Page:Federal Reporter, 1st Series, Volume 9.djvu/351

 336 FBDEBAL BEPOBTEB. the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured." Act of December 13, 1847, as dmended by act of April 7, 1849, and act of March 16, 1870. This statute does not provide for the snrvival of any right of actior» belonging to the deoeased. It creates a liability where none before existed. It makes a new cause of action, namely, the death, and it declares who shall be liable to subh action, and by whom, as well as for whose benefit, the action may be maintained. It is not doubted that the right created by this aiatute of the state may be enforeed, in a proper case, by the courts of ; ae United States ; nor that it may be enforeed in the admiralty, when a- marine tort is the foundation of the right. Theae propositions have not been controverted here, but ^hey by no means afford ground on which to maintain this action ; for this is an action in rem, and, if maintainable at all, must rest upon the proposition that the libellant, by virtue of this statute of the state, has a maritime lien upon the vessel proceeded against for the damages resulting to the husband and next of kin of Margaret Welsh fromiihe death of that person. No ground has been suggested upon which Buch a proposition can be maintained. The words of the stat- ute are, "the person who or the corporation which." Those words create no lien, much less a maritime lien ; and, if they did, how can it be held that a state has the power to create a maritime lien for the benefit of this husband and next of kin ? It is true that it is held by the supreme court of the United States that a lien, created by a state statute, for supplies and repairs to a domestic vessel, may be enforeed by admiralty proceedings in the courts of the United States. But the rule in the class of cases referred to is peculiar. It is conceded by the court to be anomalous, and its basis upon any sound principle doubted, (The Lottawanna, 21 Wall. 581,) and I know of no expressions of that court that will warrant the belief that any extension of such an anomaly would be approved. Besides, in this instance, the state statute creates no lien at all. It is not seen, therefore, how in any aspect the statute upon which the libellant relies can afford a right of action against this vessel. The case of The Highland Light, Chase, Dec. 155, affords authority adverse to the libellant, while the case of The Garland, 6 Fbd. Eep. 924, cannot be deemed an authority in favor of his action, for the rea- son that the point in question does not appear to have received atten- tion in that caee. The libel must be dismissed, and with costs.