The Act of Congress passed 26 February, 1845, 5 Stat. 726,
extending the jurisdiction of the district courts to certain cases
upon the lakes and navigable waters connecting the same is
consistent with the Constitution of the United States.
It does not rest upon the power granted to Congress to regulate
commerce.
But it rests upon the ground that the lakes and navigable waters
connecting them are within the scope of admiralty and maritime
jurisdiction, as known and understood in the United States, when
the Constitution was adopted.
The admiralty and maritime jurisdiction granted to the federal
government by the Constitution of the United States is not limited
to tidewaters, but extends to all public navigable lakes and
rivers, where commerce is carried on between different states, or
with a foreign nation.
In the present case of collision between a vessel navigated by
steam and a sailing vessel, the evidence shows that the former was
in fault.
It is the duty of every steamboat to keep a trustworthy person
employed as a lookout, and if there be none such additional to the
helmsman, or if he was not stationed in a proper place, or not
vigilantly employed in his duty, it must be regarded as
prima
facie evidence that the collision was the fault of the
steamboat.
This was a libel filed by Fitzhugh, Littlejohn, and Peck.
The libellants filed their libel in the District Court for the
Northern District of New York against the propeller
Genesee
Chief and Pierce as master, in which they allege that they
were the owners of the schooner
Cuba, a vessel of fifty
tons burden and upwards, enrolled and licensed for the coasting
trade and employed in the business of commerce and navigation
between ports and places in different states and territories upon
the lakes, and navigable waters connecting said lakes. That said
schooner, at the time of the loss and collision thereinafter
mentioned, was laden with five thousand nine hundred and fifty-five
bushels of wheat, and on Lake Ontario, about forty miles below
Niagara, bound from Sandusky, in the State of Ohio, to Oswego, in
the State of New York. That the propeller
Genesee Chief,
of which the appellant Pierce was master and being a vessel of
fifty tons burden and upwards, duly enrolled and
Page 53 U. S. 444
licensed as aforesaid and then actually engaged in commerce and
navigation as aforesaid, while at the place aforesaid, on the sixth
day of May, 1847, by the carelessness and negligence of the master
and crew ran foul of and sunk the said schooner with her cargo, and
concluding with the usual prayer for the condemnation of the vessel
and for the payment of the damage.
The claimants of Alexander Kelsey and others, and the master,
put in their joint and several answer to the libel, admitting the
collision and the loss of the
Cuba but denying that the
collision happened from any want of care, negligence, or
mismanagement of the master or crew of the propeller, and alleging
that the collision occurred in consequence of and was occasioned by
the carelessness, ignorance, mismanagement and want of skill of the
master and crew of the
Cuba. The answer also contains the
following objection to the jurisdiction of the court:
"And these respondents aver that the respondents Alexander
Kelsey, William H. Cheney, Lansing B. Swan, George R. Clarke,
Elisha B. Strong, and William L. Pierce are all citizens of the
State of New York, and that the said Henry Fitzhugh and Dewitt C.
Littlejohn are also citizens of the State of New York, and they
also aver that the collision set forth in the said libel occurred
within the territorial boundaries of the said state, and not on the
high seas nor in any arm of the sea, river, creek, stream, or other
body of water where the tide ebbs and flows, and therefore they say
that this Court has no jurisdiction over the matters set forth in
the said libel, and they pray that the same effect may be given to
their defense in this respect as if the same were made by special
plea or exception."
The cause was tried before his honor the district judge in
April, 1848, and a decree passed in favor of the libellants. The
respondents appealed to the circuit court, and the cause was tried
in that court in June, 1849. The decree of the district court was
affirmed.
The master of the propeller, Pierce, was allowed to file a
separate answer in the circuit court, and he was sworn as a witness
for the claimants.
From this decree the owners of the propeller appealed to this
Court.
Page 53 U. S. 450
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court.
This is a case of collision on Lake Ontario. The libellants were
the owners of the schooner
Cuba, and the respondents and
present appellants the master and owners of the propeller
Genesee Chief. The libellants state that on 6 May, 1847,
as the
Cuba was on her voyage from Sandusky, in the State
of Ohio, to Oswego, in the State of New York, the
Genesee
Chief, which was proceeding on a voyage up the lake, ran foul
of her and damaged her so seriously that she shortly afterwards
sank with her cargo on board, and they also allege that the
collision was occasioned by the carelessness and mismanagement of
the officers and crew of the propeller, without any fault of the
officers or crew of the
Cuba. The respondents deny that it
was
Page 53 U. S. 451
occasioned by the fault of the steamboat and impute it to the
carelessness with which the schooner was managed.
The proceeding is
in rem, and in substance as well as
in form a proceeding in admiralty. It was instituted under the Act
of February 26, 1845, 5 Stat. 726, extending the jurisdiction of
the district courts to certain cases upon the lakes and navigable
waters connecting the same. The district court decreed in favor of
the libellants, and the decision was affirmed in the circuit court,
from which last-mentioned decree this appeal has been taken.
Before, however, we can look into the merits of the dispute,
there is question of jurisdiction which meets us at the threshold.
When the act of Congress was passed under which these proceedings
were had, serious doubts were entertained of its constitutionality.
The language and decision of this Court whenever a question of
admiralty jurisdiction had come before it seemed to imply that
under the Constitution of the United States, the jurisdiction was
confined to tidewaters. Yet the conviction that this definition of
admiralty powers was narrower than the Constitution contemplated
has been growing stronger every day with the growing commerce on
the lakes and navigable rivers of the western states. And the
difficulties which the language and decisions of this Court had
thrown in the way of extending it to these waters have perhaps led
to the inquiry whether the law in question could not be supported
under the power granted to Congress to regulate commerce. This
proposition has been maintained in a recent work upon the
jurisdiction, law, and practice of the courts of the United States
in admiralty and maritime causes which is entitled to much respect,
and the same ground has been taken in the argument of the case
before us.
The law, however, contains no regulations of commerce, nor any
provision in relation to shipping and navigation on the lakes. It
merely confers a new jurisdiction on the district courts, and this
is its only object and purpose. It is entitled "An act extending
the jurisdiction of the district courts to certain cases upon the
lakes and navigable waters connecting the same," and the enacting
clause conforms to the title. It declares that these courts shall
have, possess, and exercise the same jurisdiction in matters of
contract and tort arising in or upon or concerning steamboats and
other vessels of twenty tons burden and upwards, enrolled and
licensed for the coasting trade and at the time employed in
business of commerce and navigation between ports and places in
different states and territories, as was at the time of the passage
of the law possessed and exercised by the district courts in cases
of like steamboats and other vessels
Page 53 U. S. 452
employed in navigation and commerce on the high seas or
tidewaters within the admiralty and maritime jurisdiction of the
United States.
It is evident therefore, from the title as well as the body of
the law that Congress, in passing it, did not intend to exercise
their power to regulate commerce nor to derive their authority from
that article of the Constitution. And if the constitutionality of
this law is supported as a regulation of commerce, we shall impute
to the legislature the exercise of a power which it has not claimed
under that clause of the Constitution and which we have no reason
to suppose it deemed itself authorized to exercise.
Indeed it would be inconsistent with the plain and ordinary
meaning of words to call a law defining the jurisdiction of certain
courts of the United States a regulation of commerce. This law
gives jurisdiction to a certain extent over commerce and navigation
and authorizes the court to expound the laws that regulate them.
But the jurisdiction to administer the existing laws upon these
subjects is certainly not a regulation within the meaning of the
Constitution. And this act of Congress merely creates a tribunal to
carry the laws into execution, but does not prescribe them.
Nor can the jurisdiction of the courts of the United States be
made to depend on regulations of commerce. They are entirely
distinct things having no necessary connection with one another,
and are conferred in the Constitution by separate and distinct
grants. The extent of the judicial power is carefully defined and
limited, and Congress cannot enlarge it to suit even the wants of
commerce nor for the more convenient execution of its commercial
regulations. And the limits fixed by the Constitution to the
judicial authority of the courts of the United States would form an
insuperable objection to this law if its validity depended upon the
commercial power.
This power is as extensive upon land as upon water. The
Constitution makes no distinction in that respect. And if the
admiralty jurisdiction, in matters of contract and tort which the
courts of the United States may lawfully exercise on the high seas,
can be extended to the lakes under the power to regulate commerce,
it can with the same propriety and upon the same construction be
extended to contracts and torts on land when the commerce is
between different states. And it may embrace also the vehicles and
persons engaged in carrying it on. It would be in the power of
Congress to confer admiralty jurisdiction upon its courts, over the
cars engaged in transporting passengers or merchandise from one
state to another, and over the persons engaged in conducting them,
and deny to the parties
Page 53 U. S. 453
the trial by jury. Now the judicial power in cases of admiralty
and maritime jurisdiction has never been supposed to extend to
contracts made on land and to be executed on land. But if the power
of regulating commerce can be made the foundation of jurisdiction
in its courts, and a new and extended admiralty jurisdiction beyond
its heretofore known and admitted limits may be created on water
under that authority, the same reason would justify the same
exercise of power on land.
Besides, the jurisdiction established by this act of Congress
does not depend on the residence of the parties. And under the
admiralty powers conferred on the district courts, they are
authorized to proceed
in rem or
in personam in
the cases mentioned in the law although the parties concerned are
citizens of the same state. If the lakes and waters connecting them
are within the admiralty and maritime jurisdiction as conferred by
the Constitution, then undoubtedly this authority may be lawfully
exercised, because this jurisdiction depends upon the place and not
upon the residence of the parties.
But if the admiralty jurisdiction is confined to tidewater, the
courts of the United States can exercise over the waters in
question nothing more than ordinary jurisdiction in cases at common
law and equity. And in cases of this description, they have no
jurisdiction if the parties are citizens of the same state. This
being an express limitation in the grant of judicial power, no act
of Congress can enlarge it. And if the validity of the act of 1845
depended upon the power to regulate commerce, it would be
unconstitutional and could confer no authority on the district
courts.
If this law, therefore, is constitutional, it must be supported
on the ground that the lakes and navigable waters connecting them
are within the scope of admiralty and maritime jurisdiction, as
known and understood in the United States when the Constitution was
adopted.
If the meaning of these terms was now for the first time brought
before this Court for consideration, there could, we think, be no
hesitation in saying that the lakes and their connecting waters
were embraced in them. These lakes are in truth inland seas.
Different states border on them on one side, and a foreign nation
on the other. A great and growing commerce is carried on upon them
between different states and a foreign nation, which is subject to
all the incidents and hazards that attend commerce on the ocean.
Hostile fleets have encountered on them and prizes been made, and
every reason which existed for the grant of admiralty jurisdiction
to the general government on the Atlantic seas applies with equal
force to the lakes. There is an equal necessity for the instance
and for the prize power of the
Page 53 U. S. 454
admiralty court to administer international law, and if the one
cannot be established, neither can the other.
Again, the union is formed upon the basis of equal rights among
all the states. Courts of admiralty have been found necessary in
all commercial countries, not only for the safety and convenience
of commerce and the speedy decision of controversies, where delay
would often be ruin, but also to administer the laws of nations in
a season of war and to determine the validity of captures and
questions of prize or no prize in a judicial proceeding. And it
would be contrary to the first principles on which the Union was
formed to confine these rights to the states bordering on the
Atlantic and to the tidewater rivers connected with it, and to deny
them to the citizens who border on the lakes and the great
navigable streams which flow through the western states. Certainly
such was not the intention of the framers of the Constitution, and
if such be the construction finally given to it by this Court, it
must necessarily produce great public inconvenience and at the same
time fail to accomplish one of the great objects of the framers of
the Constitution -- that is, a perfect equality in the rights and
the privileges of the citizens of the different states, not only in
the laws of the general government but in the mode of administering
them. That equality does not exist if the commerce on the lakes and
on the navigable waters of the West are denied the benefits of the
same courts and the same jurisdiction for its protection which the
Constitution secures to the states bordering on the Atlantic.
The only objection made to this jurisdiction is that there is no
tide in the lakes or the waters connecting them, and it is said
that the admiralty and maritime jurisdiction, as known and
understood in England and this country at the time the Constitution
was adopted, was confined to the ebb and flow of the tide.
Now there is certainly nothing in the ebb and flow of the tide
that makes the waters peculiarly suitable for admiralty
jurisdiction, nor anything in the absence of a tide that renders it
unfit. If it is a public navigable water on which commerce is
carried on between different states or nations, the reason for the
jurisdiction is precisely the same. And if a distinction is made on
that account, it is merely arbitrary, without any foundation in
reason, and indeed would seem to be inconsistent with it.
In England, undoubtedly the writers upon the subject and the
decisions in its courts of admiralty always speak of the
jurisdiction as confined to tidewater. And this definition in
England was a sound and reasonable one, because there was no
navigable stream in the country beyond the ebb and flow of the
tide, nor any place where a port could be established to carry
Page 53 U. S. 455
on trade with a foreign nation, and where vessels could enter or
depart with cargoes. In England, therefore, tidewater and navigable
water are synonymous terms, and tidewater, with a few small and
unimportant exceptions, meant nothing more than public rivers, as
contradistinguished from private ones, and they took the ebb and
flow of the tide as the test because it was a convenient one, and
more easily determined the character of the river. Hence the
established doctrine in England that the admiralty jurisdiction is
confined to the ebb and flow of the tide. In other words, it is
confined to public navigable waters.
At the time the Constitution of the United States was adopted
and our courts of admiralty went into operation, the definition
which had been adopted in England was equally proper here. In the
old thirteen states, the far greater part of the navigable waters
are tidewaters. And in the states which were at that period in any
degree commercial, and where courts of admiralty were called on to
exercise their jurisdiction, every public river was tidewater to
the head of navigation. And indeed until the discovery of
steamboats, there could be nothing like foreign commerce upon
waters with an unchanging current resisting the upward passage. The
courts of the United States therefore naturally adopted the English
mode of defining a public river, and consequently the boundary of
admiralty jurisdiction. It measured it by tidewater. And that
definition, having found its way into our courts, became after a
time the familiar mode of describing a public river, and was
repeated, as cases occurred, without particularly examining whether
it was as universally applicable in this country as it was in
England. If there were no waters in the United States which are
public, as contradistinguished from private, except where there is
tide, then unquestionably, here as well as in England, tidewater
must be the limits of admiralty power. And as the English
definition was adopted in our courts and constantly used in
judicial proceedings and forms of pleading borrowed from England,
the public character of the river was in process of time lost sight
of, and the jurisdiction of the admiralty treated as if it was
limited by the tide. The description of a public navigable river
was substituted in the place of the thing intended to be described.
And under the natural influence of precedents and established
forms, a definition originally correct was adhered to and acted on
after it had ceased, from a change in circumstances, to be the true
description of public waters. It was under the influence of these
precedents and this usage that the case of
The Thomas
Jefferson, 10 Wheat. 428, was decided in this Court
and the jurisdiction of the courts of admiralty of the United
States declared to be limited to the ebb and flow of the tide.
Page 53 U. S. 456
The Steamboat Orleans v.
Phoebus, 11 Pet. 175, afterwards followed this case
merely as a point decided.
It is the decision in the case of
The Thomas Jefferson
which mainly embarrasses the Court in the present inquiry. We are
sensible of the great weight to which it is entitled. But at the
same time we are convinced that if we follow it, we follow an
erroneous decision into which the Court fell when the great
importance of the question as it now presents itself could not be
foreseen, and the subject did not therefore receive that deliberate
consideration which at this time would have been given to it by the
eminent men who presided here when that case was decided. For the
decision was made in 1825, when the commerce on the rivers of the
west and on the lakes was in its infancy and of little importance
and but little regarded compared with that of the present day.
Moreover, the nature of the questions concerning the extent of
the admiralty jurisdiction which have arisen in this Court, was not
calculated to call its attention particularly to the one we are now
considering. The point in dispute has generally been whether the
jurisdiction was not as limited in the United States as it was in
England at the time the Constitution was adopted. And if it was so
limited, then it did not extend to contracts for maritime services
when made on land, nor to torts and collisions on a tidewater river
if they took place in the body of a country. The attention of the
Court, therefore, in former cases has been generally strongly
attracted to that question, and never, we believe, until recently,
drawn to the one we are now discussing, except in the case of
The Thomas Jefferson, afterwards followed in
The
steamboat Orleans v. Phoebus, as already mentioned. For with
this exception, the cases always arose on contracts for services on
tidewater or were upon libels for collisions or other torts
committed within the ebb and flow of the tide. There was therefore
no necessity for inquiring whether the jurisdiction extended
further in a public navigable water. And, following the English
definition, tide was assumed and spoken of as its limit, although
that particular question was not before the Court.
The attention of the Court was, however, drawn to this subject
in the case of
Waring v.
Clarke, 5 How. 441, which was decided in 1848. The
collision took place on the Mississippi River near the Bayou
Goulah, and there was much doubt whether the tide flowed so high.
There was a good deal of conflicting evidence. But the majority of
the Court thought there was sufficient proof of tide there, and
consequently it was not necessary to consider whether the admiralty
power extended higher.
But that case showed the unreasonableness of giving a
construction to the Constitution which would measure the
jurisdiction
Page 53 U. S. 457
of the admiralty by the tide. For if such be the construction,
then a line drawn across the River Mississippi would limit the
jurisdiction, although there were ports of entry above it and the
water as deep and navigable and the commerce as rich and exposed to
the same hazards and incidents as the commerce below. The
distinction would be purely artificial and arbitrary, as well as
unjust, and would make the Constitution of the United States
subject one part of a public river to the jurisdiction of a court
of the United States and deny it to another part equally public and
but a few yards distant.
It is evident that a definition that would at this day limit
public rivers in this country to tidewater rivers is utterly
inadmissible. We have thousands of miles of public navigable water,
including lakes and rivers in which there is no tide. And certainly
there can be no reason for admiralty power over a public tidewater
which does not apply with equal force to any other public water
used for commercial purposes and foreign trade. The lakes and the
waters connecting them are undoubtedly public waters, and we think
are within the grant of admiralty and maritime jurisdiction in the
Constitution of the United States.
We are the more convinced of the correctness of the rule we have
now laid down because it is obviously the one adopted by Congress
in 1789 when the government went into operation. For the 9th
section of the Judiciary Act of 1789, by which the first courts of
admiralty were established, declares that the district courts
"shall have exclusive cognizance of all civil causes of
admiralty and maritime jurisdiction, including all seizures under
the laws of impost, navigation, or trade of the United States,
where the seizures are made on waters which are navigable from the
sea by vessels of ten or more tons burden, within their respective
districts as well as upon the high seas."
The jurisdiction is here made to depend upon the navigable
character of the water, and not upon the ebb and flow of the tide.
If the water was navigable, it was deemed to be public, and if
public, was regarded as within the legitimate scope of the
admiralty jurisdiction conferred by the Constitution.
It so happened that no seizure was made, and no case calling for
the exercise of admiralty power arose for a long period of time,
upon any navigable water where the tide did not ebb and flow. As we
have before stated, there were no navigable waters in the United
States upon which commerce in the usual acceptation of the word was
carried on except tidewater, until the valley of the Mississippi
was settled and cultivated and steamboats invented, and no case
therefore came before the Court during the early period of the
government that required it to determine whether this jurisdiction
could be extended above tide. It
Page 53 U. S. 458
is perhaps to be regretted that such a case did not arise. For
we are persuaded that if one had occurred and attracted the
attention of the Court to this point before the English definition
had become the settled mode of describing the jurisdiction and
before the courts had been accustomed to adhere strictly to the
English mode of pleading, in which the place is always averred to
be within the ebb and flow of the tide, the definition in the act
of 1789, which is so evidently the correct one, would have been
adopted by the courts and the difficulty which has now arisen would
not have taken place.
This legislative definition, given at this early period of the
government, is certainly entitled to great consideration. The same
definition is in effect again recognized by Congress by the passage
of the act which we are now considering. We have therefore the
opinion of the legislative department of the government, twice
deliberately expressed, upon the subject. These opinions, of
course, are not binding on the judicial department, but they are
always entitled to high respect. And in this instance we think they
are founded in truth and reason, and that these laws are both
constitutional, and ought therefore to be carried into execution.
The jurisdiction under both laws is confined to vessels enrolled
and licensed for the coasting trade, and the act of 1845 extends
only to such vessels when they are engaged in commerce between
different states or territories. It does not apply to vessels
engaged in domestic commerce of a state, nor to vessels or boats
not enrolled and licensed for the coasting trade under the
authority of Congress. And the state courts within the limits
embraced by this law exercise a concurrent jurisdiction in all
cases arising within their respective territories, as broadly and
independently as it is exercised by the old thirteen states, whose
rivers are tidewaters and where the admiralty jurisdiction has been
in full force ever since the adoption of the Constitution.
The case of
The Thomas Jefferson did not decide any
question of property, or lay down any rule by which the right of
property should be determined. If it had, we should have felt
ourselves bound to follow it notwithstanding the opinion we have
expressed. For everyone would suppose that after the decision of
this Court in a matter of that kind, he might safely enter into
contracts upon the faith that rights thus acquired would not be
disturbed. In such a case,
stare decisis is the safe and
established rule of judicial policy, and should always be adhered
to. For if the law, as pronounced by the court, ought not to stand,
it is in the power of the legislature to amend it without impairing
rights acquired under it. But the decision referred to has no
relation to rights of property. It was a question of jurisdiction
only, and the
Page 53 U. S. 459
judgment we now give can disturb no rights of property nor
interfere with any contracts heretofore made. The rights of
property and of parties will be the same by whatever court the law
is administered. And as we are convinced that the former decision
was founded in error, and that the error, if not corrected, must
produce serious public as well as private inconvenience and loss,
it becomes our duty not to perpetuate it.
The principal objection made to the admiralty jurisdiction is
the want of the trial by jury. And it is this feature in the
admiralty practice which made it the object of so much jealousy in
England in the time of Lord Coke and enabled him to succeed in his
efforts to restrict it to very narrow limits. But experience in
England has proved that a wider range of jurisdiction was necessary
for the benefit of commerce and navigation, and that they needed
courts acting more promptly than courts of common law, and not
entangled with the niceties and strictness of common law pleadings
and proceedings. And during the reign of the present Queen, the
admiralty jurisdiction has been extended to maritime services and
contracts and to torts in navigable waters, although the place
where the service was performed or the contract made or the tort
committed was within the body of a county and within the
jurisdiction of the courts of common law. A concurrent jurisdiction
is reserved to the last-mentioned courts if the party complaining
chooses to select that mode of proceeding. But in the new and
extended jurisdiction of the English admiralty, the old objection
remains, and neither party is entitled to a trial by jury. The
court, in its discretion, may send the question of fact to a jury
if it thinks proper to do so. But the party cannot demand it as a
matter of right. Yet the English people have certainly lost nothing
of their attachment to the trial by jury since the days of Lord
Coke. And this recent and great enlargement of the admiralty power
is strong proof that the want of it has been felt, and that
experience has shown its necessity where the interests of an
extensive commerce and navigation are concerned.
But the Act of Congress of which we are speaking is free from
the objection to which the English statute is liable. Like the
English statute, it saves to the party a concurrent remedy at
common law in any court of the United States or of a state which
may be competent to give it. But it goes farther. It secures to the
parties the trial by jury as a matter of right in the admiralty
courts. Either party may demand it. And it thus effectually removes
the great and leading objection always heretofore made to the
admiralty jurisdiction.
The power of Congress to change the mode of proceeding in this
respect in its courts of admiralty will, we suppose, hardly
Page 53 U. S. 460
be questioned. The Constitution declares that the judicial power
of the United States shall extend to "all cases of admiralty and
maritime jurisdiction." But it does not direct that the court shall
proceed according to ancient and established forms, or shall adopt
any other form or mode of practice. The grant defines the subjects
to which the jurisdiction may be extended by Congress. But the
extent of the power as well as the mode of proceeding in which that
jurisdiction is to be exercised, like the power and practice in all
the other courts of the United States, are subject to the
regulation of Congress except where that power is limited by the
terms of the Constitution or by necessary implication from its
language. In admiralty and maritime cases there is no such
limitation as to the mode of proceeding, and Congress may
therefore, in cases of that description, give either party right of
trial by jury or modify the practice of the court in any other
respect that it deems more conducive to the administration of
justice. And in the proceedings under the act of 1845, the right to
a trial by jury is undoubtedly secured to either party if he thinks
proper to demand it.
In the case before us, no jury was required by the libellants or
respondents, and the questions of fact as well as of law were
therefore decided by the court.
This brings us to the evidence in the case. And it remains to
inquire whether the collision in question was the result of
inevitable accident, and if not, by whose fault it happened.
Many witnesses, it appears, were examined. And, as almost
invariably happens in cases of this kind, there is a great deal of
contradictory testimony -- the men belonging to one boat differing,
for the most part, from those in the other. It has been examined
with great care in the argument at the bar, and fully discussed,
and we do not deem it necessary in this opinion to go over the
whole ground and compare the relative credit of the witnesses or
the weight and authority to which they are severally entitled.
There are some leading facts in the case which, upon the whole
testimony, are free from doubt. The collision took place in the
open lake. It was a starlight night, and although there was a haze
near the surface of the lake, it was not sufficient to conceal the
Cuba from those on board of the propeller. She had a light
on her bowsprit, and was seen from the steamboat when she was four
or five miles off. And the helmsman of the propeller states that it
was at no time so thick as to prevent him from seeing the light at
the distance of half a mile. The wind was light, moving the
Cuba, which was heavily laden, not more than two or three
miles an hour. The lake was smooth. The steamboat had the entire
command of her course and a
Page 53 U. S. 461
wide water by which she might have passed the
Cuba on
either side and at a safe distance. She was going at the rate of
eight miles an hour. And if proper care had been taken on board the
Genesee Chief after the schooner was first seen, it would
seem to be almost impossible that a collision could have happened
with a vessel moving so slowly and sluggishly through the water,
even if she was carelessly or injudiciously managed. There was no
necessity for passing so near to her as to create the hazard. The
steamboat could choose its own distance, and might have approached
her slowly and cautiously, if the intervening mist obscured the
light after she was first discovered, or occasionally concealed
it.
But there is no evidence of any fault on the part of the
Cuba. She changed her course, it is true, when she was
some miles distant from the propeller. But a vessel close-hauled
with a baffling wind cannot always choose her course, but may be
compelled to change it by a slight change in the wind. And the
captain states that the course was altered because he observed her
sails to be shaking, and the change was necessary to enable her to
preserve her headway. And this change was made when she was distant
some miles, and there was ample time for those on board the
propeller to observe it, and ample room to guard against it. And
the captain and crew of the
Cuba appear to have been
watchful and attentive from the time the propeller was discovered.
Nor do we deem it material to inquire whether the order of the
captain at the moment of collision was judicious or not. He saw the
steamboat coming directly upon him, her speed not diminished nor
any measures taken to avoid a collision. And if, in the excitement
and alarm of the moment, a different order might have been more
fortunate, it was the fault of the propeller to have placed him in
a situation where there was no time for thought, and she is
responsible for the consequences. She had the power to have passed
at a safer distance, and had no right to place the schooner in such
jeopardy, that the error of a moment might cause her destruction
and endanger the lives of those on board. And if an error was
committed under such circumstances, it was not a fault.
As regards the strength and direction of the wind, the testimony
of those on board of the schooner is entitled to much more weight
than the witnesses who were on board the steamboat. The movements
of the latter were independent of the wind. There was nothing to
attract the attention of the captain or crew to the light land
breeze that was then blowing. But the movements of the
Cuba depended upon it, and the attention of those on board
of her was necessarily drawn to it every moment. And while we see
nothing to censure in the conduct of the
Page 53 U. S. 462
schooner, there is conclusive evidence of great carelessness on
board of the
Genesee Chief.
It is possible that their conduct may in some measure be
accounted for by the fact that the captain and helmsman made up
their minds, when the light in the
Cuba was first seen,
that she was bound up the lake, and they would seem to have acted
upon that opinion up to the moment of the collision. They may have
believed that as they were running on the same course, and as the
helmsman supposed with a four-mile wind, there could be no danger
of a sudden encounter, and that when they neared her there would be
time enough to change the course of the steamboat and pass at a
safe distance. It would seem difficult otherwise to account for the
careless manner in which the light of the
Cuba was
observed even by the helmsman, for he says he saw it at intervals
as the vessels were approaching each other, and lost sight of it
for three or four minutes immediately before they came together.
Now the light was seen at the distance of four or five miles in the
first instance, and he states in his subsequent testimony that
there was not haze enough on the lake to prevent him from seeing it
at the distance of half a mile. There was therefore nothing to
prevent him, when the vessels were within that distance, from
seeing it continually if he looked for it unless he was prevented
by the position in which he placed himself in the wheelhouse. And
if the light was hidden by the haze, still, as he knew that a
vessel was ahead and so near, nothing could excuse the rashness of
continuing the steamboat at her full speed if he supposed the
schooner was meeting him, and not running on the same course.
If this mistake continue until the collision was about to take
place, it would be the strongest proof of negligence, as there was
abundance of time to have discovered their error. But however this
may be, it is evident that there was not a proper lookout on board
of the propeller. By a proper lookout we do not mean merely persons
on deck who look at the light, but someone in a favorable position
to see, stationed near enough to the helmsman to communicate with
him and to receive communications from him, and exclusively
employed in watching the movements of vessels which they are
meeting or about to pass. And it appears that the helmsman saw no
one, after he and the captain first observed the light of the
Cuba, until the vessels met. The captain had not observed
her near approach, for when the collision happened, he ran to the
wheelhouse to inquire what was the matter. And when the steersman,
by his own imperfect observation, saw that the danger was imminent
and it was absolutely necessary that the speed of the boat should
be
Page 53 U. S. 463
instantly checked, nobody else appears to have seen it, and no
one was near him, and he was forced to leave the wheel at the most
critical moment in order to ring the bell to reverse the engine.
The fact that there was no one near him to whom he could call and
no one but himself that saw the danger is conclusive evidence of
the carelessness with which the
Genesee Chief was
proceeding. She was running at her usual speed, although the
captain knew, half an hour before, that there was a vessel in his
path, and caution therefore necessary, and the more necessary if
the haze obscured the light of the schooner, as some of the
witnesses represent.
It is the duty of every steamboat traversing waters where
sailing vessels are often met with, to have a trustworthy and
constant lookout besides the helmsman. It is impossible for him to
steer the vessel and keep the proper watch in his wheelhouse. His
position is unfavorable to it, and he cannot safely leave the wheel
to give notice when it becomes necessary to check suddenly the
speed of the boat. And whenever a collision happens with a sailing
vessel, and it appears that there was no other lookout on board the
steamboat but the helmsman, or that such lookout was not stationed
in a proper place, or not actually and vigilantly employed in his
duty, it must be regarded as
prima facie evidence that it
was occasioned by her fault. She has command of her own course and
her own speed, and it is her duty to pass the approaching vessel at
such a distance as to avoid all danger where she has room, and if
the water is narrow, her speed should be checked so as to
accomplished the same purpose. In the present case, every proper
precaution seems to have been neglected. No pains were taken to
ascertain the course of the
Cuba; there was no one upon
the lookout the helmsman, and that duty negligently performed by
him, and in a starlight night, with four or five miles of deep
water on the one side and the open lake on the other, with a light
breeze and smooth surface, she run into and sunk a vessel that had
been seen half an hour before, at a distance of four or five miles,
and which was sailing at the rate of not more than two or three
miles an hour, and doing everything in her power to warn those on
board the steamboat of her position and her danger. We are
satisfied from the whole testimony that there was great and
inexcusable carelessness on the part of the propeller and that the
damages are not higher than the loss requires.
The decree of the circuit court must therefore be
Affirmed with costs.
MR. JUSTICE DANIEL.
From so much of the opinion just announced as claims
jurisdiction
Page 53 U. S. 464
in this case, and especially from the ground for the first time
assumed in this Court as the principal foundation of that
jurisdiction I find myself constrained to declare my dissent.
It is not may purpose here to reiterate my views of the extent
of the admiralty powers vested by the Constitution in the courts of
the United States, nor of the sources from which those powers were
conceived by the framers of the Constitution to have been derived.
Those views have on former occasions been fully developed,
particularly in the case of
New Jersey Steam Navigation
Co. v. Merchants Bank, 6 How. 344, in my
concurrence with the opinion of the late Justice Woodbury in the
case of
Waring v.
Clark, 5 How. 441, and in my opinion in the case of
Newton v.
Stebbins, 10 How. 586.
The decisions of this tribunal heretofore made will, upon a
correct examination of them, be found to rest the admiralty powers
of the federal courts, not solely upon the known and established
principles and limitations of the powers and jurisdiction of the
admiralty in England, principles and limitations settled in that
country at the time of the adoption of the federal Constitution and
rigidly adhered to there until altered by some recent legislative
provisions, but they have professed to place those powers upon some
supposed enlargement of the admiralty jurisdiction said to have
sprung from the practice of the vice-admiralty courts in the
British colonies, a practice which, whilst it has been alleged as a
justification of each instance in support of which it has been
invoked, no case, no investigation has ever been able to place upon
any clear and indisputable authority. It is against this undefined
and undefinable warrant for the exercise of power that the
objections urged by me on former occasions have been leveled.
Moreover it has always seemed to me to imply a palpable
contradiction that there should be ascribed, and that by mere
implication, to the vice-admiralty courts the creatures of the high
admiralty powers which the latter confessedly never possessed. But
the doctrine at present promulgated by this Court is based upon
assumptions still more irregular in my view -- still more dangerous
than that above adverted to -- because it claims for this Court,
wholly irrespective either of the Constitution or the legislation
of Congress, powers to be assumed and carried into execution by
some rule which in the judgment of this Court is to be applied
according to its own opinions of convenience or necessity. Thus it
is admitted that by the decisions in England, the jurisdiction of
the admiralty did not reach
infra corpus comitatus, and
was limited to the ebb and flow of the tide, and it is admitted
that by the previous decisions of this Court the like limitations
were imposed on the jurisdiction of the admiralty in this country;
and even this limitation, imposed
Page 53 U. S. 465
by former decisions of this tribunal, it is obvious, allowed of
some encroachment upon the common law jurisdiction, insofar as the
ebb and flow of the tide might bring the asserted power of the
court
infra fauces terrae, or
infra corpus
commitatus. But even this encroachment is not sufficient to
satisfy the aspirations of the jurisdiction now for the first time
asserted, for now it is insisted that any waters, however they may
be within the body of a state or county, are the peculiar province
of the admiralty power, and although it is admitted that the power
was once clearly understood as being limited to the ebb and flow of
the tide, yet now, without there having been engrafted any new
provision on the Constitution, without the alteration of one letter
of that instrument, designed to be the charter of all federal
power, the jurisdiction of the admiralty is to be measured by
miles, and by the extent of territory which may have been
subsequently acquired -- a much less natural standard surely, than
the nature and character of the element to which the admiralty is
peculiarly adapted and to which it owes its origin; that the
Constitution may, nay must, be altered by the same process, and
must be enlarged not by amendment in the modes provided, but
according to the opinions of the judiciary, entertained upon their
views of expediency and necessity. My opinions may be deemed to be
contracted and antiquated, unsuited to the day in which we live;
but they are founded upon deliberate conviction as to the nature
and objects of limited government, and by myself at least cannot be
disregarded; and I have at least the consolation -- no small one it
must be admitted -- of the support of Marshall, Kent and Story in
any error I may have committed. I cannot construe the Constitution
either by mere geographical considerations, cannot stretch nor
contract it in order to adapt it to such limits, but must interpret
it by my solemn convictions of the meaning of its terms and by what
is believed to have been the understanding of those by whom it has
been formed. In the view taken by the Court of the evidence in this
case I entirely concur.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Northern
District of New York and was argued by counsel. On consideration
whereof it is now here ordered, adjudged, and decreed by this Court
that the decree of the said circuit court in this cause be and the
same is hereby affirmed with costs and damages at the rate of six
percentum per annum.