CLIFFORD, Circuit Justice.
It is insisted by the libellants that on this state of facts the federal courts have jurisdiction to enforce the lien under the state law. They in effect admit that to maintain that view of the case it is necessary to show that a contract to furnish materials for the construction of a ship is a maritime contract, and they accordingly submit the affirmative of that proposition, and insist that all such contracts are maritime, especially where the ship is to be built upon the shores of tidewaters, and is designed for use upon the navigable waters of the sea. Maritime contracts are such as relate to commerce and navigation, and unless a contract for the building of a ship is to be regarded as a maritime contract, it will hardly be contended that a contract to furnish the materials for the construction of the same can fall within that designation, as the latter is more strictly a contract made on land and to be performed on land than the former, and is certainly one stage further removed from any immediate and direct relation to commerce and navigation.
On the other hand, if it be admitted that a contract to build a ship is a maritime contract, it is difficult to say that a contract to furnish the materials for the construction of the same is not also of the same character, although its breach and even its performance may involve judicial inquiries into the business transactions of men, as well in the forests and mines, as in the manufactories and workshops of the country.
Consequently, wherever the question involved in the record has been considered, the decision has uniformly turned upon the solution of the inquiry, whether a contract for building a ship is or is not a maritime contract. The parties in this controversy have conducted the investigation in the same way, and very properly, because it is clear that if a contract for building a ship is not a maritime contract, then this court has no jurisdiction of the matters involved in the cases under consideration. Beyond question the supreme court is the ultimate tribunal, under the constitution of the United States, to construe both the constitutional grant of judicial power in cases of admiralty and maritime jurisdiction, and the acts of congress regulating its exereise. Decisions of the supreme court, therefore, are final and conclusive upon the subject. Such a decision is an authority in this court, and of course will be followed even in cases where the present circuit judge is not able to yield his assent to the conclusion. Allowing the rule to be so, it is insisted by the claimants that the question involved in the controversy has been several times conclusively decided in that court, and they refer to the cases upon which they rely to support that proposition. But the libellants deny the proposition, and insist that no one of the cases referred to fully decides the point under consideration. Some care must be observed, tinder the circumstances, in examining those eases, and the more so, as two of the district courts, in respect to one of them, have come to opposite conclusions .as to the proper construction to be given to the opinion of the court Reference is made, in the first place, to the case of The Jefferson, 20 How. 161 U. S.] 393, in which the opinion of the court was given by Mr. Justice Ca-tron. Recurring to the statement of the case, it will be seen that it was a libel filed by the assignees ■ of the builders against a new steam ferry-boat, for a balance due the builders on account of work done and materials furnished in constructing the hull of the vessel. The builders contracted to build three ferry-boats at Keyport, in the state of New Jersey, but they built this one only, and they claimed a lien for the unpaid balance of the price.
Decree was entered in their favor in the court below, and the claimants appealed to the supreme court. When the cause came up for argument, the first point made for the claimants was, that a contract to build and complete a ship is not one within the admiralty jurisdiction of the federal courts, though it be intended to employ her in navigating the ocean, and even though the employer be a citizen or inhabitant of some other place or country than that in which the work is to be done. Direct issue was taken upon that proposition by the libellants, and the court say: “The only matter in controversy is whether the district courts have jurisdiction in admiralty to enforce liens for labor and materials furnished in constructing vessels to be employed in the navigation of waters to which the admiralty jurisdiction extends.” Notice was taken in the argument of the fact that the state law in that case gave no lien in favor of the builder, but the main point urged for the claimants was that the building of a ship was purely a local matter in no way directly connected with maritime commerce.
Responding to that argument, the court say: “The admiralty jurisdiction, in cases of contract, depends primarily upon the nature of the contract, and is limited to contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation.” Applying that rule to the case then under consideration, the court say: “So far from the contract being purely maritime, and touching rights and duties appertaining to navigation (.on the ocean or elsewhere), it was a contract made on land to be performed on land.” Effort is certainly required to misunderstand that language; but the court go fur[863]*863ther, and saj-, the wages of the shipwrights had no reference to a voyage to be perform - •ed. They had no interest or concern whatever in the vessel after she was delivered to the party for whom she was built, and they were bound to rely on their contract
Looking at the whole case, I am of the opinion that the supreme court in that case decided, and intended to decide, that a contract fof the building of a ship is not a maritime contract. Judge Wilson took the same view of the question in the case of The Revenue Cutter [Case No. 11,713]; but Judge Sprague, in the _ case of The Richard Busteed |Td. 11,704], held that a contract for, the building of a sea-going vessel was maritime, and came to the conclusion that the contrary opinion, expressed in the Case of,The Jefferson, might be regarded as the reasoning or dictum of the judge who delivered the opinion. Since the last-named case was decided, the same question has more than once come before the supreme court, and on every occasion the decision has been that such contracts are not maritime. Such was the view of the court in the case of Roach v. Chapman, 22 How. [63 U. S.] 129, where the opinion of the court was given by Hr. Justice Grier. Proceedings had been instituted in the district court for the Eastern district of Louisiana, in that case against the steamer Capitol, to enforce a lien for a part of the price of the engine and boilers, which had been furnished at Louisville, in the state of Kentucky, where she was built. Libellants claimed a lien under the general admiralty law and under the law of the state. Plea was Sled to the jurisdiction of the court, and the court say, a contract for building a ship or supplying engines, timber, or other material for her construction, is clearly not a maritime contract, and that any former dicta or decisions which seemed to favor a con-trary doctrine were overruled by this court in the ease of The Jefferson, 20 How. [61 U. S.] 400. During the same session of the court, the same question was again presented in the case of Morewood v. Enequist, 23 How. [64 U. S.] 494. and was again decided in the same way.
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CLIFFORD, Circuit Justice.
It is insisted by the libellants that on this state of facts the federal courts have jurisdiction to enforce the lien under the state law. They in effect admit that to maintain that view of the case it is necessary to show that a contract to furnish materials for the construction of a ship is a maritime contract, and they accordingly submit the affirmative of that proposition, and insist that all such contracts are maritime, especially where the ship is to be built upon the shores of tidewaters, and is designed for use upon the navigable waters of the sea. Maritime contracts are such as relate to commerce and navigation, and unless a contract for the building of a ship is to be regarded as a maritime contract, it will hardly be contended that a contract to furnish the materials for the construction of the same can fall within that designation, as the latter is more strictly a contract made on land and to be performed on land than the former, and is certainly one stage further removed from any immediate and direct relation to commerce and navigation.
On the other hand, if it be admitted that a contract to build a ship is a maritime contract, it is difficult to say that a contract to furnish the materials for the construction of the same is not also of the same character, although its breach and even its performance may involve judicial inquiries into the business transactions of men, as well in the forests and mines, as in the manufactories and workshops of the country.
Consequently, wherever the question involved in the record has been considered, the decision has uniformly turned upon the solution of the inquiry, whether a contract for building a ship is or is not a maritime contract. The parties in this controversy have conducted the investigation in the same way, and very properly, because it is clear that if a contract for building a ship is not a maritime contract, then this court has no jurisdiction of the matters involved in the cases under consideration. Beyond question the supreme court is the ultimate tribunal, under the constitution of the United States, to construe both the constitutional grant of judicial power in cases of admiralty and maritime jurisdiction, and the acts of congress regulating its exereise. Decisions of the supreme court, therefore, are final and conclusive upon the subject. Such a decision is an authority in this court, and of course will be followed even in cases where the present circuit judge is not able to yield his assent to the conclusion. Allowing the rule to be so, it is insisted by the claimants that the question involved in the controversy has been several times conclusively decided in that court, and they refer to the cases upon which they rely to support that proposition. But the libellants deny the proposition, and insist that no one of the cases referred to fully decides the point under consideration. Some care must be observed, tinder the circumstances, in examining those eases, and the more so, as two of the district courts, in respect to one of them, have come to opposite conclusions .as to the proper construction to be given to the opinion of the court Reference is made, in the first place, to the case of The Jefferson, 20 How. 161 U. S.] 393, in which the opinion of the court was given by Mr. Justice Ca-tron. Recurring to the statement of the case, it will be seen that it was a libel filed by the assignees ■ of the builders against a new steam ferry-boat, for a balance due the builders on account of work done and materials furnished in constructing the hull of the vessel. The builders contracted to build three ferry-boats at Keyport, in the state of New Jersey, but they built this one only, and they claimed a lien for the unpaid balance of the price.
Decree was entered in their favor in the court below, and the claimants appealed to the supreme court. When the cause came up for argument, the first point made for the claimants was, that a contract to build and complete a ship is not one within the admiralty jurisdiction of the federal courts, though it be intended to employ her in navigating the ocean, and even though the employer be a citizen or inhabitant of some other place or country than that in which the work is to be done. Direct issue was taken upon that proposition by the libellants, and the court say: “The only matter in controversy is whether the district courts have jurisdiction in admiralty to enforce liens for labor and materials furnished in constructing vessels to be employed in the navigation of waters to which the admiralty jurisdiction extends.” Notice was taken in the argument of the fact that the state law in that case gave no lien in favor of the builder, but the main point urged for the claimants was that the building of a ship was purely a local matter in no way directly connected with maritime commerce.
Responding to that argument, the court say: “The admiralty jurisdiction, in cases of contract, depends primarily upon the nature of the contract, and is limited to contracts, claims, and services purely maritime, and touching rights and duties appertaining to commerce and navigation.” Applying that rule to the case then under consideration, the court say: “So far from the contract being purely maritime, and touching rights and duties appertaining to navigation (.on the ocean or elsewhere), it was a contract made on land to be performed on land.” Effort is certainly required to misunderstand that language; but the court go fur[863]*863ther, and saj-, the wages of the shipwrights had no reference to a voyage to be perform - •ed. They had no interest or concern whatever in the vessel after she was delivered to the party for whom she was built, and they were bound to rely on their contract
Looking at the whole case, I am of the opinion that the supreme court in that case decided, and intended to decide, that a contract fof the building of a ship is not a maritime contract. Judge Wilson took the same view of the question in the case of The Revenue Cutter [Case No. 11,713]; but Judge Sprague, in the _ case of The Richard Busteed |Td. 11,704], held that a contract for, the building of a sea-going vessel was maritime, and came to the conclusion that the contrary opinion, expressed in the Case of,The Jefferson, might be regarded as the reasoning or dictum of the judge who delivered the opinion. Since the last-named case was decided, the same question has more than once come before the supreme court, and on every occasion the decision has been that such contracts are not maritime. Such was the view of the court in the case of Roach v. Chapman, 22 How. [63 U. S.] 129, where the opinion of the court was given by Hr. Justice Grier. Proceedings had been instituted in the district court for the Eastern district of Louisiana, in that case against the steamer Capitol, to enforce a lien for a part of the price of the engine and boilers, which had been furnished at Louisville, in the state of Kentucky, where she was built. Libellants claimed a lien under the general admiralty law and under the law of the state. Plea was Sled to the jurisdiction of the court, and the court say, a contract for building a ship or supplying engines, timber, or other material for her construction, is clearly not a maritime contract, and that any former dicta or decisions which seemed to favor a con-trary doctrine were overruled by this court in the ease of The Jefferson, 20 How. [61 U. S.] 400. During the same session of the court, the same question was again presented in the case of Morewood v. Enequist, 23 How. [64 U. S.] 494. and was again decided in the same way. On that occasion the court, after referring to the Case of The Jefferson, go on to say that the court decided in that case that a contract to build a ship is not a maritime contract; and though in countries governed by the civil law, courts •of admiralty may have taken jurisdiction of such contracts, yet that in this country they .are purely local, and governed by state laws, and should be enforced by the state tribunals. Regarding these decisions as authority in this court, it is not possible to sustain the views of the libellants in these cases.
Contracts for repairs and supplies are maritime contracts, and it is for that reason that libels for such claims, if furnished to a foreign ship or for a ship in a foreign port, may be filed against the ship and freight in ■.rem. or against the master or owner in per-sonam. Libels in rem in such cases are based upon a maritime lien, which arises as an implication of law. Such implication, however, does not arise in cases of domestic ships, but under the old admiralty rule the like proceeding in rem was allowed in such eases where a lien was given by the local law. Suits in personam may still be prosecuted in such cases under the new admiralty rule, but not in rem, as under the previous rule.
Pending cases or such as were brought before the 1st of May, 1854, when the new rule went into operation, are unaffected by the repeal of the old rule. The St. Lawrence, 1 Black. [66 U. S.] 522. Explanations touching the repeal of that rule and the effect of that repeal are so fully given in the case last referred to, that it seems unnecessary to say more upon the subject, especially as neither the old nor new rule has any application to the case under consideration.
It was suggested at the argument that the objection to the jurisdiction had been waived, but it is the settled doctrine of the federal courts that consent cannot give jurisdiction, nor can the objection be waived. Cutler v. Rae, 7 How. [48 U. S.] 731. Having come to the conclusion that the objection to the jurisdiction of the court must prevail, it is unnecessary to examine the other question. The respective decrees of the district court dismissing the libels are affirmed, buf without costs.