A!TCHESONf1. THE ENDLESS CHAIN DREDGBo
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arrest the ship herself is the privilegWnn which admiralty law (which is a law oftheworld)gives to the person with whom she has contracted; and the privilegiumexists whether the conditions of an ordinary lien, under the local common or statute law, obtain or not. This privilegium to sue and arrest a vessel arises on her contracts whether the claim be ex contractu or ex delicto, whether it arises on contract or in tort. In the case against the dredge, the Commodore, last above cited, that dredge had been engaged in opening a channel to a basin of water at Cape Charles city, Va. She had used an anchor, which she had planted at the mouth of the channel while engaged in her work, and, after its completion, had negligently left the anchor at the bottom of the mouth of the channel, and had gone away to some other locality. The steamer Jane Moseley, in afterwards entering that channel, had been badly snagged and damaged by the anchor, and libeled the dredge for the tort. In that case I held that a dredge was subject to the admiralty jurisdiction, and was liable to arrest and decree for the tort. She would have been just as liable for a contract as for a tort. 3. As to the question whether admiralty process from the eastern district of Virginia may be validly and effectively served on the waters of the Potomachelow Georgetown, this right exists by cession from Maryland, and indirectly, for the purposes of the case at bar, by implied cession from the District of Columbia. I avail myself largely of the learned note of counsel for libelant in what I shall say 011 this subject. The claimants, in their answer, as matter of defense deny the Jurisdiction of the court, because the vessel arrested was seized upon that part of the Potomac river lying between the District of Columbia and the portion of Virginia contained within the boundaries of Alexandria county. This territory was ceded by Virginia to the United States, and formed a part of the District ofColumbia. On July 9,1846, the congress of the United States retroceded this territory to Virginia, by an act, of the first section of which the following is a copy: "Be it enacted by the senate and house of representatives of the United States of America. in congress assembled, that, with the assent of the people of the county and town of Alexandria, to be ascertained as hereinafter prescribed, all of that portion of the District of Columbia ceded to the United States by the state of Virginia, ,and all the rights and jUrisdiction therewith ceded over the same, be, and the same are hereby, ceded and forever relinquished to the state of Virginia, in full and absolute right and jurisdiction, as well of soil as of persons residing or to reside thereon." 9 St. at Large. 35.
So that the oontention here is as to the jurisdiction over the waters of a public navigable river, lying between two sovereign powers. The title of the United States to the District of Columbia, as now constituted, rests, 'upon a grant and cession made by the state of Maryland. 'I.'he United States, as to such territory, did not and could not acquire any greater rightsjjurisdiction, or authority than were possessed by the state of Marylapd at the date of such grant and cession. Before the acquisitionbytheUnited States of theDistrict of Columbia, the sovereign states Maryland ent,ered into a solemn treaty and convention,
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FEDERAL REPORTER,
vol. 40.
bywbich the navigation and use of,. and jurisdiction over, the river Potomaowere mutually settled and determined. The rights of the United States being derived by grant from the state of Maryland, as to that portion of the state of Maryland constituting the District of Columbia, were acquired in subordination to such convention and treaty,which has ever since remained in full force and vigor, and which,in addition, has received the recognition of the congress of the United States. See 20 St. at Large, 481. Without reference to said compact, the Potomac river being a great tide-water stream and estuary, presenting in many respects an uncertain boundary between two sovereign states, a concurrent jurisdiction of necessity originally arose over its waters. It has been said by a writer upon American international law that it is "a principle of American public law that, where the middle of a navigable river or lake or bay forms the dividing line of states, or an intangible line upon their waters, a concurrent jurisdiction, civil and criminal, arises over such waters to the states upon the opposite shores. It extends over the whole ofthe dividing waters, unless it was otherwise stipulated, before the adoption of the constitution of the Union, by state compact, or since, by such compact, with the assent of congress." Gard. lnst. 209; Ohurch v. Chambers,3 Dana, 278; Handly's Lessee v. Anthony, 5 Wheat. 374; Carlisle v. Stnte, 32 Ind. 55; Sherlock v. AUiny, 44 Ind. 184; People v. Raurond, 48 Barb. 478. The same principle was applied to all cases among nations where their boundaries divide navigable waters. The line being incapable of sight and ready perception, a concurrent jurisdiction must exist on the dividing waters. Gard. lnst. 209,210. Such being the law of nations, applicable to states, the following. articles of convention and treaty will be found in the compact of 1785 between the contracting states, Maryland and Virginia: 1 Rev. Code Va. 18",9, p. 53: "Sixth. The river Potomac shall be considered as a common bighway for the purpose of navigation and commerce to the citizens of Virgitlia and Maryland, and of the United States, and to all other persons in flmity with the said states, trading to or from Virginia or Maryland." It is apparent by the terms of this article of the treaty that each of the parties to the compact was entitled to such authority, jurisdiction, and power over the waters of the river Potomac as would entitle their respective jtidicial tribunals to exercise admiralty jurisdiction in said waters. By the express terms of this article of the treaty the said river was to be a common highway of navigation and commerce for the citizens, not only of the two contracting states, but of the citizens of all the United States, and of the citizens of all nations in amity with them. Admiralty jurisdiction is the life of navigation and a CUlstituent element of commerce, for without the power to enforce maritime liens commerce would decay, and navigation be rendered impossible. Moreover, "a right to navigate a river draws to it a right to moor vessels to its shores, to land on them in case of distress, or for other necessary purposes, etc. This principle was founded in natural reason, was evidenced by the common sense of mankind, and declared by the writers before quoted."
AITCHESON fl. THE ENDLESS OHAIN DREDGE.
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Wheat. Int. Law, § 202. The following is an extract from the eleventh article of the compact of 1786: "And process from the state of Virginia may be served on any part of the said rivers upon any person, or property of an)' person, not a citizen of Maryland, indebt.ed to any citizen of Virginia, or charged with injury having been by him com\nitted." That is to say, process in persortam and process in rem may each be served, either on claims arising in contract or in tort. The defendant at bar, the River & Harbor Dredging Company, chartered under the laws of the state of Virginia, is a citizen of Virginia, and being such citizen, is not embraced in the exception provided in the eleventh article in favor of citizens of Maryland; and hence this case, by the express terms of said compact, is one in which this court has jurisdiction. Process can only emanate from judicial tribunals, and the expression "persons or property" show it to have been the intention of the treaty that the process should issue in proceedings in rem as well as in personam. Proceedings in admiralty were necessarily in the contemplation of the treatymaking parties, as well as the ordinary proceedings at common law; for at that time the states had not been divested of their admiralty jurisdiction, the federal constitution not having been ratified until 1787-88. The federal constitution vested in the federal tribunals all the admiralty jurisdiction theretofore possessed by the states, and this court possesses all the admiralty jurisdiction which the state of Virginia had possessed prior to the adoption of the constitution of the United States, and all such other admiralty jurisdiction as may have been conferred by said constitution and laws made in pursuance thereof. If this court were without jurisdiction on the vast area of navigation formed by the Potomac river from Georgetown to the Chesapeake bay, the commercial classes would be remediless in a large number of cases of maritime torts and contracts, because of the fact that the state of Virginia is without constitutional authority to endow its tribunals with admiralty powers. It was never contemplated that such a state of affairs could by possibility exist, for the prime object of our government was to secure to all citizens an equal distribution of public protection, rights, and blessings. A fourth objection to the proceedings in this case, raised in a brief very lately received from respondent's counsel, is that th-e Endless Chain . Dredge is a domestic vessel built at and belonging to the port of Alexandria, and that, under several decisions of the supreme court of the United States, she is not liable in remj the general rule being that a vessel is not liable to admiralty process in her home port for materials and repairs furnished there. It is true that the supreme court has held generally that vessels are not so liable in their home ports; but it has qualified the general ruling by excepting the vessels of those states wqich, by express legislation, have given a right of action in rem against home vessels for materials and repairs furnished them at home. The general ruling was founded on the presumption that in a home port materials and repairs would naturally be furnished on the credit of the owner, not on the credit of the ship; and the exceptional ruling was founded on the v.40F.no.4-17 .
