The Globe

10 F. Cas. 477 | U.S. Circuit Court for the District of Northern New York | 1852

NELSON, Circuit Justice.

The extension of admiralty jurisdiction to the lakes by the act of congress of February 26, 1S45 (5 Stat. 726), did not take away the concurrent remedy that existed at common law. Indeed, that act saves, in express terms, this concurrent remedy, where it is competent, and also, any com current remedy which may be given by the state laws.' It was also saved by the general act of 17S9, conferring exclusive admiralty jurisdiction upon the district courts of the United States. 1 Stat. 76, 77, § 9; New-Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. [47 U. S.] 344, 389, 390.

The remedy at common law is to be sought in the jurisprudence of the states,, and usually in the courts of the states. It may be administered in the federal courts in cases where the citizenship or residence of the parties enables those courts to entertain the jurisdiction. Act Sept. 24, 17S0 (1 Stat. 78, 79, § 11). The modes of proceeding in pursuing this remedy are different in the different states, as it respects both the commencement of the suit and the steps taken in conducting it. Undoubtedly, as a general if not universal rule, in order to bind the defendant, or to confer any rights upon the plaintiff, by force of the judgment, in any personal action, the former milst be served with notice of the institution of the suit, so that he may have an opportunity to appear and defend. But a proceeding in rem forms an exception to the general rule, and binds the res in the absence of any personal notice to the party interested.. Story, Confl. Laws, c. 14. § 549, and cases cited, and chapter 15, §§ 592, 593; Boswell’s Lessee v. Otis, 9 How. [50 U. S.] 336.

There can be no doubt, therefore, that the judgments in this case, acting in rem, must be held conclusive upon the transfer and disposition of the vessel in question, in whatever place she may be found, and upon the title to her, by whomsoever it may be questioned, and whether involved directly or collaterally.

Tlie case of The Chusan [Case No. 2,717], which was referred to upon the argument, con-tains nothing In conflict with these views. That was the case of a libel in Massachusetts, •for materials furnished in the port of New York to a foreign vessel; and one of the .grounds of defence was, that the statute of New York respecting the lien of a material-man, provided that the lien should cease when •the vessel left the state. This ground of de-fence was overruled by Mr. Justice Story, for the reason that, in the. case of a foreign vessel, the lien attached by force of the maritime law, which entitled the party to come into a court of admiralty to enforce it, and that the jurisdiction of the admiralty, thus acquired, could not be taken away or controlled by the state law. This is very clear. As it respects ■foreign vessels, the jurisdiction of the admi-Talty is not dependent upon the state law, but upon the law of the seas. No matter what may be the regulations of the state on the subject, as regards the jurisdiction of her own courts, they cannot affect that of the admiralty; and any state law which' should attempt to control the admiralty jurisdiction would be unconstitutional and void.

The question, what would be the effect of any concurrent remedy given by the state law, when it should be enforced against the vessel by a court of the state, was not involved in the case of The Chusan [supra], nor was it examined by Judge Story. The only remark made by him in that case, from which an inference could be drawn in conflict with the views I have expressed in this case, is, that the statute of New-York would be unconstitutional if applied to foreign vessels. But that remark was made in answer to the argument that the statute controlled the jurisdiction of the admiralty; and, in that view, the statute would have been unconstitutional.

It may be remarked, however, that it is unnecessary to place the decision of this branch •of the case upon the ground that the Ohio judgments, acting in rem, would be conclusive in the absence of any personal notice to the party interested, because Robinson, the owner of the vessel at the time, appeared in the suits in the court in Ohio, and contested the proceedings throughout.

These views dispose of the case, so far as the claims of the libellant upon the vessel are concerned, unless the fact that his supplies and materials were furnished to her prior to the time when the repairs were made and the materials furnished to her by the Ohio creditors, gives him a lien which, in judgment of law, overreaches the proceedings and judgments in the Ohio court, and which he is entitled to enforce in the admiralty.

It has been argued, that this maritime lien against a vessel, for supplies and materials furnished to her master at a foreign port, is an abiding lien, and adheres to the vessel, and may be enforced over all claims of a like nature subsequently accruing in the course of her employment. I cannot assent to this position. On the contrary, I am satisfied that the true rule upon the subject is that, in respect to maritime liens of this description, the party first instituting legal proceedings, for the purpose of enforcing his claim against the vessel, is entitled to satisfaction out of the proceeds of her sale. Upon any other view, the vessel would afford no reasonable security to the merchant in making advances or furnishing the necessary supplies; as, for aught he could know, the existing claims against her might exceed her value. It is apparent that, to give to this maritime lien the efficacy claimed, would greatly embarrass and obstruct the commerce and navigation of the country. It would deprive the master, in distant ports, of the means of meeting the exigencies of the service, because the vessel would furnish no adequate security for the necessary supplies or repairs.

The question has been the subject of examination by the learned district judge for the Southern district of New York. In a case which came before him in 1S41, he held that the true meaning of a maritime lien was, that it rendered the property liable to the claim without a previous judgment, or decree of the court, sequestering or condemning it, or establishing the demand, as at common law, and that the action in rem carried it into effect; that the appropriation of the property to that end became absolute and exclusive on suit brought, unless superseded by some pledge or lien of paramount order; that it resulted from the nature of the right and the proceedings to enforce it, that the first action by which the property was seized was entitled to hold it as against all other claims of no higher character; that the lien, so termed, was, in reality, only a privilege to arrest the vessel for the demand, which, of itself, constituted no incum-brance on the vessel, and became such only by virtue of an actual attachment of the same.³

I concur fully in this view, and, therefore, hold, in this case, that the priority of time in the furnishing of the supplies and materials by the libellant gave him no paramount lien on the vessel over the liens of the creditors in the Ohio suits.

The error of the learned judge below consisted, I think, in holding (1) that the proceedings and judgments in the Ohio courts were void on account of the absence of notice to the party interested; and (2) that the lien of the libellant for the supplies and materials furnished by him to the vessel was paramount and overreached the judgments and sale under the laws of Ohio.

The decree of the district court must, there-forq, be reversed, and a decree be entered dismissing the libel, with costs.

3 The case referred to is that of The Triumph, in the district court for the Southern district of New York, July 27, 1841 [Case No. 14,182],