The Federal Employers' Liability Act applies only where the
injury occurs in railroad operations or their adjuncts, and cannot
be extended to interstate maritime transportation merely because
the vessel in the case is owned and operated by an interstate
carrier by railroad.
The word "boats" in the statute refers to vessels which may be
properly
Page 244 U. S. 206
regarded as but part of a railroad's extension or equipment as
understood and applied in common practice.
Under Art. III, § 2, of the Constitution, extending the judicial
power of the United States "to all cases of admiralty and maritime
jurisdiction," and Art. I, § 8, conferring on Congress power to
make all laws which may be necessary and proper for executing the
powers vested in the general government or in any of its
departments or officers, Congress has paramount power to fix and
determine the maritime law which shall prevail throughout the
country.
In the absence of controlling statutes, the general maritime law
as accepted by the federal courts constitutes part of our national
law applicable to matters within the admiralty and maritime
jurisdiction.
The power of the states to change, modify or affect the general
maritime law, while existing to some extent under the Constitution
and the Judiciary Act of 1789, § 9, Judicial Code, §§ 24, 256, may
not contravene the essential purposes of an act of Congress, work
material prejudice to the characteristic features of the general
maritime law, or interfere with the proper harmony and uniformity
of that law in its international and interstate relations.
Work performed by a stevedore on board a ship in unloading her
at wharf in navigable waters is maritime; his employment for such
work and injuries suffered in it are likewise maritime, and the
rights and liabilities arising from such work, employment, and
injuries are clearly within the admiralty jurisdiction.
Atlantic Transport Co. v. Imbrovek, 234 U. S.
52.
A stevedore engaged on an interstate ship in unloading her at
wharf in navigable waters in New York was accidentally injured and
killed, and an award of compensation was made against the shipowner
by the New York Workmen's Compensation Commission under the New
York Workmen's Compensation Act (
New York Central R. Co. v.
White, 243 U. S. 188),
and affirmed by the courts of that state.
Held that the
act as applied to such a case was in conflict with the
Constitution, and to that extent invalid.
The remedy of the New York Workmen's Compensation Act (it
provides compensation upon a prescribed scale for injuries and
deaths of employees, without regard to fault, to be administered
and awarded primarily through a state administrative commission) is
a remedy unknown to the common law, and incapable of enforcement by
the ordinary processes of any court, and hence is not among the
common law remedies which are saved to suitors from the exclusive
admiralty jurisdiction by Judiciary Act of 1789, § 9; Judicial
Code, §§ 24, 256.
Page 244 U. S. 207
The remedy of the New York Workmen's Compensation Act is
inconsistent with the policy of Congress to encourage investment in
ships, manifested by the Acts of 1851 and 1884 (Rev.Stats., §§
4283-4285; c. 121, 23 Stat. 57), which declare a limitation upon
the liability of their owners.
215 N.Y. 514 reversed.
The case is stated in the opinion.
MR. JUSTICE McREYNOLDS delivered the opinion of the court:
Upon a claim regularly presented, the Workmen's Compensation
Commission of New York made the following findings of fact,
rulings, and award, October 9, 1914:
"1. Christen Jensen, the deceased workman, was, on August 15,
1914, an employee of the Southern Pacific Company, a corporation of
the State of Kentucky, where it has its principal office. It also
has an office at Pier 49, North River, New York City. The Southern
Pacific Company at said time was, and still is, a common carrier by
railroad. It also owned and operated a steamship,
El
Oriente, plying between the ports of New York and Galveston,
Texas."
"2. On August 15, 1914, said steamship was berthed
Page 244 U. S. 208
for discharging and loading at Pier 49, North River, lying in
navigable waters of the United States."
"3. On said date, Christen Jensen was operating a small electric
freight truck. His work consisted in driving the truck into the
steamship
El Oriente, where it was loaded with cargo, then
driving the truck out of the vessel upon a gangway connecting the
vessel with Pier 49, North River, and thence upon the pier, where
the lumber was unloaded from the truck. The ship was about 10 feet
distant from the pier. At about 10:15 A.M., after Jensen had been
doing such work for about three hours that morning, he started out
of the ship with his truck loaded with lumber, a part of the cargo
of the steamship
El Oriente, which was being transported
from Galveston, Texas, to New York city. Jensen stood on the rear
of the truck, the lumber coming about to his shoulder. In driving
out of the port in the side of the vessel and upon the gangway, the
truck became jammed against the guide pieces on the gangway. Jensen
then reversed the direction of the truck and proceeded at third or
full speed backward into the hatchway. He failed to lower his head
and his head struck the ship at the top line, throwing his head
forward and causing his chin to hit the lumber in front of him. His
neck was broken, and in this manner he met his death."
"4. The business of the Southern Pacific Company in this state
consisted at the time of the accident and now consists solely in
carrying passengers and merchandise between New York and other
states. Jensen's work consisted solely in moving cargo destined to
and from other states."
"5. Jensen left surviving him Marie Jensen, his widow,
twenty-nine years of age, and Howard Jensen, his son, seven years
of age, and Evelyn Jensen, his daughter, three years of age."
"6. Jensen's average weekly wage was $19.60 per week."
"7. The injury was an accidental injury and arose out of
Page 244 U. S. 209
and in the course of Jensen's employment by the Southern Pacific
Company, and his death was due to such injury. The injury did not
result solely from the intoxication of the injured employee while
on duty, and was not occasioned by the willful intention of the
injured employee to bring about the injury or death of himself or
another."
"This claim comes within the meaning of Chapter 67 of the
Consolidated Laws as reenacted and amended by Chapter 41 of the
Laws of 1914, and as amended by Chapter 316 of the Laws of
1914."
"Award of compensation is hereby made to Marie Jensen, widow of
the deceased at the rate of $5.87 weekly during her widowhood, with
two years' compensation in one sum in case of her marriage; to
Harold Jensen, son of the deceased at the rate of $1.96 per week,
and to Evelyn Jensen, daughter of the deceased at the rate of $1.96
per week until the said Harold Jensen and Evelyn Jensen
respectively shall arrive at the age of eighteen years, and there
is further allowed the sum of one hundred ($100) dollars for
funeral expenses."
In due time, the Southern Pacific Company objected to the
award
"upon the grounds that the act does not apply, because the
workman was engaged in interstate commerce on board a vessel of a
foreign corporation of the State of Kentucky, which was engaged
solely in interstate commerce; that the injury was one with respect
to which Congress may establish, and has established, a rule of
liability, and under the language of § 114
*
[copied
Page 244 U. S. 210
in the margin], the act has no application; on the ground that
the act includes only those engaged in the operation of vessels
other than those of other states and countries in foreign and
interstate commerce, while the work upon which the deceased workman
was engaged at the time of his death was part of the operation of a
vessel of another state, engaged in interstate commerce, and hence
does not come within the provisions of the act; further, that the
act is unconstitutional, as it constitutes a regulation of and
burden upon commerce among the several states, in violation of
Article I, § 8, of the Constitution of the United States; in that
it takes property without due process of law, in violation of the
14th Amendment of the Constitution; in that it denies the Southern
Pacific Company the equal protection of the laws, in violation of
the 14th Amendment of the Constitution, because the act does not
afford an exclusive remedy, but leaves the employer and its vessels
subject to suit in admiralty; also that the act is unconstitutional
in that it violates Article III, § 2, of the Constitution,
conferring admiralty jurisdiction upon the courts of the United
States."
Without opinion, the appellate division approved the award and
the Court of Appeals affirmed this action (215 N.Y. 514, 519),
holding that the Workmen's Compensation Act applied to the
employment in question and was not obnoxious to the federal
Constitution. It said:
"The scheme of the statute is essentially and fundamentally one
by the creation of a state fund to insure the payment of a
prescribed compensation based on earnings for disability or death
from accidental injuries sustained by employees engaged in certain
enumerated hazardous employments. The state fund is created from
premiums
Page 244 U. S. 211
paid by employers based on the payroll, the number of employees,
and the hazards of the employment. The employer has the option of
insuring with any stock corporation or mutual association
authorized to transact such business, or of furnishing satisfactory
proof to the Commission of his own financial ability to pay. If he
does neither, he is liable to a penalty equal to the
pro
rata premium payable to the state fund during the period of
his noncompliance, and is subject to a suit for damages by the
injured employee, or his legal representative in case of death, in
which he is deprived of the defenses of contributory negligence,
assumed risk, and negligence of a fellow servant. By insuring in
the state fund, or by himself or his insurance carrier paying the
prescribed compensation, the employer is relieved from further
liability for personal injuries or death sustained by employees.
Compensation is to be made without regard to fault as a cause of
the injury, except where it is occasioned by the willful intention
of the injured employee to bring about the injury or death of
himself or another, or results solely from his intoxication while
on duty. Compensation is not based on the rule of damages applied
in negligence suits, but, in addition to providing for medical,
surgical, or other attendance or treatment and funeral expenses, it
is based solely on loss of earning power. Thus, the risk of
accidental injuries occurring with or without fault on the part
either of employee or employer is shared by both, and the burden of
making compensation is distributed over all the enumerated
hazardous employments in proportion to the risks involved."
See also Walker v. Clyde S.S. Co., 215 N.Y. 529.
In
New York C. R. Co. v. White, 243 U.
S. 188, we held the statute valid in certain respects,
and, considering what was there said, only two of the grounds
relied on for reversal now demand special consideration. First.
Plaintiff in error, being an interstate common
Page 244 U. S. 212
carrier by railroad, is responsible for injuries received by
employees while engaged therein under the Federal Employers'
Liability Act of April 22, 1908, c. 149, 35 Stat. 65, and no state
statute can impose any other or different liability. Second. As
here applied, the Workmen's Compensation Act conflicts with the
general maritime law, which constitutes an integral part of the
federal law under Art. III, § 2, of the Constitution, and to that
extent is invalid.
The Southern Pacific Company, a Kentucky corporation, owns and
operates a railroad as a common carrier; also the steamship
El
Oriente, plying between New York and Galveston, Texas. The
claim is that therefore rights and liabilities of the parties here
must be determined in accordance with the Federal Employers'
Liability Act. But we think that act is not applicable in the
circumstances.
The First Federal Employers' Liability Act (June 11, 1906, 34
Stat. 232, chap. 3073) extended in terms to all common carriers
engaged in interstate or foreign commerce, and, because it embraced
subjects not within the constitutional authority of Congress, was
declared invalid.
Employers' Liability Cases, 207 U.
S. 463. The later act is carefully limited, and provides
that
"every common carrier by railroad while engaging in commerce
between any of the several states or territories, or between any of
the states and territories, or between the District of Columbia and
any of the states or territories, or between the District of
Columbia or any of the states or territories and any foreign nation
or nations, shall be liable in damages to any person suffering
injury while he is employed by such carrier in such commerce, or,
in case of the death of such employee, to his or her personal
representatives, for the benefit of the surviving widow or husband
and children of such employee; and, if none, then of such
employee's
Page 244 U. S. 213
parents, and, if none, then of the next of kin dependent upon
such employee, for such injury or death resulting in whole or in
part from the negligence of any of the officers, agents, or
employees of such carrier, or by reason of any defect or
insufficiency, due to its negligence, in its cars, engines,
appliances, machinery, track, roadbed, works, boats, wharves, or
other equipment."
Evidently the purpose was to prescribe a rule applicable where
the parties are engaging in something having direct and substantial
connection with railroad operations, and not with another kind of
carriage recognized as separate and distinct from transportation on
land, and no mere adjunct thereto. It is unreasonable to suppose
that Congress intended to change long established rules applicable
to maritime matters merely because the ocean-going ship concerned
happened to be owned and operated by a company also a common
carrier by railroad. The word "boats" in the statute refers to
vessels which may be properly regarded as in substance but part of
a railroad's extension or equipment as understood and applied in
common practice.
The fundamental purpose of the Compensation Law, as declared by
the Court of Appeals, is
"the creation of a state fund to insure the payment of a
prescribed compensation based on earnings for disability or death
from accidental injuries sustained by employees engaged in certain
enumerated hazardous employments,"
among them being
"longshore work, including the loading or unloading of cargoes
or parts of cargoes of grain, coal, ore, freight, general
merchandise, lumber or other products or materials, or moving or
handling the same, on any dock, platform or place, or in any
warehouse or other place of storage."
Its general provisions are specified in our opinion in
New
York Central R. Co. v. White, supra, and need not be repeated.
Under the construction adopted by the state courts, no ship may
load or discharge her
Page 244 U. S. 214
cargo at a dock therein without incurring a penalty, unless her
owners comply with the act, which, in order to secure payment of
compensation for accidents, generally without regard to fault, and
based upon annual wages, provides (§ 50) that --
"An employer shall secure compensation to his employees in one
of the following ways:"
"1. By insuring and keeping insured the payment of such
compensation in the state fund, or"
"2. By insuring and keeping insured the payment of such
compensation with any stock corporation or mutual association
authorized to transact the business of workmen's compensation
insurance in this state. If insurance be so effected in such a
corporation of mutual association, the employer shall forthwith
file with the Commission, in form prescribed by it, a notice
specifying the name of such insurance corporation or mutual
association together with a copy of the contract or policy of
insurance."
"3. By furnishing satisfactory proof to the Commission of his
financial ability to pay such compensation for himself, in which
case the Commission may, in its discretion, require the deposit
with the Commission of securities of the kind prescribed in section
thirteen of the Insurance Law, in an amount to be determined by the
Commission, to secure his liability to pay the compensation
provided in this chapter."
"If an employer fail to comply with this section, he shall be
liable to a penalty during which such failure continues of an
amount equal to the
pro rata premium which would have been
payable for insurance in the state fund for such period of
noncompliance to be recovered in an action brought by the
Commission."
Article III, § 2, of the Constitution extends the judicial power
of the United States "to all cases of admiralty and maritime
jurisdiction," and Article I, § 8, confers upon the Congress
power
"to make all laws which shall be necessary and proper for
carrying into execution the foregoing powers and all other powers
vested by this Constitution
Page 244 U. S. 215
in the government of the United States or in any department or
officer thereof."
Considering our former opinions, it must now be accepted as
settled doctrine that, in consequence of these provisions, Congress
has paramount power to fix and determine the maritime law which
shall prevail throughout the country.
Butler v. Boston &
Savannah Steamship Co., 130 U. S. 527;
In re Garnett, 141 U. S. 1,
141 U. S. 14. And
further, that, in the absence of some controlling statute, the
general maritime law, as accepted by the federal courts,
constitutes part of our national law, applicable to matters within
the admiralty and maritime jurisdiction.
The
Lottawanna, 21 Wall. 558;
Butler v. Boston
& Savannah Steamship Co., 130 U.
S. 527,
130 U. S. 557;
Workman v. New York, 179 U. S. 552.
In
The Lottawanna, Mr. Justice Bradley, speaking for
the Court, said:
"That we have a maritime law of our own, operative throughout
the United States, cannot be doubted. The general system of
maritime law which was familiar to the lawyers and statesmen of the
country when the Constitution was adopted was most certainly
intended and referred to when it was declared in that instrument
that the judicial power of the United States shall extend 'to all
cases of admiralty and maritime jurisdiction.' . . . One thing,
however, is unquestionable; the Constitution must have referred to
a system of law coextensive with, and operating uniformly in, the
whole country. It certainly could not have been the intention to
place the rules and limits of maritime law under the disposal and
regulation of the several states, as that would have defeated the
uniformity and consistency at which the Constitution aimed on all
subjects of a commercial character affecting the intercourse of the
states with each other or with foreign states."
By § 9, Judiciary Act of 1789, 1 Stat. 76, 77, the district
courts of the United States were given
"exclusive original cognizance of all civil causes of admiralty
and
Page 244 U. S. 216
maritime jurisdiction, . . . saving to suitors, in all cases,
the right of a common law remedy, where the common law is competent
to give it."
And this grant has been continued. Judicial Code, §§ 24 and
256.
In view of these constitutional provisions and the federal act,
it would be difficult, if not impossible, to define with exactness
just how far the general maritime law may be changed, modified, or
affected by state legislation. That this may be done to some extent
cannot be denied. A lien upon a vessel for repairs in her own port
may be given by state statute,
The
Lottawanna, 21 Wall. 558,
88 U. S.
579-580;
The J. E. Rumbell, 148 U. S.
1; pilotage fees fixed,
Cooley v.
Board of Wardens, 12 How. 299;
Ex Parte
McNiel, 13 Wall. 236,
80 U. S. 242,
and the right given to recover in death cases,
The
Hamilton, 207 U. S. 398;
La Bourgogne, 210 U. S. 95,
210 U. S. 138.
See The City of Norwalk, 55 F. 98, 106. Equally well
established is the rule that state statutes may not contravene an
applicable act of Congress or affect the general maritime law
beyond certain limits. They cannot authorize proceedings
in
rem according to the course in admiralty,
The Moses
Taylor, 4 Wall. 411;
Steamboat
Co. v. Chase, 16 Wall. 522,
83 U. S. 534;
The Glide, 167 U. S. 606; nor
create liens for materials used in repairing a foreign ship,
The Roanoke, 189 U. S. 185.
See Workman v. New York, 179 U. S. 552. And
plainly, we think, no such legislation is valid if it contravenes
the essential purpose expressed by an act of Congress, or works
material prejudice to the characteristic features of the general
maritime law, or interferes with the proper harmony and uniformity
of that law in its international and interstate relations. This
limitation at the least, is essential to the effective operation of
the fundamental purposes for which such law was incorporated into
our national laws by the Constitution itself. These purposes are
forcefully indicated in the foregoing quotations from
The
Lottawanna.
A similar rule in respect to interstate commerce, deduced
Page 244 U. S. 217
from the grant to Congress of power to regulate it, is now
firmly established.
"Where the subject is national in its character, and admits and
requires uniformity of regulation, affecting alike all the states,
such as transportation between the states, including the
importation of goods from one state to another, Congress can alone
act upon it and provide the needed regulations. The absence of any
law of Congress on the subject is equivalent to its declaration
that commerce in that matter shall be free."
Bowman v. Chicago & Northwestern Ry. Co.,
125 U. S. 465,
125 U. S.
507-508;
Vance v. W. A. Vandercook Co.,
170 U. S. 438,
170 U. S. 444;
Clark Distilling Co. v. Western Maryland Ry. Co.,
242 U. S. 311. And
the same character of reasoning which supports this rule, we think,
makes imperative the stated limitation upon the power of the states
to interpose where maritime matters are involved.
The work of a stevedore, in which the deceased was engaging, is
maritime in its nature; his employment was a maritime contract; the
injuries which he received were likewise maritime, and the rights
and liabilities of the parties in connection therewith were matters
clearly within the admiralty jurisdiction.
Atlantic Transport
Co. v. Imbrovek, 234 U. S. 52,
234 U. S.
59-60.
If New York can subject foreign ships coming into her ports to
such obligations as those imposed by her compensation statute,
other states may do likewise. The necessary consequence would be
destruction of the very uniformity in respect to maritime matters
which the Constitution was designed to establish, and freedom of
navigation between the states and with foreign countries would be
seriously hampered and impeded. A far more serious injury would
result to commerce than could have been inflicted by the Washington
statute authorizing a materialman's lien, condemned in
The
Roanoke. The legislature exceeded its authority in attempting
to extend the statute under consideration to conditions like those
here disclosed.
Page 244 U. S. 218
So applied, it conflicts with the Constitution, and to that
extent is invalid.
Exclusive jurisdiction of all civil cases of admiralty and
maritime jurisdiction is vested in the federal district courts,
"saving to suitors in all cases the right of a common law remedy
where the common law is competent to give it." The remedy which the
compensation statute attempts to give is of a character wholly
unknown to the common law, incapable of enforcement by the ordinary
processes of any court, and is not saved to suitors from the grant
of exclusive jurisdiction.
The Hine v.
Trevor, 4 Wall. 571,
71 U. S. 572;
The Belfast, 7
Wall. 624,
74 U. S. 644;
Steamboat Co. v.
Chase, 16 Wall. 522,
83 U. S.
531-533;
The Glide, 167 U.
S. 606,
167 U. S. 623.
And finally, this remedy is not consistent with the policy of
Congress to encourage investments in ships, manifested in the Acts
of 1851 [9 Stat. 635, chap. 43] and 1884 (Rev.Stats. 4283-4285; §
18, Act of June 26, 1884, 23 Stat. 57), which declare a limitation
upon the liability of their owners.
Richardson v. Harmon,
222 U. S. 96,
222 U. S.
104.
The judgment of the court below must be reversed, and the cause
remanded for further proceedings not inconsistent with this
opinion.
Reversed.
* Section 114.
"The provisions of this chapter shall apply to employers and
employees engaged in intrastate, and also in interstate or foreign
commerce, for whom a rule of liability or method of compensation
has been or may be established by the Congress of the United
States, only to the extent that their mutual connection with
intrastate work may and shall be clearly separable and
distinguishable from interstate or foreign commerce, except that
such employer and his employees working only in this state may,
subject to the approval and in the manner provided by the
Commission and so far as not forbidden by any act of Congress,
accept and become bound by the provisions of this chapter in like
manner and with the same effect in all respects as provided herein
for other employers and their employees."
MR. JUSTICE HOLMES, dissenting:
The Southern Pacific Company has been held liable under the
statutes of New York for an accidental injury happening upon a
gangplank between a pier and the company's vessel, and causing the
death of one of its employees. The company not having insured, as
permitted, the statute may be taken as if it simply imposed a
limited but absolute liability in such a case. The short question
is whether the power of the state to regulate the liability in that
place and to enforce it in the state's own courts is taken away by
the conferring of exclusive jurisdiction
Page 244 U. S. 219
of all civil causes of admiralty and maritime jurisdiction upon
the courts of the United States.
There is no doubt that the saving to suitors of the right of a
common law remedy leaves open the common law jurisdiction of the
state courts, and leaves some power of legislation at least, to the
states. For the latter, I need do no more than refer to state
pilotage statutes, and to liens created by state laws in aid of
maritime contracts. Nearer to the point, it is decided that a
statutory remedy for causing death may be enforced by the state
courts, although the death was due to a collision upon the high
seas.
Steamboat Co. v.
Chase, 16 Wall. 522;
Sherlock v. Alling,
93 U. S. 99,
93 U. S. 104;
Knapp, S. & Co. v. McCaffrey, 177 U.
S. 638,
177 U. S. 646;
Minnesota Rate Cases, 230 U. S. 352,
230 U. S. 409.
The misgivings of Mr. Justice Bradley were adverted to in
The
Hamilton, 207 U. S. 398, and
held at least insufficient to prevent the admiralty from
recognizing such a state-created right in a proper case, if indeed
they went to any such extent.
La Bourgogne, 210 U. S.
95,
210 U. S.
138.
The statute having been upheld in other respects,
New York
Central R. Co. v. White, 243 U. S. 188, I
should have thought these authorities conclusive. The liability
created by the New York act ends in a money judgment, and the mode
in which the amount is ascertained, or is to be paid, being one
that the state constitutionally might adopt, cannot matter to the
question before us if any liability can be imposed that was not
known to the maritime law. And as such a liability can be imposed
where it was unknown not only to the maritime, but to the common
law, I can see no difference between one otherwise constitutionally
created for death caused by accident and one for death due to
fault. Neither can the statutes limiting the liability of owners
affect the case. Those statutes extend to nonmaritime torts, which,
of course, are the creation of state law.
Richardson
v. Harmon, 222 U.S.
Page 244 U. S. 220
96,
222 U. S. 104.
They are paramount to, but not inconsistent with, the new cause of
action. However, as my opinion stands on grounds that equally would
support a judgment for a maritime tort not ending in death, with
which admiralty courts have begun to deal, I will state the reasons
that satisfy my mind.
No doubt there sometimes has been an air of benevolent gratuity
in the admiralty's attitude about enforcing state laws. But of
course there is no gratuity about it. Courts cannot give or
withhold at pleasure. If the claim is enforced or recognized, it is
because the claim is a right, and if a claim depending upon a state
statute is enforced, it is because the state had constitutional
power to pass the law. Taking it as established that a state has
constitutional power to pass laws giving rights and imposing
liabilities for acts done upon the high seas when there were no
such rights or liabilities before, what is there to hinder its
doing so in the case of a maritime tort? Not the existence of an
inconsistent law emanating from a superior source -- that is, from
the United States. There is no such law. The maritime law is not a
corpus juris -- it is a very limited body of customs and
ordinances of the sea. The nearest to anything of the sort in
question was the rule that a seaman was entitled to recover the
expenses necessary for his cure when the master's negligence caused
his hurt. The maritime law gave him no more.
The Osceola,
189 U. S. 158,
189 U. S. 175.
One may affirm with the sanction of that case that it is an
innovation to allow suits in the admiralty by seamen to recover
damages for personal injuries caused by the negligence of the
master, and to apply the common law principles of tort
Now, however, common law principles have been applied to sustain
a libel by a stevedore
in personam against the master for
personal injuries suffered while loading a ship.
Atlantic
Transport Co. v. Imbrovek, 234 U. S. 52, and
The Osceola recognizes that in some cases, at
Page 244 U. S. 221
least, seamen may have similar relief . From what source do
these new rights come? The earliest case relies upon "the analogies
of the municipal law,"
The Edith Godden, 23 F. 43, 46,
sufficient evidence of the obvious pattern, but inadequate for the
specific origin. I recognize without hesitation that judges do and
must legislate, but they can do so only interstitially; they are
confined from molar to molecular motions. A common law judge could
not say, "I think the doctrine of consideration a bit of historical
nonsense, and shall not enforce it in my court." No more could a
judge, exercising the limited jurisdiction of admiralty, say, "I
think well of the common law rules of master and servant, and
propose to introduce them here
en bloc." Certainly he
could not in that way enlarge the exclusive jurisdiction of the
district courts and cut down the power of the states. If admiralty
adopts common law rules without an act of Congress, it cannot
extend the maritime law as understood by the Constitution. It must
take the rights of the parties from a different authority, just as
it does when it enforces a lien created by a state. The only
authority available is the common law or statutes of a state. For
from the often-repeated statement that there is no common law of
the United States,
Wheaton v.
Peters, 8 Pet. 591,
33 U. S. 658;
Western Union Telegraph Co. v. Call Publishing Co.,
181 U. S. 92,
181 U. S. 101,
and from the principles recognized in
Atlantic Transport Co. v.
Imbrovek, having been unknown to the maritime law, the natural
inference is that, in the silence of Congress, this Court has
believed the very limited law of the sea to be supplemented here,
as in England, by the common law, and that here that means, by the
common law of the state.
Sherlock v. Alling, 93 U. S.
99,
93 U. S. 104.
Taylor v.
Carryl, 20 How. 583,
61 U. S. 598.
So far as I know, the state courts have made this assumption
without criticism or attempt at revision from the beginning to this
day --
e.g., Wilson v. MacKenzie, 7 Hill 95;
Gabrielson v. Waydell, 135 N.Y. 1, 11;
Page 244 U. S. 222
Kalleck v. Deering, 161 Mass. 469.
See Ogle v.
Barnes, 8 T. R. 188;
Nicholson v. Mounsey, 15 East,
384. Even where the admiralty has unquestioned jurisdiction, the
common law may have concurrent authority and the state courts
concurrent power.
Schoonmaker v. Gilmore, 102 U.
S. 118. The invalidity of state attempts to create a
remedy for maritime contracts or torts, parallel to that in the
admiralty, that was established in such cases as
The Moses
Taylor, 4 Wall. 411, and
The Hine
v. Trevor, 4 Wall. 555, is immaterial to the
present point.
The common law is not a brooding omnipresence in the sky, but
the articulate voice of some sovereign or
quasi-sovereign
that can be identified, although some decisions with which I have
disagreed seem to me to have forgotten the fact. It always is the
law of some state, and if the district courts adopt the common law
of torts, as they have shown a tendency to do, they thereby assume
that a law not of maritime origin, and deriving its authority in
that territory only from some particular state of this Union, also
governs maritime torts in that territory, and, if the common law,
the statute law has at least equal force, as the discussion in
The Osceola assumes. On the other hand, the refusal of the
district courts to give remedies coextensive with the common law
would prove no more than that they regarded their jurisdiction as
limited by the ancient lines, not that they doubted that the common
law might and would be enforced in the courts of the states as it
always has been. This Court has recognized that, in some cases,
different principles of liability would be applied as the suit
should happen to be brought in a common law or admiralty court.
Compare The Max Morris, 137 U. S. 1,
with Belden v. Chase, 150 U. S. 674,
150 U. S. 691.
But hitherto it has not been doubted authoritatively, so far as I
know, that even when the admiralty had a rule of its own to which
it adhered, as in
Workman v. New York, 179 U.
S. 552, the state law, common or statute,
Page 244 U. S. 223
would prevail in the courts of the state. Happily such conflicts
are few.
It might be asked why, if the grant of jurisdiction to the
courts of the United States imports a power in Congress to
legislate, the saving of a common law remedy,
i.e., in the
state courts, did not import a like if subordinate power in the
states. But leaving that question on one side, such cases as
Steamboat Co. v.
Chase, 16 Wall. 522;
The Hamilton,
207 U. S. 398, and
Atlantic Transport Co. v. Imbrovek, supra, show that it is
too late to say that the mere silence of Congress excludes the
statute or common law of a state from supplementing the wholly
inadequate maritime law of the time of the Constitution, in the
regulation of personal rights, and I venture to say that it never
has been supposed to do so, or had any such effect.
As to the specter of a lack of uniformity, I content myself with
referring to
The Hamilton, 207 U.
S. 398,
207 U. S. 406.
The difficulty really is not so great as in the case of interstate
carriers by land, which,
"in the absence of federal statute providing a different rule,
are answerable according to the law of the state for nonfeasance or
misfeasance within its limits."
Minnesota Rate Cases, 230 U. S. 352,
230 U. S. 408,
and cases cited. The conclusion that I reach accords with the
considered cases of
Lindstrom v. Mutual Steamship Co., 132
Minn. 328;
Kennerson v. Thames Towboat Co., 89 Conn. 367,
and
North Pacific S.S. Co. v. Industrial Accident
Commission, 163 P. 199, as well as with the New York decision
in this case. 215 N.Y. 514.
MR. JUSTICE PITNEY, dissenting:
While concurring substantially in the dissenting opinion of MR.
JUSTICE Holmes, I deem it proper, in view of the momentous
consequences of the decision, to present some additional
considerations.
Page 244 U. S. 224
This dissent is confined to that part of the prevailing opinion
which holds that the Workmen's Compensation Act of New York, as
applied by the state court to a fatal injury sustained by a
stevedore while engaged in work of a maritime nature upon navigable
water within that state, conflicts with the Constitution of the
United States and the act of Congress conferring admiralty and
maritime jurisdiction in civil cases upon the district courts of
the United States, and is to that extent invalid. Except for the
statute, an action might have been brought in a court of admiralty.
Atlantic Transport Co. v. Imbrovek, 234 U. S.
52,
234 U. S. 62. No
question is raised respecting the jurisdiction of the state court
over the subject matter. But plaintiff in error contends, and the
prevailing opinion holds, that it was a violation of a federal
right for the state court to apply the provisions of the local
statute to a cause of action of maritime origin, because, by the
Constitution of the United States, admiralty jurisdiction was
conferred upon the federal courts.
It should be stated at the outset, that the case involves no
question of penalties imposed by the New York act, but affects
solely the responsibility of the employer to make compensation to
the widow, in accordance with its provisions, which are outlined in
New York Central R. Co. v. White, 243 U.
S. 188,
243 U. S.
192-195.
The argument is that, even in the absence of any act of Congress
prescribing the responsibility of a shipowner to his stevedore, the
general maritime law, as accepted by the federal courts when acting
in the exercise of their admiralty jurisdiction, must be adopted as
the rule of decision by state courts of common law when passing
upon any case that might have been brought in the admiralty, and
that, just as the absence of an act of Congress regulating
interstate commerce in some cases is equivalent to a declaration by
Congress that commerce in that respect shall be free, so nonaction
by Congress amounts to an imperative
Page 244 U. S. 225
limitation upon the power of the states to interpose where
maritime matters are involved.
This view is so entirely unsupported by precedent, and will have
such novel and far-reaching consequences, that it ought not to be
accepted without the most thorough consideration.
Section 2 of Article III of the Constitution reads as
follows:
"The judicial Power shall extend to all cases, in Law and
Equity, arising under this Constitution, the Laws of the United
States, and Treaties made, or which shall be made, under their
Authority; to all cases affecting Ambassadors, other public
Ministers and Consuls; to all cases of admiralty and maritime
Jurisdiction; to Controversies to which the United States shall be
a party; to Controversies between two or more states; between a
state and Citizens of another state; between Citizens of different
states; between Citizens of the same state claiming Lands under
Grants of different states, and between a state, or the Citizens
thereof, and foreign states, Citizens of Subjects."
Acting under the authority of Article I, § 8, which empowers
Congress to make all laws necessary and proper for carrying into
execution the powers vested in the government or in any department
or officer thereof, the first Congress, in the original Judiciary
Act (Act of September 24, 1789, c. 20, § 9, 1 Stat. 73, 77),
conferred upon the federal district courts
"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 saving clause has been preserved in all subsequent
revisions. Rev.Stats. § 563(8), Judicial Code, § 24(3), 36 Stat.
1087, 1091, c. 231.
From the language quoted from the Constitution, read in the
light of the general purpose of that instrument and the
contemporaneous construction found in the Judiciary Act, with
regard also to the mischiefs that called for the
Page 244 U. S. 226
establishment of a national judiciary, and from what I believe
to be the unbroken current of decisions in this Court from that day
until the present, I draw the following conclusions: (1) that the
framers of the Constitution intended to
establish
jurisdiction -- the power to hear and determine controversies
of the various classes specified -- and
not to prescribe
particular codes or systems of law for the decision of those
controversies; (2) that the civil jurisdiction in admiralty was not
intended to be exclusive of the courts of common law, at least not
until Congress should deem it proper so to enact; (3) that, by the
law of England and by the practice of the colonial governments, the
courts of common law, of equity, and of admiralty were controlled
in their decisions by separate, and, in a sense, independent
systems of substantive law, and the constitutional grant of
judicial power in "all cases in law and equity," and in "all cases
of admiralty and maritime jurisdiction," was no more intended (in
the absence of legislation by Congress) to make the rules of
maritime law binding upon the federal courts of common law when
exercising their concurrent jurisdiction than to make the rules of
the common law binding upon the courts of admiralty; (4) that, if
not binding upon the federal courts, it results,
a
fortiori that the rules of maritime law were not intended to
be made binding upon the courts of the states; (5) that it is not
necessary, in order to give full effect to the grant of admiralty
and maritime jurisdiction, to imply that the rules of decision
prevailing in admiralty must be binding upon common law courts
exercising concurrent jurisdiction in civil causes of maritime
origin, and to give such a construction to the Constitution is to
render unconstitutional the saving clause in § 9 of the Judiciary
Act, and also to trench upon the proper powers of the states by
interfering with their control over their water-borne internal
commerce, and (6) that, in the absence of legislation by Congress
abrogating the saving
Page 244 U. S. 227
clause, the states are at liberty to administer their own laws
in their own courts when exercising a jurisdiction concurrent with
that of admiralty, and at liberty to change those laws by
statute.
That the language of § 2 of Art. III of the Constitution speaks
only of establishing jurisdiction, and does not prescribe the mode
in which or the substantive law by which the exercise of that
jurisdiction is to be governed, seems to me entirely plain, and
upon this point I need only refer to the language itself, which I
have quoted.
That this view is in harmony with the general purpose of the
Constitution seems to me equally plain. At this late date, it ought
not to be necessary to repeat that the object of the framers of
that instrument was to lay the foundations of a government, to set
up its framework, and to establish merely the general principles by
which it was to be animated; avoiding, as far as possible, any but
the most fundamental regulations for controlling its operations,
and these usually in the form of restrictions.
Vanhorne v.
Dorrance, 2 Dall. 304,
2 U.S. 308;
Martin v.
Hunter, 1 Wheat. 304,
14 U. S.
326.
The object was to enumerate, rather than to define, the powers
granted.
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 189,
22 U. S. 194;
Passenger
Cases, 7 How. 283,
48 U. S. 549;
Lottery Case, 188 U. S. 321,
188 U. S. 346.
To delineate only the great outlines of the judicial power, leaving
the details to Congress, while providing for the organization of
the legislative department and the mode in which and the
restrictions under which its authority should be exercised.
Rhode Island v.
Massachusetts, 12 Pet. 657,
37 U. S. 721.
The reason for adopting general outlines only was well expressed by
Mr. Chief Justice Marshall in
M'Culloch v.
Maryland, 4 Wheat. 316,
17 U. S.
407:
"A constitution, to contain an accurate detail of all the
subdivisions of which its great powers will admit, and of all the
means by which they may be carried into execution, would partake of
the prolixity of a legal code, and could
Page 244 U. S. 228
scarcely be embraced by the human mind. It would probably never
be understood by the public. Its nature therefore requires that
only its great outlines should be marked, its important objects
designated, and the minor ingredients which compose those objects
be deduced from the nature of the objects themselves. That this
idea was entertained by the framers of the American Constitution is
not only to be inferred from the nature of the instrument, but from
the language."
The adoption of any particular system of substantive law was not
within the purpose of the Constitutional Convention, and the clause
establishing the judicial power was ill adapted to the purpose, had
it existed. So far as they intended to prescribe permanent rules of
substantive or even procedural law in connection with the
establishment of the judicial system, the framers employed express
terms for the purpose, as appears from other provisions of Article
III, including the definition of treason, the character of proof
required, the limitation of the punishment, and the requirement of
a jury trial for this and other crimes.
In a somewhat exhaustive examination of various sources of
information, including Elliot's Debates, Farrand's Records of the
federal Convention, and The federalist, Nos. 80-83, I have been
unable to find anything even remotely suggesting that the judicial
clause was designed to establish the maritime code or any other
system of laws for the determination of controversies in the courts
by it established, much less any suggestion that the maritime code
was to constitute the rule of decision in common law courts, either
federal or state.
Certainly there is nothing in the mere provision establishing
jurisdiction in admiralty and maritime causes to have that effect,
unless the jurisdiction so established was in its nature exclusive.
But, in civil causes, the jurisdiction
Page 244 U. S. 229
was not exclusive by the law of England and of the colonies, and
it was not made an exclusive jurisdiction by the Constitution.
In discussing this point, the distinction between the instance
court and the prize court of admiralty must be observed. It was
held in England that the question of prize or no prize, and other
questions arising out of it, were exclusively cognizable in the
admiralty, because that court took jurisdiction owing to the fact
of possession of a prize of war, and the controversy turned upon
belligerent rights and was determinable by the law of nations, and
not the particular municipal law of any country.
Le Caux v.
Eden (1781), Doug. K.B. 594, 602-613, 99 E.R. 375, 379-385;
Lindo v. Rodney, reported in a note to
Le Caux v.
Eden, 2 Doug. K.B. 613, 99 E.R. 385;
Smart v. Wolff
(1789), 3 T.R. 323, 340,
et seq., 100 E.R. 600;
Lord
Camden v. Home, (1791) 4 T.R. 382, 393,
et seq. But,
of civil actions
in personam, the instance court exercised
a jurisdiction concurrent with that of the courts of common law. As
Lord Mansfield said in
Lindo v. Rodney, Doug. 614:
"A thing being done upon the high sea don't exclude the
jurisdiction of the court of common law. For seizing, stopping, or
taking a ship, upon the high sea,
not as prize, an action
will lie; but for taking as prize, no action will lie. The nature
of the question excludes; not the locality."
And again, referring to the effect of certain statutes (p.
614a):
"The taking a ship upon the high sea is triable at law to repair
the plaintiff in damages; but a taking on the high sea as
prize is not triable at law to repair the plaintiff in
damages. The nature of the ground of the action --
prize or no
prize -- not only authorizes the prize court, but excludes the
common law. These statutes don't exclude the common law in any
case, and they confine the admiralty by the locality of the thing
done, which is the cause of action. It must be done upon the high
sea."
So, with respect to actions ex contractu, Mr. Justice
Page 244 U. S. 230
Blackstone says, 3 Bl.Com. 107:
"It is no uncommon thing for a plaintiff to feign that a
contract, really made at sea, was made at the royal exchange, or
other inland place, in order to draw the cognizance of the suit
from the courts of admiralty to those of Westminster Hall."
The concurrent jurisdiction of the courts of common law was
affirmed by Dr. Browne, the first edition of whose work was
published in 1797-1799. 2 Browne's Civ. & Adm.Law (1st Am. ed.)
112, 115.
The declaration of Mr. Justice Nelson, speaking for this Court
in
New Jersey Steam Nav. Co. v.
Merchants' Bank, 6 How. 344,
47 U. S. 390,
that the lodging by the Constitution of the entire admiralty power
in the federal judiciary, and the ninth section of the Judiciary
Act, with its saving of common law remedies, left the concurrent
power of the courts of common law and of admiralty where it stood
at common law, was not a chance remark. It has been so ruled in
many other cases, to which I shall refer hereafter. The principles
and history of the common law were well known to the framers of the
Constitution and the members of the first Congress; it was from
that system that their terminology was derived, and the provisions
of the Constitution and contemporaneous legislation must be
interpreted accordingly.
The statement that there is no common law of the United States
(
Wheaton v.
Peters, 8 Pet. 591,
33 U. S. 658;
Smith v. Alabama, 124 U. S. 465,
124 U. S. 478)
is true only in the sense that the Constitution neither of its own
force imposed, nor authorized Congress to impose, the common law or
any other general body of laws upon the several states for the
regulation of their internal affairs. As was pointed out in
Smith v. Alabama (p.
124 U. S.
478):
"There is, however, one clear exception to the statement that
there is no national common law. The interpretation of the
Constitution of the United States is necessarily influenced by the
fact that its provisions are framed in the language of the
English
Page 244 U. S. 231
common law, and are to be read in the light of its history."
As was well expressed by Shiras, District Judge, in
Murray
v. Chicago & N.W. Ry. Co., 62 F. 24, 31:
"From them [citations of the decisions of this Court], it
appears beyond question that the Constitution, the Judiciary Act of
1789, and all subsequent statutes upon the same subject are based
upon the general principles of the common law, and that, to a large
extent, the legislative and judicial action of the government would
be without support and without meaning if they cannot be
interpreted in the light of the common law. When the Constitution
was adopted, it was not the design of the framers thereof to create
any new systems of general law, nor to supplant those already in
existence. At that time, there were in existence and in force in
the colonies or states, and among the people thereof, the law of
nations, the law admiralty and maritime, the common law, including
commercial law, and the system of equity. Upon these foundations
the Constitution was erected. The problem sought to be solved was
not whether the Constitution should create or enact a law of
nations, of admiralty, of equity, or the like, but rather how
should the executive, legislative, and judicial powers and duties
based upon these systems, and necessary for the proper development
and enforcement thereof, be apportioned between the national and
state governments."
And it is not to be supposed that the framers of the
Constitution, familiar with the institutions and the principles of
the common law, by which the admiralty jurisdiction was allowed on
sufferance, and with a degree of jealousy born of the fact that the
courts of admiralty were not courts of record, that they followed
the practice of the civil law, allowed no trial by jury, and
administered an exotic system of laws (3 Black.Com. 69, 86-87,
106-108) -- it is not to be supposed, I say, that the framers of
the
Page 244 U. S. 232
Constitution, in granting judicial power over cases of admiralty
and maritime jurisdiction, along with like power over all cases in
law and equity arising under the laws of the United States,
intended to exclude common law courts, state or national, from any
part of their concurrent jurisdiction in cases of maritime origin,
or to deprive them of the judicial power, theretofore existing, to
decide such cases according to the rules of the common law.
It is matter of familiar history that one of the chief
weaknesses of the Confederation was in the absence of a judicial
establishment possessed of general authority. Except that the
Continental Congress, as an incident of the war power, was
authorized to establish rules respecting captures and the
disposition of prizes of war, and to appoint courts for the trial
of piracies and felonies committed on the high sea, and for
determining appeals in cases of capture, and except that the
Congress itself, through commissioners, was to exercise
jurisdiction in disputes between the states and in controversies
respecting conflicting land grants of different states, there was
no provision in the Articles of Confederation for establishing a
judicial system under the authority of the general government.
The result was that not only private parties, in cases arising
out of the laws of the Congress, but the United States themselves,
were obliged to resort to the courts of the states for the
enforcement of their rights. Many cases of this character are
reported, some even antedating the Confederation.
Respublica
v. Sweers (1779), 1 Dall. 41;
Respublica v.
Powell (1780), 1 Dall. 47;
Respublica
v. De Longchamps (1784), 1 Dall. 111. Even treason
was punished in state courts and under state laws.
See
cases of
Molder, Malin,
Carlisle, and
Roberts (1778) 1 Dall.
33-39.
Before the Revolution, courts of admiralty jurisdiction were a
part of the judicial systems of the several colonies.
Page 244 U. S. 233
Waring v.
Clarke, 5 How. 441,
46 U. S.
454-456, Benedict, Admiralty, §§ 118-165. Upon the
outbreak of the war, questions of prize law became acute, and the
colonial Congress, by resolutions of November 25, 1775, passed in
the exercise of the war power (
3
U. S. 3 Dall. 54, 80 [argument of counsel -- omitted]),
made appropriate recommendations for the treatment of prizes of
war, but remitted the jurisdiction over such questions to the
courts of the several colonies, reserving to itself only appellate
authority. This system continued until the year 1780 (after the
submission of the Articles of Confederation, but before their final
ratification), when the Congress established a court for the
hearing of appeals from the state courts of admiralty in cases of
capture. The opinions of this Court are reported in
2 U.
S. 2 Dall. 1-42, and numerous cases decided without
opinion, as well as some of those decided by committees of the
Congress prior to the establishment of the court, are referred to
in the late Bancroft Davis' "Federal Courts Before the
Constitution," 131 U.S., Appendix, xix.-xlix. The weak point of
this system was the want of power in the central government to
enforce the judgment of the appellate tribunal when it chanced to
reverse the decree of a state court. There were some curious cases
of conflicting jurisdiction, illustrated by
Doane v.
Penhallow (1787), 1 Dall. 218,
1 U.S. 221;
Penhallow v.
Doane (1795), 3 Dall. 54, 79 [argument of counsel
-- omitted], 86 [argument of counsel -- omitted], and
United States v.
Peters (1809), 5 Cranch 115,
9 U. S.
135-137.
It was under the influence of numerous experiences of the
inefficiency of a general government unendowed with judicial
authority that the Constitutional Convention assembled in the year
1787. The fundamental need, to which the Convention addressed
itself in framing the judiciary article, was to set up a judicial
power covering all subjects of national concern. There was no
greater need to establish jurisdiction over admiralty and maritime
causes than over controversies arising under the Constitution and
laws of the Union. There was no purpose to
Page 244 U. S. 234
establish a system of substantive law in any of the several
classes of cases included within the grant of judicial power. The
language employed makes it plain that, with the few express
exceptions already noted (treason, etc.), the rules of decision
were to be sought elsewhere. The entire absence of a purpose to
establish a maritime code is manifest not only from the omission of
any reference to the laws of Oleron, the laws of Wisbuy, or any
other of the maritime codes recognized by the nations of Europe,
but further from the fact that the colonies differed among
themselves as to maritime law and admiralty practice, and that
their system in general differed from that which was administered
in England. The evident purpose, in this as in the other classes of
controversy, was that the courts of admiralty should administer
justice according to the previous course and practice of such
courts in the colonies, just as the courts of common law and equity
jurisdiction were to proceed according to the several systems of
substantive law appropriate to courts of their respective kinds,
subject, of course, to the power of Congress to change the rules of
law respecting matters lying within its appropriate sphere of
action.
Undoubtedly the framers of the Constitution were advised of the
ancient controversy in England between the common law courts and
the courts of admiralty respecting the extent of the jurisdiction
of the latter. They were aware of the dual function of the
admiralty courts as courts of instance and as prize courts, and of
the established rule that, in civil causes, the jurisdiction of the
instance court was concurrent with that of the courts of common
law. They must have known that, whatever question had existed as to
the territorial limits of the jurisdiction of the admiralty, it
never had been questioned that, in suits for mariners' wages and
suits upon policies of marine insurance, and in other actions
ex contractu having a maritime character, and also in
actions of tort
Page 244 U. S. 235
arising upon the sea, the courts of common law exercised, and
long had exercised, concurrent jurisdiction. Whatever early doubts
may have existed had been based not upon any inherent incapacity of
the common law courts to deal with the subject matters, but upon
the ancient theory of the venue, and disappeared with the
recognition of the fictitious venue.
The grant of judicial power in cases of admiralty and maritime
jurisdiction never has been construed as excluding the jurisdiction
of the courts of common law over civil causes that, before the
Constitution, were subject to the concurrent jurisdiction of the
courts of admiralty and the common law courts. The first Congress
did not so construe it, as the saving clause in the Judiciary Act
conclusively shows. And, assuming that the states, in the absence
of legislation by Congress, would be without power over the subject
matter, this saving clause, still maintained upon the statute book,
is a sufficient grant of power. Jurisdiction in prize cases, as has
been shown, springs out of the possession of a prize of war. Civil
proceedings
in rem, to be mentioned hereafter, are based
upon the maritime lien, where possession in the claimant is neither
necessary nor usual as is the case with common law liens. With
these exceptions, both resting upon grounds peculiar to the forum
of the admiralty, concurrent jurisdiction of the courts of common
law in civil cases of maritime origin always has been recognized by
this Court.
New Jersey Steam Navigation
Co. v. Merchants' Bank, 6 How. 344,
47 U. S. 390;
The Genesee Chief v.
Fitzhugh, 12 How. 443,
53 U. S. 458;
The Belfast, 7
Wall. 624,
74 U. S.
644-645;
Insurance Co. v.
Dunham, 11 Wall. 1,
78 U. S. 32;
Leon v.
Galceran, 11 Wall. 185,
78 U. S.
187-188;
Steamboat Co. v.
Chase, 16 Wall. 522,
83 U. S. 533;
Schoonmaker v. Gilmore, 102 U. S. 118;
Manchester v. Massachusetts, 139 U.
S. 240,
139 U. S.
262.
Nor is the reservation of a common law remedy limited to such
causes of action as were known to the common law
Page 244 U. S. 236
at the time of the passage of the Judiciary Act. It includes
statutory changes.
Steamboat Co. v.
Chase, 16 Wall. 522,
83 U. S.
533-534;
Knapp, S. & Co. v. McCaffrey,
177 U. S. 638,
177 U. S. 644.
Those remedies which were held not to be common law remedies,
within the saving clause, in
The Moses
Taylor, 4 Wall. 411,
71 U. S. 427,
71 U. S. 431;
The Hine v.
Trevor, 4 Wall. 555,
71 U. S.
571-572;
The Belfast, 7
Wall. 624,
74 U. S. 644;
Steamboat Co. v.
Chase, 16 Wall. 522,
83 U. S. 533,
and
The Glide, 167 U. S. 606,
167 U. S. 623,
provided for imposing a lien on the ship by proceedings in the
nature of admiralty process
in rem, and it was for this
reason only that they were held to trench upon the exclusive
admiralty jurisdiction of the courts of the United States. The
distinction was noticed in
Leon v.
Galceran, 11 Wall. 185,
78 U. S. 189,
and again in
Knapp, Stout & Co. v. McCaffrey,
177 U. S. 638,
177 U. S. 642.
In the latter case, it was pointed out (p.
177 U. S. 644)
that the reservation of a common law remedy where the common law is
competent to give it was not confined to common law actions, but
included remedies without action, such as a distress for rent or
for the trespass of cattle; a bailee's remedy by detaining personal
property until paid for work done upon it or for expenses incurred
in keeping it; the lien of an innkeeper upon the goods of his
guests, and that of a carrier upon things carried; the remedy of a
nuisance by abatement, and others. The most recent definition of
the rule laid down in
The Hine v. Trevor and other cases
of that class is in
Rounds v. Cloverport Foundry & Machine
Co., 237 U. S. 303.
I have endeavored to show, from a consideration of the
phraseology of the constitutional grant of jurisdiction and the act
of the first Congress, passed to give effect to it, from the
history in the light of which the language of those instruments is
to be interpreted, and from the uniform course of decision in this
Court, from the earliest time until the present, these
propositions: first, that the grant of jurisdiction to the
admiralty was not intended to be exclusive
Page 244 U. S. 237
of the concurrent jurisdiction of the common law courts
theretofore recognized; and, secondly, that neither the
Constitution nor the Judiciary Act was intended to prescribe a
system of substantive law to govern the several courts in the
exercise of their jurisdiction, much less to make the rules of
decision, prevalent in any one court, obligatory upon others,
exercising a distinct jurisdiction, or binding upon the courts of
the states when acting within the bounds of their respective
jurisdictions. In fact, while courts of admiralty undoubtedly were
expected to administer justice according to the law of nations and
the customs of the sea, they were left at liberty to lay hold of
common law principles where these were suitable to their purpose,
and even of applicable state statutes, just as courts of common law
were at liberty to adopt the rules of maritime law as guides in the
proper performance of their duties. This eclectic method had been
practised by the courts of each jurisdiction prior to the
Constitution, and there is nothing in that instrument to constrain
them to abandon it.
The decisions of this Court show that the courts of admiralty in
many matters are bound by local law. The doubt expressed by Mr.
Justice Bradley in
Butler v. Boston & Savannah Steamship
Co., 130 U. S. 527,
130 U. S. 558,
as to whether a state law could have force to create a liability in
a maritime case at all, was laid aside in
The Corsair,
145 U. S. 335, and
definitely set at rest in
The Hamilton, 207 U.
S. 398,
207 U. S. 404.
The fact is that, long before
Butler v. Boston & Savannah
Steamship Co., it had been recognized that state laws might
not merely create a liability in a maritime case, but impose a duty
upon the admiralty courts of the United States to enforce such
liability. Thus, while it was recognized that, by the general
maritime law, a foreign ship, or a ship in a port of a state to
which she did not belong, was subject to a suit
in rem in
the admiralty for repairs or necessaries, the case of a ship in
a
Page 244 U. S. 238
port of her home state was governed by the municipal law of the
state, and no lien for repairs or necessaries would be implied
unless recognized by that law.
The General
Smith (1819), 4 Wheat. 438,
17 U. S. 443;
The
Lottawanna, 21 Wall. 558,
88 U. S. 571,
88 U. S. 578.
Conversely, it was held in the case of
Peyroux v.
Howard (1833), 7 Pet. 324,
32 U. S. 341,
that a libel
in rem in the admiralty might be maintained
against a vessel for repairs done in her home port where a local
statute gave a lien in such a case. To the same effect,
The J.
E. Rumbell, 148 U. S. 1,
148 U. S. 12. As
elsewhere pointed out herein, where a state statute conferred a
lien operative strictly
in rem, it was uniformly held not
enforceable in the state courts, but only because it trenched upon
the peculiar jurisdiction of the admiralty, and therefore was not a
"common law remedy" within the saving clause of the Judiciary Act
of 1789.
The Moses
Taylor, 4 Wall. 411,
71 U. S. 427,
71 U. S. 431;
The Hine v.
Trevor, 4 Wall. 555,
71 U. S.
571-572;
The Belfast, 7
Wall. 624,
74 U. S. 644;
Steamboat Co. v.
Chase, 16 Wall. 522,
83 U. S. 533;
The Glide, 167 U. S. 606,
167 U. S.
623.
Under these decisions and others to the same effect, the
substance of the matter is that a state may, by statute, create a
right to a lien upon a domestic vessel, in the nature of a maritime
lien, which may be enforced in admiralty in the courts of the
United States, but a state may not confer upon its own courts
jurisdiction to enforce such a lien, because the federal
jurisdiction in admiralty is exclusive.
The J. E. Rumbell,
148 U. S. 1,
148 U. S. 12, and
cases cited. But a lien imposed not upon the
rem, but upon
defendant's interest in the
res, may be made enforceable
in the state courts.
Rounds v. Cloverport Foundry & Machine
Co., 237 U. S. 303,
237 U. S. 307,
and cases cited.
The Roanoke, 189 U. S. 185,
189 U. S. 194,
189 U. S. 198,
while approving
The General Smith, Peyroux v. Howard, The
Lottawanna, and
The J. E. Rumbell, supra, gave a
negative answer to the very different question whether a state
could, without encroaching upon the federal jurisdiction, create a
lien
Page 244 U. S. 239
against foreign vessels to be enforced in the courts of the
United States.
In the present case, there is no question of lien, and, I
repeat, no question concerning the jurisdiction of the state court;
the crucial inquiry is, to what law was it bound to conform in
rendering its decision? Or, rather, the question is the narrower
one: do the Constitution and laws of the United States prevent a
state court of common law from applying the state statutes in an
action
in personam arising upon navigable water within the
state, there being no act of Congress applicable to the
controversy? I confess that, until this case and kindred cases
submitted at the same time were brought here, I never had supposed
that it was open to the least doubt that the reservation to suitors
of the right of a common law remedy had the effect of reserving at
the same time the right to have their common law actions determined
according to the rules of the common law, or state statutes
modifying those rules. This Court repeatedly has so declared, at
the same time recognizing fully that the point involves the
question of state power. In
United States v.
Bevans, 3 Wheat. 336,
16 U. S. 388,
the Court, by Mr. Chief Justice Marshall, said:
"Can the cession of all cases of admiralty and maritime
jurisdiction be construed into a cession of the waters on which
those cases may arise? This is a question on which the Court is
incapable of feeling a doubt. The article which describes the
judicial power of the United States is not intended for the cession
of territory or of general jurisdiction. It is obviously designed
for other purposes. . . . In describing the judicial power, the
framers of our Constitution had not in view any cession of
territory, or, which is essentially the same, of general
jurisdiction. It is not questioned that whatever may be necessary
to the full and unlimited exercise of admiralty and maritime
jurisdiction is in the government of the Union. Congress may pass
all laws which are necessary and proper for giving
Page 244 U. S. 240
the most complete effect to this power. Still, the general
jurisdiction over the place, subject to this grant of power,
adheres to the territory, as a portion of the sovereignty not yet
given away."
In
Steamboat Co. v.
Chase, 16 Wall. 522,
83 U. S. 533,
the Court, by Mr. Justice Clifford, said (p.
83 U. S.
534):
"State statutes, if applicable to the case, constitute the rules
of decision in common law actions, in the circuit courts as well as
in the state courts."
In
Atlee v. Northwestern Union
Packet Co., 21 Wall. 389,
88 U. S.
395-396, the Court, by Mr. Justice Miller, said:
"The plaintiff has elected to bring his suit in an admiralty
court, which has jurisdiction of the case, notwithstanding the
concurrent right to sue at law. In this Court, the course of
proceeding is in many respects different, and the rules of decision
are different. . . . An important difference as regards this case
is the rule for estimating the damages. In the common law court,
the defendant must pay all the damages or none. If there has been
on the part of plaintiffs such carelessness or want of skill as the
common law would esteem to be contributory negligence, they can
recover nothing. By the rule of the admiralty court, where there
has been such contributory negligence, or, in other words, when
both have been in fault, the entire damages resulting from the
collision must be equally divided between the parties. . . . Each
court has its own set of rules for determining these questions,
which may be, in some respects, the same, but in others vary
materially."
And see The Max Morris, 137 U. S.
1,
137 U. S. 10;
Belden v. Chase, 150 U. S. 674,
150 U. S. 691;
Benedict, Admiralty, § 201.
In the prevailing opinion, great stress is laid upon certain
expressions quoted from
The
Lottawanna, 21 Wall. 558,
88 U. S. 574;
but it seems to me they have been misunderstood, because read
without regard to context and subject matter. That was an admiralty
appeal, and involved the question whether, by the general maritime
law, as accepted in the United States, there was an implied lien
for necessaries
Page 244 U. S. 241
furnished to a vessel in her home port, where no such lien was
recognized by the municipal law of the state. In the course of the
discussion, the Court, by Mr. Justice Bradley, said:
"That we have a maritime law of our own, operative throughout
the United States, cannot be doubted. The general system of
maritime law which was familiar to the lawyers and statesmen of the
country when the Constitution was adopted was most certainly
intended and referred to when it was declared in that instrument
that the judicial power of the United States shall extend 'to all
cases of admiralty and maritime jurisdiction.' But by what
criterion are we to ascertain the precise limits of the law thus
adopted?
The Constitution does not define it. It does not
declare whether it was intended to embrace the entire maritime law
as expounded in the treatises, or only the limited and restricted
system which was received in England, or lastly, such modification
of both of these as was accepted and recognized as law in this
country.
Nor does the Constitution attempt to draw the boundary
line between maritime law and local law; nor does it lay down any
criterion for ascertaining that boundary. It assumes that the
meaning of the phrase 'admiralty and maritime jurisdiction' is well
understood. It treats this matter as it does the cognate ones of
common law and equity, when it speaks of 'cases in law and equity,'
or of 'suits at common law,'
without defining those terms,
assuming them to be known and understood."
In this language there is the clearest recognition that the
Constitution, in establishing and distributing the judicial power,
did not intend to define substantive law, or to make the rules of
decision in one jurisdiction binding
proprio vigore in
tribunals exercising another jurisdiction. The courts of common law
were to administer justice according to the common law, the courts
of equity according to the principles of equity, and the courts of
admiralty and maritime jurisdiction according to the maritime
law.
Page 244 U. S. 242
The expression on page
88 U. S. 575
respecting the uniform operation of the maritime law was predicated
only of the operation of that law as administered in the courts of
admiralty, for it is not to be believed that there was any purpose
to overrule
Atlee v. Northwestern Union
Packet Co., 21 Wall. 389, 395, decided at the same
term and only about two months before
The Lottawanna by a
unanimous court, including Mr. Justice Bradley himself, in which it
was held that, where there was concurrent jurisdiction in the
courts of common law and the courts of admiralty, each court was at
liberty to adopt its own rules of decision. Moreover, the principal
question at issue in
The Lottawanna was whether the case
of
The General
Smith, 4 Wheat. 438, should be overruled, in which
it had been held that, in the absence of state legislation imposing
the lien, a ship was not subject to a libel
in rem in the
admiralty for repairs furnished in her home port. The general
expressions referred to relate to that state of the law -- the
absence of state legislation, as well as of legislation by Congress
-- and, upon this, the decision in
The General Smith was
upheld (p.
88 U. S. 578).
But in proceeding to discuss the subordinate question whether there
was a lien under the state statute, it was held (p.
88 U. S.
580):
"It seems to be settled in our jurisprudence that, so long as
Congress does not interpose to regulate the subject, the rights of
materialmen furnishing necessaries to a vessel in her home port may
be regulated in each state by state legislation."
And again (p.
88 U. S.
581):
"Whatever may have been the origin of the practice, and whether
or not it was based on the soundest principles, it became firmly
settled, and it is now too late to question its validity. . . . It
would undoubtedly be far more satisfactory to have a uniform law
regulating such liens, but, until such a law be adopted (supposing
Congress to have the power), the authority of the states to
legislate on the subject seems to be conceded by the uniform course
of decisions. "
Page 244 U. S. 243
Again, in
Workman v. New York, 179 U.
S. 552, which, like
The Lottawanna, was a
proceeding in admiralty, the court, in quoting the declarations
contained in that case respecting the general operation of the
maritime law throughout the navigable waters of the United States,
was dealing only with its application in the courts of admiralty.
This is plain from what was said as a preface to the discussion (p.
179 U. S.
557):
"In examining the first question -- that is, whether the local
law of New York must prevail, though in conflict with the maritime
law, it must be borne in mind that the issue is not -- as was the
case in
Detroit v. Osborne (1890)
135 U. S.
492 -- whether the local law governs as to a controversy
arising in the courts of common law or of equity of the United
States, but does the local law, if in conflict with the maritime
law, control a court of admiralty of the United States in the
administration of maritime rights and duties, although judicial
power with respect to such subjects has been expressly conferred by
the Constitution (Art. III, § 2) upon the courts of the United
States."
In the argument of the present case and companion cases,
emphasis was laid upon the importance of uniformity in applying and
enforcing the rules of admiralty and maritime law, because of their
effect upon interstate and foreign commerce. This, in my judgment,
is a matter to be determined by Congress. Concurrent jurisdiction
and optional remedies in courts governed by different systems of
law were familiar to the framers of the Constitution, as they were
to English-speaking peoples generally. The judicial clause itself
plainly contemplated a jurisdiction concurrent with that of the
state courts in other controversies. In such a case, the option of
choosing the jurisdiction is given primarily for the benefit of
suitors, not of defendants. For extending it to defendants, removal
proceedings are the appropriate means.
Certainly there is no greater need for uniformity of
Page 244 U. S. 244
adjudication in cases such as the present than in cases arising
on land and affecting the liability of interstate carriers to their
employees. And, although the Constitution contains an express grant
to Congress of the power to regulate interstate and foreign
commerce, nevertheless, until Congress had acted, the
responsibility of interstate carriers to their employees for
injuries arising in interstate commerce was controlled by the laws
of the states. This was because the subject was within the police
power, and the divergent exercise of that power by the states did
not regulate, but only incidentally affected, commerce among the
states.
Sherlock v. Alling, 93 U. S.
99,
93 U. S. 103;
Second Employers' Liability Cases, 223 U. S.
1,
223 U. S. 54. It
required an act of Congress (Act of April 22, 1908, 35 Stat. 65, c.
149) to impose a uniform measure of responsibility upon the
carriers in such cases. So, it required an act of Congress (the
so-called Carmack Amendment to the Hepburn Act of June 29, 1906, 34
Stat. 584, 595, c. 3591) to impose a uniform rule of liability upon
rail carriers for losses of merchandise carried in interstate
commerce.
Adams Exp. Co. v. Croninger, 226 U.
S. 491,
226 U. S. 504.
In a great number and variety of cases, state laws and policies
incidentally affecting interstate carriers in their commercial
operations have been sustained by this Court, in the absence of
conflicting legislation by Congress. Among them are: laws requiring
locomotive engineers to be examined and licensed by the state
authorities,
Smith v. Alabama, 124 U.
S. 465,
124 U. S. 482;
requiring such engineers to be examined for defective eyesight
(
Nashville, C. & St.L. R. Co. v. Alabama, 128 U. S.
96,
128 U. S. 100);
requiring telegraph companies to receive despatches and transmit
and delivery them diligently,
Western Union Telegraph Co. v.
James, 162 U. S. 650;
forbidding the running of freight trains on Sunday,
Hennington
v. Georgia, 163 U. S. 299,
163 U. S. 304,
163 U. S. 308;
regulating the heating of passenger cars,
New York,
New Haven & Hartford R. Co. v. New York, 165
U.S.
Page 244 U. S. 245
628; prohibiting a railroad company from obtaining by contract
an exemption from the liability which would have existed had no
contract been made,
Chicago, Milwaukee & St. Paul Ry. Co.
v. Solan, 169 U. S. 133,
169 U. S.
136-137; a like result arising from rules of law
enforced in the state courts in the absence of statute
(
Pennsylvania R. Co. v. Hughes, 191 U.
S. 477,
191 U. S. 488,
191 U. S.
491); statutes prohibiting the transportation of
diseased cattle in interstate commerce,
Missouri, Kansas &
Texas Ry. Co. v. Haber, 169 U. S. 613,
169 U. S. 630,
169 U. S. 635;
Reid v. Colorado, 187 U. S. 137,
187 U. S. 147,
187 U. S. 151;
statutes requiring the prompt settlement of claims for loss or
damage to freight, applied incidentally to interstate commerce,
Atlantic Coast Line R. Co. v. Mazursky, 216 U.
S. 122; even since the passage of the Carmack Amendment,
Missouri, Kansas & Texas Ry. Co. v. Harris,
234 U. S. 412,
234 U. S. 417,
234 U. S. 420;
statutes regulating the character of headlights used on locomotives
employed in interstate commerce,
Atlantic Coast Line R. Co. v.
Georgia, 234 U. S. 280;
Vandalia R. Co. v. Public Service Commission, 242 U.
S. 255. All these cases affected the responsibility of
interstate carriers. Until now, Congress has passed no act
concerning their responsibility for personal injuries sustained by
passengers or strangers, or for deaths resulting from such
injuries, so that these matters still remain subject to the
regulation of the several states. We have held recently that even
the anti-pass provision of the Hepburn Act (34 Stat. 584, 585, c.
3591, § 1) does not deprive a party who accepts gratuitous carriage
in interstate commerce with the consent of the carrier, in actual
but unintentional violation of the prohibition of the act, of the
benefit and protection of the law of the state imposing upon the
carrier a duty to care for his safety,
Southern P. Co. v.
Schuyler, 227 U. S. 601,
227 U. S.
612.
In the very realm of navigation, the authority of the states to
establish regulations effective within their own borders, in the
absence of exclusive legislation by Congress,
Page 244 U. S. 246
has been recognized from the beginning of our government under
the Constitution. As to pilotage regulations, it was recognized by
the first Congress (Act of August 7, 1789, chap. 9, § 4, 1 Stat.
53, 54), and this Court, in many decisions, has sustained local
regulations of that character.
Cooley v. Board of
Wardens, 12 How. 299,
53 U. S. 320;
Steamship Co. v.
Joliffe, 2 Wall. 450,
69 U. S. 459;
Ex Parte
McNiel, 13 Wall. 236,
80 U. S. 241;
Wilson v. McNamee, 102 U. S. 572;
Olsen v. Smith, 195 U. S. 332,
195 U. S. 341;
Anderson v. Pacific Coast S.S. Co., 225 U.
S. 187,
225 U. S.
195.
It is settled that a state, in the absence of conflicting
legislation by Congress, may construct dams and bridges across
navigable streams within its limits, notwithstanding an
interference with accustomed navigation may result.
Wilson v. Black Bird Creek
Marsh Co., 2 Pet. 245,
27 U. S. 252;
Gilman v.
Philadelphia, 3 Wall. 713;
Pound v. Turck,
95 U. S. 459;
Escanaba Co. v. Chicago, 107 U. S. 678,
107 U. S. 683;
Cardwell v. American River Bridge Co., 113 U.
S. 205,
113 U. S. 208;
Hamilton v. Vicksburg, Shreveport & Pacific Railroad,
119 U. S. 280;
Willamette Iron Bridge Co. v. Hatch, 125 U. S.
1,
125 U. S. 8;
Lake Shore & Michigan Southern Ry. Co. v. Ohio,
165 U. S. 365;
Manigault v. Springs, 199 U. S. 473,
199 U. S.
478.
So, as to harbor improvements,
Mobile County v.
Kimball, 102 U. S. 691,
102 U. S. 697;
improvements and obstructions to navigation,
Huse v.
Glover, 119 U. S. 543,
119 U. S. 548;
Leovy v. United States, 177 U. S. 621,
177 U. S. 625;
Cummings v. Chicago, 188 U. S. 410,
188 U. S. 427;
inspection and quarantine laws,
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 203;
wharfage charges,
Packet Co. v. Keokuk, 95 U. S.
80;
Packet Co. v. Catlettsburg, 105 U.
S. 559,
105 U. S. 563;
Transportation Co. v. Parkersburg, 107 U.
S. 691,
107 U. S. 702;
Ouachita Packet Co. v. Aiken, 121 U.
S. 444,
121 U. S. 447;
tolls for the use of an improved waterway,
Sands v. Manistee
River Improvement Co., 123 U. S. 288,
123 U. S.
295.
So of provisions fixing the tolls for transportation upon an
interstate ferry,
Port Richmond &c. Ferry Co. v. Hudson
County, 234 U. S. 317,
234 U. S. 331,
or upon vessels plying between
Page 244 U. S. 247
two ports located within the same state,
Wilmington
Transportation Co. v. California Railroad Commission,
236 U. S. 151,
236 U. S.
156.
In each of these cases except the last, which related to
intrastate transport, the state regulation had an incidental effect
upon the very conduct of navigation in interstate or foreign
commerce. If in such cases the states possess the power of
regulation in the absence of inconsistent action by Congress, much
more clearly do they possess that power where Congress is silent
with respect to a liability which arises but casually, through the
accidental injury or death of an employee engaged in a maritime
occupation.
Indeed, with respect to injuries that result in death, it
already is settled that, although the general maritime law, like
the common law, afforded no civil remedy for death by wrongful act
(
The Harrisburg, 119 U. S. 199;
The Alaska, 130 U. S. 201,
130 U. S.
209), yet a right of action created by statute is
enforceable in a state court although the tort was committed upon
navigable water (
Steamboat Co. v.
Chase, 16 Wall. 522,
83 U. S. 533;
Sherlock v. Alling, 93 U. S. 99,
93 U. S. 104),
and the liability arising out of a state statute in such a case
will be recognized and enforced in the admiralty (
The
Hamilton, 207 U. S. 398),
although not by proceeding
in rem unless the statute
expressly creates a lien (
The Corsair, 145 U.
S. 335,
145 U. S.
347).
In
Sherlock v. Alling, supra, which was an action in a
state court and based upon a state statute to recover damages for a
death by wrongful act occurring in interstate navigation, it was
contended that the statute could not be applied to cases where the
injury was caused by a marine tort without interfering with the
exclusive regulation of commerce vested in Congress. The Court,
after declaring that any regulation by Congress, or the liability
for its infringement, would be exclusive of state authority,
proceeded to say, by Mr. Justice Field (93 U.S.
93 U. S.
104):
"But with reference to a great variety of matters touching
the
Page 244 U. S. 248
rights and liabilities of persons engaged in commerce, either as
owners or navigators of vessels, the laws of Congress are silent,
and the laws of the state govern. The rules for the acquisition of
property by persons engaged in navigation, and for its transfer and
descent, are, with some exceptions, those prescribed by the state
to which the vessels belong, and it may be said generally that the
legislation of a state not directed against commerce or any of its
regulations, but relating to the rights, duties, and liabilities of
citizens, and only indirectly and remotely affecting the operations
of commerce, is of obligatory force upon citizens within its
territorial jurisdiction, whether on land or water or engaged in
commerce, foreign or interstate, or in any other pursuit. In our
judgment, the statute of Indiana falls under this class. Until
Congress therefore makes some regulation touching the liability of
parties for marine torts resulting in the death of the persons
injured, we are of opinion that the statute of Indiana
applies,"
etc.
I deem
The Hamilton, supra, to be a controlling
authority upon the question now presented. It was there held not
only that the constitutional grant of admiralty jurisdiction,
followed and construed by the Judiciary Act of 1789, leaves open
the common law jurisdiction of the state courts over torts
committed at sea, but also that it leaves the states at liberty to
change the law respecting such torts by legislation, as by a
statute creating a liability for death by wrongful act, which was
the particular legislation there in question.
To what extent uniformity of decision should result from the
grant of jurisdiction to the courts of the United States concurrent
with that of the state courts is a subject that repeatedly has been
under consideration in this Court, but it never has been held that
the jurisdictional grant required state courts to conform their
decisions to those of the United States courts. The doctrine
clearly
Page 244 U. S. 249
deducible from the cases is that, in matters of commercial law
and general jurisprudence not subject to the authority of Congress,
or where Congress has not exercised its authority, and in the
absence of state legislation, the federal courts will exercise an
independent judgment and reach a conclusion upon considerations of
right and justice generally applicable, the federal jurisdiction
having been established for the very purpose of avoiding the
influence of local opinion; but that, where the state has
legislated, its will, thus declared, is binding, even upon the
federal courts, if it be not inconsistent with the expressed will
of Congress respecting a matter that is within its constitutional
power. The doctrine concedes as much independence to the courts of
the states as it reserves for the courts of the Union.
Burgess
v. Seligman, 107 U. S. 20,
107 U. S. 33-34;
East Alabama Ry. Co. v. Doe, 114 U.
S. 340,
114 U. S. 353;
Gibson v. Lyon, 115 U. S. 439,
115 U. S. 446;
Anderson v. Santa Anna, 116 U. S. 356,
116 U. S. 362;
Baltimore & Ohio R. Co. v. Baugh, 149 U.
S. 368,
149 U. S. 372;
Folsom v. Ninety-six, 159 U. S. 611,
159 U. S. 625;
Stanly County v. Coler, 190 U. S. 437,
190 U. S. 444;
Kuhn v. Fairmont Coal Co., 215 U.
S. 349,
215 U. S. 357,
215 U. S.
360.
In
Baltimore & Ohio R. Co. v. Baugh, 149 U.
S. 368,
149 U. S. 372,
the Court had under review the judgment of a circuit court of the
United States in an action by a locomotive fireman injured through
negligence of the engineer. The cause of action arose in the State
of Ohio, and the question presented was whether the engineer and
the fireman were fellow servants. Under the decisions of the Ohio
courts, they were, but this Court held that, as there was no state
statute, the question should not be treated as a question of local
law, to be settled by an examination merely of the decisions of the
state court of last resort, but should be determined upon general
principles, the courts of the United States being under an
obligation to exercise an independent judgment. The Court, by Mr.
Justice Brewer, said (149 U.S.
149 U. S.
378):
"There is no question as to
Page 244 U. S. 250
the power of the states to legislate and change the rules of the
common law in this respect, as in others; but, in the absence of
such legislation, the question is one determinable only by the
general principles of that law. Further than that, it is a question
in which the nation as a whole is interested. It enters into the
commerce of the country. Commerce between the states is a matter of
national regulation, and to establish it as such was one of the
principal causes which led to the adoption of our
Constitution."
In other words, the general effect of the question upon
interstate commerce rendered it one of the class that called for
the application of general principles; nevertheless, state
legislation would be controlling -- in the absence of valid
legislation by Congress, of course.
In
Chicago, Milwaukee & St. Paul Ry. Co. v. Solan,
169 U. S. 133,
169 U. S.
136-137, the doctrine was concisely stated by Mr.
Justice Gray, speaking for the Court, as follows (169 U.S.
169 U. S.
136):
"The question of the right of a railroad corporation to contract
for exemption from liability for its own negligence is, indeed,
like other questions affecting its liability as a common carrier of
goods or passengers, one of those questions not of merely local
law, but of commercial law or general jurisprudence, upon which
this Court, in the absence of express statute regulating the
subject, will exercise its own judgment, uncontrolled by the
decisions of the courts of the state in which the cause of action
arises. But the law to be applied is nonetheless the law of the
state, and may be changed by its legislature, except so far as
restrained by the Constitution of the state or by the Constitution
or laws of the United States."
I freely concede the authority of Congress to modify the rules
of maritime law so far as they are administered in the federal
courts, and to make them binding upon the courts of the states so
far as they affect interstate or international relations, or
regulate "commerce with foreign
Page 244 U. S. 251
nations, and among the several states, and with the Indian
tribes." What I contend is that the Constitution does not,
proprio vigore, impose the maritime law upon the states
except to the extent that the admiralty jurisdiction was exclusive
of the courts of common law before the Constitution; that is to
say, in the prize jurisdiction, and the peculiar maritime process
in rem, and that, as to civil actions
in personam
having a maritime origin, the courts of the states are left free,
except as Congress, by legislation passed within its legitimate
sphere of action, may control them, and that Congress, so far from
enacting legislation of this character, has from the beginning left
the state courts at liberty to apply their own systems of law in
those cases where, prior to the Constitution, they had concurrent
jurisdiction with the admiralty, for the saving clause in the
Judiciary Act necessarily has this effect.
Surely it cannot be that the mere grant of judicial power in
admiralty cases, with whatever general authority over the subject
matter can be raised by implication, can, in the absence of
legislation, have a greater effect in limiting the legislative
powers of the states than that which resulted from the express
grant to Congress of an authority to regulate interstate commerce
-- the limited effect of which, in the absence of legislation by
Congress, we already have seen. The prevailing opinion properly
holds that, under the circumstances of the case at bar, although
plaintiff in error was engaged in interstate commerce, and the
deceased met his death while employed in such commerce, the
provisions of the Federal Employers' Liability Act (April 22, 1908,
35 Stat. 65, c. 149) do not apply, because they cover only railroad
operations and work connected therewith, whereas the deceased was
employed upon an ocean-going ship. In effect, it holds also that,
in the absence of applicable legislation by Congress, the express
grant of authority to regulate such commerce, as contained in the
Constitution, does not exclude the operation of the
Page 244 U. S. 252
state law. It seems to me a curious inconsistency to hold at the
same time that the rules of the maritime law exclude the operation
of a state statute without action by Congress, although the
Constitution contains no express grant of authority to establish
rules of maritime law, and the authority must be implied from the
mere constitutional grant of judicial power over the subject
matter, and most remarkable that this result is reached in the face
of the fact that the judicial power in cases of admiralty
jurisdiction has been put into effect by Congress subject to an
express reservation of the previous concurrent jurisdiction of the
courts of law over actions of this character. This, besides
ignoring the reservation, gives a greater potency to an implied
power than to a power expressly conferred.
The effect of the present decision cannot logically be confined
to cases that arise in interstate or foreign commerce. It seems to
be thought that the admiralty jurisdiction of the United States has
limits coextensive with the authority of Congress to regulate
commerce. But this is not true. The civil jurisdiction in admiralty
in cases
ex contractu is dependent upon the subject
matter; in cases
ex delicto, it is dependent upon
locality. In cases of the latter class, if the cause of action
arise upon navigable waters of the United States, even though it be
upon a vessel engaged in commerce wholly intrastate, or upon one
not engaged in commerce at all, or (probably) not upon any vessel,
the maritime courts have jurisdiction.
The
Genesee Chief v. Fitzhugh, 12 How. 443,
53 U. S. 452;
The Propeller
Commerce, 1 Black 574,
66 U. S.
578-579;
The Belfast, 7
Wall. 624,
74 U. S.
636-640;
Ex parte Boyer, 109 U.
S. 629,
109 U. S. 632;
In re Garnett, 141 U. S. 1,
141 U. S. 15-17.
It results that, if the constitutional grant of judicial power to
the United States in cases of admiralty and maritime jurisdiction
is held by inference to make the rules of decision that prevail in
the courts of admiralty binding
proprio vigore upon
Page 244 U. S. 253
state courts exercising a concurrent jurisdiction in cases of
maritime origin, the effect will be to deprive the several states
of their police power over navigable waters lying wholly within
their respective limits, and of their authority to regulate their
intrastate commerce so far as it is carried upon navigable
waters.
The following additional consideration is entitled to great
weight: the same Judiciary Act which, in its 9th section, conferred
upon the district courts of the United States original cognizance
of 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, in its 25th section allowed a
writ of error from this Court to review the final judgment or
decree of a state court of last resort resulting from a decision
overruling any special claim of right, privilege, or exemption
based upon the construction of any clause of the Constitution or
statutes of the United States. By later legislation, the review was
broadened (Act of February 5, 1867, c. 28, § 2, 14 Stat. 385, 386,
§ 709, Rev.Stats., § 237, Jud. Code), and, by recent legislation,
the writ of certiorari has been substituted for the writ of error
in many cases (Act of September 6, 1916, c. 448, 39 Stat. 726). But
at all times, the right to review in this Court the decisions of
the state courts upon questions of federal law has existed, so that
if, by the true construction of Art. III, § 2, of the Constitution,
or of § 9 of the Judiciary Act of 1789, it had been the right of
parties suing or sued in state courts upon causes of action of a
maritime nature to insist that their cases should be determined
according to the rules of decision found in the law maritime, this
right or immunity might have been asserted as a federal right, and
its denial made the ground of a review of the resulting judgment,
under a writ of error (or, now, a writ of certiorari) from this
Court to the state court of last resort. Yet, until the present
case, and others submitted
Page 244 U. S. 254
at the same time, the reported decisions of this Court show not
a trace of any such question raised. I can conceive of no stronger
evidence to prove that, from the foundation of the government until
the present time, it has been the opinion of the bar and of the
judiciary, in the state courts as well as in the courts of the
United States, that it was not the right of parties suing or sued
in state courts of law or equity upon causes of action arising out
of maritime affairs, to have them decided according to the
principles that would have controlled the decision had the suits
been brought in the admiralty courts.
There is no doubt that, throughout the entire life of the nation
under the Constitution, state courts not only have exercised
concurrent jurisdiction with the courts of admiralty in actions
ex contractu arising out of maritime transactions, and in
actions
ex delicto arising upon the navigable waters, but
that, in exercising such jurisdiction, they have, without challenge
until now, adopted as rules of decision their local laws and
statutes, recognizing no obligation of a federal nature to apply
the law maritime. state courts of last resort, in several recent
cases, have had occasion to consider the precise contention now
made by plaintiff in error, and, upon full consideration, have
rejected it.
Lindstrom v. Mutual Steamship Co., 132 Minn.
328;
North Pacific S.S. Co. v. Industrial Accident
Commission, 163 P. 199;
Kennerson v. Thames Towboat
Co., 89 Conn. 367, 373.
See also Walker v. Clyde Steamship
Co., 215 N.Y. 529, 531;
Jensen v. Southern Pacific
Co., 215 N.Y. 514 (this case). I have found no case to the
contrary except a decision by the United States District Court for
the Northern District of Ohio in
Schuede v. Zenith S.S.
Co., 216 F. 566, now under consideration by this Court. The
reasoning is unsatisfactory, and it was repudiated in
Keithley
v. North Pacific S.S. Co., 232 F. 255, 259.
I may remark, in closing, that there is no conflict between the
New York Workmen's Compensation Act and the acts of Congress for
limiting the liability of shipowners (Rev.Stats. §§ 4283-4285; Act
of June 26, 1884, c. 121, § 18, 23 Stat. 53, 57). So long as the
aggregate liabilities of the owner, including that, under the New
York law, do not amount to as much as the interest of the owner in
the vessel and freight pending, the act of Congress does not come
into play. Where it does apply, it reduces all liabilities
proportionally, under whatever law arising; the liability under the
New York law, along with the others.
Butler v. Boston &
Savannah Steamship Co., 130 U. S. 527,
130 U. S. 552,
130 U. S. 558;
The Hamilton, 207 U. S. 398,
207 U. S. 406;
Richardson v. Harmon, 222 U. S. 96,
222 U. S.
104-105.
MR. JUSTICE BRANDEIS and MR. JUSTICE CLARKE concur in the
dissent, both upon the grounds stated by MR. JUSTICE HOLMES and
upon those stated by MR. JUSTICE PITNEY.