ship for remuneration, which he may enforce directly CHAP. 2. against the ship by an action in rem; and neither of these three remedies is displaced, except by conclusive proof that an exclusive credit was given either to the master or owner, or both, or to the ship itself(a).

The maritime law of continental Europe makes no distinction between the cases of domestic ships and foreign ships, nor between supplies furnished in a home port and abroad. The result of the modern decisions of the English courts appears, however, to be, that with the exception of the common law lien in favor of a shipwright while he continues in possession of the ship which he has built or repaired, no lien or preference is given by the common or maritime law of England, for repairs made or supplies furnished in a home port, without an express hypothecation (b).

In this country, the general maritime law of Europe on this subject has been explicitly adopted, with the exception of the case of an American ship repaired or supplied in a port of the state to which she belongs; and even in this case, if (as in Maine, New-York, Pennsylvania and other states) a lien is

(a) The Nestor, 1 Sumner's R., 73; The Barque Chusan, 2 Story's R., 455, 486; Andrews et al. v. Wall et al., 3 Howard's R., 568, 572. (b) Abbot on Shipping, Part 11., ch. 3, § 9; Kent's Comm., 3d ed., 169. By the act of 3 & 4 Victoria, ch. 65, § 6, however, the High Court of Admiralty is now invested with jurisdiction to decide all claims and demands whatsoever for services rendered or for necessaries supplied to any foreign or sea-going vessel, and to enforce the payment thereof, whether such ship may have been within the body of a county, or upon the high seas, at the time when the services were rendered or necessaries furnished, in respect of which such claim is made.

VOL. 1.

given by the local law, it may be enforced by admiralty process(a).

In the case of foreign ships, or of American ships in foreign ports, the lien is implied from the nature of the contract and the circumstances attending it; contrary to the rule of the common law, which admits no lien upon goods not in the possession, actual or constructive, of the creditor. The creditor is supposed to have looked to the vessel for security, and the contract of the master imports a hypothecation. But in the case of a vessel in her home port, it has been thought in the American courts that the credit may well be supposed to have been given to the owner; and, in this country, no lien is implied. Hence the necessity, in that case, of having recourse to the local law. Not that it can confer jurisdiction on the courts of the United States; but if it gives a lien, and the contract be maritime, then the lien, being attached to it, can be enforced according to the mode of administering remedies in the admiralty. The state law furnishes the rules to ascertain the rights of the parties; and thus assists in the administration of the proper remedies, where the jurisdiction is vested by the laws of the United States.

(a) See inter. al., The General Smith, 4 Wheaton, 438 (4 Curtis's Decis. S. C., 440); The St. Jago de Cuba, 9 Wheaton, 409 (6 Curtis's Decis. S. C., 110), The Jefferson, 10 Wheaton, 429 (6 Curtis's Decis. S. C., 465); Peyroux v. Howard, 7 Peters's R., 324 (10 Curtis's Decis. S. C., 506); The Steamboat Orleans v. Phœbus, 11 Peters's R., 175 (12 Curtis's Decis. S. C., 391); The Jerusalem, 2 Gallison's R., 345; The Fulton, Paine's R., 620; Davis et al. v. A New Brig, Gilpin's R., 473; Rule 12 of Ad. Practice, 3 Howard's R., vi.

It will be seen, therefore, that in the American CHAP. 2. courts of admiralty, suits in rem may be maintained by material-men, 1, in the case of foreign ships, including ships belonging to other states, these being regarded as foreign; 2, in the case of domestic ships, when the repairs have been made or supplies furnished out of the state to which the vessel belongs; and, 3, in the case of domestic ships obtaining repairs or supplies in a home port, provided the local law gives a lien therefor.

I have hitherto spoken of this lien in general. terms, as affecting the ship. It is necessary, therefore, distinctly to add, that it is to be considered as attaching also to the freight, earned in the voyage during or preparatory to which the supplies were furnished. It was so held indirectly by Judge WARE, in the case of The Brig Spartan (a), many years ago; and in the case of Shepard et al. v. Taylor et al.(b), it was decided by the Supreme Court of the United States, that the mariner's lien for wages extended likewise to the freight and the claims of material-men are held, by the maritime law, in equal favor with wages; repairs and supplies being no less essential than the services of the mariner, to furnish "wings and legs" to the ship, for the purpose of enabling her to complete her voyage for the benefit of all concerned. But the question may be considered as put at rest by the twelfth Rule of Admiralty Practice, by which it is expressly declared that "In all suits by material-men, for supplies or repairs, or other necessaries for a foreign ship, or

(a) Ware's R., 149.

(b) 5 Peters's R., 676 (9 Curtis's Decis. S. C., 531).

May be

maintained

also against

the freight.

4

VOL. 1. for a ship in a foreign port (which, as we have seen, includes a port of another state), the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam.".

Materialman not bound to proceed against the freight.

No lien cre

ated by contracts of the owner.

The terms of this rule may seem to infer, that when the material-man proceeds against the ship, he is bound to proceed also against the freight; but this construction, it is supposed, could not have been intended. The right of the material-man to maintain a suit in the admiralty against the ship alone, had been firmly established by antecedent decisions, and it could not have been designed to interfere with this right. The extension of the lien -to freight had not been before directly asserted by the court. The object of the rule doubtless was, therefore, for the purpose of dissipating any doubt which might be entertained upon the subject, distinctly to declare the existence of the lien against the freight as well as against the ship.

To guard against possible misapprehension, it is proper to state, that no lien is ever implied from contracts made by the owner in person. It is only those contracts which the master enters into in his character of master, that specifically bind the ship, or affect it by way of lien or privilege in favor of the creditor. When the owner is present, and acting in his own behalf as such, the contract is presumed to be made with him on his ordinary responsibility, without a view to the vessel as a fund from which compensation is to be derived(a).

(a) See the cases of The St. Jago de Cuba, 9 Wheaton's R., 409 (6 Curtis's Decis. S. C., 110); and The Phebe, Ware's R., 263, 275, where this principle is incidentally stated.

We have seen that in the case of repairs or supplies to an American vessel in a port of the state to which she belongs, no lien is implied in favor of the material-man, because he is presumed to have relied on the personal responsibility of the master and owner. But when, as is sometimes done for the purpose of illicit trade, the vessel is made to assume a foreign guise so as to conceal her true character, it is obvious that the reason on which the distinction is founded does not exist; and it has accordingly been adjuged that, in such a case, the lien attaches. The rights of the material-man depend not on facts, but upon his knowledge or belief concerning them; and the owner is precluded by his own acts from denying the foreign character of the ship(a).

of materialmen preferred to the claim

The case just cited establishes also another impor- Lien in favor tant principle, viz., that the maritime lien or privilege of the material-man in all cases, is entitled to prefer- forfeiture, ence over the title of the United States acquired by forfeiture, provided the creditor had no knowledge of the offence by which the forfeiture was incurred. The necessities of commerce require that this should be so. The lien is given for the express purpose of inspiring confidence abroad, and thus enabling the master to obtain the means of pursuing his voyage, and getting home in safety; and it would be inconsistent with

forfeiture policy to allow priority to a

accruing, from acts, wherever committed, of which the creditor was ignorant when he parted with his property, or rendered the services for which

(a) The St. Jago de Cuba, 9 Wheaton's R., 409 (6 Curtis's Decis. S. C., 110).