es in a state court was held not a proceeding in rem, though accompanied by an attachment; for it was still against the owner by name, not against the vessel by name, and the attachment was only an incident.55 On the other hand, a statute authorizing a proceeding in rem directly against the vessel, in which any notice to the owners was only an incident, and only given if known, was held unconstitutional.56

But, though the courts decided that state legislation could not confer on state courts the right to enforce an admiralty claim against a vessel by pure proceedings in rem, they also decided that, as it was in its nature a maritime cause of action, the United States courts could enforce it. In other words, the effect of these decisions was that a state statute could create a right to proceed in rem on a maritime cause of action where none had previously existed, and that the federal courts, finding such a maritime right in existence, no matter how it arose, would enforce it.

It is analogous to the principle that an admiralty court will enforce a lien given by a foreign law, though, if the cause of action had arisen in the jurisdiction of the forum, no lien would have been created."7

The power of state statutes to affect admiralty jurisdiction has been greatly restricted by some late decisions of the Supreme Court. In Southern Pacific Co. v. Jensen it was held that the Workmen's Compensation Law of New York did not and could not take away the right of an employé injured on waters within the jurisdiction of the admiralty to pursue the remedies given him by admiralty law. The court says:

55 Garcia y Leon v. Galceran, 11 Wall. 185, 20 L. Ed. 74; Rounds v. Cloverport Foundry & Machine Co., 237 U. S. 303, 35 Sup. Ct. 596, 59 L. Ed. 966.

56 Glide, 167 U. S. 606, 17 Sup. Ct. 930, 42 L. Ed. 296.

57 Maggie Hammond, 9 Wall. 435, 19 L. Ed. 772; Havana, 1 Spr. 402, Fed. Cas. No. 6,226.

"No such legislation is valid if it contravenes the essential purpose expressed by an act of Congress, or works material prejudice to the characteristic features of the general maritime law, or interferes with the proper harmony and uniformity of that law in its international and interstate relations." 58

In Union Fish Co. v. Erickson" it was held that the contract of the captain of a ship is maritime, and could not be rendered void by a state statute of frauds requiring contracts to be in writing that were not to be performed within a year.

The Twelfth Admiralty Rule

By the act of August 23, 1842 (5 Stat. 516), Congress conferred upon the Supreme Court power to prescribe the forms and modes of process and proceeding and the practice generally in equity and admiralty for the federal courts of original jurisdiction. Acting under this authority, the court at December term, 1844, promulgated the admiralty rules.

The twelfth of these rules provided: "In all suits by materialmen for supplies or repairs, or other necessaries, for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceeding in rem shall apply to cases of domestic ships, where, by the local law, a lien is given to materialmen for supplies, repairs or other necessaries."

This was a mere affirmation of the then existing practice. It remained in this form until 1859, when the court, impressed by the diversity in the state statutes which it had

58 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900. See, also, Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 S. Ct. 501, 62 L. Ed. 1171; Corsica Transit Co. v. W. S. Moore Grain Co., 253 Fed. 689, 165 C. C. A. 283; Western Fuel Co. v. Garcia (C. C. A.) 255 Fed. 817.

59 248 U. S. 308, 39 Sup. Ct. 112, 63 L. Ed. 261.

undertaken to recognize, amended it so as to read as follows: "In all suits by materialmen for supplies, or repairs, or other necessaries for a foreign ship, or for a ship in a foreign port, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam. And the like proceeding in personam, but not in rem, shall apply to cases of domestic ships, for supplies, repairs, or other necessaries."

The effect of this was to take away the right to proceed in rem for necessaries furnished to domestic vessels, though given by a state statute. And in the St. Lawrence, decided soon afterwards, Chief Justice Taney justified this action by saying that the question whether a creditor should proceed in rem or in personam to enforce a maritime right was a question of procedure, which the court. might allow or abolish at its pleasure.

This rule remained in this form till May 6, 1872, when the court again amended it so as to read as follows: "In all suits by materialmen for supplies or repairs or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam." The effect of this was to give exactly the same procedure in the case of domestic and foreign vessels.

It does not mention the existence of a state statute as requisite to the enforcement of a lien against a domestic vessel. If, as Justice Taney says, it is a mere question of procedure which the court can give or take away at will, it is difficult to see why the language of this rule did not give the right independent of state statutes, though the decisions have settled that prior to the act of June 23, 1910, in case of domestic vessels it was only enforced when given by a state statute. But, in the great case of the LOTTAWANNA,1 Mr. Justice Bradley said that a right to proceed in rem was not a mere right of procedure, but a

01 Black, 522, 17 L. Ed. 180. 1 21 Wall. 558, 22 L. Ed. 654. HUGHES, ADM. (2D. ED.)-8

right of property which the court by rule could not give or take away, and that the amendment of 1872 was not intended to give any lien, but merely to remove all impediments in enforcing such as already existed. This being so, the kaleidoscopic changes of the twelfth rule only created confusion. Prior to its enactment in 1844, the right given by state statutes had been enforced, and now, irrespective of the act of June 23, 1910, the rule, as construed by its makers, creates no new right, but merely removes impediments in enforcing a right already existing.

The fact is that the whole doctrine is unsatisfactory and illogical in its development. Its difficulties commenced when the court, following the narrow views of the English law, denied that any right of procedure in rem for necessaries existed in the case of domestic vessels. Any one who reads the dissenting opinion of Mr. Justice Clifford in the LOTTAWANNA CASE will be convinced that by the general principles of maritime law there was no distinction between foreign and domestic vessels, and that it would have saved much confusion and litigation if the court had promptly come out and corrected its error, as it did on the tide-water question.

It has been corrected at last by the act of June 23, 1910, but it took an act of Congress to do it.

Mr. Justice Bradley, in the majority opinion of that same case, is forced to say that this idea of a state giving an additional remedy to an admiralty contract and of a federal court recognizing and enforcing it is anomalous. He attributes it to the fact that the state admiralty courts prior to the Constitution recognized and enforced it, and that the new federal judges, many of whom had been state judges, continued the same jurisdiction, without recognizing their altered relations.

Perhaps a stronger reason is that state statutes only incidentally affecting commerce, like pilotage laws, quarantine laws, and laws authorizing bridges over navigable

streams, have been upheld as valid in the absence of legislation by Congress, and that these statutes belong to the same category."2

At the same time it must be remembered that the admiralty jurisdiction is not dependent upon the commerce clause of the Constitution, but is derived from an entirely different one.63

The history and changes of the twelfth admiralty rule may be traced in the cases stated in the footnote.64

In general, this right against domestic vessels was governed by the principles which apply in case of foreign vessels. It is prior to nonmaritime liens; it is not waived by taking a note; it becomes stale usually in less time than in case of foreign vessels, as it is more easily enforceable; it is given for advances, and for things not merely necessary, but fit and proper.

SAME-DOMESTIC LIENS AS AFFECTED BY OWNER'S PRESENCE

50. Prior to the act of June 23, 1910, the owner's presence rebutted the presumption of credit to the ship in the case of domestic as well as foreign vessels, but the act abolishes this doctrine, so that the furnishing of necessaries to a domestic vessel gives the lien just as in the case of a foreign vessel.

Prior to the act there were some decisions holding that under the general terms of state statutes the mere furnishing of the service gave a lien on domestic vessels, though

62 21 Wall. 581, 582, 22 L. Ed. 664.

63 Const. art. 3, § 2; EX PARTE GARNETT, 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631.

64 GENERAL SMITH, 4 Wheat. 443, 4 L. Ed. 609; St. Lawrence, 1 Black, 522, 17 L. Ed. 180; Circassian, Fed. Cas. No. 2,720a; LOTTAWANNA, 21 Wall. 558, 22 L. Ed. 654; J. E. RUMBELL, 148 U. S. 1, 13 Sup. Ct. 498, 37 L. Ed. 345.