Warren v. Kelley

Decision Date09 August 1888
PartiesWARREN v. KELLEY.
CourtMaine Supreme Court

On motion for new trial from supreme judicial court, Hancock county.

Trespass against an attaching officer. Verdict was rendered in favor of plaintiff for $2,443.73, and the defendant filed a motion for new trial.

A. P. Wiswell, for plaintiff. William L. Putnam and Joseph M. Trott, for defendant.

FOSTER, J. Labor and materials were furnished for repairing the schooner Corporal Trim. Payment for the same was refused, and proceedings in rem were instituted to enforce a lien provided by statute against the vessel for which such labor and materials had been furnished. Process for the enforcement of the lien was placed in the hands of the defendant, as sheriff of the county of Lincoln, and the vessel was seized and attached by him. This suit is trespass against the officer by the mortgagee of said vessel. A verdict of $2,443.73 has been rendered against the defendant, and the case comes before this court on exceptions and motion.

The question presented for consideration on the exceptions involves the constitutionality of a portion of section 8, c. 91, Rev. St., and other provisions pertaining to that portion; which in terms provide for the enforcement of liens for repairs upon vessels. That portion of section 8 is as follows: "* * * And whoever furnishes labor or materials for a vessel after it is launched, or for its repair, has a lien on it therefor, to be enforced by attachment within four days after the work is completed. * * *" In addition thereto subsequent sections provide for enforcing this as well as other liens named in the eighth section, specifying the form of the process in rem against the vessel itself substantially as in admiralty proceedings, with a separate judgment and execution against the vessel for the amount of the lien claim found to be due, and process for the sale of the vessel for the satisfaction of such lien. It is admitted that the vessel was owned within the state, and that the materials and repairs were furnished at her home port, a port within the state where the vessel was owned. It is therefore a case of a domestic, and not a foreign, vessel; of a domestic vessel with materials and repairs furnished in a home port. The contention of the plaintiff is that the contract and service for the materials and repairs were of a maritime nature, and, with reference to the enforcement of any lien therefor by proceedings in rem, cognizable exclusively in the admiralty courts of the United States. And it is claimed that the statute authorizing the enforcement of such lien in the courts of this state, by proceedings of this kind, for repairs upon vessels, is unconstitutional, and therefore affords no protection to the officer acting under such process. The question is squarely before us upon the case as it is presented, and must be directly met, notwithstanding that portion of the statute in reference to repairs upon vessels, and to the furnishing of labor or materials for the same after they are launched, has been repealed since this controversy arose. The constitution of the United States (article 3, § 2) ordains that "the judicial power shall extend * * * to all cases of admiralty and maritime jurisdiction." And according to the highest judicial authority, by which the terms of the constitution are construed, it was long ago settled that, while congress can neither enlarge nor diminish this grant of the federal judiciary, it may designate the courts which shall exercise this jurisdiction. When this is done, no state law can enlarge or diminish the jurisdiction allotted to such courts. In the proper exercise of this power by congress the judiciary act of 1789 was enacted, constituting the district courts of the United States, by the ninth section of which it is provided that said courts "shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, * * * saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it." It would seem unquestionable, therefore, that the jurisdiction of the district courts of the United States extends over all admiralty and maritime causes exclusively, with the exception of such concurrent remedy as was given by the common law. "Admiralty and maritime jurisdiction," according to the generally accepted and received use of the terms, extends to all things done upon and relating to the sea, to transactions relating to commerce and navigation, to damages and injuries upon the sea, and all maritime contracts, torts, and injuries. De Lovio v. Boit, 2 Gall. 468. But as applied in this country, with its immense lakes and numerous navigable rivers, the doctrine in modern time has extended it "wherever ships float, and navigation successfully aids commerce, whether internal or external." The Hine, 4 Wall. 563; The Eagle, 8 Wall. 15.

Before proceeding further it may be proper to notice the difference in reference to liens upon domestic and foreign vessels. For repairs upon a foreign vessel, that is, a vessel out of the state or country where owned, the general maritime law gives the party furnishing the same a lien upon the vessel for his security, and he may maintain a suit in admiralty to enforce his right. In such case, if the party sees fit to enforce his lien, his remedy belongs exclusively in the courts of the United States. But where a party furnishes materials or repairs upon a vessel in her home port, no lien therefor is implied by the maritime law as accepted and received in this country. The presumption in such case is that credit is given to the owners, and not to the vessel. The reason for the existence of the lien in one case and not in the other, as declared by the courts, is based upon the principles of the maritime law, and not upon the fact that one is a contract maritime in its nature and the other not, for it is conceded by all the authorities that supplies, materials, and repairs furnished to a vessel in her home port is a maritime contract. Peyroux v. Howard, (The Planter,) 7 Pet. 341; The St. Lawrence, 1 Black, 522; The Lottawanna, 20 Wall. 219, 21 Wall 580; Abb. Shipp. 143, 148. But while, by the general maritime law, no lien exists in favor of parties furnishing repairs or necessaries to a vessel in her home port, it has been the admitted and recognized doctrine of our jurisprudence ever since the decision in The General Smith, 4 Wheat. 443, in 1819, that so long as congress does not interpose by general law to regulate the subject, the state, although it cannot create a lien, and attach it to a service or contract not maritime in its nature, and thereby extend the jurisdiction of the United States courts, (Peyroux v. Howard, supra; Forsyth v. Phoebus, 11 Pet. 175, 184; Roach v. Chapman, 22 How. 129, 132; The Belfast, 7 Wall. 644;) may extend a lien based upon a maritime service or contract to parties thus furnishing such repairs or necessaries to such vessel, (The Belfast, supra; The Lottawanna, 21 Wall. 580; Edwards v. Elliott, Id. 557.) As to the methods of enforcing such liens, whether in the state or United States courts concurrently, or in the one to the exclusion of the other, notwithstanding the provisions of the constitution and of the judiciary act of 1789, are questions which have frequently been before the supreme court of the United States, and given rise to decisions which are not easy of reconciliation. While a careful examination of the decisions is proper to a correct understanding of this question, it is unnecessary to particularly trace them in this connection. In such examination, however, it becomes necessary to bear in mind that the want of a uniform system of admiralty administration in cases where local law or state statutes gave a lien upon the property where none existed by the general maritime law, led to the adoption of what is known as rule 12 in admiralty, in 1844, and the amendments thereto in 1859 and 1872.

For many years after the adoption of the constitution jurisdiction was concurrently exercised by the state and United States courts in reference to proceedings in rem for the enforcement of liens created by the statutes of the different states. The federal courts entertained jurisdiction, and enforced liens which were not maritime or based upon maritime service or contract. Liens created by statute, and applied to the construction and building of new vessels, which are land and not sea contracts, were enforced by the admiralty or district courts of the United States, as well as liens for materials or repairs upon them after they were built. But in Ferry Co. v. Beers, 20 How. 393, in 1857, the court laid down the doctrine that a contract for the construction of a vessel is not maritime, because it is neither made nor performed on the water, and that no maritime lien is created or exists by the performance of such a contract, and refused to recognize jurisdiction in the district courts in the enforcement of statutory liens attached to contracts for the original construction of vessels. Roach v. Chapman, (The Capitol,) 22 How. 132; Edwards v. Elliott, 21 Wall. 532. The decision in Peyroux v. Howard, (The Planter,) 7 Pet. 324, rendered in 1833, has been considered as establishing the principle that if a state statute gives a lien in its nature maritime, that is, founded upon a maritime contract, and the subject-matter is within admiralty jurisdiction, the lien may be enforced by a suit in rem in the admiralty courts. No principle of admiralty appeared to be better established in the United States than that which we have just stated, that where a local law attaches a maritime lien to a maritime service within admiralty jurisdiction, a suit to enforce such lien lies in the federal courts in admiralty, and that a lien for materials or repairs on a vessel engaged in maritime commerce, a sea-going vessel, is a maritime lien, and within...

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13 cases
  • Portland Pipe Line Corp. v. Environmental Imp. Com'n
    • United States
    • Maine Supreme Court
    • 4 Junio 1973
    ...Panama R.R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748 (1924). This Court has recognized as much in Warren v. Kelley, 80 Me. 512, 15 A. 49 (1888). See also, Berry v. M. F. Donovan & Sons, 120 Me. 457, 115 A. 250 (1921). 38 M.R.S.A. § 551(2) D provides that claims arising under......
  • Cordrey v. The Bee
    • United States
    • Oregon Supreme Court
    • 4 Octubre 1921
    ...452, a lien for supplies to domestic ships created by state law is maritime and hence cognizable in admiralty. We find in Warren v. Kelley, 80 Me. 512, 15 A. 49, that statute of a state may create a lien on a domestic vessel based on maritime service, but the jurisdiction to foreclose it be......
  • Atlantic Works v. Tug Glide
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 4 Enero 1893
    ...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; Petrel v. Dumont, 28 Ohio St. 602; Crawford v. The Caroline Reed, 42 Cal. 469; Dever v.......
  • Atlantic Works v. Glide
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 4 Enero 1893
    ...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 ......
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