A TREATISE

ON THE

LAW OF SHIPPING AND ADMIRALTY.

CHAPTER I.

THE EXTENT OF THE JURISDICTION OF ADMIRALTY.

SECTION I.

ADMIRALTY JURISDICTION AS DETERMINED BY PLACE.

THE jurisdiction of the court of admiralty in England is, undoubtedly, aside from the jurisdiction conferred by recent statutes, confined to places outside the body of a county, and within the ebb and flow of the tide; being permanent where the tide always flows, and existing in any place between high and low water mark when the tide covers that place, and ceasing to exist there when the tide leaves that place. The admiralty powers of the courts of 11 Bl. Com. 110; 4 id. 268; Constable's Case, 5 Coke, 106, 107; Barber v. Wharton, 2 Ld. Raym. 1452; 2 East, P. C. 803. See also 1 Kent, Com. 366. But even if the locus be on the water and on a place where the tide never leaves the shore bare, admiralty is excluded of jurisdiction, if it be within the body of any county. This is by virtue of the statutes of 13 Rich. II. c. 5, and 15 Rich. II. c. 3, which were passed with a view of restraining the jurisdiction of the courts of admiralty. One of the reasons why these courts were obnoxious was, that they did not have a trial by jury, but followed the forms and were governed by the rules of the civil law, which was dreaded and detested by the English people; perhaps, because it was introduced by the clergy and used by them for aggrandizement. The civil law was especially fitted for the municipal

their own

form of government, but was antagonistic to the feudal system. See Pritchard's Digest, Preface; Wynne's Life of Sir L. Jenkins, p. 78; Thierry, Conquête de l'Angleterre, Vol. IV. pp. 334-339; Browne, Civ. & Adm. Law, Vol. II. p. 91.

this country are given by statutes in conformity with the Constitution; and must be defined and measured by those statutes which,

There has been great contention in regard to the construction of the statutes of Rich. II. Anciently the judges depended upon the fees of their courts for their emoluments, and the common-law courts, having the highest power, put such a construction on the statutes as very much abridged the rightful power of the admiralty; but the admiralty lawyers never acquiesced in this usurpation, and have recorded their protests against the deprivation of their authority. As the King's Bench have the controlling power, their decisions must be taken as the law of England, and they have held that the "bodies of counties" from which admiralty jurisdiction is excluded, comprehend all" navigable rivers, creeks, ports, harbors, and arms of the sea which are so narrow as to permit a person to discern, and attest upon oath, anything done on the other shore, and so as to enable an inquisition of the facts to be taken." Rex v. Soleguard, Andr. 231; 2 Browne, Civ. & Adm. Law, 92; Stanton, J., Fitz. Herb. Abr. Corone, 399, 8 Edw. II.; 4 Inst. 140; Hawkins, P. C. p. 2, c. 9, § 14; 2 East, P. C. 804; United States v. Wiltberger, 5 Wheat. 106, note; Com. Dig. Tit. Adm. E. 7, 14; Bacon, Abr. Tit. Adm. A. See also United States v. Grush, 5 Mason, 290; and United States v. Robinson, 4 Mason, 307. Yet admiralty has always claimed jurisdiction on tide waters up to the first bridges, and rightfully too, according to the opinions of ten of the judges in 1713, cited in Andr. 232; 1 Kent, 366; De Lovio v. Boit, 2 Gallis. 398, 420; 15 Rich. II. c. 3. But prohibition lies if it be within a port, 4 Inst. 188, 141; Violet v. Blague, Cro. Jac. 514; 1 Com. Dig. 506. For a general discussion of this question in relation to prize, see Ex parte Lynch, 1 Madd. 15; and note to The Amiable Nancy, 3 Wheat. 546, 558. In 1812, all the judges agreed that common law and admiralty had concurrent jurisdiction in bays, havens, creeks, etc. where ships of war floated. 2 Leach's Crown Cases.

1093.

Much of this struggle arose in the time of Lord Coke. The insufficiency of his authorities and the reasons for his prohibitions have been amply shown by Godolphin, Exton, Jenkins, and others, and the whole learning now of any value is collected in the case of De Lovio v. Boit, 2 Gallis. 398. The practical value of this question is destroyed in England, by acts of parliament declaring the jurisdiction of the high courts of admiralty. The following books and cases generally accessible to American students contain elaborate discussions of the subject. De Lovio v. Boit, 2 Gallis. 398; 1 Kent Com. Lect. XVII.; The Schooner Tilton, 5 Mason, 465; Bains v. Schooner James, Bald. C. C. 544; Ramsay v. Allegre, 12 Wheat. 611; The Huntress, Davies, 93, note.

In The Eleanor, 6 Rob. Adm. 39, The Public Opinion, 2 Hagg. Adm. 398, and The Eliza Jane, 3 Hagg. Adm. 335, the court of admiralty refused jurisdiction, because the cause of action had arisen within the body of a county. But by 3 & 4 Vict. c. 65, § 6, it is enacted that the high court of admiralty shall have jurisdiction to decide all claims of salvage, damage, or towage, relating to any ship or sea-going vessel, and for necessaries supplied, etc., whether such ship was within the body of a county or on the high seas at the time when the cause of action

in their turn, are in force if within the requirement and purview of the Constitution, and void if they exceed or violate the Constitution. The first question, therefore, is, does the word admiralty mean, or necessarily imply in our constitution or in this country, what it undoubtedly meant in England, and therefore, as it may be fairly argued, in these States when they were colonies of Great Britain? It seems probable that no question of this kind, in regard to the jurisdiction of admiralty as affected by place, suggested itself to the framers of the Constitution; nor did any case come beaccrued. And by 9 & 10 Vict. c. 99, § 40, said court has jurisdiction to decide all claims whatever, in the nature of salvage, to articles found at sea or on shore, and whether the services have been performed at sea or within the body of a county. By the 3 & 4 Vict. c. 65, questions of title and of mortgage, claims to proceeds in the registry, may be decided in said court, witnesses may be examined by word of mouth, and their attendance compelled.

In The Alexander, 1 W. Rob. 288, it is held that it was not necessary that the claim should have arisen since the passage of the statute in order to give the court jurisdiction.

In The Fortitude, 2 W. Rob. 217, it is held that the enabling power given to the court by the 3 & 4 Vict. c. 65, §§ 3, 4, does not extend to all questions arising out of a mortgage (as mortgagee's right to freight), but is confined to the ship itself being mortgaged. In the case of A Raft of Timber, 2 W. Rob. 251, under the 3 & 4 Vict. c. 65, § 6, the court refused to entertain a suit for salvage of a raft of timber, on the ground that it was neither a ship nor a sea-going vessel. But the 9 & 10 Vict. c. 99, § 40, above quoted, would now give the court jurisdiction. In The Flecha, 1 Spinks, Adm. 438, where a steam vessel which plied regularly between Ghent and London, was supplied with a new propeller, it was objected that as the vessel could have made her voyage in safety with her old propeller, the new one was not "a necessary" within the statutes, and consequently the court had no jurisdiction. But Dr. Lushington said: "I cannot accede to that proposition, for I think there is a necessity to make such vessels perfect and seaworthy in all respects. The opinion of the court will always be that these vessels, to which the lives of passengers are intrusted, should be constantly kept in that state of repair which most conduces to their safety."

1 The Constitution of the United States, art. 3, § 2, provides that the judicial power shall extend "to all cases of admiralty and maritime jurisdiction." And the Judiciary Act of September 24, 1789, c. 20, § 9, provides that the district courts shall have "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under 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; saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it," etc. 1 U. S. Stats. at Large, 76.

fore the courts for some years; and when it did come, it appears to have been scarcely considered as an open question.

In 1825, the Supreme Court of the United States held that the admiralty jurisdiction was strictly confined to the "sea or waters within the ebb and flow of the tide;" and they consider, only to dismiss, the question whether Congress might not extend this jurisdiction to voyages on our western waters, under the "power to regulate commerce among the States."1 In 1833, it was decided that the court had jurisdiction in a case where repairs were made at the port of New Orleans, the court taking judicial notice of the fact that the tide ebbed and flowed at that place, and considered it to ebb and flow although it was not strong enough to turn the current of the river backward, but merely to occasion a regular rise and fall of the water.2 In 1837, the same court approved the law of the former cases, and it was held that the voyage must be substantially maritime, and did not come within this jurisdiction, because one terminus was at New Orleans within the

1 The Thomas Jefferson, 10 Wheat. 428. This was a suit for wages earned on a voyage from Shippingport in Kentucky, up the river Missouri, and back to the port of departure. Story, J., said: "In the great struggles between the courts of common law and the admiralty, the latter never attempted to assert any jurisdiction except over maritime contracts. In respect to contracts for the hire of seamen, the admiralty never pretended to claim, nor could it rightfully exercise any jurisdiction, except in cases where the service was substantially performed, or to be performed, upon the sea, or upon waters within the ebb and flow of the tide. This is the prescribed limit, which it was not at liberty to transcend. We say the service was to be substantially performed on the sea, or on tide water, because there is no doubt that the jurisdiction exists, although the commencement or termination of the voyage may happen to be at some place beyond the reach of the tide. The material consideration is, whether the service is essentially a maritime service. In the present case, the voyage, not only in its commencement and termination, but in all its intermediate progress, was several hundred of miles above the ebb and flow of the tide; and in no just sense can the wages be considered as earned in a maritime employment. Some reliance has been placed in argument upon that clause of the judiciary act of 1789, c. 20, § 9, which includes all seizures made on waters navigable from the sea by vessels of ten or more tons burden (of which description the waters in this case are), within the admiralty jurisdiction. But this is a statutable provision, and limited to the cases there stated. To make the argument available, it should be shown that some act of Congress had extended the right to sue in courts having admiralty jurisdiction, to cases of voyages of this nature."

2

Peyroux v. Howard, 7 Pet. 324.

tide, the voyage being on the river Mississippi, between New Orleans and other ports hundreds of miles above the rise and fall of the tide.1 In 1847, before the same court, this question was again raised, but not disposed of, because the collision, which was the foundation of the case, occurred on a place in the Mississippi where it was finally decided that the river rose and fell with the tide, and the important point was determined that the court had jurisdiction, although the collision occurred on a river within a county of the State of Louisiana.2

In February, 1845, an act of Congress was passed entitled "An act extending the jurisdiction of the district courts to certain cases upon the lakes and navigable waters connecting the same." This act gives the district courts of the United States "the same jurisdiction in matters of contract and tort arising in, 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 upon the lakes and navigable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steam

The Steamboat Orleans v. Phoebus, 11 Pet. 175.

Waring v. Clarke, 5 How. 441. Woodbury, J., Daniel, J., and Grier, J., dissented. On page 464, Mr. Justice Wayne, in delivering the opinion of the court, said: "Before leaving this point, however, we desire to say that the ninth section of the Judiciary Act countenances all the conclusions which have been announced in this opinion. We look upon it as legislative action contemporary with the first-being of the Constitution, expressive of the opinion of some of its framers, that the grant of admiralty jurisdiction was to be interpreted by the courts in accordance with the acknowledged principles of general admiralty law. In that section the distinction is made beween high seas and waters which are navigable from the sea by vessels of ten or more tons burden. Admiralty jurisdiction is given upon both, and, though the latter is confined by the language to cases of seizure, it is so with the understanding that such cases were strictly of themselves within the admiralty jurisdiction." In Jackson v. Steamboat Magnolia, 20 How. 296, in 1857, the decision in Waring v. Clarke was affirmed, Mr. Justice Grier, delivering the opinion of the court. Catron, J., Daniel, J., and Campbell, J., dissented. On p. 329, Mr. Justice Campbell, after citing the Judiciary Act, said: "It is difficult to comprehend on what principle the court can construe the grant of jurisdiction in this act over cases of seizure under the law of impost and trade upon navigable waters, to an extension of the civil jurisdiction of the admiralty to the same localities." Waring v. Clarke has also been affirmed in Nelson v. Leland, 22 How. 48; Philadelphia R. v. Philadelphia Steam Towboat Co. 23 How. 215; The Commerce, 1 Black, 574.