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244 U. S.

PITNEY, J., dissenting.

arising upon the sea, the courts of common law exercised, and long had exercised, concurrent jurisdiction. Whatever early doubts may have existed had been based not upon any inherent incapacity of the common-law courts to deal with the subject matters, but upon the ancient theory of the venue, and disappeared with the recognition of the fictitious venue.

The grant of judicial power in cases of admiralty and maritime jurisdiction never has been construed as excluding the jurisdiction of the courts of common law over civil causes that before the Constitution were subject to the concurrent jurisdiction of the courts of admiralty and the common-law courts. The First Congress did not so construe it, as the saving clause in the Judiciary Act conclusively shows. And, assuming that the States, in the absence of legislation by Congress, would be without power over the subject matter, this saving clause, still maintained upon the statute book, is a sufficient grant of power. Jurisdiction in prize cases, as has been shown, springs out of the possession of a prize of war. Civil proceedings in rem, to be mentioned hereafter, are based upon the maritime lien, where possession in the claimant is neither necessary nor usual as is the case with common-law liens. With these exceptions, both resting upon grounds peculiar to the forum of the admiralty, concurrent jurisdiction of the courts of common law in civil cases of maritime origin always has been recognized by this court. New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 390; Propeller Genesee Chief v. Fitzhugh, 12 How. 443, 458; The Belfast, 7 Wall. 624, 644645; Insurance Co. v. Dunham, 11 Wall. 1, 32; Leon v. Galceran, 11 Wall. 185, 187–188; Steamboat Co. v. Chase, 16 Wall. 522, 533; Schoonmaker v. Gilmore, 102 U. S. 118; Manchester v. Massachusetts, 139 U. S. 240, 262.

Nor is the reservation of a common-law remedy limited to such causes of action as were known to the common law

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at the time of the passage of the Judiciary Act. It includes statutory changes. Steamboat Co. v. Chase, 16 Wall. 522, 533, 534; Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 644. Those remedies which were held not to be commonlaw remedies, within the saving clause, in The Moses Taylor; 4 Wall. 411, 427, 431; The Hine v. Trevor, 4 Wall. 555, 571, 572; The Belfast, 7 Wall. 624, 644; Steamboat Co. v. Chase, 16 Wall. 522, 533, and The Glide, 167 U. S. 606, 623, provided for imposing a lien on the ship by proceedings in the nature of admiralty process in rem, and it was for this reason only that they were held to trench upon the exclusive admiralty jurisdiction of the courts of the United States. The distinction was noticed in Leon v. Galceran, 11 Wall. 185, 189, and again in Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 642. In the latter case it was pointed out (p. 644) that the reservation of a common-law remedy where the common law is competent to give it was not confined to common-law actions but included remedies without action, such as a distress for rent or for the trespass of cattle; a bailee's remedy by detaining personal property until paid for work done upon it or for expenses incurred in keeping it; the lien of an innkeeper upon the goods of his guests, and that of a carrier upon things carried; the remedy of a nuisance by abatement, and others. The most recent definition of the rule laid down in The Hine v. Trevor and other cases of that class is in Rounds v. Cloverport Foundry & Machine Co., 237 U. S. 303.

I have endeavored to show, from a consideration of the phraseology of the constitutional grant of jurisdiction and the act of the First Congress passed to give effect to it, from the history in the light of which the language of those instruments is to be interpreted, and from the uniform course of decision in this court from the earliest time until the present, these propositions: First, that the grant of jurisdiction to the admiralty was not intended to be ex

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PITNEY, J., dissenting.

clusive of the concurrent jurisdiction of the common-law courts theretofore recognized; and, secondly, that neither the Constitution nor the Judiciary Act was intended to prescribe a system of substantive law to govern the several courts in the exercise of their jurisdiction, much less to make the rules of decision, prevalent in any one court, obligatory upon others, exercising a distinct jurisdiction, or binding upon the courts of the States when acting within the bounds of their respective jurisdictions. In fact, while courts of admiralty undoubtedly were expected to administer justice according to the law of nations and the customs of the sea, they were left at liberty to lay hold of common-law principles where these were suitable to their purpose, and even of applicable state statutes, just as courts of common law were at liberty to adopt the rules of maritime law as guides in the proper performance of their duties. This eclectic method had been practiced by the courts of each jurisdiction prior to the Constitution, and there is nothing in that instrument to constrain them to abandon it.

The decisions of this court show that the courts of admiralty in many matters are bound by local law. The doubt expressed by Mr. Justice Bradley in Butler v. Boston & Savannah Steamship Co., 130 U. S. 527, 558, as to whether a state law could have force to create a liability in a maritime case at all, was laid aside in The Corsair, 145 U. S. 335, and definitely set at rest in The Hamilton, 207 U. S. 398, 404. The fact is that, long before Butler v. Boston & Savannah Steamship Co., it had been recognized that state laws might not merely create a liability in a maritime case, but impose a duty upon the admiralty courts of the United States to enforce such liability. Thus, while it was recognized that by the general maritime law a foreign ship, or a ship in a port of a State to which she did not belong, was subject to a suit in rem in the admiralty for repairs or necessaries, the case of a ship in a

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port of her home State was governed by the municipal law of the State, and no lien for repairs or necessaries would be implied unless recognized by that law. The General Smith. (1819), 4 Wheat. 438, 443; The Lottawanna, 21 Wall. 558, 571, 578. Conversely, it was held in the case of The Planter (Peyroux v. Howard, 1833), 7 Pet. 324, 341, that a libel in rem in the admiralty might be maintained against a vessel for repairs done in her home port where a local statute gave a lien in such a case. To the same effect, The J. E. Rumbell, 148 U. S. 1, 12. As elsewhere pointed out herein, where a state statute conferred a lien operative strictly in rem, it was uniformly held not enforceable in the state courts, but only because it trenched upon the peculiar jurisdiction of the admiralty, and there fore was not a "common-law remedy" within the saving clause of the Judiciary Act of 1789. The Moses Taylor, 4 Wall. 411, 427, 431; The Hine v.: Trevor, 4 Wall. 555, 571, 572; The Belfast, 7 Wall. 624, 644; Steamboat Co. v. Chase, 16 Wall. 522, 533; The Glide, 167 U. S. 606, 623.

Under these decisions, and others to the same effect, the substance of the matter is that a State may, by statute, create a right to a lien upon a domestic vessel, in the nature of a maritime lien, which may be enforced in admiralty in the courts of the United States; but a State may not confer upon its own courts jurisdiction to enforce such a lien, because the federal jurisdiction in admiralty is exclusive. The J. E. Rumbell, 148 U. S. 1, 12, and cases cited. But a lien imposed not upon the rem but upon defendant's interest in the res may be made enforceable in the state courts. Rounds v. Clover port Foundry & Machine Co., 237 U. S. 303, 307, and cases cited.

The Roanoke, 189 U. S. 185, 194, 198, while approving The General Smith, The Planter, The Lottawanna, and The J. E. Rumbell, supra, gave a negative answer to the very different question whether a State could, without encroaching upon the federal jurisdiction, create a lien

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against foreign vessels to be enforced in the courts of the United States.

In the present case there is no question of lien, and, I repeat, no question concerning the jurisdiction of the state court; the crucial inquiry is, to what law was it bound to conform in rendering its decision? Or, rather, the question is the narrower one: Do the Constitution and laws of the United States prevent a state court of common law from applying the state statutes in an action in personam arising upon navigable water within the State, there being no act of Congress applicable to the controversy? I confess that until this case and kindred cases submitted at the same time were brought here, I never had supposed that it was open to the least doubt that the reservation to suitors of the right of a common-law remedy had the effect of reserving at the same time the right to have their commonlaw actions determined according to the rules of the common law, or state statutes modifying those rules. This court repeatedly has so declared, at the same time recognizing fully that the point involves the question of state power. In United States v. Bevans, 3 Wheat. 336, 388, the court, by Mr. Chief Justice Marshall, said: "Can the cession of all cases of admiralty and maritime jurisdiction be construed into a cession of the waters on which those cases may arise? This is a question on which the court is incapable of feeling a doubt. The article which describes the judicial power of the United States is not intended for the cession of territory, or of general jurisdiction. It is obviously designed for other purposes.

In describing the judicial power, the framers of our Constitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction. It is not questioned that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction, is in the government of the Union. Congress may pass all laws which are necessary and proper for giving

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