# Waring v. Clarke/Opinion of the Court

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* Dissenting Opinion Catron
United States Supreme Court
46 U.S. 441
Waring v. Clarke
W. S. VASON, Proctor.
Thomas Clarke, being duly sworn, deposeth, that the material allegations of the above libel are true.
(Signed,) THOMAS CLARKE.
Upon this libel, the judge ordered admiralty process in rem to issue against the steamboat De Soto, and also process in personam against the owners, citing them to appear and answer the libel. The answer was as follows:--
To the Honorable Theo. H. McCaleb, Judge of the District Court of the United States, within and for the Eastern District of Louisiana.
And now Peter Dalman, of the city of Lafayette, in the district aforesaid, and Nathaniel S. Waring, intervening for their interest in the said steamboat De Soto, and for answer to the libel and complaint of Thomas Clarke, as late master of the steamboat Luda, and agent of P. F. Marionoux and T. J. Abel, late owners of the steamboat Luda, against the steamboat De Soto, her tackle, apparel, &c., and against Peter Dalman, and Nathaniel S. Waring, and Parker, as owners of the said steamboat De Soto, and also against all persons intervening for their interest in said steamboat De Soto, allege and articulately propound as follows:--
First. That the respondents are the true and lawful owners of the said steamboat De Soto.
Second. That it doth appear from the allegations of the said libel, and these respondents expressly propounded and allege the fact to be so, that the trespass, tort, or collision set forth and alleged in the said libel, if any such did take place in the manner and form set forth in said libel, which these respondents most respectfully deny, was on the river Mississippi, off and near the mouth of the Bayou Goula, about ninety-five miles above the city of New Orleans, within the State of Louisiana, within the body of a county or parish of said State, to wit, the parish of Iberville or county of Iberville, in said State.
Third. The tide does not ebb and flow at the place where the said collision, tort, or trespass is alleged to have taken place.
Fourth. That it is not alleged in said libel, and these respondents aver and propound that the said collision did not take place on the high seas, or in sailing or navigating to or from the sea.
Fifth. That neither the said steamboat Luda, nor the said steamboat De Soto, were, at the time the said collision took place, or the tort or trespass aforesaid is alleged to have been committed, employed in sailing or navigating on any maritime voyage, but were wholly employed, and then were actually pursuing a voyage confined to the river Mississippi, to wit, the said steamboat Luda on a voyage from the city of New Orleans to Bayou Sarah, about one hundred and sixty miles above the said city, and the said steamboat De Soto on a voyage or trip from Bayou Sarah aforesaid to the city of New Orleans, where her said voyage or trip was to end.
Sixth. That neither the said steamboat Luda, nor the said steamboat De Soto, were built, designed, or fitted, or ever intended to be employed or used in any manner for a maritime or sea voyage, nor have they, or either of them, ever been used, employed, or engaged in any such maritime or sea voyage, but were wholly built, designed, or intended for the navigation of the said river Mississippi, or other rivers or streams entering therein, and the transportation of goods and passengers from the said city of New Orleans up the said river or streams to the interior of the country, and the transportation of passengers, goods, cotton, and other produce of the country from the landings, and places, and plantations of the inhabitants on the bank or banks of said rivers and streams to the said city of New Orleans, without proceeding any further down the said river Mississippi, nearer to its mouth or to the sea, and were both so employed at the time the said collision, trespass, or tort is alleged to have been committed.
Seventh. That this honorable court, by reason of all the matters and things so above propounded and articulated, has not jurisdiction, and ought not to proceed to enforce the claim alleged in the libel aforesaid against the said steamboat De Soto, or against them, these respondents, intervening for their interest, or against these respondents in their proper persons, as prayed for in and by said libel.
Eighth. That all and singular the premises are true; in verification whereof, if desired, these respondents crave leave to refer to the depositions and other proof to be by them exhibited in this cause. And the said respondents, in case their said plea to the jurisdiction of the court, so as above propounded, articulated, and pleaded, should be overruled, then they, for further defensive answer, articulately propound and say,--
1st. That they admit that the said two steamboats did come into collision at the time stated in the said libel, but they do expressly deny that the said collision was caused or did happen by any fault, negligence, or intention of these respondents, or the master, officers, or crew of the said steamboat De Soto, or any other person or persons for whom these respondents, or the said steamboat De Soto, can in any manner be liable or responsible.
2d. That the said collision was caused by the fault or negligence, or want of skill, in the person or persons having charge or command of the said steamboat Luda, or the pilots, officers, or crew of said steamboat, or that the same was by accident, for which these respondents are not liable.
3d. That the said sinking of the said steamboat Luda, and her loss alleged in said libel, was not caused by any damage she received in the collision aforesaid, but by the negligence, want of skill, and fault of the person or persons in charge of the said steamboat Luda.
4th. That at the time the said collision did take place the said steamboat Luda was not seaworthy, and was not properly provided with a commander and other usual and necessary officers of competent skill to manage and conduct the said steamboat, by reason of which the collision aforesaid did take place, and the said boat did afterwards sink.
5th. That the said steamboat De Soto did suffer a great damage by the said collision, to the amount of five hundred dollars, and these respondents have and will suffer great damage by the seizure and detention of said steamboat De Soto under the process issued in this case, and to the amount of five thousand dollars.
Wherefore, and by reason of all the matters and things herein propounded and pleaded, these respondents pray that this honorable court will pronounce against the said libel, that the same may be dismissed, and the said steamboat De Soto restored to your respondents, with all costs in this behalf expended.
That your Honor may pronounce for the damages claimed by these respondents, as before stated, and condemn the libellants to pay the same, in solido, to these respondents, and that your respondents may have all such other and further order, decree, and relief in the premises as to law and justice may appertain, and the nature of their case may require.
(Signed,) PETER DALMAN,
N. S. WARING.
The supplemental lible was as follows:--
To the Honorable Theo. H. McCaleb, Judge of the United States District Court in and for the Eastern District of Louisiana.
The amended and supplemental libel of Thomas Clarke, late master of the steamboat Luda, and agent of the owners thereof, &c., against the steamboat De Soto, her tackle, apparel, and furniture, and against Nathaniel S. Waring, Peter Dalman, and Parker, owners thereof, &c., &c., and against all persons intervening for their interest in the steamer De Soto, &c., in a cause of collision, civil and maritime, &c., filed herein by leave of this honorable court, first granted and obtained, to amend his original libel herein filed and pending in said court.
And thereupon the said Thomas Clarke, as master and agent as aforesaid, doth allege and articulately propound, as amendatory and supplemental to the allegations articulately propounded in his said original libel, as follows:-- First. That at the time of the collision between the said steamboats, the said De Soto and the said Luda, set forth and described in the second article of his original libel, to wit, on the first day of November, 1843, and for a considerable time previous thereto, both of said boats were employed as regular packets, running between the port of New Orleans and the town of Bayou Sarah, situate on the bank of the Mississippi river, about one hundred and sixty miles from the city of New Orleans, carrying freight and passengers for hire between said places; and the said steamboat De Soto was, at the time the said collision took place, returning from the said town of Bayou Sarah, on a voyage or trip to the city of New Orleans, and the steamboat Luda was, at the said time, going on a voyage or trip from the city of New Orleans to the said town of Bayou Sarah; and libellant expressly alleges, that both of said boats were contracted for, intended and adapted to, and were actually engaged in, navigating tide-waters at the time of said collision, running and making trips between the city of New Orleans and the said town of Bayou Sarah, in the river Mississippi, between which places the tide ebbs and flows the entire distance; and that the place where the said collision happened, to wit, the Bayou Goula bar in the river Mississippi, and also the said town of Bayou Sarah, and the entire distance between the said town and the city of New Orleans, are within the admiralty and maritime jurisdiction of this honorable court.
Second. That on the night the collision took place between the said boats, to wit, on the night of the first day of November, 1843, there were not two lights hoisted out on the hurricane-deck of the said boat De Soto, one forward, the other at the stern, of said boat; nor did the master and pilot of the said boat De Soto, or either of them, when the said boat, then descending the said river Mississippi, was within one mile of the boat Luda, then ascending said river, shut off the steam of the said boat De Soto, nor permit the said boat to float down upon the current of said river until the said boat Luda passed the said boat De Soto, as the laws of this State require boats descending said river to do, when meeting boats ascending said river; and libellant expressly alleges, that said master and pilot of the De Soto did neglect or refuse to comply with the requirements of said law of this State, as well with the usage and customs observed by all boats navigating said river, and that, had the said master and pilot not neglected or refused to comply with the requirements of said law, but conformed thereto, and observed the said usage and customs established by boats navigating said river, by shutting off the steam of the De Soto as soon as they discovered the Luda, or had approached within one mile of her, and permitted the De Soto to float upon the current of said river until the Luda had passed the De Soto, the said collision would not have occurred between the said boats, nor would the said De Soto have run foul of and against the said Luda, as set forth in the second article of his original libel.
Third. That at the time of said collision, the said steamer Luda was earning freight, being employed by libellant in fulfilling certain verbal contracts of affreightment, entered into by and between him and the Port Hudson, and Clinton, and West Feliciana railroad companies, and various planters, in the month of October, 1843, to transport all the cotton, and sugar, and produce of the country, which said railroad companies and planters might deliver on the banks of the river Mississippi, within the ebb and flow of the tide on said river, to the city of New Orleans during the business season, to wit, from the 1st of October, 1843, to 1st of May, 1844; that the said boat Luda would have earned during said period, by carrying freight in pursuance of said contracts of affreightment, and in the fulfilment and discharge thereof, over and above all expenses, the sum of eight thousand dollars profit for libellant; that by reason of the sinking and destruction of the said steamer Luda, by being run foul of by the said De Soto, as herein and in his original libel is particularly set forth and alleged, libellant has been compelled to forfeit said contracts of affreightment, and to lose the amount of the freight which the said Luda would have earned by fulfilling said contracts, which he would have done, had he not been prevented by the sinking and destruction of said Luda by the said De Soto, to wit, the sum of eight thousand dollars, which sum libellant claims as damages sustained by him resulting from said collision, in addition to the value of said boat Luda, claimed in his original libel, to wit, the sum of sixteen thousand dollars, which two sums make the sum of twenty-four thousand dollars; and libellant expressly alleges, that he has sustained damages to the amount of twenty-four thousand dollars, by reason of the sinking and destruction of the said steamboat Luda by the said boat De Soto, and that the said boat De Soto and owners are liable, and ought to be compelled to pay said sum.
Fourth. That all and singular the premises are true, in verification whereof, if denied, libellant craves leave to refer to depositions and other proof, to be by him exhibited on the trial of this case
Wherefore, in consideration of the premises, libellant reiterates his prayer in his original libel, unto the citations of the owners of the said boat De Soto, and condemnation of said boat, and prays that the said owners may be condemned to pay, in solido, the sum of twenty-four thousand dollars, with all costs in this behalf expended to libellants, and for such other and further relief in the premises as to justice and equity may appertain, &c.
(Signed,) THOMAS CLARKE.
The supplemental answer was as follows:-- To the honorable Theo. H. McCaleb, Judge of the United States District Court in and for the Eastern District of Louisiana.
The amended and supplemental answer of Peter Dalman and Nathaniel S. Waring, claimants and respondents in the case now pending in this honorable court, of Thomas Clarke, late Master of Steamer Luda, for himself and others, owners of said Steamer, v. The Steamer De Soto, and these respondents with leave of the court first granted and obtained to amend their answer; and thereupon the said respondents and claimants do allege and articulately propound as follows:--
First. They admit that the steamers Luda and De Soto, at the time of the collision, were actually engaged in the Bayou Sarah trade, and had been so engaged for a short time previous thereto; but they deny that said boats were contracted for or used in navigating tide-waters, and allege that the steamer De Soto was contracted and used for the Red River trade, where the tide neither ebbs nor flows; and for the reasons given, and for facts stated in their original answer, that this honorable court has not jurisdiction.
Second. They deny all the allegations in the second article of said amended libel, and allege that the steamer De Soto was lightened, managed, and guided in a proper, careful, and lawful manner, at the before the time of collision, and subsequently thereto.
Third. They deny all the allegations of libellant in the third article of said amended libel, and they further say, that even if the libellant should show, on the trial of this cause, or be permitted to do so, which should not be allowed, that they have suffered or sustained consequential damages from said collision, that said libellant has no right to recover such damages from the respondents; they therefore pray that no such claim be allowed the libellants, and that these respondents and claimants may have judgment, as prayed for in the original answer and claim.
(Signed,) JNO. R. GRYMES,
WM. DUNBAR, Proctors for Defendants.
Upon the two questions of fact raised in these libels and answers,-viz., 1st, the extent to which the tide ebbs and flows up the Mississippi river, and, 2d, to whose fault the collision was to be attributed,-a great body of evidence was taken, which it is not thought necessary to insert.
On the 24th of January, 1844, the following judgment was entered by the District Judge:--
'The court, having duly considered the law and evidence in this cause, and for reasons that hereinafter will be given in length and filed in court, doth now order, and adjudge, and decree that the plea to the jurisdiction be overruled, and that the libellants do recover from the steamboat De Soto and owners, Peter Dalman and Nathaniel S. Waring, the sum of twelve thousand dollars, and the costs of suit; and it is further ordered, that the steamboat De Soto be sold, after the usual and legal advertisements, and that the proceeds thereof be deposited in the registry of the court, subject to its further order.'
From this judgment an appeal was filed to the Circuit Court.
In April, 1844, the appeal came on to be heard in the Circuit Court, when much additional testimony was produced, and on the 29th April the court ordered that the exception to the jurisdiction of the court should be dismissed, and the cause proceed on its merits.
On the 6th of May, 1844, the Circuit Court affirmed the decree of the District Court, with costs, from which an appeal was taken to this court.
The cause was argued by Mr. Johnson, for the appellants, and Mr. Crittenden, for the appellees, upon the two grounds, first, of the jurisdiction of the court, and second, on the facts of the case.
The question of jurisdiction came up again, covering additional points, in the case of The New Jersey Steam Navigation Company v. The Merchants' Bank of Boston, which was argued by Mr. Ames and Mr. Whipple, for the appellants, and Mr. Greene and Mr. Webster, for the appellees. The discussion in the latter case took a wider range than in that now under review, and the reporter prepared himself with a full report of the arguments of counsel, upon the entire subject of jurisdiction. But the court having ordered the New Jersey Company case to be continued and reargued, the reporter is not at liberty, of course, to make use of the materials, and is obliged to submit the report of the case of the two steamboats to the profession without any arguments of counsel.
Mr. Justice WAYNE delivered the opinion of the court.
This is a libel in rem, to recover damages for injuries arising from a collision, alleged to have happened within the ebb and flow of the tide in the Mississippi river, about ninety-five miles above New Orleans.
The decree of the Circuit Court is resisted upon the merits, and also upon the ground that the case is not within the admiralty and maritime jurisdiction of the courts of the United States.
We will first consider the point of jurisdiction.
The learned counsel for the appellants, Mr. Reverdy Johnson, contended, that, even if the evidence proved that the collision took place within the ebb and flow of the tide, the court had not jurisdiction, because the locality is infra corpus comitatus.
Two grounds were taken to maintain that position.
1. That the grant in the constitution of 'all cases of [452]
admiralty and maritime jurisdiction in England when our Revolutionary war began, or when the constitution was adopted, and that a collision between ships within the ebb and flow of the tide, infra corpus comitatus, was not one of them.
2. That the distinguishing limitation of admiralty jurisdiction, and decisive test against it in England and in the United States, except in the cases allowed in England, was the competency of a court of common law to give a remedy in a given case in a trial by jury. And as auxiliary to this ground it was urged, that the clause in the ninth section of the Judiciary Act of 1789 (1 Stat. at L., 77), 'saving to suitors in all cases the right of a common law remedy, where the common law is competent to give it,' took away such cases from the admiralty jurisdiction of the courts of the United States.
The same positions have been taken again by Mr. Ames and Mr. Whipple, in the case of the New Jersey Steam Navigation Company v. The Merchants' Bank of Boston. Every thing in support of them, which could be drawn from the history of admiralty jurisdiction in England, or from what had been its practice in the United States, and from adjudged cases in both countries, was urged by those gentlemen. All must admit, who heard them, that nothing was omitted which could be brought to bear upon the subject. We come, then, to the decision of these points, with every advantage which learned research, and ingenious and comprehensive deduction from it, can give us.
It is the first time that the point has been distinctly presented to this court, whether a case of collision in our rivers, where the tide ebbs and flows, is within the admiralty jurisdiction of the courts of the United States, if the locality be, in the sense in which it is used by the common law judges in England, infra corpus comitatus. It is this point that we are now about to decide, and it is our wish that nothing which may be said in the course of our remarks shall be extended to embrace any other case of contested admiralty jurisdiction.
We do not think that either of the grounds taken can be maintained. But before giving our reasons for this conclusion, it will be well for us to state the cases in which the instance court in England exercised jurisdiction when our constitution was adopted.
In cases to enforce judgments of foreign admiralty courts, when the person or his goods are within the jurisdiction. Mariners' wages, except when the contract was under seal, or made out of the customary way of such contracts. Bottomry, in certain cases only, and under many restrictions. Salvage, when the property shipwrecked was not cast ashore. Cases between the several owners of ships, when they disputed among themselves about the policy or advantage of sending her upon a particular voyage. In cases of goods, and the proceeds of goods piratically taken, which will be arrested by a warrant from the court, as belonging to the crown and as droits of the admiralty. And in cases of collision and injuries to property or persons on the high seas.
It may as well be said by us, at once, that, in cases of this last class, it has frequently been adjudicated in the English common law courts, since the restraining statutes of Richard II. and Henry IV. were passed, that high seas mean that portion of the sea which washes the open coast; and that any branch of the sea within the fauces terrae, where a man may reasonably discern from shore to shore, is, or at least may be, within the body of a county. In fact, the general rule in England has been, since the time of Lord Coke, upon the interpretation given by the courts of common law to the statutes 13 and 15 Richard II. and 2 Henry IV., to prohibit the admiralty from exercising jurisdiction in civil cases, or causes of action arising infra corpus comitatus. So sternly has the admiralty been excluded from what we believe to have been its ancient jurisdiction in England, that a prohibition within a few years has been issued in a case of collision happening between the Isle of Wight and the Hampshire coast; and a case of collision in the river Humber, twenty miles from the main sea, but within the flux and reflux of the tide, has been held not to be within the admiralty jurisdiction. The Public Opinion, 2 Hagg. Adm., 398.
It has not, however, been the undisputed rule, nor allowed to be the correct interpretation of the statutes of Richard. It has always been contended by the advocates of the admiralty, that ports, creeks, and rivers are within its jurisdiction, and not within those statutes; meaning that the ancient jurisdiction in such localities was not excluded by the words of the statutes. Browne, however, in his Civil and Admiralty Law, vol. 2, p. 92, thinks they were within the words of the statutes; not meaning, though, to affirm the declaration of Lord Coke, that those statutes were affirmative of the common law. We think they were not. However much every true English and American lawyer may feel himself indebted to the learning of that great lawyer, and will ever be cautious of disparaging it, it is difficult for any one to read and reflect upon the part which he took in the controversy upon admiralty jurisdiction in England, without assenting to Mr. Justice Buller's remarks, in Smart v. Wolf, 3 T. R., 348:-'With respect to what is said relative to the admiralty jurisdiction in 4th Inst., 135, I think that part of Lord Coke's work has always been received with great caution, and frequently contradicted. He seems to have entertained not only a jealousy of, but an enmity against, that jurisdiction. The passage in 4th Inst., 135, disallowing the right to take stipulations, is expressly denied in 2 Ld. Raym., 1826. And I may conclude with the words of Lord Holt in that case, and in this case 'the admiralty had jurisdiction, and there is neither statute nor common law to restrain them." Having thus admitted, to the fullest extent, the locality in England within which the courts of common law permitted the admiralty to exercise jurisdiction in cases of collision, we return to the ground taken, that the same limitation is to be imposed, in like cases, upon the admiralty courts of the United States.
We have already said it cannot be maintained. It is opposed by general, and also by constitutional considerations, to which we have not heard an answer.
In the first place, those who framed the constitution, and the lawyers in America in that day, were familiar with a different and more extensive jurisdiction in most of the States when they were colonies, than was allowed in England, from the interpretation which was given by the common law courts to the restraining statutes of Richard II. and Henry IV. The commissions to the vice-admirals in the colonies in North America, insular and continental, contained a much larger jurisdiction than existed in England when they were granted. That to the governor of New Hampshire, investing him with the power of an admiralty judge, declares the jurisdiction to extend 'throughout all and every the sea-shores, public streams, ports, fresh-water rivers, creeks and arms, as well of the sea as of the rivers and coasts whatsoever, of our said provinces.'
In a work by Anthony Stokes, his Majesty's chief justice in Georgia, entitled, 'A View of the Constitution of the British Colonies in North America and the West Indies,' will be found, at page 166, the form of the commission of vice-admiral for the provinces in North America. He says, in page 150, the dates in the commission are arbitrary, and the name of any particular province is omitted. Its language is,-'And we do hereby remit and grant unto you, the aforesaid A. B., our power and authority in and throughout our province of _____ afore mentioned, &c. &c., and maritime ports whatsoever, of the same and thereto adjacent, and also throughout all and every of the sea-shores, public streams, ports, fresh-water rivers, creeks and arms, as well of the sea as of the rivers and coasts whatsoever, of our said province of F.' The extracts from both commissions are the same. We have the authority of Chief Justice Stokes, that all given in the colonies were alike. The jurisdiction given in those commissions is as large as was exercised in the ancient practice in admiralty in England. It should be observed, too, that they were given long before any difficulties occurred between the mother country and ourselves; and that they contained no power complained of by us afterwards, when it was said an attempt was made to extend admiralty powers 'beyond these ancient limits.' The king's authority to grant those commissions in the colonies has never been, and cannot be, denied. In all the appeals taken from the colonial courts to the High Court of Admiralty in England, no such thing was ever intimated.
Was it not known, also, that, whilst the States were colonies, viceadmiralty courts had been in all of them,-in some, as has just been said, by commissions from the crown, with additional powers conferred upon them by acts of Parliament; in others, by rights reserved in their charters, and in other colonies by their own legislation?-that, whether from either source, they exercised a jurisdiction over all maritime contracts, and over torts and injuries, as well in ports as upon the high seas?-that acts of Parliament recognized their jurisdiction as original maritime jurisdiction, in all seizures for contravention of the revenue laws?
Was not a larger jurisdiction in admiralty exercised in Massachusetts, throughout her whole colonial existence, than was permitted to the admiralty in England by the prohibitions of her common law courts? Were her members in the convention which formed our constitution ignorant of it?
Were the members from Pennsylvania and South Carolina forgetful, that the extent of the admiralty jurisdiction in the colonies had been the subject of judicial inquiry in England, growing out of proceeding in the admiralty courts of both of those States in revenue cases?-that it had been decided in 1754, in the case of the Vrow Dorothea, 2 Rob., 246,-which was an appeal from the vice-admiralty judge in South Carolina to the High Court of Admiralty, and thence to the delegates,-that the jurisdiction in admiralty in the colonies for a breach of the revenue laws was in its nature maritime, and was not a jurisdiction specially conferred by the statute of William III., ch. 22, § 6; a judgment which subsequently received the assent of all the common law judges, in a reference to them from the privy council? 2 Rob., 246; 8 Wheat., 397, note. This, too, after an eminent lawyer, Mr. West, assigned as counsel to the Commissioners of Trade and Plantations, had in 1720 expressed the opinion, that the statutes of 13 and 15 Richard II., ch. 3, and 2 Henry IV., ch. 11, and 27 Elizabeth, ch. 11, were not introductive of new laws, but only declarative of the common law, and were therefore of force in the plantations; and that none of the acts of trade and navigation gave the admiralty judges in the West Indies increase of jurisdiction beyond that exercised by the High Court of Admiralty at home.
Shall it be presumed, also, that the members of the convention were altogether disregardful of what had been the early legislation of several of the States, when they were colonies, upon admiralty jurisdiction and the rules for proceeding in such courts?-of the larger jurisdiction given by Virginia by her act of 1660, than was at that time allowed to the admiralty in England? that it was passed in the year that the ordinance of the republican government in England expired by the restoration? That ordinance revived much of the ancient jurisdiction in admiralty. It was judicially acted upon in England for twelve years. When it expired there, the enlightened influences connected with trade and foreign commerce, 'and the uncertainty of jurisdiction in the trial of maritime causes,' which led to its enactment, no doubt had their weight in inducing Virginia, then our leading colony in commerce, to adopt by legislation many of its provisions. That ordinance and the act of Virginia have, in our view, important bearings upon the point under consideration. They were well known to those who represented Virginia in the convention. In its proceedings, they had an active and intellectual agency, which makes it very unlikely that they were unmindful of the admiralty jurisdiction in Virginia. In New York, also, there was a court of admiralty, the proceedings of which were according to the course of the civil law. Maryland, too, had her admiralty, differing in jurisdiction from that of England.
Further, the proceedings of our Continental Congress in 1774 afford reasons for us to concluded that no such limitation was meant. The admiralty jurisdiction, ancient and circumscribed as it afterwards was in England, and as it was exercised in the colonies, was necessarily the subject of examination, when the Congress was preparing the declaration and resolves of the 14th October, 1774; in which it is said, 'that the several acts of 4 George III., ch. 15, 34; 5 Geo. III., ch. 25; 6 Geo. III., ch. 52; 7 Geo. III., ch. 41; and 8 Geo. III., ch. 22, which impose duties for the purpose of raising a revenue in America, extend the power of the admiralty courts beyond their ancient limits.' Journal of Congress, 1774, 21. Again, when it was said (Journal, 33), after reciting other grievances under the statute of 1767,-'And amidst the just fears and jealousies thereby occasioned, a statute was made in the next year (1768) to establish courts of admiralty on a new model, expressly for the end of more effectually recovering of the penalties and forfeitures inflicted by acts of Parliament, framed for the purpose of raising revenue in America.' And again, in the address to the king (Journal, 47), it is said,-'By several acts of Parliament, made in the fourth, fifth, sixth, seventh, and eighth years of your Majesty's reign, duties are imposed upon us for the purpose of raising a revenue, and the powers of the admiralty and vice-admiralty courts are extended beyond their ancient limits; whereby our property is taken from us without our consent,' &c. Why this repeated allusion to the ancient limits of admiralty jurisdiction, by men fully acquainted with every part of English jurisprudence, if they had not believed it had existed in England at one time much beyond what was at that time its exercise in her admiralty courts?
With these proceedings of the Continental Congress every member of the convention which framed the constitution was familiar. They knew, also, what had been the extent and the manner of the exercise of admiralty jurisdiction in the States, after the war began, until the articles of confederation had been ratified, what it had been thence to the adoption of the constitution. Advised, as they were by personal experience, of the difficulties which attended the separate exercise by the States of admiralty powers, before the confederation was formed, and afterwards from the restricted grant of judicial power in its articles, can it be supposed, in framing the constitution, when they were endeavouring to apply a remedy for those evils by getting the States to yield admiralty jurisdiction altogether to the United States, it was intended to circumscribe the larger jurisdiction existing in them to the limited cases, and those only then allowed in England to be cases of admiralty and maritime jurisdiction?-that the latter was exclusively intended, without any reference to the former, with which they were most familiar? Can it be reasonable to infer that such were the intentions of the framers of the constitution? Is it not more reasonable to say,-nay, may we not say it is certain, that, in their discussions and thoughts upon the grant of admiralty jurisdiction, they mingled with what they knew were cases of admiralty jurisdiction in England what it actually was and had been in the States they were representing, with an enlarged comprehension of the controversy which had been carried on in England for more than two hundred years, between the judges of the common law courts and the admiralty, upon the subject of its jurisdiction? Besides, nothing can be found in the debates of the convention, nor in its proceedings, nor in the debates of the conventions in the States upon the constitution, to sanction such an idea. It is remarkable, too, that the words, 'all cases of admiralty and maritime jurisdiction,' as they now are in the constitution, were in the first plan of government submitted to the convention, and that in all subsequent proceedings and reports they were never changed. There was but one opinion concerning the grant, and that was, the necessity to give a power to the United States to relieve them from the difficulties which had arisen from the exercise of admiralty jurisdiction by the States separately. That would not have been accomplished, if it had been intended to limit the power to the few cases of which the English courts took cognizance.
But, besides what we have already said, there is, in our opinion, an unanswerable constitutional objection to the limitation of 'all cases of admiralty and maritime jurisdiction,' as it is expressed in the constitution, to the cases of admiralty and maritime jurisdiction in England when our constitution was adopted. To do so would make the latter a part and parcel of the constitution,-as much so as if those cases were written upon its face. It would take away from the courts of the United States the interpretation of what were cases of admiralty and maritime jurisdiction. It would be a denial to Congress of all legislation upon the subject. It would make, for all time to come, without an amendment of the constitution, that unalterable by any legislation of ours, which can at any time be changed by the Parliament of England,-a limitation which never could have been meant, and cannot be inferred from the words, which extend the jurisdiction of the courts of the United States 'to all cases of admiralty and maritime jurisdiction.' One extension of the jurisdiction of the courts of the United States exists beyond the limitation proposed, just as it existed in the colonies before they became independent States, which never has been a case of admiralty jurisdiction in England. We mean seizures under the laws of impost, navigation, or trade of the United States, where the seizures are made on waters navigable from the sea by vessels of ten or more tons burden, within the respective districts of the courts, as well as upon the high seas. And this, we have shown in a previous part of this opinion, was decided in England as early as 1754, with the subsequent assent of the common law judges, not to be a jurisdiction conferred upon the courts of admirality in the colonies by statutes, but was a case in the colonies of admiralty jurisdiction (2 Rob., 246). And so it is treated in the ninth section of the Judiciary Act of 1789. We cannot help thinking that section-a declaration by Congress contemporary with the adoption of the constitution-very decisive against the limitation contended for by counsel in this case. Again, this court decided, as early as 1805 (2 Cranch, 405), in the case of the Sally, that the forfeiture of a vessel, under the act of Congress against the slave-trade, was a case of admiralty and maritime jurisdiction, and not of common law. And so it had done before, in the case of the La Vengeance (3 Dall., 397). Again, Congress, by an act passed the 19th of June, 1813 (3 Stat. at L., 2), declared that a vessel employed in a fishing voyage should be answerable for the fishermen's share of the fish caught, upon a contract made on land, in the same form and to the same effect as any other vessel is by law liable to be proceeded against for the wages of seamen or mariners in the merchant service. We shall cite no more, though we might do so, of legislative and judicial interpretations, to show that the admiralty jurisdiction of the courts of the United States is not confined to the cases of admiralty jurisdiction in England when the constitution was adopted.
No such interpretation has been permitted in respect to any other power in the constitution. In what aspect would it not be presented, if applied to the clause immediately preceding the grant of admiralty jurisdiction,-'to all cases affecting ambassadors, other ministers, and consuls'? Is that grant, too, to be interpreted by the jurisdiction which the English common law courts exercise in cases affecting those functionaries, or to be regulated by what Lord Coke says, in 4 Inst., 152, to be their liabilities to punishment for offences? Try the interpretation proposed by its application to the grant to Congress 'to establish uniform laws on the subject of bankruptcies throughout the United States.' Would it not result in this, that all the power which Congress had under that grant was the bankrupt system of England as it existed there when the constitution was adopted? Such a limitation upon that clause we deny. We think we may very safely say, such interpretations of any grant in the constitution, or limitations upon those grants, according to any English legislation or judicial rule, cannot be permitted. At most, they furnish only analogies to aid us in our constitutional expositions. We therefore conclude, that the grant of admiralty power to the courts of the United States was not intended to be limited or to be interpreted by what were cases of admiralty jurisdiction in England when the constitution was adopted.
We will now consider the proposition, that the test against admiralty jurisdiction in England and the United States is the competency of a court of common law to give a remedy in a given case in a trial by jury; or that in all cases, except in seamen's wages, where the courts of common law have a concurrent jurisdiction with the admiralty, and can try the cause and give redress, that alone takes away the admiralty jurisdiction. It has the authority of Lord Coke to sustain it. But it was the effort and the design of Lord Coke to make locality the boundary in cases of contract, as well as in tort, that is, to limit the jurisdiction in admiralty to contracts made on the sea and to be executed on the sea; and to exclude its jurisdiction in all cases of marine contracts made on the land, though they related exclusively to marine services, principally to be executed on the sea. To that extent the admiralty courts were prohibited by the common law judges from exercising jurisdiction, until the unreasonableness and inconvenience of the restriction forced them to relax it in the case of seamen's wages. Then it was that the common law courts began to reflect upon what jurisdiction in admiralty rested, and upon the principles upon which it would attach. With the acknowledgment of all of them ever since, it was affirmed that the subject-matter, and not locality, determined the jurisdiction in cases of contract. Passing over intermediate decisions showing the manner and the reasons given for the relaxation in the one case, and the revival of the other, for which the admiralty always contended, we will cite the case of Menetone v. Gibbons, 3 T R., 269, 270. Lord Kenyon and Sir Francis Buller say, in that case, the question whether the admiralty has or has not jurisdiction depends upon the subject-matter. We wish it to be remarked, however, that the manner of proceeding is another affair, with which we do not meddle now.
It was only upon the principle that the subject-matter in cases of contract determined the jurisdiction, that this court decided the cases of The Aurora, 1 Wheat., 96, The General Smith, 4 Id., 438, and The St. Jago de Cuba, 9 Id., 409.
If, then, in both classes of civil cases of which the instance court has jurisdiction, subject-matter in the one class, and locality in the other, ascertains it, neither a jury trial nor the concurrent jurisdiction of the common law courts can be a test for jurisdiction in either class. Crimes, as well those of which the admiralty has jurisdiction as those of which it has not, except in cases of impeachment, the constitution declares shall be tried by a jury. But there is no provision, as the constitution originally was, from which it can be inferred that civil causes in admiralty were to be tried by a jury, contrary to what the framers of the constitution knew was the mode of trial of issues of fact in the admiralty. We confess, then, we cannot see how they are to be embraced in the seventh amendment of the constitution, providing that in suits at common law the trial by jury should be preserved. Cases under twenty dollars are not so provided for. Does not the specification of amount show the class of suits meant in the amendment, if any thing could show it more conclusively than the term 'suits at common law'?
Suits at common law are a distinct class, so recognized in the constitution, whether they be such as are concurrent with suits of which there is jurisdiction in admiralty, or not. Can concurrent jurisdiction imply exclusion of jurisdiction from tribunals, in cases admitted to have been cases in admiralty, without trial by jury? Again, suits at common law indicate a class, to distinguish them from suits in equity and admiralty; cases in admiralty another class distinguishable from both, as well as to the system of laws determining them as the manner of trial, except that in equity issues of fact may be sent to the common law courts for a trial by jury. Suppose, then, the seventh amendment of the constitution had not been made, suits at the common law and in admiralty would have been tried in the accustomed way of each. But an amendment is made, inhibiting any law from being passed which shall take away the right of trial by jury in suits at common law. Now by what rule of interpretation or by what course of reasoning can such a provision be converted into an inhibition upon the mode of trial of suits which are not exclusively suits at common law, recognized, too, as such by the constitution, for the trial of which Congress can establish courts which are not courts of common law, but courts of admiralty, without or with a jury, in its discretion, to try all issues of fact? Tried in either way, though, they are still cases in admiralty, and this power in Congress, under the grant of admiralty jurisdiction, to try issues of fact in it by jury, being as well known when the seventh amendment was made as it is now, is conclusive that it was done with reference to suits at common law alone. There is no escape from this result, unless it is to be implied that the amendments were proposed by persons careless or ignorant of the difference in the mode of trial of suits at common law and in admiralty. But they were not so, for we find some of them in Congress, a few months after, preparing and concurring in the enactment of a law, that the 'trials of issues in fact in the District Courts, in all causes except civil causes of admiralty and maritime jurisdiction, shall be by jury.'
In respect to the clause in the ninth section of the Judiciary Act,-'saving and reserving to suitors in all cases a common law remedy where the common law is competent to give it,' we remark, its meaning is, that in cases of concurrent jurisdiction in admiralty and common law, the jurisdiction in the latter is not taken away. The saving is for the benefit of suitors, plaintiff and defendant, when the plaintiff in a case of concurrent jurisdiction chooses to sue in the common law courts, so giving to himself and the defendant all the advantages which such tribunals can give to suitors in them. It certainly could not have been intended more for the benefit of the defendant than for the plaintiff, which would be the case if he could at his will force the plaintiff into a common law court, and in that way release himself and his property from all the responsibilities which a court of admiralty can impose upon both, as a security and indemnity for injuries of which a libellant may complain, securities which a court of common law cannot give.
Having disposed of the objections to the jurisdiction of the courts of admiralty of the United States, growing out of the supposed limitation of them to the cases allowed in England and from the test of jury trial, we proceed to consider that objection to jurisdiction in this case, because the collision took place infra corpus comitatus. We have admitted the validity of this objection in England, but on the other hand it cannot be denied that the restriction there to cases of collision happening super altum mare, or without the fauces terrae, was imposed by the statutes of Richard, contrary to what had been in England the ancient exercise of admiralty jurisdiction in ports and havens within the ebb and flow of the tide. We have seen no case, ancient or modern, from which it can correctly be inferred, that such exercise of jurisdiction was prohibited by mere force of the common law. The most that can be said in favor of the statutes of Richard being affirmative of the common law, are the assertions of Lord Coke and the prohibitions of the common law courts, subsequent to those statutes, and founded upon them, restricting the jurisdiction of the courts of admiralty to cases of collisions happening upon the high seas; contrary to what we have already said was its ancient jurisdiction in ports and havens in cases of torts and collision, and certainly in opposition to what was then, and still continues to be, the admiralty jurisdiction, in cases of collision, of every other country in Europe.
But giving to such prohibitions of the courts of common law the utmost authority claimed for them,-that is, that they are affirmances of the common law as interpretations of the statutes of Richard,-does it follow that they are to be taken as a rule in the admiralty courts of the United States in cases of collision? Must it not first be shown that the statutes of Richard were in force as such in America, and that the colonies considered and adopted that portion of the common law as applicable to their situation? Now, the statutes of Richard were never in force in any of the colonies, except as they were adopted by the legislation of some of them; and the common law only in its general principles, as they were applicable, with such portions of it as were adopted by common consent in any one of the colonies, or by statute. This being so, the rule in England for collision cases being neither obligatory here by the statutes of Richard nor by the common law, we feel ourselves permitted to look beyond them, to ascertain what the locality is which gives jurisdiction to the courts of the United States in cases of collision or tort, or what makes the subject-matter of any service or undertaking a marine contract. Are we bound to say, because it has been so said by the common law courts in England in reference to the point under discussion, that sea always means high sea, or the main sea?-that the waters flowing from it into havens, ports, and rivers are not 'parcel of the sea'?-that the fact of the political division of a country into counties makes it otherwise, and takes away the jurisdiction in admiralty, in respect to all the marine means of commerce and the injuries which may be done to vessels in their passage from the sea to their ports of destination, and in their outward-bound voyages until they are upon the high sea? Is there not a surer foundation for a correct ascertainment of the locality of marine jurisdiction in the general admiralty law, than the designation of it by the common law courts in England? Especially when the latter has in no instance been applied by England as a limitation upon the general admiralty law in any of her colonies; and when in all of them, until the act of 2 William IV., c. 51, was passed, the commissions gave to her vice-admirals jurisdiction 'throughout all and every of the sea-shores, public streams, ports, fresh-water rivers, creeks and arms, as well of the sea as of the rivers and coasts whatsoever.' Besides, the use of the word sea to fix admiralty jurisdiction, and what part of it might be within the body of a county, have not been settled points among the common law judges in England. Lord Hale differed from Lord Coke. The former, in defining what the sea is, says,-'that it is either that which lies within the body of the county or without; that arm or branch of the sea which lies within the fauces terroe is, or at least may be, within the body of a county; that part which lies not within the body of a county is called the main sea.' It is difficult to reconcile the differences of opinion and of definition given by the common law courts in Lord Coke's day, and for fifty years afterwards, as to the meaning and legal application of the word sea, so as to make a practical rule to govern the decisions of cases, or to determine what were cases of admiralty jurisdiction. But there is no difficulty in making such a rule, if the construction of it, by the admiralty courts, is adopted. In that construction, it meant not only high sea, but arms of the sea, waters flowing from it into prots and havens, and as high upon rivers as the tide ebbs and flows. We think in the controversy between the courts of admiralty and common law, upon the subject of jurisdiction, that the former have the best of the argument; that they maintain the jurisdiction for which they contend with more learning, more directness of purpose, and without any of that verbal subtilty which is found in the arguments of their adversaries. The conclusions of the admiralty, too, are more congenial with our geographical condition. We may very reasonably infer they were thought so on that account by the framers of the constitution when the judicial grant was expressed by them in the words,-'all cases of admiralty and maritime jurisdiction.' In those words it is given by Congress to the courts, leaving to them the interpretation of what were such cases; as well the subjectmatter which makes them so, as the locality which gives admiralty jurisdiction in cases of tort and collision. The grant, too, has been interpreted by this court in some cases of the first class, which leaves no doubt upon our minds as to the locality which gives jurisdiction in the other. We do not consider it an open question, but res adjudicata by this court. In Peyroux et al. v. Howard & Varion, 7 Pet., 342, the objection to the jurisdiction was overruled, upon the ground that the subject-matter of the service rendered was maritime, and performed within the ebb and flow of the tide, at New Orleans. The court say, although the current in the Mississippi at New Orleans may be so strong as not to be turned backward by the tide, yet if the effect of the tide upon the current is so great as to occasion a regular rise and fall of the water, it may properly be said to be within the ebb and flow of the tide. The material consideration is, whether the service is essentially a maritime service and to be performed on the sea or on tide water. In the case of The Steamboat Orleans v. Phoebus, 11 Pet., 175, the jurisdiction of the court was denied, on the ground that the boat was not employed or intended to be employed in navigation and trade on the sea, or on tide waters. In Steamboat Jefferson, Johnson claimant, 10 Wheat., 428, this court says,-'In respect to contracts for the hire of seamen, the admiralty never pretended to claim, nor could it rightfully exercise, any jurisdiction, except in cases where the service was substantially performed, or to be performed, on the sea or upon waters within the ebb and flow of the tide. This is the prescribed limit, which it was not at liberty to transcend. We say, the service was to be substantially performed on the sea, or on 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 miles above the ebb and flow of the tide; and in no just sense can the wages be considered as earned in a maritime employment.' In United States v. Coombs, 12 Pet., 72, where the question certified to the court directly involved what was the admiralty jurisdiction, under the grant of 'all cases of admiralty and maritime jurisdiction,' the language of this court is,-'The question which arises is, What is the true nature and extent of the admiralty jurisdiction? Does it, in cases where it is dependent upon locality, reach beyond high-water mark? Our opinion is, that in cases purely dependent upon the locality of the act done, it is limited to the sea, and to tide waters, as far as the tide flows; and that it does not reach beyond high-water mark. It is the doctrine which has been repeatedly asserted by this court; and we see no reason to depart from it.' Now, though none of the foregoing cases are cases of collision upon tide waters, but of contracts, services rendered essentially maritime, and in a case of wreck,-the point ruled in all of them, as to the jurisdiction of the court in tide water as far as the tide flows, was directly presented for decision in each of them. The locality of jurisdiction, then, having been ascertained, it must comprehend cases of collision happening in it. Our conclusion is, that the admiralty jurisdiction of the courts of the United States extends to tide waters, as far as the tide flows, though that may be infra corpus comitatus; that the case before us did happen where the tide ebbed and flowed infra corpus comitatus, and that the court has jurisdiction to decree upon the claim of the libellant for damages.
Before leaving this point, however, we desire to say that the ninth section of the Judiciary Act countenances all the conclusions which have been announced in this opinion. We look upon it as legislative action contemporary with the first being of the constitution, expressive of the opinion of some of its framers, that the grant of admiralty jurisdiction was to be interpreted by the courts in accordance with the acknowledged principles of general admiralty law. In that section the distinction is made between high seas and waters which are navigable from the sea by vessels of ten or more tons burden. Admiralty jurisdiction is given upon both, and though the latter is confined by the language to cases of seizure, it is so with the understanding that such cases were strictly of themselves within the admiralty jurisdiction. It declares that issues of fact in civil causes of admiralty and maritime jurisdiction shall not be tried by a jury, and makes so clear an assignment to the courts of jurisdiction in criminal, admiralty, and common law suits, that the two last connot be so confounded as to place both of them under the seventh amendment of the constitution, which is,-'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re examined, in any court of the United States, than according to the rules of the common law.'
As to the merits of this case, as they are disclosed by the evidence, we think that the Luda was run down, whilst she was in the accustomed channel of upward navigation, by the De Soto, being out of that for which she should have been steered to make the port to which she was bound. It is a fault which makes the defendants answerable for the losses sustained from the collision. That loss will not be more than compensated by the decree of the Circuit Court. We shall direct the decree to be affirmed.
There is a point in this case still untouched by us, which we will now decide. The libellants claim a recovery, independently of all the other evidence in the case, upon the single fact disclosed by it, that the collision happened whilst the De Soto was navigating the river at night without such signal lights as are required by the tenth section of the act of the 7th of July, 1838 (5 Stat. at L., 304). It is entitled, 'An act to provide for the better security of the lives of passengers on board of vessels propelled in whole or part by steam.' The tenth section of it declares,-'It shall be the duty of the master and owner of every steamboat, running between sunset and sunrise, to carry one or more signal lights, that may be seen by other boats navigating the same waters, under the penalty of two hundred dollars.' This section, and the other provisions of the act, except as it has been changed by the act of 1843 (5 Stat. at L., 626), apply to all steamers, whatever waters they may be navigated upon, within the United States or upon the coast of the same, between any of its ports. Signal lights at night are a proper precaution conducing to the safety of persons and property. The neglect of it, or of any other requirement of the statute, subjects the masters and owners of steamboats to a penalty of two hundred dollars, which may be recovered by suit or indictment (§ 11). But, besides the penalty, if such neglect or disobedience of the law shall be proved to exist when injury shall occur to persons or property, it would throw upon the master and owner of a steamboat by whom the law has been disregarded the burden of proof, to show that the injury done was not the consequence of it.
It is said, in this case, that the De Soto had not signal lights. Whether this be so or not, we do not determine; but it is certain, from some cause or other, that they were not seen by those navigating the Luda. If they had been, it is not improbable that the collision would have been avoided. We do not put our decision of this case, however, upon this ground, but we do say, if a collision occurs between steamers at night, and one of them has not signal lights, she will be held responsible for all losses until it is proved that the collision was not the consequence of it.
The act of July 7th, 1838, in all its provisions, is obligatory upon the owners and masters of steamers navigating the waters of the United States, whether navigating on waters within a State or between States, or waters running from one State into another State, or on the coast of the United States between the ports of the same State or different States.

## Notes

* ↑ See Insurance Co. v. Dunham, 11 Wall., 25.
* ↑ CITED. New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How., 392; and see Id., 422, 425, 430, 431.
* ↑ CITED. The City of Washington, 2 Otto, 36.
* ↑ APPLIED. The Excelsior, 12 Fed. Rep., 203.
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