fere with maritime contracts or liens or the priority thereof, or with the jurisdicton and procedure in admiralty.84

$549. Marine torts.-The test of admiralty jurisdiction arising out of tort is locality. The tort must have been committed upon navigable waters,85 and the fact that the tort occurred upon navigable waters lying within the limits of another sovereignty constitutes no objection to the exercise of the jurisdiction;s and, marine torts being in the nature of trespasses upon the person or upon personal property, may be prosecuted in admiralty in personam in any district where the offending party can be served, or in rem wherever the offending thing is found within the jurisdiction of the court issuing the process.87

In a late case, the supreme court departed from the rule requiring the tort, as a ground of jurisdiction, to be committed. on navigable waters, and held that the admiralty had jurisdiction of a libel in rem against a British vessel for the negli gent destruction of a beacon, established by the government as an aid to navigation, which stood fifteen or twenty feet from the Mobile river or bay, in water twelve or fifteen feet deep, built on piles firmly driven into the bottom, and attached to the realty and a part of it by the ordinary criteria of the common law.88

§ 549a. Maritime liens-Defined.-One of the most important functions of the courts of admiralty is the enforcement of maritime liens, by suits in rem, a judicial remedy not known at the common law, but derived from the civil law.89

In an early case, the supreme court, in its opinion, judicially defined maritime liens, and to that definition it has ever since adhered without variableness or shadow of turning, and upon

84 The J. E. Rumbull, 148 U. S. 1, 21 (37:345); The Lottawana, 21 Wall. 558 (22:654).

85 The Propeller Commerce, 1 Black, 574 (17:107); The Eagle, 8 Wall. 15 (19:365); Ex parte Boyer, 109 U. S. 629 (27:1057); Nelson v. Leland, 22 How. 48 (16:269); The Magnolia, 20 How. 296 (15:909); Packet Co. v. Bridge Co., 6 Wall. 213, 216 (18:753).

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

87 The Propeller Commerce, 1 Black, 514 (17:107); Nelson v. Leland, 22 How. 48 (16:269).

88 The Blackheath, 195 U. S. 361– 369 (49:236), overruling The Plymouth, 3 Wall. 20 (18:125).

89 The Moses Taylor, 4 Wall. 411, 431 (18:397); The Hine v. Trevor, 4 Wall. 555, 572 (18:451).

it has largely been built up the maritime law and jurisprudence of this country. The definition is as follows:

"The maritime 'privilege' or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. It is 'a jus in re,' without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of the courts in admiralty. The foreign and other attachments of property in the state courts, though by analogy loosely termed proceedings in rem, are evidently not within the category. But this privilege or lien, though adhering to the vessel, is a secret one; it may operate to the prejudice of general creditors and purchasers without notice; it is, therefore, 'stricti juris,' and cannot be extended by construction, analogy or inference." 90

§ 549b. Same-Difference between maritime lien and common law lien.-A maritime lien, unlike a lien at common law, exists without possession of the thing upon which it is asserted, either actual or constructive. The maritime lien, however, confers upon its holder such a right in the thing, that he may, by a suit in rem, subject it to condemnation and sale to satisfy his debt or damages. The lien travels with the thing upon which it exists wherever that thing goes, and into whosesoever hands it may pass. It can be made available only by the proceeding in rem.91

§ 550. Same-The subjects of maritime liens.-The only subjects of maritime liens are movable things engaged in navigation, or things which are the subjects of commerce on the high seas or other navigable waters; it may arise and exist upon vessels, steamers and rafts, and upon goods and merchandise carried upon them. But it cannot arise upon anything which is fixed and immovable like a wharf, a bridge. or real estate of any kind. Though bridges and wharves and

90 Vanderwater v. Mills, 19 How. 82-92 (15:554), rule reaffirmed in The J. E. Rumbell, 148 U. S. 1–21 (37:345); The Glide, 167 U. S. 606624 (42:269).

91 Packet Co. v. Rock Island

Bridge Co., 6 Wall. 213, 216 (18. 753); The J. E. Rumbell, 148 U. S. 1, 21 (37:345); The John G. Stevens, 170 U. S. 113, 127 (42:969); The Bold Buccleugh, 7 Moore P. C. C. 267.

other immovable structures may aid commerce by facilitating intercourse on land or the discharge of cargoes, they are not in any sense the subjects of maritime lien.92

551. Same-A maritime lien is a present right of property. It seems to be the settled law both in England and in this country, that a maritime lien is a proprietary interest-a present right of property-in the ship. The lienholder is a part owner in interest of the ship.93 It is said that, "in our law it is well established that a maritime lien or privilege, constituting a present right of property, jus in re, to be afterward enforced in admiralty by process in rem, arises, not only from a collision. and for damages caused thereby, but also for necessary supplies and repairs furnished to a vessel, whether under the general maritime law in a foreign port, or according to a local statute in her home port."4

§ 552. Same-Maritime liens arise out of both contract and tort.-Maritime liens arise out of maritime contracts,95 and also out of marine torts. A collision between two ships by

the negligence of one of them creates a maritime lien upon or privilege in the offending ship, for the damage done to the other, which attaches at the time of the collision, and may be enforced in admiralty by proceedings in rem against the of fending ship, even in the hands of a bona fide purchaser."7

§ 553. Same-When lien is created. The maritime lien is created and arises and attaches to the subject thereof, just as soon as the contract is made or the tort is committed, and before the institution of judicial proceedings to enforce it. The lien is created as soon as the claim comes into existence,

92 Packet Co. v. Rock Island Bridge Co., 6 Wall. 213, 216 (18: 753); The Alabama, 19 Fed. 546; The Alabama, 22 Fed. 450; The F. & P. M. Co. No. 2, 33 Fed. 514; Seabrook v. Raft, 40 Fed. 598; The City of Pittsburg, 40 Fed. 701; The Ottawa, Brown Adm. 359, Fed. Cas. No. 10,616; The Schooner Maud Webster, 8 Ben. 533, Fed. Cas. 9,302.

93 The Bold Buccleugh, 7 Moore

P. C. C. 267; The John G. Stevens, 170 U. S. 113, 127 (42:969).

94 The John G. Stevens, 170 U. S. 113, 127 (42:969).

95 The J. E. Rumbell, 148 U. S. 1, 21 (37:345); The Glide, 167 U. S. 606, 624 (42:296); Perry v. Haines, 191 U. S. 17, 55 (48:73).

96 The John G. Stevens, 170 U. S. 113, 127 (42:969); The China, 7 Wall. 53, 68 (19:67).

97 The John G. Stevens, 170 U. S. 113, 127 (42.969).

98

whether arising out of tort or out of contract. But the law creates no lien on a vessel as a security for the performance of a contract to transport a cargo, until some lawful contract of affreightment is made, and a cargo shipped under it."9

§ 554. Same-Priority of maritime liens.-It is said that seamen's wages are a sacred lien, and, as long as a plank of the ship remains, the sailor is entitled as against all other persons to the proceeds as a security for his wages. But, as a general rule, other maritime liens have priority and are enforced and paid in inverse order to that in which they accrue.2

1

§ 555. Same Same-Lien arising out of collision takes precedence over antecedent lien for supplies.-A maritime lien upon a vessel for damages caused by her fault to another vessel takes precedence of a maritime lien for supplies previously furnished to the offending vessel. The collision, as soon as it takes place, creates, as a security for the damages, a maritime lien or privilege, jus in re, a proprietary interest in the offending ship, and which, when enforced by admiralty process in rem, relates back to the time of the collision. The offending ship is considered as herself the wrongdoer, and as herself bound to make compensation for the wrong done. The owner of the injured vessel is entitled to proceed in rem against the offender, without regard to the question who may be her owners, or to the division, the nature, or the extent of their interest in her. With the relations of the owners of those interests, as among themselves, the owner of the injured vessel has no concern. All the interests existing at the time of the collision in the offending vessel whether by way of part ownership, of mortgage, of bottomry bond, or of other maritime liens for repairs or supplies, arising out of contract with the owners or agents of the vessel, are parts of the vessel herself, and as such are bound by and responsible for her wrongful acts. Any one who has furnished necessary supplies to the vessel before the collision, and has thereby acquired, under our law, a mari

98 The John G. Stevens, 170 U. S. 113, 127 (42:969); The J. E. Rumbell, 148 U. S. 1, 21 (37:345).

99 Vanderwater v. Mills, 19 How. 82, 92 (15:554); Schooner Freeman v. Buckingham, 18 How. 188 (18:341).

1 Sheppard v. Taylor, 5 Pet. 675, 710 (8:269-282); Brown v. Lull, 2 Sumn. 443, 452; Pitman v. Hooker, 3 Sumn. 50, 58, 3 Kent Com. 197.

2 The John G. Stevens, 170 U. S. 113, 127 (42:696).

time lien or privilege in the vessel herself, is a part owner in interest at the date of such collision, and the ship in which he and others are interested is liable to the extent of its value at that date for the injury done, without reference to his claim. And a claim by a tow against her tug for damages caused by negligent towage, by bringing the tow into collision with a third vessel, is founded in tort, arising out of the duty imposed by law, and independent of any contract made, or consideration paid or to be paid for the towage; and the claim for damages in such case is entitled to priority of payment over liens on the tug for previous repairs and supplies.

$556. Same-Same-Maritime lien for supplies takes precedence over prior mortgage.-A mortgage on a vessel, although recorded in the office of the collector of customs where such vessel is registered or enrolled, is not a maritime contract and creates no maritime lien; and a maritime lien, whether created by the general maritime law for supplies or repairs furnished to a vessel in a foreign port, or created by the statute of a state for supplies and repairs furnished to a vessel in her home port or in a port of the state to which she belongs, takes precedence over a prior mortgage on the vessel.*

3 The John G. Stevens, 170 U. S. 113, 127 (42:969); The Bold Buccleugh, 7 Moore, P. C. C. 267.

4 The J. E. Rumbell, 148 U. S. 1, 21 (37:345); Menge v. Madrid, 40 Fed. 677; The Guiding Star, 9 Fed. 521, S. C. 18 Fed. R. 263, 269. In the J. F. Rumbell, supra, Mr. Justice Gray, delivering the opinion of the court, said:

"According to the great preponderance of American authority, therefore, as well as upon settled principles, the lien created by the statute of a state, for repairs or supplies furnished to a vessel in her home port, has the like precedence over a prior mortgage, that is accorded to a lien for repairs or supplies in a foreign port under the general maritime law, as recognized and adopted in the United States. Each

rests upon the furnishing of sup plies to the ship, on the credit of the ship herself, to preserve her existence and secure her usefulness for the benefit of all having any title or interest in her. Each creates a jus in re, a right of property in the vessel, existing independently of possession, and arising as soon as the contract is made, and before the institution of judicial proceedings to enforce it. The contract in each case is maritime, and the lien which the law gives to secure it is maritime in its nature, and is enforced in admiralty by reason of its maritime nature only.

The mortgage, on the other hand, is not a maritime contract, and constitutes no maritime lien, and the mortgagee can only share in the proceeds in the registry af