Bird v. Steamboat Josephine , 1867 N.Y. App. Div. LEXIS 208 ( 1867 )

By the Court,

Sutherland, J.

We held preliminarily^ on the hearing, that the order appealed from on the warrant of attachment must be deemed to have been made by the court, or by the justice who made it, sitting or acting as a judge of the court, and not in the exercise of any ministerial power given by the.statute under which the warrant was issued, and, therefore, that the order was appealable. It must be assumed, I think, on the appeal papers, that the claims of the attaching creditors, were for supplies furnished to the steamboat while in the port of Sew York ; that she was a domestic vessel and in her home port, though plying between the port of Sew "York and a port in Sew Jersey. The argument of the counsel for the respondent, ón the merits, concisely, stated, is, the constitution of the United States- extends the judicial power of the United States to “all cases of. admiralty and maritime jurisdiction. The judiciary act of 1789, section 2, (1 Stat. at Large, 77,) gives to- the district courts of the United States “exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, &c. saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it.” This act is constitutional, and deprives state tribunals and officers of the power to take cognizance of any civil case of admiralty or maritime jurisdiction, except for the purpose of administering 'a common law remedy, referring to the cases of The Moses Taylor and Hine v. Trevor, (4 Wallace,) and to no other case.) The proceedings by attachment against the steamboat Josephine under the New York act, was not a common law remedy. Assuming that New York was the home port of the vessel, that the claim of the attaching creditors was for supplies furnished in the home port, yet the claim was within the cognizance and jurisdiction of admiralty courts, and therefore within their exclusive jurisdiction.

Conceding that the cause of action on the implied or express contract to pay for the supplies was within the jurisdiction of the admiralty courts, so that they could concurrently with the state courts administer a common law remedy ; that is, the remedy by suit or action in personam, and conceding that the proceedings by attachment under the New York act, was not a common law remedy, it appears to me that the defects in the argument are two : First, though it acknowledges the saving clause in the judiciary act of 1789, it ignores the reasonable and legitimate effect of it; and, second, it assumes that the cases of The Moses Taylor, (4 Wal. 427,) and The Hine v. Trevor, (Id. 569,) decide that such concurrent jurisdiction to administer a common law remedy, and a common law remedy only, deprives state tribunals and officers of the power to administer any other than a common law remedy. As to the first defect, the jurisdiction of a court in a given case may be defined as • the power to administer a legal remedy, or legal remedies in that case. Its jurisdiction may be limited to one remedy— two or more courts may have jurisdictiction to administer the same remedy concurrently. The jurisdiction of one court to administer a certain remedy concurrently with another court, in a given case, cannot be exclusive of such ■concurrent jurisdiction of such other court, nor of the jurisdiction of such other court to administer any other remedy in such case, not inconsistent or interfering with such concurrent jurisdiction. No argument of counsel—no decision of a court—can alter the meaning of the words concurrent and exclusive. Of course, the jurisdiction of a court in a given case, may be exclusive of any jurisdiction, of any remedy, in any other court; but if its jurisdiction is limited to a certain remedy, it has no jurisdiction to be interfered with by the administration of a different remedy in another court.

The argument of the counsel assumes that the admiralty courts have general jurisdiction in a case like this, and could administer the process or remedy in rem, but have not been permitted by the Supreme Court. of the United States to administer it. Since the abolition of the rule recognizing state liens, the cases are conclusively the other way. (See The General Smith, 4 Wheat.; The St. Lawrence, 1 Black; Maguire v. Card, 21 How. 251, and other cases cited, in my opinion in the matter of The Steamship Circassian, ante p. 490.) The saving clause in the judiciary act implies that the district courts of the United States might administer a common law remedy concurrently with the state courts. The Supreme Court of the United States has conceded, (see Maguire v. Card, supra,) that the jurisdiction of the district court in cases like this' is limited to actions in personam ; that they had no jurisdiction in rem independent of states liens, and till the abolition of the rule recognizing state liens, in 1858, such liens were repeatedly recognized and enforced by the district courts, and, on appeal, by the Supreme Court of the United States, which could be done, consistently, only on a construction of the judiciary act that the jurisdiction in rem of the district courts was and could be exclusive only when they had it, and that when their jurisdiction was limited to the administration of a common law remedy concurrently with state courts or officers, it was not exclusive of state process or remedy in rem.

• Besides, broad as the provision of the constitution of the United States is, leaving it to congress or the courts organized by congress to define and declare what causes admiralty or maritime jurisdiction does or shall extend to, I am not willing to concede that congress could place the district courts in the position, (if I may he excused for referring to vulgar fable in illustration,) of “ the dog .in the manger.” Sometimes a question fairly put is the end of logic. If, in answer to the epigrammatic remark, “it is not a remedy in the common law courts which is saved, but a common law remedy,” I ask, without receiving a negative answer, whether it follows that states cannot give suitors any remedy other than in addition to the common law remedy, I must treat the question as the end of my logic on that point. As to the second defect of the counsel’s argument, I do not think it can be said that The Moses Taylor and The Hiñe v. Trevor cases, decide that the provision of the judiciary act deprives state tribunals and officers of power to take cognizance of any civil case of admiralty or maritime jurisdiction, except for the purpose of administering a common law remedy.

Nor do I see that the sentence quoted in the counsel’s points, from Justice Miller’s opinion justifies that proposition. These cases do decide that the jurisdiction which the district courts have in maritime cases is exclusive, except where it is concurrent by the saving clause in the judiciary ■ act, but they do not decide, and the court is not called upon to decide in them, that the district courts have any jurisdiction in cases like this, except, to administer the concurrent common law remedy. These cases do not decide that in a case like this, the judiciary had conferred, or could confer, on the district courts a jurisdiction in rem to be laid idly by and not exercised, for the purpose of depriving state tribunals and officers of such jurisdiction. My opinion in the matter of the steamship Circassian, which will be submitted to my associates with this, was perhaps more elaborate than the occasion called for, and certainly might, if I had time, be revised and condensed to advantage, but my conclusion in that case, as to the extent and application of the principle of exclusive jurisdiction declared- in The Moses Taylor and The Mine v. Trevor cases, was, I think, correct, and therefore I think the order appealed from should be reversed, but without costs. ■

[New York General Term, November 4, 1867.

Order reversed.

Leonard, Clerke and Sutherland, Justices.]