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ducted on both sides with commendable zeal and ability, and elaborate research. I have also received much aid from an instructive brief of Messrs. H. H. Swan and J. W. Finney, proctors and advocates for libellants in another suit now under advisement and in which this same question is involved.
It will be seen that the second proposition lies at the foundation of the entire argument; because it is only by maintaining it, that the others are of any consequence. The second proposition will therefore be first considered. In considering this proposition, it must be borne in mind that the Champion was a vessel of the United States and therefore foreign to the place where the necessaries were supplied.
It is too well settled and understood to need citation of authorities, or admit of discussion, that, as to domestic vessels, jurisdiction to enforce the lien accorded by the maritime law to material-men, by action in rem in the admiralty or elsewhere, was long since overthrown and denied in England, and the lien itself held never to have had any existence there. Such has hitherto always been the rule in the United States also, where the maritime law was at first adopted as it was administered in England, together with all its inconsistencies and incongruities as applied to the condition of things here. The incongruity of limiting the jurisdiction to tide water has already been abandoned, and has ceased to mar the harmony of the system ; and judging from the recent amendment of Admiralty Rule 12 by the supreme court, and certain foreshadowings by recent enunciations from the bench of that court, and to which
be added a recent decision by the district court for the Eastern District of Missouri, it is evident that this other is about to meet the same fate. Wilson v. Bell, 6 Chicago Leg. News, 261; The Commonwealth, 20 Internal Revenue Record, 64; S. C. 6 Chicago Leg. News, 234.
But it is by no means so well settled, although seemingly so understood, that the denial of jurisdiction in the admiralty to enforce liens of material-men, extended to necessaries supplied in England to foreign vessels, and much less so in regard to the existence of the lien in such cases. It is true, it seems to be assumed by Mr. Abbott in his excellent work on shipping (pages 142 to 150), and it was no doubt held by the court of king's bench, that the denial went to that extent, both as to the jurisdiction and the existence of the lien. To my mind, however, it is apparent from the notes to those pages of Abbott, and the cases there cited and commented on in both text and notes, that the controversy in this respect between the admiralty and common law courts of England never was entirely settled and determined, the one way or the other; that, in fact, that controversy continued as to foreign vessels until it was finally disposed of and determined in favor of the admiralty, by the statute of 3 & 4 Vict. supra. The high court of admiralty did not understand the denial to have gone to the extent claimed, certainly as late as 1834. In that year, in the case of The Neptune, 3 Hagg. 129, 140 ; 8 Eng. Adm., Sir John Nicholl, delivering the opinion of the court, says: "In England, then, the law of nations, of which the lex mercatoria is a branch, forms part of the common law, unless it be altered or controlled by parliament or the municipal courts. It is clear that by the civil law, and by the general law of other nations, when uncontrolled, persons who
have furnished materials for the fitting out of a ship have a lien upon the ship itself, and if so, upon the proceeds of the ship. If an English ship were repaired in France or in Holland, material-men might there arrest and enforce payment against the ship itself. How far a foreign ship repaired here might not be subject to the same right is a question into which it is not necessary now to inquire, for the Neptune is a British ship, and in such case the municipal courts of this country have so far departed from the rule of the civil law that they have held that the lien does not extend to the ship itself; and so far, therefore, this court is restrained; but they have not gone further.” It is true, the Neptune, being a domestic ship, and the repairs having been done in England, and the application in that case being to participate in surplus proceeds, and not a proceeding against the ship itself, the point thus discussed was not directly involved; but what was said none the less shows that, in the opinion of Sir John Nicholl at least, the question of lien for necessaries supplied to a foreign vessel in England had not then passed beyond controversy in her courts.
The judgment in that case was afterwards reversed by the privy council, 2 Knapp's Cases, 94, on the ground that it allowed a party to participate in proceeds who had no lien upon the vessel itself; and it became a leading case and was deemed a final determination of the question of lien for necessaries supplied in England, so far as it related to domestic ships.
The statute of 3 & 4 Vict., supra, must be regarded, I think, as declaratory, .or at least as a recognition, merely, of what the maritime law then was, so far as concerned the question of lien for necessaries supplied to a foreign ship, whether within the body of a country or upon the high seas, and not as introducing a new principle into English jurisprudence. This, I think, is abundantly evident from the language of the enactment itself, which is as follows: “ The high court of admiralty shall have jurisdiction to decide all claims and demands whatsoever in the nature of salvage services rendered to or damage received by any ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce payment thereof, whether such ship or vessel may have been within the body of the country or upon the high seas, at the time when the services were rendered, or damage received, or necessaries furnished, in respect of which such claim is made. Abb. on Ship. 150. It will be noticed that the act does not purport to create a lien. It leaves that question just where it stood before, and, of course, to be determined by the maritime law. It seems to assume the existence of the lien, and then simply restores to the admiralty a jurisdiction in relation to it, of which it had been deprived by the municipal courts. That this is the light in which that act was regarded by the high court of admiralty, is evident by the subsequent decision of that court in at least two cases. One, The Alexander, 1 W. Rob. 288, soon after the act went into operation, holding that the jurisdiction conferred by the act was not confined to cases of necessaries supplied after it went into operation; and the other, The Wataga, Swab. 165, at a later period (1856), holding that the jurisdiction conferred by the act extended to claims for necessaries supplied to a foreign vessel in colonial as well as in British ports.
In the case of The Alexander the libel was in rem against a Norwegian ship for necessaries supplied to her in England in 1835, five years before the act went into operation. The jurisdiction of the court was contested on the ground that the act did not affect past claims. But the court held the contrary, and maintained the jurisdiction. In the course of the opinion (p. 291), Dr. Lushington said: "Now the action in the case is brought in virtue of the particular statute recently enacted, and without that statute the court would not have been justified in entertaining the suit at all ; for although the subject matter of the case clearly falls within the original scope of the maritime law, before the passing of the statute the court might have been prohibited from proceeding in the cause, on the ground that the common law had narrowed the general jurisdiction originally belonging to this court; such prohibition is now taken off by the statute, but looking to the words of the act I do not find any expressions limiting the jurisdiction of the court to cases accruing subsequent to the period when the act came into operation." The learned doctor treated the statute simply as an act of delivery of the admiralty from the thraldom in which it had been held by the common law courts; and he maintained the jurisdiction, not because the statute created a lien, or that the claim or cause of action had any foundation in it, but because the lien, claim, and cause of action clearly fell “ within the original scope of the maritime law,” and had their foundation in it. I consider the learned doctor's position entirely sound, and am not aware that its soundness has ever been questioned.
In the case of The Wataga the application was for payment out of the proceeds of an American ship for necessaries supplied to her in 1856, at the Cape of Good Hope, a British possession — the case being, in its incidents, almost identical with the one now under consideration. The application was opposed on the ground that the statute of 3 & 4 Vict. ch. 65, sec. 6, was not intended to apply to the case of necessaries supplied to a foreign ship in a port at a distance from England, though a British possession. But Dr. Lushington, by whom this case was also decided, held otherwise, and maintained the jurisdiction. The decision in that case would maintain the jurisdiction in this in that same court. At the close of the opinion (p. 167), and after fully discussing the object and purposes of this act, he throws out the following significant intimation: “ This claim must be maintained; but I am by no 'means clear, even if I am mistaken on the point of colonial ports, that it could not be supported under the narrower interpretation.”
The high court of admiralty seems, in fact, never to have relinquished its claim that under the general maritime law there was a lien for supplies, whether to domestic or foreign vessels, or whether within the body of a country or upon the high seas, only so that they were necessary and were furnished upon the credit of the ship. It simply surrendered to the superior jurisdiction and powers of the common law courts, and ceased to exercise the jurisdiction to enforce the lien. When parliament in part took off the prohibition imposed by the common law courts, by the statute of 3 & 4 Vict., the high court of adıniralty to that extent simply resumed that which it had all along claimed as its right, and proceeded at once to enforce a lien which it assumed, and no doubt rightfully, had simply been in abeyance.
That the lien for necessaries supplied to a ship, recognized by the general maritime law, always existed in England as to foreign ships, before as well as after the act of 3 & 4 Vict., was assumed by our courts from the earliest period of the exercise of admiralty jurisdiction here; for wbile adopting, in the main, the admiralty jurisprudence of England as there exercised, the supreme court of the United States from the beginning assumed and fully recognized the existence of the maritime lien for necessaries supplied to a foreign ship in all cases, and the jurisdiction of the federal admiralty courts to enforce it. See General Admiralty Rule 12. This rule, from the beginning, and all through its various modifications by amendments or otherwise, has always assumed the existence of the lien, and provided for its enforcement. This has always been true of it as to foreign ships, and recently it has been so amended as to drop all distinction in that regard.
Maritime liens for necessaries supplied in England to a foreign ship, I am satisfied have always had an existence there. Jurisdiction to enforce them was alone prohibited. It is well settled, however, that want of jurisdiction to enforce a maritime lien in any particular locality is not fatal to the existence of the lien itself. The lien exists by virtue of the maritime law, and it follows the ship wherever she goes, and may be enforced wherever there is a jurisdiction to enforce it. The Maggie Hammond, 9 Wall. 435, 451 ; The Avon, 6 Chicago Leg. News, 41. And this applies as well to the objection that there is no jurisdiction to enforce a maritime lien in the Province of Ontario, where the cause of action in this case arose.
The question of lien in this case, therefore, in the absence of any positive enactment to the contrary, must be determined by the general maritime law, and by that law there was a lien, and also jurisdiction in this court to enforce it.
No objection was made that the necessaries in question were not supplied upon the high seas, or upon tide water, as those terms are understood in English admiralty jurisprudence, and that therefore there could be no lien, and it is therefore unnecessary to consider it.
The omission of learned counsel to make that objection was undoubtedly for the very good reason that since the decision of the United States supreme court in the case of The Eagle, 8 Wall. 15, and of the United states circuit court for the Northern District of Ohio, by Emmons, circuit judge, in the case of The Avon, 6 Chicago Leg. News, 41, that objection has no longer any force in our courts. This may be said to be especially so under the authority of the supreme court in the case of The Eagle, supra, in a case like the present, arising upon the great boundary waters between this country and British North America, constituting as they do great national thoroughfares, international in their character, and common to the vessels of both countries.
There are many decisions of the admiralty courts of the United States which have a bearing upon the question presented by the ground of defence here under consideration ; but it would serve no useful purpose to enter into an analysis of them here. A few of the leading ones, as far as I have taken the time to examine them, are, however, here cited : The Eagle, 8 Wall. 15; The Maggie Hammond, 9 Ib. 135, 451; The Avon, 6
Chicago Leg. News, 41; The Rebecca, Ware, 191, 192; The Phoebe, Ware, 267, 268, 271; Dupont v. Vance, 19 How, 171 ; The Boston, Blatchf. & Howl. 325; The Siren, 7 Wall. 156, 158; The Jerusalem, 2 Gall. 349; The Chusan, 2 Sto. 466 ; Pope v. Nickerson, 3 Sto. 477; see also Abb. on Ship. 142 to 150; 2 Kent Comm. 8th ed. 281 ; 2 Pars. on Ship. & Adm. 322; Sto. Confl. of Laws, sec. 286 c.
The second proposition of the argument in support of the first ground of defence, viz. : that there was no lien and therefore no right of action in rem in this case, is not sustained ; and with that the whole superstructure of the argument in support of that defence falls.
Second. The lien and jurisdiction to enforce it being maintained in favor of the original creditor, was the lien divested by the assignment of the claim ?
Upon authority, I am clear that this question must be answered in the affirmative. It has been so held in every case in the federal admiralty courts to which my attention has been called, in which the decision was not evidently influenced by special circumstances.
In the case of The Patchin, 12 Law Reporter, 21, Judge Conkling, in a well reasoned opinion, so held in regard to mariners' wages. He notices a distinction between liens for wages and liens on bottomry bonds, and bills of lading which are assignable, on the grounds that the bond is an express hypothecation and binds the ship to the lender and his assigns; and that the bill of lading is negotiable, made so by law for the benefit of trade, and its transfer carries with it the title to the goods shipped, and of course the right to maintain a suit upon it in case of their loss; while, on the contrary, the right of the mariner to proceed against the ship in specie is conferred upon him for his own exclusive benefit, and arises by implication merely. He held that liens of the latter character are strictly personal. He recognizes that the claim or debt may be lawfully transferred, but holds that the lien does not follow.
In the case of Reppert v. Robinson, Taney's Decisions, 492, 498–9, the libel was in personam for repairs and supplies. In delivering his opinion, Chief Justice Taney said : " But if it appeared upon the proceedings that when the suit was brought Hamilton held this due bill as assignee, and the proceedings were instituted for his benefit, I do not think the admiralty jurisdiction could have been maintained ; the right to sue in admiralty upon claims of this description is personal, and is maintained upon principles and for reasons which do not apply to the assignee.” Certainly, if no jurisdiction in personam, there can be none in rem.
In the case of The George Nicholaus, Newb. 449, 454 to 457, the libel was in rem for salvage, and Judge McCaleb held that the same rule applies to liens for salvage as to those for wages, and that they are not assignable ; citing with approbation Judge Conkling's opinion in The Patchin, supra.
In the cases of The Æolian, 1 Bond, 267, and The Freestone, 2 Bond, 234, 242, the libels were in rem for wages, and Judge Leavitt held the same as Judge Conkling in The Patchin and Judge McCaleb in The Frecstone.
These are all the cases in the federal admiralty courts in which this doctrine has been maintained, to which my attention has been called or