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Opinion of the court.

where the common law is competent to give to suitors a common-law remedy. Common-law remedies are not applicable to enforce a maritime lien by a proceeding in rem, and consequently the original jurisdiction to enforce such a lien by that mode of proceeding is exclusive in the District Courts.*

Taken together and properly construed those provisions warrant the conclusion that such a party wishing to enforce such a lien may proceed in rem in the admiralty, or he may bring a suit in personam in the same jurisdiction, or he may elect not to go into admiralty at all and may resort to his common-law remedy in the State courts, or in the Circuit Court of the United States, if he can make proper parties to give that court jurisdiction of the case. But a maritime lien does not arise in a contract to build ship or in a contract to furnish materials for that purpose; and in respect to such contracts it is competent for the States, under the decisions of this court, to create such liens as their legisla tures 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 not inconsistent with the exclusive jurisdiction of the admiralty courts.t

Objection is also taken to the validity of the State law upon the ground that it is in conflict with the provision of the Federal Constitution which secures to every party, where the value in controversy exceeds twenty dollars, the right of trial by jury.

Two answers may be made to that objection, either of which is decisive: (1.) That it does not apply to trials in the State courts. (2.) That no such error was assigned in

* Brookman v. Hamill, 43 New York, 554; The Josephine, 39 Id. 19. †The Belfast, 7 Wallace, 645; Sheppard v. Steele, 43 New York, 55; Ferran v. Hosford, 54 Barbour, 208.

‡ Barron v. Baltimore, 7 Peters, 247; Twitchell v. Commonwealth, 7 Wallace, 826; Livingston v. Moore, 7 Peters, 551; Fox v. Ohio, 5 Howard, 434; Smith v. Maryland, 18 Id. 76; Cooley on Constitutional Limitations, 2d ed. 19.

Syllabus.

the Court of Errors, and that the question was not presented to, nor was it decided by, the Court of Errors.

Jurisdiction is not shown unless it appears that some one of the specified questions did arise in the State court and that the question was decided adversely to the party assign ing error in this court.*

JUDGMENT AFFIRMED, WITH COSTS.

THE LOTTAWANNA.

1. Whilst the general maritime law is the basis of the maritime law of the United States, as well as of other countries, it is only so far operative in this, or any country, as it is adopted by the laws and usages thereof. It has no inherent force of its own.

2. In particular matters, especially such as approach a merely municipal character, the received maritime law may differ in different countries without affecting the general integrity of the system as a harmonious whole.

8. The general system of maritime law which was familiar to the lawyers and statesmen of this country when the Constitution was adopted, was intended, and referred to, when it was declared in that instrument, that the judicial power of the United States shall extend "to all cases of admiralty and maritime jurisdiction." Thus adopted, it became the maritime law of the United States, operating uniformly in the whole country.

4. The question as to the true limits of maritime law and admiralty jurisdiction is exclusively a judicial question, and no State law or act of Congress can make it broader or narrower than the judicial power may determine those limits to be. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends on what has been received as law in the maritime usages of this country, and on such legislation as may have been competent to affect it.

5. The decisions of this court illustrative of these sources, and giving construction to the laws and Constitution, are especially to be considered; and when these fail us, we must resort to the principles by which they have been governed.

✦ Crowell v. Randell, 10 Peters, 892; Suydum v. Williamson, 20 How ard, 440.

Statement of the case.

6. It is settled, by repeated adjudications of this court, that material-men furnishing repairs and supplies to a vessel in her home port do not acquire thereby any lien upon the vessel by the general maritime law as received in the United States

7. Whilst it cannot be supposed that the framers of the Constitution contemplated that the maritime law should remain unchanged, the courts cannot change it; they can only declare it. If within its proper scope, any change is desired in its rules, other than those of procedure, it must be made by the legislative department.

8. Semble, that Congress, under the power to regulate commerce, has authority to establish a lien on vessels of the United States in favor of material-men, uniform throughout the whole country.

9. In particular cases, in which Congress has not exercised the power of regulating commerce, with which it is invested by the Constitution, and where the subject does not in its nature require the exclusive exercise of that power, the States, until Congress acts, may continue to legislate.

10. Hence, liens granted by the laws of a State in favor of material-men for furnishing necessaries to a vessel in her home port in said State are valid, though the contract to furnish the same is a maritime contract, and can only be enforced by proceedings in rem in the District Courts of the United States.

11. Any person having a specific lien on, or a vested right in, a surplus fund in court, may apply by petition for the protection of his interest under the forty-third admiralty rule.

12. Separate libels were filed in 1871, against a steamboat, for wages for salvage, for supplies furnished at her home port, and for the amount due on a mortgage. Held, on the evidence, that the lien for supplies had not been perfected under the State law; and, if it had been, that the libels for such supplies could not be sustained prior to the recent change in the twelfth admiralty rule. Held, also, that the libel upon the mortgage could not be sustained as an original proceeding, but that the mortgagees, having petitioned for the surplus proceeds of the vessel, were entitled to have the same applied to their mortgage.

APPEAL in admiralty from the Circuit Court for the District of Louisiana.

The case was thus:

In the year 1819 this court, in The General Smith,* decided (as the profession has generally understood), that in respect to repairs or necessaries furnished to a ship in the port or State to which she belongs, no lien is implied unless it is recognized by the municipal law of the State; declaring the

* 4 Wheaton, 443.

Statement of the case.-The first and second rule XII.

rule herein to be different from that where the repairs or necessaries are furnished to a foreign ship; in which case it was admitted that the maritime law of the United States gives the party a lien on the ship itself for his security.

In view of this decision most or all of the States enacted laws giving a lien for the protection of material-men in such

cases.

In the year 1833, in the case of The Planter,* the converse of the rule in The General Smith was laid down, and process against a vessel in her home port was used and supported, the State law giving a lien in the case.

In 1844, this court, acting in pursuance of acts of Congress which authorized it to adopt rules of practice in the courts of the United States in causes of admiralty and maritime jurisdiction (and adhering to the practice declared as proper in the cases mentioned), adopted the following rule of practice:

"RULE XII.

"In all suits by material-men for supplies, repairs, or other necessarics for a foreign ship, or for a ship in a foreign port, the libellant may proceed against the ship and freight in rem, or against the master and 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, and other necessaries."

On the 1st of May, 1859, a new twelfth rule was adopted as a substitute for the one above given. It was thus:

"RULE XII.

In all suits by material-men, for supplies or repairs, or other necessaries for a foreign ship, or for a ship in a foreign port, the libellant may proceed against the ship or freight in “em, or against the master or owner alone in personam. And the like proceedings in personam, but not in rem, shall apply in cases of domestic ships for supplies, repairs, or other necessaries."

* Reported under the name of Peyroux v. Howard, 7 Peters, 324. † Acts of May 8th, 1792 (1 Stat. at Large, 275), and of August 23d, 1842 (5 Id. 516).

Statement of the case.-Particular case.

*

The reasons for the substitution of this latter rule for the former one are stated by Taney, C. J., in the case of The Steamer St. Lawrence, to have been that in some cases the State laws giving liens, and the constructions put on them by State courts, were found not to harmonize with the prin ciples and rules of the maritime code, and embarrassed the Federal courts in applying them.

In this state of things, William Doyle and another filed a libel in the District Court of the United States for the District of Louisiana, abovementioned, on the 10th day of June, 1871, against the steamer Lottawana, of New Orleans, for mariners' wages. The vessel being seized, libels of intervention were afterwards filed by various parties, some for mariners' wages, some for salvage services, some for supplies, materials, and repairs furnished in the port of New Orleans, for the use of the steamer. On the 20th day of June, 1871, Catharine Rodd, administratrix, together with several commercial firms of the city of New Orleans, filed a libel of intervention by which they set up a mortgage on the vessel, given to them by the owner, on the 20th of May, 1871, and duly recorded in the custom-house on the 22d of May, to secure the payment of various promissory notes of the same date, given to said libellants by the said owner, and amounting to more than $14,000.

The steamer, up to the 16th of May, had been engaged in the river trade on the Mississippi and Red Rivers, between New Orleans and Jefferson, in Texas, and was laid up for repairs at New Orleans on that day. Most of the claims. for wages and supplies arose before the date of the mortgage, although some arose afterwards. The steamer was sold for $7500, and, after deducting expenses of sale, costs, salvage and wages of mariners (which were admitted to have preference), there remained a surplus of $4644.42, which the District Court, by a decree rendered February 26th, 1872, and signed on the 1st of March following, decreed

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