Erastus Cornelius Benedict.

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

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anchors and cables are, in the general sense, necessaries; but if
the vessel is fully supplied with them, another anchor or cable is not
necessar3^ If it be not furnished to supply a want of the vessel, it
cannot properly be calle4 materials or supplies/^

But it has been held, that neither the costs of advertising a ves-
sel for sea, nor postage, nor commissions for procuring freight, nor
the wages of stevedores [see post^ § 285] or lightermen, nor sums
paid for scraping the vessel's bottom before coppering, are liens up-
on the ship, suable in rem ; that compressing cotton is also mere

2*Edw. Ad. Jur.; Zane tJ. The Presi-
dent, 4 Wash. 457; The Grenei*al Smith,
17 U. S. (4 Wheat.) 438; The Nestor, 1
Sum. 73; The Robert Fulton, 1 Paine,
020; Peyroux v, Howard, 32 U. S. (7
Pet) 324; ante, §§50, 95, 106, 151, 264.

^ Edw. Ad. Jur. 113; The Alexander,
1 W. Rob. 288, 346.

In the case of Zane c. the Brig Pres-
ident, water casks were held to be ma-

terials, but vinegar not The reason
of this distinction is not given, and the
counsel waived jthe claim for vinegar.
There was probably a reason which the
report does not state, inasmuch as vin-
egar is a necessary article of ship stores,
and is, by law, a part of the navy ra-
tions. 4 Wash. 457; U. S. Rev. Stat
«• But see The Hope, 49 P. R. 279.

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shore business, the expense of which is no, lien upon the vessel on
which the cotton is to be freighted, and that an action in rem can-
not be maintained therefor.^^ It has also been held, that by the
twelfth Admiralty Rule, as amepded in 1858, demands by material
men for supplies, repairs, or other necessaries, furnished to a domes-
tic ship, can be enforced only by proceedings in personam; the
intention of the amendment being, to leave liens depending upon
state laws to be enforced by the state courts.^ These cases do not
seem to be based on any principle of the maritime law, and can
hardly fail to be reconsidered at some future time.

[The foregoing prediction was very speedily justified by the
change in the 12th Admkalty Rule made by the Supreme Court on
May 6, 1872.

The rule as originally made in December Term, 1844, read as
follows :

" In all suits by material men for supplies or repairs or other nec-
essaries, for a foreign ship, or for a ship in a foreign port, the libel-
lant may proceed against the ship and freight in rem or against the
master or the owner alone in personam. And the like proceeding
in rem shall apply to cases of domestic ships, where by the local
law a lien is given to material men for supplies, repaii-s or other

By the change of the rule in 1858, referred to above, the words,
^ in personam but not," were inserted in the last clause making it
read as follows: "And the like proceeding in personam^ but not in
rem^ shall apply to eases of domestic ships for supplies, repairs, or
other necessaries."

On May 6, 1872, the Supreme Court promulgated a new 12th
Rule to read as follows : " In all suits by material men for supplies
or repairs, or other necessaries, the libellant may proceed against the
ship and freight in rem^ or against the master or owner alone in per-

** The object of this change, as the court said in the case of Mr
Lottawanna, 88 U. S. (21 Wall.) 581, was not to give a lien, but to
remove all obstacles to a proceeding against a vessel, where a lien
exists. Since this change, the courts have entertained proceedings

^ The Joseph Cunard, Olc. 120; Pratt
V. Reed, 60 U. S. (19 How.) 359; Brad-
ley r. BoUes, Abb. Ad. 569; Graham v.
Hoskios, Olc. 224; vide, post, §2S5;

contra. The Wivanhoe, 26 F. R. 927.

^ McGuire t?. Card, 62 U. S. (21 How.)
248; Tlie St Lawrence, 66 U.S. (1 Black),

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against vessels on behalf of material men, to whom a lien was given
by State Statute, as they had done before the change of the Rule in
1858. Where the lien given by a State Statute is sought to be en-
forced, the provisions of the State Statute in reference to the crea-
tion and duration of the lien must be observed.]

§ 269. The Same. — The English Admiralty has, for a long course
of years, been prohibited the exercise of this jurisdiction. But it is
perfectly well settled in this country, that contracts of this sort are
maritime contracts, and may be enforced in the admiralty. It was
fii-st decided in the Supreme Court, in the case of the General Smith,
in which Judge Story, delivering the opinion of the court, says, " No
doubt is entertained by this court, that the admiralty rightfully pos-
sesses a general jurisdiction in cases of material men ; and if this
had been a suit in personam, there would not have been any hesita-
tion in sustaining the jurisdiction of the court."

And the same principle has also been acknowledged and decided
in numerous other cases.^

§ 270. Bern and Personam. — Whenever the debt for materials,
etc., is by law, no matter what law, or by contract, a lien on the
vessel, then the vessel may be proceeded against in rem ; and in all
cases the contracting parties may be proceeded against in perso-

§ 271. The Maritime Lien. — By the civil law, those who built,
repaired, or supplied a ship, had a privilege or lien upon the ship
herself, for the amount of the debt thus contracted in creating her,
or in keeping up her existence and usefulness. The same principle
is incorporated into all the codes of maritime law, and is a well
settled rule of the general maritime law, and, as such, was acted on

»The General Smith, 17 U. S. (4
Wheat.) 438; DeLovio v. Bolt, 2 Gal.
398; Hale v. Washington Ins. Co., 2
Story, 176; The Centurion, Ware, 477;
Sheppard v. Taylor, 30 U. S. (5 Pet.)
075; Plummer v, Webb, 4 Mason, 380;
Peyroux v. Howard, 32 U. S. (7 Pet.)
324; Davis v. A Now Brig, Gilp. 477;
Harper v. A New Brig, id. 640; The
Nestor, 1 Sum. 73; The Robert Fulton,
1 Paine, 620; The St Jago de Cuba, 22

U. S. (9 Wheat.) 409; Ramsay u. AUegre,
25 U. S. (12 Wheat) 611; Zane r. The
President, 4 Wash. 453; The Alexander,
1 W. Rob. 288; The Zodiac, 1 Hag. Ad. R.
320; The Jerusalem, 2 Gal. 345; Stevens
V. The Sandwich, Pet Ad. 233, note;
Ransom v. Mayo, 3 Blatohf. 70; Wort-
man V. Griffith, id. 528.

w The General Smith, 17 U. S. (4
Wheat) 438; but see The H. E WiUaid,
62 F. R. 387.

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by the English Admiralty for centunes, till it was overthrown in
the time of Charles II. by the courts of common law, which acknowl-
edge no such privilege or lien, and only recognize the common law
lien of the mechanic, who, by virtue of his possession, and not
otherwise, is allowed a lien.^^ The maritime lien is not accompanied
by possession, and does not, in any manner, spring from possession.
It is a sort of proprietary interest, springing from the nature of the
transaction and the beneficial service rendered to the ship, the great
agent of maritime commerce, and it follows her for a longer or
shorter period, into whosesoever hands she may go.®

§ 272. Foreign and Domestic SUps.— The civil law, the general
maritime law, and the particular maritime codes, without exception,
extend this lien or privilege to all ships and vessels, without any
distinction between foreign and domestic ships.^ Indeed, it is not
easy to see how any difference can exist in principle ; if one is a
ship or vessel, so is the other ; if one is a maritime contract, so must
be the other ; and the same law, and the same reason, which gives
a lien in the one case, gives it in the other. It is for service, labor,
materials and supplies, furnished to the ship, and in some sort made
a part of her, for her benefit, that the lien attaches to her ; still, the
Supreme Court of the United States, in the case of the General
Smith, made a broad distinction, and declared that, unless the local
law of the particular state, where the su[)plies, etc., are furnished,
gives a lien, there is no lien in the case of domestic vessels. After
that case, numerous other cases repeated and enforced this distinc-
tion ; and it was so well settled as practically to constitute a part of
the law of the American Admiralty ; but more recently the Supreme
Court has refused to entertain jurisdiction of cases of maritime lien
where the lien was created by a state law. It is, however, believed,
that whenever the question shall come before the Supreme Court and
be fully considered by that court, after argument, the distinction
between foreign and domestic vessels, and liens by state laws and
by the maritime law, will be found to be no part of the law of the

wSee The Two Marys, 10 F. R, 919.

« Dig. 42, 5, 6; id. 134; The Zodiac,
1 Hag. Ad. 320, 325; The Neptune, 3 id.
136; Edw. Juris. 93-109; 1 Rol. Ah.
533; Cro. Car. 29(5; Buxton v. Snee, 1
Ves, Sen. 164; Hoare v, Clement, 2

Show. 338; Abb. on Ship. 143, 149, n. ;
The Nestor, 1 Sum. 73,81; The Marion,
1 Story, 73; The Druid, 1 W. Rob. 898;
Harmer v. Bell, 22 Eng. Law & Eq. 72;
post, § 290-305.
^ The Nestor, 1 Sumn. 79.

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American Admii*alty, as it is not of the maritime law. It is no
better settled now than the doctrine of the Thomas Jefferson was
for a quarter of a century, but that doctrine is now obsolete and is
called by the Supreme Court, in the case of the Belfast, 74 U. S. (7th
Wallace), 639, a "stmnge proposition.'' This may be stranger in less
time. The mere residence of the owner would seem to have even less
relation to maritime subject-matter than the tide and the other pre-
texts of the time of Coke. It is believed, that the decisions of the
English common law courts insensibly influenced the decision of
the Supreme Court, although the ground upon which the court put
the decision is by no means the English ground. The court seems
to say that liens on domestic ships are subject to the local law of
the place where the ship belongs, and must be enforced by that law.
It has not always been held that the local legislatures have the
power to repeal or modify the provisions of the general maritime
law. The contrary has been held by Judge Story .^ If they have
the power to declare what shall be the law of their own tribunals,
between their own citizens, it is clear that they are not authorized
to declare what shall be the law of the United States, in cases of
admii-alty and maritime jurisdiction in the courts of the United

[Since the foregoing was written, the Supreme Court has abol-
ished the distinction between liens by State Laws and by the mari-
time law, as far as concerned the jurisdiction of the Admiralty
Courts to enforce them.^ As to the distinction between foreign
and domestic vessels, that seems as yet to be maintained, that court
still holding that there is no lien by the maritime law for supplies
to a domestic vessel in her home port.]^

§ 273. Domestic Vessels. — Indeed, it seems quite clear that the
states, as such, have no ships and vessels ; and that all are ships and

. «*The Chusan, 2 Story C. C. R, 456,
462; Ashbrook v. The Golden Gate, 5
Am. Law. Reg. 148.

» Tlie CaUsto, Daveis' R, 29; Davis tj.
ChUd, id. 71; The Hull of a New Ship,
id. 199; The General Smith, 17 U. S.
(4 Wheat.) 4:58; Waring v. Clarke, 46 U.
S. (5 How.) 475, 491, 495; Read v. The
Hull of a New Brig, 1 Story, C. C. R.
244; Peyroux v. Howard, 32 U. S. (7
Pet) 324; Golden o. Prince, 3 Wash.

313; Davis v. A New Brig, Gilp. 473;
The Stephen Allen, Blatchf. & H. 175;
Thomas v. The Kosciusko, 11 N. Y.
Leg. Obs. 38; The Teller, id. 44; The
Alida, 1 Abb. Ad. 165; The Infanjta, id.
263; vtde, § 270, and cases cited.

*» The Lottawanna, 88 U. S. (21 WaU.)

»' The Edith, 94 U. S. 520. But see
the dissenting opinion of Judge Clif-
ford in the case of The Lottawanna.

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vessels of the United States, and that all American vessels are do-
mestic vessels. The port where the vessel belongs has no necessary
reference to state, or other limits. It is that port, at or nearest to
which the owner, if there be but one, or if more than one, the hus-
band or acting and managing owner usually resides ; and the ports
as such, are ports, not of the states, but of the United States, and
the states have no admiralty and maritime jurisdiction. The states
are, for certain purposes, foreign to each other, but in no sense are
they foreign to the United States.

§ 274. Contests between Part Owners.— Ships and vessels being
usually owned in shares by several persons who are not otherwise
partners,^ it is evident that often dissensions may arise between the
owners as to the employment of the ship. In such cases, one pai*ty
may employ the ship, on giving security to the other. The Court
of Admiralty has jurisdiction to enforce the law between the part
owners, and to compel the one or the other party to give the requir-
ed security. Cases of licitation or sale, for the purpose of partition,
are also within the power of the American Admiralty, as they are
of the European maritime courts, out of England.*

§ 275. Jurisdiction over Owners.— The admiralty lias jurisdic-
tion of all matters that concern ownei-s and proprietors of ships, as
such. This embraces a large number of cases of almost every de-
scription. For the torts and contracts of the master, as such, the
owners are liable ; for whatever is a lien upon the vessel the owners
are liable by virtue of that lien, to the extent of the value of the
vessel, and, in many cases, to the whole extent of the demand. For
the contracts of each other as ownei*s, they are liable to third per-

» The owners of a ship are, generally
speaking, tenants in common, (Wright
V. Marshall, 3 Daly, 331), yet there may
be a special partnership between them,
in the ship, as well as in the cargo, in
regard to a particular voyage or adven-
ture. Mumford r. NicoU, 20 Johns. 611.

»Skrine v. The Hope, Bee, 2; Wil-
Hngs V. Blight, 2 Pet. Ad. R. 288; Stev-
ens V. The Sandwich, 1 id. 233; The Or-
leans V, Phoebus, 36 U. S- (11 Pet) 175;
Story on Part. 43.5, 436; The Elizabetli

and Jane, 1 W. Rob. 278; Conk. Treat
2d ed. 156; Dunlap Prac. 67, 69; Davis
& Brooks V. The Seneca, Gilp. 11, 34;
The Apollo, 1 Hag. Ad. R. 306; Coyne
0. Caples, 8 F. R. 638; The Annie H.
Smith, 10 Ben. 110.

The case of the Seneca, (Gilp. 10,)
was reversed by Judge Washington, in
an able opinion, reported in 18 Ameri-
can Jurist, 486, and 6 Penn. Law Jour.

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sons to their full extent in solido ; and all these are eases of admi-
ralty and maritime jurisdiction.*^

The admiralty has also jui-isdiction of possessory and petitory ac-
tions, and of proceedings on the part of the ownei*^ for the removal
of the master.*^

§ 276. Possessory and Petitory Actions.— [Petitory actions are
actions in which it is sought to try the title to a ship. Thus a party
having the legal paper title bringing an action to recover possession
of a vessel, would be held entitled to a decree, and thereupon the
party, who by that decree had been ordered to give up possession,
might in his turn bring a petitory action to try the validity of the
paper title. A possessory action may be joined with a petitory ac-

Possessory actions are actions to recover ships or other property,
to which a party is entitled by virtue of a maritime right. They are
analogous to the action of replevin or detinue at the common law, in
which the specific property is recovered instead of damages. These
actions are brought by owners to try the right to the possession of
a ship, by master or ownei-s to recover possession. The English Ad-
miralty Court is reluctant to take jurisdiction of such cases, and
always confines itself to cases where possession is withheld from the
party having the legal paper title to the ship. If the proprietor's
right is disputed, the court will not attempt to decide upon it. In
this country, the jurisdiction of the admiralty over all this class of
cases is well settled.*^ [But it will not enforce a merely equitable
title.] «

*^Ante, §82; Godolph. 43: Higgins
«. U. S. Mail Steamship Co., 3 Blatchf.
282; The Majestic, 12 N. Y. Leg. Obs.
100; The Grafton, 1 Blatchf. 175; Vose
r. Allen, 3 Blatchf. 289; Church v, Shel-
ton, 2 Curtis C. C. R. 271; Knox. v. The
Minetta, Crabbe, 634; The Rebecca,
Ware, 188; House r. The Lexington, 2
N. Y. Leg. Obs. 4; Howland tj. Green-
way, 63 U. S. (22 How.) 491; ante, §§50,
105, 126, 151; 2 Brown CivU and Ad.
131; Davis & Brooks r. The Seneca,
Gilp. 11; Stinson v. Wyraan, Davies' R.
172; The Paragon, Ware, 322.

<iThe See Renter, 1 Dod. 22; The

Martin of Norfolk, 4 C. Rob. 240; vide,
post, §311.

«Bett8' Pract., p. 16; D. C. Rule 18;
A Floating Dry Dock, 22 F. R. 685; The
Watchman, Ware, 233; The Sisters, 4
Rob. 275; The Martin of Xoi-folk, id.
293; Davis r. The Seneca, 18 Am. Jur.
486; The Experiraento, 2 Dod. 42; The
Warrior, id. 288; The G. Reusens, 23 F.
R. 403; The Amelia, 23 id. 406; The
Director, 26 id. 708; The E. J. Slaymak-
er, 28 id. 767; The Daisy, 29 id. 300;
The Two Barges, 46 id. 204.

« The Eclipse, 135 U. S. 599.

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§ 277. Wages. — "Ships were originally invented for use and profit,
to plough the seas, not to lie by the walls."** The ship being finished
and furnished, her first want is a ship's company to navigate her.
Without their strength, and knowledge, and skill, and intrepidity,
she roust rot at the wharf, or be hurried to destruction. The ship,
that by the agency of the most uncertain, capricious, and powerful
elements, moves with a certainty and a security only surpassed by
the beauty of her appeai-ance and the grace of her motion, when un-
der the control of a well appointed crew, — becomes, in the hands of
unpractised landsmen, the victim of the fii'st i>eril, and their efforts
only urge her the sooner to inevitable destruction. The service of
the ship's company is, therefore, the maritime service which is enti-
tled to the highest consideration and the greatest favor ; and the
jurisdiction of the admiralty in cases of mariners' wages is settled
by a coui-se of decisions of unbroken authority during centuries.
The more fanatical enemies of the admiralty jurisdiction have not,
however, failed to perceive that their principles are as fatal to this
class of cases as to many others, and have accordingly declared that
the admiralty has been permitted to retain these cases only from
usage springing from necessity or policy. The jurisdiction, how-
ever, is firmly established in this country on principle, and all cases
of mariners' wages .are, par excellence^ maritime cases, and subject
to the jurisdiction of the admiralty ; and this includes whaling, seal-
ing and fishing voyages, and demands for subsistence, expenses of
cure, etc., which are in the nature of wages.** And by the acts passed
during the reign of the present queen, the jurisdiction of the Eng-
lish admiralty is equally extensive.

§ 278. Mariners* — The term Mariner includes all persons em-
1 loyed on board ships and vessels, during the voyage, to assist in
their navigation and preservation, or to promote the purposes of the
voyage. Masters, mates, sailors, surveyors, carpenters, coopei*s.

** 1 Molloy, 308.

** Ante, § 81; Dunlap Prac. 20, 24, 26;
The Sydney Cove, 2 Dod. 11 ; Wilson v.
The Ohio, Gilp. 505; The May Queen,
Sprague, 588; The George, 1 Suran.
150; Martin r. Acker, Blatclif. & H.
279; Thackarey v. The Farmer, Gilp.
626; tide Foster v. The Pilot No. 2, 1

Am. Law Reg. 403; Dunlap Prac. 59, 60,
61, 62; Macomber o. Thompson, 1 Sum.
384; Pratt t?. Thomas, Ware, 437; Shep-
pard tj. Taylor, 5 Pet 675; Harden v.
Gordon, 2 Mason, 544; Plummer v,
Webb, 4 Mason, 380; Smith v. The Pe-
kin, Gilp. 203.

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stewards, cooks, cabin boys, kitchen boys, engineers, pilots, firemen,
deck hands, waiters, — women as well as men, — are mariners.*^

§ 279. Mariners on Public Vessels. — The mariners of the public
vessels of the nation cannot proceed against them in the admiralty,
for the' reason that the government or sovereign cannot be sued.
It is not because the court has not jurisdiction, but because there is
no right of action against the government or its property. In like
manner, the mariners of a public vessel of a foreign power within our
jurisdiction are not allowed to proceed against the vessel or oflBcera.
This is not because they are simply foreignei*s, but, because, by the
common law and universal consent of nations, the person, the min-
isters, and the vessels of a sovereign, retain their independent char-
acter, and their consequent immunities, wherever they rightfully
are, in times of peace.*^

§ 280. Discharge of American Seamen abroad. — When an
American seaman is disclmrged with his own consent, in a foreign
country, or the ship is sold in a foreign country, and her company
discharged, and three months extra pay is, by law, required to be
deposited in the hands of the consul, of which two thirds are to be
paid to the seamen, no action at common law will lie to recover
these extra wages against the master if he neglect to pay them to
the consul, but the admiralty will entertain a suit, as well on the
part of the seamen as on the part of the United States, to recover
such extra wages. The jurisdiction in similar cases is denied in

[By our Act of 1884 (23 Stat, at Large p. 54) the three months

^ Robinett v. The Exeter, 2 Rob. 261 ;
WlUard «. Dorr, 3 Mason, 01; Shaw v.
The Lethe, Bee, 424; The Lord Hobart,
2 Dod. 104; Atkyns v. Burrows. 1 Pet.
Ad. 244; The Leouidas, 01c. 12; vide.
The Louisana, 2 Pet. Ad. 268; Trainer
V. The Superior, Gilp. .514; Gurney r.
Crockett, Abb. Ad. 490; The Harriet,
Olc. 229; Dunlap Prac. 59; The James
H. Slirigley, 50 F. R. 287.

*' The Lord Hobart, 2 Dod. 100; Elli-
son V. The Bellona, Bee, 112; Pierre de
Moitez c. The South Carolina, id. 422;

Dunlap Prac. 64; The Exchange v. Mc-
Faddon, 11 U. S. (7 Cranch), 147; The
Pizarro ads. Matthias, 10 N. Y. Leg.
Obs. 07; Wheat. Int. Law, 149.

« Rev. Stat. §§ 4582, 4583. Amended
23 Stat, at Large, p. 54; Dunlap Prac. 62,
63; Emerson v. Howland, 1 Mason R.
45; Orne t. Townsend, 4 Mason R. 541;
Pool V. Welsh, Gilp. 193; The Courtney,
Ed. Ad. R. 239; The Dawn, Daveis'
Rep. 12. Sec form of libel No. 97, Ap-

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pay has been reduced to one and the deposit is only required in ease
of the sale of the vessel in a foreign countr)*^.]

§ 281. Fishing Lays. — In the earliest periods of maritime com-
merce, a common form of compensating the mariner was by giving
him, in one way or another, an interest in the success of the voy-
age. In modern times, fixed pecuniary wages Imve taken the place
of a share of the earnings, except in cases of whaling, fishing, and
sealing voyages, in which the ancient mode of compensation still
prevails. In England, before her late acts restoring the admiralty
jurisdiction, none but contracts in the usual form were allowed to
be pi-osecuted in the admiralty, and a fixed i-ate of pecuniary wages
was held to be the usual form. There cannot be a more striking
illustration of the caprice and want of rational principle which char-
acterized the prohibitions of the English common law courts.^

§ 282. Jurisdiction over Foreign Sliips.— -There have been at-
tempts in England and in this country, to establish an exemption
in favor of the seamenof foreign merchant ships. It has been some-
times placed on the ground of the comity of nations, — sometimes on
the fancied ground that a vessel is part of the territory of the nation
to which she belongs, — sometimes on the ground that there can be
no jurisdiction in such cases except by the consent of the consul, or
other diplomatic representative of the foreign nation to which the
seamen or the vessel belongs, — all of which are fallacious. There
is no such comity of nations, — nothing within the territory of a
nation is without its jurisdiction, and no oflBcer of a foreign govern-
ment can grant or destroy the jurisdiction of our courts. Some ex-

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 17 of 80)