Weston v. Morse

40 Wis. 455 | Wis. | 1876

Ryan, C. J.

It is too late, while the supreme court of the United States abides by its present rule of decision, to question the authority of state law to give certain maritime liens on domestic ships in home ports. It is also too late to doubt the exclusive jurisdiction of federal courts to enforce such liens m rem. The Moses Taylor, 4 Wall., 411; The Belfast, 7 id., 624; The Eagle, 8 id., 15; The Lottawanna, 21 id., 558. How the exclusive jurisdiction of the federal courts to administer, is reconcilable with the authority of state law to create maritime liens, is a question witli which state courts have no concern, and which seems to trouble the federal courts not a little. It is enough for us that their jurisdiction over the subject is exclusive.

There is, perhaps, no doubt that sec. 1 of ch. 154 of 1871 gives a maritime lien, independent of the proceeding which the subsequent sections authorize, and of the jurisdiction to entertain it which those sections undertake to confer. But the question for us to determine is, whether the proceeding is a suit m rem, and the jurisdiction in the nature of admiralty-jurisdiction. If such be the character of the proceeding and jurisdiction, the statute of 1871 is open to the same objection as ch. 184 of 1869, and is inoperative to confer jurisdiction on the courts of the state. Campbell v. Sherman, 35 Wis., 103.

If the statute before us had authorized a proceeding by attachment against the owner of a vessel and the vessel by name, for the debt of the owner, of whatever nature, we should have probably been disposed to hold it in the nature of a common-law remedy, within the jurisdiction of the courts of the state. But that is not the proceeding which the statute authorizes. It applies to liabilities incurred by the master, owner, agent or consignee of a vessel; and authorizes an attachment against the person incurring the liability and the vessel by name, and judgment and execution against the vessel by name, whether the defendant be master, owner, agent or consignee. If the demand sued on is found not to be a lien upon the vessel, still a personal judgment is authorized against the defendant. This appears to be a mixed proceeding, m personam against the master, owner, agent or consignee, and m rem against the vessel. The liability of the vessel is to be determined against itself, whatever may be the particular relation to it of the personal defendant; so that there may be judgment of sale against it for the lien, in a proceeding to which the owner is not a party. It is not against the interest of tbe defendant in the vessel that judgment is to go; but against the vessel itself, whoever may be the owner, and whether or not a party. So far as it relates to the vessel, we take this to be strictly a proceeding m rem; none the less so because it is joined with a proceeding m personam against the person contracting the debt for it. This appears by the whole object and scope of the statute, which is to create and enforce maritime liens on vessels for debts due upon maritime contracts. Such a proceeding must necessarily be m rem; and the jurisdiction to entertain it is essentially a jurisdiction in admiralty.

It is true that the statute provides that the owner or other person having interest in the vessel, not made a defendant, shall, upon his application, be admitted to defend. This is probably the general rule in courts of admiralty; and the mere right of the owner to make himself a party does not vary the character of the proceeding vru rem which may be taken without making him a party; which may proceed upon a lien on his vessel, to which he may be personally a stranger.

The proceeding authorized by the statute appears to us to be very plainly within the rule of the supreme court of the United States in The Moses Taylor, supra, and The Hine v. Trevor, 4 Wall., 555. And in submission to those and similar cases in that court, and following Campbell v. Sherman, supra, in this court, we feel compelled to hold that the statute in question can confer no jurisdiction on the the courts of the state, to entertain the proceeding which it authorizes.

By the Oov/rt. — The judgment of the court below is reversed as against the appellant, and the cause remanded with directions to the court below to dismiss the action as against the appellant.