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decided: February 8, 1943.



Stone, Roberts, Black, Reed, Frankfurter, Douglas, Murphy, Jackson, Rutledge

Author: Stone

[ 318 U.S. Page 134]

 MR. CHIEF JUSTICE STONE delivered the opinion of the Court.

The Fish and Game Commission of California, having seized a purse net while it was being used for fishing in the navigable waters of the state in violation of the State Fish and Game Code, brought the present proceeding under § 845 of the Code for forfeiture of the net. The question for decision is whether the state court's judgment, directing that the net be forfeited and ordering the commission to sell or destroy it, is a "common law remedy" which the "common law is competent to give" within the statutory exception to the exclusive jurisdiction in admiralty conferred on district courts of the United States by § 9 of the Judiciary Act of 1789, 1 Stat. 76-77, 28 U. S. C. §§ 41 (3) and 371 (Third).

Section 845 of the California Fish and Game Code declares that a net used in violation of the provisions of the Code is a public nuisance and makes it the duty of any arresting officer to seize the net and report its seizure to the commission. The statute requires the commission to institute proceedings in the state superior court for the forfeiture of the seized net and authorizes the court, after a hearing and determination that the net was used unlawfully, to make an order forfeiting it and directing that it be sold or destroyed by the commission.

In this case the commission seized the net while it was being used by the fishing vessel Reliance in navigable coastal waters of the state in violation of §§ 89 and 842, which prohibit fishing by net in the area in question, and respondents, the members of the commission, brought this proceeding in the state superior court for the forfeiture of the net. Petitioners appeared as claimants and after a trial the court gave judgment that the net be forfeited, ordering respondents to sell or destroy it. The Supreme Court of California at first set the judgment aside, but after rehearing affirmed, 18 Cal. 2d 835,

[ 318 U.S. Page 135118]

     P. 2d 1, holding that the remedy given by the judgment is a "common law remedy" which "the common law is competent to give," and that the case is not within the exclusive jurisdiction in admiralty conferred on the federal courts by the Judiciary Act and hence was properly tried in the state court. Cf. Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638; The Hamilton, 207 U.S. 398, 404; Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123. We granted certiorari, 316 U.S. 643, the question being of importance in defining the jurisdiction of state courts in relation to the admiralty jurisdiction.

Only a single issue is presented by the record and briefs -- whether the state is precluded by the Constitution and laws of the United States from entertaining the present suit. It is not questioned that the state has authority to regulate fishing in its navigable waters, Manchester v. Massachusetts, 139 U.S. 240; Lawton v. Steele, 152 U.S. 133, 139; Lee v. New Jersey, 207 U.S. 67; Skiriotes v. Florida, 313 U.S. 69, 75; and it is not denied that seizure there of a net appurtenant to a fishing vessel is cognizable in admiralty. But petitioners insist that the present proceeding is not one which can be entertained by a state court since the judgment in rem for forfeiture of the net is not a common law remedy which the common law is competent to give, and that the case is therefore not within the statutory exception to the exclusive admiralty jurisdiction of the federal courts. In this posture of the case, and in the view we take, we find it necessary to consider only this contention.

Section 371 (Third) of 28 U. S. C., derived from § 9 of the Judiciary Act of 1789, confers exclusive jurisdiction on the federal courts "of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it . . ." A characteristic feature of the maritime law is its use of the procedure in rem derived from

[ 318 U.S. Page 136]

     the civil law, by which a libellant may proceed against the vessel, naming her as a defendant and seeking a judgment subjecting the vessel, and hence the interests of all persons in her, to the satisfaction of the asserted claim. Suits in rem against a vessel in cases of maritime tort and for the enforcement of maritime liens are familiar examples of a procedure by which a judgment in rem is sought, "good against all the world."

The question whether a maritime cause of action can be prosecuted in the state courts by such a procedure was first discussed by this Court seventy-seven years after the adoption of the Constitution and the Judiciary Act, in The Moses Taylor, 4 Wall. 411, which held that a lien upon a vessel, created by state statute, could not be enforced by a proceeding in rem in the state courts. Decision was rested on the ground that exclusive jurisdiction of the suit was vested in the federal courts by the Judiciary Act, since a judgment in rem to enforce a lien is not a remedy which the common law is competent to give, a ruling which has since been consistently followed. The Hine v. Trevor, 4 Wall. 555; The Belfast, 7 Wall. 624; The Glide, 167 U.S. 606; The Robert W. Parsons, 191 U.S. 17, 36-38; Rounds v. Cloverport Foundry Co., 237 U.S. 303, 307-08. Eleven years earlier this Court in Smith v. Maryland, 18 How. 71, without discussion of the point now at issue, had sustained the seizure and forfeiture of a vessel in a state court proceeding in rem, all pursuant to state statutes, for violation of a Maryland fishing law within the navigable waters of the state. The Court declared that the statute, which prescribed the procedure in rem in the state court, conflicted "neither with the admiralty jurisdiction of any court of the United States conferred by Congress, nor with any law of Congress whatever" (p. 76). The authority of that decision has never been questioned by this Court.

[ 318 U.S. Page 137]

     The common law as it was received in the United States at the time of the adoption of the Constitution did not afford a remedy in rem in suits between private persons. Hence the adoption of the saving clause in the Judiciary Act, as this Court has held in the cases already cited, did not withdraw from the exclusive jurisdiction of admiralty that class of cases in which private suitors sought to enforce their claims by the seizure of a vessel in proceedings in rem. But to the generalization that a judgment in rem was not a common law remedy there is an important exception. Forfeiture to the Crown of the offending object, because it had been used in violation of law, by a procedure in rem was a practice familiar not only to the English admiralty courts but to the court of Exchequer. The Exchequer gave such a remedy for the forfeiture of articles seized on land for the violation of law. And, concurrently with the admiralty, it entertained true proceedings in rem for the forfeiture of vessels for violations on navigable waters.*fn1 Such suits in the Exchequer were begun on information and were against the vessel or article to be condemned. Under the provisions of many statutes the suit might be brought by an informer qui tam, who was permitted to share in the proceeds of the forfeited

[ 318 U.S. Page 138]

     article; the judgment was of forfeiture and the forfeited article was ordered to be sold. This was the established procedure certainly as early as the latter part of the seventeenth century.*fn2 Proceedings in rem, closely paralleling those in the Exchequer, were also entertained by justices of the peace in many forfeiture cases arising under the customs laws (see Hoon, The Organization of the English Customs System, 1696-1786, pp. 277, 280-83), and the Act of 8 Geo. I, c. 18, § 16, placed within that jurisdiction the condemnation of vessels up to fifteen tons charged with smuggling.

While the English Acts of Navigation and Trade and numerous other forfeiture statutes conferred jurisdiction on all the English common law courts of record*fn3 to entertain

[ 318 U.S. Page 139]

     suits for forfeiture, nevertheless suitors having ready access to the convenient procedure of exchequer or admiralty in qui tam actions seem to have had little occasion to resort to the King's Bench or Common Pleas. In the occasional reported forfeiture cases brought in King's Bench, the English reports give us little light on the procedure followed or the precise form of judgment entered. In one case, Roberts v. Withered, 5 Mod. 193, 12 Mod. 92, the court seems to have adapted the common law action of detinue to forfeiture cases by resort to the fiction that bringing the action was the equivalent of a seizure which vested the property in the Crown so that a suit in detinue or replevin in personam to gain possession would lie. See Stephen, Pleading (3rd Am. ed.) pp. 47, 52, 69, 74; Ames, Lectures on Legal History, pp. 64, 71. Cf. Wilkins v. Despard, 5 Term Rep. 112.

Separate courts exercising the jurisdiction of the Court of Exchequer were never established in the American Colonies. Instead, that jurisdiction was absorbed by the common law courts which entertained suits for the forfeiture of property under English or local statutes authorizing its condemnation. Long before the adoption of the Constitution the common law courts in the Colonies -- and later in the states during the period of Confederation -- were exercising jurisdiction in rem in the enforcement of forfeiture statutes. Like the Exchequer, in cases of seizure on navigable waters they exercised a jurisdiction concurrently with the courts of admiralty. But the vice-admiralty courts in the Colonies did not begin to function with any real continuity until about 1700 or shortly afterward.

[ 318 U.S. Page 140]

     See Andrews, Vice-Admiralty Courts in the Colonies, in Records of the Vice-Admiralty Court of Rhode Island, 1617-1752 (ed. Towle, 1936), p. 1; Andrews, The Colonial Period of American History, vol. 4, ch. 8; Harper, The English Navigation Laws, ch. 15; Osgood, The American Colonies in the 18th Century, vol. 1, pp. 185-222, 299-303. By that time, the jurisdiction of common law courts to condemn ships and cargoes for violation of the Navigation Acts had been firmly established, apparently without question, and was regularly exercised throughout the colonies. In general the suits were brought against the vessel or article to be condemned, were tried by jury, closely followed the procedure in Exchequer, and if successful resulted in judgments of forfeiture or condemnation with a provision for sale.*fn4

[ 318 U.S. Page 141]

     The rise of the vice-admiralty courts -- prompted in part by the Crown's desire to have access to a forum not controlled by the obstinate resistance of American juries -- did ...

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