The Glide

after stating the case, delivered the opinion of the court.

The question in this case is whether the lien given by a statute óf Massachusetts for repairs made upon a vessel in her home port, under a contract with her owners or their agent, may be enforced against her by petition in a court of the State, as provided in that statute, or can be enforced only in an admiralty court of the United States. The diverse inferences drawn from the previous judgments of this court, in the careful opinions of the Supreme Judicial Court of Massachusetts and of the dissenting judges in the case at bar, have induced us to state with some fulness the reasons and authorities which have influenced our conclusion.

' The ■ most convenient way of tracing the development of the law upon this subject ivill be to consider the principal decisions of this court in chronological order, first referring to the provisions of the Constitution and statutes of the United States which lie at the foundation of the whole matter.

By the Constitution of the United States, art. 3, sect. 2, “ the judicial power shall extend ” “ to all cases of admiralty and maritime jurisdiction.” And by provisions, still in force, of the Judiciary Act of 1789, the District Courts of the United States “shall have, exclusively of the courts of the several States,” “ original cognizance of all civil causes of admiralty and maritime jurisdiction,” “saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.” Act of September 24, 1789, c. 20, § 9 ; 1 Stat. 76 ; Rev. Stat. § 563, cl. 8 ; § 711, cl. 3.

The leading case in this court upon the subject of admiralty jurisdiction over suits by material men is The General Smith, decided at February term 1819, in which a decree of the Circuit Court of the United States for the District of Maryland, sustaining a libel in rem filed in the District Court for supplies furnished to a ship in Baltimore, her- home port, was reversed by this court, for the reasons stated in its opinion delivered by Mr. Justice Story, as follows:

“ No doubt is entertained by this court, that the admiralty

rightfully possesses a general jurisdiction in cases of material men; and if this had been a suit in personam, there would not have been any hesitation in sustaining the jurisdiction of the District Court. Where, however, the proceeding is in rem to enforce a specific lien, it is incumbent upon those, who seek the aid of the court, to establish the existence of such lien in the particular case. Where repairs have been made, or necessaries have been furnished to a foreign ship, or to a ship in a port of the State to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security; and he may well maintain a suit in rem in the admiralty to enforce his right. But in respect- to repairs and necessaries in the port or State to which the ship belongs, the case is governed altogether by the municipal law of that State; and no lien is implied, unless it is recognized by that law. Now, it has been long settled, whether originally upon the soundest principles it is now too late to inquire, that by the comihon law, which is the law of Maryland, material men and mechanics furnishing repairs to a domestic ship, have no particular lien upon the ship itself for the recovery of their demands. A shipwright, indeed, who has taken a ship into his own possession to repair it, is not bound to part with the possession until'he is paid for the repairs, any more than any other artificer. But if he has -o ce parted with the possession, or has worked upon it without taking possession, he is not deemed a privileged creditor, having any claim upon the ship itself. Without, therefore, entering into a discussion of the particular circumstances of this case, we are of opinion, that there was not, by the principles of law,, any lien upon the ship; and, consequently, the decree of the Circuit Court must be reversed.” 4 Wheat. 438 , 443.

The law there stated, as to repairs or supplies in a foreign port, has been since constantly recognized, and never doubted. The St. Jago de Cuba, 9 Wheat. 409 , 417; The Virgin, 8 Pet. 538 , 550; The Laura, 19 How. 22 , 28; The Grapeshot, 9 Wall. 129 , 136; The Lulu, 10 Wall. 192 ; The Kalorama, 10 Wall. 204 ; The Patapsco, 13 Wall. 329 ; The Emily Souder, 17 Wall. 666 ; The Kate, 164 U. S. 458 , 466.

Accordingly, in the case of The Planter, at January term 1833, it was decided that a lien upon a vessel, given by the local law, for repairs in her home port, could be enforced by suit in rem in admiralty in the District Court of the United States. Mr. Justice Thompson, delivering the- unanimous opinion of the court, said: “ The proceeding is in rem against a steamboat, for materials found and work performed in repairing the vessel in the port of New Orleans, as is alleged in the libel, under a contract entered into between the parties for that purpose. It is therefore a maritime contract; and if the service was to be performed in a place within the jurisdiction of the admiralty, and the lien given by the local law of the State of Louisiana, it will bring the case within the jurisdiction of the court. By the Civil Code of Louisiana, art. 2748, workmen employed in the construction or repair of ships and boats enjoy the privilege established by the code, without being bound to reduce their contracts to writing, ■whatever may be their amount; but this privilege ceases if they have allowed the ship or boat to depart without exercising their right. The state law, therefore, gives a lien in cases like the present.” He then referred to the case of The General Smith, as having “decided that the jurisdiction of the admiralty in such cases, where the repairs are upon a domestic vessel, depends upon the local law of the State ”; and, after substantially repeating part of the opinion of Mr. Justice Story, above quoted, ending with the statement that, for repairs or supplies of a ship in her home port, no lien is implied, unless recognized by local law, he added: “ But if the. local law gives the lien, it may be enforced in the admiralty.” 7 Pet. 324 , 341.

The principle of the decision in the case of The Planter was stated by Mr. Justice Story, at January term 1837, as

In the case of The Yankee Blade, at December term 1856, the nature of a maritime lien was clearly and exactly defined by Mr. Justice Grier, speaking for this court, as follows : “ The maritime ‘ privilege ’ or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. It is a ‘jus m re] without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rein. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of courts of admiralty. The foreign and other attachments of property in the state courts^ though by analogy loosely termed proceedings in rem, are evidently not within the category.” 19 How. 82 , 89.

The question of the extent of the admiralty jurisdiction of the courts of the United States over cases like that now before the court became at one time entangled in the question of the. effect of the regulation of pleading and procedure in admiralty by this court under the power conferred upon it by the acts of Congress of May 8, 1792, c. 36, § 2, and August 23, 1842, c. 188, § 6. l.Stat. 276; 5 Stat. 518 .

“In all suits by material men for supplies or repairs ór other necessaries for a foreign ship or for a ship in a foreign port, the libellant may proceed against the ship and freight 1m rem, or against the master or the owner alone in personam. And the like proceeding in rem shall apply to cases of domestic ships, where by the local law a lien is given to material men for supplies, repairs or other necessaries.” 3 How. iii, vi, xiv.

The last clause of that rule was in accord with the previous judgments of this court as to such proceedings in rem in the cases of The General Smith, The Planter and The Orleans, above cited.

At December term 1858, this court made an order, to take effect May 1, 1859, by which Rule 12 was repealed, and a new rule substituted in its place, differing from it only in making the last clause read as follows: “ And the like proceeding in personam, but not in rem, shall apply to cases of domestic ships, for supplies, repairs or other necessaries.” 21 How. iv.

The effect of that change in the rule was that where the only right created by local statutes was a lien upon the ship, jus in re, without in any way affecting personal liability, this new right in the thing could not be enforced in admiralty in rem, but only in personam; and that much difficulty and embarrassment were thereby created in proceedings in admiralty, which were not -wholly removed by the explanations, in succeeding opinions of this court, of the purpose of the change.

In the case of The Goliah, at December term 1858,. decrees of the Circuit and District Courts of the United States for the District of California, sustaining a libel in rem by the assignee of a claim for coal furnished to a vessel at Sacramento, her home port, for which claim a lien existed under the statutes

But that decision, in so far as concerned its principal ground, was expressly overruled in The Belfast, 7 Wall. 624 , 640-642, as inconsistent with the series of decisions from The Genesee Chief, 12 How. 443 , to The Hine, 4 Wall. 555 , declaring the admiralty jurisdiction to extend over all navigable waters; and was not followed in The Eagle, 8 Wall. 15 , 21, in which the opinion was delivered by Mr. Justice Nelson. And, in so far as it rested on the suggestion of error in The General Smith and The Planter, or on the change in the twelfth rule, it was in effect overruled by The St. Lawrence, 1 Black, 522 , and The Potomac, 2 Black, 581 .

In the St. Lawrence, at December term 1861, this court adjudged that the rule of 1858 had no effect upon a libel ‘filed

Although, as early as February term 1816, it had been assumed that the admiralty and. maritime jurisdiction vested by the Constitution in the courts of the United States was exclusive, and could not be exercised by the courts of a State; Martin v. Hunter, 1 Wheat. 304 , 337, 373 ; yet the question whether a claim of a maritime nature- could be enforced in the courts of a State by process in rem under a statute of the State, creating a right in the thing itself, and providing for its enforcement by process essentially like proceedings in rem •in the admiralty, was not brought into judgment in this court

The case of The Moses Taylor arose under a statute of the State of California, enacting that claims against any vessel for supplies or materials furnished for her use or repair, and for breaches of contracts for transportation of persons or property, and certain other classes of claims, should constitute liens upon the vessel; that actions upon such claims might be brought directly against the vessel, and the summons served upon the master or any one in charge; that the vessel might be attached as security for the satisfaction of any judgment that might be recovered ; and that if the attachment was not discharged, and a judgment was recovered, the vessel might be sold and the proceeds applied to the payment of the judgment. Upon á writ of error from this court to the highest court of the State to which the case could be taken, it was held that a contract for the transportation of a passenger upon an ocean voyage, relating exclusively to a service to be performed on the high seas, and pertaining solely to the business of commerce and navigation, was a maritime contract, and a breach of it an appropriate subject of maritime jurisdiction; and that the statute of the State, in so far as it authorized process in rem in the courts of the State against the vessel, was unconstitutional as interfering with the exclusive admiralty jurisdiction of the courts of the United States.

The case of The Hine arose under a statute of the State of Iowa, providing for similar proceedings in the courts of the State in the case of any injury to persons or property by a vessel, her officers or crew; and that statute, so far as it gave such process m rem, for a collision between two vessels, was held to be unconstitutional, under the decision in The Moses Taylor. Mr. Justice Miller, in delivering the opinion, declared it to be “ the settled law of this court, that wherever the District Courts of the United States have original cognizance of-admiralty causes, by virtue of the act of 1789, that cognizance is exclusive, and no other court, state of national, can exer

Each of those two cases was sought to be brought within the saving clause in section 9 of the Judiciary Act of 1789. As to which Mr. Justice Field, in The Moses Taylor, said: “That clause only saves to suitors ‘the right of a common law remedy, where the common law is competent to give it.’ It is not a remedy in the common law courts, which is saved; but a common law remedy. A proceeding in rem, as used in the admiralty courts, is not a remedy afforded by the common law; it is a proceeding under the civil law. When used in the common law courts, it is given by statute.” 4 Wall. 431 . And Mr. Justice Miller, in The Rime, said: “But the remedy pursued in the Iowa courts, in the case before us, is in no sense a common law remedy. It is a remedy partaking of all the essential features of an admiralty proceeding in rem. The statute provides that the vessel may be sued and made defendant, without any proceeding against the owners, or even mentioning their names; that a writ may be issued and the vessel seized, on filing a petition similar in substance to a libel; that after a notice in the nature of a monition, the vessel may be condemned and an order made for her sale, if the liability is established for which she was .sued. Such is the general character of the steamboat laws in the western States. While the proceeding differs thus from a common law remedy, it is also essentially different from what are in the West called suits by attachment, and in some of the older States foreign attachments. In these cases there is a suit against a personal defendant by name, and because of inability to serve process on him on account of non-residence, or for some other reason mentioned in the various statutes allowing attachments to issue, the suit is commenced by a writ directing the proper officer to attach sufficient property of the defendant to answer any judgment which may be rendered against him. This proceeding may be had against an owner or part-owner of a vessel, and his interest thus subjected to a sale in a common law court of the State. Such actions may also be maintained in personam against a defendant in the common law courts,

Again, at December term 1868, in the case of The Belfast, a statute of Alabáma, giving a lien upon the vessel under a contract of affreightment, was held unconstitutional, so far as it provided for the enforcenient of the lien in the courts of the State by proceedings in rem in the nature of proceedings in admiralty, because the lien of the shipper was a maritime lien, and, as was said by Mr. Justice Clifford in delivering the opinion, “ authority does not exist in the state courts to hear and determine a suit in rem in admiralty to enforce a maritime lien ”; “ but in all cases where a maritime lien arises, the original jurisdiction to' enforce the same by a proceeding in rem is exclusive in the District Courts of the United States, as provided in the ninth section of the Judiciary Act.” 7 Wall. 624 , 645, 646. The dictum uttered by the learned justice towards the end of the opinion, and afterwards repeated by him in Leon v. Galceran, 11 Wall. 185 , 192, and in Norton v. Switzer, 93 U. S. 355 , 365, that “ such a lien does not arise in a contract for materials and supplies furnished to a vessel in her home port, and in respect to such contracts it is competent for the States, under the decisions of this court, to create such liens as their legislatures may deem just and expedient, not amounting to a regulation of commerce, and to enact reasonable rules and regulations prescribing the mode of their enforcement,” if understood, as contended by the defendants in error, to imply that the States may authorize such liens to be enforced in their own courts by proceedings in the nature of admiralty process in rem, is unsupported by the decisions there referred to, or by any other decision of

On May 6, 1872, this court ordered the twelfth rule in admiralty to be amended so as to read as follows: “In all suits by material men. for supplies or repairs, or other necessaries, the libellant may proceed against the ship in rem, or against the master dr owner alone in personam.” 13 Wall. xiy.

This amendment of the rule left the law in this respect in the same condition in which, as declared by this court in cases above cited, it had been before the promulgation of any rule upon the subject.

In The Lottawanna, at October term 1874, the purpose and effect of the amendment were stated by Mr. Justice Bradley (who had taken part in making it) as follows: “As to the recent change in the admiralty rule referred to, it is sufficient to say that it was simply intended to remove all obstructions and embarrassments in the way of instituting proceedings in rem in all cases where liens exist by law, and not to create any new lien, which, of course, this court could not do in any event, since a lien is a right of property, and not a mere matter of procedure.” “We have now restored the rule of 1844, or, rather, we have made it general in its terms, giving to material men in all cases their option to proceed either in rem or in personam. Of course this modification of the rule cannot avail where no lien exists; but where one does exist, no matter by what law, it removes all obstacles to a proceeding in rem, if credit is given to the vessel.” The Lottawanna, 21 Wall. 558 , 579, 581.

In The Lottawanna, this court allowed to a mortgage of a ship precedence over claims of material men in the home port, because they had no lien by the- maritime' law of the' United States, as declared in the case of The General Smith, and because their claim had not been recorded as required by the law of the State of Louisiana, which gave them a lien. The decree of the District Court was rendered before the admiralty rule of 1858 was superseded by the rule of 1872. Mr. Justice Bradley, in delivering the opinion of this court, said: “ Had

In that opinion, as' appears by the passages above quoted, this’ court. distinctly affirmed the following positions : First. The admiralty rule of 1872 was intended to remove all obstructions and embarrassments in the way of instituting proceedings in rem in all cases where liens exist by law. Second. K lien' is a right of property, and not a mere matter of procedure. Third. Where a state statute has given to material men in the home port a lien upon the vessel, to be enforced by proceedings like those in admiralty, the District Courts of the United States have jurisdiction to enforce it by libel in rem. Fourth. Their jurisdiction m rem, in such a case, is exclusive of that of the courts of the State.

At. the same term, a process in rem to enforce a lien given by a statute of New Jersey for building a ship was held to be within the jurisdiction of the courts of the State, solely because, as previously adjudged by this court, a contract for building a ship was not a maritime contract, but a contract made on land and to be performed on land, and therefore not a subject of admiralty jurisdiction. Edwards v. Elliott, 21 Wall. 532 , 553-556; The Jefferson, 20 How. 393 ; The Capitol, 22 How. 129 .

Likewise, in Johnson v. Chicago & Pacific Elevator Co., de

In the case of The J. E. Rumbell, decided at October term 1892, since the first decision of the present case in the Supreme Judicial Court of. Massachusetts, this court, referring to many of the cases above cited, stated the general principles of law upon the subject now before us as follows :

“ In the admiralty and maritime law of the United States, as declared and established by the decisions of this court, the following propositions are no longer doubtful: 1st. For

necessary repairs or supplies furnished to a vessel in a foreign port, a lien is given by the general maritime law, following the civil law, and may be enforced in admiralty. 2d. For repairs or supplies in the. home port of the vessel, no lien exists, or can be- enforced in admiralty, under the general law, independently of local statute. 3d. Whenever the statute of a State gives a lien, to be enforced by process in rem against the vessel, for repairs or supplies in her home port, this lien, being similar to the lien arising in a foreign port under the general law, is in the nature of a maritime lien, and therefore may be enforced in admiralty in the courts of the United States. 4th. This lien, in the nature of a maritime lien, and to be enforced by process in the nature of admiralty process, is within the exclusive jurisdiction of the courts of the United States, sitting in admiralty. . The fundamental reasons on which these propositions rest may be summed up thus: The admiralty and maritime jurisdiction is Conferred on the courts of the United States by the Constitution, and cannot be enlarged or restricted by the legislation of a State. No state legislation, therefore, can bring within the admiralty jurisdiction .of the national courts a subject not maritime in its nature. But whert a right, maritime in its nature, and to be enforced by process in the nature of admiralty process, has been given by the statute of a State, the admiralty courts of the United States have jurisdiction, and exclusive jurisdiction, to enforce that right according to their own rules of procedure.” 148 U. S. 1 , 11-13.

In that case, it is true, the single question presented for decision was whether a lien upon a vessel for necessary supplies and repairs in her home port, given by the statute of a State, and to be enforced by proceedings in rem in the nature of admiralty process, took precedence of a prior mortgage, recorded as required by act of Congress. But the decision of that question, as in the similar case of The Lottawanna, above cited, really depended upon the question whether the contract and the lien of the material men, on the one side, or those of the mortgagee, on the other, were in their nature maritime, and therefore entitled to be enforced in rem in a

The form of proceeding against the vessel, provided for in the statute of Massachusetts, now in question, is clearly in the nature of admiralty process in rem, and is undistinguishable from the proceedings, provided for in statutes of other States, which have been held by this court to be exclusively within the admiralty jurisdiction of the courts of the United States. The lien upon the vessel is created as soon as money is due for labor performed or materials furnished, and continues until the debt is satisfied, unless the lien is dissolved by failure to record a statement of the claim,' as required by the statute; the petition is to be served by an attachment of the vessel, and a summons to the owners, if known; a dissolution of the attachment does not dissolve the lien; and any number of persons having such liens upon the same vessel may join in one petition to enforce them. Mass. Pub. Stat. c. 192, §§ 14-19.

In conclusion, the considerations by which this case must be governed may be summed up as follows: The maritime

The necessary result is that the petition ought to have been dismissed; but, in accordance with the usual practice upon reversing a judgment of the highest court of a State, the proper form of judgment is

Judgment reversed, and case remanded for further proceedings not inconsistent with the opinion of this court.

Me. Justice Brewer did not hear the argument or take any part in the decision of this case.