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Vol. I.]

THE CHAMPION.

(No. 11.

In the case of The Alexander the libel was in rem against a Norwegian ship for necessaries supplied to her in England in 1835, five years before the act went into operation. The jurisdiction of the court was contested on the ground that the act did not affect past claims. But the court held the contrary, and maintained the jurisdiction. In the course of the opinion (p. 294), Dr. Lushington said: "Now the action in the case is brought in virtue of the particular statute recently enacted, and without that statute the court would not have been justified in entertaining the suit at all ; for although the subject matter of the case clearly falls within the original scope of the maritime law, before the passing of the statute the court might have been prohibited from proceeding in the cause, on the ground that the common law had narrowed the general jurisdiction originally belonging to this court; such prohibition is now taken off by the statute, but looking to the words of the act I do not find any expressions limiting the jurisdiction of the court to cases accruing subsequent to the period when the act came into operation.” The learned doctor treated the statute simply as an act of delivery of the admiralty from the thraldom in which it had been held by the common law courts; and he maintained the jurisdiction, not because the statute created a lien, or that the claim or cause of action had

any

foi ation in it, bu cause the lien, claim, and cause of action clearly fell “ within the original scope of the maritime law," and had their foundation in it. I consider the learned doctor's position entirely sound, and am not aware that its soundness has ever been questioned.

In the case of The Wataga the application was for payment out of the proceeds of an American ship for necessaries supplied to her in 1856, at the Cape of Good Hope, a British possession — the case being, in its incidents, almost identical with the one now under consideration. The application was opposed on the ground that the statute of 3 & 4 Vict. ch. 65, sec. 6, was not intended to apply to the case of necessaries supplied to a foreign ship in a port at a distance from England, though a British possession. But Dr. Lushington, by whom this case was also decided, held otherwise, and maintained the jurisdiction. The decision in that case would maintain the jurisdiction in this in that same court. At the close of the opinion (p. 167), and after fully discussing the object and purposes of this act, he throws out the following significant intimation : “ This claim must be maintained; but I am by no means clear, even if I am mistaken on the point of colonial ports, that it could not be supported under the narrower interpretation.”

The high court of admiralty seems, in fact, never to have relinquished its claim that under the general maritime law there was a lien for supplies, whether to domestic or foreign vessels, or whether within the body of a country or upon the high seas, only so that they were necessary and were furnished upon the credit of the ship. It simply surrendered to the superior jurisdiction and powers of the common law courts, and ceased to exercise the jurisdiction to enforce the lien. When parliament in part took off the prohibition imposed by the common law courts, by the statute of 3 & 4 Vict., the high court of admiralty to that extent simply resumed that which it had all along claimed as its right, and proceeded at once to enforce a lien which it assumed, and no doubt rightfully, had simply been in abeyance.

Vol. I.]

THE CHAMPION.

[No. II.

That the lien for necessaries supplied to a ship, recognized by the general maritime law, always existed in England as to foreign ships, before as well as after the act of 3 & 4 Vict., was assumed by our courts from the earliest period of the exercise of admiralty jurisdiction here; for while adopting, in the main, the admiralty jurisprudence of England as there exercised, the supreme court of the United States from the beginning assumed and fully recognized the existence of the maritime lien for necessaries supplied to a foreign ship in all cases, and the jurisdiction of the federal admiralty courts to enforce it. See General Admiralty Rule 12. This rule, from the beginning, and all through its various modifications by amendments or otherwise, has always assumed the existence of the lien, and provided for its enforcement. This has always been true of it as to foreign ships, and recently it has been so amended as to drop all distinction in that regard.

Maritime liens for necessaries supplied in England to a foreign ship, I am satisfied have always had an existence there. Jurisdiction to enforce them was alone prohibited. It is well settled, however, that want of jurisdiction to enforce a maritime lien in any particular locality is not fatal to the existence of the lien itself. The lien exists by virtue of the maritime law, and it follows the ship wherever she goes, and may be enforced wherever there is a jurisdiction to enforce it. The Maggie Hammond, 9 Wall. 435, 451 ; The Avon, 6 Chicago Leg. News, 41. And this applies as well to the objection that there is no jurisdiction to enforce a maritime lien in the Province of Ontario, where the cause of action in this case arose.

The question of lien in this case, therefore, in the absence of any positive enactment to the contrary, must be determined by the general maritime law, and by that law there was a lien, and also jurisdiction in this court to enforce it.

No objection was made that the necessaries in question were not supplied upon the high seas, or upon tide water, as those terms are understood in English admiralty jurisprudence, and that therefore there could be no lien, and it is therefore unnecessary to consider it.

The omission of learned counsel to make that objection was undoubtedly for the very good reason that since the decision of the United States supreme court in the case of The Eagle, 8 Wall. 15, and of the United states circuit court for the Northern District of Ohio, by Emmons, circuit judge, in the case of The Avon, 6 Chicago Leg. News, 41, that objection has no longer any force in our courts. This

may

be said to be especially so under the authority of the supreme court in the case of The Eagle, supra, in a case like the present, arising upon the great boundary waters between this country and British North America, constituting as they do great national thoroughfares, international in their character, and common to the vessels of both countries.

There are many decisions of the admiralty courts of the United States which have a bearing upon the question presented by the ground of defence here under consideration ; but it would serve no useful purpose to enter into an analysis of them here. A few of the leading ones, as far as I have taken the time to examine them, are, however, here cited : The Eagle, 8 Wall. 15; The Maggie Hammond, 9 Ib. 435, 451; The Avon, 6

Vol. I.)

THE CHAMPION.

(No. 11.

Chicago Leg. News, 41; The Rebecca, Ware, 191, 192; The Phæbe, Ware, 267, 268, 271; Dupont v. Vance, 19 How, 171; The Boston, Blatchf. & Howl. 325; The Siren, 7 Wall. 156, 158; The Jerusalem, 2 Gall. 349; The Chusan, 2 Sto. 466 ; Pope v. Nickerson, 3 Sto. 477

; see also Abb. on Ship. 142 to 150; 2' Kent Comm. 8th ed. 281 ; 2 Pars. on Ship. & Adm. 322; Sto. Confl. of Laws, sec. 286 c.

The second proposition of the argument in support of the first ground of defence, viz. : that there was no lien and therefore no right of action in rem in this case, is not sustained ; and with that the whole superstructure of the argument in support of that defence falls.

Second. The lien and jurisdiction to enforce it being maintained in favor of the original creditor, was the lien divested by the assignment of the claim ?

Upon authority, I am clear that this question must be answered in the affirmative. It has been so held in every case in the federal admiralty courts to which my attention has been called, in which the decision was not evidently influenced by special circumstances.

In the case of The Patchin, 12 Law Reporter, 21, Judge Conkling, in a well reasoned opinion, so held in regard to mariners' wages. He notices a distinction between liens for wages and liens on bottomry bonds, and bills of lading which are assignable, on the grounds that the bond is an express hypothecation and binds the ship to the lender and his assigns; and that the bill of lading is negotiable, made so by law for the benefit of trade, and its transfer carries with it the title to the goods shipped, and of course the right to maintain a suit upon it in case of their loss ; while, on the contrary, the right of the mariner to proceed against the ship in specie is conferred upon him for his own exclusive benefit, and arises by implication merely. He held that liens of the latter character are strictly personal. He recognizes that the claim or debt may be lawfully transferred, but holds that the lien does not follow.

In the case of Reppert v. Robinson, Taney's Decisions, 492, 498–9, the libel was in personam for repairs and supplies. In delivering his opinion, Chief Justice Taney said : “But if it appeared upon the proceedings that when the suit was brought Hamilton held this due bill as assignee, and the proceedings were instituted for his benefit, I do not think the admiralty jurisdiction could have been maintained ; the right to sue in admiralty upon claims of this description is personal, and is maintained upon principles and for reasons which do not apply to the assignee.” Certainly, if no jurisdiction in personam, there can be none in rem.

In the case of The George Nicholaus, Newb. 449, 454 to 457, the libel was in rem for salvage, and Judge McCaleb held that the same rule applies to liens for salvage as to those for wages, and that they are not assignable ; citing with approbation Judge Conkling's opinion in The Patchin, supra.

In the cases of The Æolian, 1 Bond, 267, and The Freestone, 2 Bond, 234, 242, the libels were in rem for wages, and Judge Leavitt held the same as Judge Conkling in The Patchin and Judge McCaleb in The Frecstone.

These are all the cases in the federal admiralty courts in which this doctrine has been maintained, to which my attention has been called or

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that have fallen under my notice. There are, however, several cases in state courts, arising mostly under state statutes conferring liens where none existed by the maritime law, and in favor of mechanics and others, in which the same doctrine has been held. Piersons v. Tincker, 36 Me. 384, 386; Hays v. Steamboat Columbus, 23 Mo. 232; Lovett v. Brown, 40 N. H. 511 ; White v. Levy, 5 Eng. (Ark.) 411.

The cases in the federal admiralty courts which seem to hold the opposite doctrine will now be considered.

In the case of The Boston, Blatch. & Howl. 325, the libel was in rem for repairs, and Judge Betts held that an assignee of the debt for a full consideration, who became such at the express instance of the master, was entitled to all the legal remedies possessed by the original creditors, including the right to proceed against the vessel. There can be no doubt that the fact, that the transfer was made at the express instance of the master, had its influence, although it is not so stated in the opinion. At all events, it affords a reasonable explanation for the difference of opinion between that learned judge and the others whose opinions have been cited.

In the case of The General Jackson, 1 Sprague, 554, the libel was in rem for supplies, and Judge Sprague held that “the assignment of the claim, as security for a debt which had since been paid, would not of itself be a waiver of the lien.” What his opinion would have been if the debt had not been paid, or if the assignment had been absolute instead of for security merely, the case does not inform us.

These are all the cases in the federal admiralty courts to which my attention has been called, or which have fallen under my notice, which even seem to hold that the lien is not divested by the assignment of the debt; and as to each of these cases it is to be observed that the decision was evidently influenced by special considerations.

As on the other side of the question, so here, there are also several state decisions, based in like manner on state statutes, holding the same way as the judgments last cited. Hoyt v. Thompson, 5 N. Y. (1 Seld.) 320, 327; Sears v. Conover, 34 Barb. 330 ; Sorley v. Brewer, 1 Daly, 79, laege v. Brossieux, 15 Grat. 83, 88; Goff v. Papin, 34 Mo. 180 ; Tuttle v. Howe, 14 Min. 145.

It is seen, therefore, that the decisions of our own admiralty courts upon this question are substantially all one way; and they fully sustain the position that the lien which a material-man has is strictly personal to himself and does not pass to his assignee ; that it is in fact extinguished by the assignment of his claim so that neither he nor his assignee can come into a court of admiralty for its enforcement. I have not the time to devote to a discussion of the soundness of these decisions. It has, however, been so fully done by the learned judges in the opinions I have cited that there really does not appear to be much left to be said upon the subject. Even if I doubted the soundness of these decisions I should hesitate long before venturing a decision in opposition to so formidable an array of experience, learning, and ability. At all events, I should not do so except for cogent and conclusive reasons. Until overruled by higher authority, the rule of decision of these cases will be the rule of decision in this court.

In England the question does not seem to have been much discussed as

Vol. I.)

FORD v. FITCHBURG RAILROAD COMPANY.

(No. 11.

applied to maritime liens : at all events not sufficiently to have established a rule upon the subject. See Cross on Liens, 18 Law Lib. as to assignments of liens in general, and The Wasp, 1 Law Reporter, 367, Adm. & Eccl., as to assignments of maritime liens.

The proofs in this case showed that before this suit was brought, libellant had sold and transferred his claim to Johnson & Co., and that the suit was instituted by them, in libellant's name, but for their benefit. The lien was thereby lost, and the suit cannot be maintained.

In this view of the case a consideration and decision of respondents' third ground of defence has become unnecessary.

Libel dismissed, but without costs.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[TO APPEAR IN 110 Mass.]

INJURY TO SERVANT THROUGH NEGLIGENCE OF AGENT OF CORPORA

TION, SERVANT NOT DEBARRED FROM RECOVERING BY REASON OF VIOLATION OF RULES UNLESS INJURY CAUSED BY SUCH VIOLATION.

FORD v. FITCHBURG RAILROAD COMPANY.

One employed by a railroad corporation to drive a locomotive engine over its road

may recover damages against the corporation for personal injuries caused by a defect in the engine, which was due to the neglect of the agents of the corporation charged with keeping the engine in proper repair, although the directors and superintendent had no reason to suspect negligence or incompetence on the part of such agents. One employed by a railroad corporation to drive a locomotive engine over its road is

not debarred from recovering damages against the corporation for injuries from an explosion caused by a defect in the boiler of the engine, by the fact that he was acting in intentional violation of the rules of the company, unless the accident was due, in whole or in part, to such violation ; nor by the fact that such rules provided that the driver of an engine should be held responsible for the condition of his engine, must be sure that it was in good working order, and must immediately stop, draw his fire, station his signal men, and procure assistance, whenever any defect was detected in an engine that would make it in his judgment unsafe to proceed ; nor by the fact that he knew the engine was not in good working order, if he did not know and ought not to have known that it was unsafe.

TORT to recover for personal injuries occasioned by the explosion of the boiler of a locomotive engine belonging to the defendants. Trial in the superior court, before Scudder, J.

At the close of the evidence, the defendants asked the judge to rule that there was no evidence to go to the jury in maintenance of the action ; but the judge refused so to rule.

The defendants then asked the judge to give the following rulings : “ 1. The rules of the defendants, under which the plaintiff worked, con

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