The Winnebago

• Decision Date: 18 November 1905
• Docket Number: 1,417.
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: THE WINNEBAGO. v. A. HARVEY'S SONS MFG. CO. IROQUOIS TRANSP. CO. et al.

141 F. 945

THE WINNEBAGO.

IROQUOIS TRANSP. CO. et al. v. A. HARVEY'S SONS MFG. CO.

No. 1,417.

United States Court of Appeals, Sixth Circuit.

November 18, 1905

C. E Kremer, for plaintiffs in error.

H. B Graves, for defendant in error.

This is a cause which originated in a state court of Michigan, the circuit court for the county of Wayne, wherein the defendant in error sought to enforce against the steamer Winnebago a lien given by a statute of the state for materials furnished for her construction. The steamer was built at St.Clair Mich., by the Columbia Ironworks, a Michigan corporation, under a contract with John. J. Boland and Thomas J. Prindiville, who subsequently organized under the laws of Indiana the corporation, the Iroquois Transportation Company, plaintiff in error here, and assigned the contract to it. This contract required the Columbia Ironworks to construct for, and deliver to, the other party within a designated time a steel steamer of a described size and character for the sum of$95,000, payable by installments during the progress of construction, except the last installment, which was payable on the completion of the vessel; and it was stipulated that a penalty of $50 per diem, but not exceeding in all $3,500, should be paid by the Columbia Ironworks for any delay in completion, and a bonus of the same per diem for completion earlier than the stipulated date. While the vessel was in course of construction, the Columbia Ironworks

was also engaged in the building, at their yards, of another vessel of like character. The A. Harvey's Sons Manufacturing Company engaged at Detroit in the business of selling valves, piping, fittings, plumbing material, and the like, furnished the Columbia Ironworks with a quantity of these materials to go into the construction of the two vessels on orders which were for duplicates of the items required. In general these materials were respectively used in the construction of the vessels for which they were ordered, but a comparatively small portion of the duplicates intended for the vessel now called the Winnebago is not shown to have been actually employed for that purpose. One of the duplicate parts of the articles furnished was charged by the Columbia Ironworks to one of the vessels, and the other half to the other, except that a small amount $52 worth, was charged to 'Building and Equipment Account.' But it was not known to defendant in error that any part of the duplicate of materials furnished for each vessel was appropriated to any other purpose. The last of the articles were furnished July 18, 1903, while the vessel was lying in the water at St.Clair. She was launched on March 21, 1903, but she was not completed until after all the articles had been furnished. On July 18, 1903, she was inspected and enrolled at Port Huron in the name of the Columbia Ironworks as owner, and thereupon the balance of the purchase price, less the forfeit for delay, was paid, and a bill of sale given by the Columbia Ironworks to the plaintiff in error. Five days afterwards a new enrollment was made of the vessel at Chicago, reciting a change of ownership and of districts. The defendant in error had no knowledge for whom the vessel was being built, not did either of the parties know of the enrollment of the vessel by the Columbia Ironworks at the time when that was done. The vessel made several trips on the Lakes after her enrollment at Chicago. A part of the price of the materials furnished by defendant in error remaining unpaid, this proceeding was commenced under the Michigan water craft act (Comp. Laws, c. 298) beginning with section 10,788, by the filing of the complaint praying for a warrant of seizure and a summons to the owner or master. Upon the seizure of the vessel, a bond was given by the plaintiff in error as owner and the vessel released. The plaintiff in error thereupon, and before the time for its pleading had expired, filed its petition and bond for removal into the Circuit Court of the United States for the Eastern District of Michigan, and the cause was removed accordingly. The plaintiff in error in due time filed its answer, pleading to the merits and denying the validity of said chapter 298 of the statutes of Michigan, upon the ground that it was in violation of the second section of article 3 of the Constitution of the United States, conferring jurisdiction upon the courts of the United States in admiralty. A replication having been filed, the cause came on for trial before the court and a jury. A verdict was rendered for the defendant in error for the sum of $2,434.36. Upon judgment having been entered thereon, the cause was brought here on writ of error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge, having stated the case as above, .

The questions discussed by counsel may be resolved into the following:

1. Whether the Michigan statute, in its application to such a case as this, is in derogation of the admiralty jurisdiction conferred upon the District Courts of the United States by the Constitution and the judiciary act of 1789. It would be superfluous for us to canvass anew the many decisions of the Supreme Court of the United States upon this general subject. This has been so often done by that court that we may properly assume the leading principles affirmed in its more recent decisions as settled, and proceed to a discussion of the question before us by their light. Contrary to what was said by Mr. Justice Miller in The Hine v. Trevor, 4 Wall. 555, 18 L.Ed. 451, respecting the effect of the act of 1845 upon the admiralty jursidiction of causes arising on the Great Lakes and connecting rivers, it is to be understood that no part of that act is now in force. The reason for that conclusion is stated in The Eage, 8 Wall. 15, 19 L.Ed. 365, and the conclusion is confirmed in The Robert W. Parsons, 191 U.S. 17, 31, 24 Sup.Ct. 8, 48 L.Ed. 73. We are therefore to be remitted to the original investiture of the admiralty jurisdiction by the Constitution and the judiciary act of 1789 for the ascertainment of its scope and limits. In the definition of those ordinances by the decisions of the Supreme Court we take it to be settled that the jurisdiction extends to all cases of a maritime nature, whether the right in question is one accorded by the general rules of the admiralty law or is created by legislation; the doctrine being that newly created rights of this nature become parts of the jurisdictional dominion, as in the case of state legislation according a lien for supplies furnished in the home port. But the maritime nature of the subject is always the test of jurisdiction. And so, while state legislation may create rights which are of such a nature that they may properly be administered by the admiralty courts, such state legislation cannot enlarge the power of those courts by creating rights of which they cannot take cognizance consistently with their principles or with the objects of their institution. These rules are the obvious deductions from the authoritative decisions upon the subject. Passing from these predicates, we observe that it is also to be accepted as settled law that contracts, whether for the building of ships or for furnishing materials for their construction, are not maritime in their nature, nor are liens given upon ships while in course of construction maritime liens. This doctrine was affirmed by this court in The John B. Ketchem, 97 F. 872, 38 C.C.A. 518, and is supported by many decisions of the Supreme Court. Some of these are; Edwards v. Elliott, 21 Wall. 532, 22 L.Ed. 487; Johnson v. Chicago, etc., Elevator co., 119 U.S. 388, 7 Sup.Ct. 254, 30 L.Ed. 447; Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638, 643, 20 S.Ct. 824, 44 L.Ed. 921; The Robert W. Parsons, 191 U.S. 17, 25, 24 S.Ct. 8, 48 L.Ed. 73.

It seems to follow by obvious sequence that, in creating liens of this character and conferring upon their own courts the power to enforce them, state legislation does not derogate from the jurisdiction of the admirality courts of the United States. It may be that in its application to ships already engaged in commerce there would be such derogation, and that to that extent its provisions would not be enforceable. But that is no valid reason why the statutes should not be given effect so far as they may. We have, therefore, no occasion to consider whether the remedy provided by the Michigan ...