The Lottawanna (88 U.S. 558)

APPEAL in admiralty from the Circuit Court for the District of Louisiana.

The case was thus:

In the year 1819 this court, in The General Smith, decided (as the profession has generally understood), that in respect to repairs or necessaries furnished to a ship in the port or State to which she belongs, no lien is implied unless it is recognized by the municipal law of the State; declaring the rule herein to be different from that where the repairs or necessaries are furnished to a foreign ship; in which case it was admitted that the maritime law of the United States gives the party a lien on the ship itself for his security.

In view of this decision most or all of the States enacted laws giving a lien for the protection of material-men in such cases.

In the year 1833, in the case of The Planter, the converse of the rule in The General Smith was laid down, and process against a vessel in her home port was used and supported, the State law giving a lien in the case.

In 1844, this court, acting in pursuance of acts of Congress which authorized it to adopt rules of practice in the courts of the United States in causes of admiralty and maritime jurisdiction (and adhering to the practice declared as proper in the cases mentioned), adopted the following rule of practice:

'RULE XII.

'In all suits by material-men for supplies, repairs, or other necessaries for a foreign ship, or for a ship in a foreign port, the libellant may proceed against the ship and freight in rem, or against the master and owner alone in personam; and the like proceeding in rem shall apply to cases of domestic ships, where by the local law a lien is given to material-men for supplies, repairs, and other necessaries.'

On the 1st of May, 1859, a new twelfth rule was adopted as a substitute for the one above given. It was thus:

'RULE XII.

'In all suits by material-men, for supplies or repairs, or other necessaries for a foreign ship, or for a ship in a foreign port, the libellant may proceed against the ship or freight in rem, or against the master or owner alone in personam. And the like proceedings in personam, but not in rem, shall apply in cases of domestic ships for supplies, repairs, or other necessaries.'The reasons for the substitution of this latter rule for the former one are stated by Taney, C. J., in the case of The Steamer St. Lawrence, to have been that in some cases the State laws giving liens, and the constructions put on them by State courts, were found not to harmonize with the principles and rules of the maritime code, and embarrassed the Federal courts in applying them.

In this state of things, William Doyle and another filed a libel in the District Court of the United States for the District of Louisiana, abovementioned, on the 10th day of June, 1871, against the steamer Lottawana, of New Orleans, for mariners' wages. The vessel being seized, libels of intervention were afterwards filed by various parties, some for mariners' wages, some for salvage services, some for supplies, materials, and repairs furnished in the port of New Orleans, for the use of the steamer. On the 20th day of June, 1871, Catharine Rodd, administratrix, together with several commercial firms of the city of New Orleans, filed a libel of intervention by which they set up a mortgage on the vessel, given to them by the owner, on the 20th of May, 1871, and duly recorded in the custom-house on the 22d of May, to secure the payment of various promissory notes of the same date, given to said libellants by the said owner, and amounting to more than $14,000.

The steamer, up to the 16th of May, had been engaged in the river trade on the Mississippi and Red Rivers, between New Orleans and Jefferson, in Texas, and was laid up for repairs at New Orleans on that day. Most of the claims for wages and supplies arose before the date of the mortgage, although some arose afterwards. The steamer was sold for $7500, and, after deducting expenses of sale, costs, salvage and wages of mariners (which were admitted to have preference), there remained a surplus of $4644.42, which the District Court, by a decree rendered February 26th, 1872, and signed on the 1st of March following, decreed to be paid pro rata to the mortgage creditors, to the exclusion of the claims for repairs and supplies.

On the 6th of May, 1872, about two months after the decree was finally rendered, this court promulgated yet a third twelfth rule in admiralty. It was in these words:

'In all suits by material-men for supplies or repairs or other necessaries, the libellant may proceed against the ship and freight in rem, or against the master or owner alone in personam.'

In this state of things, on the 3d of June, 1872, the abovementioned decree of the District Court was reversed by the Circuit Court, on appeal, and the surplus was decreed to be paid pro rata to the claimants for repairs and supplies, to the exclusion of the mortgage creditors; the amount not being sufficient to pay either class of creditors in full. From the latter decree an appeal was taken to this court.

The principal question presented by the appeal, therefore, was whether the furnishing to a vessel on her credit, at her home port, needful repairs and supplies created a maritime lien. If it did, such lien would take precedence of a mortgage given for the payment of money generally, and the decree must be affirmed. If it did not, the decree was to be reversed, unless the appellees could sustain themselves on some other ground.

Such other grounds they asserted existed in what they alleged to be a fact, to wit, that by the law of Louisiana they had a 'privilege' for their claims giving them a lien on the vessel and her proceeds, which lien, though not strictly a maritime one, the court was bound to enforce.

On that part of the subject the case was said by the appellant's counsel to be thus:

The constitution of Louisiana of 1869, ordains:

'No mortgage or privilege shall hereafter affect third parties, unless recorded in the parish where the property to be affected is situated.'The Revised Civil Code of Louisiana says:

'ARTICLE 3237. The following debts are privileges on the price of ships and other vessels:

"Sums due to sellers: to those who have furnished materials, and to workmen employed in the construction, if the vessel has never made a voyage, and those due to creditors for supplies, labor, repairing, victuals, armament, and equipment.'

'ARTICLE 3273. Privileges are valid against third persons from the date of the recording of the act or evidence of indebtedness, as provided by law.

'ARTICLE 3274. No privilege shall have effect against third persons unless recorded, in the manner required by law, in the parish where the property to be affected is situated.

'ARTICLE 3093. If the mortgage or privilege be a notarial or public act, the same shall be recorded. . . . If the same be not in writing, the person claiming the mortgage or privilege, his agent, or some person having knowledge of the fact, must make affidavit of all the facts on which it is based, stating the amount and all the necessary facts, which affidavit shall be recorded in the mortgage-book as other acts of mortgage or privilege.'

No record of mortgage was shown in the transcript.

The case was twice argued, once at December Term, 1873, by Mr. T. J. Semmes, for the appellant, and Messrs. J. A. Grow and L. M. Day, for the appellees; and now, at this term, by Mr. R. Mott, for the appellant, and Mr. J. A. Grow, for the appellees, and by Mr. W. W. Goodrich, in favor of the lien for supplies furnished a vessel in her home port, and by Mr. William Allan Butler and Mr. Andrew Boardman, in opposition to such lien.

It was thus contended in favor of such lien, or in support of the ruling below:

I. As to the principal question.

The General Smith is the case always relied on against the lien.

1. That case was wrongly decided.

In determining a question of admiralty lien, a court of admiralty must resort for the principles upon which to base its conclusion neither to the rules and decisions of courts of common law nor to the statutory regulations of the different States of the United States, but to the general maritime law which, according to the comity of nations, is administered by all courts of admiralty. Says Marshall, C.J.:

'In admiralty cases the law, admiralty and maritime, as it has existed for ages, is applied by our courts to the cases as they arise.'

Says Nelson, J.: