cognizance of the admiralty court over his lien against the vessel; the seaman may pursue either of these remedies only, or both together.

4. That the pendency of proceedings in foreign attachment in a State court against the vessel, at the suit of a general creditor of the owner, and the seizure and sale of the vessel by the sheriff under such proceedings, do not oust the admiralty jurisdiction of the District Court of the United States over liens for the wages of the seamen, if invoked by them, nor prevent the admiralty court from enforcing such liens against the vessel in specie, by proceedings in rem.

5. That the sale of a vessel, under a writ or order of a common-law court, does not, under the general maritime law of the United States, divest the lien of a seaman for his wages, so as to prevent its enforcement against the vessel in specie, by the District Court of the United States, under proceedings in rem in the admiralty.

6. That a sale of a vessel under a writ or order of the District Court of the United States, proceeding in rem against a vessel in the admiralty, not appealed from nor reversed, passes to the purchaser a title to the vessel discharged of all liens and encumbrances whatever.

7. That where a vessel subject to maritime liens for seamen's wages is seized by the sheriff under a writ from a State court, and subsequently a proceeding in rem is commenced in the admiralty to enforce these liens, it would be an usurpation of admiralty jurisdiction by the State court, if, after being informed of the existence of said liens and proceedings, the State court ordered a sale of the vessel, as perishable and chargeable, on the ground, inter alia, of the accruing daily expenses of the said mariners' wages.

The proceeding under which the sale was ordered by the State court was based not upon the simple allegation of perishableness, but upon an allegation of perishableness by reason of chargeableness; in other words, the sale was prayed and ordered because the subject was a chargeable one. That which was alleged to render her thus chargeable was mainly an accumulating liability for the very seamen's wages in question. Without this liability, non constat, that any sale would have been ordered. In correcter language, it is legally to be assumed, that without it there would have been no sufficient chargeableness. For these wages, the lien had already attached to the vessel by the proceeding in admiralty. Thus, in order to render the vessel saleable as chargeable, the subject of the lien, which could constitutionally be enforced directly in the admiralty alone, was by a usurpation of jurisdiction imported into the proceeding in the State court, as the foundation of the very proceeding in question.

This appears from the order of sale of the State court made not under one alone, but under both of the foreign attachments, and from the petition referred to in the order of sale of Robert Bell, one of the plaintiffs in attachment, alleging the vessel in question to be 'of a chargeable and perishable nature, from the daily expense of wharfage, custody fees, mariners' wages, and liable to deterioration in her hull, apparel, and furniture, from exposure to ice, wind, sun, and weather.'

8. The legal custody of the vessel claimed for the admiralty in this case will not necessarily lead to conflict between the United States and State courts and their respective officers; but, on the contrary, will tend to prevent such conflicts, by maintaining each in the legitimate exercise of its jurisdiction and powers.

According to the English admiralty law, as recognised by Sir John Jarvis, Chief Justice of the Common Pleas, when a vessel subject to maritime liens for seamen's wages is seized by the sheriff, under a writ of foreign attachment from a State court, and subsequently a proceeding in rem is commenced in the admiralty, to enforce the seamen's liens, the latter proceeding relates back to the time when the liens were created, and in contemplation of law the legal custody of the vessel is deemed to have been in the admiralty from the period when the lien first attached, (Harmer v. Bell, 22 Eng. L. and Eq. R., 72,) so far at least as may be necessary to protect these liens. This legal custody of the admiralty is not incompatible with, and does not necessarily interfere with, the possession of the sheriff, nor the proceedings in the State court. In such a case, the sheriff may hold the vessel until bail be entered for the owner, or until the owner's interest has been sold to satisfy plaintiff's claim. But the proceedings in rem in the admiralty, being known to the purchaser at the sheriff's sale, he will take the vessel cum onere and, on paying off the maritime liens, will acquire a perfect title. On the other hand, if the admiralty sell the vessel whilst the proceedings in the State court are pending, and the sheriff still in possession, the title of the purchaser is good against all the world; but the surplus that may remain out of the proceeds of the admiralty sale, after payment of the liens against the vessel, would, on application to that court, be ordered to be paid to the sheriff, or into the State court.

In the case of the Royal Saxon, the purchasers at the sheriff's sale might have obviated the necessity of a sale by the admiralty by satisfying the maritime liens. They could have discharged the vessel from them by paying the holders, or, by leave of the admiralty court, they could have paid into its registry enough to satisfy them, being entitled to receive back any surplus. In this was they could have acquired a perfect title; but they pursued neither course, nor did they bring the matter in any form before the District Court of the United States. The maritime liens therefore continued attached to the vessel after the sheriff's sale, and until sold by the marshal, when Mr. Taylor became the purchaser.

If the doctrines laid down in this case by the Supreme Court of Pennsylvania, and on which the judgment of that court can alone be sustained, are to be adopted as the maritime and admiralty law of the United States, the privileged lien, heretofore supposed to belong to mariners, is in effect taken away. It will be in the power of a master or owner of a vessel, in every case, to prevent seamen from availing themselves of their lien.

This may be effected by procuring a constable to seize the vessel, and hold her in custody until she is about to sail, and then release her. It only requires a fi. fa. or attachment to issue on a judgment confessed before a justice of the peace for a small amount, to a real or pretended creditor; because, according to the doctrine of the Supreme Court of Pennsylvania, there is no peculiar potency in admiralty process in rem, against ships–'in substance, the proceeding by a justice of the peace against a stray cow is exactly equivalent.' (Record, 72; Taylor v. Carryl, 12 Harris, 261.) By the seizure of the ship, therefore, whether by sheriff or constable, the whole custody of her is in the State tribunal, (Record, 61, 77,) and any action or decree afterwards by the admiralty, in order to enforce the mariners' lien against the ship, would be in relation to a subject over which it had no control, and would consequently be void.' (Record, 61; Taylor v. Carryl, 12 Harris Rep., 269.)

Judge Wells, in his opinion delivered in the case of the Golden Gate, (Newberry's Adm. Rep., 296, 308; 5 Am. Law Reg., 155, 158,) points out other inconveniences from allowing to the process of justices of the peace, &c., the force of proceedings in rem. 'If,' says he, 'there is an average of fifty counties to each State, and twenty justices of the peace to each county, we should then have in the United States thirty-one thousand courts of admiralty and maritime jurisdiction, to say nothing of the courts of record,' &c. (5 Am. Law Reg., 158, 159.)

The Supreme Court of Pennsylvania have decided that, by the law of that State, a seaman may come into her courts and enforce his maritime lien for wages against the proceeds of a vessel sold by the sheriff. Although this be a doctrine unknown to the old common law, yet there would be no reason to complain of it, if that court had not gone farther, and decided that the seaman's only remedy in such a case was in the State court, and that he had no longer a right to enforce his lien in the admiralty. The State court undertook to define the limits of the jurisdiction of the admiralty courts; and if it has erred in this, it is the right and duty of the Supreme Court of the United States to correct the error, and whilst asserting the legitimate jurisdiction of the admiralty, to administer the maritime law as it has been recognised and established by the Constitution and laws of the United States. It is an important function of this court to defend the lawful jurisdiction of the admiralty, and the just efficacy of its process against judicial as well as legislative encroachment, among other reasons, because on these mainly depend the rights of seamen and others having maritime liens.

In this case, the Supreme Court of the United States is not called on to alter in any respect the municipal law of Pennsylvania, but simply to declare that the additional remedy allowed to seamen by that law does not oust the admiralty of its exclusive jurisdiction, if the seamen prefer a recourse to it, rather than to the remedies provided by the State law.

A reversal, therefore, of the judgment of the Supreme Court of Pennsylvania will involve no victory of Federal over State authority and power. It will concede to the admiralty and maritime jurisdiction of the Federal courts nothing but what the stanchest friend of State rights and the most jealous adversary of Federal encroachment may safely concede, because imperatively required for the safety and protection of a class of men whose rights are specially protected by the commercial codes of every civilized nation, and by none more carefully than by that of the United States; rights, in the maintenance of which the Commonwealth of Pennsylvania and her people are as much interested as the people of any of the other States, for the sake of those of her citizens (and they are very numerous) who have devoted themselves to the sea.

The third point of the counsel for the defendant was the following;

Third Point. The judgment below on the merits of the controversy determined by it is free from error.

I. The plaintiff below, by his purchase at the sheriff's sale, acquired a good title to the barque 'Royal Saxon.'

1. By the process of foreign attachment, and the possession of the sheriff under that process, the barque was in the custody of the law, to abide the result of the suit in which process issued. (Act Penn., June 13, 1856, secs. 48, 50; same, March 20, 1845, sec. 2; Morgan v. Whatmaugh, 5 What., 125; Serg. For. Att., 1, 23.)

2. Its sale, pending the suit, as perishable property, was regular, and by authority of a competent court having jurisdiction.

3. The judicial sale of property as perishable is, in the nature of the procedure, and from the same policy and necessity which occasion the sale, a conversion or transmutation of the thing itself, overriding every question of title and lien.

(1.) The right and power of such sale are not supported upon any notion or determination of title, but wholly upon the condition of the thing sold.

(2.) The motive and effect of the sale are for the benefit of the real title and of every valid lien, to save from perishing to the owner and the lienor the subject of his property or lien.

(3.) To say the court has this right to sell the thing in its custody, and exercises this right, and yet the buyer at such sale does not take the thing sold, but only the right, title, or interest, of some particular person or persons, is insensible, and subversive of the whole doctrine of sales by necessity. (Foster v. Cockburn, Sir Thomas Parker's Exch. R., 70; Jennings v. Carson, 4 Cranch, 26, 27; Grant v. McLaughlin, 4 Johns. R., 34; The Tilton, 5 Mas., 481, 482.)

(4.) The remedy of any party whose property has been, without right as against him, brought into this peril of litigation which has necessitated, and so justified, its valid sale, is by action against the suitor or the officer who has wrongfully subjected it to this conversion, or by claiming upon the proceeds of the sale, at his election.

II. The defendant below, by his purchase at the marshal's sale, acquired no title to the barque.

1. When the attachment and monition issued in the admiralty suit, the barque was in the custody of the sheriff of the county of Philadelphia, and so continued until after the order for its sale as perishable.

The marshal, therefore, never had custody, nor the District Court possession, of the barque, to support any jurisdiction to sell as perishable. (The Robert Fulton, 1 Paine C. C. R., 625, 626; Hagan v. Lucas, 10 Peters, 403; Jennings v. Carson, 4 Cranch, 26, 27.)

2. The effect of a sale in admiralty, pending a suit, of property as perishable, is not at all strengthened or qualified by the nature of the claim or lien prosecuted in the suit.

Whether the cause of action be of one degree of privilege or priority or another, the efficacy of the writ to the marshal is the same, the custody of the court is the same, and the grounds and effect of the special sale of the property in custody are the same.

So, too, whether the cause of action fail to be supported in the final decree is immaterial; the jurisdiction to sell, and the title conveyed, depending on the court's possession of the suit, and of the perishable property, and not at all on the event of the suit. (Harmer v. Bell, the case of the Bold Buccleugh in Privy Council, 22 Eng. L. and E.)

3. The title of the defendant below, then, derives no special validity from the peculiar privilege among ...

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