Atlantic Works v. Tug Glide
| Decision Date | 04 January 1893 |
| Citation | 157 Mass. 525,33 N.E. 163 |
| Parties | ATLANTIC WORKS v. THE GLIDE et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Millett & Foster, for appellant.
E.P Carver and E.E. Blodgett, for appellees.
This is a petition under Pub.St. c. 192, § 17, to enforce a lien given by section 14 of the same chapter, for repairs furnished to a vessel--in this case a tug boat--in her home port. The defendant filed a motion to dismiss for want of jurisdiction, which was allowed by the superior court. The only question is whether the superior court has a right to exercise the jurisdiction which the statute purports to confer upon it.
There is no doubt that, when the maritime law gives a lien and a proceeding in rem, a state statute cannot give the state courts concurrent jurisdiction by professing to create a similar statutory lien. The attempt to do so would be contrary to Rev.St. U.S. § 563, subd. 8, and Id. § 711, subd. 3; and the state law would be void. The Hine v. Trevor, 4 Wall. 555, 569; The Moses Taylor Id. 411; The Belfast, 7 Wall. 624.
Most of the later decisions and dicta go further, and deny the power of state statutes to confer jurisdiction of a proceeding in rem upon the state courts, even when the maritime law does not give a lien, if the contract secured by the statutory lien is maritime, as in the case of repairs to a vessel in her home port. Warren v. Kelley, 80 Me. 512, 15 Atl.Rep. 49; Weston v. Morse, 40 Wis. 455; The Petrel v. Dumont, 28 Ohio St. 602; Crawford v. The Caroline Reed, 42 Cal. 469; Dever v. The Hope, 42 Miss. 715; In re Josephine, 39 N.Y. 19; Sheppard v. Steele, 43 N.Y. 52; Brookman v. Hamill, Id. 554, 557; Poole v. Kermit, 59 N.Y. 554; The John Farron, 14 Blatchf. 24, 26; The Guiding Star, 18 F. 263, 267; The Madrid, 40 F. 677, 680.
On the other hand, there are decisions and dicta the other way, including one case in this court. Donnell v. The Starlight, 103 Mass. 227, 230; Dock Co. v. Gibson, 22 La.Ann. 623; Williamson v. Hogan, 46 Ill. 504; Mitchell v. The Magnolia, 45 Mo. 67; Boylan v. The Victory, 40 Mo. 244.
The supreme court of the United States has given no decision upon the question. Had it done so, of course we should defer to its authority upon a matter of which it is the final judge. But, until there is a direct adjudication by the only tribunal whose decision is an authority, we feel bound to exercise our own judgment upon the merits of the case. The dicta which have been uttered in rendering decisions of the supreme court have not been consistent. In The Lottawanna, 21 Wall. 558, 580, the jurisdiction of the state courts is denied. In earlier cases, and, if we interpret their language rightly, in later ones, it is said or implied that the state courts can act. Johnson v. Elevator Co., 119 U.S. 388, 399, 7 S.Ct. 254; Norton v. Switzer, 93 U.S. 355, 365, 366; The Belfast, 7 Wall. 624, 645, 646; The St. Lawrence, 1 Black, 522, 530, 531; Maguire v. Card, 21 How. 248, 251.
The ground for denying the jurisdiction when the maritime law gives a lien is wanting here. The ground in that class of cases, as has been stated again and again, is that the state law purporting to create a parallel lien and a parallel jurisdiction is void, (The Hine v. Trevor, 4 Wall. 555, 569; The Belfast, 7 Wall. 624, 644; Johnson v. Elevator Co., 119 U.S. 388, 397, 7 S.Ct. 254;) but it has been decided, and it still is assumed by the supreme court of the United States, that state laws creating liens like the one before us are valid, and, whatever might be our opinion were the question open to us, we proceed on that assumption without argument, (Peyroux v. Howard, [[The Planter,] 7 Pet. 324; The St. Lawrence, 1 Black, 522; Ex parte McNiel, 13 Wall. 236, 243; The Lottawanna, 21 Wall. 558, 581; The Corsair, 145 U.S. 335, 347, 12 S.Ct. 949.)
If the statute creating the lien is valid, then it would be strange, to say the least, if the law which creates a right were incompetent to protect it, and we are justified in looking with some nicety at an argument which leads to that result. The main argument against the jurisdiction seems to be that the lien derives its quality from the contract; and that as the latter is maritime the former must be, and, as a maritime lien, solely within the jurisdiction of the district court; or that the statute giving the district courts jurisdiction "of all civil cases of admiralty and maritime jurisdiction" excludes the state courts from all proceedings in aid of a maritime contract except such as fall within the description of a "common-law remedy," in the saving clause; and that proceedings in rem to enforce the statutory lien are a remedy for the enforcement of the contract secured by the lien.
But if the lien created by the state law were "maritime" in a strict sense, it would be the duty, and not merely the right, of the admiralty courts to enforce it. We do not understand the supreme court of the United States to assert the right to abolish libels in rem generally by rule. Yet in the successive changes of the twelfth admiralty rule it has asserted and exercised the right to regulate and to permit or to deny proceedings in rem in the admiralty to enforce liens of domestic material men. Moreover, as was said in The Belfast, 7 Wall. 644, "state legislatures have no authority to create a maritime lien;" and that proposition, as we have observed above, was the ground of decision in that class of cases.
Again, if the lien were a mere matter of remedy, and were simply a right to a proceeding in rem as a mode of enforcing the contract to which it is attached, then, if the state law purported to attach one to a maritime contract, it would be equivalent to saying that there shall be a process in rem in the admiralty in suits to enforce such contracts, and the question would arise how a state legislature could impose a new process upon a court outside of its power. Traces of such a doubt are to be seen occasionally. The Red Wing, 14 F. 869, 871; The Edith, 11 Blatchf. 451, 454, 94 U.S. 518. Compare The Milford, Swab. 362. Yet the supreme court sustains the law, as has been shown, and, under the present admiralty rule 12, the United States admiralty courts may take jurisdiction to enforce the lien.
We do not understand that the supreme court ever has intimated that the operation of the state law is dependent upon the admiralty rule for the time being; so that when the district courts do not enforce the lien the state courts may do so, but when a rule like the present is in force the legislature cannot give them jurisdiction. We understand that, if the legislature has the power at any time, it has it at all times, whatever the admiralty rule may be.
It appears to us that the decisions sustaining the law and the power of the admiralty court to take jurisdiction under it are grounded on the assumption that such a lien is not a mere matter of remedy, but is a right of property, and as such is distinct from the proceeding in rem by which it is enforced. The Rock Island Bridge, 6 Wall. 213, 215; The Maggie Hammond, 9 Wall. 435, 456; Ex parte McNiel, 13 Wall. 236, 243; The Lottawanna, 21 Wall. 558, 579; The Young Mechanic, 2 Curt. 404; The Havana, 1 Spr. 402; The Mary Ann, L.R. 1 Adm.Ecc. 8, 11; The Two Ellens, L.R. 4 P.C. 161. If this be so, it no more follows from the fact that the contract may give rise to a "civil cause of admiralty jurisdiction" that enforcement of the lien is such a cause than it follows that the foreclosure of a mortgage given to secure the same contract would be; nor does it seem to us to matter that the mode of enforcement is by a proceeding in rem. State courts can enforce liens not maritime by proceedings in rem. Foster v. The Richard Busteed, 100 Mass. 409; McDonald v. The Nimbus, 137 Mass. 360; Edwards v. Elliott, 21 Wall. 532.
It may be asked how, if the lien is not maritime, the admiralty courts can be justified in enforcing it. It may be, as suggested by Bradley, J., in The Lottawanna, 21 Wall. 558, 580, that the United States courts did so in imitation of the colonial courts upon succeeding to them, and that the answer is to be sought in history, rather than in logic. Of course such liens would be recognized in any event when law and justice required it in the distribution of proceeds. The Harrison, 2 Abb. (U.S.) 74; The Cargo Ex Galam, 2 Moore, P.C. (N.S.) 216, 236.
In the absence of convincing reasons or binding authority the other way, we feel bound to follow the case of Donnell v. The Starlight, to the full extent of the proposition there laid down as settled,--"that the courts of a state have jurisdiction to enforce liens, created by its laws, for labor and materials furnished in constructing or repairing domestic vessels."
Decree dismissing the petition reversed, and motion overruled.
I regret that I am unable to agree with the majority of the court. Though a statute like that now in force, and under which this suit is brought, has been upon our statute books since 1855, (Acts 1855, c. 231,) and has been applied often by our courts, I do not think the law upon the question now presented has been settled so firmly by this court that we should feel obliged to follow it if on principle, and according to the weight of authority elsewhere, the position of the defendant seems to be sound. Apparently the question was regarded as an open one in the last case in which it came before this court. McDonald v. The Nimbus, 137 Mass 363. The court said in that case: "We do not find it necessary to determine whether, under the existing decisions of the supreme court of the United States, and the existing admiralty rules, this court has jurisdiction to enforce a lien created by ...
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