CHAPTER LII. STATE LIENS ENFORCED IN ADMIRALTY. Enforcement of Maritime Liens Created Under State Statutes 542 § 542. 543 Enforcement of Maritime Liens Created Under State Statutes. State liens, as we have seen, are enforceable by the direct action in rem, in cases at law in the State courts, and in the United States courts, whenever that remedy is authorized by statute; and always enforceable, by way of intervention, in actions in rem, by virtue of the general law governing the system, which will not (except to enemies,) deny an appearance after the notice to all persons having any interest in the thing seized, inviting them to come and assert it in order that all rights in or to the res may be adjudicated, with the view to create the new title paramount. State liens are also always enforceable in rem in admiralty, (except in prize causes,) by way of intervention; but not by direct action except where they are held to be maritime liens. While indebted things can be seized and libelled in admiralty only in vindication of a maritime lien, yet, (since it is necessary to the actio in rem that there shall be an invitation given to all persons having rights either jura in rebus or jura ad resto assert them,) such indebted things may not only be claimed by owners, but may also have liens not maritime vindicated against them by way of intervention. Although the Court of Admiralty can marshal the proceeds of a condemned res only between lien-holders and owners,1 yet The Edith, (4 Otto,) 94 U. S. 523. the former are not limited to holders of maritime liens as such liens have been defined by the courts. What are maritime liens? Were the question an open one, we should hold the view that all liens upon ships or other marine property are, in fact, maritime liens, however they may have originated; and that the necessities of commerce, as well as the requirements of legal science, would warrant their designation as such, in law. But since the courts have not so held, we shall find it convenient to divide State liens enforceable in admiralty into two classes: maritime and ordinary. A good illustration of the former is found in the liens created by State law in favor of material men furnishing supplies or repairs to a domestic ship in her home port. It is well settled that such liens, though created by State legislatures, are maritime and directly enforceable by seizure and libel of the thing upon which they rest. When a change of the twelfth Admiralty rule had created the necessity, many of the State legislatures enacted laws giving such material men lien on the domestic ships supplied or repaired by them in the home port; and the courts have, where the State law has been complied with by those men, (as, for instance, where the lien has been recorded when required by the statute,) promptly recognized it as a maritime one, entitled to its high rank, and enforceable by direct action, or by way of intervention when the seizure has been made by some other holders of a maritime lien.1 Where by State statute a lien is given for building a ship, the admiralty court will sometimes enforce it against the ship,2 and always against admiralty remnants. 1 Vide, Chapter on Repairs and Supplies to Vessels, etc., and authorities cited there. Also, Peyroux v. Howard, 7 Pet. 324; The S. G. Owens, 1 Wallace Jr. 358; The Albatross, 2 Id. 327; Str. Ellen Stewart, 5 McLean, C. C. 269; The Ferax, 12 Law Rep. 183; The Thos. Scattergood, Gilpin, 7; The Sam Slick, 18 Law Rep. 162; The John Walls, jr., 12 Id. 24. 2 Philips . Wright, 5 Sandf. 342; The Steamboat Joseph E. Coffee, Alcott Ad. 401; Nicholas . May, Wright, 660; The Calisto, Daveis, 29; Read v. The Hull of a New Brig. 1 Story, 244; The Hull of a New Ship, Daveis, 199; The Young Mechanic, 2 Curtis C. C. 404; The Kearsarge, Id. 421; Purinton e. The Hull of a New Ship, Id. 416; Sewall c. The Hull of a New Ship, 2 Ware, 203; Davis r. A New Brig, Gilpin, 473; The Richard Bu.teed, 25 Lɛw The rank of liens, enforceable in admiralty, directly or by way of intervention, has been discussed with reference to State legislation, etc.1 Liens may be waived; but what amounts to a waiver cannot be reduced to an invariable rule. § 543. Interventions on Ordinary State Statute Liens. A good illustration of the ordinary statute lien enforceable in admiralty is found in the custom-house mortgage. The mortgagee cannot seize and libel the mortgaged vessel, in admiralty, but he has a lien which he may vindicate by way of intervention, when the vessel has been rightfully arrested by some holder of a maritime lien. The doctrine of the courts is that such ordinary lien holder may come in for any surplus of proceeds that may remain, after the maritime liens have been satisfied, and before the balance of fund in the registry shall be paid over to the latest owner of the condemned res. Such surplus proceeds are called "admiralty remnants."3 The forty-third Admiralty rule allows "any person having an interest in the proceeds in the registry of the court, by petition and summary proceeding, to intervene pro interesse suo, for a delivery of them to him;" and further prescribes that "upon due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to decree thereon according to law and justice." As to the right and the method, Mr. Justice BRADLEY, after remarking, "The court has power to distribute surplus proceeds to all those who can show a vested interest therein, in the order of their several priorities, no matter how their claims originated;" and "it is a wholesome jurisdiction very commonly exercised by nearly all superior courts, to distribute a fund, rightfully in its possession, to those who are legally entitled to it, and there is no sound reason why admiralty courts should not do the same," adds: "In this case, the appellants themselves have no maritime lien, but merely a mortgage to secure an ordinary debt not founded on a maritime contract. They, therefore, have no standing in court, except under the fortythird rule, and in the manner there indicated. Their libel was inadmissible, even under the admiralty rule as recently modified. But, before the final decree, they filed a petition for the surplus proceeds; and, as there is no question in the case about fraudulent preferences under the bankrupt law, they are entitled to those proceeds towards satisfaction of their mortgage." Mr. Justice CLIFFORD, dissenting, said the court had no jurisdiction over the mortgage. The better view seems to be that, (conceding the custom-house mortgage on a steamboat to be not a maritime lien,) the admiralty court would have had no jurisdiction, had the mortgagees been the seizing libellants, and not respondents to notice.1 Mr. Justice NELSON, in delivering the decision in The Ship Angelique, distinctly expressed the doctrine that a custom-house mortgage could not be directly enforced by libel but might be paid out of proceeds; and he cited The John Jay in support of the first part of the proposi tion, to which may now be added The Lottawanna. § 544. "Admiralty Remnants;" and the Forty-third Admiralty Rule. Recurring to the opinion of the court in the last case quoted above; and now considering it with reference to the method of vindicating an ordinary State lien under the forty-third rule, the reader will note the peculiarity claimed for the intervention on such lien. Neither the rule's author, nor its quoted expounder, understood this method to be that of intervention in the usual way. The ordinary lien holder intervenes pro interesse suo, and "after due notice to the adverse parties if any," the court shall proceed summarily to hear and decide, etc. Is there to be a second notice? The first must necessarily have been given to all persons, or the cause could not have pro 1 The John Jay, 17 How. 399; The Ship Angelique, 19 How. 239; The Sailer Prince, 1 Benedict, 461; The Don Thorpe, 2 W. Rob. 73; The ceeded thus far. Is the second notice, (in order to be "due notice to the adverse parties,") a general advertisement to the world, like the first? If the first is insufficient, so as to create a necessity for the second, how can there be any legal proceeding under the first? If it is sufficient, it must bring into court "all persons having or pretending to have any interest in or to the thing," or result in making them pronounced defaulters. "If any," adverse parties must have due notice; but how shall it ever, in any case, be known prior to notice, whether there are any adverse parties-the first notice being disregarded? The court said, in the quotation above, that the custom-house mortgagees had no standing in court, except under the fortythird rule, and by filing an application for the surplus proceeds. The idea is that they could not appear as intervenors in response to the notice and monition, and try their cause contradictorily with other intervenors: and this seems to be also the idea of the author of the rule. That rule seems to need emendation. It needs it none the less because of its emanation from the hand of a very distinguished jurist. It should not cut off the ordinary lien holder's right to respond to notice in time to contest the maritime character of liens preferred by intervenors who are allowed to appear in the first instance. Why, in this very case of the Lottawanna, we have an example of the importance of allowing the ordinary lien holder to combat the pretensions of intervenors alleging a maritime jus ad rem. The holders of the custom-house lien did successfully contest the lien of the material men. Had they been obliged to fold their arms supinely till the latter had, unopposed, absorbed the whole proceeds after the payment of the seamen libellants, they might have come into court too late to get anything, under the rule, and under the decision that they had no standing in court, except under the forty-third rule, and in the manner above indicated;" and that "their libel," (i. e., their cross-libel or intervention,) was "inadmissible even under the admiralty rule as recently modified;" and that their only method of vindicating their jus ad rem was by filing a petition for the surplus proceeds. To preserve the rights of |