delivered the opinion of the court.
Two questions are raised by the record in this case, both of which are of importance.
The first is whether personal property of the'United States on board a vessel for transportation from one point to another, is subject to a lien for salvage services rendered in saving the property. .
The second is, under what circumstances, if any, can the lien be enforced, if one exists.
Of the-first proposition there does not seem to be any reasonable doubt, upon a view of the authorities.
Brown
v.
Stapyleton,
†
The Marquis of Huntley,
‡
The Lord Nelson,
§
The United States
v. Wilder,
||
The
Siren,
¶
are ail cases in which maritime liens are recognized and enforced against the property of the supreme government, the liens having their inception while the ownership of the property was in the government. The case of
Briggs
v.
The Light Boats,
**
is a case in which a lien is recognized on property of the United States, created before the title and possession passed to the United States, but in. which it was finally held, by the Supreme Court of Massachusetts, that it could not be enforced because the United States could not be sued in a personal action, and their possession could not be disturbed by a suit
in
The second of the questions above stated presents the more difficult problem.
Perhaps the two most authoritative and well-considered cases on that subject are The Siren, † and Briggs v. The Light Boats. ‡ Both these cases assert the doctrine, after a full review of the authorities, that such a lien cannot be enforced where, in order to do this successfully, it is necessary to bring a suit against the United States, because the doctrine is well established that no suit can be sustained in which the United States is made an original defendant, to be brought into court by process, without some act of Congress expressly authorizing it to be done.
They also both assert the proposition that’ no suit in rem- can be maintained against the property of the United States when it would be necessary to take such property out of the possession of the government by any writ or process of the CQurt.
There are some expressions in the opinion of this court in the case of
The Siren,
which seem to imply that no suit
in rem
can be instituted "against property of the United States under any circumstances. But a critical examination of the case and the reasoning of the court, will show that that question Was not involved in the suit; and that it was not intended to assert such a proposition without qualification. In that case a prize, after capture and before condemnation,
In the English courts, when it is made to appear that property of the government ought, in justice, tó contribute to a general average, or to salvage, it seems to be the usual course of proceeding for the proper officer of the government to consent in court that it may take jurisdiction of the matter. This consent is given by the authority of the king, who thus submits to be sued in his oWu courts. The liberal exercise of this authority removes the difficulty presented here, where, no power to do this exists in any officer of the government, and prevents any apprehension of gross injustice in such cases in England. *
We are therefore compelled to inquire into the special circumstances of this case to ascertain whether the cotton, which was the subject of salvage, can be brought within the jurisdiction of the court without violating the principle we have stated. In doing this the absence of. any such power to submit the case to the jurisdiction of the court, ás that exercised in England, .seems to justify a liberal construction
Bringing the facts of the case before us to the test of these principles, the case was the usual one of a common carrier contracting to déliver goods on his own responsibility, and not the case, as alleged by the United States, of a charter of the vessel. The.goods were then delivered to the master, and he contracted to deliver them-to the agent of the United States in New York. Immediately on her arrival, and before any of the cotton was delivered to the agent, the vessel and cargo were libelled and taken possession of by the marshal under the writ which issued on the libel being filed. The possession of the .master of the vessel was not the possession of the United States. He was in no sense an officer
Degree aeeirmed.