CITY OF MILWAUUlll.
CITY OF MILWAUKEE, etc.
April 3, 1880.)
Oourt, 8. D. New York.
ADMIRALTY JURISDICTION-MA1UTIME TORT ON CANAL-"NAVIGABLE
maritime tort, committed upon an artificial water-way or canal opened by a state for the purposes of commerce, is within the admiralty jurisdiction of the United States courts, where such water-way is in fact used as a highway of commerce between the states of the Utlion and between foreign countries.
WATER OF THE UNITED STATES. "-An alleged
Libel to recover damages caused by a collision. E. D. McOarthy, for libellant. F. A. Wilcox, for claimants. CHOATE, J. This is a libel to recover damages caused by a collision between the libellant's canal boai Oliver C. Gibson and the steam canal boat City of Syracuse, while the lat- . ter was in tow of the steam canal boat City of Milwaukee, which was proceeding under steam and towing the City of Syracuse on a hawser of about 100 feet in length. The collision happened on the evening of November 2, 1877'. The place of the collision was in the Erie canal, about 100 miles east of Buffalo, in the county of Munroe, and l:ltate of New York. The canal boats City of Milwaukee and City of Syracuse were attached by the marshal of this district, on the process issued in this case, in a place called the New Jersey central basin, within the limits of Jersey City. This basin communicates with the bay of New York through the Morris canal basin, and the place of seizure was about half a mile from what is now the open bay, and at a point about 500 feet southerly of the original shore line at high-water mark, and about 150 feet westerly from the westerly side of Henderson street, which is at that place an artificial structure built out into the bay upon the flats. Thirty years ago this basin in which the boats were seized was part of the bay of New York, , and admitted to be below the ordinary high-water line on the Jersey shore. Two defences are made by way of exception, as well as by answer, which it is necessary to dispose of before considering the merits of the case: (1) that the subject-matter of the suii
is not within the admiralty jurisdiction of the United States, the pla<;le of collision being upon a canal or artificial waterway over which that jurisdiction does not extend; and (2) that the place where the canal boats were seized by the mar· shal is without the limits of the southern district of New 'York. 1. The first question is one of very great importance to the commercial interest of the country.. It has never been expressly decided by the supreme court of the United States, but the weight of authority is in favor of the jurisdiction. In the case of the The Monitor the district court for the eastern district of New York entertained jurisdiction of a case of collision upon the Delaware & Raritan canal, which, like the Erie canal, is an artificial water-way over the land, but communicating between what are admitted to be navigable waters of the United States. Upon an application to the supreme court for a writ of prohibition that court refused the writ. It is understood, however, that the eight justices who heard the case were equally divided in opinion, and no written opinions were delivered.. The point arose, and was expressly ruled in favor of the jurisdiction by Judge Emmons, in the case of The A von, 1 Brown's Adm. Rep. 170. It is also understood that the jurisdiction is entertained by several of the district courts. The point is somewhat discussed in the case of The E. D. McOhesney, 8 Ben. 150, by Judge Blatchford, but the case before him did not call for a determination of the question. Without going at large into a discussion of the reasons for and against the jurisdiction, it is enough for the disposition of the point in this case to say that, upon a careful perusal of the opinions delivered by the supreme court which touch upon the question, it seems to me that the test established lor 'determining the jurisdiction in admiralty, in a case of alleged maritime tort not on tide-water, is whether the place in which it was committed is upon the "navigable waters of the United States," and that an artificial water-way or canal opened by a state to public use, for purposes of commerce, and while in fact used as a highway of commerce between