Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

the decree, upon the ground that "it did not appear CHAP. 11. by the record that the note had been tendered to be given up, or actually surrendered at the hearing in the court below, it not being necessary to consider the general question of jurisdiction."

But Mr. Justice JOHNSON thought proper to place his decision upon different and higher grounds, and to avail himself of the occasion to inculcate the necessity of checking, what he considered the "silent and stealing progress of the admiralty in acquiring jurisdiction to which it had no pretensions." He accordingly entered into a comprehensive survey and examination of the history and present state of the admiralty jurisdiction over contracts in England. His conclusion was, that the extensive jurisdiction exercised by the admiralty before the statutes of Richard II, was founded in usurpation, and required to be restrained; that the decisions of the courts of common law upon these statutes, and relative to the extent of the admiralty jurisdiction generally, were sound; that it belonged of right to these courts to restrain the admiralty within proper bounds; that their adjudications afford the only safe and authoritative exposition of the laws upon the subject, and that it was incorrect, therefore, to characterize the jurisdiction once in possession of the admiralty, but now exercised by the courts of common law, as a disputed jurisdiction. He insisted, therefore, that with the single exception of seamen's wages, there was no contract upon which a suit in personam could be maintained in the admiralty, and that there was not the slightest ground for saying that there was a concurrent jurisdiction in matters of contract between the admiralty and the courts of common law,1

1 In the case of De Lovio v. Boit, as we have seen, the decision was, that the district courts possess jurisdiction (as courts of admiralty), of

PART 1. the rule running through all the cases being, that if the common law can give full redress, that alone takes away the admiralty jurisdiction.

The contract of bottomry, though sometimes cited as an instance of concurrent jurisdiction, served only to illustrate this rule; for if executed by the master the only remedy was by proceeding in rem, and it was, therefore, exclusively cognizable in the admiralty, but if executed by the owner, it became a personal contract, and as such was always enforced in the courts of common law, like the contract of respondentia, which though as much a maritime contract as bottomry, gives no jurisdiction to the admiralty either in rem or in personam. He considered the doctrine that the admiralty and maritime jurisdicsuits on marine policies of insurance, concurrently with the courts of common law, i. e., the state courts. And in a note subjoined to the case (by the learned judge who delivered the opinion, it is presumed), it is said, "there can be no possible question that the courts of common law have acquired a concurrent jurisdiction, though upon the principles of the ancient common law, it is not easy to trace a legitimate origin to it." 2 Gallison, 476. This doctrine of a concurrent jurisdiction between the district courts as courts of admiralty, and the state courts, has also received the solemn sanction of the courts of New York. In the case of Hallet v. Novion (14 Johnson, 273; S. C., 16 Johnson, 327), and of Percival v. Hickey (18 Johnson, 257), which were cases of marine tort, the admiralty jurisdiction of the district courts was largely and ably discussed. In both cases it was strenuously contended that the state courts had no jurisdiction. The question in both cases was examined and decided chiefly upon English authorities. In the first case it was held that the state court had no jurisdiction, because the question presented by it was a question of prize, and therefore exclusively cognizable in the admiralty. In the second case, the jurisdiction of the state court was sustained, upon the ground that the case, though of adıniralty jurisdiction, and therefore cognizable in the district court as such, belonged to the instance and not to the prize jurisdiction, and was one, therefore, of which from its nature, according to the English decisions, the courts of common law, as well as the courts of admiralty, might, and in fact did, exercise jurisdiction. See Kent's Commentaries, vol. 1 (3d ed.), p. 377, note c; and 1 Story's Commentaries on the Constitution of the U. S., p. 533, note.

tion, vested by the constitution of the United States, CHAP.11. was that which the English admiralty possessed, or pretended to, before the time of Richard II, as wholly untenable and not warranted (as was supposed in the case of De Lovio v. Boit), by the early American decisions, the weight of authority being against it; and as it regarded the more recent decision in the case of De Lovio v. Boit, it was in direct conflict with a decision in the circuit court for the sixth circuit.

It was admitted by Mr. Justice JOHNSON that there is a class of cases which may at first view appear to maintain the doctrine that the admiralty possesses a jurisdiction in personam. The cases of Mauro v. Almeida (10 Wheat., 472), and Sweet v. Wolff (3 Term Rep., 323), were cases of this description. But though the proceeding in these cases was in form in personam, yet they were cases quasi, and in substance in rem, in which the admiralty had jurisdiction of the principal question, not of contracts, but marine torts and prize causes, or their incidents, the process in personam being only the means of getting possession of the res subjecta; that is of exercising an unquestionable jurisdiction in rem. He admitted, also, upon the authority of the St. Jago de Cuba (9 Wheat., 409), that in a case where a hypothecation would have been legal and valid, the claims of material men may be satisfied out of money in court.

Mr. Justice JOHNSON, in conclusion, scrutinized the case of the General Smith (4 Wheat., 438), which has so often and so confidently been quoted as supporting the doctrine that the admiralty possesses a general jurisdiction in personam and in rem, of suits by material men. The case was this: The vessel was owned in Baltimore, and the libelant furnished for

PART 1. her use various articles of ship chandlery to equip her for a foreign voyage. The libel set forth these facts, and prayed the usual process against the ship, and that she should be sold under a decree of the court, to pay and satisfy the libelant's claim. The district court ordered the ship to be sold and decreed that the libelant should be paid out of the proceeds. This decree was, on appeal, affirmed pro forma, in the circuit court, and came before the supreme court on further appeal.

The only point directly in judgment, it will be seen, was, whether a suit in the district court, as a court of admiralty, could be maintained by material men against a domestic ship, in a state where the local law gave no specific lien. The supreme court decided that such a suit could not be maintained; but put its decision exclusively upon the ground that the common law, which was the law of Maryland, gave no lien,' and the ship not being a foreign vessel, the

'In New York a lien is given by statute, in favor of material men and shipwrights, and for wharfage and the expenses of keeping the vessel in port, when the debt amounts to fifty dollars; which lien may be enforced by a summary proceeding before certain judicial officers of the state. (2 Revised Statutes, 493.) And in the case of The ship Robert Fulton (1 Paine, 620), it was held that the district courts in this state, as courts of admiralty, have a concurrent jurisdiction with the state courts to enforce this lien; and that the right to maintain this jurisdiction in a particular case, attaches and belongs to that court which first exercises it, and takes possession of the thing.

Since the decision in the case of the General Smith, the jurisdiction of the national courts to enforce the lien of a material man given by a state law on a domestic vessel, has become firmly established by a series of judicial decisions. See, on this subject, Conkling's Admiralty.

This jurisdiction was asserted, as well in rem as in personam, by the 12th of the rules of admiralty practice, prescribed in 1844 by the supreme court. See 3 Howard, or Conkling's Admiralty, appendix. But in 1859, the rule was altered so as to limit the jurisdiction to process in personam, unless a lien was also given by the maritime law. See The Steamer St. Lawrence (1 Black's S. C. Rep., 522), where the reasons for this alteration are stated and explained.

admiralty law gave none. The court took occasion, CHAP. 11. however, to state its views of the admiralty jurisdiction over suits of this nature somewhat at large, and laid down the doctrine that "the admiralty rightfully possesses a general jurisdiction in cases of material men," and remarked that "if this had been a suit in personam, there would not have been any hesitation in sustaining the jurisdiction of the district court."

It then proceeded to draw a distinction between the case of repairs made, and necessaries furnished, to a foreign ship, or a ship in a port of the state to which she does not belong, in which case, it is said, that the general maritime law, following the civil law, gives the party a lien on the ship itself for his security; and the case of such repairs made and necessaries furnished in the port or state to which the ship belongs, in which case the municipal law of that state is to govern, and no lien is implied, unless it is recognized by that law, and in pursuance of this distinction, as already stated, reversed the judgment of the court below. To the correctness of this decision of the question directly before the court, it is unnecessary to say, Mr. Justice JOHNSON fully assented. But he denied, unequivocally, most of the other doctrines advanced by the court, and summed up what he considered to be the law upon the subject, in the following propositions, viz.:

"That in case of contracts, it (the admiralty) has no jurisdiction at all in personam, except as incident to its jurisdiction in rem.

"That with regard to the contracts of shipwrights and material men in her home port, the vessel cannot be subjected, unless by express hypothecation by the owner.

"That on her voyage, and where the master is destitute of other means of raising the necessary funds,

« ΠροηγούμενηΣυνέχεια »