Erastus Cornelius Benedict.

The American admiralty, its jurisdiction and practice, with practical forms and directions online

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time jurisdiction in England when the constitution was adopted. This
rule, alone, considered in its proper force and effect, sweeps away
the foundation of every objection that has been made to the general
jurisdiction of the American Admiralty.

2. That the American Admii-alty has a geneml maritime juiisdic-
tion, embracing all maritime causes of action, as well matters of
contract as matters of toi-t. That in matters of tort the jurisdiction
depends upon the locality, and embraces all damages and injuries
upon the sea [and navigable waters of the United States]. That
in mattera of contract, the jurisdiction depends upon the subject-
matter, — the nature of the contract, — ^and embraces all transactions
and proceedings relative to naval commerce and navigation.

3. That the right of trial by jury does not affect the question of
the maritime jurisdiction.

4. That the jurisdiction is not affected by the question, whether
the courts of common law have jurisdiction in like cases, or whether
the matter may have arisen within a port or harbor, or county of a

5. That the American Admiialty has jurisdiction of all cases of
maritime lien.^

§ 262. Scope of these Decisions.— ^ho can fail to perceive that
these principles and rules cover the whole subject ? Considered in
their proper light, and applied only in their necessary extent, they
furnish a sufficient guide in settling all questions of jurisdiction in
admiralty and maritime cases. For, from them, follows, inevitably,
another general principle, clearly stated by Du Ponceau. ^*' In cases
of admiralty and maritime jurisdiction^ a general authority is given
to the courts of the United States^ to administer^ in all cases^ that par-
ticular body of laws known as the admiralty and maritime laws^ ^ If
English law does not bind w*, nor English decisions furnish us a guide^

tie Charles, 1 Brockenbrough R. 380;
The Draco, 2 Sumn. R. 157; Peyroux r.
Howard, 32 U. S. (7 Petera), 324; The
Orleans©. Ph<Bbus,36U. S. (11 id.) 175;

The U. S. V. Coombs, 37 U. S. (12 id.)

♦ Vide cases cited under § 260.

^Du Pen. on Juris. 9.

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we can look only to the general maritime law for the definition and classic
fication of cases of admiralty and maritime jurisdiction.

§ 263. Classification of Maritime Causes. — It has been already
remarked, that the true test of a maritime contract is to be found in
its relation to a ship or vessel, the great agent of maritime enter-
prise ; a test, at the same time simple, obvious, and easily applied.*
And I now propose, in closing this portion of my work, briefly to
notice in detail the most numerous classes of maritime causes, in
connection with the decided cases and other authorities. To those
who look at the subject, and examine its principles with a careful
analysis of the substance, rather than of words and forms, it cannot
fail to be apparent, that the classes and cases now to be noticed shed
a light upon the whole subject, by which any other case may be
easily refeiTed to its proper class.

The great characteristic relations of maritime law to the ship are
distributed by Pardessus, in his work on commercial law, in a man-
mer, at the same time brief, simple, intelligible, and comprehensive,
as follows : ^


" The transactions embraced in maritime commerce maybe classi-
fied in a simple and intelligible order. Vessels, the only means by
which navigation is carried on, cannot exist except as the property
of some one, and all that concerns the vessels themselves, and every-
thing relating to the means of acquiring title to them, constitutes
the first class.

THE ship's company — OFFICERS AND MEN.

** The management of the vessel is intrusted to a leader, usually
known under the name of captain, and from this title and character
are derived his rights and duties.

" The captain, and those who labor in the service of the vessels,
in stations more or less subordinate, contract engagements in which
the general principles of the hiring of services are subjected to im-
portant modifications and extensions.

«Haller c. Fox, 1 F. R. 298. The Act
extending the jurisdiction of the Eng-
lish Admiralty gives it "jurisdiction on
any claim for damage done by any ship,^^
and under tliat clause, Dr. Lushington

sustained a libel for a collision in the
Grand North Holland Canal. The
Diana, 1 Lushington, 589.
7 1 Pard. Droit Com. 81.

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" Those to whom the vessels belong, do not always employ them
for their own personal use. They grant to others the right to trans-
port goods in them, or they undertake, themselves, to make the
ti-aiisportation. Hence, necessarily, arise rules in relation to such
engagements, and the application of the general principles, which
affect the responsibility of those engaged in transportation, and the
necessary relations between the co-freightei*s in certain circumstances.


'' The accidents to which navigation is exposed may occasion losses,
or sacrifices, known under the generic name of averages, — and ship-
wrecks, in which it is necessary to provide for salvage.


^^ Maritime commerce being, in its nature, exposed to damages of
every kind, speculatoi's come to the aid of owners of ships and car-
goes, and undertake to i-epair the losses which they suffer. This is
the object of the contract of insui-ance.


" Maritime expeditions, sometimes giving rise to unforeseen need
of funds, which it is not always easy to procure by simple loans, and
for the payment of which other security cannot be given than the
objects themselves on which the advances are made, men have felt
the need and acknowledged the advantages of associating the lender
in the risks of navigation, so that the chance of loss may be compen-
sated by the hope of a larger interest than his capital would produce
in the commerce of the land, and this has given rise to the contract
of bottomry.


" Maritime business is not confined solely to voyages and tmns-
portation of persons or merchandise ; the fisheries are an important
branch of it, subject to special regulations, dictated by national and
commercial interests."

§ 263 a. Aceonnts and Mortgages. — The admii-alty has, however,
no jurisdiction in matters of account between part-owners, or others,
except when the taking of an account is a mere incident to a mari

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time cause of action. ^^ It has also l)een held that it has not juris-
diction of mortgages, in questions between the mortgagee and the
owner, so as to be able to foreclose a mortgage of a vessel, by a sale,
or by decreeing the ship to be the property of the mortgagees and
directing the possession to be given to them ; ^^ and that a lien re-
served by contract, which in effect amounts to nothing more than a
mortgage, does not avail to give it jurisdiction,^^ distinctions which
do not seem to be known to the general maritime law and may on
review be amended.

§ 264. The Bailding of Ships.— The first man who applies his
service to making a ship available for the great purposes to which
she is designed as a maritime agent, is the builder. He brings to
the construction, skill, labor and capital, and incorpoi-ates all of them,
in a greater or less degree, into the fabric. Without his aid, she
would perform none of her appropriate functions, for she could not
exist. This service is eminently maritime, although it be all per-
formed on land. In the same manner, if he supply capital to purchase
that which is intended to enter and does enter into her construction,
and if he furnish neither labor, nor materials, nor money, but gives
simply the skill which plans and directs, or the care which superin-
tends the labor of othei-s in her construction, he still performs a mar-
itime service, although he may never have been, even for an instant,
on the water. The building contract is a maritime contract, whether
it be verbal or written, express or implied, — " all matters that con-
cern owners and proprietors of ships, as such, and shipwrights, are
within the admiralty jurisdiction." ^^

In the cases of the People's Ferry Co. v. Beei^, and Roach v.
Chapman, the Supreme Court says, that the contract for building a
ship is not a maritime contract, because it is a contract " made on
land, to be performed on land ; the wages of the shipwrights have

1'^ The Orleans v. Phoebus, 36 U. S. (11
Pet) 182; Grant v. Poillon, 61 U. S. (20
How.) 162; The Brothei-s, 7 Fed. Rep.
878; The H. E. Willanl, 52 id. ^87.

" Bogai-t V. The John Jay, 58 U. S.
(11 How.) 399; Schuchardt c. The An-
gelique, 60 U. S. (lU id.) 239; Tlie William
D. Rice, 10 Law Hop. X. S. 501; contra.
The Hilarity, Hbuclif. & H. 90; vidr.
Leland r. The Medora, 2 Woodb. tfc M.

92; Deshon v. The Same, id. 118.

^'^ The People's Ferry Co. v. Beers, 61
U. S. (20 How.) 393.

1^ Davis c. A New Brig, Gilp. 473;
Harper et al. v. A New Brig, id. 536;
The Hull of a New Ship, Daveis, R. 199;
ante, §§50, 95, 105,151; Godol.43; con-
tra, The People's Ferry Co. v. Beers, 61
U. S. (20 How.) .393; Roach v. Chap-
man, 63 U. S. (22 id.) 129.

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no reference to a voyage to be performed." It cannot, however,
with strict propriety, be said that a ship is built on the land. Her
keel is indeed laid in an inclined plane on the shore, and her frame
is forcibly kept from the water, until her hull is so far advanced as
to be buoyant. At the proper time she is allowed to slide into the
water, where she is made a ship. Finii coronat opus. From the
time when her keel is laid to the last work upon her rigging, not a
timber is framed, not a spike or treenail is driven, nor a plank, a
rope, a block, or an earing is put in place, except for the direct,
useful, maritime purpose of making her a seaworthy ship. On the
land she is useless ; she can neither stand nor go. On the water
she is the perfection of usefulness, as the great agent of maritime
commerce, to whose wants and exigencies, and perils, she must be
well adapted by the builder. And this is his contract, and his
wages have reference to all her voyages to be performed. The navi-
gable waters, and their perils, and the ship, and her owners, and
sailons, and cargo, are all there is in maritime commerce and ad-
mii-alty jurisdiction, and Valin may well sajs "what would be the
function of admiralty courts, if they had not the jurisdiction of the
building, rigging, furnishing, outfit, sale, and adjudication of ves-
sels?" The maritime law, as laid down by all the great civilians
and jurists, embraces contracts for building, repairing, supplying,
and navigating ships.^*

By the civil law — " whoever gives credit for building, or f jirnish-
ing, or repairing a ship, has a lien upon it." " What any one gives
credit for, for the purpose of building, repairing, furnbhing, or out-
fitting, or even selling a ship, is a lien upon it." ^*

By the Consulat — '^ If a ship newly built, is sold at the suit of
creditors, before it has been launched, or before it has made a voy-
age, the mechanics, caulkei-s, and other workmen, as well as those
who have furnished timbej*, pitch, spikes, and other things necessary
for the building of the ship, shall be preferred to all other creditors
whatever, even to those who may have lent money, with a written
declaration that it is to be used in the building of a vessel." ^^

»* De Lovio t). Bolt, 2 Gall. 475.

1^ Qui in navem exstruendam vel in-
struendam credititveletiam emendam,
prlTilegium habet.

Quod qnis navis fabricandae vel em-
endse yel arraandse vel instruendse
causa, yel quoque modo credideiit, vel

ob navem venditam petat habet privi-
legium. Dig. Lib. 42, Tit. 6, Art 26, 34.
>8 Si un vaisseau nouvellement fabri-
que est vendue k la poursuite des crean-
ciers avant qu'il a et^ lance \k la mer, ou
avant qu'il a fait son premier voyage,
leg maitres de baches, calfats et autres

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Cleirac, to the same effect, says, — " Hypothecation is special and
privileged for the wages of the carpenters, caulkers, and other work-
men, and for those also who have furnished tar, pitch, casks, timber,
spikes, o£^kum, and other materials for the building or repairing a
vessel." ^^

The Marine Ordinance of 1691 is equally clear, — *^ The judges of
the admiralty have jurisdiction exclusively of all others, and between
all parties, of every thing which concerns the building, tackle, apparel,
furniture, outfit, victualling, sale, and adjudication of vessels." ^®

In like manner, Valin, commenting on this article of the Ordi-
nance, — " there is never any dispute in relation to the objects ex-
pressed in this article, which concern the building^ r iff ginffy furni-
ture^ outfit^ saie^ and adjudication of vessels ; (the italics are his,)
and in truth what would be the function of admii-alty courts, if they
had not jurisdiction of such causes ? " ^^

Emerigon quotes with approbation, and as authority, the forego-
ing, and other similar passages, in chapter 12, sections 8, 4, 5, of his
treatise on maritime loans, and on page 566, quarto edition, says, —
"There is nothing so much favored as the price of work and mate-
rials for the building of a vessel. Commerce and the state are in-
terested in it. It is just that the workmen and material-men should
enjoy the lien upon the thing, which is given them by the Marine
Ordinance. They cannot be deprived of this privilege except when
it is proved that they trusted the person, not the thing." Boulay-

ouvHers, comme encore ceux qui ont
foumi le bois, la poix, les clous, et
autres choses necessaires pour la con-
struction de navlre, seront pr^f^r^e a
tous autres creanciers, quelques quMls
soient, m^me a ceux qui auraieut pr^t^
avec declaration par ^crit que c'est pour
employer ^ la construction d'un vais-
seau. Consulat de la Mer, chap. 32.

^^L'hypotheque est aussi sp^ciale et
privilegi^e pour le loyer des maitres de
haches, charpentiers,calfats, et autres a-
yant travaill^ ^ leur journees,ou marees,
et pour ceux pareillement qui ont f ourni
goudron, ou tray, fustaille, bois, clou-
age, saitie, estoupe, et autres agreiles
pour la fabriqueouradoubduvaisseau.
Cleirac Jur. de la Marine, 351, Art. 0.

is Les juges de Tamiraut^ connaitrent,

privativement k tous autres, est entre
toutes personnes de quel que quality
quelles soient m6m^ privilegi^s, Fran-
cois et estrangers, tant en demandant
qu^ en defendant de tout ce qui conceme
la construction, les agr§ts, et apparaux,
avitalllement, et equipement, vente et
adjudication des vaisseaux. Ord. de
la Marine, (1691.) Tit. 2, Art. 1.

1° Iln^y-a jamais de contestation par
rapport aux objets exprim^s dans cet
article qui concement la con8tru.ction^
les atjretSj et apparaux, armement, avi-
taillement, et tfquipement, vente et ad-
judication des vaisseaux. Et en effet
quelle serait T attribution des juges de
Tamiraute s'ils ne connaissai^nt de ces
sortes de cause ? 1 Valin, 113. (The
italics are Valines.)

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Paty, in more recent times, in his commentaries on the Commercial
Code, in which the jurisdictional clauses of the Ordinance are re-
enacted, sections 1, and 2, as does also the Nouveau Valin, bring
down to our own time, in equivalent woixls, this maritime law of all
the ages.

Even the English judges, with the King and his Council, in the
i-esolutions of 1632, say, (Resolution 8, ante^ § 95), —

" If suit shall be in the Court of Admiralty, for building^ amend-
ing, saving, or necessary victualling of a ship, against the ship itself,
and not against any party by name, but such as for his interest
makes himself a party, no prohibition is to be giunted, though this
be done within the realm."

And if we pass behind these great commentators to the original
codes of all the maritime states and cities, which the wonderful in-
dustry and learning of Pardessus have brought together, in his great
work, (6 vols, quarto,) " Collection de Loix Maritimes, Anterieures
au xviii. e Si^cle," we find that the history, the text, and the com-
mentary of the codes and collections of maf-itime usages, from the
earliest periods of antiquity, leave no room to doubt the maritime
character of contracts for building, repairing and supplying ships,
and their lien upon the ship. And it can hardly fail to exoite sur-
prise, that the decisions of the most learned judges, who have made
the admiralty law under the constitution and the decisions of the
Supreme Coui-t, the study of their lives, should have been overruled
on the authority of two little considered decisions of an inland
judge of a state court, before the constitution had any existence.

If it were conceded that "liens on vessels encumber commerce
and are discouraged," it could not overrule the maritime law. But
liens, instead of encumbering commerce, facilitate it. They furnish
to the ship-builder and ship-owner a necessaiy facility and security
for credit, in carrying on their enterprises till the completion of the
ship, when she can be sold and payment made from the proceeds ;
or, in case of repaira, or supplies, till the earnings of a voyage may
be appropriated to the payment of her bills. If no builder or ship-
owner could use his vessel as a means of getting money, or credit,
everywhere, not only where he is not known, but where he is known,
not only where the vessel does not belong, but in her home port,
when the owner himself negotiates the transaction, none can know
so well as those familiar with maritime commerce what beneficial
enterprises must fail, and what commercial intelligence and skill

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must go unemployed, or be brought to ruin by the unforeseen acci-
dents of the sea. In the language of Emerigon, — " It is just that
the workmen and material-men should enjoy the lien upon the thing
which is given them by the Marine Ordinance. They cannot be
deprived of this privilege, except when it is proved that they trusted
the person, and not the thing." The lien is always presumed, but
it may be disproved. " There is nothing so much favored." " Com-
merce and the State are interested in it." Sir Leoline Jenkins has
ably pointed out the inconvenience to the public and to trade, if the
admii-alty jurisdiction be evaded — among other things, as to build-
ing and victualling ships, and as to material-men, that is, those who
furnish materials, or supply work for ships.*^

§ 265. The Same* — The builder may sue the owners in personam
in the admimlty, to recover whatever is due to him for his services,
or for violations of the building contract in the construction of the
vessel, and he has also a lien or privilege for the building service,
against the ship herseff, which may be enforced in the admii-alty.
The building contract being maritime, it is evident that the owner
may sue the builder in the admimlty for violations of the contract
in building the ship. The distinction between maritime contracts
and agreements leading to or preliminary to maritime contracts, and
contracts wholly or partly performed and those not entered upon,
has been adverted to, and must not be lost sight of.^

§ 265 a. The Same. — [The foregoing language is retained in this
edition notwithstanding the fact that the Supreme Court of the
United States in the cases of The People's Ferry Co. v. Beers and
Roach V. Chapman, held that a contract to build a vessel was not a
maritime contract, and has maintained the same ground in a series
of subsequent cases.^

As long as those decisions stand they will continue one of the
most remarkable differences between the maritime law as held in
this countiy and that of most maritime countries. It is now over
forty years since the case of The E^eoples' Ferry Co. v. Beers was
decided. But twenty-six yeai-s had elapsed between the decision of

»> DeLovio V, Bolt, 2 Gall. 466.
« Ante, § 212.

2« Morewood v. Enequlst, 64 U. S. (24
How.) 494 ; The Belfast, 74 U. S. (7 Wall.)

646; Ins. Co. r. Dunham, 78 U. S. (11
Wall.) 28; Edwards v, Elliott, 88 U. S.
(21 Wall.) 554; The Lottawana, id. (21
Wall.) 592.

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the case of The Thomas Jefferson and that of The Genesee Chief,
vjhich reversed it. It is not therefore impossible that the question
whether a conti-act to build a ship is maritime may again be brought
before the Supreme Court for examination. If the question should
ever be brought before the court again, the considerations, which
have led that court to the larger views of the admiralty jurisdiction
which now obtain, may very well lead to the adoption of the opposite
view. In every maritime country except our own the admiralty
courts have jurisdiction over contracts for the building of ships.
Even the English admiralty exercised that jurisdiction after the
Resolutions of 1632, as is stated in the petition of the merchants in
1690 (see ante § 108). And under the commission of the Vice Ad-
mimlty Couit of Massachusetts this jurisdiction was exercised, for
in the records of the court is to be found a suit by a builder of a ship
in rem for its price after it had been delivered. Insuiance Co. v.
Dunham, 78 U. S. (11 Wall.) p. 10. To hold such a contract to be
maritime and within the jurisdiction of the admiralty would be again
" stare super antiquas vias."]

§ 266. Sail-makers. — The ship, as has been remarked, consists of
the hull and spars ; the supplying her with tackle, apparel, furniture
and boats to fit her for sea, although often included in the builder's
contract, is nevertheless the appropriate work of other classes of men,
such as sail-makers, riggers, chandlers, l)oatrbuildei*s, all of whom, when
called in to contribute in their appropriate departments to the com-
pletion of the ship, her tackle, apparel, etc., perform maritime ser-
vice cognizable in the admiralty.^

§ 267. Material-Men. — Next after the builder of the ship, the
material-man applies his services to making her available for the
gi-eat purpose for which she is created. Those are called material-
men who, at the time of the building of a vessel, or during her sub-
sequent existence as a vessel, supply her, at the express or implied
request of the master or owner, with necessary materials to build,
fit, outfit, furnish or repair her. Those who thus furnish her with
what is necessary to enable her to navigate the sea, and to pursue
her voyage in safety, and to perform her appropriate functions, have
a maritime demand against the master, if he order them, and against
the owner, and they have also a lien or privilege upon the ship her-

«^n<e, §§171, 208.

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self, her tackle, apparel and furniture, unless the dealings of the
parties show that an exclusive personal credit was given to the mas-
ter or owner.2*

§ 268. The Same. — In the same manner, many others who supply
the wants of a vessel may, by analogy, come under the head of
material-men. Necessaries for a vessel are not merely those things
which are physically material and absolutely necessary to her exist-
ence or preservation, which are incorporated with her, or used on
board of her ; but also those which a careful and provident owner
would provide, to enable her to perform well the functions which,
as a maritime agent, she is destined to perform, — whatever is fit and
proper at the time, for the service in which the vessel is engaged.
This may include money, medicines, labor and skill, personal ser-
vices as well as goods, soliciting, procuring, and hiring a crew, —
seeking and secuiing or supplying a cargo, passengers, or freight,
or a charter, — factorage or brokerage for doing her business, — ^pro-
curing insurance and premiums advanced,^ — towing or otherwise
removing her. These have all been held to be maritime contracts ;
and they are all in the nature of materials, — they are supplies of
her wants. It is the present, apparent want of the vessel, not the
character of the thing supplied, which makes it a necessary. Thus,

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 16 of 80)