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as upon the high seas"-first came under judicial consideration it was contended that such seizures were not, and were not intended by congress to be, within the admiralty and maritime jurisdiction of the court, but were cognizable by it on its common law side only, and that the parties were entitled to a trial as at common law by a common law jury; but that contention was overruled by the court, and such seizures were held to be civil causes of admiralty and maritime jurisdiction, and were to be tried by the court without a jury.62

63

§ 539. Same-Act of February 26, 1845-Founded in judicial mistake.-As a result of the decision of the supreme court, restricting the admiralty and maritime jurisdiction to the ebb and flow of the tide, congress, for the relief of navigation and commerce upon the great lakes, which are, in fact. inland seas, but not affected by the tide, enacted the statute of February 26, 1845, entitled "an act extending the jurisdiction of the district courts to certain cases upon the lakes and navigable waters connecting the same." 65

64

This statute, in substance, conferred upon the district courts the same jurisdiction in matters of contract and tort concerning steamboats and other vessels of twenty tons burden and upwards, enrolled and licensed for the coasting trade, employed in commerce and navigation between ports in different states and territories upon the lakes and navigable waters connecting them, as was then exercised by said courts in cases of like steamboats and vessels, employed in like navigation and commerce upon the high seas, or tide waters within the admiralty and maritime jurisdiction of the United States; and it was directed that in suits arising under the act the regular admiralty procedure should be followed and that the maritime law should, so far as applicable, constitute the rule of decision in such suits, saving to the parties the right of trial by jury of all facts put in issue in such suits, when required by either party, and saving also to the parties the right of a con

62 United States v. La Vengance, 3 Dall. 397 (1:610); United States v. The Betsey, 4 Cranch, 443 (2: 673); United States v. The Sally, 2 Cranch, 406 (2:320); The Samuel, 1 Wheat. 9 (4:23); The Sarah, 8 Wheat. 391 (5:644).

63 The Thomas Jefferson, 10 Wheat. 426 (6:358).

64 The Genesee Chief, 12 How. 443-459 (13:1058).

65 5 U. S. Stat. at L. ch. 22, pp. 726, 727.

current remedy at common law, where it was competent to give it, and any concurrent remedy given by state laws.

It was in a case involving a construction of this statute, that the court overruled its previous decisions restricting the admiralty jurisdiction to the ebb and flow of the tide, and establishing the doctrine of navigability in fact as the test of admiralty and maritime jurisdiction, from which it appears that congress was misled by the earlier decisions, and that the abovementioned statute was founded in judicial mistake."

§ 540. Same-Same-Same-Obsolete legislation.-The ef fect of the decision in the Genesee chief 67 has been to establish the doctrine that the words, "and shall also have exclusive original cognizance of all causes of admiralty and maritime jurisdiction," contained in the ninth section of the original judiciary act were operative and effective to vest in the district courts full and complete admiralty and maritime jurisdiction, not only upon the high seas and tide waters, but also upon all the public navigable lakes and rivers of the United States, without the aid of further words; and, therefore, as a result of the above mentioned decision, the clause of the ninth section of the original judiciary act in regard to seizures on waters, and the whole of the act of February 26, 1845, with the exception of the clause which gives to either party the right of trial by jury when requested, have become obsolete and of no effect, and were, in the revision of the federal laws, omitted from the maritime code."9

§ 541. The state courts have no admiralty jurisdiction.— The state courts have no jurisdiction over admiralty and maritime causes. The jurisdiction of the federal courts over such causes is exclusive of the state courts. To this rule there is no exception. In a class of cases of admiralty jurisdiction the state courts may furnish a common law remedy concurrent with the remedy in admiralty; but there is a broad distinetion between concurrent remedies and concurrent jurisdiction. If the remedy furnished by the state court is essentially a

66 The Genesee Chief, supra. 67 12 How. 443-459 (13:1058). 68 The Eagle, 8 Wall. 15-26 (19: 365); The Hine v. Trevor, 4 Wall. 555 (18:451); The Magnolia, 20 How. 296 (15:909); The Belfast,

7 Wall. 624-646 (19:266); Ex parte Boyer, 109 U. S. 629 (27: 1056).

69 U. S. Rev. Stat. sec. 563, cl. 8, and sec. 566; 4 Fed. Stat. Anno. -220-233 and 236-237.

proceeding in admiralty, it is an invasion of the exclusive jurisdiction of the federal courts, and cannot be maintained.70

§ 542. Same-The states may create maritime liens, but cannot confer on their own courts admiralty jurisdiction to enforce them. The several states may, by appropriate legislation, create maritime liens as a security for the performance of maritime contracts, concerning domestic vessels, but they cannot confer upon their courts jurisdiction in admiralty to enforce such liens. A state may, by statute, create a lien for repairs and necessary supplies made and furnished to a vessel in her home port, or a port of the state to which she may belong; but, the contract for such repairs and supplies, and the lien given by the state statute to secure the performance of the contract, both being maritime, can only be enforced by suit in rem in the district courts of the United States in admiralty, the state having no power to vest its courts with jurisdiction over such causes.72

71

§ 543. Same-Same-State cannot create lien on foreign vessels. The rule which allows a state to create a maritime lien on vessels applies to domestic vessels only-that is, vessels owned within the state; and the rule does not apply to foreign vessels-that is, owned in other states or foreign countries.73

§ 544. Contract and tort the sources of admiralty and maritime jurisdiction-Exceptions.-Causes of admiralty and maritime jurisdiction, according to the usual classification, arise either out of (1) maritime contracts or (2) marine torts.7

70 The Moses Taylor, 4 Wall. 411 (18:397); The Hine v. Trevor, 4 Wall. 555 (18:451); The Belfast, 7 Wall. 624-646 (19:266); The Glide, 167 U. S. 606-624 (42:296); Perry v. Haines, 191 U. S. 17-55 (48:73); The Knapp Company v. McCaffrey, 177 U. S. 638-648 (44: 921); The Lottawana, 21 Wall. 558-609 (22:654); U. S. Rev. Stat. sec. 711, cl. 3, 1 U. S. Comp. Stat. 1901, p. 577, 4 Fed. Stat. Anno. p. 494.

71 The General Smith, 4 Wheat. 438 (4:609); Pyroux v. Howard, 7

Pet. 324 (8:700); The St. Lawrence, 1 Black, 522 (17:108); The Glide, 167 U. S. 606 (42:296).

72 The Glide, 167 U. S. 606 (42: 296); Perry v. Haines, 191 U. S. 17-55 (48:73); The Moses Taylor, 4 Wall. 411 (18:397); The Hine v. Trevor, 4 Wall. 555 (18:451); The Belfast, 7 Wall. 624 (19:266); The Lottawana, 21 Wall. 559 (22:654).

73 The Roanoke, 189 U. S. 185-* 199 (47:770).

74 The Belfast, 7 Wall. 624 (19: 266).

This classification is not, however, legally exact. many cases in admiralty arising out of sources which are neither contract nor tort. This is true in prize causes, in which the seizure is made jure belli, and the adjudication is made according to the laws of nations.75 And it is held by eminent authority that salvage, jettison and general average are neither matters of contract nor tort.70 Libels authorized to be filed under the "Limited Liability Act," are prosecuted to obtain a benefit secured to shipowners by law, and assert a right arising out of the law, and cannot be said to arise out of either tort or contract."

§ 545. Maritime contracts.-The true criterion by which to determine whether or not a contract is maritime, is the subject-matter of the contract, and the system of laws out of which it arises and by which it is governed. If the contract pertains solely to the business of marine commerce and navigation, and arises out of, and is controlled by the maritime law, it is a maritime contract.78

§ 546. Same-Contract not maritime Building ship.-A contract for building a ship or other marine vessel or craft, or for supplying materials for its construction, is not a marine contract, and, therefore, not within the admiralty jurisdiction; and the several states may, by appropriate legislation, create liens to secure the performance of such contracts, and provide remedies for the enforcement and foreclosure of such liens through their own courts."9

§ 547. Same Same-Mortgage of vessel.-An ordinary mortgage of a vessel, whether made to secure the purchase money upon a sale thereof, or to raise money for general purposes, is not a maritime contract, and a court of admiralty, therefore, has no jurisdiction of a libel to foreclose it; or to

75 Prize Cases, 2 Black, 635 (17: 459).

76 The Eagle, 8 Wall. 15 (19: 365).

77 Butler v. Steamship Co., 130 U. S. 527 (32:1017); Steamship Co. v. Mount, 103 U. S. 239, 250 (26: 351); Admiralty Rules LIV-LVII.

78 Insurance Co. v. Dunham, 11 Wall. 1-36 (20:90); The Moses

Taylor, 4 Wall. 411 (18:397); De
Lovio v. Boit, 2 Gall. 398, Fed. Cas.
No. 3,776.

79 People's Ferry Co. v. Beers, 20 How. 393 (15:294); Roach v. Chapman, 22 How. 129 (16:294); Edwards v. Elliott, 21 Wall. 532 (22:487); Johnson v. Elevator Co., 119 U. S. 388 (30:447); Sheppard v. Steel, 43 N. Y. 52, 3 Am. Rep. 660.

assert either title or right of possession under it; so but after a vessel has been sold by the order of a court of admiralty and the proceeds have been paid into the registry, the court has jurisdiction, upon a petition of intervention, to pass upon the claim of the mortgagee and all other persons to the fund, and to determine the priority of the various claims, and to order distribution.81

§ 548. Same Same Same-Mortgage not made maritime contract by the registry act.-The act 2 of congress of July 29, 1850, providing for recording bills of sale, mortgages, hypothecations and conveyances of vessels, did not have the effect to convert such mortgages into maritime contracts. The first section of that act, as carried into the Revised Statutes, is as follows:

"No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel, of the United States, shall be valid against any person other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof; unless such bill of sale, mortgage, hypothecation or conveyance is recorded in the office of the collector of customs where such vessel is registered or enrolled. The lien by bottomry on any vessel, created during her voyage, by a loan of money or materials, necessary to repair or enable her to prosecute a voyage, shall not, however, lose its priority, or be in any way affected by the provisions of this section.” 83

The enactment is a mere registry act, intended to prevent mortgages and other conveyances of vessels from having any effect which they might have had before against persons other than the grantor or mortgagor, and those claimng under him, or having actual notice thereof, unless recorded as therein provided; it manifests no intention to confer upon the mortgagee any new right, or to make the mortgage a maritime contract, or the lien thereby created a maritime lien, or to in any way inter

80 Bogart v. The John Jay, 17 How. 399 (15:95); Schuchardt v. Babbidge, 19 How. 239, 241 (15: 625); Rea v. The Eclipse, 135 U. S. 599, 608 (34:269).

81 The J. E. Rumbell, 148 U. S. 1, 21 (37:345); The Lottawana, 21 Wall. 558, 582 (22:654); Andrews

v. Wall. 3 How. 568 (11:729); Schuchardt v. Babbidge, 19 How. 239 (15:625); Admiralty Rule 43. 82 9 U. S. Stat. at L. ch. 27, sec. 1, p. 440.

83 U. S. Rev. Stat. sec. 4192; 7 Fed. Stat. Anno. pp. 42-44.

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