
    Weston vs. Morse, impleaded with another.
    
      Maritime Liens: Jurisdiction of State Courts: See. 1, ch. 154 of 1811.
    
    1. Under the decisions of the supreme court of the United States, state laws may give certain maritime liens on domestic ships in home ports, which however, can he enforced in rem only by the federal courts.
    2. It seems that sec. 1, ch. 154 of 1871, gives a maritime lien, independent of the proceeding and jurisdiction in the state court contemplated by the subsequent sections.
    3. But the remedy provided by said act, for liabilities incurred by the master, owner, agent or consignee of a vessel, by attachment against the person incurring the liability and the vessel by name, and judgment and execution against the vessel by name, whether the owner be a party or not, is, so far as it relates to the vessel, a proceeding in rem; and, the jurisdiction of such a proceeding being essentially one in admiralty, the statute cannot confer it on the state courts.
    APPEAL from tbe Circuit Court for Wwnebago County.
    On tbe 18tb of March, 1874, tbe defendant Morse and one "Wilson sold a steamboat, “ Tbe Diamond,” to tbe defendant McCall, talcing as security for part of tbe purchase money, a chattel mortgage for $5,093, which was duly filed with tbe town cleric of Omro in this state, tbe residence of McCall. The vessel was delivered to McCall, and was used exclusively in navigating tbe Fox and Wolf rivers, between Oshlcosh, Winneconne and Berlin in this state. It was conceded that tbe vessel is of more than twenty tons burden; that it was never registered or enrolled, but was licensed about April 25, 1875, under tbe laws of congress, to run upon said waters; that tbe demands sued for in this action all accrued while McCall was in possession of tbe boat; and that no relation of principal or agent existed between him and Morse. After tbe boat began to run, McCall removed to Oshlcosh, of which place be remained a resident till some time in November, 1874. About November 25, 1874, default háving been made in the payment of tbe mortgage, tbe steamer was sold, and bid in by Morse to satisfy the mortgage. The claims of the plaintiff on tbe property consisted of demands for sailors’ wages and for supplies furnished the vessel at Oshkosh, and other places along the rivers. Morse was made a defendant herein on his own application, under ch. 154, Laws of 1871, the act under which the action was brought. The court held that the demands of the plaintiff'were a lien upon the vessel, superior to that of the chattel mortgage, and adjudged that the vessel‘be sold to satisfy the plaintiff’s claim. A personal judgment was also rendered against McCall. Morse appealed from the judgment.
    The brief for the appellant was signed by Finch & Barber, and that for the respondent by Jackson & Halsey. The cause was argued orally by Charles Barber and H. B. Jackson.
    
    For the appellant, it was argued as follows:
    1. The court had no jurisdiction over the subject matter of the action, the contracts being maritime. The proceedings to enforce the lien have all the traits of a suit in rerru in the United States district courts, which courts have exclusive jurisdiction. Morse v. Ins. Go., 30 Wis., 506; Dunlap’s Adm. Pr., 43; Bouv. Die., “Maritime Contract;” 2 Gall., 398; 1 Kent’s Com., 369, note; 2 Am. Law Bev., 455; 5 id., 581; Ins. Go. v. Dunham, 11 Wall., 1; The lottawanna, 21 id., 559, 580; The Montello, 20 id., 430; The Kate Tre-maúbe, 5 Ben.,60; TheW. J. Walsh, id., 72; In re Josephine, 39 N. Y., 22; Sheppard v. Steele, 43 id., 56; The Sarah Jane, 1 Lowell, 203; Const. U. S., art. Ill, sec. 2; Stats. U. S., 1789, ch. 20; E. S. of U. S., § 563, subd. 8; id., § 711, subd. 3. The court below had no jurisdiction except to enter a personal judgment against McCall. Nor had the legislature the power to confer upon the state courts jurisdiction to enforce the lien by proceedings in rem, as in the admiralty courts. The Moses Taylor, '4 Wall., 411; The Hime v.Mrevor, id., 555; The Belfast, 7 id., 624; The Eagle, 8 id., 15; The Lottmoan-, 
      na, supra; In re Josephine, supra; Brookman v. Ilam/ill, 43 N. Y., 554; Vose v. Cockcroft, 44 id., 415; Thorsen v. The J. B. Martin, 26 Wis., 488; Oa/npbell v. Sherman, 35 id., 103; 24 Iowa, 192. Tbe concurrent jurisdiction of tbe state courts is based upon tbe saving clause of tbe act of 1845. 7 U. S. Stats, at Large, 726; Thorsen v. The J. B. Marlin, The lime v. Trevor, and The Eagle, supra. But tbe decision in tbis last case rendered that law inoperative. It made tbe jurisdiction of tbe United States courts exclusive in cases arising upon tbe lakes, as in cases arising on tbe ocean. 5 Am. Law Rev., 600, 621; 41 Ala., 712; 27 Mich., 479; The Steamer Oler, 14 Am. Law Reg., N. S., 300. Moreover, that act bas been repealed. R. S. of U. S., tit. XIII, cb. 3, § 563, subd. 8, and cb. 12, § 711, subd. 3. Tbe act of 1845 applied only to “tbe lakes, and navigable waters connecting said lakes.” Tbe Eox river is an inland river. The Montello, supra. But tbe true test of jurisdiction is, whether tbe contract was maritime, and to be performed on navigable waters to which tbe general jurisdiction of admiralty extends. The Belfast, supra; Berner v. Steamer IIope, 42 Miss., 715; S. O., 2 Am. Rep., 643. Tbe proceedings in tbis case have all tbe traits of a suit m rem in admiralty, and not of a common law remedy. The Moses Taylor and The Ui/ne v. Trevor, supra; The Mary, 9 Cranch, 126; 3 Am. Law Rev., 601, 603; Ashbrook v. The Golden Gate, Newb., 296, 303; Bogart v. The Jolvn Jay, 17 How., 399; Perci/oal v. Hickey, 18 Johns., 257, 292; 1 Kent’s Com., 378; Southern Bock, Go. v. Steamboat J. B. Perry, 23 La. An., 39 (8 Am. Rep., 585); 7 Am. Law Rev., 8; 2 Ad. & El., 72. 2. Even if tbe state court had jurisdiction, tbe liens of the plaintiff were not superior to tbe claim of Morse under tbe chattel mortgage. Cb. 154 of 1871 does not provide that tbe lien of suitors shall take precedence of other claims, differing in that respect from similar statutes in other states. 4 Wall., 412; 39 N. Y., 21; Tbe Log Lien Act, Tay. Stats., 1768, § 25. Tbis remedy being strictly statutory, must be strictly construed. S outer v. The SeaWitch, 1 Gal., 164; 2 Cow., 419, 420; 15 Mass., 205, 206; Miller Bros. v. The Kate Hvnclvman, 8 Chicago Legal News, 388; The Grace Greenwood, 2 Biss., 134; The Shy la/rk, id., 251; Barque “ Great West” v. Oberndorf.\ 57 Ill., 168; Propeller Hilton v. Miller, 62 id., 231; Scott’s Case, 1 Abb. (U. S.), 336; The Scio, L. R., 1 Adm. & Ecc., 353. A mortgagee not in possession of a boat is not liable for repairs. 8 Johns., 159; 7 Barb., 438; 6 Duer, 358; 20 Wis., 152. 3. When the mortgage was executed, “ The Diamond ” was not registered or enrolled, and the mortgage stands on the same footing as one filed in the custom house on a vessel registered and enrolled. 9 Stats, at Large, p. 450; R. S. of U. S., § 4192; Perl&vns v. Emmerson, 59 Me., 319; Foster v. Perl&i/ns, 42 id., 168; Sti/nson v. Minor, 34 Ind., 89; Best v. Staple, 61 N. Y., 71. 4. Ch. 154 of 1871 is voidffor uncertainty, because it does not specify the circuit court with whose clerk the petition must be filed.
    For the respondent, it was argued as follows :
    1. Chapter 154 of 1871 is valid and creates a lien for supplies furnished as in this case, which may be enforced by an action in the state court by attachment and sale of the boat. The mortgagees were the substantial owners of the boat. The chattel mortgage was a legal conveyance of the boat, subject to be defeated only by a payment that was never made. Byron v. May, 2 Chand., 103, 107; Flanders v. Thomas, 12 Wis., 410, 411. It is conceded that by the chattel mortgage Morse had a standing in court for the purpose of contesting the right of the plaintiff to enforce a lien on the boat. But even the absolute owners cannot litigate any other question. Mxmger v. Lenroot, 32 Wis., 541; Winslow v. Urquhart, 39 id., 260, 267. It is not denied that the contracts for supplies were made in a “home port,” or that the boat was navigating within this state; and such contracts have never been held, even by the federal court, to be maritime contracts. Leon v. Gal-
      
      cercm, 11 "Wall., 185, 192; The Belfast, 7 id., 624, 645; The General Smith, 4 Wheat., 438. Even if tbe contracts set forth in the complaint were maritime, yet it is always competent for parties seeking redress under maritime contracts to disregard their right in the admiralty courts, and apply to the common-law courts, provided they pursue common-law remedies. The Sine v. Trevor, supra; The Belfast, sxopra; Mailler v. Ex. Pro. Line, 61 N. Y., 312. All that is prohibited to the state courts by the statute (sec. 9, Judiciary Act of 1789), is a proceeding of that nature where the boat itself is made defendant. The Moses Taylor, 4 Wall., 427. Common-law remedies to enforce liens on boats created by state laws, such as are provided by chapter 154 of 1871, and also common-law actions even on maritime contracts, are expressly justified by the supreme court of the United States. Steamer St. Lcmrenee, 1 Black, 531; 11 Wall., 185. The remedy provided by ch. 154 of 1871 is a common-law remedy, in the same sense as the proceeding to enforce liens on logs by ch. 254 of 1862; and this act has already been held valid by this court, in Hunger v. Lenroot and Wimslow v. TJrquhart, supra. See Drake on Attachments, § 5, and cases cited. The act of 1871 may be valid in its application to some cases within the scope of its provisions, although void in relation to particular cases differing from "the one at bar. Golden v. Prince, 3 Wash. O. C., 318; Commonwealth v. Hitchings, 5 Gray, 482.
   Ryan, C. J.

It is too late, while the supreme court of the United States abides by its present rule of decision, to question the authority of state law to give certain maritime liens on domestic ships in home ports. It is also too late to doubt the exclusive jurisdiction of federal courts to enforce such liens m rem. The Moses Taylor, 4 Wall., 411; The Belfast, 7 id., 624; The Eagle, 8 id., 15; The Lottawanna, 21 id., 558. How the exclusive jurisdiction of the federal courts to administer, is reconcilable with the authority of state law to create maritime liens, is a question witli which state courts have no concern, and which seems to trouble the federal courts not a little. It is enough for us that their jurisdiction over the subject is exclusive.

There is, perhaps, no doubt that sec. 1 of ch. 154 of 1871 gives a maritime lien, independent of the proceeding which the subsequent sections authorize, and of the jurisdiction to entertain it which those sections undertake to confer. But the question for us to determine is, whether the proceeding is a suit m rem, and the jurisdiction in the nature of admiralty-jurisdiction. If such be the character of the proceeding and jurisdiction, the statute of 1871 is open to the same objection as ch. 184 of 1869, and is inoperative to confer jurisdiction on the courts of the state. Campbell v. Sherman, 35 Wis., 103.

If the statute before us had authorized a proceeding by attachment against the owner of a vessel and the vessel by name, for the debt of the owner, of whatever nature, we should have probably been disposed to hold it in the nature of a common-law remedy, within the jurisdiction of the courts of the state. But that is not the proceeding which the statute authorizes. It applies to liabilities incurred by the master, owner, agent or consignee of a vessel; and authorizes an attachment against the person incurring the liability and the vessel by name, and judgment and execution against the vessel by name, whether the defendant be master, owner, agent or consignee. If the demand sued on is found not to be a lien upon the vessel, still a personal judgment is authorized against the defendant. This appears to be a mixed proceeding, m personam against the master, owner, agent or consignee, and m rem against the vessel. The liability of the vessel is to be determined against itself, whatever may be the particular relation to it of the personal defendant; so that there may be judgment of sale against it for the lien, in a proceeding to which the owner is not a party. It is not against the interest of tbe defendant in the vessel that judgment is to go; but against the vessel itself, whoever may be the owner, and whether or not a party. So far as it relates to the vessel, we take this to be strictly a proceeding m rem; none the less so because it is joined with a proceeding m personam against the person contracting the debt for it. This appears by the whole object and scope of the statute, which is to create and enforce maritime liens on vessels for debts due upon maritime contracts. Such a proceeding must necessarily be m rem; and the jurisdiction to entertain it is essentially a jurisdiction in admiralty.

It is true that the statute provides that the owner or other person having interest in the vessel, not made a defendant, shall, upon his application, be admitted to defend. This is probably the general rule in courts of admiralty; and the mere right of the owner to make himself a party does not vary the character of the proceeding vru rem which may be taken without making him a party; which may proceed upon a lien on his vessel, to which he may be personally a stranger.

The proceeding authorized by the statute appears to us to be very plainly within the rule of the supreme court of the United States in The Moses Taylor, supra, and The Hine v. Trevor, 4 Wall., 555. And in submission to those and similar cases in that court, and following Campbell v. Sherman, supra, in this court, we feel compelled to hold that the statute in question can confer no jurisdiction on the the courts of the state, to entertain the proceeding which it authorizes.

By the Oov/rt. — The judgment of the court below is reversed as against the appellant, and the cause remanded with directions to the court below to dismiss the action as against the appellant.  