
    In the Matter of the Attachment of Freeman B. Bird and Freeman B. Bird, Jr., v. The Steamboat Josephine, her Tackle, Apparel and Furniture.
    A' proceeding against a steamer by name, authorized by Laws of 1863, chapter 483, is a proceeding in the nature, and with all the incidents, of a suit in admiralty.
    The District Court of the United States are, by the Constitution and laws thereof, vested with exclusive original cognizance in all cases involving admiralty and maritime jurisdiction.
    State laws conferring jurisdiction in such cases upon State courts, are in conflict with the Constitution and laws of the United States, and void.
    On the 10th day of December, 1866, Freeman B. Bird and Freeman B. Bird, Jr., the attaching creditors in the above entitled proceeding, filed specifications of lien against the steamboat Josephine, her tackle, etc., pursuant to the provisions of the act of the legislature of the State of Few York, entitled “An act to provide for the collection of demands against ships and vessels, passed April 24,1862 ” (Laws 1862, chap. 482), for supplies furnished by them at the city of New York to the said steamboat, between the 1st day of June, 1866, and the 5th day of December, 1866. During the said time the steamboat was enrolled at the custom house in the city of New York, and was engaged in running between the port of New York and the county of Monmouth, in the State of Few Jersey. The residence of the owner of the steamboat does not appear. On the 11th day of April, 1867, the attaching creditors duly obtained from Mr. Justice Barnard, a justice of the Supreme Court, a warrant of attachment against the said steamboat, to enforce their said lien, and thereupon on this 12th day of April, 1867, the sheriff of ithe city and county of New York seized the said steamboat, her tackle, etc., and made his return of such seizure on the 12th day of April, 1867. On the 4th day of May, 1867, upon an affidavit setting forth the proceedings of the said attaching creditors, the nature and amount of their claim, and the belief, that, by a late decision of the Supreme Court of the Dnited States, it was adjudged that the State courts had no jurisdiction to enforce a lien based upon claims of the character of the said attaching creditors, and that this power to enforce such lien was vested exclusively in the courts of admiralty jurisdiction of the United States, an order to show cause-was duly granted by his honor, Justice Barnaed, upon motion of the attorney for the owners of said steamboat, directing that the attaching creditors show cause before him on the 10th day of May, 1867, why the said warrant of attachment therefore issued by him on the 11th day of April, 1867, should not be set aside and vacated, and staying in the mean time all proceedings on the part of the said attaching creditors. Thereafter upon a hearing of the said order to show cause, the said justice rendered his decision, and made an order which was duly entered, vacating and discharging the said warrant of attachment, upon the ground that the officer issuing the said warrant had not jurisdiction therefor, the provisions of the said statutes conferring such power being in contravention of the Constitution of the United States, and of the act of congress vesting jurisdiction in admiralty cases, exclusively of the courts of admi„ralty of the United States. The said order vacating and discharging the said warrant of attachment having been duly entered, the said attaching creditors on the 19th day of June, 1867, appealed from the said order to the General Term of the Supreme Court. The said appeal was argued on the 18th day of November, 1867, and thereafter the said General Term rendered a decision reversing the said order of the 7th of June, 1867, and an order was thereupon duly entered on the 10th day of February, 1868, in all things reversing the said order of June 7, 1867, and thereupon the owner and claimant of the said steamboat Josephine, her tackle, etc., duly appealed from the last mentioned order to this court.
    
      Charles A. Rapallo, for the appellant.
    
      Pinckney & Spink, for the respondents.
   Mason, J.

The question presented for adjudication is the constitutionality of this act of the legislature, of April 24, 1862, entitled “An act to provide for the collection of demands against ships and vessels.” This statute declares, that, whenever a debt, amounting to fifty dollars or upward as to a sea-going or ocean-bound vessel, or amounting to fifteen dollars or upward as to any other vessel, shall be contracted by the master, owner, charterer, builder or consignee of any ship or vessel, or the agent of either of them, within this State, for either of the following purposes: first, on account of work done or materials or other articles furnished in the State for or toward the building, repairing, fitting, furnishing or equipping such ship or vessel; second, for such provisions and stores furnished within this State as may be fit and proper for the use of such vessel at the time when the same were furnished,—such debt shall be a lien upon such vessel, her taclcle, appa/rel and furniture, amd shall be preferred to all other Hens thereon, except mariners' wages. The third, fourth and fifth subdivisions of the same section provide in the same manner for a large class of other debts and claims against the vessel, and declare them liens in the like manner and to the'same extent. The statute provides for a direct proceeding in rem against the vessel, by seizing the same to enforce such liens, and directs how the proceedings shall be conducted; provides for a publication in some newspaper printed in the county, etc., and unless the warrant shall be discharged, directs a sale by the sheriff of the county of the vessel seized, her tackle, etc. The sheriff is to return to the officer granting the order his proceedings under the same, and the proceeds, after deducting his fees, etc.; and the statute provides for the distribution of the funds, etc.

The second section of the third article of the Constitution, of the United States, among other things, declares that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. The ninth section of the act of congress, approved September 24, 1789, commonly called the judiciary act, declares that the District Courts of the United States shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it (1 United States Statutes at Large, 77). It will be seen, therefore, that the judicial power of the United States extends to all causes of admiralty and maritime jurisdiction, and this act of congress declares that the District Courts of the United States shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving only a concurrent common law remedy to suitors where the common law .is competent to give it.

The terms “ admiralty and maritime jurisdiction,” according to etymology and received use, extend to all things done upon and relating to the sea, to transactions relating to commerce and navigation, and to damages and injuries upon the sea, and all maritime contracts, torts and injuries. (De Lovio v. Boit, 2 Gall. 468; Dunlap’s Adm. Pr. 41, 42.) This delegation, then, in the judiciary act of 1789, giving to the District Courts of the United States the exclusive cognizance of all civil causes, of admiralty and maritime jurisdiction, embraces and comprehends all maritime contracts, torts and injuries. (De Lovio v. Boit 2 Gall. 474; Dunlap’s Adm. Pr. 43.) The civilians and jurists agree that charter-parties, affreightments, marine hypothecations, contracts for marine service in the building, repairing, supplying and navigating ships, are, among other things, embraced in the term maritime contracts.” (Dunlap’s Adm. Pr. 43; 2 Gall. 474.)

The general terms of the grant of judicial power in the Constitution of the United States to the federal courts in all causes of admiralty and maritime jurisdiction has rendered it difficult to define the exact limits of this power in .the federal courts. This difficulty has arisen from, the following considerations: At the time of the adoption of the Constitution of the United States, courts of admiralty and maritime jurisdiction had been established in all commercial and maritime nations, differing, however, materially in different countries in the powers and duties confided to them. The maritime courts of the continent of Europe formerly included jurisdiction of all controversies respecting freight, of damages to goods shipped, of the wages of mariners, of the partition of ships by a public sale, of jettison, of commissions or bailments to masters and mariners, of debts contracted by the master for the use and necessities of his ship, of agreements made by the master with merchants, or by merchants with the master, of goods found on the high seas or on the shore, of the armament or equipment of ships, galleys or other vessels, and generally of all other contracts declared in the customs of the sea. (2 Gall. 400, Dunlap’s Adm. Pr. 1.) This jurisdiction, at the time of the adoption of our federal Constitution, differed very essentially in the different States, and in England, to which we have been accustomed to look for the boundaries and jurisdiction of the common law courts. The courts of admiralty, after a struggle and severe contest with the common law courts for nearly two centuries, had, at the time above referred to, — the adoption of our federal Constitution,— been greatly shorn of their ancient jurisdiction.

The frequent prohibitions upon their jurisdiction by the common law courts, maintained as they were by a zeal and pertinacity seldom equaled, resulting in collisions so severe, the admiralty, being compelled to yield under the common law prohibitions issued against them, on several occasions sought redress in petitions to the King, which resulted in agreements or stipulations as to their jurisdiction, and then again complaints from the admiralty that these stipulations were violated in the granting of new prohibitions, and then came new stipulations.

The result of those controversies was essentially to drive the admiralty courts, in their jurisdiction, entirely from the land .to sea, while the common law courts asserted and maintained complete concurrent jurisdiction of all causes cognizable in admiralty, except prize cases. The limited powers now exercised by the courts of admiralty in England have not been maintained without the most severe struggle, and are held by "our federal courts not to be controlling as to the jurisdiction of our admiralty courts in this country. If we turn from the admiralty courts in England to the American colonies, it will be seen that the admiralty courts in the colonies before the American Revolution possessed very extensive admiralty jurisdiction, more so than the courts of admiralty in England, and yet they were not uniform in the colonies. They were generally ctinferred by commissions from the King. The commission issued to the governor of New Hampshire was most extensive. And the vice-admirality court in Massachusetts had jurisdiction far more extensive than that of the admiralty courts in England. (2 Gal. 471, 480.)

It was in this state of confusion as to admiralty jurisdiction that the Constitution of the United States was adopted, conferring in these general terms judicial power upon the federal courts in all causes of admiralty and maritime jurisdiction. There have been other difficulties which our courts have had to encounter in defining with precision the boundaries of the jurisdiction of the admiralty courts of this country, arising from the complex character of our government, where separate and distinct specified powers of sovereignty are exercised by the United States and a State, independently of each.other, within the same territorial limits. This complex character of our government has led the United States courts in some cases into a novel and very ununiform system of admiralty administration, by allowing and sustaining proceedings in rem wherever the local law or statutes of a State gave a lien upon the property, instead of looking to the maritime law for its guide. (Gen. Smith, 4 Wheat. 438; 1 Sumner, 74, 79; 1 Story’s C. C. 68; id. 246; The Steamer St. Lawrence v. Meyer et al., 1 Black, 523.) This practice was made a rule of co.urt in 1844, which was abolished by rule in 1858, and since that time the courts have refused to enforce such liens in rem where they rested solely on State statutes. The question presented in this case involves a conflict between the State and federal governments. The general government has no power or jurisdiction except that conferred by the Constitution itself. The extent of the power withdrawn from the States and vested in the general government, as we have seen, extends to all “ causes of admiralty cmd maritime jurisdiction,” and the extent of the power depends upon a proper construction of this constitutional provision. Its terms are certainly indefinite, arising from the considerations to which we have above referred. Its limits can only be ascertained by reference to what cases were understood in this country, and by the framers of the Constitution, to be cognizable in the maritime courts when the Constitution was formed, for what was meant by it then as the framers then understood it, is the true criterion by which it is to be construed. Hany of the framers of the Constitution partieir. pated in the passage of the judiciary act of 1789, which conferred upon the District Courts of the United States exclusive cognizance of all civil causes in admiralty and maritime jurisdiction, saving to the common law courts of the States in all cases the right to administer common law remedies where the common law was competent to give it.

The construction put upon this constitutional provision, therefore, by the framers of the judiciary act of 1789, is that the ma/ritime jurisdiction conferred upon the federal courts in all admiralty and maritime causes is exclusive, and that there is no reserved concurrent jurisdiction saved to the States, and such is now the settled construction put upon this provision of the Constitution by the Supreme Court of the United States. The proceedings in Tern under this State statute of 1862, in the case under consideration, cannot be sustained, as the statute itself is unconstitutional if this is to be regarded as a maritime contract, of which a court of admiralty has jurisdiction. This question has been expressly decided by two recent decisions of the Supreme Court of the United States. In the case of The Moses Taylor (4 Wallace U. S. 411), a statute similar to our own was held to be in conflict with the Constitution of the United States; that the ninth section of the judiciary act of 1789, which vests in the District Courts of the United States exclu sive cognizance of all civil causes of admiralty and maritime jurisdiction, is constitutional. It was expressly held in that case that a statute of California, similar to our own, which authorizes proceedings in rem against vessels, for causes of action cognizable in admiralty to that extent, attempts to invest those "courts with admiralty jurisdiction; that the clause in the ninth section saving to suitors the right of a common law remedy, when a common law remedy is competent to give it, does not save a proceeding im, rem as used in the admiralty courts.

These principles were all reaffirmed in the case of The Hine v. Trevor (4 Wallace, 556), in which the State statutes of' Iowa, which are very much like ours, authorizing the attachment of vessels, were held invalid, as being in conflict with the act of congress conferring exclusive admiralty and maritime jurisdiction upon the District Courts of the United States. The latter was a, case of maritime tort for a collision on the Mississippi river at or near St. Louis, and the vessel was seized while lying at the landing at Davenport, in the State of Iowa.

The claim in the case under consideration was for supplies furnished to the steamer Josephine, a domestic vessel, and in her home port, but the supplies were furnished to her while she was running from the port out of the bay of New York and around to Monmouth county in the State of New Jersey. Now, assuming that New York city was the home port of this vessel, there was no lien under the maritime law which could be enforced in rem in a court of admiralty. (The Gen. Smith, 4 Wheat. 438; McGuire, Claimant, v. Stephen Card, 21 How. 248 ; The Levi Dearborn, 4 Hall’s Law Journal, 97; 2 Gall. 483 ; The Two Friends, Bee’s Adm. 433; The Robert Fulton, 1 Paine, 627; The President, 4 Wash. C. C. 453 ; Peyroux v. Howard, 7 Peters, 341; Dunlap’s Adm. Pr. 54.) And where a State statute gives such lien as we have seen, our courts of admiralty will not enforce it. (Thomas McGuire v. Stephen Card, 21 How. 248; The Steamer St. Lawrence, 1 Black, 522.) If this vessel was owned in New Jersey, as is suggested by the appellant’s counsel in his brief,, then the maritime law gives a lien for these supplies, and proceedings im, rem in admiralty may be taken to enforce it. (The Gen. Smith, 4 Wheat. 438; The Jerusalem, 2 Gall. 349 ; The Sandwich, 1 Peters’ Adm. 233, note; The Eagle, Bee’s Adm. 78 ; The Aurora, 1 Wheat. 105 ; Dunlap’s Adm. Pr 54.) The case, as I understand it, admits this to he a New York vessel, and that these supplies were furnished to her in her home port; and, consequently, there was no lien upon the vessel, and no proceedings in rem could be taken in the admiralty courts. It remains to be considered whether our courts of admiralty had jurisdiction in a suit in personam to enforce payment of this claim for supplies. There can be little doubt on this subject, and I will content myself by simply referring to the following authorities in our own courts, which fully sustain it: The Gen. Smith, 4 Wheat. 438; 12 id. 611; 7 id. 395 ; 10 id. 473; 6 How. U. S. 344; 3 Mason, 94; 10 Wheat. 473; 1 Sumner, 157; 4 Mason, 196.

The admiralty jurisdiction, in a suit inpersonam, does not depend upon the question of lien. (Marshall v. Bazin, 7 N. Y. Leg. Obs. 342; 1 Abbott’s Adm. 1; Blatchford & H. 175.) The right of admiralty to proceed in rem, is cumulative in many cases, and does not exclude the remedy in personam. (Bevor v. The Fair American, 1 Peter’s Adm. 87.) As it is settled by the decisions of the Supreme Court of the United States in the cases referred to above (The Moses Taylor, 4 Wallace, 411; The Hine v. Trevor, id. 555, 568), that exclusive cognizance conferred upon the District Courts of the United States, excludes all jurisdiction from the State courts, except such concurrent remedy as is given by the common law, it follows that these proceedings in- rem, under the statutes of this State, cannot be sustained. This proceeding against this steamer by name, authorized by the, statute of 1862, is a proceeding in the nature and with all the incidents of a suit in admiralty. The characteristic feature of the proceedings under this statute is, that the vessel proceeded against is itself seized and impleaded as the defendant, and is adjudged and sentenced accordingly, which is just the proceeding in a court of admiralty in proceedings m rem. These views lead to the reversal of the order appealed from, and the affirmance of the order of the Special Term or of the judge in chambers.

All the judges concurring, except Grover, Clerke and Miller, JJ., Judgment reversed.  