
    Henry C. Calkin v. The United States.
    
      On the ’Proofs.
    
      The Neptune Steamship Company, in Neto York, contracts with one Van Dusen to build three sea-going steam vessels, and with one Esler to build machinery for them. Esler employs the claimant to do the coppersmith work. Before the work is finished the defendants purchase the steamers for ton,r purposes. Before the purchase money is paid the claimant files his lien upon the vessels, under and toithin the time prescribed by a statute of New York. The defendants withhold the amount of the lien for a lime, but at last pay it over to the steamship company with full knowledge of the facts. The lien cannot be foreclosed, as provided by the New York statute, because the government has actual possession of the vessels, and holds them by its sovereign power. Esler previously has failed, so that the claimant is xoithout redress. The statute gives such a lien when the debt is “ contracted by the master, owner, charterer, builder, or consignee.”
    
    I. A contract for building and fitting a vessel, as distinguished from a contract for repairs or supplies, is not a maritime contract, and hence is not a subject of admiralty jurisdiction, but of local law.
    
      II. A statute of New York, whicb gires a lien on a sea-going vessel, “whenever a debt amounting to $50 shall be contracted by the master, owner, charterer, builder, or consignee,’-’ does not extend to a debt contracted by the builder of the engines of a steam vessel. Such a person is not “ the builder ” within the meaning of the act, but a mere contractor with the owners ; and his subcontractors must be deemed to be employed on the faith of his individual responsibility.
    III. State statutes giving mechanics liens upon vessels are stride juris, and are to be strictly construed.
    Mr. K,. H. Gillet for claimant:
    This suit was commenced in this court by filing a petition, to which the defendants filed a demurrer, which was overruled, and leave given to answer over, and take issue.
    The claimant took evidence to sustain the issue on his part, but none was taken by defendants.
    The claimant was employed in the city of New York by the builder of the steamships Glaucus, Neptune, and Galatia, to do the copper and similar work on them, which he did in 1863, said work amounting to $5,275 29. Under the laws of New York, the claimant, on filing in the county clerk’s office his account, authenticated in a particular manner, acquired a special lien on these steamers for his work and labor, and materials furnished, whicb continued thereon for a specified time. His account was properly filed. While the lien continued in full force and effect, the defendants bought the steamers of the owners, and took them into possession, and fitted them up as war vessels in the navy. Before the defendants had fully paid for them, they were notified of claimant’s special property in them. Thereupon the defendants retained out of the purchase money $5,000, but subsequently paid it over, knowing that the claimant’s lien had not been paid. This suit is brought to recover the value of this special property in these steamships, which amounts to $5,275 29, on which the claimant demands interest.
    
      First. The account, as authenticated and filed, became a legal lien, under the laws of New Fork.
    
    The statutes of New York, providing for the collection of debts against ships and vessels, which are material, are as follows :
    “ § 1. Whenever a debt, amounting to $50 or upwards as to a seagoing or ocean-bound vessel, or amounting to $15 or upwards as to any other vessel, shall be contracted by the master, owner, charterer, builder, or consignee of any ship or vessel, or tbe .agent of either of them, within this State, for either of the following purposes :
    “ 1. On accQunt of work done or materials or other articles furnished in this State for or towards the building, repairing, fitting, furnishing, or equipping such ship or vessel, * * * such debt shall be a lien upon such vessel, her tackle, apparel, and furniture, and shall be preferred to all other liens thereon, except mariner’s wages.” (Act 24th April, 1862, ch. 482.)
    Subsequent sections point out the manner of enforcing liens so attaching.
    
      “ § 2. Such debt shall cease to be a lien after the expiration of six months after said debt was contracted, unless at the time when said six months shall expire such ship or vessel shall be absent from the port at which such debt was contracted, in which case the said lien shall continue until the expiration of 10 days after said ship or vessel shall return to said port.” (Briggs v. A Light-boat, vol. 3, Law Register, p. 566.)
    
      Second. The rights of the owner of a special property rest upon the same ground, as those to general property, except its continuance and, manner of enforcement when provided, for under special laws.
    
    A lien is a special property, and while it exists is a thing of value precisely as much as general property, and passes by assignment in bankruptcy, or otherwise, and is the subject of insurance and sale. The mode of realizing the value of such special property does not affect its nature or value.
    
      Third. When the government purchased and took possession of these steamers, it converted the claimant’s property to its own use, and such conversion made it liable to claimant for the value of siich specialprop-erty, precisely as it would have been liable in case he had owned the general property and they had converted it to the extent of the value' of such special property. ,
    The defendants’ liability was complete the moment they took possession and assumed control over the steamers. If they had destroyed them, instead of purchasing, or had forcibly taken and sold them to another for money, the right to recover would hardly be questioned. The injury to the claimant is precisely the same, when the defendants purchase and take possession so as to prevent foreclosure, as if destroyed or sold. In each case the claimant is equally deprived of his property and rights. The defendants are not authorized to set up their wrongful act, which prevented a foreclosure, as a defence to such act. They could have indemnified themselves ; but if they failed to do so, through mistaken advice, the claimant ought not to suffer by it. The defendants could have protected themselves, but the claimant could not, and, therefore, if either suffers it should be them.'
    
      Fourth. The claimant, after the government tooh possession of the steamers, had no means of enforcing his rights in pursuance of the laws of New York, or under the general admiralty law, because the same could not be lawfully taken out of its possession by any judncial process, the government not being liable to be sued without its bwn consent, given by law. ( The United States v. McLemore, 4 Howard, S86-8.)
    It is a well-settled principle that, without a statute authorizing it, the government cannot be sued for any cause. Serving process against these steamers, in the hands of the government, would have been, in fact, the institution of a suit, but would have been taking from it a portion of the means it had provided for prosecuting the war. No naval officer would allow them to be taken from him. It would subject him to court-martialing and the loss of commission. There is no way in which -the claimant could compel the defendants to litigate with him so as to settle his rights after they had taken possession of the steamers.
    
      Ffth. The defendants having express notice of claimant’s lien, before paying the consideration money, had the means of indemnfying and, protecting themselves without loss. They also had the right to ,iavail themselves of the indemnity placed in the hands of its navy agent.
    
    The defendants acted in their own wrong in taking and appropriating to their own use property in which they knew the claimant had an interest under the laws of New York. . They bought and paid, knowing of the claimant’s legal rights, and knowing that he could not enforce them after the government had taken possession, because legal proceedings could not.be instituted against property in its possession. It is no defence to say that the lien had expired when the defendants by their acts had prevented his making it available. The question is, What were the claimant’s rights when the defendants by their acts deprived him of them 1 Then they were perfect to the extent now claimed.
    
      Sixth. By the laws of New York, claimant’s demand against the steamers toas on interest, and would so remain until discharged, and f the defendants had not put it out of his power to enforce his rights-against the original debtor and his property, interest would form a part of Ms debt and be collectable, and the defendants took the property 
      
      subject to same rights and burdens, and therefore must pay interest up to the time they discharge the claim.
    
    It will not be questioned that, under the laws of New York, the claimant would be entitled to interest on his demand until paid. It would enlarge with the lapse of time. The defendants took into their own hands the subject of this growing lien, and are responsible for it to its whole extent, although a portion of it consists of interest on the original debt. It follows that the act of Congress forbidding this court to allow interest, except where expressly agreed, does not apply. Congress could not defeat the laws of New York, and prevent the increasing of the claimant’s demand, because this addition is called “ interest.”
    If claimant’s rights consisted of a mortgage bearing interest, and the government had purchased the land subject to it, no one would question his right to interest, and if a suit were brought in this court by legal authority to enforce payment, this court would not hesitate to allow interest, because the mortgage was an interest-bearing demand. The present case is precisely the same in principle. ' The interest forms a substantial part of the demand, and would be recoverable of the person who employed claimant, if the steamers had been proceeded against — would have formed a legitimate portion of the demand to be paid out of the fund raised thereby, and the defendants stepping into the place of the vessels and owner, must be liable to the same extent.
    The Deputy Solicitor for defendants: '
    The lien was never perfected after filing the specifications in the county clerk’s office; and on the assumption that such an inchoate proceeding had created a species of private property, held by the United States as a stakeholder, and then taken for public use, this suit has been brought in the Court of Claims on an implied contract with Harvey C. Calkin. This idea of an implied contract growing out of an alleged exercise of a right of eminent domain by the government through an accidental purchase, the maritime or statutory lien even subsisting, is altogether fallacious. It is adjudged law that a vessel, though owned by the government, can be rightfully and readily subjected to legal process for the enforcement of a lien, in the same way as if she were owned by a private citizen. (The Gazelle. Sprague’s Decisions, 278. The Revenue Cutler, No. 1, U. S. D. C., Ohio, 21 Law Reporter, 281; Briggs v. A Light-boat, Law Register for July, 1854, vol. 3, 568.)
    The government, it is true, is not liable to be sued without its consent, given by law; but a naval officer could scarcely be so misled by an action in the nature and with the incidents of a suit in admiralty against these steamers by name, as to confound them, as defendants, with the government. It was because this alleged statutory lien, unconstitutional and illegal all the while, was not enforced, that the United States finally paid over the retained amount in their hands to the Neptune Steamship Company, from which their purchases had been made; and as these supposed liens rested on statutory law to be strictly pursued, they had no recourse, on failure of the further legal proceedings required, than to pay over the amount retained, at the claimant’s suggestion, to the persons representing this company, between whom and them there was direct privity of contract.
    But the theory of the brief, that property, circumstanced as this, was converted by its own use by the government, is not supported by any substantial law proposition. An admiralty court, with its distinguishing features, was open to this claimant; but he preferred, by a proceeding in rem, to follow the New York lien law, (4 New York Statutes, 653,) and to arrogate for it what belonged to courts of admiralty, in the exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction by the provision of the ninth section of the judiciary act, saving to suitors in all cases a right of a common law remedy where the common law is competent to give it. (1 Stat. L., p. 77.) It is maintained throughout the legal propositions of the claimant’s brief that the State tribunals have a concurrent jurisdiction under their lien laws with admiralty courts. This proposition the solicitors controvert, and deny claimant’s right to recover in this action.
    Had the claimant in this case consummated his remedy under the New York statutory lien law, it would have proved null and void on a plea to the jurisdiction of the State court, and its final submission to the Supreme Court of the United States.
    By section two of the third article of the Constitution of the United ■ States, the judicial power of the United States is extended to all pases of admiralty and maritime jurisdiction. There was no common law remedy for this claimant, as against these steamers, and hence he was not brought within the saving of section nine of the judiciary act of 1789, (1 Stat. L., p. 73.) The State lieu laws were not common law remedies, though under the attachment laws of most of the States they might seem closely analogous to the attachment proceeding. The sole subject of inquiry before the Court of Claims is, whether, had Mr. Calkin issued the attachment and continued to prosecute the alleged lien out of the New York State court, and not failed therein, it was a case within the jurisdiction of admiralty courts, and one legally and constitutionally to be enforced hy them. If so, the claimant has no standing in this court, and the petition must be dismissed.
    It was a claim for materials furnished and work done on domestic vessels at the home port. That a contract of this nature was a maritime one, within admiralty jurisdiction, need not be discussed. (1 Kent’s Comm., 379; 3 Kent’s Comm., 168; Steamer St. Lawrence, 1 Black, 524; U. S. Supreme Court Rule, 1858; 21 How.)
    There was no attempt in this case at admiralty process in personam, while an attaching creditor would have had that remedy, since in eases of domestic vessels for supplies at home ports the United States courts do not now issue process in rem. The process in personam, by the abrogation of the 12th rule of admiralty practices, became the established mode within the rule of 1858, the mere form of process not being supposed to touch the jurisdiction of a court. (1 Black, pp. 524, 526, 529.)
    In the General Smith, (4 Wheat., 438,) while it is declared by Mr. Justice Story that in denying process in rem for chandlery and such like stores, at home ports, it did not follow there was not the process in personam. “No doubt,” he says, “is entertained by the court that the admiralty possesses a general jurisdiction in cases of material-men, and if this had been a suit in personam there would not have been any hesitation in sustaining the jurisdiction of the district court.” The claimant, if with any remedy, had it then in admiralty, and the warrant carried out by him under the New York lien law was void, so that no right could have accrued to him under it.
    The admirable analysis of the law, in its past phase and its present fixedness, by Mr. Justice Miller, in the case of The Hiñe v. Trevor, and the opinion of the Supreme Court, delivered by Mr. Justice Field, in the Moses Taylor, puts at rest all doubt in regard to any fancied obligation on the part of the United States towards the claimant, Mr. Calkin. The retainer of Mr. Calkin by Mr. Esler was for general services in his occupation as plumber, and the ruling in Read v. The Null of a New Brig, (1 Story, 244,) excluded the idea of any agreement, expressed or implied, relating to any particular vessel or a reserved lien thereon for his labor or the materials furnished.
   LoRING, J.,

delivered the opinion of the court:

The petitioner claims of the United States $5,266 29, with interest thereon, as an amount due him, aud for which he held three several liens on three steamboats purchased by the United States, and the court finds the facts to be—

That in the fall of the year 1861, the Neptune Steamship Company, through their agent, William P. Williams, contracted with Joseph B. Van Dusen to build three steamships, the Glaucus, the Neptune, and the Galatia. The ships were built and finished in the port of New York.

Mr. William P. Williams, in behalf of the Neptune Steamship Company, contracted with Henry Esler, of New York, a steam-engine and boiler manufacturer, in 1861 or 1862, to build machinery for the three boats, and he did so.

Henry Esler employed the petitioner, a coppersmith in New York, to do the coppersmith’s work on the machinery of the three steamboats, and the petitioner did it at the times and to the extent and amounts set forth in the three bills annexed, and marked respectively A, B, and C ; and these bills exhibit the materials and labor furnished and the just charges therefor, amounting in all to the sum of $5,266 29.

Before the said three steamers were finished, or. the work of the petitioner upon them completed, they were purchased by the United States, and taken by them into their possession and adopted and used as war steamers.

The petitioner, immediately after his employment on said steamers was completed, and at the several times indorsed on said bills respectively, and within six months after said debts were contracted, filed specifications thereof, under oath, in the office of the clerk of the county of New York, and clerk of the supreme court for said county, under the statute of the State of New York, passed April 24, 1862, c. 482, entitled “An act to provide for the collection of demands against ships and vessels,” and giving a lien thereon, and prescribing the mode of enforcing it in rem.

And thereafter, and in the month of August, 1863, the petitioner notified the United States, in writing, of his claims of lien on said three steamers, and of the filing of specifications thereof as above set forth.

And thereafter the United States, after receiving the said notice, paid the full price of said three steamers to the Neptune Steamship Company, by the hands of Isaac Henderson, treasury agent of the United States, who, for his security against the claims of the petitioner, required and received from William P. Williams five thousand dollars, whicli the said Henderson afterwards surrendered and returned to said Williams, on receipt of his bond of indemnity, with sureties.

Before tlie steamers were completed Esler failed in business, and became unable to pay the bills of the petitioner, who never demanded payment of Esler.

Opinion.

Upon the facts stated it was claimed for the petitioner that he had a valid lien on the three steamers when the United States purchased them, and that they were informed of the lien before they paid for them, and are now liable to him for its amount; because no suit or legal proceeding could be had against the United States except in this court.

And against this claim, it was contended for the United States that the petitioner had no valid lien and no remedy under State laws ; and none if not a suit in .personam in the admiralty court, whose jurisdiction of maritime contracts is exclusive.

In English and American law a contract for building and fitting a vessel, as distinguished from a contract for repairs and supplies, is not a maritime contract, and therefore is a subject not of admiralty jurisdiction, hut of local law merely.

This was decided by the Supreme Court for this country in 1857, in the case of the People’s Ferry Company v. Beers, 20 Howard, 393, and it was reaffirmed in 1859, in the case of Roach et al. v. Chapman et al., 22 Howard, 129. In the latter case'll mechanic who had furnished engines, &e., in the construction of a steamer built in Kentucky, claimed a lien on her under the law of that State, and libelled her in the port of New Orleans, in the district court of Louisiana. The district court sustained the claim, but the circuit court reversed the decree and dismissed the libel for want of jurisdiction. An appeal was taken to the Supreme Court, which affirmed the judgment of the circuit court, and said “ a contract for building a ship, or supplying engines, timber or other materials for her construction, is clearly not a maritime contract.”

“ Any former dicta or decisions which seemed to favor a contrary doctrine were overruled by this court in the case of The People’s Ferry Company v. Beers, 22 Howard, 400.”

This last remark refers to decisions of district courts in which the doctrine, that a lien given by State law on a maritime contract might be enforced in admiralty and in rem in the courts of the United States, had been extended to contracts for the building or construction of a vessel. Some of these cases are cited in 20 Howard, 393, by the Supreme Court, which says of -them, “ thus far, however, in our judicial history no case of the kind has been sanctioned by this court.”

Upon these authorities, therefore, the lien claimed here is upon a contract not maritime, and therefore within the jurisdiction of State laws, and the question is whether it is a valid lien under the statute of New York, 1862, c. 482, relied upon and cited by the petitioner.

That statute gives the lien in these words: “ Whenever a debt, amounting to fifty dollars or upwards, as to a sea-going or ocean-bound vessel, * * * shall be contracted by the master, owner, charterer, builder, or consignee of any ship or vessel, or the agent of either of them.”

State statutes giving liens like that claimed here are “ stride juris” and are to be strictly coustrued, and liens claimed under them must be brought within their terms.

The petitioner claims that his contract was with “ the builder” of the three steamers. But the evidence shows that Mr. Van Dusen, ship-builder, was the builder of the- steamers upon a contract with their owners, the Neptune Steamship Company,- and that the petitioner’s contract was with Mr. Esler, steam-engine and boiler manufacturer, who, on a contract with the owners of the steamers, furnished machinery for them. But by this, Mr. Esler was no more their builder than the painter who painted them was their builder. And Mr. Esler was not the agent of the owners to contract with the petitioner, for there is nothing in the evidence to show or suggest that Mr. Esler was .the agent of anybody for anything; or anything more than a contractor to furnish machinery, who employed such sub-contractors as he pleased on his own account and responsibility, and not otherwise.

And the court finds as a conclusion of law that the petitioner had no lien-on the steamers G-laucus, Neptune, and Galatia, or either of them, when they were purchased by the United States, because as to each of the said steamers his contract for materials and labor thereon was not-with its. master or owner, charterer, builder, or consignee, or the agent of -either of them.

Judgment is to be entered for the defendants.

Casey,-C.-J.,

concurring :

I concur in the conclusion that the claimant cannot recover, without committing myself to all the reasons and arguments, upon which it is founded, inr the. opinion read by my brother Lo ring.  