(dissenting):
The proceeding was brought under section 3419' et seq. of the Code of Civil Procedure to' enforce a lien for repairs upon a *555canal boat. These sections provide for the proceedings to enforce liens upon vessels, created by virtue of article 2 of the Lien Law, not based upon a maritime contract. Article 2 of the Lien Law (Chap. 418, Laws of 1897) provides for liens upon vessels for debts not liens under the Maritime Law; and section 35 provides, “ If a lien, created by virtue of this article is founded upon a maritime contract, it can be enforced only by proceedings in the courts of the United States, and in any.other case, in the courts of this state, in the manner provided by the code of civil procedure.”
The appellant claims that the lien in question was founded upon a maritime contract and can, therefore, be enforced only by proceedings in the United States courts. There is no dispute but that the lien here was for labor.and materials used in making repairs upon the canal boat, which was navigating the waters of the Erie canal and the Hudson river.
The repairs were made in May, 1899; the lien was filed during the same month, and the seizure under the warrant was made the latter part of November, 1899, at Albany, N. Y., while the boat was upon a trip from Buffalo to Brooklyn, N. Y., with a cargo of lumber shipped from Buffalo November 1,1899, consigned to a firm in Brooklyn. The law is well settled, as stated in the case'of The Glide (167 U. S. 606) : “ The enforcement, in rem, of the lien up on a vessel, created by the public statutes of Massachusetts, * * * for repairs and supplies in'her home port, is exclusively within the admiralty jurisdiction of the courts of the United States.” The court in that case, after an extended review of the cases, said: “ In conclusion, the considerations by which this case must be governed may be summed up as follows: . .
“ The maritime and admiralty jurisdiction conferred by the Constitution and laws of the United States, upon the District Courts of the United States is exclusive. A lien upon a ship for repairs or supplies, whether created by the general maritime law of the United States or by a local statute, is &jus in re, a right of property in the vessel and a maritime lien, to secure the performance of a maritime contract, and, therefore, may be enforced by admiralty process in rem in the District Courts of the United States. When the lien is created by the general maritime law for repairs or supplies in a foreign port, no one doubts at the present day that, under *556the decisions in The Moses Taylor and The Hine (4 Wall. 411, 555), above cited, the admiralty jurisdiction in rem of the courts of the United States is exclusive of similar jurisdiction of; the courts of the State. The contract and the lien for repairs or supplies in a home port, under a local statute, are equally maritime and equally within the admiralty jurisdiction, and that jurisdiction is equally exclusive.”
The only question here, therefore, is whether the canal boat in question, navigating the Erie canal and the Hudson river, is such a .vessel as is covered by the law relating to maritime contracts.
The claim made by the respondent is that the admiralty jurisdiction of the United States courts is confined to such vessels as navigate the high seas, and does not extend to boats engaged only in commerce- between different points in the same State.
In Ex parte Boyer (109 U. S. 629), decided in 1883, it was held that admiralty had jurisdiction of a suit in rem against a steam canal boat, to recover damages, caused by a collision between her and- another canal boat, while the two boats were navigating the Illinois and Lake Michigan canal, four miles from its Chicago end, in Cook county, 111.,, although the libellant’s boat was. bound from one place to another in the same State, Illinois.
The waters of the canal were held to be public waters of the United States, and within the legitimate scope of the admiralty jurisdiction, though the canal was an. artificial one, and wholly within the State of Illinois.
In Matter of Garnett (141 U. S. 1) it was held ' that the laws of limited liability, as a part of the maritime law of the United States was in force upon navigable rivers above tide water, and applied to enrolled and licensed vessels exclusively engaged in commerce on such rivers. In that case. the Katie was a steamer engaged in the carrying trade between Augusta and Savannah, both upon the Savannah' river and in the State of Georgia. .
The court among other things said: “ It being clear, then, that the law of limited liability of ship owners is a part of our maritime code, the extent of its territorial operation * * * cannot be doubful. It is necessarily co-extensive with that of the general admiralty and maritime jurisdiction, and that, by the settled law of this country,' extends wherever public navigation extends — on the sea and the great inland lakes, and the navigable waters connecting therewith. *557(Citing many cases.) It being established, therefore, that the law of limited liability is part of the maritime law of the United States, it only remains to determine whether that law may be applied to navigable rivers above tide water such as the Savannah river, and to vessels engaged in commerce on such a river like the steamboat Katie in this case. Of this there can be no doubt whatever. The question has been settled by a long course of decisions, some of which are here referred to. (Citing many cases.) In all of these cases it was held that the admiralty and maritime jurisdiction granted to the Federal government by the Constitution of the United States is not limited to tide waters, but extends to all public navigable lakes and rivers. In some of the cases it was held distinctly that this jurisdiction does not depend on the question of foreign or interstate commerce, but also exists where the voyage or contract, if maritime in character, is made and to be performed wholly within a single State.”
The court quotes from the case of The Belfast (7 Wall. 624), as said by Mr. Justice Clifford, “ navigable river's which empty into the sea, or into the bays and gulfs which form a part of the sea, are blit arms of the sea, and are as much within the admiralty and maritime jurisdiction of the United States as the sea itself.”
These are the latest expressions of the Supreme Court of the United States upon this subject to which our attention has been called, or that we have been able to find, and, if followed by this court, they are decisive of this appeal.
Cur attention is called to several cases in the Court of Appeals in this State, but none of them were decided later than 1880, and so far as they are in conflict with the clearly expressed decisions of the higher court they should be regarded as overruled. The controlling consideration in this case, under the decisions hereinbefore referred to, is that the canal boat in question was a boat navigating not only the Erie canal, but the Hudson river. This river is a public navigable one, and empties into the sea in New York harbor. It is not entirely within the State of New York, but touches the State of New Jersey as well. Its waters cannot be said to be inland waters of the State of New York merely. Clearly, in view of this consideration, under the authorities referred to, the contract was maritime in its nature.
*558The courts of this State, therefore, had no jurisdiction of this proceeding, and the order appealed from should be reversed, with costs of the appeal to appellant, and motion granted, with ten dollars costs.
Laugiilin, J., concurred.
Order affirmed, with ten dollars costs and disbursements.