UNITED STA.1'ES V. BURLINGTON & HENDERSON OOUNTY JrERBY
ao.
331/
and 1873, some of which he sold to others for use ; and if those now made by the complainant, under his patent, B,re superior in any respect to those first specimens of the manufacture, it is merely in point of finish and workmanship. is no difference whatever in principle, and the early examples were complete and practical frames, actuallJ used, and pe'rfectly serving the purpose, so that they cannot be considered as rude and imperfect experiments, subsequently developed into a successful manufacture. This conclusion, indeed, is required by the production in evidence of the patent granted to Hutchins, of December 8, 1874, No. 15'{,473, which is for a machine for the manufacture of just such blanks from the original log of wood, to be bent into form, and the ends united, so as to make the sides of a box for any pbrpose. The invention of such a machine, of course, supposes knowledge of the blanks it was designed to manufacture; and the transfer of the use of a box made from such a blank, from the ordinary purposes to the simple and special purpose of a box. or frame for a honey section, is merely a new use of an old and well-known article, which involves no invention. It results from these views that the equity of the case is with the defendant, and that the complainant's bill mQ.st be dismissed, with costs; and it is so ordered.
UNITED STATES V. HURLINGTON
&
HENDERSON COUNTY FERRY
Co.
(District Court, S. D. Iowa. June Term, 1884.) 1. CONSTITUTIONAL LAW-NAVIGABLE WATERS OF UNITED STATES.
Rivers are navigable waters of the United States, within the meaning of the acts of congress, in contradistinction from the navigable rivers of the states, when they form in their ordinary condition by themselves, or by uniting with other rivers, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes 1u which commerce is conducted by water.
2.
BAME-NAVIGABLE WATERS OF A STATE.
A lake or river which is completely within the limits of a state, without any naVigable outlet to any other state or country, is a navigable water of the state not within the jurisdiction of the federal government. In order to give jurisdiction to a federal court in any case whatever, the constitution and the statute law must concur. It is not sufficient that the jurisdiction may be found in the constitution or the law; the two must co-operate: the constitution as the fountain, and the laws of congress as the streams from which and through which the waters of jurisdiction rlow to the court. STATE LAW CREATING OR EN-
3. SAME-JURISDICTION OF FEDERAL COURTS-How CONFEURED.
4.
BAllE-AnWRALTY. JURI8DlCTION ExCLUSIVE FOROING MARITIME LIENS.
The admiralty jurisdiction of the federal conrts is exclusive, and all state laws creating maritime liens, or jurisdiction in rem to enforce such liens, are un· constitutional and void.
6.
SAME-REGULATION OF COMMEROE.
The admiralty jurisdiction of the courts of the United Btates cannot be made to depend on regulations of commerce. They are entiTely things, hav. in.! no necessary connection with one another, and are conferred in the constitution by separate and distinct grantd.
FEDERAL REPORTER.
SAME-NAVIGABILITY AS TEST OF JURISDICTION- VESSELS ENGAGED m MESTIC COMMEBCE.
Do-
Navigability being the test of admiralty jurisdiction, the true doctrine now is that the admiralty jurisdiction of the United States courts extends to all vesseh navigating the waters of the United States, whatever may be the character of the commerce in which they are engaged, whether foreign, interstate, or completely internal to the states.
Congress has power to regulate by law the navigation of boats and vllssels floating in the navigable waters of the United States when engaged exclusively in the domestic commerce of the states. 8. SAMb; - Y IOLA'fiON OF REV. 8"1'. § 4466 - FERlty-BOAT - EXCURSION BETWEEN POR'fS I:r\ S.UIE Si'ATJ<]-.MAHITUIE TORT-LIBEL IN PERSONAM.
7.
SA)IE-POWEI, OF CONGHESS TO HEGULA'l'E NAVIGATION.
A boat or vessel plying between two ports in the same state, upon any navigable water of the United States, but engaged exclusively in the domestic com. merce of the state, is within the admiralty jurisdiction of the United States, and when a steam ferry-boat, contrary to the provision of Rev. St. § 4466, carries passengers on an excursion, largely in excess of the number allowed by her permit, and fails to carry the required number of life-preservers, she is guilty of a marine tort, and a United States district court has jurisdiction of a libel tn per.'onam against her owners and master to recover the penalty prescribed by section 4500.
,
UNITED STA'rES V. BURLINGTON & HENDERSON OOUNTY FERRY 00.
883
flver, carrymgpassengers from one place in the state of other place in the same state. It does not appear that she was engaged in any interstate commerce whatever. "Commerce," says the supreme court of the United States in Gibbons v. Ogden, 9 Wheat. 1, "is more than traffic: it is intercourse;" and the carrying of passengers is commercial inte'rcourse. The navigation in question was within a "water of the United States," as contradistinguished from "a water of the states;" but the commerce in which the boat was engaged was "completely internal" to the state of Iowa. Such being the facts, the counsel for the respondents contend that the case is not within the jurisdiction of the district court of the United States. It is necessary, in the decision of this case, to keep clearly in view the definition of the terms "waters of the United States," as given by the supreme court of the United States. In The Daniel Ball, 10 Wall. 563, the supreme conrt say that our rivers are "navigable waters of the United States, within the meaning of the acts of congress, in contradistinction from the navigable rivers of the states, when they form in their ordinary condition by themselvell, or by uniting with other, rivers, a continued highway over which commerce is or may be carried on with other states or foreign countries. in the customary modes in which commerce is conducted by water." Within this definition the court has held the Fox river, and also the Grand river, a small navigable stream wholly within the state of Michigan, flowing into Lake Michigan, to be a "navigable water" of the United States. See;' also, The Montello, 11 Wall. 411, and particularly the same case, 2Q Wall. 430. In Ex parte Boyer, 109 U. S. 629, S. C. 3 Sup. Ct. Rep. 434, the supreme court approved the dicta of these cases, and held that the Illinois and Michigan canal, though a water-way wholly,artificial, is public water of the United States, and within the legitimate 8,cope of the admiralty jurisdiction. It follows that a lake or river which is completely within the limits of a state, without any igable outlet to any other state or country, is a navigable water of the state not within the jurisdiction of the federal government. Itthua appears that the so-called waters of the United States include; navh gable streams without number; indeed, the whole river systeln of'our country, where navigation exists with a flowage to the sea, 01' either directly or indirectly from one state to another. , Now, suppose a boat or vessel to be plying between two ports in the same state upon any navigable water of the United States as thuB defined, but engaged exclusively in the domestic commerce of the state, is she within the admiralty jurisdiction of the United States? Counsei iu,siat that she is not. Is it, then, the character of the J;'iver, Il.S a navigable wAter of the United States, or the particular kind of COUlmerc.e in which the boat is engaged, that determines the jurisdiction ?That the boat; in juriSt the caSe now before the court"was locally within for.. she diction of this> dourt, there is, of course, no was afloat upon the Mississippi. river..
384
FEDERAL
o
"subject-matter" as well as the locality must be taken into acoount in determining the jurisdiction; that the boat in question was employed exclusively in the domestic commerce of the state of Iowa; that she was not, therefore, within the grant of power to congress to regulate commerce among the states, which is the only source of power in the constitution applicable to the case. . It will be seen, as we proceed, that the argument of counsel would have had great, perhaps conclusive, force, if it had been made prior to the decision of the supreme court in the case of The Gene8ee Chief, 12 How. 443, in the year 1851. That decision, it is well known, worked a great change in the jurisdiction of the federal courts with respect to cases growing out of the navigation of the rivers of the United States above tide-water. The effect of that decision will be presently consider.ed. In order to give jurisdiction to a federal court in any case whatever, the constitution and the statute law must concur. It is not sufficient that the jurisdiction may be found in the constitution or the law. The two must co-operate; the constitution as the fountain, and the laws of congress as the streams from which and through which the waters of jurisdiction flow to the court. This results necessarily from the structure of the federal government. It is a government of granted and limited powers. All powers not. granted by the constitution to the federal government nor prohibited .to the states are reserved to the states or the people. The great residuum of legislative, executive, and judicial power remains in the states. With respect to the federal government, the question always is, what powers are granted? with regard to the states, what powers are prohibited? There are in the federal constitution two distinct and independent provisions touching the subject of navigation and commerce. Article 1, § 8, as follows: "Congress shall have power to regulate' commerce with foreign nations, and among the several states and among the Indian tribes," etc. Article 3, § 2: "The judicial power shall extend to all cases of admiralty and maritime jurisdiction," etc. For more than 50 years after the organization of the American courts it was the received doctrine that admiralty jurisdiction was limited to tide-water. This doctrine was inherited with the law of admiralty from the mother country. It received the sanction of the supreme court of the United States in the year 1825, in the case of The Thoma. Jeffer80n, 10 Wheat. 428. The flow of the tides is well adapted to measure the necessity of admiralty jurisdiction in England, where navigation and tide-water are practically co-extensive. But with the vast expansion of commerce by steam navigation upon our great tideless lakes and far-flowing rivers, it became in time apparent that the flux and reflux of the tides as a test of admiralty jurisdiction was wholly unsuited to theneoessities of commeroe and navigation in this oountry. It was like an attempt to olathe a giant;
UNITED STATES V. BURLINGTON & BIINDEBSON OOUNTY J'EBBY 00.
835 ., !
with garments adapted to the form of a dwarf. Rence the decision of the supreme court of the United States in The Genesee Ohief, 12 How. 452. This decision was rendered in 1851. It wholly overruled The Thomas Jefferson, and established the doctrine that henceforth navigability, not tide-water, was to be thetrne test of admiralty jurisdiction in this country. The result of this decision was to extend the admiralty jurisdiction of our courts over all the navigable waters of the United States. The court, in this Case, also distinctly repudiated the doctrine that admiralty jurisdiction depends upon the commercial power of the constitution. The court say: "Nor can the jurisdiction of the coluts 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." See 12 How. 452.
It is manifest that prior to the decision in The Genesee Ohief there was apparently but one source of federal jurisdiction over commerce and navigation above tide-water, namely, the power of congress to regulate commerce among the states. The supreme court, in Gib_ bons v. Ogden, 9 Wheat. 217, held that navigation is necessarilY.involved in maritime commerce, and therefore that congress was fully competent to pass laws regulating the navigation of vessels engaged in interstate commerce; but the court traced the power to regulate navigation to the power to regulate commerce. The court at the same time held that the power to regulate interstate commerce does not comprehend that commerce which is completely internal to the states. It is a necessary iuference congress had no power, ,as the law was understood prior to the decision in question, to regulate navigatio!;l above tide-water when it was concerned exclusively with the domestic commerce of the states, even when the vessel carrying it on was afloat in the navigable waters of the United States. But whoever will take the pains to examine the decisions of the supreme court subsequent to The Genesee Ohief will find a marked change in the course of judicial thought in that tribunal with respect to navigation above tide-water. It is apparent that a new source of jurisdiction above tide-water was discovered. It became necessary to take into view the clause of the constitution extending the judicial power of the United States to all questions of admiralty and maritime jurisdiction. The result, in my opinion, is that, navigability , being the test of admiralty jurisdiction, the true doctrine now is that the admiralty jurisdiction extends to all vessels navigating the waters of the United States, as contradistinguished from the waters of the states, whatever may be the character of the commerce in which they are engaged, whethedoreign, interstate, or completely internal to the states. All admiralty jurisdiction refers directly or indirectly to navigation. It is the vessel and its navigation, ll-ndthe crime!!, torts, alld contracts growing out of it, that form the objects of admiralty, jurisdiction. Commerce is only so far an object of admiralty jurisdiction
336
FEDER.<r. REPORTER.
as it is connected incidentally' with navigation. The admiralty has nothing whatever to do with commerce upon land; but it deals extensively with navigation for purposes entirely disconnected from cornmerce. Hence the law of admiralty was anciently called the law of the sea. That, with its present extllnsion, would be a misnomer. It ought to receive a new baptism as the law of navigation and mar. itime commerce; navigability, not salt water, being now locally the test of its existence. 'The law of congress having,.in concurrence with the constitution, conferred upon the district courts original cognizance of "all cases of admiralty and maritime jurisdiction," it is material to inquire what are in general case,s of admiralty and maritime jurisdiction. The general jurisdiCtion of the admiralty embraces maritime contracts, torts, and crimes. Crimes committed within the jurisdiction of the states being expressly excepted from the jurisdiction of the federal courts by the crimes act, we have no present concern with that class of cases. . Rev. St. § 5339. The civil jurisdiction of the admiralty includes all marine contracts and torts. The SUbject-matter is the test of a marine contract. A contract appertaining to commerce and navigation, wherever made, to be performed on the navigable waters of the United States, is in general a marine contract. But with respect to marine torts the test is locality. This doctrine is settled by authorities too numerous for citation. The Belfast, 7 Wall. 637; The Commerce, 1 Black, 574; 2 Pars. Shipp. & Adm. 347. A marine tort certainly cannot be made to depend upon the kind of commerce in which the ship is employed. If a marine tort be committed anywhere upon a navigable water of the United States, whether the ship or vessel be engaged in commerce wholly domestic to a state or interstate, the case is one of admiralty and maritime jurisdiction. The Commerce, 1 Black, 570. See what is said hy CLIFFORD, J., in delivering the opinion in The Belfast, supra, 670; and by Chief Justice CHASE in The Mary Washington, 5 Amer. Law Reg. 647, at bottom of page. See, also, The Magnolia, 20 How. 296. Suppose a collision of two vessels on the Missouri river, within the limits of that state, both employed in the strictly domestic commerce of the state, or one in such domestic commerce and the other in commerce with other states; would not the tort in either case be within the admiralty? Certainly; because the tort is marine, and the locality-the Missouri river_ is within the admiralty jurisdiction of the United States. Neither is the kind of commerce carried on by the vessel, whether interstate or intra-state, any test of a maritime contract. The Belfast, supra. In this case it was decided that a contract of affreightment for the transportation of cotton from a port in one state to a port in the same state is a maritime contract within the admiralty. The same was held in The Mary Washington, supra. The general question is whether or not the vessels navigating the waters' of the United States, but carrying on domestic trade of a
UNITED STATES 'D. BURLINGTON & HENDERSON COUNTY FERRY 00.
831
exclusively, are within the scope of the admiralty jurisdiction? It, under such circumstances, the federal admiralty jurisdiction does not extend over the navigable waters of the United States to all cases of contract and tort growing out of the kind of commerce and tion indicated, the suitor must be remitted for redress to the common· law jurisdiction of the local courts; for there is and can be no ad. miralty jurisdiction whatever, other than that of the United States, applicable to such cases. It is settled by many cases that the admi. raIty jurisdiction of the courts is exclusive, and that all state laws creating maritime liens, or jurisdiction in rem to enforce such liens, are unconstitutional and void. The J.}loses Taylor, 4 Wall. 411; The Jiine y. Trevor, ld. 555; The Belfast, 7 Wall. 624; TheLottawanna, 21 Wall. 558. So strong is this principle of exClusive jurisdiction that it is now settled by The Lottawanna and other cases that where state laws create liens upon the boat not strictly maritime and within the admiralty,-such, for example, as a lien upon the boat for supplies in her home port,-the federal admiralty will recognize and enforce them, and that no state court can be clothed with power to enforce such liens by proceedings in rem. Thus the state courts are not only impotent to enforce general maritime liens, but they are equally inadequate to the duty of enforcing, b.y pro(leedings in rem, liens created upon the vessel by the legislative power under which they sit to ad:minister justice. Again, the admiralty jurisdiction above tide-water now stands upon exactly the same footing as the admiralty jurisdiction below tidewater and upon the sea-coast. The decision in The Genesee Chief has worked this result. If, therefore, the admiralty jurisdiction npon our rivers above the flux of the tides be excluded where the vessel, though floating in the waters of the United States, is engaged in ,strictly domestic commerce, I can see no good reason why it may not on the same ground be excluded upon the sea-board within the borders of the states, in cases where the vessel is employed in a commerce completely internal to the states. But no one, I think, would contend that a doctrine leading to such a result could be maintained. It is startling to think of the mischievous consequence!3 of excluding all admiralty jurisdiction from so large a class of cases as must inevitably grow out of strictly domestic state commerce, upon the vast stretches of navigable water, both of the sea-coasts and lake and river shores, and remitting the parties for redress to the wholly inadequate remedies of the common law touching maritime injuries. For if, in such cases, the admiralty be excluded, the only remedies upon marine torts and contracts would be by actions in personam at common law, and by proceedings in attachment under the , state statutes. Hut, assuming that the class of cases just referred to is within the cognizance of the admiralty, it may be questioned whether or not the very case now before the court is one of admiralty and maritime v.21F,no.5-22
338
FBDaRAL BEPORTE&
jurisdiction. The present case is a marine tort. It grew out of a transaction in the navigation of a vessel upon the Mississippi river in violation of an act of congress, which makes it an offense, and subjects it to a pecuniary penalty. It bears the test of all marine torts-locality. The present case is, in my judgment, identical in principle with The La Vengeance, 3 Dall. 297. That case was, like the present, prosecuted by ex officio information, in the district court, against the French schooner La Vengeance, alleging that certain arms and ammunition were exported in that schooner, contrary to the act of May 22, 1794. The only question made was whether or not it was a civil cause, and a cause of admiralty and maritime jurisdiction. The court said they were perfectly satisfied that, in the first place, it was a cause of admiralty and maritime jurisdiction; that the exportation of arms and ammunition was simply the offense; and the exportation was entirely a water transaction. It commenced at Sandy Hook, which must have been upon the water. In the next place, the court was unanimous that it was a civil cause; it was a process in the nature of a libel in rem, and does not in any degree touch the person of the offender. The questions decided here were vital; because, if it was not a cause of admiralty and maritime jurisdiction, or not a civil cause, the trial must have been by jury; whereas. the court below decreed a forfeiture, sitting without a jury. "The point in this case," says Mr. Justice NELSON, delivering the opinion in The Eagle, 8 Wall. 26, "was contested in several subsequent cases, hut the court adhered firmly to its first decision." The Daniel Ball, supra, was also, in principle, like the present case. It was a proceeding in rem to penalties affixed by an act of congress for the viplation of the act requiring the master or owner of the boat to take out license, etc. The court gave judgment against the boat, and must, therefore, have treated the penalty as a maritime lien upon the vessel. H is true that The La Vengeance and The Daniel BaH were cases of seizure. The proceeding in those cases was in rem; in the present case it is in persona,m. That, however, can make no difference in the question of j!1risdiction. It is not by the form of the proceeding, hut by the nature of the case, and the locality of the injury, that we must determine whether a tort is of common law or admiralty jurisdiction. In many cases in admiralty, where liens exist, the proceeding may be in personam or in rem, or in hoth simultaneously. Ben. Adm. §§ 204, 361, 362; Admiralty Rules 13, 14, 15; Ma,nro v. Almeida, 10 Wheat. 473. All seizures upon land, for the violation of the revenue laws, are proceedings in rem after the course of the admiralty. All such cases are, nevertheless, common-law causes, triable by jury. The fact of seizure, therefore, is not decisive in determining the jurisdiction. But counsel say that, even conceding that the admiralty jurisdiction extends over all the navigable waters of the Union. "it must be con-
l1HITJIlD STATJIlS V. BURLINGTON & HENDERSON OOUNTY ll'EBBY 00.
889
fined to cases arising under the constitution; that is, that' the thing charged must nQt only occur on navigable water, but the transaction itself must be one which the government has, under the constitution, the right to regulate.''' The is that congress, under the power to regulate commerce among the states, has no authority to regulate navigation concerned exclusively with the domestic commerce of the states. The burden of this argument is that the power to pass laws regulating navigation is derived solely from the power to regulate commerce, and that where the vessel, thongh engaged in navigation upon the waters of the United States, is employed exclusively in the internal commerce of a state, the power of congress is not applic.able to her navigation. This argument, I think, entirely confonnds navigation wi commerce, and ignores the fact that the former may exist as a th;ng entirely distinct from the latter. Moreover, it leaves out of view tae consideration that the power of congress over navigation may be derived from the double sources of the commercial power and the admiralty power; in some cases from one power, and in other cases from both. Vessels may navigate the waters of the Union for the purpose of pleasure Eimply, or for warlike ends, or in the course of mere trial trips without the view to commerce. In such cases there would be navigation without commerce, and would not the power of congress extend to the subject of their navigation as such? The power of congress to regulate navigation, therefore, is not wholly derived from the power to regulate commerce. There are other sources of legislative authority over the snbject of navigation. May not the admiralty power be invoked as one of the sources of legislative authority .over navigation i.n the pQblic waters of the United States, whether it be concerned with foreign commerce or interstate commerce, or the strictly domestic commerce of the states, or trips for pleasure or trial trips? What are the subject-matwfs of admiralty jurisdiction? MarItime contracts, torts, and orimes; contracts to be performed and torts and crimes oommitted upon water in the course of or in connected with navigation. The oonstitution commits to a branch of the general government power over all cases of admiralty and maritime jurisdiotion. May not congress, within the scope of this power, ohange, alter, or amend the law of marine contracts, torts, and crimes? May not congress, by virtue of the admiralty power, define anew what shall constitute a tort or crime in the navigation of a vessel upon the waters of the Union? Congress has in fact created numerous offenses against the laws of the United States upon the subjeot of "impost navigation and trade,"which, when committed upon water in the course of navigation, fall within the admiralty jurisdic. tion. This has been the course of legislation from the earliest period of the government to our own day. Navigation is a special object of admiralty and maritime jurisdiction. Is not the national legislature competent under the admiralty power to declare what cases connected with navigation are of admiralty jurisdiction, and to oreate offenses
340
withIn that jurisdiction? The La Vengeance, The Daniel Ball, 8upra. In both of these cases penal offenses were created by the legislation of congress. It may be said. that marin.e commerce includes navigation, and therefore that congress may derive authority to pass navigation laws through the power to regulate commerce among the states. It is true that maritime commerce implies navigation, but not all kinds of navigation. If we deduce the authority of congress to regulate navigation exclnsively from the power to regulate commerce, we must confine it to commerce with foreign nations, among the states, and with the Indian tribes. But since congress has power to regulate SOille kinds of navigation not within that category, we cannot deduce its legislative authority wholly from that source. Legislative authority in congress may, in some instances, be derived from more than one grant in the constitution, as a river may receive its waters through streams flowing from different sources. Thus the authority to build and equip vessels of war is, doubtless, implied in the power to "declare war," but the same authority is more directly conferred by the power to '.'provide and maintain a navy." The question is whether or not congress has, under the constitution, power to regulate by law'the navigation of boats and vessels floating in the navigable waters of the United States, when engaged exclusively in the domestic commerce of the states. The respondent's counsel answer this qaestion in the negative, on the ground that the power of congress is restricted to the 1tegulation of commerce among the several states. If the power of congress is not full and plenary over navigation in all the waters oJ the United States and over all vessels carrying on commerce upon the same, whether foreign, coastwise, interstate, or strictly domestic to the states, a disastrous conflict must occur, both legislative and judicial. If the respondent's counsel be right in their position, congress has power to regulate one class of vessels and the states another class navigating the same waters side by side. In order to determine the law and the jurisdiction it would be necessary in every case to first ascertain in what kind of commerce the vessel is engaged. Congress would have the undonbted right to prescribe rules and regulations for the navigation of vessels carrying on commerce among the Btates and afloat npon the waters of the United States. The states, upon the respondent's the. ory, would have power to regulate the navigation in the same waters of water-craft engaged in their sltrictly domestic commerce. The federal government might prescribe one set of rules and regulations; the state government, a different set of rules and regulations. By one authority certain signals for the safety of navigation might be prescribed; -by the other, different signals for the same emergency. One legislative power might, in R. given situation, give the ascending boat the channel; the other, the descending boat. One government might lay rdown a rule for steam and sail vei:lsels passing each. 1ilther, In. confliot
UNITED STATES V. BURLING'l'ON &
OOUNTY FERRY CO.
841
with the rule prescribed by the other. In short, the cOJ;rtlict of rules for the safe navigation of water-craft carrying passengers and property in the narrow water-ways of our numberless rivers and artificial channels of commerce would be infinite, unless the power of the states be excluded and that of the federal government be made full and plenary over tile navigable waters of the United States. It is needloss to dwell upon tbe miscbiefslikely to result from a conflict of rules and regulations. They would be simply intolerable. All that is here said applies with equal force to the power of congress to regulate navigation upon the sea-coast and lake sho:l;es within the limits of the states by vessels engaged in strictly domestic commerce of the states. The power of congress must he exactly the same over navigation above and below tide-water. It is quite certain that the navigation laws of the United States are now framed upon the assumption of the plenary power of congress over the subject of navigation upon the waters of the United States, withont reference to the question of intro-state or interstate commerce. See, for illustration, the Revised Statutes. Wherever navigation exists which may carry the vessel beyond the limits of a state into another jurisdiction, there is a necessity for admiralty jurisdiction to establish and enforce who may furnish the vessel in the state from which the lien of she may escape. Hence, everywhere upon the navigable waters of the United States, as defined in The Da.niel Ball, the admiralty jurisdiction is a public necessity. But where navigation exists upon the waters of a state with no outlet-as upon a land-locked lake or river flowing into the same-there is no need of adr.:liralty jurisdiction, since the vessel cannot escape from the state jurisdiction. She is always necessarily in her home port, and the process of the local law could reach ber owners. Hence, neither the admiralty lien nor the proceeding in rem to enforce it would be required. I am aware that defendants' counsel have some warrant for their position in the cases cited by them in the argument. It will be seen, however, by an examination of the cases, that their authorities consist of dicta disapproved, or cases ovenuled by the supreme court of the United States in later decisions. The defendants' counsel rely upon the following cases: The Bright Star, Woolw. 267; Allen v. Newberry, 21 How. 245; Maguire v. Card, 21 How. 248. Neither The Bright Star nor Allen v. Newberry are in point here. Both of these cases turned upon the construction of acts of congress which in express terms limited the jurisdiction to cases, one of tort and the other of oontract, growing out of commerce between different states and territories. The decision in The Bright Star turned upon the fourth sec,tion olthe act of 1864, (13 St. at Large, 120,) requh' ing the inspection of vessels "engaged in commerce among the states." As the Bright Star was charged with the alleged offense while engaged exclusively in the domestic oommerce of the state of Missouri, Mr. Justice MILLER held that she was not within the terms 'of the A
84:2
statute. Allen v. Newberry is still less in point. It wa.s decided upon the act of 1845 relating exclusively to lake commerce. It has been held over and over again that the act of 1845 has no application whatever to our river commerce. It restricts the jurisdiction to commerce and navigation between ports and places in different territories. That case was therefore clearly not within the terms of the statute. See what Cr.IFFoRD, J., says in The Belfast, (It later case,) 7 WaH. 641, showing clearly that Allen v. Newberry is not in here, and disapproving of the remarks of the judge in that case. See, also, Chief Justice CHASE in The Mary Washington, 5 Amer. Law 696; also The Commerce, supra. Reg. (N. S.) Maguire v. Card was a case in rem for suppAes to the vessel in her home port. This was a conclusive ground against the libelant, because the admiralty then recognized no lien upon a vessel for supplies in her home port. Judge NELSON put the case upon this ground, and also upon the ground that a contract of affreightment between ports of the same state is not within the admiralty, because the jurisdiction of such cases grows out of the power to regulate commerce among the states. 1'his latter doctrine was expressly denied and overruled in the subsequent case of The Belfast, and virtually in The Commerce, supra, 578, 579. See what Chief Justice CHASE says about it in The Mary Washington, supra; and the resume of CLIFFORD, J" in The Lottawanna, 21 WaH. 586, commencing at the last paragraph on that page,-showing beyond question that the present doctrine of the supreme court is that the admiralty jurisdiction is not affected by the commerce power, and that it attaches to marine contracts and torts in strictly internal state commerce, where the navigation is upon the waters of the Union. The case at bar depends upon statutes totally different fwm the acts of 1845 and 1864. It proceeds upon the act regulating steamvessels, passed originally in 1871, and found substantially in the Revised Statutes of 1878, c. I, p. 852, § 4400. Instead of confining the offense to vessels carrying on commerce between different states, it provides that "all steam-vessels navigating any waters of the United States" shall be within the requirements and penalties of the act. As to the point that the Taylor was a ferry-boat, and not a passenger boat, it is conclusively answered by Judge MILLER in The Bright Star, on page 271, Woolworth. A ferry-boat, when she turns aside from her proper business to carry passengers on excursions, ceases quoad hoc to be a ferry-boat. She, as to that trip or voyage, becomes, to all intents and purposes, a passenger boat. It would be the veriest evasion of the law, and its purpose of safety to passengers, to permit a ferry-boat to carry passengers on excursions, and escape under the privilege of a ferry-boat. Exceptions to answer sustained. See The Gretna Green, 20 FED. REp, 901.-[ED.
THE A.LGIERS.
843
(District Court, E. D. Pennsylvania. May la, 1884.) . 1. COLLISION-NEGLECT TO EXHIBIT 'l'ORCll-REv.
ST. § 4234. Where a schooner and a steam-vessel are approaching each othedo the nfgbttime, it is the duty of the schooner to show a torch, as required by Kev. St. t 4234.
BAME-SIDE-LIGHTS.
Where the side-lights are plainly seen, and the situation and course of the vessel fully understood, in ample time to avoid collision, the failure to display the torch may be held unimpoltant; but the fact that the side-lights were burning, and could have been seen by a careful look.out from the steamer, will not ex:cuse the neglect of the sailIng vessel to exhibit a torch, which might have prevented the collision.
Hearing on Libel, Answer, and Proofs. Libel by the and owners of the schooner William L. White against the steam-ship Algiers, for a collision, in which the steamship sank and destroyed the schooner and her oargo. The Providence Washington Insurance Company intervened for their interest, as insurers of the schooner's cargo. 1'he oollision occurred shortly before 1 A. M. 00 November 19, 1882, about 25 miles south-eastwardly from the capes of the Delaware. The wind was fresh from between N. and N. by E.,' with a high sea. The moon had set at·half past 12, leaving the night somewhat oloudy, although many witnesses testified that the stars were visible, and several that, despite the clouds, it was possible to see a vessel, "lights and sails and all," a mile or a mile and a half away; all agreed that it was a good night for seeing lights. The schooner White was sailing N. W. by W., and making between three and four knots per hour, close-hauled, her booms being inboard almost upon a line fore and aft. She was a. good sailer, and held this course steadily, keeping to within about five points of the wind up to the moment of collision. Her red and green lights were of good quality, and were trimmed and burning brightly. Her binnacle light (an ordinary lantern aQout seven inches in diameter) was carried in the binnacle box, on top of the oabin-roof, a position unusually high. The Algiers was heading N. N. E., making eight knots an hour. Her white light was seen off the port beam by the schooner's lookout about two hours before the coUision, and :her green light was visible in the same direction for at least half an hour. Neither the schooner nor her lights were seen by the crew of the steamer until at most 15 minutes before collision. At this as the steamer's lookout testified, he saw with his naked eye a white light about three points on the starboard bow; this he supposed to oe the distant mast·head light of a steamer, whereas it was alleged by respondents to have been, in reality, the binnacle light of the J Reported
by Albert B. Guilbert, Esq., of the Philadelphia bar.