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a uniform rule for the whole country, though, | ceedings in rem against domestic ships for supof course, this will be a matter for considera-plies, repairs or other necessaries, was in force tion should the question ever be directly presented for adjudication.

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On this subject the remarks of Mr. Justice Nelson, in delivering the opinion of the court in Bk. v. Smith, 7 Wall., 655, 656 [74 U. S., XIX, 213] (which established the validity and effect of the Act respecting the recording of mortgages on vessels in the custom house), are pertinent. He says: Ships or vessels of the United States are creatures of the legislation of Congress. None can be denominated such, or be entitled to the benefits or privileges thereof, except those registered or enrolled according to the Act of September 1, 1789; and those which, after the last day of March, 1793, shall be regis tered or enrolled in pursuance of the Act of 31st December, 1792, and must be wholly owned by a citizen or citizens of the United States, and to be commanded by a citizen of the same. *** Congress having created, as it were, this species of property, and conferred upon it its chief value under the power given in the Constitution to regulate commerce, we perceive no reason for entertaining any serious doubt but that this power may be extended to the security and protection of the rights and title of all persons dealing therein. The judicial mind seems to have generally taken this direction." This case was subsequently affirmed by Aldrich v. Etna Co., 8 Wall., 491 [75 U. S., XIX., 473].

Be this, however, as it may, and whether the power of Congress is or is not sufficient to amend the law on this subject (If amendment is desirable), this court is bound to declare the law as it now stands. And according to the maritime law as accepted and received in this country, we feel bound to declare that no such lien exists as is claimed by the appellees in this case. The adjudications of this court before referred to, which it is unnecessary to review, are conclusive on the subject; and we see no sufficient ground for disturbing them.

This disposes of the principal question in the

case.

But it is alleged by the appellees that by the law of Louisiana they have a privilege for their claims, giving them a lien on the vessel and her proceeds; and that the court was bound to enforce this lien in their behalf, though not strictly a maritime lien.

On examining the record, however, it appears that the appellees never caused their lien (if they had one) to be recorded according to the require ments of the state law. By the 123d article of the Constitution of Louisiana, adopted in 1869, it is declared that no "mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated." And an Act of the Legislature, passed since that time, adopts the very terms of the constitutional provision. And a further Act provides that if the privilege be not in writing, the facts on which it is based must be stated in an affidavit, which must be recorded. Rev. Civ. Code, Arts. 3273, 3274, 3093. None of these requisites having been performed, no lien can be claimed under the state law.

But if there were any doubt on this subject, the case of the appellees is met by another difficulty. The Admiralty Rule of 1859, which precluded the district courts from entertaining pro

until May 6, 1872, when the new Rule was promulgated. Now, this case was commenced in the district court a year previous to this, and final judgment in the district court was rendered two months previous. It is true that the judgment of the circuit court, on appeal, was not rendered until the 3d day of June, 1872; but if the new Rule had at that time been brought to the attention of the court, it could hardly have been applied to the case in its then position. All the proceedings had been based and shaped upon other grounds and theories, and not upon the existence of that rule. It would not have been just to the other parties to apply to them a rule which was not in existence when they were carrying on the litigation.

As to the recent change in the Admiralty Rule referred to, it is sufficient to say, that it was simply intended to remove all obstructions and embarrassments in the way of instituting proceedings in rem in all cases where liens exist by law, and not to create any new lien, which, of course, this court could not do in any event, since a lien is a right of property, and not a mere matter of procedure.

Had the lien been perfected, and had the Rule not stood in the way, the principles that have heretofore governed the practice of the district courts exercising admiralty jurisdiction, and which have been repeatedly sanctioned by this court, would undoubtedly have authorized the material men to file a libel against the vessel or its proceeds. The General Smith, 4 Wheat., 438; Peyroux v. Howard, 7 Pet., 324; The Orleans v. Phabus, 11 Pet., 175; The St. Lawrence, 1 Black, 522 [66 U. S., XVII., 180]. 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 furnishing necessaries to a vessel in her home port may be regulated in each State by state legislation. State laws, it is true, cannot exclude the contract for furnishing such necessaries from the domain of admiralty jurisdiction, for it is a maritime contract, and they cannot alter the limits of that jurisdiction; nor can they confer it upon the state courts so as to enable them to proceed in rem for the enforcement of liens created by such state laws, for it is exclusively conferred upon the District Courts of the United States. They can only authorize the enforcement thereof by common law remedies, or such remedies as are equivalent thereto. But the District Courts of the United States having jurisdiction of the contract as a maritime one, may enforce liens given for its security, even when created by state laws. Cases supra. The practice may be somewhat anomalous, but it has existed from the origin of the government and, perhaps, was originally superinduced by the fact that prior to the adoption of the Constitution, liens of this sort created by state laws had been enforced by the state courts of admiralty; and as those courts were immediately succeeded by the District Courts of the United States, and in several instances the judge of the state court was transferred to the district court, it was natural, in the infancy of federal legislation on commercial subjects, for the latter courts to entertain jurisdiction over the same classes of cases, in every respect as the state courts had done, with

out due regard to the new relations which the States had assumed towards the maritime law and admiralty jurisdiction. For example: in 1784, the Legislature of Pennsylvania passed a law allowing persons concerned in building, repairing, fitting out and furnishing vessels for a voyage, to sue in admiralty as mariners sue for wages. Two cases, those of The Collier and The Enterprise, arising under this law, and coming before the Admiralty Court of Pennsyl vania, are reported in Judge Hopkinson's works, Vol. 3, pp. 181, 171 [S. C., Bee., 345]. No doubt other cases of the same kind occurred in the courts of other States.

But, whatever may have been the origin of the practice, and whether or not it was based on the soundest principles, it became firmly settled, and it is now too late to question its validity.

It is true that the inconveniences arising from the often intricate and conflicting state laws creating such liens, induced this court in December Term, 1858, to abrogate that portion of the 12th Admiralty Rule of 1844 which allowed proceedings in rem against domestic ships for repairs and supplies furnished in the home port, and to allow proceedings in personam only in such cases. But we have now restored the Rule of 1844, or, rather, we have made it general in its terms, giving to material men in all cases their option to proceed either in rem or in per sonam. Of course this modification of the Rule cannot avail where no lien exists; but where one does exist, no matter by what law, it removes all obstacles to a proceeding in rem, if credit is given to the vessel.

It would, undoubtedly, be far more satisfactory to have a uniform law regulating such liens, but until such a law be adopted (supposing Congress to have the power) the authority of the States to legislate on the subject seems to be conceded by the uniform course of decisions.

Indeed, there is quite an extensive field of border legislation on commercial subjects (generally local in character) which may be regulated by state laws until Congress interposes, and thereby excludes further state legislation. Pilotage is one of the subjects in this category. So far as Congress has interposed, its authority is supreme and exclusive; but where it has not done so, the matter is still left to the regulation of state laws. And yet this exercise by the States of the power to regulate pilotage has not withdrawn the subject and, indeed, cannot withdraw it from the admiralty jurisdiction of the district courts. Cooley v. Wardens, 12 How., 299; Ex parte McNiel, 13 Wall., 236 [80 U. S., XX., 624]. And, of course, as before intimated, this jurisdiction of the State Legislatures in such cases is subject to be terminated at any time by Congress assuming the control. In some cases this is not so desirable as in others, but in the one under consideration, if Congress has the power to intervene, it is greatly to be desired that it should do so. It would be better to have the subject regulated by the general maritime law of the country than by differing state laws. The evils arising from conflicting lien laws passed by the several States are forcibly set forth by Chief Justice Taney, in the case of The St. Lawrence, before cited. It may be added that the existence of secret liens is not in

accord with the spirit of our commercial usages, and a uniform law by which the liens in question should be required within a reasonable time to be placed on record in the custom-house like mortgages, and otherwise properly regu lated, would be of great advantage to the business community.

But there is another mode in which the appellees, if they had a valid lien, could come into the district court and claim the benefit thereof, namely: by a petition for the applica| tion of the surplus proceeds of the vessel to the payment of their debts, under the 43d Admiralty Rule. The court has power to distribute surplus proceeds to all those who can show a vested interest therein, in the order of their several priorities, no matter how their claims originated. Schuchardt v. Babbage (The Angelique), 19 How., 239 [60 U. S., XV., 625]. The propriety of such a distribution in the admiralty has been questioned on the ground that the court would thereby draw to itself equity jurisdiction. The Neptune, 3 Knapp, P. C.,111. But it is a wholesome jurisdiction very commonly exercised by nearly all superior courts, to distribute a fund rightfully in its possession to those who are legally entitled to it; and there is no sound reason why admiralty courts should not do the same. If a case should be so complicated as to require the interposition of a court of equity, the district court could refuse to act, and refer the parties to a more competent tribunal. See cases reviewed in 1 Conkl. Adm., pp., 48-66, 2d ed.

In this case the appellants themselves have no maritime lien, but merely a mortgage to secure an ordinary debt not founded on a maritime contract. They, therefore, have no standing in court, except under the 43d Admiralty Rule, and in the manner above indicated. Their libel was inadmissible, even under the Admiralty Rule as recently modified. Bogart v. The John Jay, 17 How., 399 [58 U. S., XV., 95]. But before the final decree they filed a petition for the surplus proceeds, and, as there is no question in the case about fraudulent preference under the Bankrupt Law, they are entitled to those proceeds towards satisfaction of their mortgage.

The decree of the Circuit Court is reversed, and it is ordered that the record be remanded, with instructions to enter a decree in favor of the appellants, in conformity with this opinion.

Mr. Justice Clifford, dissenting:

Controversy,sometimes of an embittered character, existed in the courts of the parent country respecting the jurisdiction of the admiralty court for a century before the American Colonies separated from that country and proclaimed their independence. Differences of opinion also have existed here as to the proper extent of that jurisdiction ever since the adoption of the Federal Constitution, as evidenced by the decisions of the Supreme Court at different periods in our judicial history.

Attempt was made at an early period to limit the jurisdiction of the admiralty courts to tidewaters, and to exclude its exercise altogether from waters within the body of a county, whether the waters were or were not affected by the ebb and flow of the tide. Express decision to the effect that the admiralty had no jurisdiction,

even in a suit for seamen's wages, was made in the case of The Jefferson, 10 Wheat., 428, except in cases where the service is substantially performed upon the sea or upon waters within the ebb and flow of the tide.

Jurisdiction of the admiralty courts at that period in the parent country did not extend to any case where the common law courts could give the parties a remedy in a trial by jury, and the theory here for a long time was that the clause of the 9th section of the Judiciary Act which saves to suitors the right to a common law remedy, where the common law is competent to give it, excluded all cases from the jurisdiction of the admiralty courts if the cause of action arose or accrued infra corpus comitatus. Protracted acquiescence in that theory gave it for a time the force of law, until the question was presented directly to the Supreme Court, when the whole theory was completely overturned in all cases where the cause of action, whether tort or contract, had respect to acts done or service performed upon tide-waters. Waring v. Clarke, 5 How., 452.

Doubts of a perplexing character arose in some of the circuits whether affreightment contracts were cognizable in the admiralty, which ultimately culminated in an absolute denial of the jurisdiction in all such cases. Wide differences of opinion upon the subject existed, and in order to its final settlement the question was presented to the Supreme Court in its whole length and breadth. Nav. Co. v. Bk. [The Lexington], 6 How., 392.

Subsequent attempt was made by Congress to furnish a remedy for the difficulty, which was by no means satisfactory, and expedients to obviate the embarrassment were also attempted by the courts, all of which were equally unsuccessful, until the Supreme Court was brought face to face with the question whether the rule of decision that the jurisdiction of the admiralty was limited to the ebb and flow of the tide could be upheld as a correct exposition of that clause of the Constitution which provides that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction.

Opposition to change induced the cry of stare decisis, just as when the argument was presented that the admiralty jurisdiction followed the tide even within the body of a county. Such a cry proved to be insufficient to restrain the advance of admiralty jurisdiction or to prevent it from entering even into the acknowledged limits of States having tide-waters within their borders, and it was again destined to a still greater defeat when it was invoked as the means of perpetuating the great error that the admiralty jurisdiction did not extend to the great lakes and fresh water rivers of our country.

Public duty required the court to review the former case, and the great magistrate presiding over the court did not hesitate to reverse the rule of decision there established and to determine to the effect that the admiralty jurisdiction is not limited to tide-waters, and that it extended to all public lakes and rivers used for the purpose of commerce and navigation between the States or for foreign trade. Genesee Chief v. Fitzhugh, 12 How.. 454.

Nothing was left undone in that case, on either side, which could be accomplished by a skillful argument and indefatigable research. Two of the propositions, one selected from each Strenuous effort was subsequently made to side, will serve to illustrate the nature of the induce the court to qualify the rule there laid contention and the wide range of the discussion. down, or to restrict its application so that the By the appellants it was insisted that the district jurisdiction of the admiralty courts should not courts had no jurisdiction over such a contract, extend to acts done or service performed within because it was made on land, within the body the body of a county, if the waters were above of a county, for the transportation of goods in the flux and reflux of the tide, but this court a described route over inland waters landlocked refused to adopt any such qualification, and rethe whole way, and because the contemplated affirmed, in the most authoritative manner, the voyage terminated infra fauces terræ. Opposed rule previously announced in the two leading to that, the appellees contended that in all cases cases upon those subjects. Jackson v. The Magof contract the question is, whether the contract nolia, 20 How., 298 [61 U.S., XV., 910]: Waror service to be performed is in its nature mari-ing v. Clarke [supra]; Genesee Chief v. Fitztime, and that in all cases of maritime contract hugh, 12 How., 454. the proceeding may be in rem or in personam, at the option of the libelant. Elaborate discussion followed, but the Supreme Court silenced forever all well founded doubts upon that subject.

Such jurisdiction, however, was in the united view of the Supreme Court at that time, limited to tide-waters; nor did either of the learned justices who delivered the opinions of the court in those cases even intimate that the court could entertain appellate jurisdiction in such a case if the cause of action consisted of acts done or service performed on waters not affected by the ebb and flow of the tide.

Admiralty jurisdiction, by virtue of those decisions, continued in our jurisprudence to be limited to the ebb and flow of the tide for more than a quarter of a century, in spite of the deep seated dissatisfaction which existed in all parts of the country interested in Western commerce or in the navigation of the great lakes and rivers of that portion of the Union.

Unquestionably, the jurisdiction of the admiralty is, by those cases, made to depend upon the navigable character of the water, and not upon the ebb and flow of the tide, and the court say, in the case last cited, if the water is navigable, it is deemed to be public, and if public, it is regarded as within the legitimate scope of the admiralty jurisdiction of the Constitution.

Except for one or two expressions contained in the opinion of the Chief Justice, which are much intensified in the head note of the case, and which are repeated in the opinion in the case of The Magnolia, those two decisions would, in all probability, have settled the general question of admiralty jurisdiction under the Constitution, free from several perplexing embarrassments which presented themselves in subsequent litigations. Considerable weight is given, in those opinions, to the circumstance that the great lakes and fresh water rivers are the theater of extended commerce between different States

and with foreign nations, and this court subse- | that effect were rendered in the circuit courts, quently fell into the error that the admiralty but on appeal to this court the error was corjurisdiction of the district courts was limited by rected and the true rule applied in the case. the commercial power of the Constitution, and The Lulu, 10 Wall., 197 [77 U. S., XIX., 907]; decided in two cases that an affreightment con- The Grapeshot, 9 Wall., 129 [76 Ú. S., XIX., tract for the transportation of goods from one 651]. port in a State to another port in the same State, or that a contract for necessary repairs and supplies furnished to a vessel in such a trade, is not within the admiralty jurisdiction of the Federal Courts. Allen v. Newberry, 21 How., 245 [62 U. S., XVI., 111]; Maguire v. Card, 21 How..250 [62 U. S., XVI., 118].

Such an error was too palpable not to attract the attention of the court as soon as a case was presented involving the same question, and two or three years later, such a question was presented in the form of a libel for a collision, and the court unanimously decided that the admiralty jurisdiction was conferred by the Constition; that in cases of tort the question is wholly unaffected by the consideration that the ship was not engaged in foreign commerce or in commerce between the States; that the jurisdiction whether the cause of action is contract or tort, does not depend on the regulations of commerce; that the two matters of jurisdiction are entirely distinct things, and that they were conferred by separate and distinct grants; that locality is the test of jurisdiction in cases of tort, and that, consequently, if the wrongful act is done on navigable waters, the case is one properly nizable in the admiralty courts. The Commerce, 1 Black, 578 [66 U. S., XVII., 109].

Where it appears that the repairs and supplies are necessary to enable the ship to proceed on her voyage the presumption is, if they are furnished in good faith, that the ship as well as the master and owner is responsible to those who supplied such necessaries, unless it appears that the master had funds which he ought to have applied to those objects, and that the furnishers knew or ought to have known those facts. The Kalorama, 10 Wall., 205 [77 U. S., XIX., 941]; The Custer, 10 Wall., 215 [77 U. S., XIX., 944].

Sufficient has been remarked to show that the several decisions referred to had the effect to remove every stumbling-block in the way of the full legitimate exercise of admiralty jurisdiction except two-the one arising from the long acquiescence of the legal profession in the opinion that the admiralty courts could not take cognizance of suits founded upon marine policies of insurance, and the other growing out of an early decision of this court which it is supposed prohibits the admiralty courts from taking jurisdiction of a libel in rem filed by a material man to enforce a contract for necessary repairs and supplies furnished to a ship in her cog-home port.

Attention was again called to those two cases in an affreightment suit, when they were both distinctly overruled without hesitation, and the whole court decided that contracts, claims or service purely maritime and touching rights and duties appertaining to commerce and navigation, are of admiralty cognizance and properly cognizable in the district courts. The Belfast,

7 Wall., 637 [74 U. S., XIX., 270].
Pending these difficulties and before the Su-
preme Court decided that the Judiciary Act ex-
tended the admiralty jurisdiction over all our
navigable waters, the restriction that it did not
extend to voyages from a port in one State to
another port in the same State had become in-
corporated into the Act of Congress passed pro-
fessedly to extend such jurisdiction to the great
lakes and the rivers connected with the same;
but the Supreme Court, in view of the constant
and perplexing embarrassment growing out of
that restriction, did not hesitate to decide that
the Act of Congress in that regard had become
obsolete and inoperative, and that the admiral-
ty jurisdiction created by the Constitution and
conferred by the Judiciary Act was the same
everywhere within the United States, and that
every distinction between tide-waters and other
navigable waters was in that regard obliterated
and overruled. The Eagle, 8 Wall., 20 [75 U.
S., XIX., 368].

Erroneous theories also became prevalent in certain quarters in respect to the true nature of the liability of the owners of ships and vessels for necessary repairs and supplies furnished to the master on the credit of the ship, that the burden of proof was in all cases upon the merchant to show both that the ship needed such necessaries and that the master was justified in resorting to the credit of the vessel. Decrees to

Happily, the first of the two obstructions mentioned is removed by a more recent decision of this court, and it is much to be regretted that the majority of this court have decided not to remove the other until they "have" a more "convenient season" to accomplish that great purpose. Ins. Co. v. Dunham, 11 Wall., 21 [78 U. S., XX., 96].

Promptitude in correcting such an error, when it is discovered, is very desirable, as the longer it is suffered to prevail the greater is the danger that the correction will impair vested rights. Justice is slow but sure, and it is not doubted that sooner or later the correction will come, as the rule of decision which prohibits the exercise of jurisdiction in such a case is manifestly founded in mistake.

Enough of the facts of the case appear in the opinion of the court without reproducing to much extent the details of the evidence. Suffice it to say, that the controversy has respect to the balance of a fund in the registry of the district court, derived from the sale of a steamer seized and sold for the payment of seamen's wages. Both parties in this court were interveners in the district court. Appellants claim what remains of the proceeds of the sale as mortgagees by virtue of a mortgage of the steamer executed to them by the owner. On the other hand, the appellees make claim to the same by virtue of the lien which they insist they have for repairs and necessary supplies furnished to the master on the credit of the vessel. Proofs were taken and the parties heard, and the district court ultimately determined that the mortgagees were entitled to the balance of the fund. Due ap peal was taken by the interveners who fur nished the repairs and supplies, to the circuit court, where the parties were again heard, and the circuit court reversed the decree of the dis trict court and entered a decree in favor of the

interveners who furnished the repairs and sup- | his possession until he was paid the money due plies. Prompt appeal was taken by the inter- him for the repairs made or the supplies furvening mortgagees to this court from that de- nished.

cree.

Two errors are assigned, in substance and effect as follows: (1) That the circuit court erred in giving effect to the new twelfth Admiralty Rule, which had not been adopted when the libels of intervention were filed. (2) That the circuit court erred in awarding the fund to the material men, as it is not shown that such creditors have any privilege by the laws of the State. Contracts or claims for service or damage purely maritime and touching rights and duties appertaining to commerce and navigation are cognizable in the admiralty. Whenever a maritime lien arises in such a contract or claim, as in controversies respecting repairs made or supplies furnished to a ship, or in case of collision, the libelant may pursue his remedy, whether it be for a breach of a maritime contract or for a marine tort, by a suit in rem against the vessel, or by a suit in personam against the master and owner in cases where they are jointly liable for the alleged default. By the civil law a lien upon the ship is given, without any express contract, to those who repair the vessel or furnish her with necessary supplies, whether the vessel was at her home port or abroad when the repairs and supplies were made and furnished. Will. & Br. Pr., 154; The John, 3 Rob. Adm., 288; Harmer v. Bell, 7 Moore P. C., 267; 3 Kent, Com., 12th ed., 168; 3 Kent, Com., 169, n. a.

Every man, says Abbott, who had repaired or fitted out a ship, or lent money to be employed in those services, had by the law of Rome, and still possesses in those nations which have adopted the civil law as the basis of their jurisprudence, a privilège or right of payment in preference to other creditors upon the value of the ship itself without any instrument of hypothecation, or any express contract or agreement, subjecting the ship to such a claim. Abb. Ship., 142. "Quiin navem exstruendam vel instruendam credidit vel etiam emendam privile gium habet." Dig., L. XLII., tit. 5, 1. 26. “Quod quis navis fabricandæ, vel emenda vel armenda, vel instruendæ causa, vel quoquo modo crediderit vel ob navem venditam petat, habet privilegium post fiscum." Dig., L. XLII., tit. 5, 1. 34; Code du Com., Art., 197; French Code, liv. 1, tit. 12, art. 3; The Harrison, 2 Abb. (U. S.), 74; Ex parte Kirkland, 12 Am. L. Reg. (N. S.), 301; The Nestor, 1 Sumn., 79. Wherever a maritime lien exists, it gives a claim upon the ship a jus ad rem to be carried into effect by legal process, and the claim travels with the ship into whosesoever possession she may come, and is enforced in the court of admiralty by a proceeding in rem. Add. Cont., 6th ed., 273; 1 Wynn, Life of Leoline Jenkins, LXXVI. to XCIX.

Beyond all doubt such is the rule of the civil law, but the only lien recognized by the common law in such cases, independent of statutory regulations, is the possessory lien which arises out of and is dependent upon the possession of the ship, as in cases where goods are delivered to an artisan or tradesman to be manufactured or repaired. Such a lien, as understood at common law, did not attach unless the ship was in the possession of the person who set up the claim, and the extent of the privilege which it conferred was that he might retain the ship in

Undisputed matters need not be discussed; consequently, it may be assumed that a contract for necessary repairs or supplies is a maritime contract, whether the vessel was at home or abroad when the repairs and supplies were made and furnished; and it may also be assumed that neither a contract for building a ship nor to furnish the materials for the construction of the same is a maritime contract, because such contracts are not directly connected with maritime commerce. They are contracts made on land and are to be performed on land. Contractors of the kind collect their materials very largely from the forests and the mines, and until the ship is launched there is no necessary connection between the subject-matter of the contract and her subsequent employment as a vehicle of commerce and navigation. [Ferry Co. v. Beers] The Jefferson, 20 How., 400 [61 U. S., XV., 964]: Roach v. Chapman, 22 How., 129 [63 U. S., XVI., 294]; Morewood v. Enequist, 23 How., 494 [64 U. S., XVI., 517]: Young v. The Orpheus, 2 Cliff., 36; Edwards v. Elliott [ante, 487].

Repairs and supplies were furnished by the intervening appellees to the steamer in her home port, and they claim that they have a lien upon the balance of the fund in the registry of the court for the payment of their demand, which is resisted by the appellants chiefly upon two grounds: (1) They deny that any maritime lien arises in such a case. (2) Because, as they contend, they, the appellants, have a superior claim to what remains of the fund by virtue of the mortgage of the steamer executed to them by the owner.

Support to the first proposition is chiefly drawn from a decision of this court, which it is supposed establishes that rule of decision. The General Smith, 4 Wheat., 443. Claims of the kind, the court admit, in that case, give rise to a maritime lien where the repairs or supplies are furnished to a foreign ship or to a ship in a port of a State to which the ship does not belong, and that the general maritime law following the civil law, gives the party a lien on the ship itself for his security, and that he may well maintain a suit in rem in the admiralty to en force his right. All the authorities, ancient and modern, admit that proposition; but the court proceed to say that, in respect to repairs and necessaries in the port or State to which the ship belongs, the case is governed altogether by the municipal law of that State, and that no lien is implied unless it is recognized by that law. Taken as a whole, the opinion in that case is more unsatisfactory than any one ever given in a commercial case by that learned judge. It is unaccountable, says a distinguished jurist, that Judge Story, in delivering the opinion of the court on a question so interesting and pregnant, should have done so little. He gives but one page to the entire opinion, cites no authoritiesand treats the subject in a slight and unsatisfactory manner. 7 Am. L. Rev., 2. Other judges have attempted to give the reason for the distinction set up in that case between the remedy given to a party who furnishes necessary repairs and supplies to a ship in the port of a State other than that to which she belongs and the

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