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GLIDE.

decided: May 24, 1897.

THE GLIDE.


ERROR TO THE SUPERIOR COURT OF THE STATE OF MASSACHUSETTS.

Author: Gray

[ 167 U.S. Page 609]

 MR. JUSTICE GRAY, after stating the case, delivered the opinion of the court.

The question in this case is whether the lien given by a statute of Massachusetts for repairs made upon a vessel in her home port, under a contract with her owners or their agent, may be enforced against her by petition in a court of the State, as provided in that statute, or can be enforced only in an admiralty court of the United States. The diverse inferences drawn from the previous judgments of this court, in the careful opinions of the Supreme Judicial Court of Massachusetts and of the dissenting judges in the case at bar, have induced us to state with some fulness the reasons and authorities which have influenced our conclusion.

The most convenient way of tracing the development of the law upon this subject will be to consider the principal decisions of this court in chronological order, first referring to the provisions of the Constitution and statutes of the United States which lie at the foundation of the whole matter.

By the Constitution of the United States, art. 3, sect. 2, "the judicial power shall extend" "to all cases of admiralty and maritime jurisdiction." And by provisions, still in force, of the Judiciary Act of 1789, the District Courts of the United States "shall have, exclusively of the courts of the several States," "original cognizance of all civil causes of admiralty and maritime jurisdiction," "saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." Act of September 24, 1789, c. 20, § 9; 1 Stat. 76; Rev. Stat. § 563, cl. 8; § 711, cl. 3.

The leading case in this court upon the subject of admiralty jurisdiction over suits by material men is The General Smith, decided at February term 1819, in which a decree of the Circuit Court of the United States for the District of Maryland, sustaining a libel in rem filed in the District Court for supplies furnished to a ship in Baltimore, her home port, was reversed by this court, for the reasons stated in its opinion delivered by Mr. Justice Story, as follows:

"No doubt is entertained by this court, that the admiralty

[ 167 U.S. Page 610]

     rightfully possesses a general jurisdiction in cases of material men; and if this had been a suit in personam, there would not have been any hesitation in sustaining the jurisdiction of the District Court. Where, however, the proceeding is in rem to enforce a specific lien, it is incumbent upon those, who seek the aid of the court, to establish the existence of such lien in the particular case. Where repairs have been made, or necessaries have been furnished to a foreign ship, or to a ship in a port of the State to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security; and he may well maintain a suit in rem in the admiralty to enforce his right. But in respect to repairs and necessaries in the port or State to which the ship belongs, the case is governed altogether by the municipal law of that State; and no lien is implied, unless it is recognized by that law. Now, it has been long settled, whether originally upon the soundest principles it is now too late to inquire, that by the common law, which is the law of Maryland, material men and mechanics furnishing repairs to a domestic ship, have no particular lien upon the ship itself for the recovery of their demands. A shipwright, indeed, who has taken a ship into his own possession to repair it, is not bound to part with the possession until he is paid for the repairs, any more than any other artificer. But if he has once parted with the possession, or has worked upon it without taking possession, he is not deemed a privileged creditor, having any claim upon the ship itself. Without, therefore, entering into a discussion of the particular circumstances of this case, we are of opinion, that there was not, by the principles of law, any lien upon the ship; and, consequently, the decree of the Circuit Court must be reversed." 4 Wheat. 438, 443.

The law there stated, as to repairs or supplies in a foreign port, has been since constantly recognized, and never doubted. The St. Jago de Cuba, 9 Wheat. 409, 417; The Virgin, 8 Pet. 538, 550; The Laura, 19 How. 22, 28; The Grapeshot, 9 Wall. 129, 136; The Lulu, 10 Wall. 192; The Kalorama, 10 Wall. 204; The Patapsco, 13 Wall. 329; The Emily Souder, 17 Wall. 666; The Kate, 164 U.S. 458, 466.

[ 167 U.S. Page 611]

     The only point directly adjudged in The General Smith was that there was no lien for repairs or supplies in the home port, which could be enforced in rem in admiralty, unless such a lien was recognized by the local law of the State. But the opinion clearly implied that, if so recognized, the lien could be enforced in rem in a court of the United States sitting in admiralty.

Accordingly, in the case of The Planter, at January term 1833, it was decided that a lien upon a vessel, given by the local law, for repairs in her home port, could be enforced by suit in rem in admiralty in the District Court of the United States. Mr. Justice Thompson, delivering the unanimous opinion of the court, said: "The proceeding is in rem against a steamboat, for materials found and work performed in repairing the vessel in the port of New Orleans, as is alleged in the libel, under a contract entered into between the parties for that purpose. It is therefore a maritime contract; and if the service was to be performed in a place within the jurisdiction of the admiralty, and the lien given by the local law of the State of Louisiana, it will bring the case within the jurisdiction of the court. By the Civil Code of Louisiana, art. 2748, workmen employed in the construction or repair of ships and boats enjoy the privilege established by the code, without being bound to reduce their contracts to writing, whatever may be their amount; but this privilege ceases if they have allowed the ship or boat to depart without exercising their right. The state law, therefore, gives a lien in cases like the present." He then referred to the case of The General Smith, as having "decided that the jurisdiction of the admiralty in such cases, where the repairs are upon a domestic vessel, depends upon the local law of the State"; and, after substantially repeating part of the opinion of Mr. Justice Story, above quoted, ending with the statement that, for repairs or supplies of a ship in her home port, no lien is implied, unless recognized by local law, he added: "But if the local law gives the lien, it may be enforced in the admiralty." 7 Pet. 324, 341.

The principle of the decision in the case of The Planter was stated by Mr. Justice Story, at January term 1837, as

[ 167 U.S. Page 612]

     follows: "In that case, the repairs of the vessel for which the state laws created a lien, were made at New Orleans, on tide waters. The contract was treated as a maritime contract; and the lien under the state laws was enforced in the admiralty, upon the ground that the court, under such circumstances, had jurisdiction of the contract as maritime; and then the lien, being attached to it, might be enforced according to the mode of administering remedies in the admiralty. The local laws can never confer jurisdiction on the courts of the United States. They can only furnish rules to ascertain the rights of parties; and thus assist in the administration of the proper remedies, where the jurisdiction is vested by the laws of the United States." The Orleans, 11 Pet. 175, 184. The libel against the Orleans was dismissed upon the ground that the vessel was not engaged in maritime trade or navigation, and that the admiralty had no jurisdiction of the claims made by a part-owner and by the master.

In the case of The Yankee Blade, at December term 1856, the nature of a maritime lien was clearly and exactly defined by Mr. Justice Grier, speaking for this court, as follows: "The maritime 'privilege' or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. It is a 'jus in re,' without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of courts of admiralty. The foreign and other attachments of property in the state courts, though by analogy loosely termed proceedings in rem, are evidently not within the category." 19 How. 82, 89.

The question of the extent of the admiralty jurisdiction of the courts of the United States over cases like that now before the court became at one time entangled in the question of the effect of the regulation of pleading and procedure in admiralty by this court under the power conferred upon it by the acts of Congress of May 8, 1792, c. 36, § 2, and August 23, 1842, c. 188, § 6.1 Stat. 276; 5 Stat. 518.

[ 167 U.S. Page 613]

     The twelfth of the "Rules of Practice of the Courts of the United States in Causes of Admiralty and Maritime Jurisdiction on the Instance side of the Court -- in pursuance of the Act of the 23d of August, 1842, c. 188" -- promulgated by this court at December term 1844, to take effect September 1, 1845, was as follows:

"In all suits by material men for supplies or repairs or other necessaries for a foreign ship or for a ship in a foreign port, the libellant may proceed against the ship and freight in rem, or against the master or the 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 material men for supplies, repairs or other necessaries." 3 How. iii, vi, xiv.

The last clause of that rule was in accord with the previous judgments of this court as to such proceedings in rem in the cases of The General Smith, ...


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