The Tug Montauk v. William H. Walker & Co.

• Decision Date: 30 June 1868
• Citation: 1868 WL 4989,47 Ill. 335
• Court: Illinois Supreme Court
• Parties: THE TUG MONTAUKv.WILLIAM H. WALKER & CO.

47 Ill. 335

1868 WL 4989 (Ill.)

THE TUG MONTAUK

v.WILLIAM H. WALKER & CO.

Supreme Court of Illinois.

June Term, 1868.

OPINION TEXT STARTS HERE

APPEAL from the Court of Common Pleas of the City of Cairo; the Hon. JOHN H. MULKEY, Judge, presiding.

This was a proceeding, instituted in the court below, by W. H. Walker & Co. against the tug Montauk, by a warrant under the act of February 16th, 1857, in reference to proceedings in rem against boats and vessels. The further facts are stated in the opinion.

Mr. WILLIAM J. ALLEN and Messrs. GREEN & GILBERT, for the appellant.

Messrs. O'MELVENY & HOUCK, for the appellee.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was an action of assumpsit, brought to the Court of Common Pleas of the city of Cairo, at the October term, 1866, by William H. Walker & Co. against the steam tug Montauk, under the act of the general assembly of February 16, 1857, called “The Steamboat Warrant Act.” Scates' Comp. 789.

A motion was made by defendants, to dismiss the cause for want of jurisdiction, which was overruled; and the defendant saying nothing further in bar of the action, judgment was rendered against the boat by default, and damages assessed to one hundred and nine dollars, the amount of the plaintiffs' demand.

The principal error relied on to reverse the judgment, is, in sustaining the jurisdiction of the Common Pleas.

It is contended by the appellant that the contract, to enforce which these proceedings were had, was a maritime contract, and the remedy exclusively confined to the courts of admiralty and maritime jurisdiction.

We had occasion to examine and discuss this question in the case of Williamson v. Hogan, 46 Ill. 504, and reviewed, to some extent, the decisions of the Supreme Court of the United States thereon, which are found to have fluctuated very much, the early cases conceding the jurisdiction of the State courts, while the later cases--that of the Moses Taylor, 4 Wallace, 411, and the Hine v. Trevor, ib. 555--denied such jurisdiction.

We have no inclination to go over again the ground we traversed in that case, and will merely state the conclusion at which we arrived.

The proceedings therein showed, upon their face, that the steamer proceeded against was a domestic vessel, and the supplies, for which the action was brought, were furnished at her home port.

On the authority of the case of the General Smith, 4 Wheaton, 438, which holds that the jurisdiction of the admiralty, in cases where the repairs have been made or necessaries furnished to a foreign ship, or to a ship in the ports of the State to which she does not belong, the general maritime law gives a lien on the ship as security, and the claimant can maintain a suit in the admiralty to enforce his right; but as to repairs or necessaries in the port or State to which the ship belongs, the case was governed altogether by the local law of the State, as no lien is implied, unless it is recognized by that law, we held, as by our statute, no lien was expressly created by the contract for furnishing supplies, and as none could be implied, it would follow, as these supplies were furnished to a domestic vessel, at her home port, a court of admiralty had no jurisdiction, and consequently, the case was within the jurisdiction of the State courts, for there must be a remedy somewhere, and our act of 1857 was framed to give one, and of a summary character. We considered that the provisions of that act were but an application of the principles of the ordinary attachment law to the case of vessels whose owners are unknown, and was rather a mode of service of process on the owner through his property. We could not then see, nor can we now, why it is not competent for the legislatures of the several States to make service on the property equivalent to service on the person, and as effectual for judgment.

The reason of the ruling of the Supreme Court of the United States on this question, seems to be founded on that clause of the constitution of the United States which gives to Congress the power to regulate commerce with foreign nations, and among the several States. Sec. 8, article 1. This is apparent, from the case of The New Jersey Steam Navigation Co. v. The Merchants' Bank, 6 Howard, 392, where it was said that the exclusive jurisdiction of the court, in admiralty cases, was conferred on the national government, as closely connected with the grant of the commercial power, it being a maritime court, instituted for the purpose of administering the law of the seas, and the court says, “there seems to be ground, therefore, for restraining its jurisdiction, in some measure, within the limits of the grant of the commercial power.” And in Allen et al. v. Newberry, 21 ib. 246, it was held, the admiralty jurisdiction did not extend to a case where there was a shipment of goods from a port in one State, to another port in the same State, both being in Wisconsin. The libel in that case stated that the goods in question, were shipped at the port of Two Rivers, in the State of Wisconsin, to be delivered at the port of Milwaukee, in the same State.

In another case, from California, which was a proceeding in rem in the District Court of that State against the steamboat Goliah, to recover a balance of an account for coal furnished the boat under the law...