CLARA PERRY, Plff. in Err., v.

CORNELIUS L. HAINES.t

(See S. C. Reporter’s ed. 17-55.)

Admiralty jurisdiction — canal boats on Erie canal — repairs made in dry dock — enforc¬ ing lien in state courts.

within the state of New York, forms a part of a continuous highway for interstate and foreign commerce by connecting Lake Erie with the Hudson river, is a navigable water of the United States as contradistinguished from a navigable water of the state.

•j-This case is reported by the Official Report¬ er under the title of “The Robert W. Parsons.

Note. — On the jurisdiction in admiralty to enforce liens created by state laws — see note to The Electron, 21 C. C. A. 21.

As to the limits of admiralty jurisdiction— Bee notes to Allen v. Newberry, 16 L. ed. U. S. 110; The Curtis, 3 L. R. A. 711, and Case v. l.oftus, 5 L. R. A. 6S4.

Respecting liens on vessels under mechanics’ lien laws — see note to Baizley v. The Odorilla, 1 L. R. A. 505.

What are navigable waters of the United States f

Those rivers are navigable waters of the United States, within the meaning of the acts of Congress, in contradistinction from the navi¬ gable waters of the states, which form in their ordinary condition by themselves, or unite with ■others and continue, highways over which com¬ merce is, or may be, carried on with other states or foreign countries in the customary modes in which such commerce Is conducted by water. The Daniel Ball, 10 Wall. 557, 19 L. ed. 999 ; United States v. Burlington & H. C. Perry Co. 21 Fed. 332.

A river which is not of itself a highway for commerce with other states or foreign countries, or does not form such highway by its connec¬ tion with other waters, is not a navigable water of the United States. The Montello, 11 Wall. 411, 20 L. ed. 191.

A creek, which, though accessible from a wa¬ ter way connecting with the sea, has no terminus or landing by which the public, after entering it

191 U. S.

canal and Hudson river, which are drawn by animal power while in the canal, and are tak¬ en in tow by steamers for the trip on the river, are ships or vessels, within the con¬ templation of the maritime law.

pairs furnished to a vessel which was at the time engaged in navigating the Erie canal are no less within the exclusive admiralty juris¬ diction of the Federal courts because such re¬ pairs were made in dry dock.

Federal courts extends to the enforcement by proceedings in rem of a lien for repairs fur¬ nished to a vessel engaged in navigating the Erie canal, although such vessel was em¬ ployed wholly in commerce between ports in the same state.

exclusive jurisdiction of the Federal courts over admiralty and maritime cases is made by N. Y. Laws 1897, chap. 418, §§ 30, 35, so far as such statute is construed by the courts of that state to provide for the enforcement in a state court by proceedings in rem of a lien for repairs made in dry dock to a canal boat engaged in navigating the Erie canal and Hudson river.

[No. 16.]

Argued March 11, 12, 1903. Decided Octo¬ ber 26, 1903.

IN ERROR to the Supreme Court of the State of New York to review a judgment enforcing a lien for repairs furnished to a canal boat, entered pursuant to the affirm-

from such water way, may leave it, is not a nav¬ igable water of the United States. Manigault v. Ward, 123 Fed. 707.

The mere capacity to pass in a boat of any size, however small, from one stream or rivulet to another is not sufficient to constitute a navi¬ gable water of the United States which the act of Congress of September 19, 1890, makes it a misdemeanor to obstruct, where such channel is not substantially useful to some purpose of in¬ terstate commerce. Leovy v. United States, 177 U. S. 621, 44 L. ed. 914, 20 Sup. Ct. Rep. 797. Hence, a pass or crevasse caused by the over¬ flow of the Mississippi river, making a channel to the Gulf of Mexico, through which a few fish¬ ermen have occasionally gone with small vessels carrying oysters for planting, and through which one or two cargoes of willows and timber may have passed, but which has not been used for any purpose' of interstate commerce, and the gulf end of which has become closed, does not constitute a navigable water of the United States in such a sense that a dam erected there¬ in for the purpose and with the effect of re¬ claiming overflowed lauds will constitute an ob¬ struction within the prohibition of the act of September 10, 1890, against obstructions in nav¬ igable waters without authority of the Secre¬ tary of War. Ibid.

For the purpose of founding admiralty juris¬ diction a canal may be held to be navigable water of the United States if it comes within the approved definition of sucli water. F.x parte Boyer, 109 U. S. 629, 27 L. ed. 1056, 3 Sup. Ct. Rep. 434.

73

18

ance of a final order of that court by the Appellate Division and the Court of Ap¬ peals. Reversed.

See same case below, in Appellate Divi¬ sion of Supreme Court, 57 App. Div. 636, 68 N. Y. Supp. 1139, in Court of Appeals, 168 N. Y. 586, 60 N. E. 1112.

Statement by Mr. Justice Brown:

*This was a writ of error to review a judg¬ ment of the supreme court of the state of New York sustaining the jurisdiction of that court to enforce a lien for repairs made by Haines to the canal boat Rol >rt \V. Par¬ sons, which was engaged at the time in navi¬ gating the Erie canal and Hudson river.

Defense, that the statute of the state of New York, giving a lien for such repairs, and providing a remedy for enforcing the same in rem, is unconstitutional, so far as concerns the remedy, and an infringement upon the exclusive jurisdiction of the courts of the United States in admiralty and mari¬ time causes.

A motion to vacate the attachment, issued up n the petition of Haines, upon the ground that the court had no jurisdiction, was denied, an appeal taken to the appel¬ late division of the supreme court, where the case was argued, and the order of the court below affirmed by a majority of the justices. Re Haines, 52 App. Div. 550, 65 N. Y. Supp. 350. From the final order of the court, subsequently entered, the owner, Clara Perry, again appealed to the appellate division, where the order was affirmed (Re Haines, 57 App. Div. 636, 68 N. Y. Supp. 1139), and again by the court of appeals. Re Haines , 168 N. Y. 586, 60 N. E. 1112. Whereupon a writ of error was sued out from this court.

Oct. TEUMt

A contract for making repairs upon a boat is a maritime contract.

The General Smith, 4 Wheat. 438, 4 L. ed. 609; The St. Lawrence, 1 Black, 522, sab nom. Meyer v. Tapper, 17 L. ed. 180; Rey- roux v. Howard, 7 Pet. 324, 8 L. ed. 700; The Lottawanna, 21 Wall. 558, sub nom. Rodd v. lleartt, 22 L. ed. 654.

The enforcement in rem of the lien upon a vessel, created by state statutes for re¬ pairs and supplies in her home port, is ex¬ clusively within the admiralty jurisdiction of the courts of the United States.

The Glide, 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct. Rep. 930; The J. E. Rumbell, 148 U. S. 1, 37 L. ed. 345, 13 Sup. Ct. Rep. 498.

A canal is public water of the United States, and within the legitimate scope of the admiralty jurisdiction, even though the canal is wholly artificial, and is wholly within the body of the state and subject to its ownership and control. '

Ex parte Boyer, 109 U. S. 629, 27 L. ed.

1056, 3 Sup. Ct. Rep. 434.

The character of the water upon which the boat is employed is made the guiding principle to determine as to whether or not the subject of the action is within the admi¬ ralty jurisdiction of the Federal courts.

Ex parte Boyer, 109 U. S. 632, 27 L. ed.

1057, 3 Sup. Ct. Rep. 434; Re Garnett, 141 U. S. 1, 35 L. ed. 631, 11 Sup. Ct. Rep. 840; The E. A. Shores, Jr. 73 Fed. 342.

Admiralty jurisdiction is not devested be¬ cause of any peculiarity in form, size, or means of propulsion. It matters not whether the boats be propelled by steam, wind, or animal power; if they are vehicles of com¬ merce they are within the jurisdiction of the admiralty.

The Montcllo, 20 Wall. 430, 22 L. ed. 391 ; The Daniel Ball, 10 Wall. 557, 19 L. ed. 999; The General Cass, 1 Brown Adm. 334, Fed. Cas. No. 5,307.

fin & L. M. Transp. Co. v. Chicago, 107 IT. S. 078, 27 L. ed. 442, 2 Sup. Ct. Itep. 18.7.

The St. .Tosepfi river in Indiana. St. Joseph County v. ridge, 5 Ind. 13.

The Savannah river between Augusta and Savannah. Lawton v. Comer, 7 t. R. A. 5.7, 40 Fed. 480.

Fox river. The Montcllo, 20 Wall. 430, 22 Jj. ed. 391.

Itut the Fox and Wolf rivers alxive Oshkosh In Wisconsin are not public waters of the United States. Morse v. Home Ins. Co. 30 Wis. 490, 11 Am. Rep. 580.

Jamaica bay, which is an inlet of the Atlantic ocean, and forms a continuous highway for com¬ merce upon navigable waters, is a navigable wa¬ ter of the United States. The Hazel Ivirke, 23 Blatchf. 292, 25 Fed. 001.

See, further, note to United States v. The Montelln, 22 L. ed. IT. S. 391 ; and, on the gen¬ eral question. What waters are navigable? see note to Willow River Club v. Wade, 42 L. R. A.

Mr. Martin Clark argued the cause and filed a brief for plaintilf in error:

A waterway lying wholly within a state, and not connected with other waters leading to the sea, is not a navigable water of the United States. Hodges v. Williams, 95 N. C. 331, 59 Am. Rep. 242.

A stream may be navigable In fact, but yet not be beyond the power of the state to destroy Its navigation, as against the authority of the general government. I’eters v. New Orleans, M. & C. It. Co. 50 Ala. 528.

The following waters have been held to be navigable waters of the United States :

East river in New York. Miller v. New York, 109 U. S. 385, 27 L. ed. 971, 3 Sup. Ct. Rep. 228.

Grand river. The Daniel Ball, 10 Wall. 557, 19 L. ed. 999.

Rock river in the state of Illinois. United States v. Moline, 82 Fed. 592.

Wallamet river. Wallamet Iron Bridge Co. v. Hatch, 9 Sawy. 643, 19 Fed. 347.

The Ohio river. Newport & C. Bridge Co. v. United States, 105 U. S. 470, 2G L. ed. 1143.

The Chicago river and its branches. Escana- 74

Supreme Court of the United States.

191 U. S.

Perry v. Haines.

Navigable waters of the United States, within the meaning of the acts of Congress, in contradistinction from the navigable wa¬ ters of the states, are those which form, in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is, or may be, carried on with other states or foreign coun¬ tries in the customary modes in which such commerce is conducted by water.

The Daniel Ball, 10 Wall. 557, 19 L. ed. 999 ; Miller v. New York, 109 U. S. 385, 27 L. ed. 971, 3 Sup. Ct. Rep. 228.

The admiralty jurisdiction extends to all contracts of a maritime character to be per¬ formed upon navigable waters.

The Mary Washington, 1 Abb. U. S. 1, Fed. Cas. No. 9,229; The Belfast, 7 Wall. 024, 19 L. ed. 200; The Leonard, 3 Ben. 203, Fed. Cas. No. 8,250; United States v. Bur¬ lington c£ II. G. Ferry Go. 21 Fed. 331.

And this rule is followed, although the boat is built to navigate a canal, and has no means of locomotion in herself.

The H. M. McGhesney, 8 Ben. 150, Fed. Cas. No. 4,403, Affirmed in 15 Blatchf. 183, Fed. Cas. No. 4,404; The Wilmington, 48 Fed. 500.

The Erie canal and connecting waters are public navigable waters of the United States over which the admiralty court has jurisdic¬ tion.

The Thomas Carroll, 23 Fed. 912; The Ella B. 24 Fed. 508; Malony v. The City of Milwaukee, 1 Fed. 011.

Jurisdiction over the Albemarle & Chesa¬ peake canal was exercised in 1874 (The Olcr, 2 Hughes, 12, Fed. Cas. No. 10,485) ; and over the Welland canal, in 1873 (The Avon, Brown Adm. 170, Fed. Cas. No. 080) ; and even as early as 1850 (Scott v. The Young America. Newberry, Adm. 101, Fed. Cas. No. 12,549).

Admiralty has assumed jurisdiction, not only over canal boats, but also over a dredge and scows.

The Alabama, 22 Fed. 449.

A raft of timber.

Muntz v. A Raft of Timber, 15 Fed. 555.

A steamer of less than 5 tons’ burden, en¬ gaged in carrying freight and passengers up¬ on navigable water.

1'hc Pioneer, 21 Fed. 420.

A ferryboat plying between two ports in the same state in a navigable river.

United States v. Burlington d H. G. Ferry Co. 21 Fed. 331.

A dismantled steamboat being fitted for use as a wharf boat.

The Old Natchez, 9 Fed. 470.

A barge without sails or rudder, used for lightering.

Disbrow v. Walsh Bros. 3G Fed. 007.

191 U. S.

A bath house built on boats, and designed for transportation.

The Public Bath, No. 13, 61 Fed. 692.

A contract for the repair of scows used in carrying ballast to or from vessels.

Endner v. Greco, 3 Fed. 411.

It is not the form, the construction, the rig, the equipment, or the means of propul¬ sion, that establishes the jurisdiction, but the purpose and business of the craft as an instrument of naval transportation.

Benedict, Adm. §§ 213, 221, 221a.

Mr. George F. Thompson argued the cause and filed a brief for defendant in er¬ ror:

Ordinary domestic contracts for the fur¬ nishing of repairs and supplies to domestic craft, such as boats constructed and used on the inland canals of the state, are not mari¬ time contracts within the meaning of the Constitution of the United States.

Sheppard v. Steele, 43 N. Y. 52, 3 Am. Rep. 600; Mott v. Lansing, 57 N. Y. 112; Poole v. Kerm.it, 59 N. Y. 555 ; Wilson v. Lawrence, 82 N. Y. 409 ; Brookman v. Ham- il, 43 N. Y. 554, 3 Am. Rep. 731; Frolic1 v. Betts, 13 Hun, 632; People’s Ferry Go. v. Beers, 20 How. 393, 15 L. ed. 901; Allen v. Newberry, 21 How. 245, 16 L. ed. Ill; The Genesee Chief v. Fitzhugli, 12 How. 443, 13 L. ed. 1058; Maguire v. Card, 21 How. 248, 16 L. ed. 118; Happy v. Mosher, 48 N. Y. 313; Re Haines, 168 N. Y. 586, 60 N. E. 1112; Delaney v. Brett, 51 N. Y. 78.

The admiralty is a maritime court insti¬ tuted for the purpose of administering the law of the sea.

The Lottawanna, 21 Wall. 567, sub nom. Rodd v. Heart l, 22 L. ed. 054.

The whole object of giving admiralty process and priority of payment to privi¬ leged creditors is to furnish wings and legs to the vessel to get the vessel back for the benefit of all concerned, — that is, to com¬ plete her voyage.

The J. E. Rumbcll, 148 U. S. 9, 37 L. ed. 346, 13 Sup. Ct. Rep. 498.

In all previous cases before this court there were involved sea-going ships or ves¬ sels plying between foreign countries or en¬ gaged in coasting trade between different states and territories, or steamboats enrolled and licensed and engaged in interstate com¬ merce, and able of themselves to travel be¬ tween ports a.nd places of different states.

The St. Lawrence, 1 Black, 522, sub nom. Meyer v. Tapper, 17 L. ed. 180; The Com¬ merce, 1 Black, 578, sub nom. Commercial Transp. Co. v. Fitzhugli, 17 L. ed. 109; Pay¬ roll oc v. Howard, 7 Pot. 324, 8 L. ed. 700; 1’he Orleans v. Phoebus, 11 Pet. 175, 9 L. ed. 677 ; The General Smith, 4 Wheat. 438, 4 L. ed. 009; Waring v. Clarke, 5 How. 452, 12 L. ed. 231; New Jersey Steam Nav. Co. v. Mer-

75

23-25

Supreme Court of the United States.

Oot. Term,

chants’ Bank, 6 IIow. 302, 12 L. ed. 486; The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058; Jackson v. The Magnolia, 20 How. 298, 15 L. ed. 911; People’s Perry Co. v. Beers, 20 How. 393, 15 L. ed. 961; Allen v. Neu;berry, 21 How. 245, 1G L. ed. Ill ; Ma¬ guire v. Card, 21 How. 250, 1G L. ed. 118; Roach v. Chapman, 22 llow. 129, 10 L. ed. 294; The Nine v. Trevor, 4 Wall. 555, 18 L. ed. 451; The Belfast, 7 Wall. G37, 19 L. ed. 270; The Eagle, 8 Wall. 20, 19 L. ed. 3G8; 77 Crapcshoi, 9 Wall. 129, 19 L. ed. G51 ; The Lula, 10 Wall. 197, 19 L. ed. 907; The Kalorama, 10 Wall. 205, 19 L. ed. 941 ; The Custer, 10 Wall. 215, 19 L. ed. 945; New England Mul. Marine Ins. Co. v. Dunham, 11 Wall. 21, 20 L. ed. 9G; Ex parte McNiel, 13 Wall. 243, 20 L. ed. C27; Edwards v. El¬ liott, 21 Wall. 532, 22 L. ed. 487 ; The Lotta- wanna, 21 Wall. 558, sub nom. Rodd v. Heartt, 22 L. ed. G54; Ex parte Boyer, 109 U. S. G29, 27 L. ed. 105G, 3 Sup. Ct. Rep. 434; Re Garnett, 141 U. S. 1, 35 L. ed. G31, 11 Sup. Ct. Rep. 840; The J. E. Rumbell, 148 U. S. 1, 37 L. ed. 345, 13 Sup. Ct. Rep. 498; Workman v. New York City, 179 U. S. 553, 45 L. ed. 315, 21 Sup. Ct. Rep. 212; Miller v. New York, 109 U. S. 385, 27 L. ed. 971, 3 Sup. Ct. Rep. 228; The Clide, 1G7 U. S. COG, 42 L. ed. 296, 17 Sup. Ct. Rep. 930.

Courts of admiralty cannot, and do not, exercise jurisdiction in any form over what are termed land contracts.

People’s Ferry Co. v. Beers, 20 How. 393, 15 L. ed. 961; Sheppard v. Steele, 43 N. Y. 52, 3 Am. Rep. 6G0; Broolcman v. Ilamill, 43 N. Y. 554, 3 Am. Rep. 731.

Mr. .Justice Brown delivered the opinion of the court:

This case raises the question of the con- etruction and constitutionality of the stat¬ utes of the state of New York, giving a lien for repairs upon vessels, and providing for the enforcement of such lien by proceedings

in rem. The statute conferring *the lien, so far as it is material, is given in the mar¬ gin. t It will be noticed that it expressly excludes liens founded upon maritime con¬ tracts.

That a state may provide for liens in fa¬ vor of material men for necessaries fur¬ nished to a vessel in her home port, or in a

thaws of New York (1897), chap. 418.

“Sec. 39. A debt which is not a lien by the maritime iaw, and which amounts to, .$50 or up¬ wards, on a seagoing or ocean-bound vessel, or $15 or upwards on any other vessel, shall be a lien on such vessel, her tackle, apparel, and furniture, and shall be preferred to all other liens thereon, except mariner’s wages, if such debt is contracted by the master owner, char¬ terer, builder, or consignee of such ship or ves¬ sel, or by the agent of either of them, within this state, for either of the following purposes : 78

port of the state to which she belongs, though the contract to furnish the same is a iparitinie contract, and that such liens can be enforced by proceedings 'in rem in the dis¬ trict courts of the United States, is so well sett, led by a series of cases in this court as to be no longer open to question. The Gen¬ eral Smith, 4 Wheat. 43S, 4 L. cd. G09 ; The Planter ( Peyroux v. Howard), 7 Pet. 324,

8 L. ed. 700; The St. Lawrence, 1 Black,

522, sub nom. Meyer v. Tapper, 17 L. ed.

admiralty court is exclusive. The Moses Taylor, 4 Wall. 411, 18 L. ed. 397; The Mine v. Trevor, 4 Wall. 555, 18 L. ed. 451; The Belfast, 7 Wall. 624, 19 L. ed. 2G6; The Lot- tawanna, 21 Wall. 559, sub nom. Rodd v. llcartt, 22 L. ed. 654; Johnson v. Chicago tf P. Elevator Co. 119 U. S. 388, 397, 30 L. ed. 447, 450, 7 Sup. Ct. Rep. 254; The J. E. Rumbell, 148 U. S. 1, 12, 37 L. ed. 345, 347,

13 Sup. Ct. Rep. 498; Bird v. The Josephine,

39 N. Y. 19; Broolcman v. Hamill, 43 N.

Y. 554, 3 Am. Rep. 731; Poole v. Hermit, 59 N. Y. 554. If there were any doubts re¬ garding this question, they were completely put to rest by the case of The Glide, 1G7 U.

S. GOG, 42 L. ed. 29G, 17 Sup. Ct. Rep. 930, in which it was distinctly held, in an ex¬ haustive opinion by Mr. Justice Gray, that the enforcement in rem of a lien upon a ves¬ sel for *repairs and supplies furnished in

her home port was exclusively within the ad¬ miralty jurisdiction of the courts of the United States.

It is equally well established that, for causes of action not cognizable in admiralty, either in rem or in personam, the states may not only grant liens, but may provide remedies for their enforcement. Contracts for the building of a ship are the most prominent examples of such as are not mari¬ time in their character, and hence within this rule. People’s Ferry Co. v. Beers, 20 How. 393, 15 L. ed. 961; Roach v. Chapman,

22 How. 129, 1G L. ed. 294; Edwards v. El¬ liott, 21 Wall. 532, 22 L. ed. 487; Johnson v. Chicago <C P. Elevator Co. 119 U. S. 3S8,

30 L. ed. 447, 7 Sup. Ct. Rep. 254 ; Shep¬ pard v. Steele, 43 N. Y. 52, 3 Am. Rep. GOO.

It remains to consider whether the con¬ tract in this case, which was for repairs furnished to a canal boat in a port of the

“1. For w'ork done or material or other arti¬ cles furnished in this state for, or towards, the building, repairing, fitting, furnishing, or equip¬ ping of such vessel.”

(The other subdivisions are immaterial.)

“Sec. 35. If a lien, created by virtue of this article, is founded upon a maritime, contract, it can be enforced only by proceedings in the courts of the United States, and in any other case, in the courts of this state, in the mauner provided by the Code of Civil Procedure.”

191 U. S.

Perry v. Haines.

26-37

state to which she belonged, was a maritime contract. If it were, the position of (he state courts was wrong. The denial of ex¬ clusive jurisdiction on the part of the ad¬ miralty court to enforce this lien must rest upon one of two propositions: Either be¬ cause the cause of action arose upon an ar- tilicial canal, or because a canal boat is not a ship or vessel contemplated by the mari¬ time law, and within the jurisdiction of the admiralty court.

I. At an early day, and following English precedents, it was held by this court in The Thomas Jefferson, 10 Wheat. 428, 6 L. ed. 358, that the admiralty courts could not rightfully exercise jurisdiction, “except in cases where the service was substantially performed, or to be performed, upon the sea, or upon waters within the ebb and flow of the tide.’’ The opinion is a brief one by Mr. Justice Story, and contains little more than the announcement of the general principle, and with no attempt to distinguish the Eng¬ lish cases. It lacks wholly any display of the abundant learning which, ten years be¬ fore, had characterized his celebrated opin¬ ion in Do Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. .3,776. The case was a strong one for the adoption of English precedents, as it concerned a voyage from a port in Kentucky up the Missouri river and back again to

the same port. It was, however, flatly over¬ ruled in The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, and the modern doctrine established, to which this court has consistently and invariably adhered, that not the ebb and flow of the tide, but the ac¬ tual navigability of the waters, is the test of jurisdiction. It is true, that case arose upon the Great Lakes, but the rule was sub¬ sequently extended to cases arising upon the rivers above the tidal efl'ect. Fretz v. Bull, 12 How. 46G, 13 L. ed. 1008 ; The Magnolia, 20 How, 296, 15 L. ed. 909. In The Daniel Ball, 10 Wall. 557, 19 L. ed. 999, it was held that Grand river, a navigable water wholly within the state of Michigan, being a stream capable of bearing, for a distance of 40 miles, a steamer of 123 tons burden, and forming, by its junction with Lake Michi¬ gan, a continuous highway for commerce, both with other states and with foreign countries, was a navigable water of the United States; and the rule was broadly an¬ nounced that “those rivers must be regarded as public navigable rivers in law, which are navigable in fact,” and that “they consti¬ tute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable wa¬ ters of the states, when they form, in their ordinary condition by themselves, or by uniting with other waters, a continued high¬ way over which commerce is, or may be, 191 U. S.

carried on with other states or foreign countries, in the customary modes in which such commerce is conducted by water.” The same principle was applied in The Montello,

20 Wall. 430, 22 L. ed. 391, to the Fox river in Wisconsin, although its navigability was interrupted by rapids and falls over which portages were required to be made, and to Chicago river in Escanaba & L. M. Transp.

Co. v. Chicago, 107 U. S. 678, 27 L. ed. 442,

2 Sup. Ct. Rep. 185. See also Miller v. Few York, 109 U. S. 385, 27 L. ed. 971, 3 Sup.

Ct. Rep. 228; Re Garnett, 141 U. S. 8, 35 L. ed. 632, 11 Sup. Ct. Rep. 840.

The only distinction between canals and other navigable waters is that they are ren¬ dered navigable by artificial means, and sometimes, though by no means always, are wholly within the limits of a particular state. We fail to see, however, that this creates any distinction in principle. They are usually constructed to connect waters navigable by nature, and to *avoid the port-

age of property from one navigable lake or river to another, or to improve or deepen a natural channel; and they are usually navi¬ gated by the same vessels which ply between the naturally navigable waters at either end of the canal. Examples of these are the St. Clair ship canal, connecting St. Clair river with the lake of the same name; the St. Mary’s canal, connecting the waters of Lake Superior ivith those of Lake Huron ; the Il¬ linois & Michigan canal, connecting the waters of Lake Michigan with the Missis¬ sippi river; the Welland canal, between Lake Ontario and Lake Erie; the Suez ca¬ nal, between the Mediterranean and the Red Sea; the Great North Holland canal, con¬ necting Amsterdam directly with the Ger¬ man ocean; and the Erie canal, connecting Lake Erie with the Hudson river. Indeed, most of the harbors upon the lakes and At¬ lantic coast arc made accessible by canals wholly artificial, or by an artificial channel broadening and deepening their natural ap¬ proaches. Can it be possible that a cause of action which would be maritime, if oc¬ curring upon those connected waters, would cease to be maritime if arising upon the con¬ necting waters? Must a collision which would give rise to a suit in admiralty, if oc¬ curring upon Lake Ontario, or Lake Erie, be prosecuted at common law, if happening upon the Welland canal? This question arose in this country in the case of The Avon, Brown, Adm. 170, Fed. Cas. No. 680, in which Judge Emmons, in a carefully con¬ sidered opinion, took jurisdiction of a col¬ lision upon that canal, although it was wholly within British territory. While this was, with one exception [Scott v. The Young America, Newberry, Adm. 101, Fed.

Cas. No. 12,549), the earliest case in this

27-30

Supreme Court of the United States.

Oct. Teem,

country, it was no novelty in England, since, in The Diana, Lush. 539, Dr. Lushing- ton assumed jurisdiction of a collision be¬ tween two British vessels in the Great North Holland canal, rejecting altogether the contention that the legislature did not intend to give the court jurisdiction over matters occurring in foreign territorial waters. This jurisdiction has since been de¬ clared in England to extend to collisions be¬ tween foreign vessels in the Bosphorus (The L28j Mali *Ivo, L. R. 2 Adm. & Eccl. 356) , and in the Scheldt ( The Halley, L. R. 2 P. C. 193 ) . See also The Thomas Carroll, 23 Fed. 912; The Oler, 2 Hughes, 12, Fed. Cas. No. 10,- 485; The E. M. McCliesney, 8 Ben. 150, Fed. Cas. No. 4,463, 15 Blatchf. 183, Fed. Cas. No. 4,464; Malony v. The City of Mil- waulcce, 1 Fed. 611; The General Cass, Brown, Adm. 334, Fed. Cas. No. 5,307. The tidal test was long since abolished by stat¬ ute in England. 24 Viet. chap. 10; Marsden, Collisions, 210.

Finally, in Ex parte Boyer, 109 U. S. 629, ?7 L. ed. 1056, 3 Sup. Ct. Rep. 434, such jurisdiction was held by this court to extend to collisions between two canal boats occur¬ ring in the Illinois & Lake Michigan canal, Mr. Justice Blatcliford observing that “navi¬ gable water situated as this canal is, used for the purposes for which it is used, — a highway for commerce between ports and places in different states, carried on by ves¬ sels such as those in question here,— is pub¬ lic water of the United States, and within the legitimate scope of the admiralty juris¬ diction conferred by the Constitution and statutes of the United States, even though the canal is wholly artificial, and is wholly within the body of a state, and subject to its ownership and control.” The case is the more noteworthy from the fact that the canal was but 60 feet wide and 6 feet deep. It has never been overruled or questioned, and must be treated as settling the jurisdic¬ tion of the admiralty court over the waters of any artificial canal which is the means of communication between ports and places in different states and territories. It is not in¬ tended here to intimate that, if the waters, though navigable, are wholly territorial and used only for local traffic, — such, for in¬ stance, as the interior lakes of the state of New York, — they are to be considered as navigable waters of the United States. The Montello, 11 Wall. 411, 20 L. ed. 191. In the case under consideration, however, the Erie canal, though wholly within the state of New York, is a great highway of com¬ merce between ports in different states and foreign countries, and is navigated by ves¬ sels which also traverse the waters of Hud¬ son river from the head of navigation to its mouth.

78

this case is, whether *the exclusive admiralty

and maritime jurisdiction of the Federal courts attaches to canal boats, — in other words, whether they are ships or vessels within the meaning of the admiralty law. If it be once conceded, as, for the reasons above given, we think it must be, that navigable canals used as highways for interstate or foreign commerce are navigable waters of the United States, it would be an anomaly to hold that such jurisdiction did not attach to the only craft used in navigating such canals. It is true that, in the more modern constructions, these canals are made wide and deep enough for the largest vessels; but it so happens that the Erie canal was built at an early day, and was adapted only for vessels of light draught and peculiar con¬ struction. The possibilities of the future were then scarcely foreseen, and, even if they had been, the state was tQo poor to pro¬ vide for anything beyond the immediate present. For those purposes the canal was amply sulficient, and for twenty years was the principal means of communication with the northwest, and was not only the high¬ way over which all the merchandise was car¬ ried between the Hudson river and the Great Lakes, but was largely used for the trans¬ portation of passengers in the great western immigration which immediately followed its construction. As late as 1850, large and handsomely equipped passenger vessels were run every day at stated hours, and the canal continued to be, even after the building of the railways, a favorite method of communi¬ cation with the Great Lakes. While these boats were vessels of light draught, and were drawn by animal power, they were from 15(1 to 300 tons’ capacity, — larger than those out of which arose the maritime law of modern Europe, and much larger than those employed by Columbus and the earlier navigators in their discovery of the new world. It is said by a writer in the Quar¬ terly Review (Benedict, Adm. Pr. § 220), that “the first discoverers of America com¬ mitted themselves to the unknown ocean in barks, one not above 15 tons; Frobisher, in two vessels of 20 or 25 tons; Sir Humphrey Gilbert, in one of 10 tons only.” The ships in which the Vikings of Scandinavia invaded

England, and ravaged the coasts of western Europe (specimens of which are still pre¬ served at Christiana), were open boats, not exceeding 100 feet in length and 16 in breadth, and propelled partly by oars and partly by a single sail. In fact, neither size, form, equipment, nor means of propulsion are determinative factors upon the question of jurisdiction, which regards only the pur¬ pose for which the craft was constructed, and the business in which it is encaged.

191 U. S.

Perry v. Haines.

30-83

The application of this criterion has ruled out the floating dry dock, the floating wharf, the ferry bridge hinged or chained to a wharf, the sailors’ Bethel moored to a wharf (Cope v. Valette Dry Dock Co. 119 U. S. 625, 30 L. ed. 501, 7 Sup. Ct. Rep. 336), and a gas float moored as a beacon (The Whitton, [1895] p. 301, [1896] p. 42, [1897] A. C. 337).

But it has been held in England to in¬ clude «, fishing coble, a boat of 10 tons’ bur¬ den, 24 feet in length, decked forward only, though accustomed to go only 20 miles to sea, and to remain out twelve hours at a time (Ex parte Ferguson, L. R. 6 Q. B. 280) ; a barge (The Malvina, Lush. 493. Affirmed on appeal, Brown & L. 57 ) ; though not a dumb barge, propelled by oars only (Everard v. Kendall, L. R. 5 C. P. 428) ; and, iu America, steamers of 5 tons’ bur¬ den, engaged in carrying freight and pas¬ sengers upon navigable waters (The Pioneer, 21 Fed. 426; The Ella B. 24 Fed. 508; The Volunteer, Brown, Adm. 159, Fed. Cas. No. 16,990, Affirmed in 15 Int. Rev. Rec. 59) ; a barge, without sails or rudder, used for transporting grain (Woods v. The Wilmington, 5 Hughes, 205, 48 Fed. 506) ; a floating elevator (The Hezckiah Baldicin, 8 Ben. 556, Fed. Cas. No. 6,449). See also The Northern Belle, 9 Wall. 526, 19 L. ed. 748; The Alabama, 22 Fed. 449; Endner v. Greco , 3 Fed. 411.

Again, in Ex parte Boyer, 109 U. S. 629, 27 L. ed. 1056, 3 Sup. Ct. Rep. 434, this court held the jurisdiction of the admiralty court to extend to a collision between two canal boats of more than 20 tons burden, one of which was in tow and the other pro¬ pelled by steam. If the jurisdiction of the admiralty court in the case under consider-

ation ‘depends, as it must, upon the facts that the cause of action arose upon the canal, and upon canal boats navigating such canal, the Case of Boyer would seem to be decisive of this.

So far as the Congress of the United States and the Parliament of England have incidentally spoken upon the subject, they have fixed a criterion of size as to what shall be considered a vessel within the ad¬ miralty jurisdiction far below the tonnage of an ordinary canal boat. By the original judiciary act of 1789, § 9 (1 Stat. at L. 77, chap. 20, U. S. Comp. Stat. 1901, p. 455) jurisdiction was given to the district courts of all seizures made “on waters which are navigable from the sea by vessels of 10 or more tons’ burden;” and by the act of Feb¬ ruary 26, 1845 (5 Stat. at L. 726, chap. 20, U. S. Comp. Stat. 1901, p. 461) (now obso¬ lete, The Eagle, 8 Wall. 15, 19 L. ed. 365), admiralty jurisdiction was given to vessels navigating the Gieat Lakes and their con- 191 U. S,

necting waters of 20 tons burden and up¬ wards. By Rev. Stat. § 4311 (U. S. Comp.

Stat. 1901, p. 2959), vessels of 20 tons and upwards, enrolled and licensed, and vessels of less than 20 tons, not enrolled, but li¬ censed, shall be deemed vessels of the United States; and by § 4520 (U. S. Comp. Stat.

1901, p. 3073), all vessels of 50 tons or up¬ wards are required to ship their seamen un¬ der written articles. By the English mer¬ chants’ shipping act of 1854 [17 & 18 Viet, p. 248, chap. 104], the word “‘ship’ shall include every description of vessel used in navigation, not propelled by oars;” and a similar description is given of vessels within the admiralty jurisdiction, in the admiralty court act of 1861.

It seems, however, to be supposed that the fact that boats engaged in traffic upon the Erie canal are drawn by horses is sufficient of itself to exclude them from the jurisdic¬ tion of the admiralty courts. This, how¬ ever, is an argument which appeals less to the reason than to the imagination. So long as the vessel is engaged in commerce and navigation it is difficult to see how the juris¬ diction of admiralty is affected by its means of propulsion, which may vary in the course of the same voyage, or with new discoveries made in the art of navigation. Thus, canal boats, upon their arrival at Albany, are at once relieved of their horses, and taken by a steamer in tow ‘to New York or Jersey City.

To hold that such boats are not within the admiralty jurisdiction of the courts, while on a trip down the Hudson river, would re¬ quire us to overrule a large number of cases in this court, in which it was assumed by both parties and the court that for damages sustained by collision with other vesseis they were entitled to pursue the wrongdoer in courts of admiralty. The Quickstep, 9 Wall. 665, 19 L. ed. 767; The Syracuse, 12 Wall. 167' 20 L. ed. 382; The Atlas, 93 U.

S. 302, 23 L. ed. 863; The L. P. Dayton, 120 U. S. 337, 30 L. ed. 669, 7 Sup. Ct. Rep^

568; The E. A. Packer, 140 U. S. 360, 35 L. ed. 453, 11 Sup. Ct. Rep. 794. But it would seem like sticking in the bark to hold that a canal boat might recover for a col¬ lision while in tow of a tug, but might not recover while in tow of a horse. The case does not raise the question whether hay and oats furnished the horses are necessaries within the meaning of the admiralty law, though a casuist might have difficulty in drawing a distinction between coal and oil furnished to one engine of propulsion and hay and oats to another, or between food furnished to a crew and food furnished to the horses.

Replying to the suggestion that, if juris¬ diction were sustained of repairs upon a canal boat drawn by horses, it would apply

79

82-34

Supreme Court op the United States.

Oct. Term,

with equal propriety to a blacksmith’s bill for shoeing the horses, it is only necessary to say that, for incidental repairs made on land to articles of a ship’s furniture or ma¬ chinery, it has never been supposed that a court of admiralty had jurisdiction. In¬ deed, it would seem extremely doubtful if liens for these trivial bills were intended to be created by the state law. Articles re¬ moved from a vessel and repaired or reno¬ vated upon land at the shop of the artisan, stand upon quite a different footing from repairs made upon the vessel herself, and are the subject of a possessory lien at com¬ mon law.

The truth is, the present employment of horses is a mere accident, and likely to be changed at any time by an enlargement of the canal, now in contemplation, when steam or electricity will probably supplant the present methods of locomotion. The modern law of England and America rules

out *of the admiralty jurisdiction all vessels propelled by oars, simply because they are the smallest class and beneath the dignity of a court of admiralty; but long within the historic period, and for at least seven hun¬ dred years, the triremes and quadriremes of the Greek and Homan navies were the largest and most powerful vessels afloat.

It is true, the amount involved in this case is a small one, but the jurisdiction of the admiralty court has never been deter¬ mined by the amount, though appeals from the district court to the supreme court were first limited to cases involving $300, subse¬ quently reduced to $50, and finally, by the court of appeals act, allowed, apparently, in all cases, regardless of amount. [26 Stat. at L. 828, chap. 517, U. S. Comp. Stat. 1901, pp. 549, 550.] So, also, cases may be brought under the patent and copyright laws, quite irrespective of the amount in¬ volved.

jurisdiction of the admiralty court in this case was attacked upon the grounds, already discussed, that artificial canals and the ves¬ sels plying thereon are not within its juris¬ diction. A further suggestion, however, is made, that the contract in this case was not only made on land, but was to be performed on land, aud was, in fact, performed on land. This argument must necessarily rest upon the assumption that repairs put upon a vessel while in dry dock are made upon land. We are unwilling to admit this prop¬ osition. A dock is an artificial basin in con¬ nection with a harbor, used for the reception of vessels in the taking on or discharging of their cargoes, and provided with gates for preventing the rise and fall of the waters occasioned by the tides, and keeping a uni- 80

form level within the docks. A dry dock differs from an ordinary dock only in the fact that it is smaller, and,, provided with machinery for pumping out the water in or¬ der that the vessel may be repaired. All in¬ juries suffered by the hulls of vessels below the water line, by collision or stranding, must necessarily be repaired in a dry dock, to prevent the inflow of water, but it lias never been supposed, and it is believed the proposition is now for the first time Anade, that such repairs were made on land. Had the vessel been *hauled up by ways upon the

land and there repaired, a different question might have been presented, as to which we express no opinion ; but, as all serious re¬ pairs upon the hulls of vessels are made in dry dock, the proposition that such repairs are made on land would practically deprive the admiralty courts of their largest and most important jurisdiction in connection with repairs. No authorities fire cited to this proposition, and it is believed none such exist.

Suppose, for instance, it were believed that the repairs could be made upon this vessel without going into dry dock, but it was afterwards discovered that the injuries were more extensive and that a dry dock were necessary; would a court of admiralty thereby be deprived of jurisdiction? Or, suppose such repairs were made in a float¬ ing dry dock, as sometimes happens, would they be considered as made upon land or water? Or, suppose they were made in dry dock upon a seagoing vessel?

There is no doubt of the proposition that a dry dock itself is not a subject of salvage service or of admiralty jurisdiction, because it is not used for the purpose of navigation.

That was settled in Cope v. Vallette Dry Dock Co. 119 U. S. 625, 30 L. ed. 501, 7 Sup. Ct. Rep. 336. But the case was put upon the express ground that a dry dock was like a ferry bridge or sailors’ floating meeting house, and was no more used for the purposes of navigation than a wharf or a warehouse projecting into or upon the water.

miralty jurisdiction of the Federal courts does not extend to contracts for the repair of vessels engaged wholly in commerce with¬ in a state. It is true that, as late as 185S, in The Fashion (Allen v. Newberry, 21 How.

244, 16 L. ed. 110), it was held that, under the act of Congress of 1845, extending juris¬ diction of the Federal courts to vessels em¬ ployed in navigation upon the Great Lakes, between ports and places in different states, it did not extend to the case of a shipment of goods from a port in one state to another port in the same state ; and that, in the case of The Goliah ( Maguire v. Card, 21 How.

191 TJ. S.

Perry v. Haines.

34-37

248, 16 L. ed. 118), the same doctrine “was extended to a contract for supplies fur¬ nished to a vessel engaged in trade between different ports in the state of California. These cases, however, were practically over¬ ruled by that of The Belfast, 7 Wall. 624,

19 Li. ed. 266, in which a state statute, sim¬ ilar to the statute of New York involved in this case, for a breach of contract of af¬ freightment between ports in the same state (Alabama), was held to be unconstitutional and void, although the shipment was be¬ tween ports of the same state. The conten tion was distinctly made (p. 635, L. ed. p. 269), that the state court had jurisdiction because the contract of affreightment was between ports and places in the same state, but it was as distinctly disclaimed by the court, and the prior cases practically ovei- ruled. So. also, in Ex parte Boyer, 109 U. S. 629, 27 L. ed. 1056, 3 Sup. Ct. Rep. 434. the doctrine of The Belfast was reiterated and applied to a collision between canal boats, Mr. Justice Blatchford saying that “it makes no difference, as to the jurisdic¬ tion of the district court, that one or the other of the vessels was, at the time of the collision, on a voyage from one place in the state of Illinois to another place in that state.” To the same effect are The Daniel Ball, 10 Wall. 557, 19 L. ed. 999; The Mon- tcllo, 20 Wall. 430, 22 L. ed. 391; The Com¬ merce, 1 Black, 574, sub nom. Commercial Transp. Co. v. Fitzhugh, 17 L. ed. 107, and Lord v. Goodall, Y. & P. 8. S. Co. 102 U. S. 541, 26 L. ed. 224.

So, too, in lie Garnett, 141 U. S. 1, 35 L. ed. 631, 11 Sup. Ct. Hep. 840, the limited liability act was held to be a part of the law of the United States, enforceable upon navigable rivers above tide waters, and ap¬ plicable to vessels engaged in commerce be¬ tween ports in the same states. [9 Stat. at L. 635, chap. 43, U. S. Conip. Stat. 1901, p. 2943.] In delivering the opinion Mr. Jus¬ tice Bradley said (p. 15, L. ed. p. 634, Sup. Ct. Rep. p. 843 ) : “In some of the cases it was held, distinctly, that this jurisdiction does not depend on the question of foreign or interstate commerce, but also exists where the voyage or contract, if maritime in character, is made and to be performed wholly within a single state,” — citing all the cases noticed in this opinion.

In The E. M. McChesney, 8 Ben. 150, led. Cas. No. 4,463, Judge Blatchford, more re¬ cently of this court, sustained a libel against a canal boat for nondelivery of a cargo slnp- r3G]ped on » canal boat in *BuffalO to be came to New York. In that case, as in this, it was contended that neither the canal, nor the canal boat, were subjects of the ad¬ miralty jurisdiction. The case is directly in point.

191 U. S. U. S., Book 48.

It is believed that, since the case of The Belfast, the distinction has never been ad¬ mitted between contracts concerning vessels engaged in trade between ports of the same, and between ports of different, states. Of course, nothing herein said is intended to trench upon the common-law jurisdiction of the state courts, which is, and always has been, expressly saved to suitors “where the common law is competent to give it.” Rev.

Stat. § 563, sub. 8 (U. S. Comp. Stat. 1901, p. 457 ) . By that law, an action will always lie against the master or owner of the ves¬ sel, and, if the laws of the state permit it, the vessel may be attached as the property of the defendant in the case. But, as re¬ marked by Mr. Justice Miller in The Bine v. Trevor, 4 Wall. 555, 571, 18 L. ed. 451,

456 : A statute providing that a vessel may be sued and made defendant without any proceeding against the owners, or even men¬ tioning their names, partakes of all the es¬ sential features of an admiralty proceeding in rem, of which exclusive jurisdiction is given to the district courts of the United States. See also The Moses Taylor, 4 Wall.

411, 427, 18 L. ed. 397, 400, wherein it is said : “The action against the boat by name, authorized by the statute of California, is a proceeding in the nature, and with the inci¬ dents, of a suit in admiralty. The distin¬ guishing and characteristic feature of such suit is that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced ac¬ cordingly.”

In The Belfast, 7 Wall. 624, 19 L. ed. 266, a proceeding was taken in a state court in Alabama for the enforcement of a lien for the loss of certain cotton. The statute was, in its essentials, a reproduction of the New York statute under consideration. Plain¬ tiffs contended that, admitting the admi¬ ralty courts had jurisdiction, the state courts had concurrent jurisdiction to afford the parties the same remedies. It was that state ^legislatures had no authority to[37J create a maritime lien, or to enforce such a lien by a suit or proceeding in rem, as prac¬ tised in the admiralty couits.

In all these cases the distinction is sharp¬ ly drawn between a common-law action in personam, with a concurrent attachment against the goods and chattels of the defend¬ ant, subject, of course, to any existing liens, and a proceeding in rem against the vessel as the debtor or “offending thing,” which is the characteristic of a suit in admiralty.

The same distinction is carefully preserved in the general admiralty rules prescribed by this court; rule 2d declaring that, in suits in personam, the mesne process may be “by a warrant of arrest of the person of the de¬ fendant, with a clause therein that, if he

6 81

37-39

Supreme Court of the United States.

Oct. Term,

cannot be found, to attach his goods and chattels to the amount sued for;” and rule 9, that in suits and proceedings in rem the process shall be by warrant of arrest of the ship, goods, or other things to be arrested, with public notice to be given in the news¬ papers. The former is in strict analogy to a common-law proceeding, and is a concur¬ rent remedy. The latter is a proceeding dis¬ tinctively maritime, of which exclusive jurisdiction is given to the admiralty courts.

That the New York statute belongs to the latter class is evident from the Code, by which, upon written application to a justice of the supreme court, a warrant is issued for the seizure of the vessel, and for an or¬ der to show cause why it should not be sold to satisfy the lien. The warrant in this case recites “that an application had been made to me . . . for a warrant to en¬

force a lien against the canal boat or vessel called Rob't W. l’arsons,” and commands the sheriff “to seize and safely keep said canal boat to satisfy said claim ... as above set forth, to be a lien upon said vessel according to law.” The proceeding author¬ ized by the New York statute in question was held to be in the nature of a suit in admiralty in Bird v. The Josephine, 39 N. Y. 19, and Broolcman v. Hamill, 43 N. Y. 554, 3 Am. Rep. 731. The proceeding is also similar to that provided by the laws of Mas¬ sachusetts, which, in the case of The Glide, 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct.

Rep. 930, *was held to be, as to repairs and supplies in the home port, exclusively within the admiralty jurisdiction of the Federal courts.

As § 30 of the New York statute excludes a debt which is not a lien by the maritime law, and § 3419, providing for their enforce¬ ment, also excludes liens founded upon a maritime contract, we think the state courts were in error in enforcing this lien, thereby bolding that a contract for the repair of a canal boat while lying in the Erie canal was not a maritime contract, and that the stat¬ ute so construed is pro tanto unconstitu¬ tional.

The judgment of the court below must, therefore, be reversed, and the case re¬ manded to the Supreme Court of the State of New York for further proceedings not in¬ consistent with this opinion.

Mr. Justice Brewer, dissenting:

I am unable to concur in the opinion and judgment in this case, and deem the matter of suflicient importance to justify an expres¬ sion of my reasons therefor.

It is well to understand exactly the facts of the case. Sections 30 and 35 of the Laws of New York, 1897, chap. 418, are quoted in the opinion of the court. By the first, a 82

i lien is given on a seagoing or ocean-bound vessel, if the amount of the debt is $50 or upwards, and on any other, vessel if $15 or upwards. And, among other things, the lien is for work done, or material or other ar¬ ticles furnished, for the b.uilding or repair¬ ing of such vessel. By the second, the lien, if founded upon a maritime contract, can be enforced only in the United States courts; if not founded upon such a contract, by pro¬ ceedings in the state courts, in the manner provided by the Code of Civil Procedure.

The canal boat, upon which the lien was claimed, was not a seagoing or ocean-bound vessel, but engaged in carrying merchandise between Buffalo and other ports within the limits of the state of New York. The state¬ ments in two affidavits, *one of the plaintiff

and the other the defendant (the plaintiff being the owner of the claim, and the de¬ fendant the owner of the boat), were, by stipulation between the parties, 'agreed upon as the facts in the case. No question was made of the justice of the claim or the lia¬ bility of the owner of the boat therefor.

The work consisted in “permanent repairs upon the boat,” in this, that “a part of one side of said boat was taken out and her cheek plank removed, and the side of the boat and the cheek plank were rebuilt into said boat.” The work was done upon dry docks belonging to the plaintiff in the vil¬ lage of Middleport, a village located on the Erie canal. The boat, at the time, was on a trip from New York to Buffalo. The value of these permanent repairs was $154.40, and the boat, when thus repaired, sold for only $155. Further, according to the bill of par¬ ticulars, 727 feet of lumber, 47 bolts, 165 pounds of spikes, and 265 pounds of iron, as well as three hundred and thirty-four hours of labor, which, at ten hours a day, amounted to over thirty-three days, were used in the work. The size of the canal boat is not given, but, from this statement as to the amount and value of the work, it is evident that the repairs might well be considered a rebuilding of the boat. Be that as it may, the contract was made on land, to be performed on land, and was, in fact, performed on land. The plaintiff was a care.l-boat builder, having dry docks and yards at the village of Middleport, and on these dry docks the work was done.

Was this a maritime contract? A con¬ tract for building a ship or supplying ma¬ terials for her construction is not a mari¬ time contract. People’s Ferry Go. v. Beers,

20 How. 393, 15 L. ed. 961 ; Roach v. Chap¬ man, 22 How. 129, 16 L. ed. 294. In the former of these cases the court said (p. 402,

L. ed. p. 965) : “So far from the contract being purely maritime, and touching rights and duties appertaining to navigation (on

191 U. S.

Perry v. Haines.

39-42

the ocean or elsewhere), it was a contract made on land, to be performed on land.”

So, in Sheppard v. Steele, 43 N. Y. 52, 56,

3 Am. Rep. 660, 662 :

“The claim here is for labor upon the hull of a vessel, while in the process of construc-

tion, before launching, while yet on *the land. This is not a maritime contract. It is one relating to a subject on the land, and it is to be performed on the land. The admiralty courts have no jurisdiction for its enforce¬ ment. Foster v. The Richard Busteed, 100 Mass. 409, 1 Am. Rep. 125.”

That a dry dock is to be considered as land in the maritime law seems to be clear from the decision of this court in Cope v. Vallette Dry Dock Co. 119 U. S. 625, 30 L. ed. 501, 7 Sup. Ct. Rep. 336, in which it was held that a dry dock was not a subject of salvage service, Mr. Justice Bradley, speak¬ ing for the court, saying (p. 627, L. ed. p. 502, Sup. Ct. Rep. p. 337) : “A fixed struc¬ ture, such as this dry dock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a warehouse when projecting into or upon the water.” The dry dock referred to in this case was a floating dock fastened by chains to the bank of the Mississippi river. Whether the dock in this case was likewise fastened by chains, or a structure perma¬ nently attached to the land, does not appear. Certainly, it cannot be presumed, for the purpose of reversing the judgments of the state courts, that it was not permanently attached to, and as much a part of, the land, as a bridge or a wharf.

In this connection, reference may be had to Bradley v. Bolles, Abb. Adm. 569, Fed. Cas. No. 1,773, in which it was held by Judge Betts that work done upon a vessel in a dry dock in scraping her bottom, pre¬ paratory to coppering her, is not of a mari¬ time character, and that compensation for such labor cannot be recovered in a court of admiralty. Judge Betts says, in his opin¬ ion, that the court had repeatedly held that contracts of that description do not consti¬ tute a lien upon vessels which can be en¬ forced in admiralty. In Boon v. The Hornet, Crabbe, 426, Fed. Cas. No. 1,640, a canal boat was hauled on shore on the bank of a river where the tide ebbed and flowed, and there repaired. It was held that, al¬ though the law of the state gave a lien, the admiralty court would not take cognizance of such a claim.

So, also, where damage is done wholly upon the land, admiralty will not take juris-

diction, although the cause of the * damage originated on waters subject to its jurisdic¬ tion. The Plymouth, 3 Wall. 20, sub nom. Hough v. Western Transp. Co. 18 L. cd. 125; Ex parte Phenix Ins. Co. 118 U. S. 610, 191 U. S.

30 L. ed. 274, 7 Sup. St. Rep. 25; Johnson v. Chicago d P. Elevator Co. 119 U. S. 388,

30 L. ed. 447, 7 Sup. Ct. Rep. 254. Two of these were cases in which fire originating on a vessel communicated to property on land, and the owner of the property attempted to recover in the admiralty courts, but their jurisdiction was denied. The other was where a vessel, while being towed in the Chi¬ cago river, struck and damaged a building on the land. For this damage, an action was maintained in the state court, and the jurisdiction of that court upheld. It would seem to follow from these cases that a con¬ tract made on land, to be performed on land, and, in fact, performed on land, is not sub¬ ject to admiralty jurisdiction; and, likewise, that a tort resulting in injury to something on the land is, also, not subject to admiral¬ ty jurisdiction, although the tort was on waters subject to such jurisdiction. It is true, many cases may be found in which it is stated, generally, that admiralty has juris¬ diction of claims for repairs upon vessels, but, evidently, that contemplates repairs made while the vessel is in the water.

In this connection, I notice a statement in the opinion cf the court, that "for inci¬ dental repairs made on land to articles of a ship’s furniture or machinery, it has never been supposed that a court of admiralty had jurisdiction.” But if an engine be taken out of a steam tug and repaired on land, and a court of admiralty has no juris¬ diction of the claim for such repairs, has it any more claim when the hull of a canal boat is brought on the land and the side of it replaced? In each case the contract is one performed on the land, and, although having ultimate relation to navigation on the water, it is not, of itself, directly con¬ nected with navigation.

Further, no objection can, of course, be made to the New York statutes. Section 30 gives a lien, and no one questions the power of a state to provide for such a lien to be enforced in some court. Section 35 provides that, if the lien is founded on a maritime contract, it is enforceable only in the courts of the *United States. Surely, that is as far

as the most strenuous advocates of an ex¬ tended admiralty jurisdiction can claim, and it is only in those cases, as the section provides, where the lien is not founded upon a maritime contract that the state courts may exercise jurisdiction. The state courts of New York, from the trial through the su¬ preme to the court of appeals, have all held that this lien was not founded upon a mari¬ time contract. Upon what just ground can this court disturb this finding? If it be a pure question of fact, we have often held that we are bound by the action of the state courts. If it is one partly of fact and

S3

42-44

Supreme Court of the United States.

Oct. Term,

partly of law, then, surely, we ought not, except in the clearest case, to reverse those courts.

Still again, it has been repeatedly declared by this court, following the statute, that a claim cognizable in admiralty can be en¬ forced in the state courts by common-law remedies. Now, whatever may be the nature of the contract (the foundation of the lien in this instance), the only provi»ion in § 35 is that it can be enforced in the manner pro¬ vided by the Code of Civil Procedure.

Turning to the Code of Civil Procedure, we find, in title 4 of chapter 23, the provi¬ sions for the enforcement of liens on ves¬ sels. These provisions are, first, the lienor is to make a written application to a justice of the supreme court for a warrant to en¬ force the lien and to collect the amount thereof, which application must state sub¬ stantially the same facts as in an ordinary pleading to enforce a mechanic’s lien on buildings. § 3420. Upon the filing of such application, the justice is directed to issue a warrant for the seizure of the vessel, and, at the same time, to grant an order to show cause why the vessel should not be sold to satisfy the lien. A copy of the order and the application for the warrant must be served personally upon the master or other person in charge of the vessel, “and personally up¬ on the owner and consignee of such vessel if a resident of the state, or, if not a resi¬ dent of the state, by mail addressed to such owner or consignee at his last known place

of residence, within ten days after the *exe- cution of such warrant.” §§ 3422 and 3423. By § 3424, the applicant is also required to give notice, in some paper published in the county where the vessel was seized, “stat¬ ing the issuance of the warrant, the date thereof, the amount of the claim specified therein, the name of the applicant, and the time and place of the return of the order to show cause.” By § 3425, the owner or consignee, or any other person interested, may appear and contest the claim of the lienor. Subsequent provisions authorize an appeal, as in other civil cases. The record shows that the proceedings had were substan¬ tially in accordance with these provisions. The application, called a petition, was filed, setting forth all the facts required, including the name of the owner. An order of sale and an order to show cause were both issued, and the owner appeared in response to such no¬ tice. It is true, there is in the record no proof of service upon the owner, but the fact of her appearance to contest the appli¬ cation is shown. It is also true that she did not, after her appearance, contest the amount of the claim, but contented herself with challenging the jurisdiction of the court. But such action on her part does not 84

obviate the fact that the proceedings on be¬ half of the petitioner were substantially those to collect a civil debt by attachment against the property of the defendant. In this connection, reference, may be had to The Mine v. Trevor, 4 Wall. 555, 18 L. ed. 451, in which an Iowa statute was held uncons'titu- tional, but, as said by Mr. Justice Miller, speaking for the court on page 571, L. ed. p. 45G, describing the remedy provided for by that statute:

“The remedy pursued in the Iowa courts, in the case before us, is in no sense a com¬ mon-law remedy. It is a remedy partaking of all the essential features of an admiralty proceeding in ran. The statute provides that the vessel may be sued and made de¬ fendant without any proceeding against the owners, or even mentioning their names.

That a writ may be issued and the vessel seized, on filing a petition similar, in sub¬ stance, to a libel. That, after a notice in the nature of a monition, *the vessel may be

condemned and an order made for her sale, if the liability is established for which she was sued. Such is the general character of the steamboat laws of the western states.”

But in the very same case it was also said by the learned justice:

“While the proceeding diflers thus from a common-law remedy, it is also essentially different from what are in the west called suits by attachment, and, in some of the older states, foreign attachments. In these cases there is a suit against a personal de¬ fendant by name, and, because of inability to serve process on him on account of nonresidence, or for some other reason men¬ tioned in the various statutes allowing at¬ tachments to issue, the suit is commenced by a writ directing the proper officer to at¬ tach sufficient property of the defendant to answer any judgment which may be render¬ ed against him. This proceeding may be had against an owner or part owner of a ves¬ sel, and his interest thus subjected to sale in a couimon-law court of the state.

“Such actions may also be maintained in personam against a defendant in the com¬ mon-law courts, as the common law gives; all in consistence with the grant of admi¬ ralty powers in the 9th section of the judici¬ ary act.”

So, in the case at bar, we have a proceed¬ ing authorized by the statute in which the owner is named, and notice required to be served on him, and notice in fact served, an appearance of the defendant, and an oppor¬ tunity to try the merits of the claim, as in any other civil action.

That a state has full control over the prac¬ tice and procedure to be pursued in its courts has been often adjudged. Thus, in Missouri v. Lewis, 101 U. S. 22, 31, sub

191 TJ. S.

Perry v. Haines.

44 i7

nom. Bowman v. Lewis, 25 L. ed. 989, 992, it was said by Mr. Justice Bradley, speaking for the court:

“We might go still further, and say, with undoubted truth, that there is nothing in the Constitution to prevent any state from adopting any system of laws or judicature it sees fit for all or any part of its terri¬ tory.”

651, 29 L. ed. 250, 253, 5 Sup. Ct. Rep. 1148, 1153, Mr. Justice Harlan used these words:

“That commonwealth [Pennsylvania] has the right to establish the forms of pleadings and process to be observed in her own courts, in both civil and criminal cases, sub¬ ject only to those provisions of the Consti¬ tution of the United States involving the protection of life, liberty, and property in all the states of the Union.”

So Mr. Justice White, speaking for the court, in Iowa G. R. Go. v. Ion a, 160 U. S. 389, 393, 40 L. ed. 467, 469, 16 Sup. Ct. Rep. 344, 345, declared:

“But it is clear that the 14th Amendment in no way undertakes to control the power of a state to determine by what process legal rights may be asserted or legal obligations be enforced, provided the method of proce¬ dure adopted for these purposes gives rea¬ sonable notice, and affords fair opportunity to be heard before the issues are decided.”

See also Ghicago, B. & Q. R. Co. v. Chica¬ go, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Baclcus v. Fort Street Union De¬ pot Go. 169 U. S. 557, 570, 42 L. ed. 853, 859, 18 Sup. Ct. Rep. 445; Brown v. New Jersey, 175 U. S. 172, 44 L. ed. 119, 20 Sup. Ct. Rep. 77 ; League v. Texas, 184 U. S. 156, 158, 46 L. ed. 478, 480, 22 Sup. Ct. Rep. 475.

But it is said that, while this is generally true, there is this limitation, that the state cannot, as to claims against vessels, adopt the procedure now obtaining in admiralty cases, or, without actual notice to the owner, seize and sell a vessel in satisfaction of a lien. Of course, it is not necessary to de¬ termine that question, because, as I have stated, there was notice to the owner and an appearance by her, and such proceeding was authorized by the statute. But, even if it was not so authorized, and was simply a direct proceeding to enforce a lien upon the vessel and sell it in satisfaction thereof, 1 insist that the state courts may entertain jurisdiction. It was held in Arndt v. Griggs, 134 U. S. 316, 33 L. ed. 918, 10 Sup. Ct. Rep. 557, that a state may provide by statute that the title to real estate within its limits shall be settled and determined by a suit in which the defendant, being a nonresident, is only brought into court by publication. The question was discussed at length, the author- r461ities ‘reviewed, and the conclusion reached 191 U. S.

that the state had such jurisdiction over real estate within its limits that it could de¬ termine the title without the personal pres-, ence of the owner. But has the state any less jurisdiction over personalty situated within its borders than it has over real estate ? Up¬ on what theory of state power can it be held that a state may devest a nonresident of his title to real estate, and not a nonresident of his title to personal property? There seems to be a contention that there is a peculiar sanctity in the form of admiralty proceedings which excludes the state from resort to them, but the jurisdiction of the admiralty courts does not depend on the form of the procedure. Congress may, if it see fit, change entirely that procedure. As said by Chief Justice Taney in The Genesee Chief v. Fitshugh, 12 How. 460, 13 L. ed. 1065:

“The Constitution declares that the judi¬ cial power of the United States shall extend to ‘all cases of admiralty and maritime ju¬ risdiction.’ But it does not direct that the court shall proceed according to ancient and established forms, or shall adopt any other form or mode of practice. The grant de¬ fines the subjects to which the jurisdiction may be extended by Congress. But the ex¬ tent of the power, as well as the mode of proceeding in which that jurisdiction is to be exercised, like the power and practice in all the other courts of the United States, are subject to the regulation of Congress, except where that power is limited by the terms of the Constitution, or by necessary implication from its language. In admiralty and maritime cases, there is no such limita¬ tion as to the mode of proceeding, and Con¬ gress may, therefore, in cases of that de¬ scription, give either party right of trial by jury, or modify the practice of the court in any other respect that it deems more con¬ ducive to the administration of justice.”

Suppose Congress should exercise this power, and substitute for the procedure in admiralty courts the common-law practice, and make it the only method of procedure therein. What would become of the argu¬ ment that the state cannot resort to the procedure obtaining in admiralty courts for enforcing ‘the rights of claimants? Must it,

then, desist from common-law' remedies be¬ cause they have been adopted in admiralty and go back to that form of procedure now obtaining in the admiralty courts? Can it be that the power of a state to vest jurisdic¬ tion in one of its courts depends upon the form of procedure which it adopts?

Why should we be so anxious to drive par¬ ties having small claims away from their local courts to courts not infrequently held at a great distance? Why should we be so anxious to force litigants into a court where there is no constitutional right to a trial

85

47-49

Supreme Court of the United States.

Oct. Term,

by jury? I, for one, believe that the right of trial hy jury is not to be taken away from a claimant unless it be a case coming clearly within the well-established limits of equity and admiralty cases. I do not like to see these provisions, which have so long been the boast of our Anglo-Saxon system of procedure, frittered away by either legis¬ lative or judicial action.

Further, it seems a great hardship that a party who has been brought into a court of general jurisdiction, with full opportu¬ nity to litigate the claim of the plaintiff, and lias carried the case through all the courts of the state without ever disputing its valid¬ ity, should now obtain a reversal of the en¬ tire proceedings when such reversal may operate to prevent the collection of the debt. By § 33 of chapter 418, heretofore referred to, the lien expires at the expiration of twelve months from tlie time the debt was contracted. Of course, the lien is now gone. The canal boat has very likely disappeared, and the owner may be entirely irresponsible.

Even if these objections to the opinion and judgment of the court are wholly without foundation, there is still another, broader and deeper. I do not believe that, under the true interpretation of the Constitution, the admiralty jurisdiction of the Federal courts extends to contracts for the repairs of ves¬ sels engaged wholly in commerce within a state. I recognize the fact that this court has decided in a series of cases, commencing with The Genesee Chief v. Fitzhugh, 12 How.

443, 13 L. ed. 1058, that *the admiralty juris¬ diction of the Federal courts is not limited by tide waters, as admiralty jurisdiction was understood to be limited, both in Great Britain and in this country, at the time the Constitution was framed, but extends to all navigable waters of the United States; and I have no disposition to question the correct¬ ness of those decisions, or in any way limit their scope. But what is admiralty? It is the law, not of the water, but of the seas.

As said in Edwards, Admiralty Jurisdic¬ tion, p. 29:

‘‘But its jurisdiction may be said to rest generally on the following considerations: First, the nature of the property to be ad¬ judicated upon; secondly, the question to be decided; thirdly, the origin of the cause; and fourthly, the locality; and these must be of the sea to give the admiralty a juris¬ diction.”

So, also, in Edwards v. Elliott, 21 Wall. 632, 553, 22 L. ed. 487, 491, is this declara¬ tion of this court:

“Maritime contracts are such as' relate to commerce and navigation, and, unless a con¬ tract to build a ship is to be regarded as a maritime contract, it will hardly be con¬ tended that a contract to furnish the mate- 86

rials to be used in accomplishing that object can fall within that category, as the latter is more strictly a contract made on land, and to be performed on 'land, than the former, and is certainly one stage further removed from any immediate and direct re¬ lation to commerce and navigation.”

It grew up out of the fact that the ocean is not the territorial property of any nation, but the common property of all ; that vessels engaged in commerce between the different nations ought, so far as possible, to be sub¬ ject to a uniform law, and not annoyed by the conflicting local laws and customs of the several nations which they visit. I do not mean that the several maritime nations did not establish different rules, or that there is not some dissimilarity in their mari¬ time laws, for, as long as each nation is the master of its own territory, it may legislate as it sees fit in reference to maritime mat¬ ters coming within its jurisdiction, and yet this does not abridge the fact “that admiralty

grew up out of the thought of having a common law of the seas. It was well said by Mr. Justice Bradley in The Lottawanna,

21 Wall. 558, 572, sub nom. Rodd v. Heartt,

22 L. ed. 654, 661:

“Perhaps the maritime law is more uni¬ formly followed by commercial nations than the civil and common laws are by those who use them. But, like those laws, however fixed, definite, and beneficial the theoretical code of maritime law may be, it can have only so far the effect of law in any country as it is permitted to have. But the actual maritime law can hardly be said to have a fixed and definite form as to all the sub¬ jects which may be embraced within its scope. Whilst it is true that the great mass of maritime law is the same in all commer¬ cial countries, yet in each country peculiari¬ ties exist, either as to some of the rules, or in the mode of enforcing them. 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 mat¬ ters a fleeting the stranger or foreigner, the commonly received law of the whole com¬ mercial world is more assiduously observed,

— as, in justice, it should be. No one doubts that every nation may adopt its own mari¬ time code. France may adopt one, England another, the United States a third; still, the convenience of the commercial world, bound together, as it is, by mutual relations of trade and intercourse, demands that, in all essential things wherein these relations bring them in contact, there should be a uniform law founded on natural reason and justice. Hence the adoption by all commer-

191 U. S.

Perry v. Haines.

49-52

cial nations (our own included) of the gen¬ eral maritime law as the basis and ground¬ work of all their maritime regulations.

. . . Each state adopts the maritime law,

not as a code having any independent or in¬ herent force, proprio vigore, but as its own law, with such modifications and qualifica¬ tions as it sees fit. Thus adopted, and thus qualified in each case, it becomes the mari¬ time law of the particular nation that adopts it. And without such voluntary

adoption “it would not be law. And thus it happens that, from the general practice of commercial nations in making the same gen¬ eral 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.”

In the opinion of Chief Justice Taney, in The Genesee Chief v. Fitzhugh, 12 How. 443, 13 L. ed. 1058, in which this court for the first time held that the jurisdiction of the admiralty courts extended above tide water, the argument is thus stated (p. 454, L. ed. p. 1063) :

“In England, undoubtedly the writers up¬ on the subject, and ihe decisions in its courts of admiralty, always speak of the jurisdic¬ tion as confined to tide water. And this definition in England was a sound and rea¬ sonable one, because there was no navigable stream in the country beyond the ebb and flow of the tide; nor any place where a port could be established to carry on trade with a foreign nation, and where vessels could en¬ ter or depart with cargoes. In England, therefore, ‘tide water’ and ‘navigable water’ are synonymous terms, and ‘tide water, with a few small and unimportant excep¬ tions, meant nothing more than public riv¬ ers, as contradistinguished from private ones; and they took the ebb and flow of the tide as the test, because it was a convenient one, and more easily determined the char¬ acter of the river. Hence, the established doctrine in England, that the admiralty ju risdiction is confined to the ebb and flow of the tide. In other words, it is confined to public navigable waters.

“At the time the Constitution of the Unit¬ ed States was adopted, and our courts of ad miralty went into operation, the definition which had been adopted in England was equally proper here. In the old thirteen states, the far greater part of the navigable waters are tide waters. And in the states which were, at that period, in any degree commercial, and where courts of admiralty were called on to exercise their jurisdiction, every public river was tide water to the head of navigation. And, indeed, until tlu

discovery of steamboats, ‘‘'there could be noth in a like foreign commerce upon waters with 101 U. S.

an unchanging current resisting the upward passage. The courts of the United States, therefore, naturally adopted the English mode of defining a public river, and, conse¬ quently, the boundary of admiralty juris¬ diction. It measured it by tide water. And that definition, having found its way info our courts, became, after a time, the famil¬ iar mode of describing a public river, and was repeated, as cases occurred, without particularly examining whether it was as universally applicable in this country as it was in England.”

Again, as said by this court, in The Com¬ merce, 1 Black, 574, 579, sub nom. Commer¬ cial Transp. Co. v. Fitzhugh, 17 L. ed. 107,

109:

“All such waters are, in truth, but arms of the sea, and are as much within the ad¬ miralty and maritime jurisdiction of the United States as the sea itself.”

Such being the general nature of admi¬ ralty, and the jurisdiction of its courts being understood, at the time of the adoption of our Constitution, to relate to the ocean and the arms thereof, with the view of uniform¬ ity in respect to international commerce, what was granted to the general government when to its courts was given exclusive ju¬ risdiction over “all cases of admiralty and maritime jurisdiction?” Did it mean that the judicial power of the United States should extend to controversies respecting contracts and torts concerning every vessel upon all the waters of the several states?

It is not pretended that it did. Take an in¬ land lake, wholly within the limits of the territory of a state and having no connec¬ tion with the ocean. The admiralty juris¬ diction of the Eederal courts does not extend to contracts or collisions in respect to, or upon, such waters. The Montello, 11 Wall.

411, 20 L. ed. 191. But why should the ad¬ miralty jurisdiction of the United States courts not extend to landlocked waters wholly within the limits of a state, when it does extend to waters having connection with the ocean? Clearly, as shown by the quotation from Chief Justice Taney’s opin¬ ion in The Genesee Chief v. Fitzhugh, be¬ cause, since the use of steam, foreign com¬ merce may extend into such “waters, and,

therefore, the full exercise of the admiralty jurisdiction which concerns the law of the sea requires that that jurisdiction should be coextensive with waters which may be traversed by ocean-going vessels. It mat¬ ters not whether such waters are natural or artificial highways, canals or rivers.

[f they open to the ocean, or are con¬ nected with the ocean, they become, or may become, the highways of ocean com¬ merce, and, therefore, in order that the admiralty jurisdiction may be fully exer-

62-54

Supreme Court of the United States.

Oct. Term,

eised, it was held, and rightfully, in The Genesee Chief v. Fitzhugh, that it extends to all navigable waters of the United States. Take the case of a landlocked lake within the limits of New York. Unquestionably, the state has full jurisdiction over its wa¬ ters and the vessels traversing them. The admiralty courts of the United States would not assume any jurisdiction. Can it be that, if the state of New York constructs a canal, by which the waters of that lake are con¬ nected with the ocean, it is deprived of its full jurisdiction over those waters and the vessels traversing them? Doubtless,, to a certain extent, and for the purpose of fully effectuating the admiralty jurisdiction of the nation, the Federal courts in admiralty would have a certain jurisdiction. Take the case of The Diana, Lush. 539, in which Dr. Lushington assumed jurisdiction over a collision between two British vessels in the Great North Holland canal. Can it for a moment be supposed that the English admi¬ ralty courts would take jurisdiction of a claim for repairs made on a Dutch canal boat in such canal? Or, to bring the case nearer home, would the British admiralty courts take jurisdiction of the claim of this plaintiff for the work done upon the defend¬ ant’s canal boat? Or, would the admiralty courts of the United States take jurisdiction of a like action brought for repairs done to a canal boat on the canal between Liverpool and Manchester? Clearly, these matters are of local significance, and of local sig¬ nificance alone.

If it be said that the state of New York, in the case cited, would, notwithstanding

the construction of a canal between *the thitherto landlocked lake amd the ocean, still retain jurisdiction to enforce claims for repairs, but only by proceedings according to the course of the common law, I reply that, while it remained still a landlocked lake with no connection with the ocean, the state of New York having full jurisdiction, could, as we have seen, resort to any pro¬ ceeding it saw fit for the enforcement of claims for repairs. It has full control over its own procedure, and may change and alter it as it sees fit.

Can it be that, having such power before the waters are connected with the ocean, it loses that power by the act of connecting the waters of the ocean, and is deprived of its thitherto unquestioned control over the remedies it chooses to provide?

But it is said that, given the fact that the admiralty jurisdiction of the Federal courts extends to all navigable waters of the United States, and that such jurisdiction is exclu¬ sive, it follows that, the moment any navi¬ gable waters are connected with the ocean, the jurisdiction of the Federal courts over 88

those waters becomes exclusive. In this case we touch upon the difference between con¬ tracts and torts. As said in The Belfast, 7 Wall. 624, 637, 19 L. ed. 266, 270:

“Principal subjects of admiralty jurisdic¬ tion are maritime contracts and maritime torts, including captures jure belli, and seizures on water for municipal and revenue forfeitures.

“(1) Contracts, claims, or service, purely maritime and touching rights and duties ap¬ pertaining to commerce and navigation, are cognizable in the admiralty.

“(2) Torts or injuries committed on nav¬ igable waters, of a civil nature, are also cognizable in the admiralty courts.

“Jurisdiction in the former case depends upon the nature of the contract, but in the latter it depends entirely upon locality.”

We have here no matter of torts, but sim¬ ply one of contract. The question, therefore, is not one of locality, but one of the nature of the contract. The contract was for work done, not on an ocean-going vessel or one ca¬ pable ot engaging in foreign ’’commerce, or,

like a tug, The Glide, 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct. Rep. 930, one which can be used directly in assisting foreign com¬ merce, but a canal boat necessarily used only on inland waters, and in fact only so used. Can this fairly be adjudged a mari¬ time contract? I think not. Wilson v. Law¬ rence, 82 N. Y. 409; Edioards v. Elliott, 21 Wall. 532, 22 L. ed. 487. In addition to the fact that this boat was designed primarily for use upon a canal, to be drawn by ani¬ mals moving on the land, the place at which the work was done is also worthy of consid¬ eration. While the admiralty jurisdiction may extend to canals, yet the United States have no such exclusive control over canals as over natural navigable waters. The canal was built by the state, is owned by the state, and it cannot for one moment be assumed that the national government can interfere to restrict the state as to the size of the canal, the depth of water, the construction of bridges, or other things in respect to which it has full control over the natural navigable waters. It seems an anomaly that, when the state builds a waterway and owns a waterway, and has a general control over that waterway, it cannot provide as it sees fit for enforcing claims for work done on vessels navigating such highway when the vessels are of a character which prevents them being used for any foreign commerce.

Recapitulating: I dissent from the opin¬ ion and judgment of the court, because, first,

I think the contract, being made on land, for work to be done on land, and in fact done upon the land, is not a maritime con¬ tract, and therefore cannot be a subject of admiralty jurisdiction. Second, the pro-

191 U. S.

Wkight v

ceeding which was instituted was author¬ ized by the statutes of the state, and in its essential features an ordinary proceeding ac¬ cording to the course of the common law, which may always be resorted to even in re¬ spect to contracts which are of a strictly maritime nature. Third, because the grant to the national government over admiralty and maritime matters was in furtherance of commerce between this nation and others, and designed to secure uniformity in respect thereto, and does not extend to contracts made in respect to vessels which are inca-

pacitated *from foreign commerce, designed and used exclusively lor mere local trallic within a state.

1 am authorized to say that the Chief Justice and Mr. Justice Peckham concur in this dissent.

Mr. Justice Harlan also dissents.