ANDREW CRAWFORD (Doing Business under the Firm Name of A. Crawford & Co.) v. THE BARK "CAROLINE REED," her Tackle, Apparel, and Furniture, 42 Cal. 469

By the Court, Temple, J.: This is an action brought under

section three hundred and seventeen of the Practice Act, to enforce a lien for materials for the equipment and repair, and supplies for the use of the bark Caroline Reed. The vessel is a domestic vessel, and San Francisco, where the cause of action arose, is her home port. Whether the vessel was engaged entirely in commerce between different ports of this State, or between ports of this State and places not within the State, does not appear from the averments of the complaint.

A demurrer to the complaint was sustained on the ground that the statute under which the suit was brought is unconstitutional; and this appeal is from the judgment entered sustaining the demurrer. The materials and supplies furnished are alleged to have been furnished under a contract with the master of the vessel, and I do not understand that it is denied that the contract was of a maritime nature, upon which suit might have been brought against the owners or against the master in ■personam in the Courts of admiralty.

The case of The Moses Taylor, 4 Wall. 411, was a case under this very statute, to enforce a lien arising upon the breach of a contract to convey the complainant from Rew York to San Francisco.

The decision in this case, as I understand it, does not go to the extent of holding that the language of the Constitution itself, ex vi termini, vests in the Courts of the United States exclusive jurisdiction of all civil causes of maritime and admiralty jurisdiction, but holds that in all cases to which the judicial power of the United States extends, Congress may rightfully vest exclusive jurisdiction in the Federal Courts, “and that the Judiciary Act of 1789 vests in the District Courts exclusive jurisdiction of causes of action of this character.” It is also held that the saving clause in the ninth

section of the Judiciary Act is not a saving of a concurrent remedy in a common law Court, but the saving of a common law remedy. A proceeding in rem is not a common law remedy, and the statute of this State, as far as it attempts to authorize proceedings in rem for causes of action cognizable in the admiralty, is unconstitutional and void. The case of Hine v. Trevor, 4 Wall. 555, decided at the same term, is to the same effect.

It is there held that the grant to the District Courts of the United States of original admiralty jurisdiction is exclusive, not only of all other Federal Courts, but of the State Courts; and therefore State statutes which attempt to confer upon State Courts power to enforce a remedy by proceedings in rem for marine torts or contracts, are void. Both of these, however, were cases in which a maritime lien existed which could only be enforced in Courts of admiralty.

The Legislatures of the States in which the actions were brought had attempted to create a statutory lien which should, in effect, take the place of the maritime lien previously existing. If this could be done, it would necessarily deprive the District Courts of much of the jurisdiction conferred upon them by the Judiciary Act, or, at least, would give the State Courts concurrent jurisdiction with them.

It is contended, however, that in the case at bar—there being no lien, by maritime law, for materials and supplies furnished at the home port—the statute does not trench at all upon the jurisdiction of the District Courts of the United States. The lien created is not a substitute for the lien existing by maritime law, but is made to meet a case where no such lien existed before. The Federal Courts cannot enforce this lien, for it is not a maritime lien.

This argument, it seems to me, overlooks the fact that the cause of action is not to enforce a lien, but to recover for materials and- supplies upon a maritime contract. The Admiralty Courts undoubtedly have jurisdiction to enforce this contract. The language of the Judiciary Act is not that the District Courts shall have exclusive, original cognizance of actions to enforce maritime liens, but of all civil causes of admiralty and maritime jurisdiction. The cause of action is the breach of the contract. For this an action lies in admiralty.

It is the fact that it is a maritime contract which gives that Court jurisdiction, and not the fact that a maritime lien is to be enforced. It being admitted that the cause of action in the case at har is one of which the Courts of admiralty have jurisdiction, it must follow that their jurisdiction is exclusive, except so far as the State Courts are permitted to take jurisdiction by the saving clause in the ninth

section of the Judiciary Act. It is remarked in each of the cases cited from 4 Wallace that this saving is not of a remedy in the common law Courts, but of a common law remedy. It must follow from this that whenever Courts of admiralty have jurisdiction of a cause of action, whether it affords a remedy in rem, or in personam merely, that jurisdiction is exclusive, except as to the common law remedy reserved by that Act. This action is brought to obtain relief for the breach of a maritime contract, and the remedy given by the statute is not a common law remedy. This seems to me conclusive against the statute.

I see no reason to doubt the constitutionality of the statute, so far as it may be made applicable to causes of action which are not cognizable in Courts of admiralty. There is no objection to the law merely because it authorizes a suit against the vessel itself, except so far as the suit is upon a marine contract. Judgment affirmed.