Thorsen v. The Schooner "J. B. Martin"

| Wis. | Jun 15, 1870

Paine, J.

There are two good answers to the objection that the state court had no jurisdiction. The first is, that the contract for the original equipment of the vessel was not a maritime contract, within the supposed exclusive admiralty jurisdiction. People’s Ferry Co. v. Beers, 20 How. 393" court="SCOTUS" date_filed="1858-05-18" href="https://app.midpage.ai/document/peoples-ferry-company-of-boston-v-beers-87162?utm_source=webapp" opinion_id="87162">20 How. 393; Roach et al. v. Chapman et al., 22 id. 129. In the former case the contract was for building the hull of a vessel. And the court, in holding it not to be a maritime contract, within the admiralty jurisdiction, naturally enough mentions the fact that it was a contract made upon land, and to be performed on land. But it Is obvious enough, from the whole opinion, that that fact was not considered as the criterion by which the question was to be determined, and that, on the contrary, it depended upon the fact whether the contract related directly to actual commerce and navigation, “to a voyage to be performed,” or merely to the original construction and equipment of the ship, so as to prepare it to enter upon the business of navigation. And this being the test, it cannot be material to the result whether the contract for the construction or equipment is to be performed before the hull is launched or afterwards. It lias precisely the same relation to actual commerce, navigation and “ voyages to be performed,” in the one case as in the other. In the other case, the contract sought to be enforced in admiralty as maritime, was for furnishing the boilers and machinery to a steamboat, which, although the fact is not mentioned, were undoubtedly furnished and put in after the hull of the vessel was launched. And yet it was held that the federal court had no jurisdiction. The court said : “ A contract for building a ship, or supplying engines, timber or other materials for her construction, is clearly not a maritime contract.” There can, of course, be no distinction in this respect between a contract to supply machinery for the original construction of a steamboat, and one to supply sails, cordage, etc., like the one here, for a sail vessel.

Another answer is, that even though the contract were within the admiralty jurisdiction, yet, in cases arising upon the lakes, that jurisdiction is not exclusive, but concurrent with that of the state courts over remedies given by state laws. We are aware that by the decision of the United States supreme court in The Eagle (8 Wall. 15" court="SCOTUS" date_filed="1869-11-18" href="https://app.midpage.ai/document/the-eagle-88065?utm_source=webapp" opinion_id="88065">8 Wall. 15), which seems to be the latest exposition of the law upon this subject, the act of congress of 1845, which was passed for the purpose of extending the admiralty jurisdiction over the lakes, is held to have been to a great extent inoperative, since the decision of that court in the case of the Genessee Chief (12 How. 443" court="SCOTUS" date_filed="1852-02-20" href="https://app.midpage.ai/document/the-propeller-genesee-chief-v-fitzhugh-86711?utm_source=webapp" opinion_id="86711">12 How. 443), which obliterated the distinction between tide waters and other navigable waters, and held that the admiralty jurisdiction extended equally over both by virtue of the constitution and the original act of congress of 1789. The fair result of the opinion seems to be, that inasmuch as the act of 1845 was passed in consequence of a general misapprehension as to its necessity, the court would not give effect to it as a restriction upon the jurisdiction which existed without it.. But its remarks upon this subject relate to the effect of the act as a direct restriction upon the jurisdiction of the federal courts, growing out of the clause limiting the jurisdiction to vessels of twenty tons burden, or upwards, and to cases of contract and tort. But notwithstanding this, the court does not hold the act wholly inoperative. They expressly' hold it effectual so far as to secure to the parties the right of trial by jury. There seems nothing in the opinion from which it can justly be inferred that any different view should be taken of its effect in securing to the parties also any concurrent remedy under the state laws. The legislative intent was as clear in respect to the one as to the other; it was as competent for the legislature to make the one provision as the other; and the provision saving this concurrent remedy does not seem to be within either the letter or the spirit of the remarks of the court in respect to the effect of the act as a restriction upon the jurisdiction of the federal courts. The saving of a concurrent remedy under the state law cannot be regarded as any restriction upon that jurisdiction. And it is difficult to see, so long as the act is held operative at all, upon what ground the legislative intent, thus clearly expressed, could be disregarded; for it would not be contended that it was not competent for congress so to provide.

And it is a significant fact, supporting this conclusion, that while the court holds that clause reserving the concurrent remedy at common law to have had no effect, because it was the same in substance as the provision of the act of 1789, it yet says nothing whatever as to the clause concerning the concurrent remedy under the state laws, though found in the same sentence. This seems to indicate a studious intention on the part of the court not to express itself upon that very important question, which was not involved in the case before it, and as to which its remarks could not have been regarded as authority. And we can see nothing in the case, fairly considered, inconsistent with the conclusion that the act of 1845 was effectual to preserve this concurrent remedy under state laws.

The jurisdiction existing, we are not disposed to reconsider the decision of this court in Hay v. The Steamboat Winnebago, 10 Wis. 428" court="Wis." date_filed="1860-01-04" href="https://app.midpage.ai/document/hay-v-steamboat-winnebago-6597971?utm_source=webapp" opinion_id="6597971">10 Wis. 428, as to the effect of our statute in creating substantially a lien, which may be enforced notwithstanding subsequent changes of ownership. But it is necessary to decide another question, suggested hut not determined in the case of McRoberts v. The Steamboat Henry Clay, 17 Wis. 101" court="Wis." date_filed="1863-01-15" href="https://app.midpage.ai/document/mcroberts-v-steamboat-henry-clay-6598951?utm_source=webapp" opinion_id="6598951">17 Wis. 101, and that is: Inasmuch as the vessel was out of this state when the equipment was furnished, so that our laws could not reach it, at what time did the lien or liability secured by our law attach to it? Was it when the vessel arrived in this state, or not until actually seized on a proceeding against it? It was there suggested that the legislature undoubtedly intended to go as far as it could in giving effect to the remedy it provided. And that would lead to the conclusion that the right secured by our laAv should he held to attach as soon a-s the vessel came within our jurisdiction, in all cases where there had been no prior change of ownership. This is a very strong case for the application of that rule; for, though the vessel was actually built out of this state, yet Milwaukee was her home port, and both the owner and the parties furnishing these supplies resided there, and were citizens of this state. The case is therefore peculiarly one which ought to be subject to our laws. We hold, therefore, that as soon as the vessel reached this state it became subject to the liability provided by our statute, and that whoever acquired a subsequent interest in it, acquired it subject to such liability. And it follows that the plaintiffs had a prior right to enough of the proceeds of the sale to satisfy their claim over the subsequent mortgagees. There is nothing in the act of congress concerning the necessity of registering hills of sale, mortgages, hypothecations or conveyances of vessels, which can defeat liens under the state laws. That act relates to written conveyances. And the fact that it makes an exception in favor of “ liens by bottomry,” affords no implication of an intention to destroy all other liens not arising out of a written conveyance or contract capable of record. A lien by bottomry was created by a bottomry bond, originated in circumstances óf necessity, and had this peculiar quality, that the last bottomry lien had priority instead of the first. It was undoubtedly the peculiar nature of this lien, and the fact that it was created by a written instrument capable of being recorded, and might therefore be held to be within the general language of the act, that induced the exception. But it affords no just implication of an intention to destroy all claims for liens under state statutes, for work, materials and supplies to vessels, in which there is no attempt at any written conveyance of the vessel, and which could not, therefore, be held to fall within the general language of the act, so as to need any exception in their favor.

The order appealed from must be affirmed.

By the Court. — Order affirmed.