The grant in the Constitution extending the judicial power "to
all cases of admiralty and maritime jurisdiction" is neither to be
limited to nor to be interpreted by what were cases of admiralty
jurisdiction in England when the Constitution was adopted by the
states of the Union.
Admiralty jurisdiction in the courts of the United States is not
taken away because the courts of common law may have concurrent
jurisdiction in a case with the admiralty. Nor is a trial by jury
any test of admiralty jurisdiction. The subject matter of a
contract or service gives jurisdiction in admiralty. Locality gives
it in tort or collision.
In cases of tort or collision happening upon the high seas or
within the ebb and flow of the tide as far up a river as the tide
ebbs and flows, though it may be
infra corpus comitatus,
courts of admiralty of the United States have jurisdiction.
The meaning of the clause in the ninth section of the Judiciary
Act of 1789, saving to suitors in all cases a common law remedy
when the common law is competent to give it, is that in cases of
concurrent jurisdiction in admiralty and at common law, the
jurisdiction in the latter is not taken away.
The Act of 7 July, 1838, 5 Stat. 304, for the better security of
the lives of passengers on board of vessels propelled in whole or
part by steam, is obligatory in all its provisions except as it has
been altered by the Act of 1843, 5 Stat. 626, upon all owners and
masters of steamers navigating the waters of the United States,
whether navigating on waters within a state or between states, or
waters running from one state into another state, or on the coast
of the United States between the ports of the same state or
different states.
By the law 7 July, 1838, masters and owners neglecting to comply
with its conditions are liable to a penalty of two hundred dollars,
to be recovered by suit or indictment. And if neglect or
disobedience of the law shall be proved to exist when injury shall
occur to persons or property, it throws upon the master and owner
of a steamer the burden of proof to show that the injury done was
not the consequence of it.
This was a suit in admiralty brought originally in the District
Court for the Eastern District of Louisiana by Thomas Clarke, as
late master of the steamboat
Luda, and as agent for her
owners, against the steamboat
De Soto and her owners,
Waring and Dalman, to obtain compensation for the destruction of
the
Luda by means of a collision between said boats.
A libel, answer, and supplemental libel and supplemental answer
were filed, which were as follows:
"To the Honorable Theodore H. McCaleb, Judge of the United
States District Court in and for the Eastern District of
Louisiana."
"The libel and complaint of Thomas Clarke, late master of the
steamboat
Luda, of New Orleans (and agent of P. T.
Marionoux, of the Parish of Iberville, in Louisiana), and of T. J.
Abel, of the City of New Orleans, owners of the said steamboat
Luda, her tackle,
Page 46 U. S. 442
apparel, furniture, and machinery, and who authorize libellant
to institute this suit against the steamboat
De Soto, her
tackle, apparel, and furniture, whereof S. S. Selleck now is, or
lately was, master, now in the River Mississippi in the port of New
Orleans, where the tide ebbs and flows, and within the admiralty
jurisdiction of this Court, and against Nathaniel S. Waring, Peter
Dalman, and Parker, all residing within the jurisdiction of this
Honorable Court, owners of said steamboat
De Soto, and
also against all persons lawfully intervening for their interest in
said steamboat
De Soto, in a cause of collision, civil and
maritime, and thereupon the said Thomas Clarke, master and agent as
aforesaid, alleges and articulately propounds as follows:"
"First. That the steamboat
Luda, whereof libellant was
then master, was, on the first day of November last past, at the
port of New Orleans and destined on a voyage or trip from thence to
Bayou Sarah, on the River Mississippi, about one hundred and
sixty-five miles from the City of New Orleans, with lading of
goods, wares, and merchandise, to the amount of _____ in value, or
thereabouts, and several passengers, and was at that time a tight,
stanch, and well built vessel, of the burden of two hundred and
forty-five [tons], and was then completely rigged, and sufficiently
provided with tackle, apparel, furniture, and machinery, and then
had on board, and in her service, twenty-two mariners and fireman,
which was a full complement of hands to navigate and run said
steamboat
Luda on the voyage above mentioned, and all the
necessary officers to command said boat."
"Second. That on said first day of November, 1843, the said
steamer
Luda, provided and manned as aforesaid, departed
from the said port of New Orleans, being propelled by steam, on her
aforesaid voyage to Bayou Sarah, and in the prosecution of her
voyage on the said River Mississippi arrived at what is called the
Bayou Goula bar in said river, about ninety-five miles from the
said port of New Orleans, on or about the hour of two o'clock A.M.
of the morning of the second day of November, 1843, and was running
as hear to, or closely 'hugging' said bar, being on her starboard,
as she could safely; whilst the said steamer was running in that
position, pursuing the usual track which steamboats ascending the
said river take under the circumstances and going at her usual
speed of about ten miles per hour, at the time aforesaid, within
the ebb and flow of the tide and within the admiralty and maritime
jurisdiction of this Honorable Court, Garrett Jourdan, the pilot of
said steamer
Luda, who was then at the wheel and
controlled and directed said boat on said voyage, and Levi Babcock,
also the pilot of said boat and who was then on the hurricane deck
of said boat, observed the said steamboat
De Soto, whereof
the said S. S. Selleck was then master, of the burden of two
hundred and fifty tons, or thereabouts, descending said river,
being propelled by
Page 46 U. S. 443
steam, and controlled and directed at the time by one James
Wingard, pilot of said boat, who then had the wheel steering said
boat in a direction parallel with, and at a distance from, the
course then pursued by the
Luda sufficient to have passed
the said
Luda without touching and at a distance of about
nine hundred feet or more, and in that position the said boats
continued to run, the
Luda ascending, the
De Soto
descending, the said river as aforesaid, until their bows were
nearly opposite to each other, when, notwithstanding there was
sufficient room for said boats to have passed each other without
collision and notwithstanding the said
Luda was then in
her proper position, running as near said bar as she could safely,
said James Wingard, the said pilot of the
De Soto,
suddenly turned the wheel, and threw the
De Soto out of
her proper position, and changed her course nearly at right angle
to the one she [had] been running, in a direction towards the
Luda, and notwithstanding the pilot of the said
Luda rang her bell, and threw her fire doors open to
apprize the
De Soto of the situation of the
Luda,
the said pilot of the
De Soto, either intentionally and
willfully or most grossly, negligently, and culpably ran the bow of
the
De Soto, with great force and violence, foul of and
against the
Luda, about or near midship on the larboard
side, and thereby so broke and damaged the hull and machinery of
the
Luda that the said
Luda in a few minutes
filled with water and sunk to the bottom of said river in ten or
twelve feet water, where she now lies a total wreck, worthless, and
an entire loss, and so sudden did she fill with water and sink,
that two of the crew, a white man and negro, were drowned, or are
missing and cannot be found; the balance of the crew, officers, and
passengers barely escaped with their lives, and were not able to
save anything of the freight on board or any part of said boat, her
tackle, apparel, and furniture &c., or even their clothes, the
whole being lost by reason of the said boat
De Soto's
having run foul of and against the said
Luda as aforesaid
and sinking said
Luda as aforesaid."
"Third. That at the time the collision and damage mentioned in
the next preceding article happened, it was impossible for the
steamer
Luda to get out of the way of the said steamer
De Soto by reason that the former was in her proper
position, running as near to, or closely 'hugging' said bar as she
could prudently and safely; that there was room enough for the said
steamboat
De Soto to steer clear of, and pass by, the said
Luda without doing any damage whatever or coming in
collision with the
Luda, and that if the said James
Wingard, the pilot of the said
De Soto, had not changed
the direction of the said
De Soto, but kept her in her
proper position as aforesaid, and had not refused, or at least
carelessly and culpably neglected, to endeavor to keep clear of
said
Luda, which it was his as well as the officers' duty
to do, of said
De Soto, and which they might with ease and
safety have done, the
Page 46 U. S. 444
aforesaid collision, damage, and loss of life and property would
not have happened, and libellant expressly alleges that the same
did happen by reason of the culpable negligence, incompetency, or
willful intention of the said pilot and officers of the said
De
Soto."
"Fourth. That the said steamboat
Luda, before and at
the time of being run foul of, damaged, and sunk by the said
steamer
De Soto as hereinbefore mentioned, was a tight,
strong, and stanch boat and was, together with her tackle, apparel,
and furniture and machinery, worth the sum of fifteen thousand
dollars, and that the books, papers &c., belonging to said
boat, and the property belonging to the officers and crew of said
boat (exclusive of goods, wares, and merchandises on board of said
boat), belonging to various persons unknown to libellant, as well
the value thereof, were reasonably worth the sum of one thousand
dollars, all of which was lost as aforesaid, and that by reason of
the said steamboat
Luda's having been run foul of and sunk
by the said steamer
De Soto as hereinbefore mentioned.
Libellant, as master and agent of the owners of said
Luda,
has sustained damages to the amount of sixteen thousand dollars,
which sum greatly exceeds the value of the said steamer
De
Soto, and for the payment of which sum the said steamer
De
Soto and her owners the said Nathaniel S. Waring, Peter
Dalman, and Parker, are liable
in solido, and should be
compelled to pay."
"Fifth. That all and singular the premises are true and within
the admiralty and maritime jurisdiction of this Court, in
verification whereof, if denied, the libellant craves leave to
refer to the depositions and proofs to be by him exhibited in this
cause, and libellant further alleges that he has reason to fear
that the said steamer
De Soto will depart in less than ten
days beyond the jurisdiction of this Honorable Court."
"Wherefore libellant prays that process in due form of law,
according to the course of courts of admiralty and of this
Honorable Court in causes of admiralty and maritime jurisdiction,
may issue against the said steamboat
De Soto, her tackle,
apparel, machinery, and furniture, and the said Nathaniel S.
Waring, Peter Dalman, and Parker, who is the clerk of said boat,
may be cited, as well as all other persons having or pretending to
have any right, title, or interest therein, to appear and answer
all and singular the matters so articulately propounded herein.
That after monition and other due proceedings according to the laws
and usages of admiralty, that this Honorable Court may pronounce
for the damages aforesaid and condemn the said Nathaniel S. Waring,
Peter Dalman, and Parker, and all other persons intervening for
their interest in said boat, to pay
in solido the sum of
sixteen thousand dollars to libellant, and also to decree and
condemn the said steamer
De Soto, her tackle, apparel, and
furniture, to be sold to satisfy by privilege and preference the
claim of your libellant, with his costs in this behalf expended,
and
Page 46 U. S. 445
for such other and further decree be rendered in the premises as
to right and justice may appertain, and your libellant will ever
pray &c."
"W. S. VASON,
Proctor"
"Thomas Clarke, being duly sworn, deposeth, that the material
allegations of the above libel are true."
"[Signed] THOMAS CLARKE"
Upon this libel, the judge ordered admiralty process
in
rem to issue against the steamboat
De Soto, and also
process
in personam against the owners, citing them to
appear and answer the libel. The answer was as follows:
"To the Honorable Theo. H. McCaleb, Judge of the District Court
of the United States within and for the Eastern District of
Louisiana."
"And now Peter Dalman, of the City of Lafayette, in the district
aforesaid, and Nathaniel S. Waring, intervening for their interest
in the said steamboat
De Soto, and for answer to the libel
and complaint of Thomas Clarke, as late master of the steamboat
Luda, and agent of P. F. Marionoux and T. J. Abel, late
owners of the steamboat
Luda, against the steamboat
De
Soto, her tackle, apparel &c., and against Peter Dalman,
and Nathaniel S. Waring, and Parker, as owners of the said
steamboat
De Soto, and also against all persons
intervening for their interest in said steamboat
De Soto,
allege and articulately propound as follows:"
"First. That the respondents are the true and lawful owners of
the said steamboat
De Soto."
"Second. That it doth appear from the allegations of the said
libel, and these respondents expressly propounded and allege the
fact to be so, that the trespass, tort, or collision set forth and
alleged in the said libel, if any such did take place in the manner
and form set forth in said libel, which these respondents most
respectfully deny, was on the River Mississippi, off and near the
mouth of the Bayou Goula, about ninety-five miles above the City of
New Orleans, within the State of Louisiana, within the body of a
county or parish of said state, to-wit, the Parish of Iberville or
County of Iberville in said state."
"Third. The tide does not ebb and flow at the place where the
said collision, tort, or trespass is alleged to have taken
place."
"Fourth. That it is not alleged in said libel, and these
respondents aver and propound that the said collision did not take
place on the high seas, or in sailing or navigating to or from the
sea."
"Fifth. That neither the said steamboat
Luda nor the
said steamboat
De Soto was, at the time the said collision
took place or the tort or trespass aforesaid is alleged to have
been committed, employed in sailing or navigating on any maritime
voyage, but were wholly employed, and then were actually pursuing a
voyage confined
Page 46 U. S. 446
to the River Mississippi, to-wit, the said steamboat
Luda on a voyage from the City of New Orleans to Bayou
Sarah, about one hundred and sixty miles above the said city, and
the said steamboat
De Soto on a voyage or trip from Bayou
Sarah aforesaid to the City of New Orleans, where her said voyage
or trip was to end."
"Sixth. That neither the said steamboat
Luda nor the
said steamboat
De Soto was built, designed, or fitted, or
ever intended to be employed or used in any manner for a maritime
or sea voyage, nor have they, or either of them, ever been used,
employed, or engaged in any such maritime or sea voyage, but were
wholly built, designed, or intended for the navigation of the said
River Mississippi or other rivers or streams entering therein and
the transportation of goods and passengers from the said City of
New Orleans up the said river or streams to the interior of the
country and the transportation of passengers, goods, cotton, and
other produce of the country from the landings and places and
plantations of the inhabitants on the bank or banks of said rivers
and streams to the said City of New Orleans, without proceeding any
further down the said River Mississippi, nearer to its mouth or to
the sea, and were both so employed at the time the said collision,
trespass, or tort is alleged to have been committed."
"Seventh. That this Honorable Court, by reason of all the
matters and things so above propounded and articulated, has not
jurisdiction and ought not to proceed to enforce the claim alleged
in the libel aforesaid against the said steamboat
De Soto,
or against them, these respondents, intervening for their interest,
or against these respondents in their proper persons, as prayed for
in and by said libel."
"Eighth. That all and singular the premises are true, in
verification whereof, if desired, these respondents crave leave to
refer to the depositions and other proof to be by them exhibited in
this cause. And the said respondents, in case their said plea to
the jurisdiction of the court so as above propounded, articulated,
and pleaded, should be overruled, then they, for further defensive
answer, articulately propound and say:"
"1st. That they admit that the said two steamboats did come into
collision at the time stated in the said libel, but they do
expressly deny that the said collision was caused or did happen by
any fault, negligence, or intention of these respondents, or the
master, officers, or crew of the said steamboat
De Soto or
any other person or persons for whom these respondents or the said
steamboat
De Soto can in any manner be liable or
responsible."
"2d. That the said collision was caused by the fault or
negligence or want of skill in the person or persons having charge
or command of the said steamboat
Luda or the pilots,
officers, or crew of said steamboat, or that the same was by
accident, for which these respondents are not liable. "
Page 46 U. S. 447
"3d. That the said sinking of the said steamboat
Luda
and her loss alleged in said libel were not caused by any damage
she received in the collision aforesaid, but by the negligence,
want of skill, and fault of the person or persons in charge of the
said steamboat
Luda."
"4th. That at the time the said collision did take place, the
said steamboat
Luda was not seaworthy and was not properly
provided with a commander and other usual and necessary officers of
competent skill to manage and conduct the said steamboat, by reason
of which the collision aforesaid did take place and the said boat
did afterwards sink."
"5th. That the said steamboat
De Soto did suffer a
great damage by the said collision, to the amount of five hundred
dollars, and these respondents have and will suffer great damage by
the seizure and detention of said steamboat
De Soto under
the process issued in this case, and to the amount of five thousand
dollars."
"Wherefore, and by reason of all the matters and things herein
propounded and pleaded, these respondents pray that this Honorable
Court will pronounce against the said libel, that the same may be
dismissed, and the said steamboat
De Soto restored to your
respondents, with all costs in this behalf expended."
"That your Honor may pronounce for the damages claimed by these
respondents, as before stated, and condemn the libellants to pay
the same
in solido to these respondents, and that your
respondents may have all such other and further order, decree, and
relief in the premises as to law and justice may appertain and the
nature of their case may require."
"[Signed] PETER DALMAN"
"N.S. WARING"
The supplemental libel was as follows:
"To the Honorable Theo. H. McCaleb, Judge of the United States
District Court in and for the Eastern District of Louisiana."
"The amended and supplemental libel of Thomas Clarke, late
master of the steamboat
Luda and agent of the owners
thereof &c., against the steamboat
De Soto, her
tackle, apparel, and furniture, and against Nathaniel S. Waring,
Peter Dalman, and Parker, owners thereof &c., and against all
persons intervening for their interest in the steamer
De
Soto &c., in a cause of collision, civil and maritime
&c., filed herein by leave of this Honorable Court, first
granted and obtained, to amend his original libel herein filed and
pending in said court."
"And thereupon the said Thomas Clarke, as master and agent as
aforesaid, doth allege and articulately propound, as amendatory and
supplemental to the allegations articulately propounded in his said
original libel, as follows: "
Page 46 U. S. 448
"First. That at the time of the collision between the said
steamboats, the said
De Soto and the said
Luda,
set forth and described in the second article of his original
libel, to-wit, on the first day of November, 1843, and for a
considerable time previous thereto, both of said boats were
employed as regular packets, running between the port of New
Orleans and the Town of Bayou Sarah, situate on the bank of the
Mississippi River about one hundred and sixty miles from the City
of New Orleans, carrying freight and passengers for hire between
said places, and the said steamboat
De Soto was, at the
time the said collision took place, returning from the said Town of
Bayou Sarah on a voyage or trip to the City of New Orleans, and the
steamboat
Luda was at the said time going on a voyage or
trip from the City of New Orleans to the said Town of Bayou Sarah,
and libellant expressly alleges that both of said boats were
contracted for, intended and adapted to, and were actually engaged
in navigating tidewaters at the time of said collision, running and
making trips between the City of New Orleans and the said Town of
Bayou Sarah in the River Mississippi, between which places the tide
ebbs and flows the entire distance, and that the place where the
said collision happened, to-wit, the Bayou Goula bar in the River
Mississippi and also the said Town of Bayou Sarah and the entire
distance between the said town and the City of New Orleans, are
within the admiralty and maritime jurisdiction of this Honorable
Court."
"Second. That on the night the collision took place between the
said boats, to-wit, on the night of the first day of November,
1843, there were not two lights hoisted out on the hurricane deck
of the said boat
De Soto, one forward, the other at the
stern of said boat, nor did the master and pilot of the said boat
De Soto, or either of them, when the said boat, then
descending the said River Mississippi, was within one mile of the
boat
Luda, then ascending said river, shut off the steam
of the said boat
De Soto nor permit the said boat to float
down upon the current of said river until the said boat
Luda passed the said boat
De Soto, as the laws of
this state require boats descending said river to do when meeting
boats ascending said river, and libellant expressly alleges that
said master and pilot of the
De Soto did neglect or refuse
to comply with the requirements of said law of this state as well
with the usage and customs observed by all boats navigating said
river, and that had the said master and pilot not neglected or
refused to comply with the requirements of said law, but conformed
thereto and observed the said usage and customs established by
boats navigating said river by shutting off the steam of the
De
Soto as soon as they discovered the
Luda or had
approached within one mile of her, and permitted the
De
Soto to float upon the current of said river until the
Luda had passed the
De Soto, the said collision
would not have occurred between the said boats, nor would the said
De
Page 46 U. S. 449
Soto have run foul of and against the said
Luda, as set forth in the second article of his original
libel."
"Third. That at the time of said collision, the said steamer
Luda was earning freight, being employed by libellant in
fulfilling certain verbal contracts of affreightment entered into
by and between him and the Port Hudson, & Clinton & West
Feliciana Railroad Companies and various planters in the month of
October, 1843, to transport all the cotton, and sugar, and produce
of the country which said railroad companies and planters might
deliver on the banks of the River Mississippi within the ebb and
flow of the tide on said river to the City of New Orleans during
the business season, to-wit, from 1 October, 1843, to 1 May, 1844;
that the said boat
Luda would have earned during said
period, by carrying freight in pursuance of said contracts of
affreightment and in the fulfillment and discharge thereof, over
and above all expenses, the sum of eight thousand dollars profit
for libellant; that by reason of the sinking and destruction of the
said steamer
Luda by being run foul of by the said
De
Soto as herein and in his original libel is particularly set
forth and alleged, libellant has been compelled to forfeit said
contracts of affreightment, and to lose the amount of the freight
which the said
Luda would have earned by fulfilling said
contracts, which he would have done had he not been prevented by
the sinking and destruction of said
Luda by the said
De Soto, to-wit, the sum of eight thousand dollars, which
sum libellant claims as damages sustained by him resulting from
said collision, in addition to the value of said boat
Luda, claimed in his original libel, to-wit, the sum of
sixteen thousand dollars, which two sums make the sum of
twenty-four thousand dollars, and libellant expressly alleges that
he has sustained damages to the amount of twenty-four thousand
dollars, by reason of the sinking and destruction of the said
steamboat
Luda by the said boat
De Soto, and that
the said boat
De Soto and owners are liable, and ought to
be compelled to pay said sum."
"Fourth. That all and singular the premises are true, in
verification whereof, if denied, libellant craves leave to refer to
depositions and other proof, to be by him exhibited on the trial of
this case"
"Wherefore, in consideration of the premises, libellant
reiterates his prayer in his original libel, unto the citations of
the owners of the said boat
De Soto, and condemnation of
said boat, and prays that the said owners may be condemned to pay,
in solido, the sum of twenty-four thousand dollars, with
all costs in this behalf expended to libellants, and for such other
and further relief in the premises as to justice and equity may
appertain &c."
"[Signed] THOMAS CLARKE"
The supplemental answer was as follows:
Page 46 U. S. 450
"To the Honorable Theo. H. McCaleb, Judge of the United States
District Court in and for the Eastern District of Louisiana."
"The amended and supplemental answer of Peter Dalman and
Nathaniel S. Waring, claimants and respondents in the case now
pending in this Honorable Court, of Thomas Clarke, late master of
Steamer
Luda, for himself and others, owners of said
Steamer v. Steamer De Soto and these respondents with leave of the
court first granted and obtained to amend their answer; and
thereupon the said respondents and claimants do allege and
articulately propound as follows:"
"First. They admit that the steamers
Luda and
De
Soto, at the time of the collision, were actually engaged in
the Bayou Sarah trade, and had been so engaged for a short time
previous thereto, but they deny that said boats were contracted for
or used in navigating tidewaters, and allege that the steamer
De Soto was contracted and used for the Red River trade,
where the tide neither ebbs nor flows, and for the reasons given
and for facts stated in their original answer that this Honorable
Court has not jurisdiction."
"Second. They deny all the allegations in the second article of
said amended libel and allege that the steamer
De Soto was
lightened, managed, and guided in a proper, careful, and lawful
manner at the before the time of collision, and subsequently
thereto."
"Third. They deny all the allegations of libellant in the third
article of said amended libel, and they further say that even if
the libellant should show, on the trial of this cause or be
permitted to do so, which should not be allowed, that they have
suffered or sustained consequential damages from said collision,
that said libellant has no right to recover such damages from the
respondents; they therefore pray that no such claim be allowed the
libellants, and that these respondents and claimants may have
judgment, as prayed for in the original answer and claim."
"[Signed] JNO. R. GRYMES"
"WM. DUNBAR"
"
Proctors for Defendants"
Upon the two questions of fact raised in these libels and
answers --
viz., 1st, the extent to which the tide ebbs
and flows up the Mississippi River, and, 2d, to whose fault the
collision was to be attributed -- a great body of evidence was
taken which it is not thought necessary to insert.
On 24 January, 1844, the following judgment was entered by the
district Judge:
"The court, having duly considered the law and evidence in this
cause and for reasons that hereinafter will be given in length and
filed in court, doth now order, and adjudge, and decree that the
plea to the jurisdiction be overruled and that the libellants do
recover from the steamboat
De Soto and owners, Peter
Dalman and
Page 46 U. S. 451
Nathaniel S. Waring, the sum of twelve thousand dollars, and the
costs of suit, and it is further ordered, that the steamboat
De
Soto be sold, after the usual and legal advertisements, and
that the proceeds thereof be deposited in the registry of the
court, subject to its further order."
From this judgment an appeal was filed to the circuit court.
In April, 1844, the appeal came on to be heard in the circuit
court, when much additional testimony was produced, and on 29 April
the court ordered that the exception to the jurisdiction of the
court should be dismissed, and the cause proceed on its merits.
On 6 May, 1844, the circuit court affirmed the decree of the
district court, with costs, from which an appeal was taken to this
Court.
MR. JUSTICE WAYNE delivered the opinion of the Court.
This is a libel
in rem to recover damages for injuries
arising from a collision alleged to have happened within the ebb
and flow of the tide in the Mississippi River about ninety-five
miles above New Orleans.
The decree of the circuit court is resisted upon the merits and
also upon the ground that the case is not within the admiralty and
maritime jurisdiction of the courts of the United States.
We will first consider the point of jurisdiction.
The learned counsel for the appellants, Mr. Reverdy Johnson
contended, that even if the evidence proved that the collision took
place within the ebb and flow of the tide, the court had not
jurisdiction because the locality is
infra corpus
comitatus.
Two grounds were taken to maintain that position.
1. That the grant in the Constitution of "all cases of admiralty
and maritime jurisdiction" was limited to what were cases of
Page 46 U. S. 452
admiralty and maritime jurisdiction in England when our
Revolutionary war began or when the Constitution was adopted, and
that a collision between ships within the ebb and flow of the tide,
infra corpus comitatus, was not one of them.
2. That the distinguishing limitation of admiralty jurisdiction,
and decisive test against it in England and in the United States
except in the cases allowed in England, was the competency of a
court of common law to give a remedy in a given case in a trial by
jury. And as auxiliary to this ground it was urged that the clause
in the ninth section of the Judiciary Act of 1789, 1 Stat. 77,
"saving to suitors in all cases the right of a common law remedy,
where the common law is competent to give it," took away such cases
from the admiralty jurisdiction of the courts of the United
States.
The same positions have been taken again by Mr. Ames and Mr.
Whipple in the case of
New Jersey Steam Navigation Company v.
Merchants' Bank of Boston. Everything in support of them,
which could be drawn from the history of admiralty jurisdiction in
England or from what had been its practice in the United States and
from adjudged cases in both countries was urged by those gentlemen.
All must admit who heard them that nothing was omitted which could
be brought to bear upon the subject. We come, then, to the decision
of these points with every advantage which learned research and
ingenious and comprehensive deduction from it can give us.
It is the first time that the point has been distinctly
presented to this Court whether a case of collision in our rivers
where the tide ebbs and flows is within the admiralty jurisdiction
of the courts of the United States if the locality be, in the sense
in which it is used by the common law judges in England,
infra
corpus comitatus. It is this point that we are now about to
decide, and it is our wish that nothing which may be said in the
course of our remarks shall be extended to embrace any other case
of contested admiralty jurisdiction.
We do not think that either of the grounds taken can be
maintained. But before giving our reasons for this conclusion, it
will be well for us to state the cases in which the instance court
in England exercised jurisdiction when our Constitution was
adopted.
In cases to enforce judgments of foreign admiralty courts, when
the person or his goods are within the jurisdiction. Mariners'
wages, except when the contract was under seal or made out of the
customary way of such contracts. Bottomry, in certain cases only,
and under many restrictions. Salvage when the property shipwrecked
was not cast ashore. Cases between the several owners of ships when
they disputed among themselves about the policy or advantage of
sending her upon a particular voyage. In cases of goods and the
proceeds of goods piratically taken, which will be arrested by
a
Page 46 U. S. 453
warrant from the court, as belonging to the Crown and as droits
of the admiralty. And in cases of collision and injuries to
property or persons on the high seas.
It may as well be said by us at once that in cases of this last
class it has frequently been adjudicated in the English common law
courts, since the restraining statutes of Richard II and Henry IV
were passed, that "high seas" mean that portion of the sea which
washes the open coast, and that any branch of the sea within the
fauces terrae, where a man may reasonably discern from
shore to shore is or at least may be within the body of a county.
In fact, the general rule in England has been, since the time of
Lord Coke upon the interpretation given by the courts of common law
to the statutes 13 and 15 Richard II and 2 Henry IV, to prohibit
the admiralty from exercising jurisdiction in civil cases or causes
of action arising
infra corpus comitatus. So sternly has
the admiralty been excluded from what we believe to have been its
ancient jurisdiction in England that a prohibition within a few
years has been issued in a case of collision happening between the
Isle of Wight and the Hampshire coast, and a case of collision in
the River Humber, twenty miles from the main sea but within the
flux and reflux of the tide, has been held not to be within the
admiralty jurisdiction.
The Public Opinion, 2 Hagg.Adm.
398.
It has not, however, been the undisputed rule, nor allowed to be
the correct interpretation of the statutes of Richard. It has
always been contended by the advocates of the admiralty that ports,
creeks, and rivers are within its jurisdiction, and not within
those statutes, meaning that the ancient jurisdiction in such
localities was not excluded by the words of the statutes. Browne,
however, in his Civil and Admiralty Law, vol. 2, p. 92, thinks they
were within the words of the statutes, not meaning, though, to
affirm the declaration of Lord Coke that those statutes were
affirmative of the common law. We think they were not. However much
every true English and American lawyer may feel himself indebted to
the learning of that great lawyer and will ever be cautious of
disparaging it, it is difficult for anyone to read and reflect upon
the part which he took in the controversy upon admiralty
jurisdiction in England, without assenting to Mr. Justice Buller's
remarks, in
Smart v. Wolf, 3 T.R. 348:
"With respect to what is said relative to the admiralty
jurisdiction in 4th Inst. 135, I think that part of Lord Coke's
work has always been received with great caution and frequently
contradicted. He seems to have entertained not only a jealousy of
but an enmity against that jurisdiction. The passage in 4th Inst.
135 disallowing the right to take stipulations is expressly denied
in 2 Ld.Raym. 1826. And I may conclude with the words of Lord Holt
in that case, and in this case 'the admiralty had jurisdiction, and
there is neither statute nor common law to restrain them.' "
Page 46 U. S. 454
Having thus admitted to the fullest extent the locality in
England within which the courts of common law permitted the
admiralty to exercise jurisdiction in cases of collision, we return
to the ground taken that the same limitation is to be imposed in
like cases upon the admiralty courts of the United States.
We have already said it cannot be maintained. It is opposed by
general and also by constitutional considerations to which we have
not heard an answer.
In the first place, those who framed the Constitution, and the
lawyers in America in that day, were familiar with a different and
more extensive jurisdiction in most of the states when they were
colonies than was allowed in England from the interpretation which
was given by the common law courts to the restraining statutes of
Richard II and Henry IV. The commissions to the vice-admirals in
the colonies in North America, insular and continental, contained a
much larger jurisdiction than existed in England when they were
granted. That to the Governor of New Hampshire, investing him with
the power of an admiralty judge, declares the jurisdiction to
extend
"throughout all and every the seashores, public streams, ports,
fresh water rivers, creeks and arms, as well of the sea as of the
rivers and coasts whatsoever, of our said provinces."
In a work by Anthony Stokes, his Majesty's Chief Justice in
Georgia, entitled, "A View of the Constitution of the British
Colonies in North America and the West Indies," will be found, at
page 166, the form of the commission of vice-admiral for the
provinces in North America. He says, in page 150, the dates in the
commission are arbitrary, and the name of any particular province
is omitted. Its language is
"And we do hereby remit and grant unto you, the aforesaid A. B.,
our power and authority in and throughout our province of _____
aforementioned &c., and maritime ports whatsoever, of the same
and thereto adjacent, and also throughout all and every of the
seashores, public streams, ports, fresh water rivers, creeks and
arms, as well of the sea as of the rivers and coasts whatsoever, of
our said province of F."
The extracts from both commissions are the same. We have the
authority of Chief Justice Stokes that all given in the colonies
were alike. The jurisdiction given in those commissions is as large
as was exercised in the ancient practice in admiralty in England.
It should be observed, too, that they were given long before any
difficulties occurred between the mother country and ourselves, and
that they contained no power complained of by us afterwards, when
it was said an attempt was made to extend admiralty powers "beyond
these ancient limits." The King's authority to grant those
commissions in the colonies has never been and cannot be denied. In
all the appeals taken from the colonial courts to the High Court of
Admiralty in England, no such thing was ever intimated.
Was it not known also that whilst the states were colonies,
vice-admiralty
Page 46 U. S. 455
courts had been in all of them -- in some, as has just been
said, by commissions from the Crown, with additional powers
conferred upon them by acts of Parliament; in others by rights
reserved in their charters, and in other colonies by their own
legislation? -- that whether from either source, they exercised a
jurisdiction over all maritime contracts and over torts and
injuries, as well in ports as upon the high seas? -- that acts of
Parliament recognized their jurisdiction as original maritime
jurisdiction, in all seizures for contravention of the revenue
laws?
Was not a larger jurisdiction in admiralty exercised in
Massachusetts, throughout her whole colonial existence, than was
permitted to the admiralty in England by the prohibitions of her
common law courts? Were her members in the convention which formed
our Constitution ignorant of it?
Were the members from Pennsylvania and South Carolina forgetful
that the extent of the admiralty jurisdiction in the colonies had
been the subject of judicial inquiry in England, growing out of
proceeding in the admiralty courts of both of those states in
revenue cases? -- that it had been decided in 1754, in the case of
The Vrow Dorothea, 2 Rob. 246 -- which was an appeal from
the vice-admiralty judge in South Carolina to the High Court of
Admiralty and thence to the delegates -- that the jurisdiction in
admiralty in the colonies for a breach of the revenue laws was in
its nature maritime, and was not a jurisdiction specially conferred
by the statute of William III, ch. 22, § 6; a judgment which
subsequently received the assent of all the common law judges, in a
reference to them from the privy council? 2 Rob. 246. This too
after an eminent lawyer, Mr. West, assigned as counsel to the
commissioners of Trade and Plantations, had in 1720 expressed the
opinion that the statutes of 13 and 15 Richard II, ch. 3, and 2
Henry IV, ch. 11, and 27 Elizabeth, ch. 11, were not introductive
of new laws, but only declarative of the common law, and were
therefore of force in the plantations, and that none of the acts of
trade and navigation gave the admiralty judges in the West Indies
increase of jurisdiction beyond that exercised by the High Court of
Admiralty at home.
Shall it be presumed also that the members of the convention
were altogether disregardful of what had been the early legislation
of several of the states when they were colonies upon admiralty
jurisdiction and the rules for proceeding in such courts? -- of the
larger jurisdiction given by Virginia by her act of 1660, than was
at that time allowed to the admiralty in England? -- that it was
passed in the year that the ordinance of the republican government
in England expired by the restoration? That ordinance revived much
of the ancient jurisdiction in admiralty. It was judicially acted
upon in England for twelve years. When it expired there, the
enlightened influences connected with trade and foreign commerce,
"and
Page 46 U. S. 456
the uncertainty of jurisdiction in the trial of maritime
causes," which led to its enactment, no doubt had their weight in
inducing Virginia, then our leading colony in commerce, to adopt by
legislation many of its provisions. That ordinance and the act of
Virginia have, in our view, important bearings upon the point under
consideration. They were well known to those who represented
Virginia in the convention. In its proceedings they had an active
and intellectual agency, which makes it very unlikely that they
were unmindful of the admiralty jurisdiction in Virginia. In New
York also there was a court of admiralty, the proceedings of which
were according to the course of the civil law. Maryland too had her
admiralty, differing in jurisdiction from that of England.
Further, the proceedings of our Continental Congress in 1774
afford reasons for us to concluded that no such limitation was
meant. The admiralty jurisdiction, ancient and circumscribed as it
afterwards was in England and as it was exercised in the colonies,
was necessarily the subject of examination when the Congress was
preparing the declaration and resolves of the 14th October, 1774,
in which it is said
"that the several acts of 4 George III, ch. 15, 34; 5 Geo. III,
ch. 25; 6 Geo. III, ch. 52; 7 Geo. III, ch. 41; and 8 Geo. III, ch.
22, which impose duties for the purpose of raising a revenue in
America, extend the power of the admiralty courts beyond their
ancient limits."
Journal of Congress, 1774, 21. Again, when it was said (Journal
33), after reciting other grievances under the statute of 1767
"And amidst the just fears and jealousies thereby occasioned, a
statute was made in the next year (1768) to establish courts of
admiralty on a new model, expressly for the end of more effectually
recovering of the penalties and forfeitures inflicted by acts of
Parliament, framed for the purpose of raising revenue in
America."
And again, in the address to the King, Journal 47, it is
said
"By several acts of Parliament made in the fourth, fifth, sixth,
seventh, and eighth years of your Majesty's reign, duties are
imposed upon us for the purpose of raising a revenue, and the
powers of the admiralty and vice-admiralty courts are extended
beyond their ancient limits, whereby our property is taken from us
without our consent,"
&c. Why this repeated allusion to the ancient limits of
admiralty jurisdiction, by men fully acquainted with every part of
English jurisprudence if they had not believed it had existed in
England at one time much beyond what was at that time its exercise
in her admiralty courts?
With these proceedings of the Continental Congress every member
of the convention which framed the Constitution was familiar. They
knew also what had been the extent and the manner of the exercise
of admiralty jurisdiction in the states after the war began until
the Articles of Confederation had been ratified -- what it had been
thence to the adoption of the Constitution. Advised as they were by
personal experience of the difficulties which attended the
Page 46 U. S. 457
separate exercise by the states of admiralty powers before the
confederation was formed and afterwards from the restricted grant
of judicial power in its articles, can it be supposed, in framing
the Constitution, when they were endeavoring to apply a remedy for
those evils by getting the states to yield admiralty jurisdiction
altogether to the United States, it was intended to circumscribe
the larger jurisdiction existing in them to the limited cases, and
those only then allowed in England to be cases of admiralty and
maritime jurisdiction? -- that the latter was exclusively intended,
without any reference to the former, with which they were most
familiar? Can it be reasonable to infer that such were the
intentions of the framers of the Constitution? Is it not more
reasonable to say -- nay, may we not say it is certain -- that in
their discussions and thoughts upon the grant of admiralty
jurisdiction, they mingled with what they knew were cases of
admiralty jurisdiction in England what it actually was and had been
in the states they were representing, with an enlarged
comprehension of the controversy which had been carried on in
England for more than two hundred years, between the judges of the
common law courts and the admiralty, upon the subject of its
jurisdiction? Besides, nothing can be found in the debates of the
convention nor in its proceedings nor in the debates of the
conventions in the states upon the Constitution to sanction such an
idea. It is remarkable, too, that the words, "all cases of
admiralty and maritime jurisdiction," as they now are in the
Constitution, were in the first plan of government submitted to the
convention, and that in all subsequent proceedings and reports they
were never changed. There was but one opinion concerning the grant,
and that was the necessity to give a power to the United States to
relieve them from the difficulties which had arisen from the
exercise of admiralty jurisdiction by the states separately. That
would not have been accomplished if it had been intended to limit
the power to the few cases of which the English courts took
cognizance.
But besides what we have already said, there is in our opinion
an unanswerable constitutional objection to the limitation of "all
cases of admiralty and maritime jurisdiction," as it is expressed
in the Constitution, to the cases of admiralty and maritime
jurisdiction in England when our Constitution was adopted. To do so
would make the latter a part and parcel of the Constitution -- as
much so as if those cases were written upon its face. It would take
away from the courts of the United States the interpretation of
what were cases of admiralty and maritime jurisdiction. It would be
a denial to Congress of all legislation upon the subject. It would
make, for all time to come, without an amendment of the
Constitution, that unalterable by any legislation of ours which can
at any time be changed by the Parliament of England -- a limitation
which never could have been meant and cannot be inferred from the
words, which extend the jurisdiction of the courts of the United
States "to all
Page 46 U. S. 458
cases of admiralty and maritime jurisdiction." One extension of
the jurisdiction of the courts of the United States exists beyond
the limitation proposed, just as it existed in the colonies before
they became independent states, which never has been a case of
admiralty jurisdiction in England. We mean seizures under the laws
of impost, navigation, or trade of the United States, where the
seizures are made on waters navigable from the sea by vessels of
ten or more tons burden within the respective districts of the
courts as well as upon the high seas. And this, we have shown in a
previous part of this opinion, was decided in England as early as
1754, with the subsequent assent of the common law judges, not to
be a jurisdiction conferred upon the courts of admiralty in the
colonies by statutes, but was a case in the colonies of admiralty
jurisdiction, 2 Rob. 246. And so it is treated in the ninth section
of the Judiciary Act of 1789. We cannot help thinking that section
-- a declaration by Congress contemporary with the adoption of the
Constitution -- very decisive against the limitation contended for
by counsel in this case. Again, this Court decided as early as
1805,
6 U. S. 2 Cranch
405, in the case of
The Sally, that the forfeiture of a
vessel, under the act of Congress against the slave trade was a
case of admiralty and maritime jurisdiction, and not of common law.
And so it had done before, in the case of the
La
Vengeance, 3 Dall. 397. Again, Congress, by an act
passed 19 June, 1813, 3 Stat. 2, declared that a vessel employed in
a fishing voyage should be answerable for the fishermen's share of
the fish caught, upon a contract made on land, in the same form and
to the same effect as any other vessel is by law liable to be
proceeded against for the wages of seamen or mariners in the
merchant service. We shall cite no more, though we might do so, of
legislative and judicial interpretations to show that the admiralty
jurisdiction of the courts of the United States is not confined to
the cases of admiralty jurisdiction in England when the
Constitution was adopted.
No such interpretation has been permitted in respect to any
other power in the Constitution. In what aspect would it not be
presented, if applied to the clause immediately preceding the grant
of admiralty jurisdiction -- "to all cases affecting ambassadors,
other ministers, and consuls"? Is that grant, too, to be
interpreted by the jurisdiction which the English common law courts
exercise in cases affecting those functionaries, or to be regulated
by what Lord Coke says, in 4 Inst. 152, to be their liabilities to
punishment for offenses? Try the interpretation proposed by its
application to the grant to Congress "to establish uniform laws on
the subject of bankruptcies throughout the United States." Would it
not result in this -- that all the power which Congress had under
that grant was the bankrupt system of England as it existed there
when the Constitution was adopted? Such a limitation upon that
clause we deny. We think we may very safely say such
interpretations of
Page 46 U. S. 459
any grant in the Constitution, or limitations upon those grants,
according to any English legislation or judicial rule, cannot be
permitted. At most they furnish only analogies to aid us in our
constitutional expositions. We therefore conclude that the grant of
admiralty power to the courts of the United States was not intended
to be limited or to be interpreted by what were cases of admiralty
jurisdiction in England when the Constitution was adopted.
We will now consider the proposition that the test against
admiralty jurisdiction in England and the United States is the
competency of a court of common law to give a remedy in a given
case in a trial by jury, or that in all cases except in seamen's
wages, where the courts of common law have a concurrent
jurisdiction with the admiralty, and can try the cause and give
redress, that alone takes away the admiralty jurisdiction. It has
the authority of Lord Coke to sustain it. But it was the effort and
the design of Lord Coke to make locality the boundary in cases of
contract, as well as in tort -- that is, to limit the jurisdiction
in admiralty to contracts made on the sea and to be executed on the
sea, and to exclude its jurisdiction in all cases of marine
contracts made on the land, though they related exclusively to
marine services principally to be executed on the sea. To that
extent, the admiralty courts were prohibited by the common law
judges from exercising jurisdiction until the unreasonableness and
inconvenience of the restriction forced them to relax it in the
case of seamen's wages. Then it was that the common law courts
began to reflect upon what jurisdiction in admiralty rested and
upon the principles upon which it would attach. With the
acknowledgment of all of them ever since it was affirmed that the
subject matter, and not locality, determined the jurisdiction in
cases of contract. Passing over intermediate decisions showing the
manner and the reasons given for the relaxation in the one case,
and the revival of the other, for which the admiralty always
contended, we will cite the case of
Menetone v. Gibbons, 3
Durn. & East 269, 270. Lord Kenyon and Sir Francis Buller say
in that case the question whether the admiralty has or has not
jurisdiction depends upon the subject matter. We wish it to be
remarked, however, that the manner of proceeding is another affair,
with which we do not meddle now.
It was only upon the principle that the subject matter in cases
of contract determined the jurisdiction that this Court decided the
cases of
The Aurora, 1
Wheat. 96,
The General
Smith, 4 Wheat. 438, and
The St.
Jago de Cuba, 9 Wheat. 409.
If, then, in both classes of civil cases of which the instance
court has jurisdiction, subject matter in the one class and
locality in the other, ascertains it, neither a jury trial nor the
concurrent jurisdiction of the common law courts can be a test for
jurisdiction in either class. Crimes, as well those of which the
admiralty has jurisdiction as those of which it has not except in
cases of impeachment, the
Page 46 U. S. 460
Constitution declares shall be tried by a jury. But there is no
provision, as the Constitution originally was, from which it can be
inferred that civil causes in admiralty were to be tried by a jury,
contrary to what the framers of the Constitution knew was the mode
of trial of issues of fact in the admiralty. We confess, then, we
cannot see how they are to be embraced in the Seventh Amendment of
the Constitution, providing that in suits at common law, the trial
by jury should be preserved. Cases under twenty dollars are not so
provided for. Does not the specification of amount show the class
of suits meant in the amendment, if anything could show it more
conclusively than the term "suits at common law"?
Suits at common law are a distinct class, so recognized in the
Constitution, whether they be such as are concurrent with suits of
which there is jurisdiction in admiralty or not. Can concurrent
jurisdiction imply exclusion of jurisdiction from tribunals, in
cases admitted to have been cases in admiralty, without trial by
jury? Again, suits at common law indicate a class, to distinguish
them from suits in equity and admiralty; cases in admiralty another
class distinguishable from both, as well as to the system of laws
determining them as the manner of trial, except that in equity
issues of fact may be sent to the common law courts for a trial by
jury. Suppose, then, the Seventh Amendment of the Constitution had
not been made, suits at the common law and in admiralty would have
been tried in the accustomed way of each. But an amendment is made
inhibiting any law from being passed which shall take away the
right of trial by jury in suits at common law. Now by what rule of
interpretation or by what course of reasoning can such a provision
be converted into an inhibition upon the mode of trial of suits
which are not exclusively suits at common law, recognized, too, as
such by the Constitution, for the trial of which Congress can
establish courts which are not courts of common law, but courts of
admiralty, without or with a jury, in its discretion, to try all
issues of fact? Tried in either way, though, they are still cases
in admiralty, and this power in Congress, under the grant of
admiralty jurisdiction, to try issues of fact in it by jury, being
as well known when the Seventh Amendment was made as it is now, is
conclusive that it was done with reference to suits at common law
alone. There is no escape from this result unless it is to be
implied that the amendments were proposed by persons careless or
ignorant of the difference in the mode of trial of suits at common
law and in admiralty. But they were not so, for we find some of
them in Congress, a few months after, preparing and concurring in
the enactment of a law, that the "trials of issues in fact in the
district courts in all causes except civil causes of admiralty and
maritime jurisdiction, shall be by jury."
In respect to the clause in the ninth section of the Judiciary
Act -- "saving and reserving to suitors in all cases a common law
remedy where the common law is competent to give it" -- we
Page 46 U. S. 461
remark, its meaning is that in cases of concurrent jurisdiction
in admiralty and common law, the jurisdiction in the latter is not
taken away. The saving is for the benefit of suitors, plaintiff and
defendant, when the plaintiff in a case of concurrent jurisdiction
chooses to sue in the common law courts, so giving to himself and
the defendant all the advantages which such tribunals can give to
suitors in them. It certainly could not have been intended more for
the benefit of the defendant than for the plaintiff, which would be
the case if he could at his will force the plaintiff into a common
law court, and in that way release himself and his property from
all the responsibilities which a court of admiralty can impose upon
both, as a security and indemnity for injuries of which a libellant
may complain -- securities which a court of common law cannot
give.
Having disposed of the objections to the jurisdiction of the
courts of admiralty of the United States, growing out of the
supposed limitation of them to the cases allowed in England and
from the test of jury trial, we proceed to consider that objection
to jurisdiction in this case, because the collision took place
infra corpus comitatus. We have admitted the validity of
this objection in England, but on the other hand it cannot be
denied that the restriction there to cases of collision happening
super altum mare, or without the
fauces terrae,
was imposed by the statutes of Richard, contrary to what had been
in England the ancient exercise of admiralty jurisdiction in ports
and havens within the ebb and flow of the tide. We have seen no
case, ancient or modern, from which it can correctly be inferred
that such exercise of jurisdiction was prohibited by mere force of
the common law. The most that can be said in favor of the statutes
of Richard being affirmative of the common law are the assertions
of Lord Coke and the prohibitions of the common law courts,
subsequent to those statutes, and founded upon them, restricting
the jurisdiction of the courts of admiralty to cases of collisions
happening upon the high seas; contrary to what we have already said
was its ancient jurisdiction in ports and havens in cases of torts
and collision, and certainly in opposition to what was then, and
still continues to be, the admiralty jurisdiction, in cases of
collision, of every other country in Europe.
But giving to such prohibitions of the courts of common law the
utmost authority claimed for them -- that is that they are
affirmances of the common law as interpretations of the statutes of
Richard -- does it follow that they are to be taken as a rule in
the admiralty courts of the United States in cases of collision?
Must it not first be shown that the statutes of Richard were in
force as such in America, and that the colonies considered and
adopted that portion of the common law as applicable to their
situation? Now the statutes of Richard were never in force in any
of the colonies, except as they were adopted by the legislation of
some of them, and the common law only in its general principles, as
they were applicable,
Page 46 U. S. 462
with such portions of it as were adopted by common consent in
anyone of the colonies or by statute. This being so, the rule in
England for collision cases being neither obligatory here by the
statutes of Richard nor by the common law, we feel ourselves
permitted to look beyond them to ascertain what the locality is
which gives jurisdiction to the courts of the United States in
cases of collision or tort, or what makes the subject matter of any
service or undertaking a marine contract. Are we bound to say,
because it has been so said by the common law courts in England in
reference to the point under discussion, that sea always means
"high sea," or the "main sea?" -- that the waters flowing from it
into havens, ports, and rivers are not "parcel of the sea"? -- that
the fact of the political division of a country into counties makes
it otherwise, and takes away the jurisdiction in admiralty, in
respect to all the marine means of commerce and the injuries which
may be done to vessels in their passage from the sea to their ports
of destination, and in their outward-bound voyages until they are
upon the high sea? Is there not a surer foundation for a correct
ascertainment of the locality of marine jurisdiction in the general
admiralty law, than the designation of it by the common law courts
in England? Especially when the latter has in no instance been
applied by England as a limitation upon the general admiralty law
in any of her colonies, and when in all of them, until the act of 2
William IV, c. 51, was passed, the commissions gave to her
vice-admirals jurisdiction
"throughout all and every of the seashores, public streams,
ports, fresh water rivers, creeks and arms, as well of the sea as
of the rivers and coasts whatsoever."
Besides, the use of the word "sea" to fix admiralty
jurisdiction, and what part of it might be within the body of a
county, have not been settled points among the common law judges in
England. Lord Hale differed from Lord Coke. The former, in defining
what the "sea" is, says
"that it is either that which lies within the body of the county
or without; that arm or branch of the sea which lies within the
fauces terrae is, or at least may be, within the body of a
county; that part which lies not within the body of a county is
called the main sea."
It is difficult to reconcile the differences of opinion and of
definition given by the common law courts in Lord Coke's day, and
for fifty years afterwards, as to the meaning and legal application
of the word "sea," so as to make a practical rule to govern the
decisions of cases or to determine what were cases of admiralty
jurisdiction. But there is no difficulty in making such a rule, if
the construction of it by the admiralty courts is adopted. In that
construction, it meant not only high sea, but arms of the sea,
waters flowing from it into ports and havens, and as high upon
rivers as the tide ebbs and flows. We think in the controversy
between the courts of admiralty and common law upon the subject of
jurisdiction that the former have the best of the argument; that
they
Page 46 U. S. 463
maintain the jurisdiction for which they contend with more
learning, more directness of purpose, and without any of that
verbal subtlety which is found in the arguments of their
adversaries.
The conclusions of the admiralty, too, are more congenial with
our geographical condition. We may very reasonably infer they were
thought so on that account by the framers of the Constitution when
the judicial grant was expressed by them in the words -- "all cases
of admiralty and maritime jurisdiction." In those words it is given
by Congress to the courts, leaving to them the interpretation of
what were such cases; as well the subject matter which makes them
so, as the locality which gives admiralty jurisdiction in cases of
tort and collision. The grant, too, has been interpreted by this
Court in some cases of the first class, which leaves no doubt upon
our minds as to the locality which gives jurisdiction in the other.
We do not consider it an open question, but
res adjudicata
by this Court. In
Peyroux v. Howard &
Varion, 7 Pet. 342, the objection to the
jurisdiction was overruled upon the ground that the subject matter
of the service rendered was maritime, and performed within the ebb
and flow of the tide, at New Orleans. The Court said although the
current in the Mississippi at New Orleans may be so strong as not
to be turned backward by the tide, yet if the effect of the tide
upon the current is so great as to occasion a regular rise and fall
of the water, it may properly be said to be within the ebb and flow
of the tide. The material consideration is whether the service is
essentially a maritime service and to be performed on the sea
or on tidewater. In the case of
The
Steamboat Orleans v. Phoebus, 11 Pet. 175, the
jurisdiction of the court was denied on the ground that the boat
was not employed or intended to be employed in navigation and trade
on the sea
or on tidewaters. In
Steamboat
Jefferson, Johnson Claimant, 10 Wheat. 428, this
Court said
"In respect to contracts for the hire of seamen, the admiralty
never pretended to claim, nor could it rightfully exercise, any
jurisdiction, except in cases where the service was substantially
performed, or to be performed,
on the sea or upon waters within
the ebb and flow of the tide. This is the prescribed limit,
which it was not at liberty to transcend. We say the service was to
be substantially performed on the sea
or on tidewater
because there is no doubt that the jurisdiction exists, although
the commencement or termination of the voyage may happen to be at
some place beyond the reach of the tide. The material consideration
is whether the service is essentially a maritime service. In the
present case, the voyage, not only in its commencement and
termination, but in all its intermediate progress, was several
hundred miles above
the ebb and flow of the tide, and in
no just sense can the wages be considered as earned in a maritime
employment."
In
United States v.
Coombs, 12 Pet. 72, where the question certified to
the Court directly involved what was
Page 46 U. S. 464
the admiralty jurisdiction, under the grant of "all cases of
admiralty and maritime jurisdiction," the language of this Court
was
"The question which arises is what is the true nature and extent
of the admiralty jurisdiction? Does it, in cases where it is
dependent upon locality, reach beyond high water mark? Our opinion
is that in cases purely dependent upon the locality of the act
done, it is limited to the sea, and
to tidewaters, as far as
the tide flows, and that it does not reach beyond high water
mark. It is the doctrine which has been repeatedly asserted by this
Court, and we see no reason to depart from it."
Now though none of the foregoing cases are cases of collision
upon tidewaters, but of contracts, services rendered essentially
maritime, and in a case of wreck -- the point ruled in all of them,
as to the jurisdiction of the court in tidewater as far as the tide
flows, was directly presented for decision in each of them. The
locality of jurisdiction, then, having been ascertained, it must
comprehend cases of collision happening in it. Our conclusion is
that the admiralty jurisdiction of the courts of the United States
extends to tidewaters, as far as the tide flows, though that may be
infra corpus comitatus; that the case before us did happen
where the tide ebbed and flowed
infra corpus comitatus,
and that the court has jurisdiction to decree upon the claim of the
libellant for damages.
Before leaving this point, however, we desire to say that the
ninth section of the Judiciary Act countenances all the conclusions
which have been announced in this opinion. We look upon it as
legislative action contemporary with the first being of the
Constitution, expressive of the opinion of some of its framers,
that the grant of admiralty jurisdiction was to be interpreted by
the courts in accordance with the acknowledged principles of
general admiralty law. In that section, the distinction is made
between high seas and waters which are navigable from the sea by
vessels of ten or more tons burden. Admiralty jurisdiction is given
upon both, and though the latter is confined by the language to
cases of seizure, it is so with the understanding that such cases
were strictly of themselves within the admiralty jurisdiction. It
declares that issues of fact in civil causes of admiralty and
maritime jurisdiction shall not be tried by a jury, and makes so
clear an assignment to the courts of jurisdiction in criminal,
admiralty, and common law suits that the two last cannot be so
confounded as to place both of them under the Seventh Amendment of
the Constitution, which is
"In suits at common law where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise
reexamined in any court of the United States than according to the
rules of the common law."
As to the merits of this case, as they are disclosed by the
evidence, we think that the
Luda was run down whilst she
was in the accustomed channel of upward navigation by the
De
Soto, being
Page 46 U. S. 465
out of that for which she should have been steered to make the
port to which she was bound. It is a fault which makes the
defendants answerable for the losses sustained from the collision.
That loss will not be more than compensated by the decree of the
circuit court. We shall direct the decree to be affirmed.
There is a point in this case still untouched by us, which we
will now decide. The libellants claim a recovery, independently of
all the other evidence in the case, upon the single fact disclosed
by it, that the collision happened whilst the
De Soto was
navigating the river at night without such signal lights as are
required by the tenth section of the act of 7 July, 1838, 5 Stat.
304. It is entitled, "An act to provide for the better security of
the lives of passengers on board of vessels propelled in whole or
part by steam." The tenth section of it declares
"It shall be the duty of the master and owner of every
steamboat, running between sunset and sunrise to carry one or more
signal lights that may be seen by other boats navigating the same
waters, under the penalty of two hundred dollars."
This section, and the other provisions of the act, except as it
has been changed by the act of 1843, 5 Stat. 626, apply to all
steamers, whatever waters they may be navigated upon, within the
United States or upon the coast of the same, between any of its
ports. Signal lights at night are a proper precaution conducing to
the safety of persons and property. The neglect of it, or of any
other requirement of the statute, subjects the masters and owners
of steamboats to a penalty of two hundred dollars, which may be
recovered by suit or indictment (§ 11). But, besides the penalty,
if such neglect or disobedience of the law shall be proved to exist
when injury shall occur to persons or property, it would throw upon
the master and owner of a steamboat by whom the law has been
disregarded the burden of proof to show that the injury done was
not the consequence of it.
It is said in this case that the
De Soto had not signal
lights. Whether this be so or not we do not determine, but it is
certain from some cause or other that they were not seen by those
navigating the
Luda. If they had been, it is not
improbable that the collision would have been avoided. We do not
put our decision of this case, however, upon this ground, but we do
say, if a collision occurs between steamers at night, and one of
them has not signal lights, she will be held responsible for all
losses until it is proved that the collision was not the
consequence of it.
The Act of July 7, 1838, in all its provisions, is obligatory
upon the owners and masters of steamers navigating the waters of
the United States, whether navigating on waters within a state or
between states, or waters running from one state into another
state, or on the coast of the United States between the ports of
the same state or different states.
Page 46 U. S. 466
MR. JUSTICE CATRON.
The question here is how far the judicial powers of the district
courts extend in cases of admiralty and maritime jurisdiction as
conferred by the Constitution. With cases of prize, and cases
growing out of the revenue laws, we have no concern at present.
These depend on the general power conferred on the judiciary to try
all cases arising under the laws of the United States. It is only
with the extent of powers possessed by the district courts, acting
as instance courts of admiralty, we are dealing. The act of 1789
gives the entire constitutional power to determine "all civil
causes of admiralty and maritime jurisdiction," leaving the courts
to ascertain its limits, as cases may arise. And the precise case
here is whether jurisdiction exists to try a case of collision
taking place on the Mississippi River, on fresh water slightly
influenced by the pressure of tide from the ocean, but within the
body of the State of Louisiana, and between vessels propelled by
steam, and navigating that river only. It is an extreme case;
still, its decision either way must govern all others taking place
in the bays, harbors, inlets, and rivers of the United States where
the tide flows, as the rule is that locality gives jurisdiction in
cases of collision, and that it exists if the influence of the tide
is at all felt, 2 Bro. Civil & Adm. Law 110;
32 U. S. 7 Pet.
343. Where this collision occurred, the influence of the tide was
felt.
We have, then, presented, simply and broadly, the question
whether the district courts, when acting as instance courts of
admiralty, have power to try any case of collision occurring in the
body of a county of any state.
In Great Britain in 1776, when our separation from that country
took place, the common law courts issued writs of prohibition to
the Court of Admiralty restraining the exercise of this
jurisdiction in cases of collision taking place on rivers within
the flow of tide and within the body of an English county, but the
admiralty has continued at times to exercise the jurisdiction, nor
do I think the validity of such a decree could be called in
question, because of the want of power. In the British colonies on
this continent, and elsewhere, the jurisdiction to proceed
in
rem (in such a case) has been undisputed, so far as I can
ascertain, and a cause of collision in the instance court of
admiralty is peculiarly a suit
in rem, commencing with the
arrest of the ship. Abb.Ship. 233.
I agree with my dissenting brethren that the Constitution of the
United States is an instrument and plan of government founded in
the common law, and that to common law terms and principles we must
refer for a true understanding of it as a general rule having few
exceptions, and so also to the common law modes of proceeding in
the exercise of the judicial power we must refer as a general rule
covering the whole ground of remedial justice to be administered by
the national courts. To this there are two
Page 46 U. S. 467
exceptions -- first the trial of cases in equity, and secondly
of cases of admiralty and maritime jurisdiction. These may be tried
according to the forms of the English chancery court or the English
admiralty court, and without the intervention of a jury. In
chancery, the true limit of judicial power is prescribed by the
sixteenth section of the Judiciary Act of 1789. The equity powers
begin where the common law powers end in affording an adequate
remedy. So, in cases arising in bodies of counties (where the
common law prevails) that would be cognizable in the admiralty had
the cause of action arisen on the ocean, the English rule has been
equally stringent in maintaining the common law remedies where they
could afford plain and adequate relief. And I think the case before
us must be tested by the foregoing principles. The proceeding is
against the vessel, which the decree condemns; the case is the same
as on a bottomry bond enforced against the vessel or of a mortgage
enforced in chancery. In neither case have the common law courts
any power to afford relief by enforcing the lien on the thing;
still, the remedy at law, in case of the mortgage or the collision,
is open to the injured party to proceed against the person -- that
is, of the debtor in the one case, and against the trespasser in
the other. By the maritime law, the vessel doing the injury is
liable
in rem for the tort; this is the right, and the
remedy must be found somewhere. Chancery has no power to interfere,
nor have the common law courts any power to seize the vessel and
condemn her, and it seems to me to be a strange anomaly that where
no other court can afford the particular relief, in a case
confessedly within the admiralty jurisdiction if occurring on the
ocean, that the power did not exist because the trespass took place
in the body of a state and county.
I have thus briefly stated my reasons for sustaining admiralty
jurisdiction in this instance, because of the divided opinions of
the judges on the question and because I do not intend to be
committed to any views beyond those arising on the precise case
before the court. I therefore concur that the jurisdiction exists.
The facts in my judgment authorize the affirmance of the decree
below.
WOODBURY, J., dissenting.
It is important to notice in the outset some unusual features in
this case. The Supreme Court is called upon to try the facts as
well as the law in it, and to decide them between parties in
interest who belong to the same state, and as to a transaction
which happened not on the high seas, as is usual in torts under
admiralty jurisdiction, but two hundred miles above the mouth of
the Mississippi River, within the limits of a county and in the
heart of the State of Louisiana. A question of jurisdiction
therefore arises in this which is very important, and must first be
disposed of. It
Page 46 U. S. 468
involves the trial by jury as to trespasses of every kind
happening between the ocean and the head of tidewaters in all the
numerous rivers of the United States, as well as the rights of the
citizens near them, in such disputes with their neighbors, to be
tried by their own local tribunals and their own laws, rather than
be subject to the great inconvenience and expense of coming hither,
at such a distance and under a different code to vindicate their
just claims. These interesting considerations in the case, and my
differing in opinion on them from the majority of the court, will,
it is hoped, prove a sufficient apology for justifying that
difference in some detail.
A great principle at the foundation of our political system
applies strongly to the present case, and is that while supporting
all the powers clearly granted to the general government, we ought
to forbear interfering with what has been reserved to the states,
and in cases of doubt to follow where that principle leads unless
prevented by the overruling authority of high judicial decisions.
So, under the influence of kindred considerations, in case of
supposed improvements or increased convenience by changes of the
law, it is an imperative duty on us to let them be made by
representatives of the people and the states, through acts of
Congress, rather than by judicial legislation. Paine's C.C. 75.
Starting with these views, then, what is the character of the
adjudged cases on the facts here to which they are to be
applied?
Those to be found on the subject of torts through the collision
of vessels are mostly of English origin, coming from a nation which
is not only the source of much of our own jurisprudence, but
entitled by her vast commerce to great respect in all matters of
maritime usage and admiralty law. No principle appears to be better
settled there than that the court of admiralty has not jurisdiction
over torts, whether to person or property, unless committed on the
high seas, and out of the limits of a county. 3 Bl.Com. 106; 4
Inst. 134; Doug. 13; 2 East Crown Law 803; Bac.Abr.,
Courts of
Admiralty A; 5 Rob.Adm., 345; Fitzh.Abr. 192, 416; 2 Dods. 83;
4 Rob.Adm. 60, 73; 2 Bro.Civ. & Ad.Law, 110, 204; 2 Hagg.Adm.
398; 3 T.R. 315; 3 Hagg.Adm. 283, 369; 4 Inst. 136;
Chamberlain
v. Chandler, 3 Mason 244. This is not a doctrine which has
grown up there since the adoption of our Constitution, nor one
obsolete and lost in the mist of antiquity, but it is laid down in
two acts of Parliament as early as the fourteenth century, and has
been adhered to uniformly since, except where modified within a few
years by express statutes.
The Public Opinion, 2 Hagg.Adm.
398; 6 Dane Abr. 341.
The first of these acts, the thirteenth of Richard II, declared
that the admiralty must "not meddle henceforth of anything done
within the realm, but only of a thing done upon the sea." 3
Hagg.Adm. 282; 1 Stat. 419. Then, in two years after,
Page 46 U. S. 469
to remove any doubts as to what was meant by the realm and the
sea, came the fifteenth of Richard II, ordering, that of "things
done within the bodies of counties, by land or water, the admirals
shall have no cognizance, but they shall be tried by the law of the
land." 2 Pickering's statutes 841. This gave to the common law
courts there, and forbade to the admiralty, the trial of all
collisions between vessels when not on the high seas, and not out
of the body of a county, though on waters navigable and salt and
where strong tides ebbed and flowed. 2 Hagg.Adm. 398; Selden on
Dominion of the Sea, B. 2, ch. 14. And it did this originally, and
continued to do it, not only down to the eighteenth century, but to
our Revolution and long since, because it was necessary to secure
the highly prized trial by jury, rather than by a single judge, for
everything happening where a jury could be had from the vicinage of
the occurrence within a county, and because it secured a decision
on their rights by the highly prized common law, inherited from
their fathers, and with which they were familiar, rather than by
the civil law or any other foreign code, attempted to be forced
upon the commons and barons by Norman conquerors or their
partisans.
Among the cases in point as to this, both long before and since
our Revolution, one of them,
Velthasen v. Ormsley, 3 T.R.
315, happened in A.D., 1789, the very year the Constitution was
adopted.
See also Violet v. Blague, Cro.Jac., 514; 2
Hagg.Adm. 398; 4 Inst. 134-138; 6 Dane, Abr., 341, Prohibition. And
one of the most strenuous advocates for admiralty jurisdiction in
Great Britain admits that for damages done by the collision of
ships, "if done at sea, remedy can be had in the admiralty, but not
if it happen within the body of a county." 2 Bro.Civ. & Adm.Law
111.
Since then, on his complaint, an express statute has been
passed, 1 and 2 George IV., ch. 75, § 32, that any damage done by a
foreign ship, "in any harbor, port, river, or creek," may be
prosecuted either in admiralty or common law courts.
The
Christiana, 2 Hagg.Adm. 184; 38 British Stat. ch. 274. And
later still, a like change is considered by some to be made
concerning injuries by domestic ships under the 4 and 5 Victoria,
ch. 45.
See it in the Statutes at Large. But till these
statutes, not a case of this kind can probably be found sustained
in admiralty, even on the River Thames, at any place within the
body of a county, though yearly covered with a large portion of the
navigation of the world.
See cases before cited, and 1
Dods., 468; 1 W.Rob. 47, 131, 182, 316, 371, 391, 474; Curtis Adm.,
tit. Collision.
Nor is this a peculiarity in the admiralty system of that
country confined to torts alone. But the same rule prevails as to
crimes, and has always been adhered to, with a single exception,
originally made in the statute itself of Richard, as to murder and
mayhem committed in great vessels in the great rivers below the
first bridges.
Page 46 U. S. 470
Com.Dig., Admiralty E, 5, note; Hale's History of Common Law,
35; 3 Rob.Adm., 336; 4 Inst. 148; 1 Hawk.P.C., ch. 37, § 36;
Palmer's Practice in House of Lords 371, note.
The next inquiry is if this distinction, confining the
jurisdiction in admiralty over torts to such as happen on the high
seas without the limits of a county, rested on such important
principles as to be adopted in this country? Some seem disposed to
believe it of so little consequence as hardly to have been worth
attention. But this is a great mistake. The controversy was not in
England, and is not here, a mere struggle between salt and fresh
water -- sea and lake -- tide and ordinary current -- within a
county and without -- as a technical matter only.
But there are imbedded beneath the surface three great questions
of principle in connection with these topics which possess the
gravest constitutional character. And they can hardly be regarded
as of little consequence here, and assuredly not less than they
possessed abroad, where they involve (1) the abolition of the trial
by jury over large tracts of country, (2) the substitution there of
the civil law and its forms for the common law and statutes of the
states, (3) and the encroachment widely on the jurisdiction of the
tribunals of the state over disputes happening there between its
own citizens.
Without intending to enter with any minuteness into the origin
and history of admiralty jurisdiction abroad, it will be
sufficient, in order to illustrate the vital importance of this
question of locality, to say that the trial by jury and the common
law, so ardently adhered to by the Anglo-Saxons, was soon
encroached on after the Conquest by the Norman admirals claiming
jurisdiction over certain maritime matters, not only on the ocean,
and trying them without a jury, and on principles of their favorite
civil law, but on the waters within the body of a county, and where
a jury could easily be summoned, and where the principles of the
common law had ever in England been accustomed to prevail. A
struggle therefore, of course, soon sprung up in respect to this,
as their monarchs had begun to organize an admiral's court within a
century after the Conquest, but without any act of Parliament now
found to vindicate it.
See the Statutes at Large and 3
Reeves' Hist. of the English Law 197. And laying down some
regulations as to its powers by ordinances, as at Hastings, under
Edward the First, but not by any acts of Parliament consulting the
wishes of the barons and the commons. Whether this was
constitutional or not, it was sufficient to make them look on the
admiralty as a foreign and odious interloper. Reeves says, 3
Reeves' Hist. of English Law, 137, "The office of admiral is
considered by the French as a piece of state invented by them." And
whether it was imported thence by the conquerors, or originated
with the Rhodians, or Romans, or Saracens, rather than the French
or English, its principles seem to
Page 46 U. S. 471
have been transplanted to Western Europe from the Mediterranean,
the cradle of commerce for all but the Asiatic world, and it was
regarded by the commons and barons of England as an intruder into
that realm and without the sanction of Parliament.
In the course of a few years, that same sturdy spirit, which in
Magna Charta was unwilling to let the laws of England be changed
for a foreign code, proceeded, by the 13th and 15th of Richard II,
to denounce and forbid the encroachments of the admirals, and their
new forms and code of the civil law, into the bodies of counties
and the local business of the realm. It produced those two
memorable acts of Parliament, never since departed from in torts or
crimes except under express statutes, and fixing the limit of
jurisdiction for them at the line between the counties and the high
seas. And they have ever since retained it there, except as above
named, from the highest principles of safety to the common law,
English liberties, and the inestimable trial by jury -- principles
surely no less dear in a republic than a monarchy.
If the power of the admiral was permitted to act beyond that
line, it was manifestly without the apology which existed thus far
on the ocean, of there being no jury to be called from the vicinage
to try the case. Prynne's Animadversions 92, 93; Fitzh.Abr. 192,
216. And if the act, by an alias and a fiction, was alleged to be
done in the county when in fact it happened at a distance, on the
seas, the jury would be less useful, not in truth residing near the
place of the occurrence, not acquainted with the parties or
witnesses, and the case itself not being one happening where the
common law usually operated, and with which the people and the
judges were familiar.
This last circumstance furnished another reason why the
admiralty court was allowed there, and should be here, to continue
to exercise some jurisdiction beside their military and naval power
over the conduct of seamen and the business of navigation when
foreign. Because such matters were connected with the ocean, with
foreign intercourse, foreign laws, and foreign people, and it was
desirable to have the law as to them uniform and administered by
those possessing some practical acquaintance with such subjects,
they being, in short, matters extraterritorial, international, and
peculiar in some degree to the great highway of nations. It is when
thus confined to that great highway and its concerns that admiralty
law deserves the just tribute sometimes paid to it of expansive
wisdom and elevated equity.
* Then only there
is an excellence in such regulations as to navigation over those
for rights and duties on land, the last being often more for a
single people, and their limited territory, while the former are on
most matters more expanded, more liberal -- the gathered wisdom of
and for
Page 46 U. S. 472
all maritime ages and nations. They are also what has been
approved by all rather than a few, and for the territory of all in
common. And hence that beautiful tribute paid to them by Antoninus,
and just as beautiful, that he was "lord of the world, but Law the
lord of the sea." 2 Bro.Civ. & Adm.Law, 38.
The sea being common to all nations, its police and the rights
and duties on it should be governed mainly by one code, known to
all, and worthy to be respected and enforced by all. This, it will
be seen, indicates in letters of strong light the very line of
boundary which we have been attempting to draw, on grounds of deep
principle, here as well as in England. It is the line between state
territory and state laws on the one hand, and the ocean, the
territory of all nations, and the laws of all nations, the
admiralty and sea laws of all nations, on the other hand, leaving
with those, for instance, residing within local jurisdictions, and
doing business there, the local laws and local tribunals, but with
those whose home and business are on the ocean the forms and laws
and tribunals which are more familiar to them.
This line being thus a certain and fixed one, and resting on
sound principles, has in England withstood the shock of ages. It is
true, that some modifications have been recently made there, but
only by express statutes, and carefully guarded so as not to
innovate on the common law and the trial by jury. That this line of
distinction was in fact appreciated quite as highly here as in
England is shown by various circumstances that need not be
repeated; but among them were solemn resolutions of the old
Congress against acts concerning trade and revenue, extending the
power of admiralty courts beyond their ancient limits, and thus
taking away the trial by jury. 1 Journal 19, 20. And as a striking
evidence of the dangerous importance attached to this outrage, it
was remarked in the convention of North Carolina that "the Stamp
act and the taking away of the trial by jury were the principal
causes of resistance to Great Britain." 4 Elliot's Deb. 157.
Indeed, this same jealousy of the civil law and its mode of
proceeding without a jury led, in the first legislation by
Congress, to forbid going into chancery at all if relief at law is
as ample and appropriate.
See sixteenth section of
Judiciary Act, 1 Stat. 83. So as to admiralty, a statute of
Pennsylvania, passed during the Revolution, allowed it only in
cases "not cognizable at common law." 1 Dall. 106. And our fathers
never could have meant that parties, for matters happening within a
county or state, should be dragged into admiralty any more than
equity, if as full a remedy, and of as good a kind, existed in
courts of law, where they could enjoy their favorite code and mode
of trial. 1 Baldw. 405. This would leave much to admiralty still,
as well as to equity, and more especially in the former, by
proceedings
in rem. And when it became convenient to vest
additional power in the same court, or power over a wider range of
territory, as it
Page 46 U. S. 473
might in the progress of society and business, it could be done
here by express statute, as it has been in respect to the Lakes,
under the power to regulate commerce, and allowing a trial by jury
if desired.
In short, instead of less, much additional importance should be
attached to this line of distinction here, beyond what exists in
England, because it involves here not only all the important
consequences it does there, but some which are new and peculiar.
Instead of being, as it once was there, a contest between courts of
one and the same government, it may become here a struggle for
jurisdiction between courts of the states and courts of the United
States, always delicate, and frequently endangering the harmony of
our political system. And while the result there, in favor of the
admiralty, would cause no additional inconvenience and expense, as
all the courts sit in one city, such a result here compels the
parties to travel beyond their own counties or states, and in case
of appeal to come hither, a distance sometimes of a thousand or
fifteen hundred miles.
Admitting, then, as we must, that the doctrine I have laid down
as to torts was the established law in England at our Revolution,
and was not a mere technical doctrine, but rested on great
principles, dear to the subject and his rights and liberties,
should it not be considered as the guide here, except where
altered, if at all, by our colonial laws or Constitutions, or acts
of Congress, or analogies which are binding, or something in it
entirely unsuitable to our condition? The best authorities require
that it should be. 1 Pet.Adm. 116, 236, N.; 1 Pet.C.C. 104,
111-114; 1 Paine 111; 2 Gall. 398, 471; 3 Mason 27;
Bemis v.
Janus, 1 Baldw. 545;
25 U. S. 12
Wheat. 638; 1 Kent Com. 377; 4 Dall. 429 [omitted]; 4 Wash.C.C.
213. Yet this is contested in the present case.
Some argue that the Constitution, by extending the judicial
power to "all cases of admiralty and maritime jurisdiction," meant
cases different from those recognized in England as belonging to
the admiralty at the Revolution, or those as modified by ourselves
when colonies. These jurists stand prominent, and their views seem
today adopted by a portion of this Court.
See the argument
in
De Lovio v. Boit, 2 Gall. 398.
The authorities which I have cited against this position seem to
me overwhelming in number and strength, and some of them come from
those either engaged in making the Constitution or in construing it
in the earliest stages of its operation. Let me ask what books had
we for admiralty law, then, as well as common law -- both referred
to in the Constitution -- but almost exclusively English ones? What
had the profession here been educated to administer -- English or
French admiralty? Surely the former. The judges here were English,
the colonies English, and appeals, in all cases on the instance
side of the court, lay to the English admiralty at home.
Page 46 U. S. 474
What "cases of admiralty," then, were most likely to be in the
minds of those who incorporated those words into the Constitution?
-- cases in the English reports, or those in Spain, or Turkey? --
cases living and daily cited and practiced on both in England and
here, or those in foreign and dead languages, found in the assizes
of Jerusalem near the time of the Crusades?
It is inferred by some, from 6 Dane Abr., 352, 353, that cases
in admiralty are to be ascertained not by English law at the
Revolution, but by principles of "general law." And Judge
Washington held, it is said, we must go to the general maritime law
of the world, and not to England alone.
Dain v. Sloop
Severn, 4 Haz.Reg. 248, in 1828. But the whole tenor of Mr.
Dane's quotations and reasons in respect to admiralty jurisdiction
is to place it on the English basis, and Judge Washington in
several instances took it for his guide, and commended it as the
legal guide. In the
United States v. Gill, 4 Dall. 429
[omitted], he says:
"But still the question recurs, is this a case of admiralty and
maritime jurisdiction within the meaning of the Constitution? The
words of the Constitution must be taken to refer to the admiralty
and maritime jurisdiction of England, from whose code and practice
we derived our systems of jurisprudence, and, generally speaking,
obtain the best glossary."
See also 4 Wash.C.C. 456, 457.
Neither of these eminent jurists was ever likely to go to the
laws of Continental Europe as guides unless in cases not well
settled either here or in England, and then, as in the common law
courts and in chancery, they might properly search all enlightened
systems of jurisprudence for suggestions and principles to aid.
Chancellor Kent also, with his accustomed modesty yet with
clearness, supporting a like doctrine with that just quoted from
Judge Washington, observes
"But I apprehend it may fairly be doubted whether the
Constitution of the United States meant, by admiralty and maritime
jurisdiction, anything more than that jurisdiction which was
settled and in practice in this country under the English
jurisprudence when the Constitution was made."
1 Kent Com. 377. Another strong proof that this was the opinion
prevailing here at that time is that a court of admiralty was
established in Virginia in 1779, under the recommendation of
Congress to all the states to make prize courts, and by the act of
assembly it is expressly provided that they are to be
"governed in their proceedings and decisions by the regulations
of the Congress of the United States of America, by the acts of the
general assembly, by the laws of Oleron, and the Rhodian and
Imperial laws, so far as they have been heretofore observed in the
English courts of admiralty, and by the laws of nature and
nations."
10 Hening's Stat. 98. They thus, after our own laws, state and
national, made England the guide.
It is said by others, appealing to feelings of national pride,
that we are to look to our own Constitution and laws, and not to
England,
Page 46 U. S. 475
for a guide. So we do look to our own laws and Constitution
first, and when they are silent, go elsewhere. But what are our own
laws and Constitution, unless those in England before our
Revolution, except so far as altered here, either before, or then,
or since, and except such in England then as were not applicable to
our condition and form of government? This was the guide adopted by
this Court in its practice as early as August 8, 1791, 1 How. 24,
and as late as January, 1842, it treated the practice in England as
the rule in equity, where not otherwise directed; and in
Gaines v. Relf,
15 Pet. 9, it decided that when our own "rules do not apply, the
practice of the circuit and district courts must be regulated by
the practice of the court of chancery in England."
See also Vattier v.
Hinde, 7 Pet. 274. And most of its forms and rules
in admiralty have been adopted in our district and circuit courts.
See Rule XC, in 1 How. 66, Pref. And this Court has again
and again disposed of important admiralty questions, looking to
England alone, rather than the Continent, as a guide when they
differed.
Thus, the Continental law would carry admiralty jurisdiction
over all navigable streams. Yet this Court has deliberately refused
to do it in
The Thomas
Jefferson, 10 Wheat. 428. Had it not so refused in
repeated instances, there would have been no necessity for the
recent act of Congress as to the Lakes and their tributaries. So,
the civil law gives a lien for repairs of domestic ships, but this
Court has not felt justified in doing it without a statute, because
not done in England.
32 U. S. 7 Pet.
324. And in
Hobart v.
Drogan, 10 Pet. 122, this Court felt bound to
follow the English decisions as to salvage, though in some respects
harsh.
See also 44 U. S. 3 How.
568.
So when the Constitution and the acts of Congress speak, as they
do in several instances, of the "common law," do they not mean the
English common law? This Court so decided in
Robinson v.
Campbell, 3 Wheat. 223, adhering, it said, "to the
principles of common law and equity, as distinguished and defined
in that country, from which we derive our knowledge of those
principles." Why not, then, mean the English admiralty law when
they speak of "cases of admiralty and maritime jurisdiction"? They
of course must, by all analogous decisions and by established usage
as well as by the opinions of eminent jurists. The English
decisions furnish also the most natural, appropriate, uniform, and
well known principles, both for action and judicial decision.
It would be extraordinary, indeed, for this Court to undertake
to exercise a legislative power as to this point, and without
warrant to search the world over and select, for the trial of
private rights, any law they may prefer. On the contrary, its duty
rather is to declare the law which has already become ours, which
we inherited from our ancestors or have enacted ourselves, and
which is not vagrant
Page 46 U. S. 476
and uncertain, but to be found in our own judicial history and
institutions, our own Constitution, acts of Congress, and binding
precedents. Congress also might in many instances, perhaps, make
the law better than it is, and mould it so as to meet new
exigencies in society and suit different stages of business and
civilization, and, by new laws as to navigable waters, judicial
tribunals, and various other matters, is yearly doing this. But
does this Court possess that legislative power? And if Congress
chooses to give additional jurisdiction to the district court on
the Lakes or tidewaters or navigable streams between them, and
allow jury trials when desired, under its power to regulate
commerce and collect a revenue, will this not answer every valuable
purpose, and supply any new want or fancied improvement in a more
satisfactory and more constitutional manner than for courts to do
it without consulting Congress?
That Congress possess the power to do this cannot be plausibly
questioned. The late law as to jurisdiction over the Lakes, which
is given to the district court, but not as an admiralty case under
the Constitution, and with a jury when desired, is a strong
illustration of legislative opinion being the way we contend.
Any expansion or enlargement can be thus made, and by
withdrawing in part the jurisdiction now conferred on the district
courts in any matters in admiralty, Congress can also abridge the
exercise of it as experience and time may show to be wise. For this
reason, we are unable to see the force of the argument just offered
by four members of this Court that if the English admiralty law was
referred to in the expression of "all cases of admiralty and
maritime jurisdiction," no change in it could be made without being
at the trouble and expense of altering the Constitution.
But in further answer to this, let me ask if the Constitution,
as they contend, was meant to include cases in admiralty as on the
Continent of Europe rather than in England, could the law as to
them be more easily altered than if it was only the law of England?
And would it not take the interpretation of the admiralty law as
much from the courts in one case as in the other?
It is conceded, next, that legislation has in some respects, in
England, since 1789, changed and improved her admiralty
proceedings; but this only furnishes additional evidence that the
law was different when our Constitution was framed, and that these
changes, when useful and made at all, should be made by
legislation, and not by judicial construction, and they can
rightfully have no force here till so made.
United
States v. Paul, 6 Pet. 141. The difference, too,
between a change by Congress and by this Court alone is,
furthermore, that the former, when making it, can and doubtless
will allow a trial by jury, while we are unable to do this if we
make the change by construing the case to be one legitimately of
admiralty jurisdiction.
Finally, then, the law, as it existed in England at the time of
the
Page 46 U. S. 477
Revolution, as to admiralty jurisdiction over torts, is the only
certain and safe guide, unless it has been clearly changed in this
respect, either by the Constitution, or acts of Congress, or some
colonial authority. We have already seen that the Constitution has
not used words which are fairly open to the idea that any such
change was intended. Nor has it made any alteration in terms as to
torts. And no act of Congress has introduced any change in respect
to torts, having in this respect merely conferred on the district
courts cognizance of "all civil cases" in admiralty, without in a
single instance defining what shall be such cases in connection
with torts. The next inquiry, then, is whether the colonies changed
the law as to the locality of torts, and exercised jurisdiction
over them in admiralty, though committed within a county and not on
the high seas.
I am compelled to go into these details more than would
otherwise be done, considering their tediousness, on account of the
great reliance on them in one of the opinions just read. In order
to operate on the point under consideration, it will be seen that
any colonial change must have been so clear and universal as to
have been referred to in the Constitution and the Act of Congress
of 1789, and to be the meaning intended by their makers to be
embraced in the expression of "cases of admiralty and maritime
jurisdiction," rather than the meaning that had usually been
attached to them by the English language and the judicial tribunals
of England for centuries. And this change likewise must have been
clearly meant to be referred to and adopted notwithstanding its
great encroachment in torts on the boasted trial by jury, and which
encroachment they were denouncing as tyranny in other cases, and
notwithstanding its natural consequences would be new collisions
with the powers of the state tribunals, which they were most
anxious to avoid. I have searched in vain to find acts of assembly
in any of the thirteen colonies before 1776 making such a change,
much less in a majority or all of them. Nor can I find any such
judicial decisions by vice-admiralty courts in any of them, much
less in all. Nor is it pretended that any acts of Parliament or
judgments in the courts in England had prescribed a different rule
in torts for the colonies from what prevailed at home.
It would be difficult, then, to show that a law had become
changed in any free country, except by evidence contained in its
legislation or constitutions or judicial decisions. But some
persons, and among them a portion of this bench, have referred to
commissions of office to vice-admirals as evidence of a change
here, and some, it is feared, have been misled by them. 1 Kent Com.
367, n.; 2 Gall. 373.
These commissions, in the largest view, only indicated what
might be done, not what was actually afterwards done under them. In
the next place, all must see on reflection that a commission issued
by the King could not repeal or alter the established laws of the
land.
Page 46 U. S. 478
Beside the forms of some of these commissions, referred to in
De Lovio v. Boit, 2 Gall. 398, an entire copy of one of
them is in Stokes, and another in Duponceau on Jurisdiction 158,
and in Woodcock's Laws of the British Colonies 66. It will be seen
that they are much alike, and though there are expressions in them
broad enough to cover all "fresh waters" and "rivers," and even
"banks of any of the same," Woodcock 69, yet tidewaters are never
named as the limit of jurisdiction, and over and paramount to the
whole, the judge is required to keep and cause to be executed there
"the rights, statutes, laws, ordinances, and customs anciently
observed." Where anciently observed? In England, of course; and
thus, of course, were to comply with the English statutes and
decisions as to admiralty matters.
This limitation is inserted several times, from abundant
caution, in the commission in Woodcock 66, 67, 69.
But beside these conflicting features in different parts of
them, the commissions of vice-admirals here seem, in most respects,
copies of mere forms of ancient date in England, Woodcock's
Brit.Col. 123, and of course were never intended to be used in the
colonies as alterations of the laws, and were, as all know, void
and obsolete in England When differing from positive statutes. So
virtually it was held in the colonies themselves.
The Litte
Joe, Stew.Adm. 405, and
The Apollo, 1 Hagg.Adm. 312;
Woodcock's Laws and Const. of the Colonies 123. These commissions
also, if they prove anything here actually done different from the
laws in England except what was made different by express statute
as to matters connected with breaches of the laws of revenue and
trade, and not as to torts, prove quite too much, as they go above
tidewater and even on the land.
But it is not believed that they led to any practices under them
here different from the laws at home in respect to torts. None can
now be found stated either in reports of cases or contemporaneous
history. Probably in the colonies the same rules as at home
prevailed on this, for another reason, because no statute was
passed as to torts here, and appeals to the admiralty at home
existed, on the instance side of the court, till a recent change,
so as to preserve uniformity in the colonies and at home.
Bains
v. James, Baldw. 549; Woodcock 242. A case of one of those
appeals is reported in 2 Rob.Adm. 248, 249,
The Fabius.
There, the enlarged powers conferred on vice-admiralty courts by
the 6 and 7 of William III, as to seizures and prosecutions for
breaches of the laws of trade and revenue, are not, as I understand
the case, considered admiralty powers, and we all know they were
not so
per se or
proprio vigore. A looser
practice in the colonies, but no difference of principle, except
under statute, appears to have been tolerated. Woodcock's Laws
273.
In accordance with this, Tucker, in his Appendix to Part I
Page 46 U. S. 479
of 1 Bl.Com. 432, after a careful examination of charters and
other documents, comes to the conclusion that the laws at home
before emigration, both statute and common law, so far as
applicable to the condition of the colonies, and in favor of life,
liberty, and property of the subject,
"remained in full force therein until repealed, altered, or
amended by the legislative authority of the colonies respectively,
or by the constitutional acts of the same when they became
sovereign and independent states."
See also to this effect
Montgomery
v. Henry, 1 Dall. 49; 1 Chalmers' Op. 195; Woodcock
156. But what seems to settle this inquiry is the treatise of a
colonial judge, giving some data on this very subject, and of
course well informed on the subject. Stockes' View of Constitution
of British Colonies, p. 270, contains an account of the admiralty
jurisdiction in the colonies before the Revolution.
Two things are clearly to be inferred from him: 1st, that
admiralty and maritime cases extended only to matters "arising on
the high seas," and 2d, that the practice and rules of decision in
admiralty were the same here as in England.
Thus, in chapter 13, page 271, he says:
"In the first place, as to the jurisdiction exercised in the
court of vice-admiralty in the colonies in deciding all maritime
causes or causes arising on the high seas, I have only to observe
that it proceeds in the same manner that the High Court of
Admiralty in England does. . . . The only book that I have met with
which treats of the practice of the High Court of Admiralty in
England is Clarke's Praxis Admiralitatis, and this is the book used
by the practitioners in the colonies.*"
In connection with this, all the admiralty reports we have of
cases before the Revolution and of cases between 1776 and 1789 seem
to corroborate the same view, and are worth more to show the actual
jurisdiction here than hundreds of old commissions containing
obsolete powers never enforced. There is a manuscript volume of
Auchmuty's decisions made in the vice-admiralty court in
Massachusetts about 1740.
See Curtis' Merchant Seamen 348,
note. It will be difficult to find in them, even in one colony,
much more in the thirteen, clear evidence of any change here before
the Revolution in respect to the law concerning the locality of
torts.
The very first case of
Quitteville v. Woodbury, April
15, 1740, is a libel for a trespass. But it is carefully averred to
have taken place "at the Bay of Honduras, upon
the open
sea, on board the ship
King George."
Page 46 U. S. 480
No other case of tort is printed, and on a careful examination
of what has not been printed, no case is found varying the
principle. There is one for conversion of a vessel and cargo, July
30, 1742, tried before George Cradock, deputy judge in admiralty,
Farrington v. Dennis. But the conversion happened on the
high seas, or what in those days was often termed the "deep sea."
So a decision in the State of Delaware, in 1788, reported in the
Introduction to 4 Dall. 2 (last edit); the judge seems to concede
it to be law in that colony, that all cases except prize ones must
happen "on the high seas" in order to give the admiralty
jurisdiction over them.
So a few cases before the adoption of the Constitution are
reported in Bee's Admiralty Decisions, though they are mostly on
contracts. But they all make a merit of conforming to the course in
the English admiralty, rather than exhibiting departures from and
enlargements of its jurisdiction.
See one in A.D., 1781,
Bee's Adm. 425, and another in the same year (p. 419), and another
in 1785 (p. 369). But the most decisive of all is a case in A.D.,
1780, in the High court of Appeals in Pennsylvania,
Montgomery v.
Henry, 1 Dall. 49.
It was a proceeding in admiralty, regarded by some as sounding
in tort and by some in contract, but as to the line of
jurisdiction, this having happened, as averred, on the River
Delaware, the Court said, through Reed, their president,
"But it appears to us that from the 13th and 15th Richard II,
the admiralty has had jurisdiction on all waters out of the body of
the county. There has been great debate as to what is meant by
'high seas.' A road, haven, or even river not within the body of
the county is 'high sea' in the idea of civilians. Therefore, if
the River Delaware is out of the body of any county, we think it
clear that it is within the admiralty jurisdiction."
In short, as to this matter, the first principles of English
jurisprudence, as applicable to her colonies, show that there could
be no difference here on a matter of this kind unless authorized by
express statute at home, extending to the colonies, or by acts of
assembly here, expressly sanctioned at home.
Blackstone says:
"For it hath been held that if an uninhabited country be
discovered and planted by English subjects, all the English laws
then in being, which are the birthright of every subject, are
immediately there in force."
1 Bl.Com. 108; 2 P.Wms. 75. Exceptions of course exist as to
matters not applicable to their condition, but none of them reach
this case and require consideration.
Were not we then British colonies, and beginning here in an
uninhabited country, or, what is equivalent, tenanted by a people
not having any civilized laws? Why then were not the principles of
English admiralty law in force here in the vice-admiralty courts,
as
Page 46 U. S. 481
much as the English common law in other courts -- and which has
been declared by this tribunal to have been the basis of the
jurisprudence of all the states in 1789?
28 U. S. 3 Pet.
444. Indeed, any laws in the plantations contrary to or repugnant
to English laws were held to be void if not allowed by Parliament
at home. 3 Bl.Com. 109, App., 380, by Tucker.
What is left, then, for the idea to rest on of a change in
respect to the locality of torts here, to give admiralty courts
jurisdiction over them different from what existed in England in
1776? We have already seen that there is nothing in the
Constitution, nothing in any acts of Congress, nothing in any
colonial laws or colonial decisions in the vice-admiralty courts.
Some venture to infer it merely from analogies. But denying the
competency for courts of limited jurisdiction, like ours, to do
this, if impairing jury trials and encroaching on state
jurisdictions, without any express grant or authority to that
effect, let me ask, what are the analogies? The only ones which can
be imagined are cases of crimes, contracts, and seizures for
breaches of laws of revenue and trade. But the decisions as to
crimes prove directly the reverse.
In respect to them, no change whatever on this point has
occurred, and the rule recognized in this country as the true one
concerning their locality is, like that in England, if tried in
admiralty as being crimes by admiralty law, they must have been
committed without the limits of a county or state. 4 Mason 308; 5
id. 290;
1 U. S. 1 Dall. 49;
16 U. S. 3 Wheat.
336, 371 [argument of counsel -- omitted];
18
U. S. 5 Wheat. 76,
18 U. S. 379;
25 U. S. 12
Wheat. 623; 4 Wash.C.C. 375; Baldw. 35.
And all crimes on the waters of the United States made
punishable in the courts of the United States by acts of Congress,
with few or no exceptions, if connected solely with admiralty
jurisdiction, are scrupulously required to have been committed on
the sea or the high seas "out of the jurisdiction of any particular
state."
In all criminal cases in admiralty in England, the trial has
also been by jury, by an express act of Parliament, ever since the
32 Henry VIII (Com.Dig., Admiralty), and so far from the same
principle not being considered in force here, the Constitution
itself, before any amendments, expressly provided for all criminal
trials of every kind being by a jury. Art. 3, § 2, and Federalist,
No. 81.
So the old Confederation (Article 9th) authorized Congress to
provide courts for the trial "of piracies and felonies committed on
the high seas." 1 Laws (Bioren's edit.) 16. And when Congress did
so, they thought it expedient to adopt the same mode of trial for
acts "on the sea" as on the land, and "according to the course of
the common law," and under a sort of mixed commission, as under the
28 Henry VIII, to try these offenses, consisting of the justices of
the supreme court in each state, united with the admiralty judge,
they imperatively required the use of a jury. 7 Journ. of Old Cong.
65; Duponceau on Juris. 94, 95, note.
Page 46 U. S. 482
Finding, then, that any analogy from crimes directly opposes,
rather than favors, any change as to torts, let us proceed to the
case of contracts. It will be necessary, before they can be allowed
any effect, for their friends to show that the locality of
contracts has been changed here, and then that such change should
operate on torts. Contracts, in one aspect of the subject, did not
differ as to their locality from torts and crimes before Richard II
any more than after.
But as the question in relation to the locality of contracts
here is still undecided, and is before this Court awaiting another
argument, on account of divisions of opinion among its members in
respect to it, no analogy can be drawn to govern other questions
from what is itself thus uncertain, and it is not deemed decorous
by me to discuss here the moot question as to contracts, or, till
the other action pending in relation to them is itself settled, to
draw any inference from what I may suppose to be, or not to be,
their locality.
Without, then, going farther into the subtleties as to the
locality or want of locality of contracts within admiralty
jurisdiction, so fully discussed in 2 Gall. 475 by Judge Story, on
the one hand, and in
25 U. S. 12
Wheat. 622, by Justice Johnson, on the other, as well as in the
case of
The Lexington, at this term, it is enough to say
that is not the question now under consideration. It is, at the
nearest, but collateral and differently situated. For in trespass,
it was always a test not only that it happened on the sea, instead
of merely tidewater, but out of the body of a county.
And above all this, those very writers who contend that locality
does not govern the jurisdiction over contracts admit that it
controls, and always has controlled, the right to try both torts
and crimes (with the exceptions before named, and not influencing
this question) during all the fluctuations and struggles about
contracts during the last four hundred years.
In the resolutions said to have been prepared by the judges in
1632, with a view to arrange differences concerning jurisdiction,
no change or modification is made as to torts. Dun.Adm.Pr. 13,
14.
Nor was there any in the mutual arrangement between the
different courts in 1575. Pyrnne's Animadversions 98, 99. And in
Crowell's Ordinance of 1648, on the jurisdiction of the admiralty,
so much relied on by those friendly to the extension of it, and by
some supposed to have been copied and followed in this country,
damages by one ship to another were included, but it was meant
damages on the sea, being described as "damages happening thereon,
or arising at sea in any way." Dun.Adm.Pr. 16.
Hence, even in admiralty writers and admiralty courts, it is
laid down repeatedly, "in torts, locality ascertains the judicial
powers." And again, "in all matters of tort, locality is the strict
limit." 2 Bro.Civ. & Adm.Law 110. So in
The Eleanor, 6
Rob.Adm. 40,
Page 46 U. S. 483
Lord Stowell said, "the locality is everything," instead of
holding it to be an obsolete or immaterial form.
Lastly, in respect to analogies in seizures for breaches of the
laws of revenue and trade, it is claimed that some change has
occurred there which should influence the jurisdiction over torts.
But these seizures are not for torts, nor has the change in
relation to the trial of them happened on any principle applicable
to torts. Moreover it has been made as to seizures only under
express statutes, and the construction put on those statutes, and
if this is to be followed by analogy, no change can be made as to
torts except by express statutes.
But there has never been any such statute as to them, and if
without it the change was made by analogy, tidewaters would not be
the test, as is here contended, but, like cases of seizures, and
waters navigable by a boat of ten tons burden. It is even a matter
of very grave doubt whether a mistake was not committed in refusing
a trial by jury in cases of seizure, under our Judiciary Act,
whenever desired, or at least whenever not made on the high seas.
Kent, Dane, and several others think the early decisions made on
this, and which have since been merely copied, were probably
erroneous. 1 Kent Com. 376; 6 Dane, 357.
So thought Congress likewise when, Feb. 13, 1801 (sec. 11), it
conferred on the circuit court jurisdiction over "all seizures on
land or water, and all penalties and forfeitures made, arising, or
accruing under the laws of the United States." This was original
cognizance, though not in a court of admiralty, and properly
treated seizures on water as on land, and to be all of course tried
by a jury. 2 Stat. 92. This was a change made by Congress itself,
aided by some of the first lawyers in the country. But as the whole
statute was repealed on account of the obnoxious circumstances as
to the judges under which it was passed, all the changes fell with
it.
The admiralty in England did not exercise any jurisdiction over
seizures for revenue, though on the ocean.
21 U. S. 8
Wheat. 396, note. But it was in the Court of Exchequer, and was
devolved on admiralty courts in the colonies for convenience, as no
Court of Exchequer existed there. Duponceau's Jurisdiction 139 and
note. This additional jurisdiction, however, was not an admiralty
one, and ought to have been used with a jury, if desired, as in the
Exchequer. Powers not admiralty are for convenience still devolved
on admiralty courts, and it was a great grievance, complained of by
our ancestors here, that such a trial was not allowed in such cases
before the Revolution. Undoubtedly it was the expectation of most
of those who voted for the act of 1789 that the trial by jury would
not be here withheld in cases of seizures for breach of laws of the
revenue, which they had always insisted on as their constitutional
right as Englishmen, and,
a fortiori, as Americans.
Page 46 U. S. 484
They had remonstrated early and late, and complained of this
abridgment of the trial by jury even in the Declaration of
Independence, and as one prominent cause and justification of the
Revolution. 1 Journal of Old Congress 45; 6 Dane Abr., 357; Baldw.
551. As plenary evidence of this, it is necessary to quote here but
a single document, as that was drawn up by John Jay, afterwards the
Chief Justice of this Court. It is the address by the old Congress,
October 21, 1774, to the people of Great Britain, and among other
grievances says
"It was ordained that whenever offenses should be committed in
the colonies against particular acts imposing duties and
restrictions upon trade, the prosecutor might bring his action for
the penalties in the courts of admiralty, by which means the
subject lost the advantage of being tried by an honest,
uninfluenced jury of the vicinage and was subjected to the sad
necessity of being judged by a single man -- a creature of the
Crown -- and according to the course of a law (civil) which exempts
the prosecutor from the trouble of proving his accusation and
obliges the defendants either to evince his innocence or to
suffer."
Now after these reprobations of such a practice -- after two
specific amendments to the Constitution to secure the trial by jury
in cases before doubtful -- and after three clauses in the
Judiciary Act expressly allowing it in all proper cases -- who can
believe that they intended in the ninth section of that very act to
use language which ought to be construed so as to deprive them
entirely of a jury trial in that very class of cases where the
refusal of it had long been denounced by them as oppressive,
unlawful, and one of the grounds for a revolution? Should we thus
brand them with duplicity or tyranny?
As a single illustration that their views in the act of 1789
have probably been misconstrued or misapprehended if seizures for
breaches of the laws of revenue and trade were in reality "cases of
admiralty and maritime jurisdiction," as meant in the Constitution,
then no statute was necessary, like a clause in that of 1789, to
make them so, and to make them so not at the line of tidewater,
which is here contended for, but wherever a boat of twenty tons
could go from the ocean. And if they were not such cases to that
extent and in that manner without a statute, but were common law
and exchequer cases, then it is certain a statute would not make
them "admiralty cases," but might devolve their trial on the
district court, allowing a jury, as that trial was expressly
reserved by the amendment to the Constitution in all common law
cases. Stokes discloses the derogatory reason assigned for such a
violation of our forefathers' rights by some of the British
statutes before the Revolution (Stokes on Constitution of Colonies
360). With much naivete, he says:
"In prosecutions in the courts of vice-admiralty in the colonies
for the breach of any act of Parliament relating to the trade and
revenue of the colonies, all questions as well of fact
Page 46 U. S. 485
as of law are decided by a judge alone, without the intervention
of a jury, for such was the inclination of the colonists in many
provinces to carry on a contraband trade that to try the fact of an
information by a jury would be almost equivalent to the repealing
of the act of Parliament on which such information was grounded. In
other respects, I apprehend the proceedings should be conducted as
near as may be to the practice of the court of Exchequer in
England."
And the reason said to have been assigned by Judge Chase for the
construction first put on the Judiciary Act -- that seizures for
violation of the laws of revenue and trade were meant by Congress
to be treated as cases in admiralty, and tried without a jury,
though they never had been so tried in England till the encroaching
statutes, and never here except as our fathers declared to be
illegally -- is almost as harsh, and more derogatory on our fathers
themselves, as being an act done by themselves, in saying it was to
avoid "the great danger to the revenue if such cases should be left
to the caprice of juries."
United States v. Betsey, 4
Cranch 446, n. [argument -- omitted].
Whoever could conjecture, for such a reason, that a statute was
intended to have such a construction seems to have forgotten the
remonstrances of our fathers against the odious measures of England
corresponding with such a construction, and to have overlooked the
probable difference in the feelings of juries towards laws made by
themselves or their own representatives, and those made by a
Parliament in which they were not represented, and whose doings
seemed often designed to oppress, rather than protect, them. And
what presumption is there that an exclusion of juries from trials
as to trade and revenue, for causes like these, was meant to be
extended to torts?
The reason is totally inapplicable, and hence the presumption
entirely fails. What a stretch or presumption without sufficient
data is it to infer that this resisted case of seizures is first
strong evidence of a larger jurisdiction in admiralty established
here, and likely to be adopted under the Constitution by those who
had always ardently opposed it, and next is evidence of a larger
jurisdiction in other matters, disconnected entirely with that and
all the reasons ever urged in support of it?
The last inquiry on this question of jurisdiction is what have
been the decisions concerning the locality of torts in admiralty in
the courts of the United States since the Constitution was
adopted?
It is the uncertainty and conflict concerning these which has in
part rendered it necessary to explore with so much care how the law
was here when our present system of government went into
operation.
It is a matter of surprise, on a critical examination of the
books, to see upon how slight foundations this claimed departure
from the
Page 46 U. S. 486
established law in force in England as to torts rests, when
looking to precedents in this country. I do not hesitate to concede
to the advocates of a change that the doctrine has been laid down
in two or three respectable compilers. Curtis on Merchant Seamen
362; Dun.Ad.Pr. 51. But others oppose it; and we search in vain for
reasons assigned anywhere in its favor. The authorities cited from
the books of reports in favor of a change here are not believed, in
a single instance, to be in point, while several appear to maintain
a contrary doctrine.
They are sometimes mere
dicta, as the leading case of
De Lovio v. Boit, in 2 Gall. 467, 424, that having been a
case of a contract and not a tort, or as in 1 Mason 96, that having
occurred on the high seas. So
Thomas v. Lane, 2 Sumn. 1;
Ware 75, 96; 4 Mason 380. Or they are cases cited, such as
Montgomery v.
Henry, 1 Dall. 49, which relate to contracts alone.
See also case by Judge Conkling in New York Leg.Ob., Oct.,
1846;
The Mary, 1 Paine 673. Or they happened, as was
averred in
1 U. S. 1 Dall. 53,
on waters out of any county. Or they are cases of seizure for
breaches of the laws of trade and navigation and revenue, depending
on express statute alone.
The Vengeance,
3 Dall. 297;
Wheelan v. United
States, 7 Cranch 112; Conkling's Pr., 350; 1 Paine
504; Gilp. 235; 1 Wheat. 920;
21 U. S. 8 Wheat.
391. And are, as before explained, probably misconstrued.
The parent of many of these mistaken references, and of the
decisions as to seizures, is the case of
The
Vengeance, in 3 Dall. 297, a case which Chancellor
Kent in his Commentaries justly says "was not sufficiently
considered" (vol. 1, 376). It was not a case of tort, as some seem
to suppose, nor even a seizure under the act of 1789 for a breach
of the laws as to revenue and trade. But it was an information for
exporting arms, prohibited by a special act passed 22 May,
1793.
Some of the references likewise are to cases of prize, which in
England as well as here never depended on locality, like the high
seas, but might be even on land, and were at first conferred on the
admiralty courts by special commission, and were not originally a
part of its permanent jurisdiction.
23 U. S. 10
Wheat. 315;
18 U. S. 5
Wheat. 120, App.;
4 U. S. 4 Dall. 2;
Doug. 613 n; 1 Kent Com. 357. Where any of the references in the
books here are to printed cases of tort, they uniformly appear to
have been committed on the high seas or without the body of a
county and state.
Burke v. Trevitt, 1 Mason 96, 99, 360;
Manro v.
Almeida, 10 Wheat. 473,
23 U. S.
486-487;
The Josefa
Segunda, 10 Wheat. 315;
Thomas v. Lane, 2
Sumn. 1;
The
Appollon, 9 Wheat. 368;
Plummer v. Webb, 4
Mason 380 and Ware 75;
Steele v. Thatcher, id., 96. If the
act happened in foreign countries, in tidewaters, there may well be
jurisdiction, as being not within the body of any county here.
Page 46 U. S. 487
Thomas v. Lane, 2 Sumn. 9. Such was the case of
The
Appollon, 9 Wheat. 368, not being a case within
tidewaters and a county in this country.
There is an expression in
37 U. S. 12 Pet.
76, which is supposed by some to sanction a change. But it is only
a
dictum, that having been a case of crime, and the idea
and the expression are not that torts or crimes could be tried in
admiralty when committed within a county on tidewater therein, but
that in no case, if committed on land or above tidewater, could
they be tried there as admiralty offenses, but only as offenses
defined and punished by acts of Congress under the power to
regulate commerce.
United States v.
Coombs, 12 Pet. 76. This may be very true, and yet
in torts, as well as crimes, they may not be punishable without a
statute, and as mere admiralty cases, unless committed on the
ocean.
During this session, I have for the first time seen a case
decided in one of our circuits which holds that the tidewaters of
the Savannah River are within the jurisdiction of the admiralty as
to collisions between boats.
Bullock v. Steamboat Lamar, 1
West.L.J. 444. But as the learned judge seems to have taken it for
granted that the question of jurisdiction had been settled by
previous decisions, he does not go into an examination of its
principles, and cites only one authority,
32 U. S. 7 Pet.
324, which will be found to be a case of contract and not tort. So
that, with this single exception, so far as it be one, not a single
reported case is found, and only one manuscript case referred to
(Dunl.Adm. 51), where a tort was committed within one of our
counties, though on tidewater, which was adjudged to be within
admiralty jurisdiction, since the country was first settled, or of
a like character in England, unless by recent statutes, for the
last four centuries.
On the contrary, in Bee's Admiralty Reports and Peters', in
Gilpin's and Ware's, cases for torts are found, but all arising on
the high seas, unless some doubt exists as to one in the last,
partly overruled afterwards in the circuit court. So whatever may
be the
obiter dicta, it is the same as to all in Paine
Washington, Baldwin and even Gallison, Mason, Sumner, and Story.
Indeed, this result accords with what was rightfully to be
anticipated from the rule laid down in the first elementary law
book in the hands of the profession at the time of the Revolution,
that "admiralty courts" (3 Bl.Com. 106) had cognizance of what is
"committed on the high seas, out of the reach of our ordinary
courts of justice." And "all admiralty causes must be, therefore,
causes arising wholly upon the sea, and not within the precincts of
any county." 3 Bl.Com. 106.
Moreover, as to American authorities directly against these
supposed changes as to torts, it is hardly possible to find
anything stronger than the absence we have just referred to, almost
entire, of any attempt in actions to sustain the jurisdiction in
admiralty
Page 46 U. S. 488
over torts, unless happening on the high seas, and the uniform
settled decisions in England, that it exists only there. But beside
this, there is the absence likewise of any colonial statutes or
colonial decisions to bring in question at all the adjudged cases
at home, which governed this question here no less than there.
There is next the remark by Chancellor Kent that if tides ebb and
flow in a county, a recovery cannot be had for a tort there, on the
principles of the common law courts. 1 Kent Com. 365, n.; 3
Hagg.Adm. 369.
And no one can read the learned Digest of Dane without seeing
that in torts he considers the trial by jury proper, wherever they
occur within the body of any county. 6 Dane Abr., Prohibition. And
it is laid down generally, in several other instances in this
country, that the locality of torts must be on "the sea," in order
to confer jurisdiction on the admiralty. Thackery, Gilp., 524, 529;
3 Mason 243; Baldw. 550-554. So in
Adams v. Haffards, 20
Pick. 130.
See also the colonial case before cited from
1 U. S. 1 Dall. 53,
Montgomery v. Henry, directly in point, that the line of
the county was the test, and not tidewater, unless without the
county. This was in 1780, and is most conclusive proof that no
colonial enlargement of mere admiralty jurisdiction as to this
matter had occurred here in practice, either under the words of
commissions to vice-admiralty judges, or any difference of
circumstances and condition.
But beside this, one resolve of the old Congress shows, that
they considered the line of the county as the true one, and hence
its violation in cases of trade and revenue, under statutes passed
to oppress them, caused their remonstrances that the vice-admiralty
courts had transgressed the ancient limits of the bodies of
counties. 1 Journal of Old Cong. 21-23. How unlikely, then, is the
inference from this that the framers of the Constitution regarded
this encroachment as the true line, and, when protesting against
it, not only meant to adopt it, but extend it to cases of
torts?
It is not a little remarkable, too, that in maturer life Judge
Story himself, in speaking of the jurisdiction over torts (3 Com.
on Constit. 1659), says
"The jurisdiction claimed by the courts of admiralty as properly
belonging to them extends to all acts and torts done upon the high
seas, and within the ebb and flow of the sea."
That means, at common law, outside of a county.
Thus says Coke in 4 Inst. 134: "So as it is not material whether
the place be upon the waters
infra fluxum et refluxum
aquae; but whether it be upon any water within any county."
Sea Laws 234. Again, the ebb and flow of tide, to give jurisdiction
to the admiral, means on the coast outside. Fortescue, De Laudibus
L.Ang. 68, note. So in 2 Madison Papers 799, 800, it will be seen
that Judge Wilson deemed the admiralty jurisdiction to relate to
what the states had not exercised power over, and to the sea. So in
The Federalist, No. 80, cases arising on the high seas are said to
be those embraced.
Page 46 U. S. 489
Indeed, the departure from the settled line of jurisdiction as
to torts here, so far as it may have gone in theory or speculation,
seems likely to have begun in mistake, rather than in any old
commission or adjudication, founded on any statute or any well
settled principle. It is likely to have commenced either by
omitting to discriminate between torts and contracts, or between
torts depending on general principles and seizures for violating
laws of revenue and trade, which depended on the words of a special
statute, and the construction given to those words, or from a
supposed but unfounded analogy to the rules as to prizes, with
which our fathers were very familiar in the Revolution, and taking
cognizance of them in admiralty here, as in England, if captured
anywhere, not only on tidewater or "below high water mark," but
even on land.
4 U. S. 4 Dall. 2; 2
Bro.Civ. & Adm.Law, 112; 5 Wheat.App. 120. Or it may have
occurred, and that probably was oftenest the case, from various
general expressions in the English books and cases as to the
admiralty jurisdiction being coextensive with tidewaters, when that
expression means, in all the adjudged cases in England as to torts
and crimes -- and must, on principle, as before shown, mean, in
order to secure the trial by jury and the common law -- the
tidewaters on the seacoast, the flux and reflux of the tide out of
the body of a county.
There is a similar expression in Judge Story's Commentaries on
the Constitution (vol. 3, § 1667) as to crimes, in speaking of the
existence of admiralty jurisdiction over them in creeks "and bays
within the ebb and flow of tide," but he takes care to add, very
properly, "at least in such as are out of the body of any county in
a state." Probably the true origin of the whole error was by
looking to expressions about tidewater or the ebb and flow of tide,
without noticing further that the act must be in such tidewaters as
"are out of the body of any county in a state," and that this was
indispensable to be observed in order to protect the invaluable
principles we have been discussing.
The power of the general government and its courts over
admiralty matters was doubtless conferred on account of its
supervision over foreign trade and intercourse with other nations,
and not to regulate boats like these, far in the interior, and
never going to any foreign territory or even adjoining state, much
less touching the ocean. Nothing can be more significant of the
correctness of this limitation to matters on the ocean than the
remarks of Chief Justice Jay, in
Chisholm v.
Georgia, 2 Dall. 475, that the judicial power of
the Union was extended to
"cases of admiralty and maritime jurisdiction, because, as the
seas are the joint property of nations, whose rights and privileges
thereto are regulated by the laws of nations and treaties, such
cases necessarily belong to national jurisdiction."
Our forms of proceeding, also, in admiralty, and which are
founded
Page 46 U. S. 490
on substance, count usually on the transaction as having
happened on "the high seas," knowing full well that they are the
great theater and territory for the exercise of admiralty law and
admiralty power, and being obliged to make such an allegation in
England in order to gain jurisdiction.
Ross v. Walker, 2
Wils. 265.
Half the personal quarrels between seamen in the coasting trade
and our vast shore fisheries, and timber men on rafts, and gundalo
men, and men in flatboats, workmen in the seacoast marshes, and
half the injuries to their property, are where the tide ebbs and
flows in our rivers, creeks, and ports, though not on the high
seas. But they never were thought to be cases of admiralty
jurisdiction when damages are claimed -- much less when prosecuted
for crimes; never in creeks, though the tide ebbs and flows there
through half of our seaboard towns -- never in rivers. All is
within the county, and is usually tried before state officers and
by state laws.
It has just been remarked by one of my brethren, as to torts and
crimes, as has been before said by some in controversies as to
contracts, that the statutes of Richard the Second were not in
force in the colonies.
See 2 Gall. 398, 473; 1 Pet.Adm.
233; Ware 91; Hall, Adm.Pr., 17, Pref. I cheerfully concede it may
well be doubted whether any portion of the common law or English
statutes passed before the settlement of this country became in
force here, unless suited to our condition or favorable to the
subject and his liberties. But these statutes were both. They were
suited to the condition of those attached to the common law and
jury trial in the colonies no less than at home, and they were in
favor of the rights and liberties of the subject, to be tried by
his own and not foreign laws, and by a jury for all matters
happening within the realm, and not on the high seas. And so far
from ancient statutes of that character not having any force here,
they had as much as those parts of the common law which were
claimed, October 14, 1774, by Congress among the "indubitable
rights and liberties to which the respective colonies are
entitled." 1 Journal of Congress 28. They came here with them, as a
part of their admiralty law, as much as came any portion of the
common law or the trial by jury. They came as much as Magna Charta
or the Bill of Rights, and they should exist here now, in respect
to all matters, with all the vigor that characterized them at home
at the time of our Revolution. Baldw. 551;
Ramsey
v. Alleyne, 12 Wheat. 638. So decided virtually in
Montgomery v.
Henry, 1 Dall. 53;
Talbott v. Three Briggs, 1 Dall. 106.
The principles, dear to freemen of the Saxon race, preferring
the trial by jury and the common law to a single judge in admiralty
and the civil law, which were involved in these statutes could be
no less highly prized by our American fathers than their English
ancestry, especially when we look to their numerous resolutions
on
Page 46 U. S. 491
this subject, both before and during the Revolution, cited in
other portions of this opinion.*
One of our soundest jurists has said long since
"The common law of England and every statute of that country
made for the benefit of the subject before our ancestors migrated
to this country were, so far as the same were applicable to the
nature of their situation, and for their benefit, brought over
hither by them, and wherever they are not repealed, altered, or
amended by the constitutional provisions or legislative declaration
of the respective states, every beneficial statute and rule of the
common law still remains in force."
Tucker, in Part II of Bl.Com., App. 99; 2 Chalm.Op. 75; Woodcock
159.*
Whether the 13 and 15 of Richard II were in affirmance of what
was the true limit of admiralty jurisdiction at first in England or
otherwise is not very material. But it is certain that it was
likely to be but declaratory of that, as the people were so devoted
to the common law trials by jury. The extraordinary idea that these
statutes were not in force here was first broached in A.D., 1801,
and then in a district court, in direct opposition to the views
expressed in
1 U. S. 1 Dall. 53.
The point then decided under that novel notion was that a lien
existed for repairs of a domestic ship without the aid of any
statute, and has been since expressly overruled by this Court in
The General
Smyth, 4 Wheat. 413. And why overruled by this
Court but on the principle that the admiralty jurisdiction here was
what it had been in England before our Constitution, and not
elsewhere -- not that of France before the Norman conquest or that
of Holland now?
Indeed, Justice Story, as a commentator in respect to other
clauses of the Constitution no more open to such a construction
than this, concedes that they are to be
"understood . . . according to the known distinction in the
jurisprudence of England, which our ancestors brought with them
upon their emigration, and with which all the American states were
familiarly acquainted."
3 Story's Com. on the Constitution 506, § 1639.
Nor let it be again offered in extenuation that, the power being
concurrent in the common law courts, the plaintiff from choice goes
into the admiralty, because the other party, who is often
prosecuted only to be vexed and harassed and who has rights as well
as the plaintiff, may be thus forced into admiralty, rather than
the
Page 46 U. S. 492
common law, much against his choice. Nor let it be said further,
as an apology, that the trial by admiralty is better and more
satisfactory, when our ancestors, both English and American, have
resisted it and excluded it in all common law cases for reasons
most vital to public liberty and the authority of the local
tribunals. Such an enlargement of a power so disliked by our
fathers is also unnecessary, because, if desirable to have the
United States courts try such cases rather than those of the
states, they can be enabled to do it by express provisions, under
the power to regulate foreign commerce and collect revenue, as is
now done on the Lakes;
37 U. S. 12 Pet.
75; 5 Stat. 726; Act of February 26, 1845; and reserving, as in
that case, the right of trial by jury.*
I have thus examined this question in all its various aspects
and endeavored to answer all which has been suggested in favor of a
change here as to the line of admiralty jurisdiction in the case of
the collision of vessels, as well as other marine torts.
Among my remarks have been several showing that there was
nothing in our condition as colonists or since, and nothing in the
nature of the subject and the great principles involved, which
should render the same line of jurisdiction not proper in America
which existed in England, but in truth some additional reasons in
favor of its here. I do not now, in conclusion, propose to dwell
much on this peculiar condition of ours, though some members of
this Court have just urged it earnestly as a reason why the same
line does not apply, as they have why the statutes of Richard II
did not apply. But the idea is as untenable in respect to the
principle generally, looking to our condition, as we have already
shown it to be in respect to those statutes. Thus, in that
condition, what reason was there ever for a change? None. And if
otherwise believed, when we were colonies, would not the change
have been made by acts of assembly approved at home, or an act of
Parliament? And if not done when colonies, but supposed to be
proper after the Revolution, would not the framers of the
Constitution or of the Judiciary Act have known it as quickly and
fully as this Court, and was it not more proper for them to have
made such a change than this Court? If our political institutions
or principles required it, did not they know, and should not they
have attended to that, rather than we? If such a change had already
happened in the then thirteen colonies, and was too well known and
acquiesced in,
Page 46 U. S. 493
as to torts and crimes, to need any written explanation or
sanction, why cannot it be pointed out in colonial laws, or in
judicial records, or at least in contemporaneous history of some
kind? And if such a change was required and intended, as some
insist, by resorting to other than English law for a guide as to
what were admiralty cases within the meaning of the Constitution,
because something less narrow, geographically or otherwise, as it
has been argued, something on a grander scale, and in some degree
commensurate in length and breadth with our mighty rivers and
lakes, was needed -- as if a system which had answered for trade
over all the oceans of the globe was not large enough for us --
then why not extend it at least over all our navigable waters, and
not halt short at the doubtful, and fluctuating, and pent-up limits
of tidewater? And was a change so much required to go into the
bodies of numerous counties and states, to the jeopardy of jury
trials, by any increased dislike to them among our jealous fathers?
Were they wishing, by mere construction, to let more and more go
into the cognizance of the admiralty and be tried without a jury,
and without the principles of the common law, when they had been so
indignantly remonstrating against any and every the smallest
encroachment by England on that sacred trial? And is this guarantee
of a jury trial in such cases to be considered of subordinate
moment in the views of those living at the era of the formation of
the Constitution, and the passage of the act of 1789, when their
eagerness was such to guarantee it fully, that two of the only
twelve amendments ever made to it relate to additional safeguards
for this trial? And in the Judiciary Act of 1789, there are
introduced,
ex industria, three separate provisions to
secure jury trials.
Indeed, so far from there being anything in our condition as
colonists or in public opinion at the Revolution which demanded a
change enlarging admiralty forms and jurisdiction, the old Congress
specially resolved, November 25, 1775, when recommending to the
colonies to institute courts to try captures, or devolve the power
on those now existing, that they "provide that all trials in such
case be had by a jury," which was going further in their favor,
instead of short of what had ever been done in England. And in
1779, Virginia established admiralty courts, under recommendation
of the old Congress, and expressly allowed a jury in all cases
where either party desired it, if both were citizens. 10 Hening's
Stat. 101. The same is understood to have been done in several
other states.
See The Federalist, No. 83. In
Massachusetts, under the old charter, as long ago as 1673, the
court of admiralty was expressly authorized to allow a jury when it
pleased. Ancient Charters and Laws, 721 (App). Iredell says also,
in the North Carolina Convention (4 Elliot's Deb., 155):
"There are different practices in regard to this trial in
different states. In some
Page 46 U. S. 494
cases, they have no juries in admiralty and equity cases; in
others, they have juries in them as well as in suits at common
law."
And to the objections made against adopting the Constitution,
because the trial by jury might be restricted under it and suitors
be compelled to travel far for a hearing in ordinary cases (1
Gales' Debates in First Congress), it was argued that Congress
would possess the power to allow juries even in cases in admiralty
(The Federalist, No. 83), and afterwards, by the original
amendments to the Constitution, it was made imperative to allow
them in all "cases at common law." Yet now, by considering torts
within a county as triable, or as "cases in admiralty," which was
not done by the common law, nor when the Constitution was adopted,
either in England or here, we produce both the great evils
deprecated -- an abridgment of the jury trial from what prevailed
both here and in England, and the forcing of citizens to a great
distance from their state tribunals to defend their rights under a
different forum and a different system of laws.
After these additional proofs of the caution of our ancestors to
check the usual admiralty power of trial without a jury, and more
especially to prevent any extension of it, could they for a moment,
when so jealous of the general government and its overshadowing
powers, wish to extend them further than ever before, either here
or in England?* Did they mean to relinquish their time-honored and
long-cherished trial for torts on water within a county, and take
for a model despotic France, for instance, which knew no trial by
jury in any case, and where the boundaries between the admiralty
and other courts were almost immaterial, being equally under the
civil law, and equally without the safeguard of their peers? And
would they be likely to mean this, or wish it, when every such
extension of admiralty jurisdiction was at the expense of the state
courts, and transferring the controversies of mere citizens of one
state to distant jurisdictions, out of their counties and in
certain events to the remote seat of the general government, and
then to be tried there not by the common law, with whose principles
they were familiar, but by the civil, and when a full remedy
existed at home and in their own courts? Much less could they be
supposed willing to do this when the trial of facts in this Court
was not to be by their peers from the vicinage, or on oral
testimony, so that the witnesses could be seen, scrutinized, and
well compared, but by judges, who, however learned in the law, are
less accustomed to settle facts, and possess less practical
acquaintance with the subject
Page 46 U. S. 495
matter in controversy. And what are the urgent and
all-controlling reasons which exist to justify the new line urged
upon us, in such apparent violation of the Constitution, and with
so inauspicious a departure from anything required by our
condition, or from what seems to have been the principles and
precedents at the Revolution?
It is not the line even of the civil law, and more than of the
common law. If this innovation had extended admiralty jurisdiction
over all navigable waters, it would have been, at least, less
vague, and found some vindication in its analogy to the civil code.
Digest 43, tit. 12, 13; Code Napoleon, B. 2, ch. 2, tit. 556;
Zouch's Elements of Jurisp., 382. But the rule of tidewater within
a county, and not on the sea, conforms to no code nor precedent;
neither marching boldly over all which is navigable, nor halting
where the ocean meets the land; neither shunning to make wide
inroads into the territories of juries, nor pushing as far as all
which is nautical and commercial goes. The only plausible apology
for it which I can find is in a total misconception, before
adverted to, of the ancient and true rule, which was tidewater, but
at the same time tidewater without the body of the county, on the
high seas. But instead of the flux and reflux of the tide on the
high seas and without the body of the county or state, and to
support which line stood the great pillars of a jury trial and the
common law, have been attempted to be substituted, and that without
authority of any statute or clause in the Constitution, as to
torts, the impulses from the tides at any and every distance from
the ocean, sometimes encroaching from one to two hundred miles into
the interior of counties and states and prostrating those great
pillars most valuable to the people of the states. And what, let me
repeat the inquiry, is gained by such a hazardous construction? Not
an adherence to old and established rules, not a respect for state
rights; not strengthening the Union or its clear powers where
assailed, but weakening by extending them to doubtful, irritating,
and unnecessary topics; not an extension of a good system, allowing
the admiralty to be one for all nautical matters, to all navigable
waters and commercial questions, but falling short, in some of our
vast rivers or inland seas, near one thousand miles from the head
of navigation, and cutting off several cities with twenty, thirty,
and even forth thousand population. The late Act of February 26,
1845, 5 Stat. 726, was intended to remedy this, but does not
include any cases above tidewater on the Mississippi, or
Cumberland, or Ohio, and many others, but only those on the Lakes
and their tributaries, and very properly even there reserves with
scrupulous care not only the right to either party of a trial by
jury, but any remedy existing at common law or in the states.
So, looking to results, if we disclaim jurisdiction here, what
evil can happen? Only that our citizens in this class of cases will
be
Page 46 U. S. 496
allowed to be tried by their own state courts, state laws, and
state juries. While if we do the contrary, the powers of both
states and juries will be encroached on, and just dissatisfaction
excited, and the harmonious workings of our political system
disturbed. So too if our national views have become actually
changed so greatly that a trial by a single judge, and in
admiralty, is preferred to a trial by jury in the state tribunals
or the circuit courts, then our overruling the jurisdiction in this
case will only leave Congress to declare the change and provide for
it, rather than this tribunal.
So the excuse for trying such cases in admiralty rather than in
courts of common law, which some have offered, on the ground that
the rules of decision are much the same, appears very ill
considered when, if the civil law in this instance does not differ
essentially from the common law, the rules of evidence by it do,
depriving us, as triers, of the sight of the witnesses, and their
apparent capacity and character, and depriving the defendant of the
invaluable trial by jury, and stripping him of the right of being
tried, and the state courts of the right of trying controversies
between their citizens in the neighborhood where they occur. "All
controversies directly between citizen and citizen will still
remain with the local courts," said Mr. Madison in the Virginia
convention. 3 Elliot's Deb. 489.
Now after all this caution exercised in England not to extend
nor change admiralty jurisdiction there without the aid of express
statute and a reservation of common law remedies -- after a refusal
to do it here recently as to the Lakes and their tributaries,
except in the same way, and preserving the trial by jury -- after
all the sensitiveness of our fathers in not doing it as to seizures
for breach of revenue and navigation laws, except by express
statute -- after their remonstrances and cautions in various ways
against abridging the trial by jury -- after the jealousy
entertained when the Constitution was adopted, that this Court
might absorb too much power from the state tribunals, and the
respect and forbearance which are always justly due to the reserved
rights of the states -- it certainly seems much wiser in doubtful
cases to let Congress extend our power than to do it ourselves by
construction or analogy.
So far from disturbing decisions and rules of property clearly
settled, I am, for one, strongly disposed to uphold them,
stare
decisis, and hence I am inclined in this case to stand by the
ancient landmarks, and not set everything afloat -- to stand, in
fine, by decisions, repeated and undoubted, which govern this
jurisdiction, till a different rule is prescribed by Congress.
The first doubt as to the jurisdiction in admiralty over the
present case is thus sustained, but, being overruled by a majority
of the Court, I proceed briefly to examine the next objection. It
is one founded in fact. It denies that the tide did in truth ebb
and flow at Bayou Goula, the place of this collision, in ordinary
times.
There is no pretense that the water there is salt or comes
back
Page 46 U. S. 497
from the ocean, or that the tide there sets upward in a current,
or ever did, in any stage of the water in the Mississippi. Yet this
is the ordinary idea of the ebb and flow of the tide. I concede,
however, that it has been settled by adjudged cases that the tide
is considered in law to ebb and flow in any place where it affects
the water daily and regularly, by making it higher or lower in
consequence of its pulsations, though no current back be caused by
it.
Rex v. Smith, 2 Doug. 441;
The
Planter, 7 Pet. 343;
Hooker v. Cummings,
20 Johns. 98; Ang. Tide Waters, 637. Yet this of course must be a
visible, distinct rise and fall, and one daily caused by the tides,
by being regular, periodical, and corresponding with their
movements. Amidst conflicting evidence on a point like this, it is
much safer to rely on collateral facts, if there be any important
ones admitted, and on expert or scientific men, who understand the
subject, than on casual observers. The sea is conceded to be two
hundred and three miles distant; and the current of the Mississippi
so strong as to be seen and felt far out to sea, sometimes quite
forty miles. The tides on that coast are but eighteen or twenty
inches high. The velocity of the current of the river is ordinarily
three to four miles an hour in high water, and the river is two
hundred feet deep for one hundred miles above New Orleans.
Stoddard's Hist. of Louisiana 158. It therefore becomes manifest
that on general principles, such a current, with its vast volume of
water, could not only never be turned back or overcome by the small
tides of eighteen inches, as the fact of its influence forty miles
at sea also demonstrates, but would not probably, in ordinary
times, be at all affected in a sensible and regular manner two
hundred and three miles distant, and weakened by all the numerous
bends in that mighty river. From New Orleans to St. Louis the bends
are such that a boat must cross the stream 390 times. Stoddard's
Hist. of Louisiana 374.
Again, the descent in the river from the place of this collision
to the ocean is quite a foot and a half, all the usual rise of the
tide on the coast; and hence, at a low stage of water in the river,
much more at a high one, thirty feet above the lowest, no tides are
likely to be felt, nor would they probably be during the whole
season of a full river, from November to June.
In the next place, several witnesses testify as to their
observations in respect to the tides, and confirm what might be
expected from these collateral facts. The most scientific among
them took frequent observations for two years, at or nigh Jefferson
College, thirty-seven miles nearer the sea than the place of this
collision, to ascertain this very fact, and testifies that no
regular daily influence is felt there from the tides. Oscillations
may occur, but not regularly, nor as tides. They happen in that way
even near the foot of the Falls of Niagara, but of course are
produced by causes entirely disconnected
Page 46 U. S. 498
from the tides of the ocean. So they happen, from other causes,
on most of our interior lakes.
Sometimes continued winds in one direction make a great
difference in the rise of the water at different places, and
sometimes the emptying in near of large tributary streams,
changeable in their size at different seasons. Both of these are
testified to occur in the Mississippi in its lower parts. At high
water, which prevails over half the year from rains and the
dissolving of snow, it also deserves notice that the fall of the
river towards the ocean is near one and two-thirds of an inch per
mile; and the difference between high and low water mark near Bayou
Goula is also, as before noticed, from thirty to thirty-three
feet.
From all this it is easy to see that during more than half the
year it is hardly possible that a regular tide from the ocean
should be felt there, though it is admitted that in conflict with
this, some witnesses testify to what they consider such tides
there, and indeed as high up as Bayou Sarah. But their evidence is
insufficient to overcome, in my mind, the force of the other facts
and testimony on this subject.
In connection with this point, it seems to be conceded also that
in order to give admiralty jurisdiction, the vessels must be
engaged in maritime business, as well as the collision have
occurred where the tide ebbs and flows. There might be some
question whether the main business of either of these boats was
what is called maritime, or touching the sea --
mare -- so
as to bring them and their business within the scope of admiralty
power. If, to do that, they must be employed on the high seas,
which is the English rule, neither was so engaged in any part of
its voyage or business. Or if, for that purpose, it is enough, as
may by contended in this country, that they be engaged exclusively
on tidewaters, neither was probably so employed in this instance.
And it is only by holding that it is enough for one end of the
voyage to be in tidewater, however fresh the water or slight the
tide, that their employment can be considered maritime.
In
The Thomas
Jefferson, 10 Wheat. 428, the Court said the end or
beginning of the employment may be out of tidewater if "the service
was to be substantially performed on the sea or tidewater." So in
The
Phoebus, 11 Pet. 183. But in the case of
The
Thomas Jefferson as well as
The Phoebus, the service,
being in fact chiefly out of tidewaters, was not considered as
maritime.
In the case of
The Planter, 7
Pet. 324, the whole service performed was in tidewaters, and was a
contract, and hence deemed maritime. Here, the boats were employed
in the trade between New Orleans at one point, and Bayou Sarah at
the other, a distance of one hundred and sixty-five miles. If the
tide ebbs and flows as high as Bayou Goula, or ninety-seven miles
above New Orleans, which we have seen is doubtful, it is only a
small fraction
Page 46 U. S. 499
above half the distance, but not enough above half to
characterize the main employment of the vessel to be in tidewaters
or to say that her service was substantially on the sea, or even
tidewater.
The De Soto made trips still higher up than
Bayou Sarah, to Bayou Tunica, twenty-seven miles farther from New
Orleans. The testimony is also that both these boats were, in their
construction, river and not sea boats, and
The De Soto was
built for the Red River trade, where no tides are pretended to
exist, and neither was ever probably on the ocean or within a
hundred miles of it.
It is doubtful if a vessel not engaged in trade from state to
state or from a state abroad, but entirely within a state, comes
under laws of the general government as to admiralty matters or
navigation. It is internal commerce, and out of the reach of
federal jurisdiction. Such are vessels on Lake Winnipiseogee,
entirely within the State of New Hampshire. In the
Luda
and
De Soto they were engaged in internal commerce, and
not from state to state, or from a state to a foreign country. 1
Tucker's B1.Com., 250, note.
In most cases on the Mississippi, the boats are engaged in the
coasting trade from one state to another, and hence are different,
and assume more of a public character. So on the Lakes the vessels
often go to foreign ports, as well as to other states, and those on
the seaboard engaged in the fisheries usually touch abroad, and are
required to have public papers. But of what use are custom house
papers or admiralty laws to vessels in the interior, never going
from state to state, nor from a state to a foreign country, as was
the situation and employment at the time of these two boats?
These are strong corroborations that this is a matter of local
cognizance -- of mere state trade -- of parties living in the same
county and doing business within the state alone, and should no
more be tried without a jury, and decided by the laws of Oleron and
Wisby, or the Consulat del Mare, or the Black Book of Admiralty
than a collision between two wagoners in the same county.
The second objection, then, as a whole, is in my view sustained,
and, being one of mere fact rather than law, it is to be regretted
that the Court could not have agreed to dismiss the libel on that
ground, without settling the other points, and without prejudice to
the rights of either party in a trial at common law. The plaintiff
would then be enabled to have all the facts on the merits examined
and adjudicated by a jury from the valley of the Mississippi, much
more skillful than this Court, from their residence and experience,
in judging upon accidents and negligences in navigation on that
great thoroughfare.
The only good reason that the admiralty judge was ever entrusted
with the decision of facts, rather than a jury, was that originally
he was but a deputy of the admiral, and often a nautical man --
acquainted with nautical matters, and acting only on them, and now
in
Page 46 U. S. 500
England he calls to his aid on facts the experienced nautical
officers or masters of the Trinity House -- "a company," says Coke
"of the chiefest and most expert masters and governors of ships." 4
Inst. 149. He takes their opinion and advice on the facts as to
collisions of vessels before he himself decides. 2 Bro.Civ. &
Adm.Law 112; 6 T.R. 766;
The Celt, 3 Hagg.Adm. 327. The
case is often fully argued before them first. 1 Wm.Rob. 133-135,
273, 314; Hall, Adm.Pr. 139; 5 Rob.Adm. 347. But everything here is
so different, and so much against the skill of judges of this Court
in settling such facts, that in cases of doubt we are very likely,
as has now happened, to disagree, and it is far better they should
be examined by a jury in the vicinage of the collision.
Perhaps it was a consideration like this that led to the
doctrine, both abroad and here, in favor of the common law courts'
having concurrent jurisdiction in these cases of collision, even
when they happen on the high seas. 1 Chit.Pl. 152, 191; 15 Mass.
755; 3 East 598;
Percival v. Hickey, 18 Johns. 257; 15
id. 119; 14
id. 273; Curtis Mer. Seamen 367; 9
Johns. 138;
Smith v.
Condry, 1 How. 36; Gilp. 483; 4 Mason C.C. says it
is claimed; 2 Gall. 343, on precedent.
Indeed, the laws of Louisiana are quoted as pertaining to and
regulating the conduct of boats when passing on the Mississippi
within that state. 1 Bull. & C. Dig. § 794. But so far from
their being a guide to us in admiralty, if having jurisdiction in
that way over these boats at this place, the rights of parties, as
before seen in such questions, are to be settled by the laws
existing in some undescribed part of the world, but not England in
A.D., 1776 or A.D., 1789, or Louisiana in A.D., 1845. If England,
this case would not be tried at all in admiralty, as we have seen,
and if Louisiana, then the case would not be settled by admiralty
law, but by the laws of Louisiana, and in the state tribunals.
Again, whoever affirms jurisdiction to be in the courts of the
United States must make it out, and remove all reasonable doubts,
or the court should not exercise it.
Bobyshall v.
Oppenheimer, 4 Wash.C.C. 483;
32 U. S. 7 Pet.
325; Pet.C.C. 36. Because these courts are courts of limited
jurisdiction, and acting under express grants, and can presume
nothing beyond the grant, and because, in respect to admiralty
power, if anything is presumed when not clear, it is presuming
against the trial by jury, and the state tribunals, and their
reserved rights. Where a jurisdiction is of a limited nature, "they
[claiming it] must show that the party was brought within it." 1
East 650. And where a case is in part dependent on common law and
in part on admiralty, it must be tried in the courts of the former.
Bee 470.
But the second objection to our jurisdiction being also
considered by the court untenable, the case is to be examined on
the
Page 46 U. S. 501
merits; and as to these it seems to me not free from difficulty,
though in my view indicating some fault in both the boats.
From the very nature of navigation -- as vessels cannot be
always turned quick, and as a constant lookout is hardly
practicable both night and day -- collisions on rivers with
frequent bends in them, like the Mississippi, and during darkness,
are occasionally almost inevitable, and often are attended by no
blame. The danger and injury to both vessels is so great in almost
every case, one or both not unseldom going down with all on board,
that the strongest motives exist with all to use care and skill to
avoid collisions.
The want of them, therefore, is never to be presumed, but is
required to be clearly proved. To presume otherwise would be to
presume men will endanger their own lives and property, as well as
those of others, without any motive of gain or ill will.
Hence our inquiries must start with the probability that in such
collisions, accident and misconception as to courses and distances
caused the injury, rather than neglect or want of skill. Indeed, in
these cases it is laid down as a rule by Sir Christopher Robinson
in
The Ligo, 2 Hagg.Adm. 356, that "the law requires that
there shall be preponderating evidence to fix the loss on the party
charged before the court can adjudge him to make compensation." 2
Dods. 83. I am unable to discern any such clear preponderance in
his case in favor of the
Luda. It is true that some
allowance must be made as to the testimony of the officers and men
in each boat. In both they would naturally be attached to her
character or interests, and desirous in some degree of vindicating
themselves or friends. And it happens that from such or some other
cause, those on each side usually testify more favorably as to the
care and skill with which the boat was conducted in which they were
employed at the time. Hence resort must be had to some leading and
admitted facts as a guide, when they can be distinctly ascertained,
to see whether the collision was from any culpable misconduct by
either. For like reasons, we should go to witnesses on shore and
passengers, where they had means of knowledge, rather than to the
officers and crews implicated on either side. Taking these for our
guidance chiefly, and so far as it is possible here to decide with
much accuracy, most of the case looks to me, on the facts, quite as
much like one of accident, or one arising from error of judgment
and mutual misapprehension, as from any culpable neglect on the
part of the officers of the
De Soto alone.
It is to be remembered that this collision occurred in the
night; that neither of the regular captains was on the deck of
either boat, though both pilots were at their stations; that being
near a landing, the
De Soto supposed the
Luda was
going to stop there, and hence pursued a different course from what
she would if not so supposing, and that the
Luda supposed
the
De Soto would not stop there, and hence did not pursue
the course she would if believing she was
Page 46 U. S. 502
about to stop. That both boats in the darkness seemed, till very
near, to believe each other farther off than they in truth were,
and hence did not use so early the precautions they otherwise might
have done. It is to be remembered also that not one of the usual
sources of blame in the adjudged cases existed here clearly on the
part of the
De Soto. Some witnesses swear to the
De
Soto's having her light hung out, and several, including a
passenger, that if the
Luda had not changed her course
unexpectedly, and when near, she would not have been struck by the
De Soto; and that the
De Soto, if changing hers,
and going lower down than her port, did so only to round to and lay
with her head up in the customary manner. Nor was there any racing
between rivals, to the peril of the vessels and life, which led to
the misfortune and usually deserves condign punishment. Nor was any
high speed attempting for any purpose, and the movement of the
De Soto, though with the current, is sworn to have been
slowest, and hence she was less bound to look out critically.
The Chester, 3 Hagg.Adm. 319 . Nor is there any law of
admiralty requiring a descending boat on a river to lie still till
an ascending one approaches and passes, though an attempt was made
to show such a usage on the Mississippi, which was met by counter
evidence. Again, the
Luda was not at anchor, so as to
throw the duty on the
De Soto to avoid her, as is often
the case on the seacoast.
The Girolamo, 3 Hagg.Adm. 169;
The Eolides, id., 369. Nor was the
Luda loaded
and the other not, but in ballast and with a wind, and hence bound
not to injure her.
The Baron Holberg, 3 Hagg.Adm. 244;
The Girolamo, id., 173. Nor was one moved by steam and the
other not, and hence the former, being more manageable, obliged to
shun the latter.
The Shannon, 2 Hagg.Adm. 173;
The
Perth, 3 Hagg.Adm. 417. Nor is there a rule here, as in
England, issued by the Trinity House in 1840, and to be obeyed or
considered bad seamanship, that two steamboats approaching and
likely to hit, shall put their helms to port, though the principle
is a sound one on which it rests. 1 Wm.Rob. 274, 275; 7 Jur. 380,
999. Under considerations like these, if any blame rests on the
De Soto, and there may be some, certainly quite as much
seems to belong to the
Luda. Neither put the helm to port.
Both boats were in my view too inattentive. Both should have
stopped their engines earlier till the course and destination of
each other were clearly ascertained, and both should have shaped
their courses wider from each other, till certain they could pass
without injury. 7 Jur. 380; 8
id. 320. The
Luda
certainly had more conspicuous lights, though the
De Soto
is sworn not to have been without them, and is admitted to have
been seen by the
Luda quite half a mile off, though in the
night. On the contrary, the movements of the
De Soto were
slowest, which is a favorable fact in such collisions, 7 Jur. 381,
though she did not lie by, as she should have done, under the law
of Louisiana, if that was in force,
Page 46 U. S. 503
and she wished to throw all the risk on "the ascending boat";
for throwing that risk so is the only gain by conforming to the
statute. 1 La.Dig. 528, Art. 3533, by Grimes.
But I do not propose to go more fully into this, as it is not
the point on which I think the case should be disposed of. I merely
refer to enough to show it is a question of difficulty and doubt
whether the injury did not result from casualty, or mutual
misapprehension and blame, rather than neglect, except in
particulars common to both, or at least in some, attached to the
plaintiffs, if not so great, as those in respect to which the
original defendants erred. Any fault whatever in the plaintiffs
has, it is said in one case, been held to defeat his action.
Vanderplank v. Miller, Moore & M. 169. But in any
event, it must influence the damages essentially. For though, when
one vessel alone conducts wrongfully, she alone must pay all
damages to the extent of her value, 5 Rob.Adm. 345, and this agrees
with the laws of Wisbuy if the damage be "done on purpose," 2
Pet.Adm. 84, 85, App, and with the laws of Oleron, 2
id.
28; yet if both vessels were culpable, the damage is to be divided
either equally between them, 3 Hagg.Adm. 328, note; 4 Ad. & E.
431; 9 Car. & P. 613,
Reeves v. Constitution, Gilp.
579, or they are to be apportioned in some other more appropriate
ratio, looking critically to all the facts.
The
Woodrop-Sims, 2 Dods.Adm. 85, 3 Scott, N. 336; 3 Man. & G.
59; Curtis Adm. 145, note. So in England, though no damages are
given when there is no blame on the part of the defendant.
The
Dundee, 1 Hagg.Adm. 120;
Smith v.
Condry, 1 How. 36; 2 Bro.Civ.Adm.Law, 204. Yet by
the laws of Wisbuy, 1 Pet.Adm. 89, App. --
"If two ships strike against one another, and one of them
unfortunately perishes by the blow, the merchandise that is lost
out of both of them shall be valued and paid for
pro rata
by both owners, and the damage of the ships shall also be answered
for by both according to their value."
Sea Laws 141. This is now the law in Holland, and is vindicated
by Bynkershoek, so as to cover cases of doubt and equalize the
loss. 2 Bro.Civ. & Adm.Law 205, 206. So now on the Continent,
where a collision happened between vessels in the River Elbe and it
was not the result of neglect, the loss was divided equally. Story
Confl. of L. 423;
Peters v. Warren Ins.
Company, 14 Pet. 99; 4 Ad. & E. 420.
Hence, whether we conform to the admiralty law of England on
this point, though refusing to do it on other points, or take the
rule on the Continent for a guide, the amount of damages allowed in
this case is erroneous if there was any neglect on the part of the
original plaintiffs or if the collision between the boats was
accidental.
JUDGE DANIEL requested his dissent to the judgment of the Court
to be entered on the record, and for reasons concurring generally
with those offered by JUDGE WOODBURY.
Page 46 U. S. 504
MR. JUSTICE GRIER concurred with MR. JUSTICE WOODBURY in the
opinion delivered by him, so far as it related to the question of
the jurisdiction of courts of admiralty, and also that the weight
of evidence in this case was against the existence of a tide at the
place of collision, but concurred with the majority of the Court
that the
De Soto was in fault, and justly holden for the
whole loss occasioned by the collision.
* And the vice-admiral is hence quaintly called "the justice of
the peace for the sea," by Sir Leoline Jenkins; but who ever
supposed him the justice of the peace two hundred miles inward from
the sea?
* Woodcock on the British Colonies is equally explicit that the
vice-admiralty courts in the colonies were called so because in
fact subordinate to the admiralty at home, and with like
jurisdiction, except where altered by positive statute. Thus,
speaking of "the jurisdiction of the admiralty over subjects of
maritime contract," he says
"With respect to this authority it may be only necessary to
observe that in such matters the admiralty court in the colonies
holds plea agreeably to the course of the same court in
England."
P. 272.
12 They are so numerous as to remind one of the zeal and
perseverance in favor of the great charter, which was such as to
require it to be read twice a year in each cathedral, and to have
it ratified anew over thirty times, when put in peril by
encroaching monarchs. 1 Stat. (English), 274, ch. 3; also, 1,
note.
* Thus people who go to form colonies "are not sent out to be
slaves, but to enjoy equal privileges and freedom." Grotius, De
Jure Belli, B. 2, ch. 9, § 10. Or "the same rights and privileges
as those who stayed at home." Or, as in the charter of Elizabeth to
Raleigh, "enjoy all the privileges of free denizens or persons
native of England." Part I. of Tucker's Bl., vol. 1, 383, App.
* As some evidence that the makers of this last law did not
suppose it settled that the district courts could, as admiralty
courts, have any jurisdiction as to torts, because committed on
tidewaters within a state, when they felt obliged to pass a special
law to confer it on the Lakes, it was not conferred there as
exercised on "tidewaters," which would have been sufficient, if so
settled, but on "the high seas, or tidewaters within the admiralty
and maritime jurisdiction," &c. This statute is also scrupulous
to save the trial by jury when desired, and thus avoids treating it
as an admiralty power got in torts, unless on the high seas, by a
construction contrary to the political opinions and prejudices of
our ancestors, and to the whole spirit of our institutions.
* Indeed, in England it has been controverted whether the power
in admiralty to punish torts anywhere ever existed, even before
Richard II (3 Mason 244), except through a jury, used to settle the
facts and assess the damages.
See 4 Rob.Adm. 60, note to
Rucker's Case. The Black Book of the Admiralty art. 12,
169, is cited as speaking of the use of a jury twice in such cases.
See also Roughten, De Of. Admiralis 69, note. And at this
day, in England, in this class of torts, as hereafter shown, the
masters of Trinity House act virtually as a jury.