Maritime liens and the early American Admiralty Court : an historical conspectus
| Published date | 01 January 2011 |
| Pages | 227-273 |
| Date | 01 January 2011 |
| DOI | 10.10520/EJC74144 |
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6 MARITIME LIENS AND THE EARLy AMERICAN
ADMIRALTy COuRT: AN HISTORICAL CONSPECTuS
6.1 Introduction
Lord Buckmaster observed that although the source of the law in
England and America was the same, its current often flowed in
different directions.1 In few areas of the law was this tendency
more evident than in the law relating to maritime liens.2 America
shared the same roots as the law developed and applied by the
English Admiralty Court, but its maritime law developed along
different lines as it was strongly influenced by Civil Law,3 with a
significantly broader approach than England to the concept of the
maritime lien.4 Unlike the maritime law in the Anglo-common
law jurisdictions, American maritime law did not have the variety
of “hybrid maritime security devices classified as statutory rights in
rem and rights of retention”, because the maritime lien was for all
practical purposes treated as homogeneous in America.5
American admiralty courts had their origin in the English courts,6
and the development of maritime law in America was patterned
2 See FC Underhay, American and English Theories of the Maritime
Lien (unpublished Master’s thesis, Yale University, 1936-37) 1; DR
Owen, “US maritime liens and the new arrest and attachment rules”
[1986] Lloyd’s Maritime and Commercial Law Quarterly 424.
3 This is largely due to America breaking away from the British Empire
at the end of the 18th century. See W Tetley, International Maritime
and Admiralty Law (Editions Yvon Blais, Cowansville (Quebec), 2002)
19 to 22; W Tetley, “Maritime Law as a Mixed Legal System (With
Particular Reference to the Distinctive Nature of American Maritime
Law, Which benefits from Both Its Civil and Common Law Heritages)”
(1999) 23 Tulane Maritime Law Journal 317 at 319 and 326 (Tetley
(Mixed Systems)).
4 For a discussion of the history of United States admiralty law, see
Chapter 1 in GH Robinson, Handbook of Admiralty Law in the United
States (West Publishing, St Paul, 1939); G Mangone, United States
Admiralty Law (Kluwer Law International, Boston, 1997) 24 to 36.
5 Owen, op cit 2, at 425.
6 See WK Townsend, “Admiralty 1701-1901” in Members of the Faculty
of the Yale Law School, Two Centuries’ Growth of American Law
(Charles Scribner’s Sons, New York, 1901) 450 et seq; JC Sweeney,
“The Silver Oar and Other Maces of the Admiralty: Admiralty
Jurisdiction in America and the British Empire” (2007) 38 Journal of
Maritime Law and Commerce 159 at 163 et seq; and L Armstrong,
“Holy Moses, Ghotra! In Rem−embrance of Admiralty’s Bench Trial”
(2001-2002) 14 University of San Francisco Maritime Law Jour nal 77
at 82.
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largely on the admiralty law of England.7 Since 1680, there have
been admiralty courts in the seaport cities of the British colonies
in North America.8 Colonial Vice-Admiralty courts were appointed
by the British in places such as Massachusetts,9 Maryland,10 and
New York.11 Although these courts were subjected to the same
restrictions as the English Admiralty as mentioned before,12 these
vice-admiralty courts appeared to have “exercised a somewhat
broader jurisdiction than the jealousy of the common law courts
permitted to the English admiralty courts.”13 Moreover, unlike the
English Admiralty Court which utilised the services of lawyers
7 See EP Deutsch, “Development of the Theory of Admiralty Jurisdiction
in the United States” (1960) 35 Tulane Law Review 117 at 118; HD
Goulder, “Evolution of the Admiralty Law in America” (1897) 5
American Lawyer 314; and SL Snell, Courts of Admiralty and the
Common Law: Origins of the American Experiment in Concurrent
Jurisdiction (Carolina Academic Press, Durham, 2006).
8 See J Mansfield, “Maritime Lien” (1888) 4 Law Quarterly Review 379
at 390. EC Surrency, “The Courts in the American Colonies” (1967) 11
American Journal of Legal History 347 at 354 pointed out that generally
admiralty courts were not established in the colonies prior to 1697 on a
regular basis, but the jurisdiction was exercised by the existing courts.
WA Butler, “Lectures on Admiralty” (1891-1892) 1 Intercollegiate
Law Journal 222 at 224; GH Robinson, “An Introduction to American
Admiralty” (1935-1936) 21 Cornell Law Quarterly 46 at 50; FC Setaro,
“The Formative Era of American Admiralty Law” (1959) 5 New York
Law Forum 9 at 10; and Sweeney, op cit n 6, at 164.
9 See, HJ Crump, Colonial Admiralty Jurisdiction in the Seventeenth
Century (Longmans, Green and Co, London, 1931) at 37 to 55; LK
Wroth, “The Massachusetts Vice Admiralty Court and the Federal
Admiralty Jurisdiction” (1962) 6 American Journal of Legal History
250 to 268, and 347 to 367.
10 See, DR Owen and MC Tolley, Courts of Admiralty in Colonial
America: The Maryland Experience, 1634-1776 (Carolina Academic
Press, Durham, 1995); DR Owen, “Earliest Activities as a Court of
Admiralty” (1991) 50 Maryland Law Review 45.
11 See, CM Hough, Reports of Cases in the Vice Admiralty of the
Province of New York and in the Court of Admiralty of the State of
New York 1715-1788 (Yale University Press, New Haven, 1925).
12 See chapter 5. Carryl v Taylor (1855) American Law Register 394 at
397; WW Adams, “Development of Admiralty Jurisdiction in the United
States, 1789-1857” (1986) 8 Western New England Law Review 157
at 158 and 160.
13 Steele v Thacher 22 F Cas 1204 (1825) at 1206; EM Dodd, “The
New Doctrine of the Supremacy of Admiralty over the Common Law”
(1921) 21 Columbia Law Review 647 at 648; Surrency, op cit n 8, at
358; Armstrong, op cit n 6, at 83; DJ Bederman, “Admiralty and the
Eleventh Amendment” (1997) 72 Notre Dame Law Review 935 at 941.
See, however, James Marsh and Son v The Brig Minnie (1857-58) 6
American Law Register 328 at 331.
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trained in Civil Law, the Colonial Vice-Admiralty courts relied on
common law lawyers.14 Indeed, American judges, even after 1789,
were generally not well-versed in civil law or maritime law.15 As
a result, the proceedings in the American vice-admiralty courts
developed their own peculiar rules of practice and procedure.16
Power struggles within the common law courts over jurisdiction
were not unknown, and writs of prohibition were fairly common.17
Indeed, Parsons remarked that, at the time of the independence
of the United States of America, many, if not the great majority of,
American lawyers had no idea of admiralty jurisdiction other than
that which the “shattered and fettered admiralty of England could
give them. And, judging from all human probability, we have some
right to say, that, if Story had not at that time held that place of high
authority, the present admiralty jurisdiction of England would have
been ours at the moment.”18
The development of American maritime law, and in particular
maritime liens, was different to its English counterpart. Although
most early district court judges followed English precedent and did
not question the character of their admiralty jurisdiction,19 there
were already clear indications in the early 19th century that the
American courts strongly implicated their emancipation from the
14 See MP Harrington, “The Legacy of the Colonial Vice-Admiralty Courts
(Part II)” (1996) 27 Journal of Maritime Law and Commerce 323 at 324.
167. See, for example, Thompson v The Catharina 23 F Cas (1795)
1028 at 1030 and 1031 (where it was stated that the maritime law was
part of the common law); Boreal v Golden Rose 3 F Cas 901 (1798)
(where it was stated that the law courts applied the maritime law).
16 See Harrington, op cit n 14, at 324; JP Frank, “Historical Bases of the
Federal Judicial System” (1948) 13 Law and Contemporary Problems
3 at 7. Although the procedure may have diverged somewhat from
the procedure in the English Admiralty Court, it generally followed the
same lines.
17 See paragraph 5.4.3 for a discussion of the writs of prohibition in
England. DM Collins, “Comments on the American Rule of In Rem
Liability” (1985) 10 Maritime Lawyer 71 at 75. According to Ware J, in
Lane v Townsend (1837) 17 American Jurist and Law Magazine 51 at
58, the admiralty practice in America at the time was “grafted on the
British practice”.
18 T Parsons, A Treatise on Maritime Law including the Law of Shipping,
the Law of Marine Insurance, and the Law and Practice of Admiralty
(Little, Brown and Company, Boston, 1859) 16. See, however, Frank,
op cit n 16, at 7 who remarked that the developments in the admiralty
courts in the American colonies “were trending in a distinctly non-
English direction”.
19 See Adams, op cit n 12, at 166.
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