Opinion — Rounds v. Cloverport Foundry & MacHine Co.

ee

304 OCTOBER TERM, 1914.

Counsel for Defendant in Error. 237 U. 8.

A specific attachment in a suit against the owners of a vessel for repairs

made thereto, under the lien provisions of §§ 2480-2486, Kentucky

statutes, held to be an auxiliary lien attachment in a suit in personam

to protect the judgment and not a proceeding in rem and the case

was, therefore, within the jurisdiction of the state court.

159 Kentucky, 414, affirmed.

Tue facts, which involve the construction and validity

of the laws of the State of Kentucky, relating to liens on

vessels for repairs and the jurisdiction of the state court to

enforce such liens, are stated in the opinion.

Mr. William T. Ellis, for plaintiffs in error, sub-

mitted:

Admiralty jurisdiction is not of obvious principle, or

very accurate history. Ad. Trans. Co. vy. Imbrovek, 234

U.S. 39; The Blackheath, 195 U.S. 365.

This is a suit on a contract and this court has jurisdic-

tion. The Philadelphia vy. Towboat Co., 23 How. 209;

Alt. Trans. Co. v. Imbrovek, 234 U.S. 59.

The state courts had no jurisdiction. Brookman y.

Hamill, 34 N. Y. 554; The General Smith, 4 Wheat. 436;

Pelham vy. Schooner Woolsey, 3 Fed. Rep. 457; Terrell v.

Schooner Woolsey, 4 Fed. Rep. 552; Kentucky Statutes,

2480; Knapp v. McCaffrey, 177 U. 8. 640; The Robert W.

Parsons, 191 U.S. 17.

This court is the sole judge as to whether or not a

Federal question is here involved. 205 U. 8. 360; Railway

v. Taylor, 210 U. 8. 281; Cohen v. Virginia, 6 Wheat. 264.

This is a suit in equity and proceeding is against the

steam-boat. Kentucky Civil Code of Practice, § 249.

The cases cited by counsel for defendant in error are

not applicable to the facts of this case. Roach vy. Chapman,

22 How. 129; People’s Ferry Co. v. Beers, 20 How. 393;

The Winnebago, 205 U. 8. 355.

Mr. Claude Mercer, for defendant in error, submitted.

7.

ROUNDS v. CLOVERPORT FOUNDRY. 305

237 U.S. Opinion of the Court.

Mr. Justice Huaues delivered the opinion of the court.

The Cloverport Foundry and Machine Company, the

defendant in error, brought this suit against F. T. Rounds

and 8. A. Jesse, of Owensboro, Kentucky, in the Breckin-

ridge Circuit Court of that State, to recover the sum of

$5,668.65 for work and materials furnished under a con-

tract to repair and rebuild a steamboat formerly known

as the ‘R. D. Kendall’ and renamed the ‘Golden Girl.’

The defendants were the owners of the vessei. A specific

attachment was issued under §§ 2480 to 2486 of the Ken-

tucky Statutes which provided for a lien upon watercraft

for work and supplies, etc., and the defendants procured

a release of the boat by executing a forthcoming bond.

By special demurrer, the defendants challenged the ju-

risdiction of the court to entertain the action upon the

ground that the subject-matter was exclusively cognizable

in the admiralty. The demurrer was overruled, and the

defendants, reasserting the absence of authority in the

court, answered denying the allegations of the petition

and setting up a counter-claim for damages alleged to

have been caused by defective work and by delay in com-

pletion. Upon the trial, the counter-claim was dismissed

and the Company had judgment against the defendants -

for the amount demanded in its petition; it was further

adjudged that, by virtue of the attachment and the ap-

plicable law, the plaintiff had a lien upon the vessel for

the payment of the judgment and the vessel was ordered

to be sold and the proceeds applied to the debt. The

Court of Appeals of the State affirmed the judgment.

159 Kentucky, 414.

The question presented on this writ of error relates

solely to the jurisdiction of the state court. It is contended

by the plaintiff in error that the contract in suit was for

repairs on the vessel and therefore was maritime in char-

acter; that the proceeding was in rem and beyond the

VOL. CCXXxviI—20

PW AG ASG ENY SG POS MELOY III LANE SHEL ALES ODIOA ELIS BALI LEO LIE LECT SE IIE

306 OCTOBER TERM, 1914.

Opinion of the Court. 237 U.S.

competency of the local tribunal. See The Moses Taylor,

4 Wall. 411; The Hine v. Trevor, 4 Wall. 555; The Belfast,

7 Wall. 624; The J. E. Rumbell, 148 U. S. 1; The Glide,

167 U. 8. 606; The Robert W. Parsons, 191 U.S. 17; Act of

June 23, 1910, c. 373, 36 Stat. 604. On the other hand,

the defendant in error denies that the contract was mari-

time, contending that the old boat was dismantled, its

identity destroyed, and a new boat built, and that the

case in this aspect falls within the decisions relating to

contracts for the original construction of a vessel. The

People’s Ferry Co. v. Beers, 20 How. 393; Roach v. Chap-

man, 22 How. 129; Edwards vy. Elliott, 21 Wall. 532; The

Winnebago, 205 U. 8. 354. Further, it is urged in support

of the judgment that the proceeding was in personam,

and not in rem; that the attachment and direction for sale

were incidental to the suit against the owners and for the

purpose of securing satisfaction of the personal judgment.

Accordingly, it is said, the proceeding was within the scope

of the ‘common law remedy’ saved to suitors by the

Judiciary Act. 1 Stat. 77; Rev. Stat., § 563; Judicial Code,

§ 24. .

As the last point is plainly well taken, it is unnecessary

to go further. It is well settled that in an action in per-

sonam the state court has jurisdiction to issue an auxiliary

attachment against the vessel; and, whether or not the

contract in suit be deemed to be of a maritime nature, it

cannot be said that the state court transcended its au-

thority. The proceeding in rem which is within the ex-

clusive jurisdiction of admiralty is one essentially against

the vessel itself as the debtor or offending thing,—in

which the vessel is itself ‘seized and impleaded as the

defendant, and is judged and sentenced accordingly.’ By

virtue of dominion over the thing all persons interested

in it are deemed to be parties to the suit; the decree binds

all the world and under it the property itself passes and

not merely the title or interest of a personal defendant.

ROUNDS v. CLOVERPORT FOUNDRY. 307

237 U.S. Opinion of the Court.

The Mary, 9 Cranch, 126, 144; The Moses Taylor, supra;

The Hine v. Trevor, supra; The Belfast, supra; The Glide,

supra; The Robert W. Parsons, supra; The Josephine, 39

N. Y. 19, 27. Actions in personam with a concurrent at-

tachment to afford security for the payment of a personal

judgment are in a different category. The Belfast, supra;

Taylor v. Carryl, 20 How. 583, 598, 599; The Robert W.

Parsons, supra. And this is so not only in the case of an

attachment against the property of the defendant gen-

erally, but also where it runs specifically against the vessel

under a state statute providing for a lien, if it be found

that the attachment was auxiliary to the remedy in per-

sonam. Leon v. Galceran, 11 Wall. 185; see also Johnson v.

Chicago &c. Elevator Co., 119 U. 8. 388, 398, 399; Knapp,

Stout & Co. v. McCaffrey, 177 U. 8. 638, 646, 648.

In the case of Leon v. Galceran, supra, the suit was in

personam, in a court of the State of Louisiana, to recover

mariner’s wages. Under a statute of the State the vessel

was subject to a lien or privilege in favor of the mariner;

and accordingly at the beginning of the suit, on the appli-

cation of the plaintiff who asserted his lien, a writ of se-

questration was issued and levied upon the vessel which

was afterwards released upon the execution by the owner,

the defendant in the suit, of a forthcoming bond, with

surety. Judgment was recovered by the plaintiff for the

amount claimed, and the vessel not being returned, suit

was brought in the state court against the surety. Upon

writ of error from this court to review the judgment in the

latter action, it was contended, with respect to the issue

and levy of the writ of sequestration, that the vessel had

been seized under admiralty process in a proceeding in

rem over which the state court had no jurisdiction ratione

materie and hence that the bond was void. The conten-

tion was overruled and the jurisdiction of the state court

maintained. As this court said in Johnson v. Chicago &c.

Elevator Co., supra, in reviewing Leon vy. Galceran, supra,

308 OCTOBER TERM, 1914.

Opinion of the Court. 237 U. 8.

it was held that ‘the action in personam in the state

court was a proper one, because it was a common law

remedy, which the common law was competent to give,

although the state law gave a lien on the vessel in the

case, similar to a lien under the maritime law, and it was

. made enforceable by a writ of sequestration in advance,

to hold the vessel as a security to respond to a judgment,

if recovered against her owner, as a defendant; that the

suit was not a proceeding in rem, nor was the writ of se-

questration ; that the bond given on the release of the vessel

became the substitute for her; that the common law is as

competent as the admiralty to give a remedy in all cases

where the suit is in personam against the owner of the

property; and that these views were not inconsistent with

any expressed in The Moses Taylor, in The Hine v. Trevor,

or in The Belfast.’

The result of the decisions is thus stated in Knapp,

Stout & Co. v. McCaffrey, 177 U.S. 638, 646, 648. ‘The

true distinction between such proceedings as are and such

as are not invasions of the exclusive admiralty jurisdiction

is this: If the cause of action be one cognizable in ad-

miralty, and the suit be in rem against the thing itself,

though a monition be also issued to the owner, the proceed-

ing is essentially one in admiralty. If, upon the other

hand, the cause of action be not one of which a court of

admiralty has jurisdiction, or if the suit be in personam

against an individual defendant, with an auxiliary attach-

ment against a particular thing, or against the property

of the defendant in general, it is essentially a proceeding

according to the course of the common law, and within

the saving clause of the statute (§ 563) of a common law

remedy.’

In the present case, as we have said, the suit was in

personam and the attachment was in that suit. It had no

other effect than to provide security for the payment of

the personal judgment which was recovered, and it was

7

FRANK v. MANGUM. 309

237 U.S. Syllabus.

for the purpose of satisfying this judgment that, in the

same proceeding and by the terms of the judgment, the

vessel was directed to be sold. It was within the scope of

the common law remedy to sell the property of the judg-

ment debtors to pay their debt. We are not able to find

any encroachment upon the exclusive jurisdiction vested

in the Federal court in admiralty.

Judgment affirmed.

ROUNDS ». CLOVERPORT FOUNDRY AND MA-

CHINE COMPANY.

ERROR TO THE COURT OF APPEALS OF THE STATE OF

KENTUCKY.

No. 669. Submitted February 23, 1915.—Decided April 19, 1915.

In an action in personam the state court has jurisdiction to issue an

auxiliary attachment against the vessel whether or not the contract

be of a maritime nature.

While a proceeding in rem, as one essentially against the vessel itself,

is within the exclusive jurisdiction of the admiralty, an action in

personam with concurrent remedy of attachment to secure payment

of a personal judgment is within the jurisdiction of the state court

even though such attachment, if auxiliary to the remedy in personam,

runs specifically against the vessel under a state statute providing

for a lien.