The Willapa

• Citation: 34 P. 689,25 Or. 71
• Parties: THE WILLAPA. PORTLAND BUTCHERING CO. v. THE WILLAPA et al.
• Decision Date: 20 November 1893
• Court: Oregon Supreme Court

34 P. 689

25 Or. 71

THE WILLAPA. PORTLAND BUTCHERING CO. v. THE WILLAPA et al.

Supreme Court of Oregon

November 20, 1893

Appeal from circuit court, Multnomah county; E.D. Shattuck, Judge.

Proceedings in rem by the Portland Butchering Company against the steamer Willapa, her tackle, apparel, and furniture, to enforce a lien for supplies furnished in her home port, F.R. Strong intervened as claimant, and demurred. Demurrer overruled, and Strong appeals. Reversed.

C.E.S. Wood, for appellant.

C.J McDougall, for respondent.

LORD C.J.

This is a proceeding in rem, brought under the provisions of the boat lien law, (Hill's Code, § 3690 et seq.,) to enforce a lien for supplies furnished the steamer Willapa in her home port. After her seizure, F.R. Strong, as claimant filed an undertaking with sureties, and obtained her release. When the case came on to be heard, he filed a demurrer to the complaint, alleging as the ground thereof that the court had no jurisdiction of the subject of the action, which was overruled, and a judgment rendered against him and his sureties on such undertaking. The only question raised by this appeal is whether state courts have jurisdiction to enforce, by a proceeding in rem, a lien given for supplies furnished a domestic vessel in her home port. The contention for the defendant is that a proceeding of this character, brought against the vessel by name, which seeks to condemn and sell her to satisfy a lien given by the state for supplies furnished her, is exclusively within the admiralty jurisdiction of the federal courts. The constitution of the United States ordains that the "judicial power shall extend *** to all cases of admiralty and maritime jurisdiction." Article 3, § 2. By force of this provision the statutes of the United States provide that the district courts of the United States shall have exclusive jurisdiction of "all civil cases of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy, when the common law is competent to give it." Rev.St. U.S. § 563, cl. 8; Id. § 711, cl. 3. Under these provisions the state courts are excluded from taking jurisdiction of civil maritime cases, except so far as common-law remedies are saved to suitors. The principal subjects of admiralty jurisdiction are maritime contracts and maritime torts. The Belfast, 7 Wall. 637. Contracts for repairs and supplies furnished a vessel in her home port have long been recognized as maritime contracts, and admiralty jurisdiction over them frequently exercised and sustained. The General Smith, 4 Wall. 443; Peyroux v. Howard, 7 Pet. 341; The Lawrence, 1 Black, 529; The Lottawanna, 21 Wall. 580. It results, therefore, that a cause of action, founded on such a contract, is a "civil cause of admiralty and maritime jurisdiction," and exclusively cognizable in the federal courts, except in so far as the saving clause preserves to the suitor a common-law remedy as to the same cause of action. It is true that no maritime lien arises on such a contract. Under the general maritime law a lien attaches for supplies furnished a vessel in any other than her home port on the presumption that such supplies are furnished upon the credit of the vessel herself, but no lien, under such law attaches for supplies furnished a vessel in her home port, as in that case the presumption is that the credit is given to the owner or master, and not to the vessel. In view of this state of the maritime law, the state legislatures passed laws which among other things, give to material men a lien upon a vessel for supplies furnished in her home port, and provide for a proceeding in rem against the vessel. Such is the boat lien law of this state. In the absence of such local laws, the jurisdiction of admiralty and the state courts to enforce such contracts is concurrent. In either tribunal an action in personam may be brought upon them; in the federal courts, because they are maritime, and in the state court, because an action in personam and by proceedings in attachment are common-law remedies. But neither court could exercise jurisdiction to enforce such contract by a proceeding in rem, because in the former there was no maritime lien, and in the latter for the reason that a proceeding in rem is not a common-law remedy, nor is the common law competent to give it. When a lien is given by the general maritime law, it is beyond question that a proceeding in rem is within the exclusive cognizance of the admiralty courts, but, as no maritime lien arises from a contract for supplies furnished to a domestic vessel, there is no lien to enforce by a proceeding in rem, unless it be given by a local or state law. Without, therefore, there is a lien, derived from either the maritime or local law, there can be no proceeding in rem. A lien is the foundation of such proceeding. So that, while a contract for supplies furnished a vessel in her home port is a maritime contract, over which admiralty has jurisdiction, yet there is no foundation for a proceeding in rem upon it, unless there is a lien created and given by the state law. But it is not the fact that a lien exists by the local law, but the fact that the contract is maritime, which gives the federal courts jurisdiction. The state cannot confer jurisdiction upon them, nor create maritime liens, so as to have that effect; but courts of admiralty, finding such liens to exist, by force of the state law, and having jurisdiction of the contract upon which they are based, have given effect to them by applying the appropriate remedy peculiar to such courts. But it is said that the lien is a right of property, and not a mere matter of procedure, and that, if the state has the power to create liens on such contracts, it ought to be competent to provide a mode for their protection, as by the proceeding in rem. It is, without doubt, ordinarily true that, where there is the power to create a right, there is also the power to provide a remedy. But where the contract is maritime, the jurisdiction of admiralty is exclusive under the judiciary act, except so far as common-law remedies are saved. The proceeding to enforce a lien is not a common-law remedy. When, therefore, the contract, being for supplies furnished a domestic vessel, is maritime, though the state may give a lien upon the same, it cannot provide a remedy in rem to enforce it, within the saving clause of that act. How the exclusive jurisdiction of the federal courts is reconcilable with the authority of the state to create such liens is not easy of solution. "It is a question," Ryan, C.J., said, "with which the state courts have no concern." Weston v. Morse, 40 Wis. 455. However that may be, the exclusive jurisdiction to enforce such liens by a proceeding in rem has been often asserted and sustained by the federal courts. In The Lottawanna, 21 Wall. 580, the doctrine of the exclusive jurisdiction in the district courts of the United States was declared in the most emphatic terms. The court say: "It seems to be settled in our jurisprudence that, so long as congress does not interpose to regulate the subject, the rights of material men...