1. The admiralty and maritime jurisdiction of the United States
is not limited by the statutes or judicial prohibitions of
England.
First. The
locus, or territory, of maritime
jurisdiction where torts must be committed and where business must
be transacted in order to be maritime in their character extends
not only to the main sea, but to all the navigable waters of the
United States or bordering on the same, whether land-locked or
open, salt or fresh, tide or no tide.
Secondly. As to
contracts, the true criterion whether
they are within the admiralty and maritime jurisdiction is their
nature and subject matter, as whether they are maritime contracts,
having reference to maritime service, maritime transactions, or
maritime casualties, without regard to the place where they were
made.
In view of these principles, it was held that the contract of
marine insurance is a maritime contract within the admiralty and
maritime jurisdiction, though not within the exclusive jurisdiction
of the United States courts.
2. The case of
De Lovio v. Boit, 2 Gallison 398,
affirmed.
3. This Court has jurisdiction, under the act of 1801, of a
certificate of division of opinion between the Associate Justice of
the Supreme Court and the circuit judge, together holding the
circuit court, under the act of 1869, as well as between either of
the said judges and the district judge.
Page 78 U. S. 2
The act of Congress of April 29, 1802, [
Footnote 1] provides that
"Whenever any question shall occur before a circuit court upon
which the opinions of the judges shall be opposed, the point upon
which the disagreement shall happen shall, during the same term,
upon the request of either party or their counsel, be stated under
the direction of the judges and certified under the seal of the
court to the Supreme Court at their next session to be held
thereafter, and shall by the said Court be finally decided."
At the time when this statute was passed, the circuit court,
when consisting of more than a single judge, was composed of a
judge of the Supreme Court of the United States and the District
judge of the district sitting together, and this organization
remained until April 10, 1869.
By Act of that day [
Footnote
2] "to amend the judicial system of the United States," it was
enacted:
"That for each of the nine existing judicial circuits there
shall be appointed a
circuit judge, who shall reside in
his circuit and shall possess the same power and jurisdiction
therein as the Justice of the Supreme Court allotted to the
circuit. The
circuit courts in each circuit shall be held
by the Justice of the Supreme Court allotted to the circuit,
or by the circuit judge of the circuit; or by the district
judge,
or by the Justice of the Supreme Court and circuit judge
sitting together, . . . or, in the absence of either of them,
by the other . . . and the district judge."
In this state of enactment, a libel
in personam had
been filed in the District Court for the District of Massachusetts
by one Dunham against the New England Mutual Marine Insurance
Company, on a policy of insurance dated at Boston on the 2d day of
March, 1863, whereby the insurance company, a corporation of
Massachusetts, agreed to insure Dunham, the libellant, a citizen of
New York, in the sum of $10,000, for whom it might concern, on a
vessel called
Page 78 U. S. 3
the
Albina for one year against the perils of the seas
and other perils in the policy mentioned, and the libellant alleged
that within the year the said vessel was run into by another vessel
on the high seas through the negligence of those navigating the
said other vessel and sustained much damage, and that the libellant
had expended large sums of money in repairing the same of which he
claimed payment of the insurance company.
The question was whether the district court, sitting in
admiralty, had jurisdiction to entertain a libel
in
personam on a policy of marine insurance to recover for a
loss.
The Constitution ordains, it will be remembered, that
"The judicial power shall extend . . . to all cases of admiralty
and maritime jurisdiction."
And the Judiciary Act of 1789, which established the district
courts, declares that they shall have
"exclusive original cognizance of all civil causes of admiralty
and maritime jurisdiction . . . saving to suitors in all cases the
right of a common law remedy where the common law is competent to
give it."
The district court decreed in favor of the libellant, and the
insurance company appealed to the circuit court. The judges of that
court were opposed in opinion on the point raised, and it was
accordingly certified to this Court. Two questions were thus before
this Court:
1. Whether since the reorganization of the circuit courts under
the act of 1869, a difference of opinion between a judge of the
Supreme Court and "the circuit judge," created by that act, sitting
as the circuit court, could be certified to this Court under the
act of 1802.
2. If it could, what was the proper answer to be returned to the
question certified? Had the district court, sitting in admiralty,
jurisdiction to entertain the libel in this case, the same being a
libel
in personam on a policy of marine insurance to
recover for a loss?
The latter question was the one to which the briefs of counsel
were directed.
Page 78 U. S. 21
MR. JUSTICE BRADLEY delivered the opinion of the Court.
This case comes before us on a certificate of division in
opinion between the judges of the Circuit Court for the District of
Massachusetts on appeal from the district court of that district.
When this division of opinion occurred, the circuit court was being
held by the Associate Justice of this Court allotted to the First
Circuit and the circuit judge of that circuit, sitting together. It
becomes necessary, therefore, in the first place, to decide whether
a difference of opinion between these judges sitting in the circuit
court may be certified to this Court under the Act of April 29,
1802. The language of the act is broad enough to include the case.
It is as follows:
"Whenever any question shall occur before a circuit court upon
which the opinions of the judges shall be opposed, the point upon
which the disagreement shall happen shall, during the same term,
upon the request of either party or their counsel, be stated under
the direction of the judges and certified under the seal of the
court to the Supreme Court at their next session to be held
thereafter, and shall by the said Court be finally decided."
But it has been suggested that although the case is included in
the terms of the act, it is not within its meaning, because the
constitution of the circuit has been changed by the recent act
creating circuit judges, passed April 10, 1869. There is nothing in
this act which alters the powers of the court or obviates the
difficulty which a certificate of division was intended to meet.
That difficulty arose from
Page 78 U. S. 22
the fact that the court was constituted of two judges, between
whom a difference of opinion would be likely often to occur, and
thus block the wheels of justice. Other things being equal, a
division of opinion is far more probable between two persons than
is an equal division between any other even number persons. This
renders it desirable, when a court consists of the former number,
to have some method provided for overcoming the intrinsic
difficulty. Such a method was provided by the act of 1802 to meet
the then constitution of the court, which consisted of a Justice of
the Supreme Court and the district judge. The act of 1869 has
created a new circuit judge, it is true, but he is invested with
precisely the same power and jurisdiction in his circuit as the
Justice of the Supreme Court has therein, whilst the powers of the
latter, as judge of the circuit, are the same as before, and the
court is to be held either by one of them or the district judge, or
any two of the three. Thus the same necessity exists as before for
the power to certify questions to the Supreme Court. As the
mischief remains the same, and the terms of the act of 1802 are
general and adequate to continue the remedy, such a construction of
it as will have that effect seems to be fairly warranted. [
Footnote 3]
We therefore conclude that the case is properly brought before
us by certificate.
The case as thus brought before us presents the question whether
the District Court for the District of Massachusetts, sitting in
admiralty, has jurisdiction to entertain a libel
in
personam on a policy of marine insurance to recover for a
loss.
This precise question has never been decided by this Court. But
in our view several decisions have been made which determine the
principle on which the case depends. The general jurisdiction of
the district courts in admiralty and maritime cases has been
heretofore so fully discussed that it is only necessary to refer to
them very briefly on this occasion.
Page 78 U. S. 23
The Constitution declares that the judicial power of the United
States shall extend "to all cases of admiralty and maritime
jurisdiction," without defining the limits of that jurisdiction.
Congress, by the Judiciary Act passed at its first session, 24th of
September, 1789, established the district courts and conferred upon
them, among other things, "exclusive original cognizance of all
civil cases of admiralty and maritime jurisdiction."
As far as regards civil cases, therefore, the jurisdiction of
these courts was thus made coextensive with the constitutional gift
of judicial power on this subject.
Much controversy has arisen with regard to the extent of this
jurisdiction. It is well known that in England, great jealousy of
the admiralty was long exhibited by the courts of common law.
The admiralty courts were originally established in that and
other maritime countries of Europe for the protection of commerce
and the administration of that venerable law of the sea, which
reaches back to sources long anterior even to those of the civil
law itself, which Lord Mansfield says is not the law of any
particular country, but the general law of nations, and which is
founded on the broadest principles of equity and justice, deriving,
however, much of its completeness and symmetry, as well as its
modes of proceeding, from the civil law and embracing altogether a
system of regulations embodied and matured by the combined efforts
of the most enlightened commercial nations of the world. Its system
of procedure has been established for ages, and is essentially
founded, as we have said, on the civil law, and this is probably
one reason why so much hostility was exhibited against the
admiralty by the courts of common law, and why its jurisdiction was
so much more crippled and restricted in England than in any other
state. In all other countries bordering on the Mediterranean or the
Atlantic, the marine courts, whether under the name of admiralty
courts or otherwise, are generally invested with jurisdiction of
all matters arising in marine commerce, as well as other marine
matters of public concern, such as crimes
Page 78 U. S. 24
committed on the sea, captures, and even naval affairs. But in
England, partly under strained constructions of parliamentary
enactments and partly from assumptions of public policy, the common
law courts succeeded in establishing the general rule that the
jurisdiction of the admiralty was confined to the high seas and
entirely excluded from transactions arising on waters within the
body of a county, such as rivers, inlets, and arms of the sea as
far out as the naked eye could discern objects from shore to shore,
as well as from transactions arising on the land, though relating
to marine affairs.
With respect to contracts, this criterion of locality was
carried so far that, with the exception of the cases of seamen's
wages and bottomry bonds, no contract was allowed to be prosecuted
in the admiralty unless it was made upon the sea and was to be
executed upon the sea, and even then it must not be under seal.
Of course, under such a construction of the admiralty
jurisdiction a policy of insurance executed on land would be
excluded from it.
But this narrow view has not prevailed here. This Court has
frequently declared and decided that the admiralty and maritime
jurisdiction of the United States is not limited either by the
restraining statutes or the judicial prohibitions of England, but
is to be interpreted by a more enlarged view of its essential
nature and objects, and with reference to analogous jurisdictions
in other countries constituting the maritime commercial world, as
well as to that of England. "Its boundary," says Chief Justice
Taney, [
Footnote 4]
"is to be ascertained by a reasonable and just construction of
the words used in the Constitution, taken in connection with the
whole instrument, and the purposes for which admiralty and maritime
jurisdiction was granted to the federal government."
"Courts of admiralty," says the same judge in another case,
[
Footnote 5]
"have been found necessary in all commercial countries
Page 78 U. S. 25
not only for the safety and convenience of commerce and the
speedy decision of controversies where delay would often be ruin,
but also to administer the laws of nations in a season of war and
to determine the validity of captures and questions of prize or no
prize in a judicial proceeding. And it would be contrary to the
first principles on which the Union was formed to confine these
rights to the states bordering on the Atlantic and to the tidewater
rivers connected with it, and to deny them to the citizens who
border on the lakes and the great navigable streams which flow
through the Western states."
In accordance with this more enlarged view of the subject,
several results have been arrived at widely differing from the
long-established rules of the English courts.
First, as to the locus or territory of maritime jurisdiction --
that is, the place or territory
where the law maritime
prevails, where torts must be committed, and where business must be
transacted in order to be maritime in their character -- a long
train of decisions has settled that it extends not only to the main
sea, but to all the navigable waters of the United States or
bordering on the same, whether landlocked or open, salt or fresh,
tide or no tide. "Are we bound to say," says Justice Wayne,
delivering the opinion of the Court in
Waring v. Clarke,
[
Footnote 6]
"because it has been so said by the common law courts of England
in reference to the point under discussion, that sea always means
high sea or
main 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? . . . 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 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. "
Page 78 U. S. 26
It was a long time, however, before the full extent of the
admiralty jurisdiction was firmly established. The Judiciary Act
expressly extended it to seizures under laws of impost, navigation,
or trade of the United States where made on waters navigable from
the sea by vessels of ten or more tons burden, as well as upon the
high seas, thus at once ignoring the English rule; but for some
time it was held that the jurisdiction could not go further, and
that this grant was confined to tidewaters. But in the case of
The Genesee Chief, [
Footnote 7] decided in 1851, it was expressly adjudged
that tide was no criterion of admiralty jurisdiction in this
country; that it extended to our great internal lakes and navigable
rivers as well as to tidewaters. "It is evident," said Chief
Justice Taney, [
Footnote 8]
"that a definition which would at this day limit public rivers
in this country to tidewater rivers is utterly inadmissible. We
have thousands of miles of public navigable water, including lakes
and rivers, in which there is no tide. And certainly there can be
no reason for admiralty power over a public tidewater which does
not apply with equal force to any other public water used for
commercial purposes and foreign trade. The lakes and the waters
connecting them are undoubtedly public waters and, we think, are
within the grant of admiralty and maritime jurisdiction in the
Constitution of the United States."
This judgment has been followed by several cases since decided,
and the point must be considered as no longer open for discussion
in this Court.
Secondly, as to
contracts, it has been equally well
settled that the English rule which concedes jurisdiction, with a
few exceptions, only to contracts made upon the sea and to be
executed thereon (making locality the test) is entirely
inadmissible, and that the true criterion is the nature and subject
matter of the contract, as whether it was a maritime contract
having reference to maritime service or maritime transactions. Even
in England, the courts felt compelled to rely on this criterion in
order to sustain the admiralty jurisdiction
Page 78 U. S. 27
over bottomry bonds, although it involved an inconsistency with
their rules in almost every other case. In
Menetone v.
Gibbons, [
Footnote 9] Lord
Kenyon makes this sensible remark:
"If the admiralty has jurisdiction over the subject matter, to
say that it is necessary for the parties to go upon the sea to
execute the instrument borders upon absurdity."
In that case, there happened to be a seal on the bond, of which
a strong point was made. Justice Buller answered it thus:
"The form of the bottomry bond does not vary the jurisdiction;
the question whether the court of admiralty has or has not
jurisdiction depends on the subject matter."
Had these views actuated the common law courts at an earlier day
it would have led to a much sounder rule as to the limits of
admiralty jurisdiction than was adopted. In this Court, in the case
of
New Jersey Navigation Company v. Merchants' Bank,
[
Footnote 10] which was a
libel
in personam against the company on a contract of
affreightment to recover for the loss of specie by the burning of
the steamer
Lexington on Long Island Sound, Justice
Nelson, delivering the opinion of the Court, said: [
Footnote 11]
"If the cause is a maritime cause subject to admiralty
cognizance, jurisdiction is complete over the person as well as
over the ship. . . . On looking into the several cases in admiralty
which have come before this Court and in which its jurisdiction was
involved, it will be found that the inquiry has been not into the
jurisdiction of the court of admiralty in England, but into the
nature and subject matter of the contract -- whether it was a
maritime contract and the service a maritime service, to be
performed upon the sea or upon waters within the ebb and flow of
the tide."
[The last distinction based on tide, as we have seen, has since
been abrogated.] Jurisdiction in that case was sustained by this
Court, as it had previously been in cases of suits by ship
carpenters and materialmen on contracts for repairs, materials, and
supplies and by pilots for pilotage: in none of which would it have
been allowed to the admiralty courts in England. [
Footnote 12] In the subsequent case of
Page 78 U. S. 28
Morewood v. Enequist, [
Footnote 13] decided in 1859, which was a case of charter
party and affreightment, Justice Grier, who had dissented in the
case of
The Lexington but who seems to have changed his
views on the whole subject, delivered the opinion of the Court,
and, amongst other things, said:
"Counsel have expended much learning and ingenuity in an attempt
to demonstrate that a court of admiralty in this country, like
those of England, has no jurisdiction over contracts of charter
party or affreightment. They do not seem to deny that these are
maritime contracts, according to any correct definition of the
terms, but rather require us to abandon our whole course of
decision on this subject and return to the fluctuating decisions of
English common law judges, which, it has been truly said, 'are
founded on no uniform principle, and exhibit illiberal jealousy and
narrow prejudice.'"
He adds that the Court did not feel disposed to be again drawn
into the discussion; that the subject had been thoroughly
investigated in the case of
The Lexington, and that they
had then decided
"that charter parties and contracts of affreightment were
'maritime contracts' within the true meaning and construction of
the Constitution and act of Congress, and cognizable in courts of
admiralty by process either
in rem or
in
personam."
The case of
The People's Ferry Co. v. Beers, [
Footnote 14] being pressed upon the
Court, in which it had been adjudged that a contract for building a
vessel was not within the admiralty jurisdiction, being a contract
made on land and to be
performed on land, Justice
Grier remarked: "The Court decided in that case that a contract to
build a ship is
not a maritime contract," but he intimated
that the opinion in that case must be construed in connection with
the precise question before the Court -- in other words, that the
effect of that decision was not to be extended by implication to
other cases.
In the case of
The Moses Taylor, [
Footnote 15] it was decided that a contract to
carry passengers by sea as well as a contract to carry goods, was a
maritime contract and cognizable in admiralty,
Page 78 U. S. 29
although a small part of the transportation was by land, the
principal portion being by water. In a late case of affreightment,
that of
The Belfast, [
Footnote 16] it was contended that admiralty jurisdiction
did not attach, because the goods were to be transported only from
one port to another in the same state, and were not the subject of
interstate commerce. But as the transportation was on a navigable
river, the Court decided in favor of the jurisdiction because it
was a maritime transaction. JUSTICE CLIFFORD delivering the opinion
of the Court, said: [
Footnote
17]
"Contracts, claims, or service purely maritime and touching
rights and duties appertaining to commerce and navigation are
cognizable in the admiralty courts. Torts or injuries committed on
navigable waters, of a civil nature, are also cognizable in the
admiralty courts. Jurisdiction in the former case depends upon the
nature of the contract, but in the latter it depends entirely upon
the locality."
It thus appears that in each case, the decision of the Court and
the reasoning on which it was founded have been based upon the
fundamental inquiry whether the contract was or was not a maritime
contract. If it was, the jurisdiction was asserted; if it was not,
the jurisdiction was denied. And whether maritime or not maritime
depended not on the place where the contract was made, but on the
subject matter of the contract. If that was maritime, the contract
was maritime. This may be regarded as the established doctrine of
the Court.
The subject could be very copiously illustrated by reference to
the decisions of the various district and circuit courts. But it is
unnecessary. The authoritative decisions of this Court have settled
the general rule, and all that remains to be done is to apply the
law to each case as it arises.
It only remains, then, to inquire whether the contract of marine
insurance, as set forth in the present case, is or is not a
maritime contract.
Page 78 U. S. 30
It is objected that it is not a maritime contract because it is
made on the land and is to be performed (by payment of the loss) on
the land, and is, therefore, entirely a common law transaction.
This objection would equally apply to bottomry and respondentia
loans, which are also usually made on the land and are to be paid
on the land. But in both cases, payment is made to depend on a
maritime risk -- in the one case upon the loss of the ship or goods
and in the other upon their safe arrival at their destination. So
the contract of affreightment is also made on land, and is to be
performed on the land by the delivery of the goods and payment of
the freight. It is true that in the latter case, a maritime service
is to be performed in the transportation of the goods. But if we
carefully analyze the contract of insurance, we shall find that, in
effect, it is a contract or guaranty on the part of the insurer
that the ship or goods shall pass safely over the sea and through
its storms and its many casualties to the port of its destination,
and if they do not pass safely, but meet with disaster from any of
the misadventures insured against, the insurer will pay the loss
sustained. So in the contract of affreightment, the master
guarantees that the goods shall be safely transported (dangers of
the seas excepted) from the port of shipment to the port of
delivery, and there delivered. The contract of the one guarantees
against loss from the dangers of the sea, the contract of the other
against loss from all other dangers. Of course these contracts do
not always run precisely parallel to each other, as now stated;
special terms are inserted in each at the option of the parties.
But this statement shows the general nature of the two contracts.
And how a fair mind can discern any substantial distinction between
them on the question whether they are or are not, maritime
contracts, is difficult to imagine. The object of the two contracts
is, in the one case maritime service and in the other maritime
casualties.
And then the contract of insurance, and the rights of the
parties arising therefrom, are affected by and mixed up with all
the questions that can arise in maritime commerce -- jettison,
Page 78 U. S. 31
abandonment, average, salvage, capture, prize, bottomry
&c.
Perhaps the best criterion of the maritime character of a
contract is the system of law from which it arises and by which it
is governed. And it is well known that the contract of insurance
sprang from the law maritime, and derives all its material rules
and incidents therefrom. It was unknown to the common law, and the
common law remedies, when applied to it, were so inadequate and
clumsy that disputes arising out of the contract were generally
left to arbitration until the year A.D. 1601, when the statute of
43 Elizabeth was passed creating a special court or commission for
hearing and determining causes arising on policies of insurance.
The preamble to that act, after mentioning the great benefit
arising to commerce by the use of policies of insurance, has this
singular statement:
"And whereas heretofore such assurers have used to stand so
justly and precisely upon their credits as few or no controversies
have arisen thereupon, and if any have grown, the same have, from
time to time, been ended and ordered by certain grave and discreet
merchants appointed by the Lord Mayor of the City of London, as
men, by reason of their experience, fittest to understand and
speedily to decide those causes, until of late years that divers
persons have withdrawn themselves from that arbitrary course and
have sought to draw the parties assured to seek their moneys of
every several assurer by suits commenced in her Majesty's courts,
to their great charges and delays."
The commission created by this act was to be directed to the
judge of the admiralty for the time being, the Recorder of London,
two doctors of the civil law, and two common lawyers and eight
grave and discreet merchants. The act was thus an acknowledgment of
the jurisdiction to which the case properly belonged. Had it not
been for the jealousy exhibited by the common law courts against
the court of admiralty in prohibiting its cognizance of policies of
insurance half a century before, [
Footnote 18] the
Page 78 U. S. 32
latter court, as the natural and proper tribunal for determining
all maritime causes, would have furnished a remedy at once easy,
expeditious, and adequate. It was only after the common law, under
the influence of Lord Mansfield and other judges of enlightened
views, had imported into itself the various provisions of the law
maritime relating to insurance, that the courts at Westminster Hall
began to furnish satisfactory relief to suitors. And even then, as
remarked by Sir W. D. Evans,
"the inadequacy of the existing law to settle,
proprio
vigore, complicated questions of average and contribution is
very manifest and notorious. Such questions are, by consent, as
matter of course, and from conviction of counsel that justice
cannot be attained in any other way, referred to private
examination; but a law can hardly be considered as perfect which is
not possessed of adequate powers within itself to complete its
purpose, and which requires the extrinsic aid of personal consent.
[
Footnote 19]"
The contrivances to which Lord Mansfield resorted to remedy in a
measure these difficulties are stated by Mr. Justice Parke in the
introduction to his work on insurance.
These facts go to show demonstrably that the contract of marine
insurance is an exotic in the common law. And we know the fact,
historically, that its first appearance in any code or system of
laws was in the law maritime as promulgated by the various maritime
states and cities of Europe. It undoubtedly grew out of the
doctrine of contribution and general average, which is found in the
maritime laws of the ancient Rhodians. By this law, if either ship,
freight, or cargo was sacrificed to save the others, all had to
contribute their proportionate share of the loss. This division of
loss naturally suggested a previsional division of risk -- first
amongst those engaged in the same enterprise and next amongst
associations of shipowners and shipping merchants. Hence it is
found that the earliest form of the contract of insurance was that
of mutual insurance, which, according to Pardessus, dates back to
the tenth century, if not earlier,
Page 78 U. S. 33
and in Italy and Portugal was made obligatory. By a regulation
of the latter kingdom made in the fourteenth century, every
shipowner and merchant in Lisbon and Oporto was bound to contribute
two percent of the profits of each voyage to a common fund from
which to pay losses whenever they should occur. [
Footnote 20] The next step in the system
was that of insurance upon premium. Capitalists, familiar with the
risks of navigation, were found willing to guaranty against them
for a small consideration or premium paid. This, the final form of
the contract, was in use as early as the beginning of the
fourteenth century, [
Footnote
21] and the tradition is that it was introduced into England in
that century by the Lombard merchants who settled in London and
brought with them the maritime usages of Venice and other Italian
cities. Express regulations respecting the contract, however, do
not appear in any code or compilation of laws earlier than the
commencement of the fifteenth century. The earliest which Pardessus
was able to find were those contained in the Ordinances of
Barcelona, A.D. 1435; of Venice, A.D. 1468; of Florence, A.D. 1523;
of Antwerp, A.D. 1537 &c. [
Footnote 22] Distinct traces of earlier regulations are
found, but the ordinances themselves are not extant. In the more
elaborate monuments of maritime law which appeared in the sixteenth
and seventeenth centuries, the contract of insurance occupies a
large space. The
Guidon de la Mer, which appeared at Rouen
at the close of the sixteenth century, was an elaborate treatise on
the subject, but in its discussion the principles of every other
maritime contract were explained. In the celebrated marine
ordinance of Louis XIV, issued in 1681, it forms the subject of one
of the principal titles. [
Footnote 23] As is well known, it has always formed a
part of the Scotch maritime law.
Suffice it to say that in every maritime code of Europe, unless
England is excepted, marine insurance constitutes one of the
principal heads. It is treated in nearly every
Page 78 U. S. 34
one of those collected by Pardessus except the more ancient
ones, which were compiled before the contract had assumed its place
in written law. It is, in fact, a part of the general maritime law
of the world -- slightly modified, it is true, in each country
according to the circumstances or genius of the people. Can
stronger proof be presented that the contract is a maritime
contract?
But an additional argument is found in the fact that in all
other countries except England -- even in Scotland -- suits and
controversies arising upon the contract of marine insurance are
within the jurisdiction of the admiralty or other marine courts.
[
Footnote 24] The French
Ordinance of 1681 touching the Marine, in enumerating the cases
subject to the jurisdiction of the judges of admiralty, expressly
mentions those arising upon policies of assurance, and concludes
with this broad language: "And generally all contracts concerning
the commerce of the sea." [
Footnote 25] The Italian writer Roccus says:
"These subjects of insurance and disputes relative to ships are
to be decided according to maritime law, and the usages and customs
of the sea are to be respected. The proceedings are to be according
to the forms of maritime courts and the rules and principles laid
down in the book called 'The Consulate of the Sea,' printed at
Barcelona in the year 1592. [
Footnote 26]"
It is also clear that originally the English admiralty had
jurisdiction of this as well as of other maritime contracts. It is
expressly included in the commissions of the Admiral. [
Footnote 27] Dr. Browne says:
"The cognizance of policies of insurance was of old claimed by
the Court of Admiralty, in which they had the great advantage
attending all their proceedings as to the examination of witnesses
beyond the seas or speedily going out of the Kingdom. [
Footnote 28]"
But the intolerance of the common law courts prohibited the
exercise of it. In the early case of
Crane v. Bell, 38
Hen. VIII, A.D. 1546, a
Page 78 U. S. 35
prohibition was granted for this purpose. [
Footnote 29] Mr. Browne says, very
pertinently:
"What is the rationale, and what the true principle which ought
to govern this question,
viz., what contracts should be
cognizable in admiralty? Is it not this? All contracts which relate
purely to maritime affairs, the natural, short, and easy method of
enforcing which is found in the admiralty proceedings. [
Footnote 30]"
Another consideration bearing directly on this question is the
fact that the commissions in admiralty issued to our colonial
governors and admiralty judges prior to the Revolution, which may
be fairly supposed to have been in the minds of the Convention
which framed the Constitution, contained either express
jurisdiction over policies of insurance or such general
jurisdiction over maritime contracts as to embrace them. [
Footnote 31]
The discussions that have taken place in the district and
circuit courts of the United States have not been adverted to. Many
of them are characterized by much learning and research. The
learned and exhaustive opinion of Justice Story in the case of
De Lovio v. Boit, [
Footnote 32] affirming the admiralty jurisdiction over
policies of marine insurance, has never been answered, and will
always stand as a monument of his great erudition. That case was
decided in 1815. It has been followed in several other cases in the
First Circuit. [
Footnote 33]
In 1842, Justice Story, in reaffirming his first judgment, says
that he had reason to believe that Chief Justice Marshall and
Justice Washington were prepared to maintain the jurisdiction. What
the opinion of the other judges was he did not know. [
Footnote 34] Doubts as to the
jurisdiction have occasionally been expressed by other judges. But
we are of opinion that the conclusion of Justice Story was
correct.
The answer of the Court, therefore, to the question propounded
by the circuit court will be that the District Court
Page 78 U. S. 36
for the District of Massachusetts, sitting in admiralty, has
jurisdiction to entertain the libel in this case.
Answer accordingly.
[
Footnote 1]
2 Stat. at Large 159.
[
Footnote 2]
16
id. 44.
[
Footnote 3]
See Ex Parte
Zellner, 9 Wall. 244.
[
Footnote 4]
The Steamer St.
Lawrence, 1 Black 527.
[
Footnote 5]
The Genesee
Chief, 12 How. 454.
[
Footnote 6]
46 U. S. 5 How.
462.
[
Footnote 7]
53 U. S. 12 How.
443.
[
Footnote 8]
53 U. S. 12
How. 457.
[
Footnote 9]
3 Term 269.
[
Footnote 10]
47 U. S. 6 How.
344.
[
Footnote 11]
47 U. S. 6 How.
392.
[
Footnote 12]
See cases cited by Justice Nelson,
47 U. S. 6 How.
390,
47 U. S.
391.
[
Footnote 13]
64 U. S. 23
How. 493.
[
Footnote 14]
61 U. S. 20
How. 401.
[
Footnote 15]
71 U. S. 4 Wall.
411.
[
Footnote 16]
74 U. S. 7 Wall.
624.
[
Footnote 17]
74 U. S. 7
Wall. 637.
[
Footnote 18]
4 Institutes 139.
[
Footnote 19]
Evans's Statutes, vol. ii, p. 226, 3d ed.
[
Footnote 20]
2 Pardessus, Lois Maritimes 369; 6
id. 303.
[
Footnote 21]
Id., vol. 2, pp. 369, 370; vol. 4, p. 566; vol. 5, pp.
331, 493.
[
Footnote 22]
Id., vol. 5, pp. 493, 65; vol. 4, pp. 598, 37.
[
Footnote 23]
Lib. 3, title 6.
[
Footnote 24]
See Benedict's Admiralty § 294, ed. 1870.
[
Footnote 25]
Sea Laws 256.
[
Footnote 26]
Roccus on Insurance, note 80.
[
Footnote 27]
Benedict § 48.
[
Footnote 28]
2 Browne's Civil and Admiralty Law 82.
[
Footnote 29]
See 4 Institutes 139.
[
Footnote 30]
2 Civil and Admiralty Law 88.
[
Footnote 31]
Benedict, chap. ix.
[
Footnote 32]
2 Gallison 398.
[
Footnote 33]
Gloucester Insurance Co. v. Younger, 2 Curtis
332-333.
[
Footnote 34]
Hale v. Washington Insurance Co., 2 Story 183.