Enforcement of State-Created Liens in In rem or In Personam Admiralty Actions

A proceeding in rem is within the exclusive cognizance of the admiralty courts, when a lien is given by the general maritime law.  As no maritime lien arises from a contract for supplies furnished to a domestic vessel, there is no lien to enforce by a proceeding in rem, unless it is given by a local or state law.  Therefore, unless there is a lien derived from either the maritime or local law, there can be no proceeding in rem.  A lien is the foundation of such proceeding.  There is no foundation for a proceeding in rem upon it, unless there is a lien created and given by the state law.  The fact that the contract is maritime gives the federal courts jurisdiction.  A state cannot confer jurisdiction upon them, nor create maritime liens so as to have that effect.  However, courts of admiralty have given effect to them by applying the appropriate remedy peculiar to such courts, finding such liens to exist by force of the state law, and having jurisdiction of the contract upon which they are based.[i]

The maritime “privilege” or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it.  It is a “jus in re,” without actual possession or any right of possession.  It can be executed and divested only by a proceeding in rem.  This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of courts of admiralty.  The foreign and other attachments of property in the State courts, though by analogy loosely termed proceedings in rem, evidently not within the category.  However, it may operate to the prejudice of general creditors and purchasers without notice.  Therefore, it is “stricti juris,” and cannot be extended by construction, analogy, or inference.[ii]

[i] The Willapa, 25 Ore. 71 (Or. 1893)

[ii] Vandewater v. Mills, 60 U.S. 82 (U.S. 1857)


Inside Enforcement of State-Created Liens in In rem or In Personam Admiralty Actions