Joseph P. Bradley

“ Unless the principles embodied in the ordinances, treatises, sea laws, digests, and codes adopted by the countries where the civil law prevails, constitute, to the extent that they concur in the rule of decision, the general maritime code as known in judicial investigation, it is difficult even to imagine what does, as it is known to every legal reader of judicial history that those countries never convened, as in a congress of nations, and ordained a system of maritime regulations which can properly be regarded as the standard authority upon that subject. ”

“ A solemn judgment relied on so long by the commercial community as a rule of property and the law of the land, ought not to be overruled except for very cogent reasons. If, however, in the progress of investigation, and with the new lights that have been thrown upon the whole subject of maritime law and admiralty jurisdiction, a more rational view of the question demands an adverse ruling in order to preserve harmony and logical consistency in the general system, the court might, perhaps, if no evil consequences of a glaring character were likely to ensue, feel constrained to adopt it. ”

“ It cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed. The scope of the maritime law, and that of commercial regulation are not coterminous, it is true, but the latter embraces much the largest portion of ground covered by the former. Under it Congress has regulated the registry, enrolment, license, and nationality of ships and vessels ”

“ And thus it happens, that, from the general practice of commercial nations in making the same general law the basis and groundwork of their respective maritime systems, the great mass of maritime law which is thus received by these nations in common, comes to be the common maritime law of the world. ”

“ The peculiar character of the commerce which engages the ships and vessels of the United States-there is no such thing as a vessel of a State-affords additional reason why the law respecting supplies to ships and vessels should be uniform throughout the United States, and at the same time in harmony with the general maritime law. ”

“ In the absence of such a rule it is manifest that the material-man could resort to the common-law lien acquired by retaining the possession of the ship, whence disastrous results must often follow. A rule resting upon such ground was of course made applicable to the demand of the material-man, the necessity for whose services is in most cases as cogent as the need of a crew, or a pilot, or a wharf. Therefore, it came to be understood to be general law, that the material-man acquired a lien by the furnishing of necessaries to a ship, whether domestic or foreign. ”

“ To ascertain, therefore, what the maritime law of this country is, it is not enough to read the French, German, Italian, and other foreign works on the subject, or the codes which they have framed; but we must have regard to our own legal history, constitution, legislation, usages, and adjudications as well. The decisions of this court illustrative of these sources, and giving construction to the laws and Constitution are especially to be considered; and when these fail us, we must resort to the principles by which they have been governed. ”

“ Contracts or claims for service or damage purely maritime and touching rights and duties appertaining to commerce and navigation are cognizable in the admiralty. Whenever a maritime lien arises in such a contract or claim, as in controversies respecting repairs made or supplies furnished to a ship, or in case of collision, the libellant may pursue his remedy, whether it be for a breach of a maritime contract or for a marine tort, by a suit in rem against the vessel, or by a suit in personam against the master and owner in cases where they are jointly liable for the alleged default. ”

“ Whilst it is true that the great mass of maritime law is the same in all commercial countries, yet, in each country, peculiarities exist either as to some of the rules, or in the mode of enforcing them. ”

“ On the other hand a maritime lien does not in any manner depend upon the possession, as it is a right affecting the thing itself, which gives a proprietary interest in it and a right to proceed against it to recover that interest. Jurisdiction exists in the admiralty in all such cases, and the rule is that wherever there is a maritime lien upon the property it adheres to the proceeds in case of sale and follows the same into whose hands soever they may go, and the proceeds under such circumstances may be attached in the admiralty. ”

“ Argument to show that a contract to furnish repairs and supplies, whether to a domestic or foreign ship, is a maritime contract, is hardly necessary, as there is not a well-considered decision to the contrary in our language, and the twelfth admiralty rule, throughout all its mutations, from the time it was first adopted to the present time, has always given the District Courts jurisdiction over such contracts either in rem or in personam. ”

“ By the civil law every one who repaired or supplied a ship had a privilege or lien upon the ship herself for the amount of the debt thus contracted, and for centuries the admiralty courts of that country exercised such jurisdiction, in respect to which the best text writers say that the lien or privilege extended to all ships and vessels, without any distinction between foreign and domestic ships. ”

“ The difference between them in a matter that concerns only their own citizens, in each case, cannot seriously affect the harmony and consistency of the common maritime law which each adopts and observes. ”

“ Every man, says Abbott, [40] who had repaired or fitted out a ship, or lent money to be employed in those services, had by the law of Rome, and still possesses in those nations which have adopted the civil law as the basis of their jurisprudence, a privilege or right of payment in preference to other creditors upon the value of the ship itself without any instrument of hypothecation, or any express contract, or agreement, subjecting the ship to such a claim. ”

“ Without any explanation it is apparent from the words of the ordinance that it vests in the court thereby created full jurisdiction over all maritime cases of contract, covenant, or other matters of equity, reserving to the suitor the right to choose a common-law remedy in cases where the common law is competent to give it. Eighteen years later the charter was granted to the province of Massachusetts Bay, and by that charter all such jurisdiction, power, and authority were reserved to the crown, to be exercised by virtue of commissions issued under the great seal. ”

“ State-lien laws are too complicated and pregnant with too many conditions and special regulations in their machinery to be administered in a court of admiralty, even if it be competent for this court to provide for the exercise of such a jurisdiction by a District Court sitting as a court of admiralty. ”

“ Frequent credit is indispensable in cases of emergency, and all experience shows that in many cases it cannot be obtained unless the merchant, provision-dealer, material-man, or ship-chandler is allowed a lien on the ship which may be enforced by a libel in rem, as the master and owner are often of too doubtful responsibility and too frequently become insolvent to enable the master to procure such necessaries without other security. ”

“ On examining the record, however, it appears that the appellees never caused their lien (if they had one) to be recorded according to the requirements of the State law. By the one hundred and twenty-third article of the constitution of Louisiana, adopted in 1869, it is declared that no 'mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated.' And an act of the legislature, passed since that time, adopts the very terms of the constitutional provision. ”

“ Wherever a maritime lien exists, it gives a claim upon the ship a jus ad rem to be carried into effect by legal process, and the claim travels with the ship into whosesoever possession she may come, and is enforced in the court of admiralty by a proceeding in rem. ”

“ Usually a maritime lien is the proper foundation of a proceeding in rem, as such process is seldom or never appropriate for any purpose except to enforce the inchoate interest created by such a lien, and the law appears to be well settled that where a proceeding in rem is the proper pleading there a maritime lien exists in the thing which it is the office of such a process or pleading to perfect. ”

“ Commentators everywhere agree that by the civil law and the law of those countries which have adopted its principles, a lien upon the ship is given without any express contract, to those who repair her or furnish her with necessaries, either at home or abroad. ”

“ Apply these suggestions to the different localities of navigation, and it will be easy to see that such rules of decision must lead to unparalleled mischiefs and perplexities. Commerce requires more sensible rules of decision, and those whose interests are embarked in such perilous pursuits are entitled to better protection than such rules of decision afford. ”

“ It may be added that the existence of secret liens is not in accord with the spirit of our commercial usages, and a uniform law by which the liens in question should be required within a reasonable time to be placed on record in the custom-house like mortgages, and otherwise properly regulated, would be of great advantage to the business community. ”

“ Especially is this the case on the outside boundaries of the law, where it comes in contact with, or shades off into the local or municipal law of the particular country and affects only its own merchants or people in their relations to each other. Whereas, in matters affecting the stranger or foreigner, the commonly received law of the whole commercial world is more assiduously observed-as, in justice, it should be. No one doubts that every nation may adopt its own maritime code. France may adopt one ”

“ Necessaries, whether for repairs or supplies, are usually ordered by the master, and the best text-writers say that his authority is sufficient to cover all such repairs and the supply of such provisions and other things as are necessary to the due employment of the ship, and that it extends even to the borrowing of money in the absence of the owner, if ready money is required for the purpose of the same employment. ”

“ This account of the maritime law, if correct, plainly shows that in particular matters, especially such as approach a merely municipal character, the received maritime law may differ in different countries without affecting the general integrity of the system as a harmonious whole. The government of one country may be willing to give to its citizens, who supply a ship with provisions at her home port where the owner himself resides, a lien on the ship ”

“ In many of the States, say the court, the laws were found not to harmonize with the principles and rules of the maritime code. Certain conditions and forms of proceeding were required to obtain the lien, and it was generally declared to be forfeited or regarded as waived after the lapse of a certain time, or upon some future contingency. ”

“ Contractors of the kind collect their materials very largely from the forests and the mines, and until the ship is launched there is no necessary connection between the subject-matter of the contract and her subsequent employment as a vehicle of commerce and navigation. ”

“ For in our country we have great inland seas, bordering on different States of the Union, with different laws, and also on foreign territory, which are navigable by vessels owned by residents of different States, and also by foreign vessels proper. ”