6. By Destruction of the Vessel.-A lien for supplies on a vessel which is afterwards taken to pieces, and a portion used in the construction of a new vessel will not follow and attach to the latter.1 7. By Departure of the Vessel.-In general a maritime lien is not extinguished by the vessel's proceeding to sea. An exception to the rule is in the case of wharfage, where the lien is lost by a departure of the ship from its moorings.3 If 8. By Assignment of the Claim.-A material-man may assign his claim against the vessel, and the lien is not thereby lost. the assignment is absolute, the assignee may proceed in admiralty in his own name, against the vessel.4 VII. LIENS ON VESSELS AT COMMON LAW.-At common law a shipwright has a lien for repairs and work done on a ship, so long as she remains in his possession. If, however, the owner retains possession during the repairs, or if after the repairs are made, the shipwright voluntarily yields up the possession his lien is gone. Such a lien being of a maritime nature may be enforced in admiralty.5 count running through several months, some items of which were not maritime, took cash for part of the amount, and notes at short dates for the residue, and a mortgage on the vessel to secure the notes. It was held that the cash payment must be applied to the extinguishment of the items not maritime; the notes having been taken at short dates did not waive the lien of the amounts for which they were taken; the mortgage being recent and not prejudicial to other maritime liens, and attended by no act inconsistent with the rights of other maritime conditions, did not waive the maritime lien. The D. B. Steelman, 5 Hughes (U. S.) 210. Neither the taking of notes for the debts nor the taking of a deed of trust to one of the creditors is a waiver of a maritime lien. The Illinois, 2 Flip. (U.S.) 383. 1. Strodes v. Collier, 3 West L. M. 521. 2. The Active, Olc. Adm. 286; Knox v. Ninetta, Crabbe (U. S.) 534. 3. Johnson v. McDonough, Gilp. (U. S.) 101; Russel . The Asa R. Swift, Newb. Adm. 553. See also WHARVES AND WHARFAGE. 4. The Sarah J. Weed, 2 Lowell (U. S.) 555; The General Jackson, 1 Sprague (U. S.) 554 In the case of Carrol v. T. P. Leathers, Newb. Adm. 432, it was decided that if A holds a lien against a vessel for materials furnished, and the master requests B to pay the account of A, the lien originally held by the latter is not by such payment transferred to B, and he has no right of action in rem in the admiralty. 5. Common Law Liens. In the leading case of The General Smith, 4 Wheat. (U.S.) 438. MR. JUSTICE STORY said: "A shipwright who has taken a ship into his own possession to repair it is not bound to part with the possession until he is paid for the repairs, more than any other artificer. But if he has once parted with the possession, or has worked upon it without taking possession, he is not deemed a privileged creditor. having any claim upon the ship itself." See also The Marion, I Story (U. S.) 68. A common law possessory lien may be acquired for repairs where the vessel is lawfully delivered into the possession of the shipwright by part owners having the lawful custody and control of her, though such repairs, if beyond what is necessary, are not binding upon the interests of nonassenting part owners. The Two Marys, 16 Fed. Rep. 697. The master of a vessel having surrendered her into custody of libellant, a shipwright, for repairs, he being understood by both parties to be responsible for her care and safety, although the master, who was also the owner, stayed by the vessel most of the time, and re tained the cook and mate, who slept on board, the presence of the master and the retention of the cook and mate not being with the intent to retain the custody of the vessel, but to VIII. LIENS UNDER STATE LAWS-1. In General.-A State law may give a lien for repairs and supplies, furnished to a domestic vessel in a home port, and such a lien may be enforced in admiralty 1 The lien on a domestic vessel depends upon the local help in repairing and lessen expenses: Held, that the libellant had such actual possession of the vessel as would give him a common law lien. The B. F. Woolsey, 7 Fed. Rep. 108. 1. "It seems to be settled in our jurisprudence that so long as congress does not interpose to regulate the subject,the rights of a material man furnishing necessaries to a vessel in her home port may be regulated in each State by State legislation. State laws, it is true, cannot exclude the contract for furnishing such necessaries from the domain of admiralty jurisdiction, for it is a maritime contract, and they cannot alter the limits of that jurisdiction; nor can they enforce it upon the State courts so as to enable them to proceed in rem for the enforcement of liens created by such State laws, for it is exclusively conferred upon upon the district courts of the United States. They can only authorize the enforcement thereof by cominon law remedies, or such remedies as are equivalent thereto. But the district courts of the United States having jurisdiction of the contract as a maritime one, may enforce liens given for its security, even when created by the State laws. The practice may be somewhat anomalous, but it has existed from the origin of the government, and, perhaps, was originally superinduced by the fact that prior to the adoption of the constitution liens of this sort created by State laws had been enforced by the State courts of admiralty; and as these courts were immediately succeeded by the district courts of the United States, and in several instances the judge of the State court was transferred to the district court, it was natural, in the infancy of federal legislation on commercial subjects, for the latter courts to entertain jurisdiction over the same classes of cases, in every respect as the State courts had done, without due regard to the new relations which the States had assumed towards the maritime law and admiralty jurisdiction. For example, in 1784 the legislature of Pennsylvania passed a law allowing persons concerned in building, repairing, fitting out and furnishing vessels for a voyage, to sue in admiralty, as mariners sue for wages. Two cases, those of The Collier, and The Enterprise, arising under the law, and coming before the admiralty court of Pennsylvania, are reported in Judge Hopkinson's works. No doubt other cases of the same kind occurred in the courts of other States. other States. But, whatever may have been the origin of the practice, and whether or not it was based on the soundest principles, it became firmly settled, and it is now too late to question its validity. It is true that the inconveniences arising from the often intricate and conflicting State laws creating such liens induced this court, in December term, 1858, to abrogate that portion of the twelfth admiralty rule of 1844 which allowed proceedings in rem against domestic ships for repairs and supplies furnished in the home port, and to allow proceedings in personam only in such cases. But we have now restored the rule of 1844, or, rather, we have made it general in its terms, giving to material men in all cases their option to proceed either in rem or in personam. Of course this modification of the rule cannot avail where no lien exists, but where one does exist, no matter by what law, it removes all obstacles to a proceeding in rem if credit is given to the vessel." The Lottawanna, 21 Wall. (U. S.) 558, 559. See also The Edith, 94 U. S. 518; The Harrison, 2 Abb. (U. S.) 74; The Ella B., 26 Fed. Rep. 111; The Helen Brown, 28 Fed. Rep. 111; The Whistler, 30 Fed. Rep. 199; The City of Salem, 31 Fed. Rep. 616; James Dalzell's Son & Co. v. The Daniel Kaine, 31 Fed. Rep. 746; The John Farron, 14 Blatchf. (U. S.) 24. The Kate Hinchman, 7 Biss. (U. S.) 238; The Eliza Ladd, 1 N. Y. Week. Dig. 517; Baldwin 7. The Braddish Johnson, 3 Woods (U. S.) 582; The B. F. Woolsey, 7 Fed. Rep. 108; The N. W. Thomas, 1 Biss. (U.S.) A State law may impose a lien on a vessel for tolls, in consideration of her use of river and harbor improvements, and such lien may be enforced by an action in rem. The St. Joseph, 7 N. Y. Week. Dig. 35. A State law cannot confer jurisdiction on a court of admiralty by attach statutory law, and is in effect an element of the original contract.1 The lien given by a statute of a State applies to boats navigating the waters of the State on contracts made within the State.2 The lien of a pilot conferred by State laws is enforceable in admiralty; so also is a lien for towage services given by State ing a lien to a nonmaritime contract. Admiralty will enforce such State liens only as are given on maritime contracts. The Guiding Star, 18 Fed. Rep. 263; The J. F. Warner, 22 Fed. Rep. 342; The Canary No. 2, 22 Fed. Rep. 532; The Kingston, 23 Fed. Rep. 200; The Alanson Sumner, 28 Fed. Rep. 670; The Robert Fulton, 1 Paine (U. S.) 620; The Samuel Stronge, Newb. Adm. 187; The General Tompkins, 9 Fed. Rep. 620; The Theodore Perry, 8 Cen. L. J. 191; The Alida, 1 Abb. Adm. 165; The Infanta, 1 Abb. Adm. 263; Parmlee v. The Charles Mears, Newb. Adm. 197. The fact that the proceeding is pending in a federal court held in a different State from that whose law created the lien does not defeat it. White v. The Cynthia, 2 Fed. Rep. 112; affirmed, 10 Fed. Rep. 232. If the State statute giving a lien prescribes a limit of time within which it may be enforced, the federal courts must observe that limitation. The Edith, 94 U. S. 518; affirmed, 11 Blatchf. (U. S.) 415, which affirmed 5 Ben. (U. S.) 432. The State law must clearly give a lien on the vessel, not merely define a liability of her owners, in order to warrant the district court in entertaining a libel in rem. Wick. The Samuel Strong, 6 McLean (U. S) 587. 1. The Kate Tramaine, 5 Ben. (U. S.) 63; The Maggie Hammond, 9 Wall. (U. S.) 435. In the latter case, MR. JUSTICE CLIFFORD said: "Where the lien or privilege is created by the lex loci contractus, says Judge Story, it will generally, although not universally, be respected and enforced in all places. where the property is found, or where the right can be beneficially enforced by the lex fori. Such a lien is regarded as being in effect an element of the original contract." The Stephen Allen, Blatchf. & H. (U. S.) 178; Clinton v. The Hannah, Bee (U. S.) 419; The General Smith, 4 Wheat. (U. S.) 438; The St. Jago de Cuba, 9 Wheat. (U. S.) 400; The Robert Fulton, 1 'Paine (U. S. 620; The Island City, I Low. (U. S.) 375; The Lady Franklin, 1 Biss. v. (U. S.) 557; Wooley . The Peruvian, 3 Ware (U. S.) 154; The John Richards, 1 Biss. (U. S.) 106; The Belfast, 7 Wall. (U. S.) 624; Leon v. Calceran, II Wall. (U. S.) 185; Vose v. Cockroft, 44 N. Y. 415; The Josephine, 30 N. Y. 10: The Plymouth, Newb. (U. S.) 194; Wick v. Samuel Strong, 6 McLean (U. S.) 543; Webster v. Andes, 18 Ohio 187; Waverly v. The Clements, 14 Ohio 28; The Ferry Steamers Norfolk and Union, 2 Hughes (U. S.) 123; The Raleigh Cannon, and Astoria, 2 Hughes (U. S.) 41; The Alida, Abb. Adm. (U. S.) 160; Fox v. Holt, 4 Ben. (U.S.) 236; Macy v. De Wolf, 3 Wood. & M. 203; Boyland . Victory. 40 Mo. 244. Francis v. Harrison, I Sawy. (U. S.) 355; The Hilarity, Blatchf. & II. (U. S.) 92; The Zodiac, 1. Hagg. Adm. 32. 2. Ashbrook v. Golden Gate, Newb. (U. S.) 297: James 7. The Pawnee, 19 Mo. 517. Thus a sloop of tonnage required to take out a licence under the act of congress employed in navigating the Hudson between Albany and New York, may be proceeded against by attachment under the New York statute authorizing the arrest of ships or vessels for debts. Walker v. Blackwell, 1 Wend. (N. Y.) 557. See also The Joseph E. Coffee, Olc (U. S.) 405; The Farmers Delight で。 Lawrence, 5 Wend. (N. Y.) 564; Hancox v. Dunning, 6 Hill (U. S.) 494. In Wisconsin it has been held that a statute for the collection of demands against domestic vessels does not confer a maritime lien, and that the district court has no jurisdiction to enforce a liability created by such statute. Celestine, I Biss. (U. Š.) 1. 3. Pilots. Thus where a pilot licensed under a State statute had tendered his services to pilot a vessel out of port, and such services were refused, his claim to half-pilotage fees allowed by the statute became perfect. Steamship Company v. Joliffe, 2 Wall. (U. S.). See also Port Wardens, 6 Wall. (U. S.) 34; Ex parte McNeil, 13 Wall. (U. S.) 241; Hunt 7. Mackey, 12 Met. (Mass.) 346; The California, 1 Sawy. (U. S.) 463; The American, I Low. (U. S.) 177; The Alaska, 3 Ben. (U. S.) 392; The statute.1 Reference to the various State statutes and decisions under them appear in the note.2 2. Divestment of State Liens.-As a general rule a lien provided by statute ceases when the vessel is permitted to depart from the port where the repairs were made or supplies furnished. This Robert J. Mercer, 1 Sprague (U. S.) 284; The Mary Gratwick, 2 Sawy. (U. S.) 344; Smith v. Smith, 8 Met. (Mass.) 329; Nickerson v. Mason, 13 Wend. (N. Y.) 64. 1. Towage.-The General Cass, I Brown Adm. (U. S.) 392; The Detroit, I Brown 141; The W. J. Welsh, 5 Ben. (U. S.) 74; The Kate Tramaine, 5 Ben. (U. S.) 60; The Sarah Jane, 2 Am. Law Rev. 455; The Belfast, 7 Wall. (U. S.) 624; The Eng. Mut. Mar. Ins. Co. v. Durham, 11 Wall. (U. S.)1; The Celestine, Biss. (U. S.) 3: Davis v. Child, 2 Ware (U. S.) 74; Macy v. De Wolf, 3 Wood. & M. 203; People's Ferry Co. v. Beers, 20 How. (U. S.) 402. 2. Alabama.-Code 1876, § 3465. Arizona.-R. S. 1887. § 2287. California.-3 Codes and Stat. 1885, § 8137, Civil Procedure; Crawford v. The Caroline Reid, 42 Cal. 469; Edgerly v. The San Lorenzo, 29 Cal. 418. Connecticut. G. Stat. 1888, §§ 3041 3044. 18. Florida.-Dig. Laws 1881, ch. 143, § Georgia.-Code 1882, § 1982; Kirkpatrick v. Bank of Augusta, 30 Ga. 465; Cape Fear Steamboat Co. v. Torrent, 46 Ga. 585. Illinois. Annot. Stat. 1885, ch. 12, § 1; The E. P. Dorr v. Waldron, 62 Ill. 221; The Montauk, 47 Ill. 335; Johnson v. Chicago & P. E. Co., 105 Ill. 462. Indiana.-Rev. Stat. 1881, §§ 5277 5280. Kentucky.-Gen. Stat. 1883, p. 984; The Rapid Transit, 11 Fed. Rep. Louisiana.-R. Civ. Code 1870, art. 3237; The Canary No. 2, 22 Fed. Rep. 532; Hyde v. Culver, 4 La. An. 9; Wickham v. Levistones, II La. An. 702; Owens v. Davis, 15 La. An. 22; Bank 7. Bark Jane, 19 La. An. 1. Maine.-Rev. Stat. 1883, ch. 91, § 8; Hull of a New Ship, Ware (U. S.) 565; Hull of a New Brig, 1 Story (U. S.) 244; The Kearsarge, Ware (U. S.) 546; Hayford v. Cunningham, 71 Me. 128. Maryland.-R. Code 1878, p. 701. Massachusetts.-Pub. Stat. 1882, ch. 198, §§ 14-17; Foster . Richard Bus teed, 100 Mass. 409; McDonald v. The Nimbus, 137 Mass. 360; Briggs v. Light Boats, 11 Allen (Mass.) 157; Rogers v. Currier, 13 Gray (Mass.) 129; Barstow . Robinson, 2 Allen (Mass.) 605; Young v. The Orphans, 119 Mass. 179; Jones v. Keen, 115 Mass. 170; Donnell . The Starlight, 103 Mass. 227; Hawes v. Mitchell, 15 Gray (Mass.) 234; Dunham v. Johnson, 135 Mass. 310; The Helen Brown, 28 Fed. Rep. 111; The Huron, 29 Fed. Rep. 183; Young v. The Orphans, 119 Mass. 179; Story v. Buffum, 8 Allen (Mass.) 35; McMonagle v. Nolan, 98 Mass. 320. Michigan.-Annot. Stat. 1882, §§ 8236– 8279: Gould . Jacobson, 58 Mich. 288. Minnesota.-Code, § 1209. Mississippi.-Rev. Code 1880, § 1395; Archibold v. Bank, 64 Miss. 523. Missouri.-2 Rev. Stat. 1879, § 4225. New Hampshire.--Gen. L. 1878, p. 334. New Jersey-Supp. Rev. 1886, p. 427; Edwards 7. Elliott, 36 N. J. L. 449; Baeder v. Carnie, 44 Ñ. J. L. 208; Randall v. Roche, 30 N. J. L. 220. New York.-3 Rev. Stat. 1882, p. 2404-2410; Happy v. Mosher, 48 N. Y. 313; Sheppard v. Steele, 43 N. Y. 52; King v. Greenway, 71 N. Y. 413; Mott v. Lansing, 57 N. Y. 112; Squires v. Abbott, 61 N. Y. 530; The Whistler, 30 Fed. Rep. 199; The Kingston, 23 Fed. Rep. 200; The Arctic, 22 Fed. Rep. 126; Onderdonk v. Voorhes, 36 N. Y. 358. North Carolina.-Code 1883. vol. 1, § 1804. Ohio.-Code, § 1220; Johnson v. Ward, 27 Ohio St. 517; The Guiding Star, 9 Fed. Rep. 521. Oregon.-Laws 1876, p. 9. Pennsylvania. — Brightly's Purdon Dig. 1883, p. 124; Dalzell v. The Daniel Kane, 31 Fed. Rep. 746; The Venture, 26 Fed. Rep. 285. South Carolina.-Gen. Stat., § 2389. Tennessee.-Code 1884, §§ 2751, 4293Texas.--Rev. Stat. 1879, p. 461. Vermont.-R. L. 1880, § 1981. Washington. Code 1881, ch. 136; Waddell v. The Daisy, 2 Wash. Ter. 76. West Virginia.-Acts 1882, ch. 64, § 14. rule, however, does not apply where a short excursion is made beyond the limits of the State, for the mere purpose of testing machinery, and where there is an immediate return to port.1 MARK.-(a) A sign, traced on paper or parchment, which stands in the place of a signature; usually made by persons who cannot write. It is most often the sign of the cross made in a little space left between the Christian name and sirname, and the word his is usually written above the mark, and the word mark below it.3 (b) A label, token or impression; a sign, badge, index; as, post mark, trade mark.4 Wisconsin.-Rev. Stat. 1878, § 3348; Weston v. Morse, 40 Wis. 455. 1. The New York statute (2 R. S. 493, § 2) provides that "when the ship or vessel shall depart from the port at which she was when such debt was contracted, to some other port within this State, every such debt shall cease to be a lien at the expiration of twelve days after the day of such departure; and in all cases such lien shall cease immediately after the vessel shall have left this State." See Johnson v. McDonough, Gilp. (U. S.) 103; Packard v. Louisa. 2 Wood. & M. (U.S.) 58; Leland v. Medora, 2 Wood. & M.(U.S.) 98; Spring v. S. C. Ins. Co., 8 Wheat. (U. S.) 268; Leonard v. Huntington, 15 Johns. (N. Y.) 290; James v. Bixby, 11 Mass. 34; Stewart v. Hall, 2 Dow. 29. The vessel must leave upon a voyage or employment in the pursuit of trade or business. The Alida, Abb. Adm. (U. S.) 172; Hancox v. Dunning, 6 Hill (N. Y.) 494; The Joseph E. Coffee, Olc. (U. S.) 407; The Sam Slick, 1 Sprague (U. S.) 292; Davis v. A New Brig, Gilp. (U. S.) 473 2. Bouv. Law Dict. 3. 2 Bla. Com. 305. Marksman.-One who signs by means of a mark. 2 Bla. Com. 305; Grayson v. Atkinson, 2 Ves. Sr. 454. Under the Statute of Frauds, 29 C. II, ch. 3, §§ 5 and 6, the making of a mark by the devisor, to a will of real estate is a sufficient signing; and it is not necessary to prove that he could not write his name at the time. Baker v. Dening, 8 Ad. & E. 94; In the goods of Field, deceased, 3 Curt. 753; Meehan v. Rourke, 2 Bradf. Surr. (N. Y.) 385. Flannery's Will, 24 Pa. St. 502 and cases cited; St. Louis Hospital Ass'n v. Williams Adm., 19 Mo. 609; Horton Johnson, 18 Ga. 396. . It is not necessary to the validity of a deed that the words "her mark" shall accompany the cross of the grantor in a deed, who signs by making her mark, when it appears that it was made by her, or, being made by some other person, that she adopted it as hers. Sellers v. Sellers. 3 S. E. Rep. (N. Car.) 917; see also State v. Byrd, 93 N. Car. 624; Tatom v. White, tom v. White, 95 N. Car. 453. Under the laws of Louisiana, and the decisions of the courts of that State, a "mark" for the name, to an instrument, by a person who is unable to write his name, is of the same effect as a signature of the name. Zacharie v. Franklin, 12 Pet. (U. S.) 151; see also Madison v. Zabriskie, 11 La. Rep. 251. This principle is fully settled by many cases. Among others, Jackson v. Van Dusen, 5 Johns. (N. Y.) 144. 4. Adams 7. Heisel, 31 F. R. 280. Ear Mark. A mark placed upon a thing by which to identify it. Anderson's Law Dict. Trade Mark.-A trade mark is the name, symbol, figure, letter, form or device adopted and used by a manufacturer, or merchant, in order to designate the goods that he manufactures or sells, and distinguish them from those manufactured or sold by another, to the end that they may be known in the market as his, and thus enable him to secure such profits as result from a reputation for superior skill, industry or enterprise. Upton on Trade Marks, p. 9. Form of Barrel as a "Trade Mark."— A barrel of peculiar form, dimensions and capacity, irrespective of any marks or brands impressed upon or connected with it, cannot become a lawful trade mark, or a substantive part of a lawful trade mark. Moorman v. Hoge, 2 Sawy. (U. S.) 78. See generally TRADE MARK. |