The rules established by the Supreme Court are rules of practice, not rules of decision. The Selt, 3 Biss., C. C., 344.

The alteration of rule 12 of the rules in admiralty was intended to place contracts for repairs and supplies for all vessels on an equality as to proceeding in admiralty, not to abrogate the distinction between a domestic contract and a foreign lien. The alteration applies to the character of the process to be used, and not to the question of jurisdiction. Id.

Under this rule, as now amended, it was held by MILLER, district judge, in The Selt, 3 Biss., C. & D. C., 344, that a libel can be maintained for repairs and supplies furnished to a domestic vessel at the home port. For an interesting and able discussion of this rule with special reference to the amendment of May 6, 1872, see 7 American Law Review, 1.

As a further and more authoritative discussion of the rule we here insert the opinion in full of BLATCHFORD, circuit judge, in The Steamship Circassian, 11 Blatchf., C. C., 473 (12 Am. L. Reg., 291), which was an appeal from a decree of the district court dismissing a libel in rem.

"BLATCHFORD, J. [after stating the facts].-After the decision in the case of The General Smith, 4 Wh., 438, in 1819, it was no longer an open question in the courts of the United States, that where necessaries are furnished to a vessel in the port or State where she belongs, the general maritime law does not give to the party furnishing them a lien on the vessel herself for his security. The point arose directly, in that case, and was necessarily decided. The vessel was owned at Baltimore, Maryland, and the supplies were furnished to her at Baltimore. The Supreme Court held that there was no lien by the law of Maryland. This being so there was no lien at all, and no foundation for the suit, which was one in rem, unless there was a lien by the general maritime law. The Supreme Court decided that there was no lien by the general maritime law. This decision has been recognized as a correct one in numerous cases since, which have come before the Supreme Court, to and including the case of The Kalorama (10 Wall., 204, 208, 211), at the December term, 1869, in which last case it is said that the question was put to rest by the decision in the case of The General Smith. It had become a rule of property, established for nearly fifty years, when the supplies in the present case were furnished.

"In the opinion of the court in the case of The General Smith, it was remarked that in respect to repairs and necessaries in the port or State to which the ship belongs the case is governed altogether by the laws of that State, and no lien is implied unless it is recognized by that law. This remark was understood to suggest that where the municipal law of the State gave or recognized the lien, it would be enforced in the admiralty court. Accordingly in the case of Peyroux v. Howard, 7 Pet., 324, in 1833, it was held that the district court had jurisdiction of a suit in rem against a vessel for materials supplied and work performed in repairing her at New Orleans on the ground that the contract was a maritime contract, that the service was to be performed within the ebb and flow of the tide and, therefore, within the jurisdiction of the admiralty, and that the local law of Louisiana gave a lien in the case.

"In Steamboat Orleans v. Phœbus, 11 Pet., 175, in 1837, it was stated

that the decision in Peyroux v. Howard proceeded on the ground that where the contract was a maritime one, and the State gave a lien, the admiralty had, in the first place, jurisdiction of the contract as a maritime one, and then finding that the lien had, by the State law attached, would enforce such lien according to the mode of administering remedies in the admiralty. Accordingly the court decided that the admiralty court had no jurisdiction of a suit in rem against a vessel to recover a claim by a master for wages as master, and for necessaries advanced by him to the vessel while he acted as master, because the services and disbursements were not maritime, and that it made no difference that a lien was given by the local law so long as the contract was not maritime.

"Following out these principles it was stated by the Supreme Court in People's Ferry Co. v. Beers, 20 How., 393, 402, in 1857, that it had never sanctioned the doctrine that admiralty jurisdiction in rem existed against a vessel to enforce a carpenter's bill for work and materials furnished in constructing the vessel, because a lien had been created by the local law of the State where the vessel was built.

"At the December term, 1844, the Supreme Court, in the exercise of what it regarded as the authority given to it by the sixth section of the act of August 23, 1842 (5 United States statute at large, 518), to prescribe and regulate the forms of process, and the forms and modes of framing proceedings and pleadings, and generally the forms and modes of proceeding to obtain relief, and generally to regulate the whole practice in suits in admiralty in the federal courts, promulgated the following rule to take effect from the first of September, 1845, as a rule for the regulation and government of the practice of the circuit and district courts of the United States in suits in admiralty on the instance side of the courts: 'RULE 12.-In all suits by material men for supplies or repairs, or other necessaries for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceedings in rem shall apply to cases of domestic ships where, by the local law, a lien is given to material men for supplies, repairs, or other necessaries.' This rule recognized, in regard to domestic vessels, the principles as liens which the Supreme Court understood to be recognized by the cases of The General Smith, Peyroux v. Howard, and, Steamboat Orleans v. Phœbus, and established no new rule or practice. Those principles were, that where repairs were made or necessaries were furnished to a vessel in the port or State to which she belonged, the case was governed by the local law; but that if the local law gave the lien it might be enforced in admiralty. The Supreme Court stated the principles in those terms in 1847, in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How., 344, 391.

"At the December term, 1858, in Allen v. Newberry, 21 Howard, 244, the Supreme Court held that the district court for Wisconsin had no jurisdiction of a libel in rem for the loss of goods shipped on board of the vessel at one port in Wisconsin to be delivered at another port in Wisconsin; and at the same term in Maguire v. Card, Id., 248, it held that the district court for California had no jurisdiction of a suit in rem against a vessel, to recover for coal furnished it in California, it being engaged in trade exclusively

within California. The court then proceeded, at the same term, to repeal the 12th rule of December term, 1844, and to substitute in its place the following rule of practice, to take effect from May 1, 1859: In all suits by material men, for supplies or repairs, or other necessaries, for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceedings in personam, but not in rem, shall apply to cases of domestic ships, for supplies, repairs, or other necessaries.' The first sentence of the new rule was in the same words as the first sentence of the old rule. The second sentence of the old rule read as follows: 'And the like proceedings in rem shall apply to cases of domestic ships, where by the local law a lien is given to material men for supplies, repairs, or other necessaries.' The words in italics in the old rule were omitted in enacting the new rule, and the words in italics in the new rule were inserted in enacting that rule. By the new rule the court intended to provide, and did provide, that a proceeding in rem should not be allowed in admiralty, against a domestic ship, for supplies, repairs, or other necessaries, furnished to her, even though a lien on the vessel was given therefor to the material men by the local law. The right to proceed in rem against the vessel, in the admiralty, in the case of Maguire v. Card, was given by the letter of the old rule, then in force, but the court held that it did not extend to a contract growing out of the purely internal commerce of a State, and not extending to or affecting other States or foreign countries. It also said, in its opinion in the case, referring to the new 12th rule, that it had provided, by that rule, for leaving all liens which depended upon State laws, and did not arise out of maritime contracts, to be enforced by the State courts.

"The purport and the meaning of the new 12th rule were explained by the Supreme Court in the case of The St. Lawrence, 1 Black, 522, in 1861. The case was one of supplies furnished to a domestic vessel, at New York, in regard to which a lien on the vessel had been acquired under the local law, and a suit in rem, to enforce the lien, had been brought in the district court, against the vessel, before the new rule took effect. The Supreme Court held that the libelant was entitled to a decree. It upheld the jurisdiction of the admiralty to enforce such lien, founded on a maritime contract, even though the lien was created by the local law, and did not exist as a maritime lien. It stated that the alteration of the 12th rule applied altogether to the process to be used, and had no relation to the question of jurisdiction; that in reference to the enforcement of a maritime contract, justiceable in the admiralty, congress, and the Supreme Court by authority of congress, had a right to prescribe whether the jurisdiction should be exercised by an attachment of property, or merely by a suit against the person, or by both; that the contract, if maritime, was equally within a court of admiralty, whether process against the vessel were issued because the supplies were presumed to be furnished on her credit, under the maritime code, or because a lien on the vessel therefor was given by the local law, or whether only process against the person were issued because the supplies were presumed by the maritime code to be furnished on the personal credit of the master or owner of the vessel, and no lien therefor was given by the

local law; that the old 12th rule, as well as the new 12th rule, was merely 'a rule for practice'; that a lien given by a State law was enforced in the admiralty, not as a right which the admiralty court was bound to carry into execution, on the application of the party, but as a discretionary power, and that the repeal of the old 12th rule proceeded on the ground that it was not convenient or practicable for the admiralty court to enforce liens which rested on the local law for support. The old 12th rule was held not to apply to such cases.

"At the December term, 1866, the Supreme Court, in The Moses Taylor (4 Wall., 411), had under consideration a statute of the State of California, which made a vessel liable for services, supplies, materials, and some other matters of contract, and sundry torts, and constituted such causes of actions liens on the vessel, and authorized actions for such causes to be brought directly against the vessel, by name, with an attachment of her, and if judgment should be recovered, a sale of her to satisfy the judgment. The court held that such statute, to the extent in which it authorized actions in rem against vessels for causes of action cognizable in the admiralty, invested the courts of California with admiralty jurisdiction; that the cognizance by the federal courts of civil causes of admiralty and maritime jurisdiction had been made exclusive by congress; and that the State court of California had no jurisdiction of a proceeding in rem against a vessel, under such a statute, for a breach of a contract by her owner to transport a passenger from New York to San Francisco.

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In the case of The Hine v. Trevor, at the same term (4 Wall., 555), the Supreme Court had under consideration a statute of Iowa, which gave a lien on a vessel for injury to property by such vessel, and authorized the seizure and sale of the vessel therefor, without any process against her owner or master. It held that a State court of Iowa had no jurisdiction, under that statute, of such direct proceedings against a vessel for such a cause of action, for the reason that the cause of action was one of admiralty cognizance, and within the exclusive jurisdiction of the admiralty courts of the United States

[It has been also held by the Supreme Court of Iowa, in accord with the decisions of the Supreme Court of the United States, that the Iowa statute, so far as it undertook to give a remedy in rem against a boat or vessel for a cause of action of admiralty cognizance was invalid. Walters v. The Steamboat Mollie Dozier, 24 Iowa, 192.]

"In March, 1868, the court of appeals of New York, in the case of In re Steamboat Josephine, 39 New York, 19, following the two decisions in 4 Wall., held that a proceeding against a vessel by name, in a State court of New York, under the New York statute of April 12, 1862 (laws of 1862, chapter 482), on a lien given by such statute for supplies furnished to the vessel, was void for want of jurisdiction, because exclusive cognizance of such a proceeding belonged to the district courts of the United States, the contract being a maritime one. This view was reiterated by the same court in Brookman v. Hamill, in May, 1871, 43 New York, 554. Judge RAPALLO, in delivering the opinion of the court in that case says, with great accuracy: 'Although our courts of admiralty may not recognize the lien of material men for supplies to domestic vessels, not deeming the credit given to the

vessel, they have retained jurisdiction over the subject of these claims, and whatever restrictions now exist as to the remedy are self-imposed by our own courts, and do not arise from any lack of jurisdiction over the subject. In view of the doctrine of the case of The St. Lawrence, I can see no want of power in the Supreme Court, should it see fit so to do, to restore the rule of 1844, or to allow a remedy in rem to material men in all cases, ***. And if the necessities of the commerce require that, in this country, there should be a remedy in rem in all cases of material men, it is much more appropriate that it should be administered by the courts of admiralty than under the laws which may from time to time be in force in the several States, especially in respect to vessels not engaged exclusively in the internal commerce of a State, but which may be subject to liabilities incurred in different States, or in foreign countries in favor of persons other than the attaching creditor.'

"In this state of the decisions, the Supreme Court, on the 6th of May, 1872, amended the 12th rule, so as to make it read as follows: 'In all suits by material men for supplies or repairs, or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master and owner alone in personam.' The 12th rule of May 1, 1859, which was so amended, read thus: In all suits by material men for supplies or repairs, or other necessaries, for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceeding in personam, but not in rem, shall apply to domestic ships, for supplies, repairs or other necessaries.' The words in italics above, in the rule of 1859, were stricken out, and that was the only change made to arrive at the rule of 1872.

“What is the meaning and effect of the rule of 1872? The rule of 1859, recognizing the law of the courts of the United States as to maritime liens for supplies, etc., gave process in rem, or in personam, optionally, in case of supplies, etc., to a foreign ship, or a ship in a foreign port, and gave process in personam, but not in rem, in case of supplies, etc., to a domestic ship. Jurisdiction of all contracts for such supplies, etc., belongs to the courts of admiralty of the United States, under the Constitution and statutes, because such contracts are contracts of admiralty and maritime jurisdiction: but process in rem was allowed, by the rule of 1859, only in case of a foreign ship, and was refused in the case of a domestic ship. The rule of 1872 provides, and was intended to provide, that, in every case of a contract for supplies, etc., to a vessel, domestic or foreign, being a maritime contract, process in rem against the vessel, or in personam against her master or owner, may, optionally, be resorted to, where a suit is required to enforce the contract.

"The libel in this case was filed on the 21st of May, 1872. The coal was furnished in 1866. The suit was brought after the rule of 1872 went into effect, but the supplies were furnished before that rule went into effect. When the supplies were furnished no process in rem could be issued against the vessel therefor. There was no lien on the vessel therefor by the general maritime law, and the 12th rule of 1869 forbade the issuing of process in rem against the vessel, because she was a domestic vessel. The contract was made in view of this state of things, and no remedy in rem existed un