Cornell University Law Library FROM THE BENNO LOEWY LIBRARY RECEIVED BY CORNELL UNIVERSITY UNDER THE WILL OF MR. BENNO LOEWY Cornell University Library KF1104.R63 A treatise on admiralty and prizeitogeth 3 1924 018 920 417 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018920417 A TREATISE ADMIRALTY A]^D PRIZE TOOETHBB WIIH SOME SUGGESTIONS FOR THE GUIDE AND GOVERNMENT OF UNITED STATES NAVAL COMMANDERS IN MARITIME WARS. BT DAVID ROBERTS. NEW YORK: PUBLISHED BY KURD AND HOUGHTON. 1869. 13 |-75"3^ Entered according to Act of Congress, in the year 1869, by David Eobekts, in the ClerK's Office of the District Court for the District of Massachusetts. BIVEBSIUE, OAHBBIDGE: PRINTED BY H, O. HOUGHTON AIOJ COMPANY. PREFACE. The present work is about to be committed to the profession and public, with the hope that it may accom- plish the Author's design and plan, and become a useful and readable Law Book. If it have the effect upon any student, ambitious to excel in his profession, to stimulate to labor and incite him to the requisite study, it -yyill be some compen- sation. If it find moderate favor on its mission, that will furnish encouragement to future improvement ; and to this end, the Author announces that any seasonable suggestions from the kindly disposed, or candid criti- cisms of the profession, will be cordially welcomed. "TO HON. CHARLES G. LOEINGi This volume is, with his consent, respectfully dedicated, as some slight token of my appreciation of his honor- able career as a conspicuous member of a Bar, here- tofore as now, distinguished for the eminent ability of its members. " In so doing I recall, but with a melancholy pleasure, the kind, just, generous, and magnanimous tribute of respect and affection (which was by Mr. Loring ad- dressed to the Suffolk Bar, July 19, 1859,) for an early friend and correspondent, the late Eufus Choate, that greatest of advocates and most amiable of men, from whose approval of my plan, I probably received more encouragement in this undertaking than from any and all other sources. David Kobeets." 1864. 1 The Dedication, as prepared in 1864, will be retained, and is now given in memoriam. May 25, 1869. D. R. CONTENTS. PAET I. CHAPTER I. ADMIKALTT JURISPEUDENCB. PASB Maritime Law, its sources, codes and ordinances . . . . 1, 2 Writers on : Selden, Zouch, Loccenius, Bynkershoeck, Valin, Casaregis, Azuni, Pritchard, Wicquefort, Pardessus and others 2-4 Judges of England 5 Admiralty cases and courts 7 Foreign ordinances . 8 Ordinance of Louis XIV., its authors ...... 10 Names of Colbert's Commissioners, (Note) 10, 11 CHAPTER IL DEFINITION OF "ADMIRALTY AND MARITIME." Meaning of these terms 13 Struggle between the civilians and Common Law Judges , . 15 Acts, resolutions, ordinances, etc., before the time of Lord Stowell . 16 since his time 20 in United States since 1789 23 since 1815, judicial opinions ... 25 Action of American Colonists 34 Courts to settle or Congress to define Admiralty jurisdiction, if not uniformly exercised , . . 37 CHAPTER m. ADMIRALTY JURISDICTION OP THE UNITED STATES .COURTS. Cases affirming Jurisdiction 40-45 not affirming it 45—48 Extended in United States by Congress 49 Improved by Parliament in England 51 A judge of Admiralty — qualifications 52 C. J. Taney's vindication of the Admiralty 53 General Jurisdiction 54 CHAPTER IV. COLLISION. Extent of jurisdiction in United States 56 Tribunals which take cognizance thereof 58 VI CONTENTS. Liability to damages, now limited . Suits for damages .... pleadings hearings .... Lord Stowell's " four possibilities " Trinity Rules . . . „ . Other rules for navigation Law is uniform; but proofs precarious Party blamable, responsible for damage Both parties in fault, damages divided Recent cases and statutes Rules and regulations. Latest cases PAQE 61 63 • 64 66 67 68 69 70 71 72 73 76 80 CHAPTER V. SALVAGE. Suit for, how commenced Tender for Salvage, before trial, judicious Salvage awards _• • • _ ■ is a maritime service, rendered voluntarily and resulting successfully Salvors, who may be Passengers may be salvors ........ Pilots may be salvors Seamen may be salvors ........ Agents and others may be salvors Owners also may be salvors ........ Nature of Salvage Life Salvage Several sets of salvors may be claimants Their respective rights, and functions of the court .... Seamen's rights to remnants Earning of wages not dependent upon earning freight . Authorities _ Abandonment at sea absolves mariner from his contract Mariner once released, his contract not to be revived Costs, tender and kinds of Salvage Intense interest of "the subject of Salvage, and reference to Rufus Choate 81 82 84 85 86 89 96 97 100 101 112 113 114 116 118 120 123 126 129 131 132 CHAPTER VL GKNE£AL AVERAGS. Definitions 135 Origin 136 Elements — loss by sacrifice 137 Ground of claim — lost ship entitled to 140 Exceptions, no discrimination, remnants saved contributs . . 144 Ship, freight and cargo contributory 146 Seamen's wages, ship's provisions, and interest on money not contrib- utory 147 Authorities • . 148 Regular and irregular jettison 149 Adjustment of loss ; Lloyd's and other agencies .... 161 Selected examples of adjusting losses 152 et seq. qONTENTS. Vll English authorities not numerous French Ordinance — a portion translated Sacrifice for security is the legal result and e£Fect of references . Cognizable in Admiralty courts Conflict of decision between the United States courts and State court ^ FAGS 156 157 160 162 164 CHAPTER VII. BOTTOMRY AND EESPONDBNTIA. Bonds for, predicated on a marine risk 166 may be effected by master abroad ..... 167 for what and when 168 partly invalid — valid part upheld 169 lien attaches without possession . . . . . . 1 70 advances, which must be necessary 1 73 consignees, master and others may take . . . . 1 75 claims on, marshalled and priorities settled . . . . 176 a master's, or consul's, may be vaUd 1 78 What sufficient communication ; its want not supplied by advertis- ing 180 There must be marine interest and risk also 182 More recent authorities 183 Master is owner's agent 184 Prerequisites of Bottomry stated 185 Priority of master, seamen and lenders 186 Risk justifies agreement to pay marine interest . . . . 1 88 Discussion by Story and others at the bar in Massachusetts . . 189 Rule of procedure — pleadings and defense . . . . . 192 Credit, laches, duress may invalidate a Bottomry Bond . . . 197 CHAPTER Vni. NECESSAKIES. Contracts for Necessaries 200 upheld in England and United States ..... 201 master's power to make 202 to procure ....... 207 Lien for, on domestic or foreign ships 208 Law of England variable, but now more uniform .... 210 Test of master's authority 211 Massachusetts acts and general laws 213 Authorities in England and United States 215 Master's authority may bind ship and owner 217 Material-men entitled to priority — but ..... 218 Their lien on proceeds, if once doubtful, given expressly in 1861 . 220 A master, in the exercise of his implied authority to procure Neces- saries, must act with good faith 222 CHAPTER IX. POWER OF MASTER TO SELL. This power is not a general, but implied, authority .... 224 to be exercised, under a legal and paramount necessity . 225 when so exercised, the transfer is complete .... 226 VIU CONTENTS. Want of legal necessity, the usual defense Legal necessity alone justifies the master ...... or paramount necessity defined ...... Decree and survey may justify master also English cases — exception becomes the rule .... The present prevailing doctrine anticipated in 1809 by Sir Wm. Scott His early views, since adopted in England and United States Mr. Justice Clifford's decision and opinion in the Amelie . Affirmed on appeal to United States Supreme Court . 227 229 230 232 233 234 237 239 242 CHAPTER X. MAKINERS' WAGES AND RIGHTS. Contract for wages, earning and payment, forfeiture . Rights and duties of mariners ..... Foreign codes and ordinances ..... Procedure in the United States Usual stipulations in contract Authorities ......... Mariners, wards and favorites in Admiralty Unusual clauses rejected by Lord Stowell by Judge Lowell in United States Good faith indispensable in master and merchant . Deviation justifies leaving Indefinite description of voyage nugatory Clauses, detrimental to sailor, void .... Shipping articles to conform to act of Congress contents of . Collector's and consul's duties .... Shipping seamen abroad — and relief Performance, the parent of wages Forfeiture by desertion . .... English and American authorities .... Condonation restores lost right to wages . Embezzlement . Fraud and negligence or incompetency . Wrongful disrating, ground for damage Rightful removal, ground of forfeiture Duties of crew, master's control, punishment moderate Flogging abolished 1851 — wages lost, right revived and how 243 244 245 248 249 250 253 258 260 264 266 267 269 272 273 274 •276 278 283 283-5 287 291 297 303 309 313 321 CHAPTER XI. WHO WITNESSES IN ADMIRALTY. Competency of Witnesses in Massachusetts 325 by laws of Congress 3 26 State laws, rules of decision, also of evidence .... 329 Parties in Admiralty generally competent to testify .... 33i United States Act of 1865, designed to enlarge judicial discretion 333 Case of Hetty Robinson, discretion declined 385 CONTENTS. IX CHAPTEK XII. PILOTAGE. PAGZ Pilots, commissioned officers 337 branch or bay 338 Compulsory Pilotage . . . ■ 339 Kight to legislate vested in Congress, remitted temporarily to the States, afterward resumed 341 Pilotage, a necessary expenditure 343 PUots to be encouraged and obeyed 344 But not to infringe rights of the master 345 CHAPTER Xin. RECOUPMENT. Recoupment, not strictly set-off without cross bill, is defense merely is not a remedy for excess of damage in the nature of mitigation or cross bill optional to respondent 347 348 349 351 352 CHAPTEK XIV. FREIGHT. Freight, definition of as touching owner, charterer and shipper under charter-party and bill of lading . unusual stipulations for, discountenanced . customary forms preferred .... may be by parole charter-party, and pro rata earned to be paid Owners liable for master's delinquency English and American authorities .... Freight payable on delivery, lien therefor French ordinance relating to Freight modified by recent decisions and legislation Diversity among European jurists .... Pro rata Freight due on delivery ... on voluntary acceptance .... Carrier, guilty of unneutral conduct, forfeits Freight Use and effect of bills of lading as original contracts Stoppage in transitu — definition of bill of lading Deviation may be culpable or excusable . Freight accrues upon performance Voluntary acceptance equivalent to performance Neutral carriers, conducting fairly, entitled to Freight generally 353 354 355 356 357 358 359 361 362 365 368 370 373 376 377 379 381 383 385 386 387 389 CHAPTER XV. MARITIME LIEN. Maritime Liens, definition of . rank according to merit partly jus in re, partly jus ad rem possession not required to create 390 391 392 393 X CONTENTS. PAGE Maritime Liens, Sir John Jervis's definition of .... 395 attach to proceeds of a ship sold 396 should be enforced without laches 397 on domestic and foreign ships ...... 398 lost by waiver or laches ........ 399 seldom voluntarily extinguished 400 CHAPTER XVI. TOWAGE. Towage is secured by lien and may become a salvage service . . 401 a service of merit and defined by cited cases . . . 402 in case of the K. B. Forbes 404 CHAPTER XYH. LIS PENDENS. A prior suit pending, if pleaded, good defense .... 406 must be for same cause substantially, and between the same parties 408 should be seasonably pleaded, if relied on as a defense . 409 CHAPTER XVIH. WHALING. Whaling, once a European business, now engrossed by New England- ers 412 Authorities chiefly American; a few English . . • . 415 Usages as to mateship, lays, and supplies ...... 418 Effect and importance of Judge Sprague's decisions . . . 422 Whalemen's rights and liabilities 424 Source and extent of Whale fishery 425 shown by statistics 427 CHAPTER XIX. POSSESSION AND EESTRAINT. Causes of possession or restraint are legal remedies for the majority and minority of ship owners respectively . . . 428 The rule is that the majority shall control, upon "giving security . 429 English authorities , 431 CHAPTER XX. BAIL. Bail, in Admiralty, is security given to the court for the rem subjectam 434 when may be taken 435 in Prize, restricted by statute 43g English and American authorities 437 CONTENTS. XI CHAPTER XXI. MISCELLANEOUS. PAGE Legal effect of a receipt in full . . 439 Redress for short allowance 440 Droits in Admiralty are forfeited in England as perquisites of Ad- miralty; in the United States, such seizures are condemned jure reipublicce and belong to Government . . . 440 PART II. PRIZE LAW. Lord Mansfield's exposition in Lindo v. Rodney .... 443 Distinction between Instance and Prize tribunals . . . 443 et s'eq. Jurisdiction of Prize Courts — how exercised 445 Duties of captor, claimant, and Prize-master 446 Preparatory evidence, further proof 448 Prize interrogatories 449 Prize proceedings and practice 451 Early irregularities in practice, notiaed 453 Bar admonished . . , 454 Practice reformed 455 Prize reports — neutral property 458 Captors liable for negligence, or misconduct 458 Booty — forced levies — Prize . 460 Lawful capture made only by commissioned cruisers . . . .461 Privateers in War of 1812 463 Legal definition of Prize 464 Contraband trade; breach of neutrality 465 Blockade; prerequisites 466 Right to blockade, unrestricted • 467 Penalty for breach, is confiscation 468 Excuses for violating blockade 469 Coalition war- in Europe 470 French, Berlin, and Milan Decrees 472 British Orders in Council — legality 473 Defended, but reluctantly upheld by Sir W. Scott . . . . 475 Duke de Bassano's Report to French Senate 476 If Orders in Council be legal, so should the Queen's Proclamation of 1861, as a prohibitory and legal measure, have been adhered to, in good faith 479 Sir James Mackintosh's judicial opinion 480 English magistrates and ministers fallible, from want of experience in discharge of neutral duties 482 English doctrines of blockade established recently, in 1854 . . . 484 Earlier English blockade cases, examined . • . . . 488 Baltic ports' blockade cases, reviewed ...... 529 AH blockades to be duly imposed, notified, and maintained . . 531 Difficulty in closing inland gulfs 533 XU CONTENTS. PASK Captor's liability for costs and damages 535 Difference between the Admiralty Court and Privy Council ■ 537 Authorities as to costs and damages 545-6 Blockade cases during American Rebellion 546 Blockade-running — case of the Stephen Hart .... 556 Joint Capture — definitions by Lushington and Sprague . .557 Visit and Skarch 560 British pretensions to, doubted by Baltic Powers . . . 561 impressment of seamen disputed by Americans . • • 562 right extends not to public ships 564 Northern Powers' resistance to, by armed neutrality, frustrated 565 Neutrality, declared or otherwise 566 declaration of, no exoneration from general neutral duties . . 568 the normal condition of states . . ... . . 569 War may classify all people, either as belligerents, neutrals, allies, or mercenaries ......... 570 Neutrality, either natural or declared 571 preference of England and France for latter, not to be com- mended 572 Self-imposed Duties by declaration to be observed optima fide . 573 non-observance leads to retaliation 574 Neutral Duties, imposed by sovereign's declaration, specially obli- gatory on states and citizens 576 their neglect, endangers amicable relations with fiiendly neutral states 577 Professing neutral more dangerous than an open ally . . . .578 American neutrality of 1793, exemplary 580 Cases of the Trent and the Caroline 581 Preliminary legal questions as to conduct of English Cabinet in 1861 682 Injunctions and prohibitions by Queen Victoria; her Speech to Parlia- ment, August 6, 1861 583 Proclamation of Neutrality by George IV., 1825 .... 684 unless enforced, useless 'and nugatory ..... 586 Confederate and Federal relative influence in England . . . 687 Expectations of foreign powers not realized 588 All states should religiously regard good faith 589 Alabama and similar claims 690 caused by disregard of the Queen's proclaimed prohibitions . 591 Legal force and effect of Queen's proclamation .... 593 Neutrals misled by British Cabinet 594 Treaty for settlement of claims, not ratified 596 not deemed suitable 597 Misconduct of British Foreign Secretary, illustrated by historical and hypothetical references 699 Arbitration madmissible, because not likely to be effectual . . . 602 CONTENTS. Xlll , ^ ^ PAGE English good faith, as neutrals, imperilled now by the novelty of that character . . . . • 604 England alone uannot prescribe new rules of international law . . 607 The original legal idea of neutrality, modified, and gradually amelio- rated 608 Political declarations of state or sovereign, entitled to respect . . 609 Proclamation shows tlie animus of ministers; and a contingent overt act constitutes the offense 611 English and American authorities 612 Adjustment, if wisely dealt with, is but a question of time . . 613 Course and conduct of English Cabinet, through the Foreign Secretary, unfortunate and exceptional 614 Declarations of neutrality, unless for special cause, superfluous, and bet- ter be omitted 615 Concluding intimations as to practice in Prize Courts . . . 616 With suggestions to guide and govern U. S. naval officers, in their conduct, on any sudden disturbance of peaceful relations . . 617 TABLE OF CASES CITED. Aaltje Willemina, 1866, 1 Adm. & Eccl. 107 . Abbott V. Baltimore & Kappahannock St. Packet Co., 1850, Dec. 542 Actseon, 1815, 2Dods. 48 Adah, 1830, 2 Hagg. 326 Adelaide, 1799, 2 Ch. Kob. Ill n Adelaide, 1801, 3 Ch. Rob. 281 Adeline, 1816, 9 Cr. 24 Adonis, 1804, 5 Ch. Rob. 256 A. D. Patchen, 1849, 1 Blatch. 414 ... . Adventure, 1814, 8 Cr. 221 Afina Van Linge, 1859, Swab. 614 ... . Agincourt, 1824, 1 Hagg. 281 Albert Crosby, 1860, Lush. 44 Alerta (Brig) and Cargo u. Moran, 1815, 9 Cr. 359 Alexander, 1801,4 Ch. Rob. 93 .... Alexander, 1812, 1 Dods. 280 Alexander, 1841, 1 W. Rob. 294) Alexander, 1842, 1 W. Rob. 357 | Alfin, 1857, Swab. 193 Aline, 1839, 1 W. Rob. 119 Aline & Fanny, 1856, Spks. Pr. Ca. 322 (otherwise called •; Hildebrandt, 1856, 10 Moo. P. C. 501) Allegoria, 1802, 4 Ch. Kob. 202 n Allen et al. v. McKay, 1854, 1 Spr. 219 .. . Alligator, 1812, 1 Gall. 145 Aliwal, 1853, 1 Spks. 96 Amelie, 1867, 6 Wall. 18 America, 1800, 3 Ch. Rob. 36 America, 1856, Newb. 195 Amethyst, 1839, Daveis 20 Amiable Isabella, 1821, 6 Wheat. 1, (S. C.) 6 Curt. Con. Amiable Nancy, 1818, 3 Wheat. 546 . Amor Parentum, 1799, 1 Ch. Rob. 303 Amy Warwick, 1862, 2 Spr. 155 .... Andrews u. Wall et al., 1845, 3 How. 568 Anna, 1805, 5 Ch. Rob. 273 Anna Christina, 1778, H. &Marr. 163 . . . , PAGE 215 1 Md. Ch. 217,319 . 541,546,628 339 492 498 84 469 84 215 215 284 250 612 500 219 . 210,215,221 107,110 239 The Queen v. . 535, 542, 548 378,389 57,80 63,434 80 238, 242 n. 396 388 121 125 451 451 124 899,435 40 612 387 XVI TABLE OF CASES CITED 327 Anna Maria, 1817, 2 Wheat, Annapolis, 1861, Lush. 295 . Anne, 1818, 3 Wheat. 435 Ann C. Pratt, 1853, 1 Curt. 340 . Ann D. Richardson, 1849, Abb. 49 . Ann Green, 1812, 1 Gall. 274 Annie Childs, 1862, Lush. 509 Antarctic, 1852, 1 Spr. 206 . Antonia Johanna, 1816, 1 Wheat. 159 Antelope, 1825, 10 Wheat. 119 . Appleby v. Dodd, 1807, 8 East, 299 Appleton V. Crowninshield, 1807, 3 Mass. 443 Appleton II. Crowninshield, 1811, 8 Mass. 340 Apollo, 1802, 4. Ch. Rob. 160 Apollo, 1804, 5 Ch. Rob. 286 . Apollo, 1824, 1 Hag. Topp, 1851, 6 Exch. 424 . Elliotta, 1815, 2 Dods. 75 Elsabe, 1803,4 Ch. Rob. 408 . . ' . Elsebe, 1804, 5 Ch. Rob. 176 .... Elvira ats. Hand, 1829, Gilp. 60 . . . Emancipation, 1840, 1 W. Rob. 124 . Emanuel, 1799, 1 Ch. Rob. 296 .. . Emblem, 1841, Daveis, 61 Emerson v. Howland, et al., 1816, 1 Mason, 45 Emily Sageman v. Schr. Braudywine, 1852, Newb. Empress, 1814, 1 Dods. 368 . Empress, 1S56, Swab. 160 . Emu, 1838, 1 W. Rob. 16 Emulous, 1832, 1 Sum. 207 . Enterprise, 1828, 2 Haug. 178 n. Estrella, 1819, 4 Wheat. 298 Etna, 1838, Ware, 462 E. U., 1865, 1 Spks. 63 Eugene, 1834, 3 Hagg. 160 104, ,251 254,! i28 PAQE 45 523 250, 252 284 339 107, 108 113 378 181,189 182 186 257 257 215 297 468 115, 125 432 628 123 268, 284 188 612 236 397, 399 521,541 469, 501, 509 251, 252 252 432 84,111,125 215,221 560 260 366 125 561 635 124 196 378, 388 84, 85 251,290 252,319 557 432 402 84,125 339 !,43, 612 85 114,125 115 42, XXll TABLE OF CASES CITED. Euphrates, 1813, 1 Gall. 451 . Europa, 1863, Br. & Lush. 89, 97 Exeter, 1799, 1 Ch. Rob. 176 . Experiment, 2 Dall. 42 F. 12 29 Pair American, 1799, Bee, 134 Fair American, ats. Brevoor et al. 1800, 1 Pet. Fair American, nls. Cramer et al. 1806, 1 Pet. Fair Haven, 1866, 1 Adm. & Eccl. 67 Faith V. E. I. Co., 1821, 4 B. & Aid. 630 Fanny (Brig), 1808, Bee, 262 Fanny, 1824, 9 Wheat. 658 . Fanny & Elmira, 1809, Edw. 117 Feigley v. Feigley, 1855, 7 Md. Kep. 537 Financier, 1811, 1 Dods. 67 . Findlay v. Williams, 1793, 1 Pet. Adm Flad Oyen, 1799, 1 Ch. Rob. 135 . Fleur de Lis, 1866, 1 Adm. & Eccl. 49 Flora, 1866, 1 Adm. & Eccl. 45 Florence, 1852, 20 En. Stevens, 1801, 3 Esp. 269 . Linda, 1857, Swab. 306 . Lindo V. Kidney, 1782, 2 Doug. 613 Lindsey v. S. Carolina (Ship), 1801, Bee 173 L'Invincible, 1816, 1 Wheat. 238 Lion, 1843, 1 Spr. 40 ... . Little Joe, 1860, Lush. 88 ... . Little William, 1809, 1 Acton, 141 . Lively, 1812, 1 Gall. 315 .... Liverpool Packet, 1813, 1 Gall. 513 Livinia (vide Howland «.), 1801, 1 Pet. Adm. Livingstone v. Proprietors of Express,.6 N. Y. Logs of Mahogany, 1837, 2 Sum. 589 London, 1863, Br. & Lush. 82 . . . Lord Cochrane, 1844,- 2 W. Kob. 335 Lord Hobart, 1815, 2 Dods. 104 Louisa, 1813, 1 Dods. 319 ... Loverein v. Thom,pson, 1857, 1 Spr. 355 Luna, 1810, Edw. 190 .... Luscomb V. Osgood, 1844, 1 Spr. 78 Luscomb V. Prince, 1815, 12 Mass. 576 . Lusitano, 1841, 1 W. Rob. 166 .. . Lyman et al. v. Browne, 1855, 2 Curt. 560 126 Leg. 506 Obs. 40 280, PAGE 43, 612 318 297 366 119, 251 389 251 432 612 635 557 535, 540, 546 635 ■ 406 437 319 216 183 319 113, 124, 126 148 557 20 131 241 557 57,80 366 123 557 535, 540, 5^1 552 252 . 80 20 261, 322 . 42, 451 57 124 523 . 362, 437 612 251, 362, 363 63, 71 407, 408 80 233, 235 250 386 413, 422, 424 509, 511 . 412, 421 251 432 408 XXVlll TABLE OP CASES CITED. M. Mab (Queen), 1835, 3 Hagg. 243 McDermott v. S. G. Owens, 1849, 1 Wall, Jr. McDonald v. Longbottom, 29 L. J. 256 Mcintosh w. Milcheson, 1849, 4 Exch. 175 . Macomber v. Thompson, 1833, 1 Sum. 384 McNeil V. Holbrook, 1838, 12 Pet. 84 . McCullock V. Lethe, 1781, Bee, 423 McGinnis v. Pontiac, Str., 1852, Newb. 130, 5 Madison, 1810, Edw. 224 . Madonna del Burso, 1802, 4 Ch. Rob. 169 . Magnolia, 1857, 20 How. 298 Maggrath v. Church, 1803, 1 Gaines, 196 Maissonaire v. Keating, 1815, 2 Gall. 325 Mair v. Glennie, 1815, 4 M. & Sel. 24Q, Maitland, 1829, 2 Hagg. 254 . Malta, 1828, 2 Hagg. 158 ... . Manchester, 1839, 1 W. Rob. 62 Manro v. Almeida, 1825, 10 Wheat. 473 Marcellus, 1861, 1 Black, 414 Marcia Trebon, 1858, 2 Spr. 17 . . Margarett, 1829, 2 Hagg. 275 Margaret Mitchell, 1858, Swab. 386 Maria, 1799, 1 Ch. Rob. 340 . Maria, 1805, 5 Ch. Rob. 365 ... Maria, 1805, 6 Ch. Rob. 201 . Maria, 1809, Edw. 175 .... Maria, 1839, 1 W. Rob. 110 . Maria (Batten v. Queen), 1857, 11 Moo. P. 0, Marianna Flora, 1826, 11 Wheat. 1, 42 . Marshall v. Montgomery, 1861, 2 Dall. 170 . Martha, 1838, 3 Hagg. 436 Martha, 1861, Lush. 314 ". . . . Martin of Norfolk, 1802, 4 Ch. Rob. 297 Mary, 1804, 5 Ch. Rob. 200 . Mary, 1805, 1 Pet. Adm. 139 Mary, 1815, 9 Cr. 126 Mary (Sloop), 1824, 1 Paine, 673 . Mary, 1838, Ware, 454 ... . Mary (Brig), 1842, 1 Spr. 17 . Mary Ann, 1848, Abb. 270 . Mary Ann, 1865, 1 Adm. & Eccl. 13 . Mary Ford (see McDonough v. Danery). Mary Paulina, 1843, 1 Spr. 45 . . . Massasoit, 1844, 1 Spr. 97 Mason v. Blaireau, 1804, 2 Cr. 444 Mayo V. Harding, 1810, 6 Mass. 300 Medora, 1847, 5 Notes of Cases, 294 . Medora, 1853, 1 Spks. 17 Meech v. Robinson, 1839, 4 Whart. 860 Meggie, 1866, 1 Adm. & Eccl. 77 Menetone v. Gibbons, 1789, 6 T. R. 267 Mentor, 1799, 1 Ch. Rob. 179 . 370 McL. 359 287 PAQE . 115 319 . 366 107, 108, 125, 612 215 250 325 250 89 609,515 612 . 30, 53 148 44, 609,612 413 219 251, 297, 319 , . 523 41 74 80 429, 431 236 480, 561, 635 523 505 115 339 546 546, 563 252 102 403 432 635 339 546 25,44,45, 172 . 251, 440 363 250 85, 193, 252 40, 440 118, 252 84, 88, 362, 385 250 107 100 148 432 20 628 TABLE or CASES CITED. XXIX Mentor, 1810, Edw.. 207 Mentor, 1825, 4 Mason, 95 Mercurius, 1799, 1 Ch. Rob. 80 Mercurius, 1808, Edw. 53 Merethew et al. v. Sampson, 1862, 4 Allen, 192 Messenger (or Small v. Goods of) 1807, 2 Pet. Adm. 284 Milan, 1861, Lush. 388 . Milford, 1858, Swab. 362 . Miller v. Kelly, 1849, Abb. 564 Miller v. The Eesolution, 1781, 2 Dall. 12 Minerva, 1806, 1 Hall's L. J. 218 . Minerva, 1825, 1 Hagg. 347 . ■ . . 250, 254, Minturn v. Maynard, 1854, 17 How. 477 Miston V. Lord, 1848, 1 Bl. 354 . Mitchel V. Orozimbo, 1806, 1 Pet. Adm. 250 Mitcheson v. Oliver, 1855, 5 E. & B. 419 Monsoon, 1842, 1 Spr. 37 . . . Moore v. Wilson, 1787, 1 T. R. 659 . Moss (Ship) ats. McGee, 1831, Gilp. 219 Mouse's Case, 12 Coke, 63 . Moxon et al. v. Fanny, 1793, 2 Pet. Adm. 309 Muggridge v. Eveleth, 1845, 9 Met. 236 N. Nancy (Woodbury), 1809, 1 Acton, 63 Nancy (Hurd), 1809, 1 Acton, 57 . Naples Grant, 1818, 2 Dods. 273 Narcissus, 1801, 4 Ch. Rob. 17 Nathaniel Hooper, 1839, 3 Sum. 543 . . . . 85, Neid Elwin, 1811, 1 Dods. 50 Nelson, 1805, 6 Ch. Rob. 231 Nelson v. Leland, 1859, 22 How. 48 Neptune, 1824, 1 Hagg. 237 88, Neptune, 1834, 3 Hagg. 142 . Neptune, 1835, 3 Knapp. 94 Neptunus, 1799, 2 Ch. Rob. 110 Neptunus, 1800, 3 Ch. Rob. 108 . Neptunus, 1800, 3 Ch. Rob. 173 Nereide, 1815, 9 Cr. 427 . Nestor, 1831, 1 Sum. 75 ... Neutralitet, 1801, 6 Ch. Rob. 31 (New Jersey (Ship), see Gardner et al v.) Newport, 1858, Swab. 335 New Draper, 1802, 4 Ch. Rob. 290 Newell V. Newton, 1830, 10 Pick. 470 N. J. St. Nav. Co. V. Merchants' Bank, 1848, 6 How. 344 N. T. & Bait. Irs. Co. v. Phil. & Sav. Co., 1859, 22 How. 461 N. Y. & Liv. M. St. Co. V. RumbuU, 1858, 21 How. 372 N. Y. & Virg. St. Co. v. Calderwood, 1856, 19 How. 241 Newberry M. Colvin, 1828, 8 B. & Cr. 166 N. E. Ins. Co. V. Sarah Ann, 1839, 13 Pet. 400 Newman ». Walters, 1804, 3 B. & Pul. 612 Neustra Senoradel. Carmine, 1854, 1 Spks. 303 Nickerson.u. Tyson, 1812, 8 Mass. 467 c* PAGE 469, 513, 514 . 252,299 488 , 509,511 164 84 80 250 124, 253 451 519, 520 265, 267, 284 46, 216 362 251, 306 365 399 381 250; 266 148 45, 612 358 522 522 . 526, 557 612 125, 165, 362 434, 435 . 339, 343 74 115, 119, 322 209, 214, 219 . 209, 214 492 470 498 . 563, 612 215, 217, 399 503 366 432 40S 32,41 74 73 73 365 238 89 180 148 XXX TABLE OF CASES CITED Nicola Mole Cases, (see Huldah and Driver) Nicolai Heinrich, 1853, 22 Eng. L. & Eq. 615 Nichols V. Tremlett, 1857, 1 Spt. 361 Nimrod, 1822, Ware, 14, 15 Nimrod, 1829, Gilp. 83 . Niphon's Crew, 7 L. Rep. 266 . Nonpareil, 1865, Br. & Lush. 355 . Norden, 1853, 1 Spks. 185 . Nordstjernen, 1857, Swab. 260 Nordstern, 1809, 1 Acton, 128 Nor,th V. Brig Eaale, 1795. Bee, 78 . Norway, 1864-1865, Br. & Lush. 377, 404 N. K. Gosfabrick, 1858, Swab. 344 Nossa Senhora da Adjuda, 1803, 5 Ch. Hob. 52 Nostra Signora de los Dolores, 1810, 1 Acton, 262 Nuova Loanese, 1852, 22 Eng. L. & Eq. 623 . O. 366, 381, PAOX 546 123 350 148, 251 250 118 250 111 215 523, 557 216 382, 389 215 501 557 179 Ocean, 1801, 3 Ch. Bob. 297 470, 498 Ocean, 1845, 2 W. Rob. 371 221 Ocean Queen, 1842, 1 W. Rob. 457 220 Ogden V. Orr, 1815, 12 Johns. 143 251, 252 Olivera v. Union Ins. Co. 1818, 4 Wheat. 193 . . . . 612 Olivier, 1862, Lush. 484 182 Onni, 1860, Lush. 154 214 O'Neil V. Sears", 24 L. Rep. 731 (S. C. 1862, 2 Spr. 52), . . 75, 80 Orbona, 1853, 1 Spks. 161 126 Organ v. Brodie, 1850, 10 Exch. 449 215 Orozimbo, Mitchell v., 1806 (see 1 Pet. Adm. 250) . . . 251, 306 Orleans!;. Phoebus, 1835, 11 Pet. 175 60 Orrock v. Com'th Ins. Co. 1839, 21 Pick. 456 148 Osmanli, 1849, 14 Jur. 93 189 Osprey, 1854, 1 Spr. 245 57 Oster Risoer, 1802) 4 Ch. Rob. 200 . . . . • . 389 Ostsee, 1855, 2 Spks. 170 (Spks. Pr. Ca. 175) .... 533 P. Packet, 1823, 3 Mason, 255 . Padelford v. Boardman, 1808, 4 Mass. 548 Palmer v. Gracie, 1821, 4 Wash. 110 (8 Wheat. 605) Palmyra, 1827, 12. Wheat. 1 . Paragon, 1836, Ware, 322 ... . Paris, 1854, 1 Spks. 289 ... . Partridge, 1822, 1 Hagg. 81 ... . Patapsco Ins. Co. v. Southgate, 1831, 5 Pet. 620 Patton i). Randolph, 1834, Gilp. 457 Payne v. Allen, 1855, 1 Spr. 304 . Pearce v. Page, 1860, 24 How. 228 . Peele v. Merchant's Ins. Co. 1822, 3 Mason, 27 Peerless, 1860, Lush. 30 Peggy, 1802, 4 Ch. Rob. 304 .. . Pensacola, 1864, Br. & Lush. 306 . People's Ferry Co. v. Beers, 1857, 20 How. 893 169,170, 173,175, 188,192 . 148,152 362 437 148 123 432,437 238 173 . 413, 423, 425, 439 74 . 25, 27, 32 80 . 432,437 113 . 53,216 TABLE OF CASES CITED. XXXI Perkins v. Pike, 1856, 42 Me. 141 . Perla, 1858, Swab. 353 .... Perrott v. Bryant, 1836, 2 Younge & Coll. 61 Persia, 1853, 1 Spks. 166 ... . Petronella (vide Jonge P.), 1799, 2 Ch. Rob. 131 Peyroux «. Howard, 1833, 7 Pet. 324 Phenix, 1800, 1 Pet. Adm. 201 Philadelphia, 1808, 1 Pet. Adm. 210 Phil. Wilm. & Bait. Co. v. Ph. & H. Co., 1859, Philipine, 1867, 1 Adm. & Eccl. 309 . Phillips V. Scattergood, 1821, Gjlp. 1 Plummer v. Webb, 1827, 4 Mason, 380 Plummer v. Wildman, 1815, 3 M. & S. 482 Pierce v. Winsor et al. 1861, 2 Spr. 35 . Pilorgis, 1804, Bee, 212 ... Pilot No. 2, 1856, Newb. 215 Pitman v. Hooper, 1837, 3 Sum. 60 Pitt, 1824, 1 Hagg. 245 ... Pittegrew v. Prinale, 1832, 3 B. & Ad. 514 Pizarro, 1817, 2 Wheat. 240 . Polly, 1800, Bee, 157 . . * . Pope V. Nickerson, 1844, 3 Story, 492 . Porcupine, 1825, 1 Hagg. 378 . Post et al. V. Jones et al. 1856, 19 How. 151 Potsdam, 1801, 4 Ch. Rob. 89 . . . Power V. Whitmore, 1815, 4 M. & S. 141 Pratt V. Cuff, 1803, 4 East, 43 Pratt V. Reed, 1856, 19 How. 359 Preston v. Tubbin, 1684, 1 Vern. 286 Price V. Noble, 1811, 4 Taunt. 123 Prince v. U. States, 1814, 2 Gall. 204 Prince Frederick, 1832, 2 Hagg. 394 Prince George, 1837, 3 Hagg. 376 Prince George, 1842, 4 Moo. P. C. 21 Prince of Saxe Coburg, 1837, 3 Hagg. 394 Princess Helena, 1859, Lush. 190 Prins Frederik, 1820, 2 Doda. 451 . Priscilla, 1861, Lush. 1 Prize Cases (U. S.), 1862, 2 Black, 635 . Propeller Commerce, 1861, 1 Black, 574 Property Derelict (King v.) 1825, 1 Hagg. 383 Prosper & Holstein, 1809, Edw. 72 Public Opinion, 1832, 2 Hagg. 398 . Purlssima Conception, 1805, 6 Ch. Rob. 45 41 ,6 How. 215 470, 250, 484, PAOE 215 215,217 413 339 493 216,318 252 252 30 250 215 45 148 363 344 319 126 432 366 455, 456 173 72, 192 250 125,238 500, 505 141, 148 251 397 407 148 332 254, 268 250 198 193 252 612 188 548, 551 30, 44, 74 440 386 62 612 Queen Mab, 1835, (see Mab.) Q. R. Racehorse, 1800, 2 Ch. Rob. 101 . Raikes, 1824, 1 Hagg. 245 .. . Rainbow, 1798, Bee, 116 Raisin v. Mitchell, 1839, 9 Car. & P. 613 . 386 107 45 71 xxxu TABLE OF CASES CITED, Rajah (Bark), 1852, 1 Spr. 199 ... Kajah of Cochin, 1859, Swab. 473 Kamsay v. AUegre, 1827, 12 Wheat. 611 . Randall v. Brown, 1844, 2 How. 406 . Randers Bye, 1807, 6 Ch. Rob. 381 n. Rapid, 1810, Edw. 228 .... Rea V. Cutler, 1849, 7 How. 729 .. . Reade et al. v. Com'l Ins. Co. 1808, 3 Johns. 352 Rebecca ate. Miller, 1799, Bee, 151 . Rebecca, 1799, 2 Ch. Rob. 102 «. Rebecca, 1804, 5 Ch. Rob. 102 ... Reed v. Hoskins, 1855, 4 Ell. & Bl. 979 Reed v. Hussey, 1836, Bl. & Howl. 525 . Reeves v. Constitution, 1835, Gilp. 679 Regina del Mare, 1864, Br. & Lush. 315 . Regulus, 1800, 1 Pet. Adm. 212 . Relf et al. v. Maria, 1805, 1 Pet. Adm. 186 Reliance, 1843, 2 W. Rob. 119 . Rendsborg, 1802, 4 Ch. Rob. 121 . Resolution, 1805, 6 Ch. Rob. 21 . Revere, 1862, 2 Spr. 107 . . . .* . Reynolds v. Ocean Ins. Co. 1829, 22 Pick. 197 Rhadamanthe, 1813, 1 Dods. 204 . Riby Grove, 1843, 2 W. Rob. 52 Rice V. Austin, 1821, 17 Mass. 195, 203, 206 . Rich K. Cos, 1777, Cowp. 639 Ring, C. W., 1867, 2 Am. L. Rev. 259 . Ringdove, 1857, Swab. 310 Ringende Jacob, 1798, 1 Ch. Rob. 89 Ringold V. Crocker, 1848, Abb. 344 Rippinghall v. Lloyd, 1833, 5 B. & Ad. 742 . Rising Sun, 1799, 2 Ch. Rob. 101 Rising Sun, 1837, Ware, 378 . Rival, 1846, 1 Spr. 128 .... Robert, 1809, 1 Acton, 62 .... R. B. Forbes, 1856, 1 Spr. 328 . Robert Fulton, 1826, 1 Paine, 620 Roberts v. Holt, 2 Show. 443 .. . Robertson v. French, 1803, 4 East, 130 . Robertson v. United Ins. Co. 1801,, 2 Johns. Ca. 250 Robinett v. Ship Exeter, 1799, 2 Ch. Rob. 261 Robinson v. Mandell et al., Nov. 16, 1868, Newspapi Robinson v. Noble, 1834, 8 Pet. 181 . Roderick Dhu, 1856, Swab. 177 .. . RoUa, 1807, 6 Ch. Rob. 367 . Rose in Bloom, 1811, 1 Dods. 60 . . . Ross V. Glassford, 1 Bell, 515 Rovena, 1836, Ware, 309 .... Rowe et al. v. Brig, 1818, 1 Mason, 372 Royal Arch, 1857, Swab. 269 Royal Stuart, 1855, 2 Spks. 258 . Rucher v. Conyngham, 1805, 2 Fet. Adm. .295 . (Boston) FAOB 252 188 . 28,46 393 506 509,515 161, 164 175 175 378, 388 193 366 121,412 345 192 250 290, 299, 323 119 612 124,612 522 148 187 412,415 413 215 107 252, 366 488 250 366 386 125 57,80 522 57,404 407, 419 381 365 175 252, 299 335 363 182 494, 505, 533 635 257 252 84, 125 180 188 172, 173 TABLE OF CASES CITED. XXXIU s. Salacia, 1829, 2 Hagg. 264 .. . Salacia, 1862, Lush. 545, 578 .. . Sally Magee, 1865, 3 "Wall. 151 .. . Salters v. Ocean Ins. Co. 1817, 14 Johns. 138 Sampayo v. Salter, 1816, 1 Mason, 43 Sam Slick, 1855, 1 Spr. 289 . Samuel, 1851, 4 Eng. L. & Eq. 581 . San Bernardo, 1799, 1 Ch. Rob. 178 . San Joseph, 1784, Lords, May 4 . . . San Jose, Indiana, 1814, 2 Gall. 268 . Santa Cruz, 1798, 1 Ch. Rob. 50 . Santipore, 1854, 1 Spks. 234 .. . Santissima Trinidad, 1786, Bee, 353 Santissima Trinidad, 1821, 1 Brock. 478 Santissima Trinidad, 1822, 7 Wheat. 283 Sappho, 1857, Swab. 242 ... . Sarah Ann, 1835, 2 Sum. 206 ... Sarah (Schooner), 1861, 2 Spr. 31 Saracen, 1846, 2 W. Eob. 451 , . Saracen, 1847, 6 Moo. P. C. 56 . , Saratoga, 1814, 2 Gall. 181 . Saratoga, 1814, 2 Gall. 175 Sargent v. Morris, 1820, 3 B. & Aid. 277 Sarportas v. Jennings, 1795, 1 Bay, 470 Saville v. Campion, 1819, 2 B. & Aid. 503 . Saunders v. Vanseller, 1843, 4 Ad. & EI. (N. R.) Scott V. Greenwich, 1802, 1 Pet. Adm. 165 . Scott V. Proprietors Plymouth, 1855, 6 McL., 463 Scudder v. Bradford, 1833, 14 Pick. 13 Sea Lark, 1860, 1 Spr. 571 .... See Renter, 1811, 1 Dods. 23 . . . Selden v. Hendrickson, 1819, 1 Brockenb. 396 Selina, 1842, 2 Notes of Cases, 18 Serafina, 1864, Br. & Lush. 277 Seringapatam, 1848, 3 W. Rob. 38, 10 Jur. 1065 Shaw V. Lethe, 1781, Bee, 424 ... Shaw u. Thompson, 1845, 01c. 145 Sheffield v. Page et al., 1855, 1 Spr. 289 Shepard v. Taylor, 1831, 5 Pet. 675 . Shepherdess, 1804, 5 Ch. Rob. 262 . Sherwood v. Mcintosh, 1826, Ware, 109 Shore V. Wilson, 1842, 9 CI. & Fin. 557 Sidney Cove, 1815, 2 Dods. 13 . . . Sigard v. Roberts, 1800, 3 Esp. 71 Silver Bullion, 1854, 2 Spks. 74 . . . Simmes v. Mer. Ins. Co. (Alex'a), 1825, 2 Cr. 618 Sims V. Gurney, 1812, 4 Binn. 513 Sims V. Hundley, 1848, 6 How. 1 Simonds v. Union Ins. Co., 1806, 1 Wash. 443 Simonds v. White, 1824, 2 B. & C. 805 Singstrom v. Hazard, 1807, 2 Pet. Adm. 384 Sills V. Brown, 1840, 9 Car. & P. 601 Sloan V. Ship A. E. I., 1808, Bee, 250 . Slocum u. Mayberry, 1817, 2 Wheat. 1 260 119, 125, 321, i 188, 412, PASE 101, 102, 124 189, 252, 366 522 148 362,377 212 114,125 124 559 612 124 123, 125 173 613 612 123 238 363 437 399 251 862, 375 381 451 366 379, 381 251 215 148 397 432 172 392 183 437 250 363 408 251 469, 503 251, 299 355, 356 414, 415, 416 251, 283 123 363 139 326 362 148 251 71 173 44 XXXIV TABLE OP CASES CITED, Smilax ats. Wilmer, 1804, 2 Pet. Adm. 300 n. Smitk V. Condry, 1843, 1 How. 28 Smith V. Creole, 1853, 2 Wall. Jr. 485 . Smith V. Mclver, 1824, 9 Wheat. 532 Smith V. Pekin, 1830, Gilp. 203 Smith V. Stewart, 1838, Crabbe, 218 . Snipe & others, 1812, Edw. 380 Snow et al. v. Oarruth et al., 1856, 1 Spr. 324 Snow et al. v. Hill et al., 1857, 20 How. 543 Soblomsten, 1866, 1 Adm. & Eccl. 293 Sooieti^, 1815, 9 Cr. 209 ... Somes V. Sugrue, 1830, 4 Car. & P. 276 Sophia Elizabeth, 1809, 1 Acton, 46 South Carolina ats. Lindsey, 1801, Bee, 173 Sovereign, 1860, Lush. 85 . . . Spes & Irene, 1804, 5 Ch. Kob. 79 S. P. Ekins V. E: I. Co., 1717, 1 P. Wms. 395 Speculation, 1810, Edw. 184 . Springbok, 1866, 5 Wall, 1 Spurr V. Pearson, 1816, 1 Mason, 104 St. Cloud, 1863, Br. & Lush. 4 St. Jago de Cuba, 1824, 9 Wheat. 409 St. John, 2 Spr. 266 ... . St. Nicholas, 1816, 1 Wheat. 417 Standard, 1857, Swab. 267 Steamboat Boston, 1846, Olo. 407 Steamer New Orleans, 1837, 11 Pet. 175 Steamer St. Lawrence v. Fisher et al. 1858, 21 How, Steamer St. Lawrence, 1861, 1 Black, 522 Steamship Co. v. JoUiffe, 1864, 2 Wall. 450 Stephen Hart, 1864, 1 Blatch. Pr. Ca. 40, 2 Mar. Stert, 1801, 4 Ch. Rob. 65 . . . Stettin, 1863, Br. & Lush. 199 Struggle, 1813, 1 Gall,. 476 . Sturgis V. Boyer et al., 1860, 24 How. 110 Sturgis V. Law, 1850, 3 Sandf. 451 Success, 1812, 1 Dods. 131 . • Sullivan v. Ingraham, 1802, Bee, 182 . Sultana, 1856, 19 How. 359 . Superior, 1834, Gilp. 516 . Susan, 1795, 1 Pet. Adm. 165 Susan (Brig), 1859, 1 Spr. 502 . Swallow (Steamboat), 1843, 01c. 4 Swain V. Howland, 1858, 1 Spr. 427 . T. 478, 252, 4, Ca. 73 175 60, 71 345 407 318 84 509, 515 348 53 347, 358 362 230, 232 522 251, 322 131 469, 502 224, 232 612 552 296, 348 381 216, 320 560 468 138 80 46 73 29,43 345 554 500 339 437 74 84 524 292 216 250 252 344 253 280, 281 Taber v. Jenny, 1856, 1 Spr. 315 . Taber v. U. States, 1839, 1 Story, 1, 7 Taggard et al. v. Loring, 1820, 16 Mass. 336 . TaUsot V. Seaman, 1 Cr. 1 . Talbot V. Janson, 1795, 3 Dall. 183 Tamarac, 1860, Lush. 28 ... . Tarrabochia v. Hiokie, 1856, 1 Hur. & Nor. 183 Tate V. Meek, 8 Taunt. 208 ... 413, 422 250 358 83 594 432, 437 366 365 TABLE OF CASES CITED. XXXV Taylor v. Caryl, 21 How. ei5 . Taylor v. Curtis, 1816, 6 Taunt. 608 Temora, 1860, Lush. 17 . Test, 1836, 3 Hagg. 307-315 Thackeray et al. v. Farmer, 1834, Gilp. 624-534 Thatcher v. McCuUock, 1846, Olc. 365 Thatcher ats. Steele, 1825, Ware, 91 Thetis, 1833, 3 Hagg. 14, 62 Thetis, 1834, 2 Knapp, 390 Thomas, 1799, 1 Ch. Rob. 322 . Thomas Jefferson, 1825, 1 Wheat. 428 . . . 42, Thomas v. Lane, 1834, 2 Sum. 1 Thompson, 1865, 3 Wall. 155 . Thompson v. Beale, 1804, 4 East 546 Thompson v. Faussatt, 1 Pet. C. C. 182 Thompson v. Hamilton, 1832, 10 Pick. 428 Thorn v. White, 1806, 1 Pet. Adm. 175 Thorfadike v. Stone, 1832, 11 Pick. 183 Tigress, 1863, Br. & Lush. 45 . Tilton, 1830, 5 Mason, 465 . Tompkins v. Howard, 1849,1 Spr. 167 Toivo, 1853, 1 Spks. 185 .. . Towle V. Great Eastern, 11 L. T. (N. S.) 516 Townsend v. Orne, 1827, 4 Mason, 641 Trask v. Duvall, 1821, 4 Wash. 181 Tree v. Indiana, 1842, Crabbe, 479 Tremenhere v. Tresillon, 1 Sid. 452 Trenton Bank v. Wall, 4 Hals. 83 Trident, 1839, 1 W. Rob. 35 . Triheten, 1805, 6 Ch. Rob. 65 . Tristram Shandy, 1781, Bee, 414 . Triton, 1801, 4 Ch. Rob. 79 Triumph, 1858, 1 Spr. 428 Tunno v. The Mary, 1798, Bee, 120 . TurnbuU v. Enterprise, 1785, Bee, 345 Turner's Case, 1825, Ware, 91 . Tutela, 1805, 6 Ch. Rob. 177 . Twee Gebroeders, 1800, 3 Ch. Rob. 162 Twee Gebroeders, 1801, 3 Ch. Rob. 336 Two Catherines, 1821, 2 Mason, 319 . Two Friends, 1799, 1 Ch. Rob. 271 Two Friends, 1801, 4 Ch. Rob. 143 . Two Friends, 1 844, 2 W. Rob. 349 . Two Sisters, 1843, 2 W. Rob. 138 Tyson v. Prior, 1812, 1 Gall. 133 . U. Undaunted, 1860, Lush. 92 Undaunted, 1862, 2 Spr. 194 Underwood v. Robertson, 4 Camp. 188 Union, 1855, 2 Spks. 161 . Union, 1860, Lush. 128 . Union St. Co. v. N. Y. & Virg. St. Co., 1860, 24 How. 307 Ure V. Coffman et al., 1856, 19 How. 56 46, PA8E . 26, 53 142, 148 339 253, 297 250, 318 368 251 83, 104 83 432 , 60, 318 440 552 251 252, 439 358 299 189 381, 382 45, 238 413, 420 173 101 251, 299 362 216 224, 232, 237 409 188, 197 504 251 541 97, 122 173 173 250 505 612 612 127 124 322 127 284 83, 126 114, 123 399 233, 237 488 250 . 74 73 xxxvi TABLE OP CASES CITED. U. S. V. Arredondo, 1832, 6 Pet. 691 .. . U. S. V. Dunham et al., 1859, 21 Law Bep. 591 . U. S. V. Fisher et al., 1805, 2 Cr. 358 .. . U. S. V. Freeman, 1827, 4 Mason, 512 U.S. 0. Hamilton, 1818, 1 Mason, 443 U. S. V. La Vengeance, 1796, 3 Dall. 297 . U. S. V. Locke, 1813, 7 Cr. 339 ... • U. S. V. New Bedford Bridge, 1846, 1 Wood & M. 441 TJ. S. V. Peters, 1795, 3 Dall. 121 . U. S. u. Reed et al. 1851, 12 How. 361 . U. S. ». Riddle, 1809, 5 Cr. 311 ... . U. S. V. Schr. Betsey & Charlotte, 1808, 4 Cr. 443 U. S. V. Schr. Sally, 1805, 2 Cr. 406 ... U. S. V. St. Charles, 1856, 19 How. 108 U. S. V. Willings et al., 1807, 4 Cr. 48 . U. S. V. Wilder, 1838, 3 Sum. 308 ... PAGE 51 325 332 314 250 41 546 30, 31 612 326 546 41,44 41 73 358 394 Van Beuren v. Wilson, 1828, 9 Cowen, 158 Valiant, 1 W. Rob. 67 ... Vanguard, 1805, 6 Ch. Rob. 207 . Vance v. Campbell, 1861, 1 Black, 430 Veacock v. McCall, 1832, Gilp. 329 Venus, 1803, 4 Ch. Rob. 355 Venus, 1814, 8 Cr. 253 . Vibilia, 1838, 1 W. Rob. 1 . . . Victor, 1860, Lush. 72 ... . Victoria, 1809, Edw. 97 . . . Victoria, 1858, Swab. 408 .. . Vigilantia, 1805, 6 Ch. Rob. 122 . Vinal V. Burrill, 1835, 16 Pick. 406 Vine, 1825, 2 Hagg. 2 . . . Virgin, 1834, 8 Pet. 638 ... Virtu, 1853, 25 Eng. L. & Eq. 592 Vreede, 1811, 1 Dods. 1 ... Vrow Anna Catharina, 1803, 5 Ch. Rob. 15 Vrow Anna Catharina, 1804, 5 Ch. Rob. 161 Vrow Henrica, 1803, 4 Ch. Rob. 343 . Vrow Johanna, 1799, 2 Ch. Rob. 109 Vrow Judith, 1799, 1 Ch. Rob. 150 . Vrow Mina, 1813, 1 Dods. 235 W. Wadleigh v. Veasie, 1838, 3 Sum. 165 . Walden v. Chamberlain, 1814, 3 Wash. 290 Walker v. Boston & Hope Ins. Co., 1859, 14 Gray, Walsh u. Dunkin, 1815, 12 Johns. 99 . Walsh V. Rogers, 1851, 13 How. 283 Walter v. Brewer, 1814, 11 Mass. 99 . Walton V. Neptune, 1800, 1 Pet. Adm. 142 Wando, 1866, L. Rep. May, 391 Wansfell, 1864, 1 Spks. 269 . Ward u. Ames, 1812, 9 Johns. 138 193, 301 262 432 319 326 260, 266 635 612 197, 219 366 432 433 506 358 101 175 432, 433 435 612 612 388 492 490 219 409 173 72 409 53 61, 72 251 553 80 251 TABLE OF CASES CITED. XXXVll Waring et al. v. Clarke et al., 1847, 5 How, 441 WaTrior, 1818, 2 Doda. 288 Warrior, 1862, Lush. 476 . Washington, 1801, 1 Pet. Adm. 132 Watega, 1856, Swab. 165 Waterloo, 1820, 2 Dods. 443 Watson V. Kose, 1806, 1 Pet. Adm. 132 Watt, 1843, 2 W. Rob. 70* . Wave, 2 Paine, 131 ... Wave, 4 Eng. L. & Eq. 689 Wayman v. Southard, 1 Wheat. 24 . Wear Packet, 1855, 2 Spks. 256 . Webster v. Seekamp, 4 B. & A. 354 Weelvaart Van Pillaw, 1799, 2 Ch. Rob. 128 Werldsborgoren, 1802, 4 Ch. Rob. 17 Wesley, 1861, Lush. 268 ... . Wester-Dell v. Dale, 1797, 7 T. R. 312 . Westmoreland, 1841, 1 W. Rob. 227 . Weston V. Minot, 1847, 1 Wood & M. 436 Wetmore v. Henshaw, 1815, 12 Johns. 324 . Wheelwright v. Depeyster, 1806, 1 Johns. 471 Whelan v. U. States, 7 Cr. 112 . White Star, The, 1 Adm. & Eccl. 68 White V. Whitman, 1863, 1 Curt. 495 . White V. Willis, 2 Wil. 87 . . . Whitney et al. v. Emmett et al., 1831, 1 "Baldw, Whitridge v. Dill et al., 1859, 23 How. 448 Whitten v. Tisdale, 1857, 43 Me. 461 . Whitton V. Brig Commerde, 1798, 1 Pet. Adm, Whittredge v. Norris, 1809, 6 Mass. 126 Wickham v. Blight, 1834, Gilp. 462 . Willard & ux. Admr. v. Dorr, 1823, 3 Mason, 161 Wilkinson v. Fraser, 1803,4 Esp. 182 . Wilkinson v. Leland et al., 1829, 2 Pet. 662 William, 1806, 6 Ch. Bob. 369 . William, 1847, 2 W. Rob. 522 William, 1858, Swab. 346 . William Baggaley, 1866, 5 Wall. 377 William Beckford, 1800, 1801, 3 Ch. Rob. 355 William Hamilton, 1834, 3 Hagg. 168 William Harris, 1837, Ware, 367 William Jarvis (Ship), 1859, 1 Spr.486 . William Martin (Schr.), 1859, 1 Spr. 664 . William Peele, 1866, 6 Wall. 517 . William Penn, 1863, 1 Am. L. Reg. 554 Wilmer v. Smilax, 1804, 2 Pet. Adm. 295 n. Wilson V. Ohio, 1834, Rilp. 614 . Wilson V. Bragdon, 1813, 10 Mass. 79 Windsor Castle, 1843, 2 Notes Cases, Supp. 53 Woolf w. The Oder (Brig), 1802, 2 Pet. Adm. 261 Worsley (Lady), 1856, 2 Spks. 253 Wright V. Bales, 1862, 2 Black, 537 316 160 252, PAGE . 82, 42 432 88, 129 251 216, 221 104 261 125 121 178 326 124 215, 216 493, 506 379 339 215 254, 284 303 262 452 41,44 403 409 409 332 74 215, 217 289, 290 148 250, 266 ,319,348 250 326 80 130 181, 188, 250 652 107, 123 125 252 326 421 522 107 172 318 251 126 251 123 326 286, . 260,266 413, 260, : PAQE XXXVIU TABLE OF CASES CITED. T. Young Mechanic, 1866, 2 Curt. 404 216 Z. Zane v. The President, 1824, 4 Wash. 463 44, 216 Zephyr (Schr.), 1824, 3 Mason, 341 169,176 Zodiac, 1825, 1 Hagg. 320 170,178,219 Zone (Ship), 1860, 3 Spr. 19 ... .... 363 PART I. ADMIRALTY JURISPRUDENCE. ADMIRALTY JURISPRUDENCE. CHAPTER I. The sources from which an accurate knowledge of Admiralty Law may be derived, are many and various. In theory, the United States may seem to have bor- rowed it directly from England ; yet, in practice, refer- ence to ol^er countries and codes is indispensable to consummate that knowledge. No jurist can satisfy his own mind as to the nature of Admiralty Jurisprudence, or extent of Admiralty Jurisdiction, by a simple recurrence to the legislation or adjudged cases of England alone ; and no treatise upon -this subject would be either complete or com- prehensive which did not also largely draw from what are, in Europe, denominated the Foreign or Marine Or- dinances. By this expression are meant certain mari- time codes, which, at different periods in the growth and history of commerce, have become incorporated into the Marine Jurisprudence of Europe. The Maritime Ordinances or Codes originated in the Middle Ages, and not with the so-called great powers of modern Europe ; nor is their origin, to any great extent, to be traced back to ancient Greece or Eome, save only such portions thereof as may have survived the wreck of time, and come down to modern times, 1 2 SOUECES OF MAKITIME LAW. though but in fragmentary form, under the name of the Rhodian Law. But the ancient sea-laws or maritime codes usually referred to and relied upon as authority, are chiefly known as — 1. The Laws of Wisbuy ; 2. The Laws of Oleron ; 3. The Laws of the Hanse Towns ; and 4. The Ordinance of Louis XIV. Others, indeed, are occasionally referred to, such as that of Philip II., of Spain, and the ConsoMo del Mare, embodying the usages and regulations of trade, par- ticularly as applicable to the Mediterranean Sea, in the Middle Ages ; but they embody no novel or valuable principles of maritime jurisprudence, which a'^e not also to be found, and as well, or better expressed in either the codes of Wisbuy, Oleron, the Hanse ZTowns, or the Ordinance of Louis XIV. Therefore, in the preparation of this work, while seeking great principles, and in the absence of reported decisions, our references will be made mainly to the four compilations known and designated as the Foreign Ordinances ; and occasionally, perhaps, to some elemen- tary works of European jurists, and English and Ameri- can writers and magistrates. Many works have been pubhshed upon the subject of international law and rights and dominion over seas. A limited enumeration of such as treat of nautical or naval rights shall be incorporated here for the general convenience of the student ; it might easily have been enlarged and made more minute. John Selden was an Englishman, who published, in 1635, his work entitled Mare Clmmm. This was, doubt- WRITERS ON MARITIME LAW. less, written by _ its author in reply to the Mare Liberum, a treatise written and published by Hugo Grotius, some ten years before. From this cause, these two great minds were afterward placed by their contemporaries in a quasi condition of rivalry, while their respective works have continued to benefit and instruct posterity, and gladden the heart and excite the emulation of the ■ zealous student of jurisprudence, both in Europe and America. Another Englishman, Professor Richard Zouch, wrote De Jure JSfautico, and published it in 1650, when he was about sixty years of age. He was a distinguished civilian, Regius Professor of Laws at Oxford, "Warden of the Cinque Ports, and Judge of Admiralty, This work is highly valuable, and has been frequently referred to by eminent judges, and particularly so by Mr. Justice Story. Richard Zouch was born in 1590 and died in, 1660. His works on maritime jurisprudence were writ- ten in Latin. About the same period, 1651, was published De Jure Maritimo et Navali, a work written by Johannes Loc- cenius, a professor of Sweden. And another treatise under the same title, written by Charles MoUoy, an Irishman, first appeared in 1666. In 1702, Cornelius Van Bynkershoek, of Zealand, put forth his work entitled De Dominio Maris. In 1760 was published Commentaire sur VOrdommnce de la Marine, a work written by that eminent European scholar and jurist, Rene Josue Valin ; and 1763, Trade de Prises, by the same author, — this latter having been published only two years before his death. Joseph Laurentius Maria de Casaregis was born in 1670 and died in 1737. During his life, he gave to the 4 WRITERS ON MARITIME LAW. world the Discurms Legales de Commercio ; a second edi- tion was' published after his decease, in 1740. The work Droit Maritime de V Europe was written by Dominico Alberte Azuni ; and it is a work to which frequent reference has been made in maritime cases. Its author was, by birth, a Sardinian ; born in 1760, and died in the year 1827. In 1803, Thomas Hartwell Home published a Com- pend of Admiralty Decisions. A Digest, by William T. Pritchard, was published in 1847 and 1848. This has been enlarged by its author, assisted by Dr. Pritchard, and a new edition published in 1866. In its present form, it is a most valuable and convenient work on ad- miralty. Wicquefort's La Ambassadeur et ses Fonciions, as well as MUtiz's Manuel des Consuls, are useful for examina- tion, in considering the subject of maritime jurispru- dence. In this brief review of works on maritime law, that of J. M. Pardessus, entitled Us et Coutumes de la Mer, ought most assuredly to be mentioned. But, not. to be too minute in this reference to the sources of instruction for the student of marine law, it may not be inappropriate to recall likewise the names of other jurists and magistrates, who, both in England and the United States, are often referred to with respect in admiralty causes, alike on the instance and prize sides of admiralty courts. Since the time when Sir James Marriott presided over the High Court of Admiralty in England, his suc- cessors in that office have been conspicuous for their learned labors, judicial capacity, singular experience, and consummate mastery of admiralty law. Sir Wil- JUDGES IN ENGLAND. liam Scott (perhaps better known by his later title, Lord Stowell) was the immediate successor of Sir James Marriott. Lord Stowell was, perhaps, as free from na- tional vanity and prejvidice as it is possible to suppose an Englishman to be ; and the decisions of this great magistrate, as reported by Christopher Rdbinson, Ed- wards, Dodson, and Haggard, will ever remain a monu- ment and recorded evidence of his extensive legal learn- ing, varied classical culture, and sound, and generally correct judgment in judicial proceedings. From 1799 to 1867, the High Court of Admiralty in England was presided over by only four admiralty judges — Stowell, Robinson, NichoU, and Lushington ; all admirably qualified for that station by previous training as King's advocates, or fitting experience in the practice and proceedings of that court. The first and last each occupying the position twenty-nine years ; the second and third respectively four and five years each. Lord Stowell held the place from 1799 to 1828, when he was succeeded by Sir Christopher Robinson, who pronounced his first decree in March following, and administered the duties of the station from 1828 until 1833. He was succeeded by Sir John Nicholl, who filled the office from 1833 until 1838, when he was succeeded by Sir Stephen Lushington, who resigned in 1867 ; when the place was filled by the appointment of Sir Robert J. Phillimore, the present incumbent. How much Lord Stowell contributed to establish a consistent practice in prize proceedings may be gath- ered from the cases reported in the earlier volumes of the regular series of English Admiralty Reports. But it is no exaggeration to state, that the chief merit of, the present improved practice and enlarged jurisdiction of 1* 6 ADMIRALTY CASES AND COURTS. the English High Court of Admiralty is essentially attri- butable to Dr. Stephen Lushington. The present judge (Sir K. J. Phillimore) has not been sufficiently long in office to enable those at a distance to pronounce upon his judicial merits. He has merits as a writer on public law and practitioner in the civil law. With antecedents favorable, promising ability, and conceded experience, it may well be hoped that, when the future reports of Browning and Lushington or others appear in print, the cases containing decisions of the present judge will compare not unfavorably with those of his predecessors. During this succession of English judges in admirailty, either by adjudications or legislation, the admiralty law has been moulded into its present shape ; and, so far as the law or practice has been ameliorated or improved, the merit thereof is mainly due to the assiduity and labors of Dr. Lushiiigton. And now, the admiralty law and practice of England differs but little from that of the United States, in re- gard to the class of causes of which admiralty has usually taken cognizance ; save only, that, in this coun- try, locality has totally ceased to be a test of jurisdic- tion, in hearings before the United States Supreme, Circuit, and District Courts ; and it does not now appear that, in England, such jurisdiction was ever claimed, or cognizance taken in the High Court of Admiralty over policies of insurance, as has been claimed and taken in the Circuit and District Courts of the United States First Circuit, since 1815. The question, however, as there raised, has never been solemnly decided by all the judges of the United States Supreme Court ; and, having occasioned a great variety of opinions certainly, if not ADMIRALTY CASES AND COURTS. 7 a conflict of decisions, it still remains an open question and ought, in some way, to be permanently settled. With these exceptions as to tests of jurisdiction, both the course of proceeding in admiralty and the subjects embraced within its jurisdiction in England and the United States, are very nearly, if not quite, identical. Admiralty jurisprudence, like the law of insurance, is measurably of modern gyowth. In England, Lord Stow- ell judicially led off; and, in this country, Mr. Justice Story ; and both contributed materially to define, settle, and establish the practice and jurisdiction of admiralty courts, as now understood and recognized in the two countries. In the United States, the first, second, third, fourth, fifth, and sixth circuits include those harbors and ports of entry, where the people are most absorbed in com- mercial pursuits ; and in which, accordingly, cases of admiralty and maritime jurisdiction were most likely to occur. In these circuits are severally located the commercial cities of Boston, New York, Philadelphia, Baltimore, Charleston, Mobile, Savannah, and New Orleans; and there have usually arisen the leading cases on the sub- ject of admiralty in general, as well as .those, in partic- ular, in which questions of jurisdiction have been, in the first instance, started, and which were afterwards heard and decided in the Supreme Court, — some one of the several district courts of the six enumerated circuits having originally assumed or declined to exercise juris- diction. The reports of cases in admiralty, in this country, will be found arranged in a tabular statement contai^ied in Appendix marked (A) ; also the names of all the per- 8 FOREIGN OKDINANCES. sons appointed or nominated to be judges of the United States Supreme Court, and other principal law ofladals from the year 1789 to the present date ; together with a connected series of British Admiralty Reports, at least from 1799. It has already been observed, that those nations of Europe, known, in modern times, as the Great Powers, did not originate the maritime codes, known as the Foreign Ordinances ; nor have these states, though wield- ing great political sway, until the present century, con- tributed materially to enlarge, improve, or qualify the leading ideas and general principles of maritime juris- prudence, which are so tersely expressed and lastingly embodied in the insular productions of Rhodes in the Archipelago, Gothland in the Baltic, Oleron in the Bay of Biscay, and the Hanseatic code of the free cities or republics near and adjacent to the Baltic Sea. With a slight exception, the original of the Foreign Ordinances may be justly termed insular productions. And it is, indeed, somewhat remarkable that the people of these small islands (Rhodes, Gothland, and Oleron) should have enabled themselves, by reason of their com- mercial enterprise and experience, to thus become, not only framers of codes, but the actual teachers and ex- positors of maritime law for all the rest of the European world. To our regret, fragments only of the Rhodian law have reached us ; those fragments having been pre- served by being incorporated in the chapter of Justin- ian, entitled De Jactu, and what is thus preserved consti- tuted but a small portion of the whole of the original code of Rhodes. The Laws of Wisbuy were compiled about the year JPOREIGN OKDINANCES. U 1288, on the island of Gothland in the Baltic Sea, and they contain some seventy articles ; as will be found by referring to such as have been published in Peters' Admiralty Reports. The author of this body of laws is unknown. The Laws of Oleron first appeared about the year 1338, and contain some forty-seven articles. They are so called from the island where they were originally compiled, — ^.Oleron being a small island on the west coast of France. It has been a point of animated debate among French and English jurists, whether these laws were compiled under the direction of Eleanor, Duchesse of Guienne, or her son, Eichard I., of England. But neither party have conclusively' established their several claims of authorship. However this may be, and how- ever fit and tempting the topic may be to the curiosity of the antiquarian, it seems not to be particularly per- tinent to the present undertaking. The Laws of the Hanse Towns were the production of what was denominated the Confederation of Free Cities, in Northern Germany. There were three prin- cipal citiesor republics (Lubec, Hamburg, and Bremen) in the confederacy originally ; but, at one time, as many as eighty different cities had joined the League, and agreed to be governed by its commercial code. The Hanseatic code first appeared in the year 1597, and contained about sixty articles. ' Subsequent to the publishing of the laws just enum- erated, there was compiled a work in France, denom- inated the Ordinance of Louis XIV., published in the year 1681, divided into parts, and those parts subdivided into articles ; making, altogether, about two hundred and fifty articles. This was accomplished during the ad- 10 AUTHORS OF OBDINAJSfCE OF LOUIS XIV. ministration of Colbert, the eminent minister of France, in the time of Louis XIV. It is an authentic, standard, reliable, and valuable compilation ; and unquestionably embodies no inconsiderable portion of the prior codes. Besides, it is fuller than they are ; more minute, and embradfes additional subjects. Much of the merit of the plan is justly ascribable to the minister Colbert himself, though the chief value of its execution is doubtless due to the minister's commissioners. Who the .commission- ers that executed the work were, may remain, hereafter as heretofore, entirely unknown. There is every prob- ability that the work was performed by some jurist ap- pointed by Colbert, but whose name was, at the time, undisclosed ; and, at the present time of writing, remains undiscovered by writers on law. In the seventh edition of Kent's Commentaries, vol. iii., p. 15, is this paragraph : "It is, however, an extra- . ordinary fact, that the able civilians, and perhaps the distinguished merchants, who assumed the task of legis- lators, and compiled this ordinance, are unknown to fame ; and though the event be of so recent a date, and occurred at the most polished and literary era in French history, yet neither letters, nor gratitude, nor national vanity have been able to rescue their names from ob- livion." ^ 1 Since preparing the text, in examining the History of France, written by Henri Martin, vol. i., p. 494, age of Louis XIV., I have met with the follow- ing passage, and shall give it entire, as translated by Miss Booth. " The minister who had created the French marine, crowned his monument by an admirable work. " Colbert, embracing by a glance all social relations, had well understood what influence a good administration of justice had upon the progress of public wealth. We have already described the essential part that he had taken in the civil and criminal ordinances of 1667 and 1669 ; then, how he had regulated the relations and disputes of general commerce by the ordi- AUTHORS OP ORDINANCE OF LOUIS XIV. 11 This survey of the sources whence a precise and comprehensive knowledge of marine jurisprudence may be acquired, seems "to have been a useful as well as necessary introduction to the present treatise. nance of commerce in 1673. The -wholly special interests and habits of ocean commerce demanded a separate constitution ; the customs of the Middle Ages, the ordinances of the J6th century, no longer sufficed the new marine. " For ten years Colbert had been laboring on a maritime code, through a commission, the most active members of which were the Master of Requests, Lebeyer de Boutigni, and Lambert d'Herbigni. The ordinance concerning the marine appeared in August, 1681. " This ordinance descends through every grade of hierarchy, from the admiral to the carpenter and caulker, and dictates the duties of each.'' CHAPTER II. MEANING OF " ADMIRALTY AND MARITIME JURISDICTION " IN THE UNITED STATES. The Constitution of the United States (Article I., section 3) provides, that the judicial power shall extend to " all cases of admiralty and maritime jurisdiction." The general Judiciary Act passed September 24th, 1789, enacts, that the district courts of the United- States " shall have original, exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction." In civil causes, therefore, the grant of jurisdiction, under the Constitution and by the Judiciary Act of 1789, is substantially identical, in terms, certainly, and possibly also in tneaning and extent. Knowing then the significance and meaning of the terms, it would seem that the student of admiralty law ought not to encounter any great difficulty in ascertain- ing, with precision, the nature, limit, and extent of admi- ralty jurisdiction, as thus and thereby conferred upon the United States district courts, under their present organization. Nevertheless, various theories, opinions, and decisions by learned jurists and distinguished magistrates have been entertained ; and are still adhered to, which have occasioned much embarrassment, if not conflict in prac- tice j thereby preventing a conclusive settlement of MEANING OF ADMIRALTY AND MARITIME. 13 some principles of law, which ought permanently and uniformly to govern and regulate both the rules of pro- cedure and extent of admiralty jurisdiction of the dis- tricf^courts in the several States. This want of uniformity (which has probably arisen from the great number of judges who administer the admiralty law in so many different States) has ever been an occasion for regret : and many have lamented that cases of sufficient importance have not been car- ried to the Supreme Court, so as to demand a definitive determination, by that high tribunal, of certain ques- tionable points of practice of long-standing. Ultimately these points, however postponed, must be solemnly set- tled by that court or by further congressional legisla- tion. A just interpretation of the terms "admiralty and maritime jurisdiction " involves an inquiry, which is ne- cessarily historical, critical and practical. If these qualify- ing terms " admiralty and maritime " are really synony- mous, when used as prefixes to designate one kind of jurisdiction in admiralty proceedings, then the whole discussion may be narrowed down to simply giving an accurate definition of those words ; and so need not be extended beyond such definition. The very definition itself will have accomplished the work of philology and criticism ; and precludes all necessity of further histori- cal illustration or practical reference to precedents ; so that the legitimate limit of admiralty jurisdiction will thus be made apparent to the judicial mind. Still, for want of such clear and precise definition, already have these terms, since 1789, been a subject of much seem- ingly needless discussion, misapplication, and misinter- pretation. 14 MEANliSG OP ADMIRALTY AND MARITIME. Those who deem the terms synonyms, at once adopt the further corollary, that " admiralty " and « maritime," as used in the Constitution and General Judiciary Act of 1789, are indeed convertible terms ; that admitalty courts are ex vi termini maritime courts, that maritime jurisdiction is necessarily admiralty jurisdiction; and vice versa. But, since, in written opinions and legal decisions, this has neither been readily assented to nor univer- sally accepted as the true exposition of these terms, some practical aid may be aflTorded to the student and general reader, by a succinct survey and glance at the history and modes of procedure of the admiralty and vice-admiralty courts of England, and in its various dependencies in North America and the East and West Indies ; covering a period from the time of their orig- inal appearance and organization, down to the time of the American Revolution at least, if not quite down to the time of adopting the Constitution of the United States of America in 1789. The long struggle in England between the common- law judges on the one side, and those civihans on the other, whose life and labors were confined to the ad- miralty courts (though that struggle extended over two centuries with not a little discourtesy and a great deal of acerbity), may possess considerable interest for the student of history ; but it has entirely ceased to be useful in expounding the general principles, which un- derlie and should regulate the course of proceeding and adjudication in the courts of admiralty. Suffice it to say, that selfishness on the one hand and jealousy on the other continued to keep alive and in- tensify the controversy much beyond the occasion for ACTS, RESOLUTIONS, ORDINANCES. 15 it ; and altogether after the real cause for it had been withdrawn by the direct interposition of Parliament. While prohibitions, unchecked by the restraining acts of the 13th and 15th of Richard II. were issued by the common-law judges of Westminster, the conduct of these judges greatly annoyed those civilians who favored an unrestricted admiralty jurisdiction. Formerly, the judges of the common-law courts were unsalaried ofl&cers ; and, as their compensation depended upon the number of suits of which they judicially took cognizance, selfishness alone might account for occar sional interference, by prohibition within the domain of the admiralty tribunals. And hence it was that the common-law lawyers, led off by the great Coke, in their persistent encroachments upon the admiralty, and in their equally unscrupulous attempts to extend the com- mon-law jurisdiction, materially contributed not only to prolong, but to embitter the controversy between them- selves and the civilians. Instead, therefore, of settling, aU such eflforts tended to unsettle the jurisdictional limits of admiralty ; whatever was done to render the boundaries of the admiralty court certain, only had the effect to make them really more uncertain. From the year 1272 to the year 1660, aU attempted legislation by the English Parliament proved to be vain and nugatory; and the whole series of ordi- nances, articles, agreements, answers, and resolutions, complaints, remonstrances, and inquisitions, whether by expert seamen, high admirals, privy councils, judges, the administration of kings, lords or commons of Eng- land, were measurably futile and abortive ; accomplish- ing temporarily but little and permanently less; set- tling nothing, unsettling everything ; so that in a candid 16 ACTS, RESOLUTIONS, ORDINANCES. review of all thes6 various and multiform attempts, there seem to be, in the retrospect, only the " acts and ordinances of the Kepublican Government of England " in 1648, which are really worthy of being rescued from oblivion, as containing abiding views and solid principles of admiralty jurisprudence, which may be deemed by jurists to be intrinsically operative and valuable ; yet, upon the Eestoration in England, these even were sum- marily abrogated. The ordinance of Hastings was a restraining act, framed in 127.2, for the purpose of restricting " divers lords " and " their stewards or bailiflFs " from holding " any plea, if it concerned merchants or mariners." In 1376, the Queensborough Inquisition was taken by " eighteen expert seamen," before William Nevil, Admiral of the North ; Philip Courteney, Admiral of the West; and the Lord Latimer, Warden of the Cinque Ports. This document contained twenty-seven articles, under three different heads, and related to — I. Offenses against the king and kingdom. n. Offenses against the public good of the kingdom ; and III. Offenses against the admiral, the navy, and dis- cipline of the sea. In 1575 it was alleged that there was an agreement between the judges of the King's Bench and the Court of Admiraltyj " for the more quiet and certain execution of admiral jurisdiction." But this agreement was " not observed as it ought to -be," as the Lord High Admiral complained. What are called the articuli admiralMdis drawn up by Dr. Dun, Judge of Admiralty, make this wrong manifest. By the seventh specification of these articles, there are enumerated "certain grievances" BEFORE LORD STOWELL S TIME. 17 whereof the officers " especially complain " and desire redress. These are the seven articles so sharply criticized by Mr. Justice Story, in his opinion as given in the case of De Lovio v. Boit.^ The agreement of 1575 was disavowed by Lord Coke; who, in the answer to it, prepared by himself, in behalf of the common-law judges, declares the agreement to be " against the laws and statutes of the realm," and for that reason " the judges of the King's Bench never assented thereto, as is pretended." But in 1632, the resolutions of King James and his Council, " for settling the difierence concerning prohibi- tions," were adopted. There were five of these resolu- tions in all ; the object of the first four was to restrain the King's courts in awarding prohibitions against the admiralty in certain specified cases ; while that of the fifth resolution was «to provide, that if a party, for any such cause, be brought from prison by habeas corpus, he shall " be remanded." Now, although these resolutions were found in Coke's early Reports, yet they were entirely omitted in the later editions ; disappearing, as Dr. Arthur Browne says, "seemingly ex industrid." 2 Browne's Civ. and Adm. L., p. 79. However this may be, the resolutions and the " acts and ordinances of the Republican Government in Eng- land " in 1648 (which may be found in Scobell's collec- tion), seem to be the chief legislative provisions of per- manent value, in defining the jurisdiction and course of proceeding in the English admiralty, until a quite recent date. Forms of processes there were indeed ; and orders and 1 2 Gall. 399. 2* 18 BEFORE LORD STOWELL'S TIME. decrees may be found in that ancient repository of clerical formularies, " Clarke's Praxis," which was trans- lated and incorporated in Hall's « Admiralty Practice," published at Baltimore in 1809. But, until the latter part of the eighteenth and first half of the nineteenth centuries, very little variation in admiralty practice took place in the realm of England or her colonies, the British dependencies in North America, and the East and West Indies. The admiralty courts of the colonies were theoretically under the su- pervision of the Home Government ; the local magis- trates, appointed to preside in them, were commissioned in England ; the decisions of these tribunals were sub- ject, indeed, to be reexamined, on appeal, by the High Court of Admiralty in England ; and, accordingly, though indispensable, these tribunals were, perhaps wisely, established in the colonies; and for a twofold purpose : First. To supply the place of a local exchequer court in securing and collecting the revenue in the different colonies. Second. To take general cognizance of all such civil and criminal matters a^ were usually embraced within the admiralty and maritime jurisdiction of Great Britain, or as should be conferred upon the colonial courts by special commission of the British government. Ordinarily, in practice, all colonial magistrates were appointed by commissions, issuing from the Home Gov- ernment, or that of the Mother Country, as it was called. These commissions conferred upon the appointees powers commonly exercised by the English judges of the High Court of Admiralty. In this manner, vice- admiralty courts in the colonies were constituted ; and, BEFORE LOED STOWELL S TIME. 19 therefore, they existed as such tribunals, specially- created by the law officers of the crown, for the time being. So then, the British vice-admiralty courts, in every sense, were special tribunals of the British Government, created such by their special commissions, issued at home, but designed to operate exclusively in the colonies. Being so constituted, their jurisdiction was limited or en- larged, according to the nature and number of the pow- ers enumerated in the various commissions, wherein or whereby the delegated judicial authority was thus con- ferred upon the several colonial governors or deputy governors in the colonial dependencies. These commis- sions were the ordained charters or warrants to guide and direct the governors, who could not transend the powers therein prescribed ; but in their judicial capacity, they were necessarily confined to the exercise of those powers only which were specially enumerated in their original commissions. In practice, the jurisdiction, so conferred, and the courts so created, answered the purpose and accom- plished the object contemplated by the Home Govern- ment of England, in regard to the colonies ; and very well subserved the views and policy of the existing political administration of the country. But it would seem to be an unwarranted assumption to afiirm with confidence, that these special commissions were conclusive . evidence, at the time, of what was the adniitted general admiralty and maritime jurisdiction of the High Court of Admiralty in England, or its practice. While, therefore, these commissions were unquestion- ably a chart for the direction of the colonial vice-admi- ralty judges, they could not affect, nor did they in any 20 SINCE LORD STO well's TIME. way indicate the limits or extent of a general admiralty jurisdiction, as exercised by the High Court of Admi- ralty in England. For no other purpose, therefore, can they be referred to as .authority than as rules, directions, and instructions for colonial ofl6.cers. In another connection I may have occasion to state tuUy why it might be well to deal difl&dently with these documents, as evidence of general jurisdictional powers in admiralty, o*^ which, in no just sense, can they be deemed either a true reflection or representatipn. In the latter part of the last century, the pubhcation of admiralty reports, in England, was regularly com- menced. Prior to these publications, there was but lit- tle authentic record extant of the doings or decisions of admiralty courts in Great Britain. The papers and opinions of Sir Leoline Jenkins, a former judge of admi- ralty, and particularly what may be called his charge, are often referred to with respect ; so also are the cases in the time of Lord Mansfield, of Lindo v. Kodney (2 Doug. 613) J that of Le Caux v. Eden' (3 Doug. 594); and Menetone v. Gibbons (6 T. E. 267 in 1789) ; hke- wise the reported cases of Sir George Hay and Sir James Marriott; and the formularies of Marriott have been esteemed both valuable and serviceable to civilians, who were principally engaged in practice at Doctors' Com- mons before the courts of admiralty. Marriott's Re- ports also may be consulted with profit. Since his time there has appeared an almost consecutive regular series of admiralty reports, from 1799 to 1865, containing the decisions of a succession of four experienced and learned admiralty judges, which have well illustrated the rules and principles of admiralty jurisprudence in England, as well as the chief changes in its growth, during that SINCE LORD STO well's TIME. 21 period ; its present state and condition ; and nowhere, indeed, has there appeared to be claimed or even coun- tenanced any diversity of opinion as to the meaning of the terms " admiralty" and "maritime " when employed to designate a peculiar kind of jurisdiction.'' In fact, during the half century and more which has now elapsed since the accession of Lord Stowell, and throughout the administration of his immediate succes- sors. Sir Christopher Eobinson, Sir John NichoU, and Dr. Stephen Lushington, no variance whatever in the definition of these terms is to be met with in the re- ports of admiralty cases, or even hinted at or indicated in any admiralty judicial proceedings in England, which have come under my observation. It is well known, that special acts of Parliament have, during the present century, materially extended admi- ralty jurisdiction ; and subjects, not heretofore recog- nized as within the cognizance of admiralty courts, are now expressly embraced within their jurisdiction. Thus it win be perceived by referring to chapter 65, Vict. 3 and 4 ; chapters 78 and 104, Vict. 17 and 18 ; the Eules of the Privy Council of 1854, and those of Dr. Lushington of 1855 ; and finally the code of rules form- ally approved by the Queen in Council, November 29, 1859 ; together with the Admiralty Court Act of 1861, cited as chapter 10, Vict. 24, that English legislators have much modified, and finally moulded, English admiralty law into its present shape. Beside these, there are the Merchant's Shipping Act of 1862, cited as 25 and 26 Vict. chap. 63 ; and more particularly, the regulations for preventing colHsions at sea, somewhat modified by the Order in Council of January 9, 1863, alike worthy 1 Vide note at the end of this chapter. 22 SINCE LORD STOWELL'S TIME. of attention and examination. These rules of naviga- tion, as well as those 6f the United States, adopted by Congress in 1864, will be found in Appendix (B). Thus, therefore, the English Statute Law will be found mainly in the six acts now known and cited as 3 and 4 Vict. chap. 65 ; 6 and 7 Vict. chap. 38 ; 17 and 18 Vict. chap. 78 and 104 ; 22 and 23 Vict. chap. 6 ; the New Practice Act, 24 Vict. chap. 10, 1861 ; 25 and 26 Vict, cl^ap. 63, being the Merchant Shipping Act amend- ment act of 1862 ; and the rules of 1863. In England, down to the time when Lord Mansfield became chief justice, November 8, 1756, and during his entire administration, as well as for centuries pre- vious, there is hardly a shade of difference perceptible in the meaning of the words " admiralty " and " mari- time," and the significance to be attached to them, in judicial proceedings, when they are employed to desig- nate or define jurisdiction. In English dictionaries also, a similar use appears to have been made of them ; and therefore the conclusion is arrived at, philologically, that there is no absolute distinction to be made in the apphcation of these terms, either to courts, judges, or judicial proceedings in the English admiralty. Thus, the argument may be taken to be advanced one step, with plausibility, if not with certainty. Hence, whether a critical or practical view be taken of the subject, or, if it be viewed historically, since the year 1266, when tlie term "I'Amiral" first appears to have been adopted to designate the commander of a fleet or naval force, there seems to have been an almost unbroken and uniform usage, both in the courts of com- mon law and admiralty, in fixing the meaning of the words "admiralty and maritime." Indeed, there is SINCE 1789. 23 scarcely any variation. From 1272 to 1815, such has been the accepted use of the terms ; and no other had ever been claimed until the decision given in De Lovio V. Boit (2 Grail. 398). In that case, the judge for the United States First Circuit Court innovated, or judicially attempted to do so. The learned jurist, then presiding in that court, promulgated a novel doctrine and pro- nounced a decision, which has since been much contro- verted, and still remains an open question, never having been as yet reaffirmed in the appellate court. The words " admiralty and maritime " had previously been deemed to have been employed in the Constitution and general Judiciary Act of the United States, as apparently descriptive of the same identical jurisdic- tion, and for twenty-six years that hypothesis remained undisturbed. But in pronouncing ' judgment in De Lovio V. Boit, that the United States district courts, as admiralty courts, might take cognizance of suits on policies of insurance, Mr. Justice Story accompanied that decision by an historical exposition, together with . an elaborately prepared opinion, in which he reviewed at length the subject of admiralty jurisdiction and its history; confidently concluding, that there existed a clear distinction in the meaning of the words " admi- ralty " and " maritime," and that the latter, by the framers of the Constitution, and the early legislators under it in 1789, was used, ex industrid, to signify some- what more than the former term " admiralty," in defin- ing the limit and extent of jurisdiction conferred upon the United States district courts as admiralty courts. And .this result was reached by a process, which may be said to be characteristic of that learned magistrate ; but not without manifest misgivings as to the entire 24 SINCE 1815. sufficiency of any citable authority for it, though him- self, evidently, self-confident of the soundness of his own conclusions, and justice of his own interpretation. The considerations for which this interpretation seemed to him to be demanded were, juridical logic and national policy ; while the only authority, avowedly re- lied upon, was the forms of commissions, as issued to the English vice-admiralty judges, resident in the British colonial dependencies, prior to the American Revolu- tion. Now, if these considerations, alleged as demanding such interpretation, be sufficient to warrant it, then it is immaterial whether the cited authority be or be not conclusive. But if, on the other hand, the reasons as- signed for the given judicial construction be unsound, or even questionable, then the construction claimed to be just and necessary, may be not only unfounded but unwarranted: and, in that view, any authority which happens to be relied upon, may ultimately become not only material, but absolutely essential to sustain such decision. A mere misinterpretation cannot support any adjudication permanently. In order to test the value of the authority referred to, it will be proper .to examine the issued vice-admiralty commissions,^ and the mode of issuing them as well as the purpose for which they were ordinarily issued. They were usually quite specific; and enumerated, iu detail, numerous subjects, many of which were confess- edly within the admiralty jurisdiction, while others are not discovered to have been previously known in any admiralty practice, or to be gathered from any admiralty reports, then or now published; and among these others, 1 Vide Appendix (C). JUDICIAL OPINIONS SINCE 1815. 25 !0 enumerated, one was expressly so introduced, as may )e seen in the commission to which reference is made )y the court in De Lovio v. Boit. That subject was policies of insurance, and this alone constitutes the luthority upon which the interpretation is founded and ;he decision sustained. And from this incident, it seemed to be demanded by lational policy and judicial logic, that libels on policies )f insurance should be determined by the court to be ivithin the cognizance of the United States district jourts, sitting in admiralty, and, from the time of that iecision, iii 1815, its doctrine has been repeatedly sanc- ioned in the first circuit, during the period for which he learned magistrate, who first pronounced the decis- on, continued to preside in the court for that circuit. [t was affirmed by Mr. Justice Story in 1822, in the iase of Peele v. The Merchants Insurance Co. (3 Mason, 17), and reaffirmed by him in 1842, in the case of Hale ;. The Washington Insurance Co, (2 Story, 176). It was icquiesced in by District Judge Davis, and has been ex- pressly adopted and adhered to by Judges Ware and Sprague, as established law and the settled rule of prac- bice in the district courts of the first circuit. More- 3ver the opinion is claimed to have been sanctioned in the second and third circuits; favored by C. J. Marshall md Mr. Justice Washington ; by Mr. Justice Thompson, ^n the Sloop Mary (1 Paine, 673), and deliberately ad- hered to by its author twenty-seven years after its sriginal promulgation in 1815. On the other hand, it has been controverted and ioubted by Justices Johnson, Baldwin, Campbell, Daniel, SVoodbury, and, it may also be added, by Mr. Justice Ilurtis in The Gloucester Insurance Co. v. Younger. Cer- 26 VIEWS OF JUDGES tainly these judges have all deliberately questioned the general reasoning by which the opinion was sustained (Mr. Justice Woodbury designating it as "mere dicta"), if they have not positively disavowed the decision. Beside, Chief Justice Taney, still more recently, ia a dissenting opinion, drawn up in behalf of a minority of the Supreme Court (consisting of himself and Justices Wayne, Nelson, and Grier), has expressly said, that this decision of the judge of the first circuit has never as yet been followed by the judge of any other circuit. In the case of Taylor v. Caryl, 21 How. 615, referring to 1 Kent, 407 n., in which the author had given a~ synopsis of subjects for admiralty jurisdiction, including "insur- ance," the Chief Justice (Taney) says, " It is stated too broadly, broader than the court has sanctioned ; for as regards the jurisdiction in policies of insurance, I believe it has never been asserted in any circuit but the first ; and certainly has never been brought here for adjudica- tion." Since, therefore, it appears that some of these last- named judges (Wayne, Nelson, and Grier) were gener- ally supposed to be inclined to favor an extended admi- ralty jurisdiction, it would seem that the chances for an affirmation of the long controverted decision in De Lovio V. Boit by the appellate court, were at least ques- tionable. What may be the judicial action in this re- spect, of the new judges, CUflFord, Swayne, Miller, Davis, Field, and C. J. Chase, is a problem, of which the pubhc and profession are not yet in possession of means to enable them to judge with reasonable certainty. The present organization of the Supreme Court, with its new elements introduced, may materially change the balance of power; and exhibit, in its future decisions, a novel, if SINCE 1815. 27 lot possibly an improved character. At present, it is not pery material to know what may be the final decision 3f the whole court ; but it is, however, material that this [Question, so long kept in abeyance, should be definitely settled, in order, not only that the law, but the. practice, in the several district courts of the United States should be, in this respect, hereafter uniform throughout the country. Chancellor Kent, in his Commentaries (vol. i. p. 413, note), designates the views of Mr. Justice Story as grasping, and laments that the Supreme Court have not been required^ as an appellate court, to review and solemnly and definitively pass upon the decision in De Lovio V. Boit. His precise language is as follows : " It appeared to me, therefore, upon a reconsideration of the subject, that the elaborate decision in De Lovio v. Boit, grasped at too much jurisdiction." In the case of Peele v. The Merchants Ins. Co. (3 Mason, 27), the question was raised by counsel in the first circuit, and diligent preparation was made (as the writer well remembers) for rearguing the case at Wash- ington. But it somehow failed, and never came on for argument. Mr. Justice Curtis in The Gloucester Ins. Co. V. Younger (2 Curtis, 322), seems to have thought there should have been an argument. He says, " Either from want of confidence felt by the bar, in the ultimate establishment of the jurisdiction by the Supreme Court of the United States, or from some other cause, the jurisdiction in admiralty has been very infrequently resorted to : " " and, since Peele's case, a libel on policies of insurance has not been filed in the district, where the imount in dispute would allow an appeal." In the third volume of Mason's Eeports, the first two 28 VIEWS OF JUDGES cases there reported were insurance cases (one tliat of Peele v. Merchants Ins. Co.), in which the same counsel were engaged, but with some shght change of side. In Baines v. The Schooner James and Catharine (Baldwin, 554), determined in 1832, the controversy was about wages. But the claimant, who intervened, made an attempt to get allowed an account in set-off for provisions and other articles, previously furnished to the libellant. But the offset claimed was disallowed, after an elaborate and extended review of the whole general subject of admiralty jurisdiction in the United States. And Mr. Justice Baldwin, in giving his opinion, made use of the following language : "If an admiralty juris- diction exists in the United States in suits at common law, commensurate with the claim here made, its asser- tion is, in my opinion, a renewal of the contest between legislative power and royal prerogative, the common and civil law striving for mastery ; th6 one to secure, the other to take away the trial by jury. And until the authoritative judgment of a higher court shall make it my duty to surrender my judgment to their decree, it will never be sanctioned by me." At an earlier period, 1827, in Kamsey v. Alegre (12 Wheat. 611), twelve years after the decision in Gallison, the discussion by individual judges was quite signifi- cant. A libel was filed for repairs made, amounting to $2,428.84, for which sum a note had been given; but, at the time of instituting the present process, had not been surrendered up. A question of jurisdiction was interposed ; the libel was dismissed as coram non judice, both by the district and circuit courts; and the judg- ments of those courts were afterward affirmed by the Supreme Court of the United States. Though there SINCE 1815. 29 VELS no difference of opinion among the individual judges is to what ought to be the final disposition of the case, '^et Mi-. Justice Johnson, though assenting to the court's lecree, took that occasion to read an elaborate opinion, Tfi the course of which (p. 566) he said: "I think it ligh time to check this silent and stealing progress of he admiralty in acquiring jurisdiction to which it has lo just pretensions." " Unfounded doctrines, not put down, and dicta and iecisions, being permitted to remain on the books, and icquiesced in by the courts, afford facilities for inter- )olating doctrines which belong not to the law." " The test of admiralty jurisdiction is, when suit is nstituted, if prohibition shall issue, then jurisdiction is sither taken away or never existed ; " " the only test is leaman's wages, which probat reguhm." " If the common law can try the cause and give full ■edress, that alone takes away the admiralty jurisdiction." "Some extravagant admirer of admiralty jurisdiction, )r royal prerogative in England, rises to revive the mcient murmurs uttered by the friends of that court, vhen reluctantly putting off its usurped powers ; " "not iontent to leave it as they found it ; but employ them- lelves in efforts to revive what they cannot but acknowl- edge has been long extinct." In the Steamer St. Lawrence (1 Black, U. S. Sup. ^t. Rep. 522), it was distinctly determined, that admi- •alty jurisdiction was given to the Federal courts by the constitution, and could not be enlarged by the States or congress ; but that Congress might prescribe the forms )f carrying it out. And in that case. Chief Justice Taney leld this language : " Judicial power, in all cases of ad- niralty and maritime jurisdiction, is delegated by Con- 3* 30 VIEWS OF JUDGES gress to the Federal courts, in general terms; and courts of this character had then been established in all com- mercial and maritime nations, diflfering, however, materi- ally in different countries, in the powers^and duties con- fided to them ; the extent of the jurisdiction conferred, depending very much upon the character of the govern- ment in which they were created, and this circumstance, with the general terms of the grant, rendered it difl&cult to define the exact limits of its power in the United States." In The Propeller Commerce, 1 Black, 574, Mr. Justice Clifford reiterates the decision pronounced in Philadel- phia, Wilmington and Baltimore Co. v. The Philadelphia and Havre de Grace Co. (23 How. 215), that " the ex- ception infra corpus comitatus is not allowed to prevail ; " and refers, with approbation, to the three prior cases of The De Soto (5 How. 452), The Genesee Chief (12 How. 443), and The Magnolio (20 How. 298), as decisive, that wherever a suit in rem is prosecuted in any district where the offending thing is found, admiralty jurisdic- tion is not taken away because the tort was within the body of the county j that locality is in torts the test of jurisdiction, and that in cases of coUision, occurring on navigable waters emptying into the sea, or bays and gulfs forming part of the sea, maritime courts have jurisdiction. Mr. Justice Woodbury has, in two elaborate opinions, controverted the positions maintained in De Lovio v. Boit ; agreeing, generally, in opinion with his associates on the bench, Justices Campbell and Daniel, in their unreserved and positive objections to the extension of admiralty jurisdiction, unless through the legislative action of Congress. In The United States v. The New SINCE 1815. 31 Bedford Bridge,^ Judge Woodbury gave a very elab- orate reading upon the nature and extent of admiralty jurisdiction over torts and crimes. In the case of The De Soto,^ the same judge, in a very fall discussion of admiralty jurisdiction, and in reference particularly to his predecessor's decision in 1815, says: "It certainly seems much wiser, in doubtful cases, to let Congress ex- tend our power, than to do it ourselves, by construction and analogy." In the case of The Gloucester Ins. Co. v. Younger (2 Curt. 322), Mr. Justice Curtis, commenting on the cases of Peele, in 3 Mason, 27 (decided in 1822), and JSale, 2 Story, 176 (decided in 1842), botk of which followed and afi&rmed De Lovio v. Boit, says : " Though the question has never come before the Supreme Court of the United States, other inquiries concerning the extent of the admiralty jurisdiction, conferred by the Constitution, have there arisen, and given rise to great research and much acute discussion. They have resulted in pretty wide differences of opinion among the individual judges." He cites "Waring v. Clarke, 5 How. 441 ; The New Jersey Steam Nav. Co. v. Merchants Bank, 6 H<^. 334 ; and The Genesee Chief, 12 How. 443: In Cutler v. Eea, 7 How. 729, it was held that the owner of a ship could not assert a claim for general average against the consignee of the cargo, though the consignee had received the goods, by libel in personam ; and Mr. Justice Curtis adds : " This decision certaigly goes pretty far towards overruling the decision in De Lovio V. Boit,- and is, undoubtedly, irreconcilable with some of the positions which are reported therein." " But it does not cover the precise question, whether 1 Woodbury and Minot, 441. 2 Waring et al v. Clarke, 5 How. 441. 32 VIEWS OP JUDGES a policy of insurance is one of those maritime contracts within this jurisdiction." He says the question is historical, not to be settled by reasoning a priori, which would lead to " theoretical anomalies." Although in the case of Younger, Judge Curtis fol- lowed the practice of his circuit, and upheld the juris- diction in policies of insurance, he did so "holding him- self free to go into it at large, and with all the aids of more recent investigations, when it shall arise in the appellate court." Mr. Justice Campbell, in Jackson y.^Steamboat Magno- lio, 20 How. 335, referring, in giving a dissenting opinion, to the case of De Lovio v. Boit, said : " The question of jurisdiction arose on a libel founded on a poHcy of in- surance, and the jurisdiction of the court was sustained. I believe I express a general, if not universal opinion of the legal profession, in saying that this judgment was erroneous. I understand Judge Curtis to intimate the existence of such an opinion in The Gloucester Ins. Co. V. Younger, 2 Curt. 322." Mr. Justice Daniel, who uniformly controverted the pretensions for an extended admiralty jurisdiction, and never, while on the bench, lost an opportunity to pro- test, but invariably dissented from the whole court, also understands Mr. Justice Curtis to expressly disavow his predecessor's decision in De Lovio v. Boit Here may well be recorded a particular and general regret that, as in the case of The John Perkins (21 L Rep. 87), the distinguished jurist, presiding in the first circuit, did possibly adhere too tenaciously to a precise technical rule, in order to reverse a seemingly fair ad- miralty decision of Judge Ware j so, in the case of The SINCE 1815. 33 Gloucester Ins. Co. v. Younger (2 Curt. 322), the same circuit judge appears to have surrendered too readily his obvious legal convictions, in order to conform to a questionable practice, prescribed by a single precedent, and that sustained only in the first cftcuit where it was first pronounced. The professional regret is more poignant, inasmuch as the court, by following its judicial convictions, in this latter case, would have secured (what many desired) a final rehearing of the decision in 1815 before the Ap- pellate Court at Washington, the loss of which all now must deeply lament. Though the precise question, whether the district courts of the United States could, in admiralty, take cognizance of suits or libels on policies of insurance, has not been directly passed upon by the Appellate Court, nevertheless, the subject of admiralty jurisdic- tion, in general, has often been before that court, and elaborately discussed by its individual members when incidentally brought there for consideration ; and when- ever so discussed, great learning and much research have been exhibited" in such discussion. The chief and prominent topics so dealt with have usually been Writs of Prohibition in England, and when upheld ; the eflfect of the restraining Acts of the 13th and 15th of Eichard II. (now repealed) ; the Ordinance of Hastings in 1272 ; the Agreement of 1575 ; and Coke's answer to its sev- enth Article ; the Eesolutions of 1632 ; the Acts during the period of the English Commonwealth of 1648 ; the Eestoration, and the consequent repeal of those Acts in 1660; the legislation by Parliament in 3 & 4 Wm. IV.; also in 3 & 4 Vict. chap. 65, and 17 & 18 Vict, chaps. 78 and 104; the old English tests o£ locaiity, infra corpus 3€ ACTION OP AMEKICAN comitatus and infra primos pontes ; nature of the Contract and Tort; contests of the Civil and Common-law Courts in England; the United States Constitution; the Gen- eral Judiciary Act of the United States in 1789 ; also that of February 26, 1845; States rights, and right of trial by jury generally. While the great struggle was going on in England, and after the " Lex Mei'catoria " had been pubhshed, and the acts of 1648, under the Commonwealth, were adopted, the subject of admiralty and maritime law also occupied the attention of the Colonists in America. In Massachu- setts, as early as 1650 and 1651, this subject was noticed by its Legislature. In the Massachusetts Eecords, vol. iii. page 193, it ap- pears that the General Court, May 23, 1650, deemed the " Commonwealth defective for want of Lawes in mary- time aflfayers ; but as there were many good lawes in our land, in the French nation and other kingdoms and nations," it therefore ordered a committee to peruse the " Lex Mercatoria," so that this court might adopt such as it approved. But that committee, not having met, on October 14, 1651, the court thereupon appointed Mr. NoweU and the Auditor-General to act and report to the next Gen- eral Court. If any report was ever made, no definitive action was taken by the General Court, until October 14, 1668 (Mass. Kec, vol. iv. part 2, page 388), when it adopted the first admiralty code in this State, which will be found printed in full in Appendix (D). While it indicates that the rights of owners, duties of masters and mariners, average, collision, damage, punishmentSj desertions, negligence, proper equipment and suppHes for vessels, etc., were cognizable by this maritime court ; COLONISTS m MASSACHUSETTS. 35 which was constituted expressly " for the better order- ing " of " the navigation and maritime affairs " of this jurisdiction, then " growne to be a considerable inter- est," still the title of insurance is not named or even alluded to. In 1672 (ibid. p. 575), it was ordered that "henceforth all cases of admiralty shall be heard and determined by the Court of Assistants, and to be issued by the bench without a jury," unless for cause satisfactory to the court. In this review of a single decision, the judicial ability of its author, his learning and labors, are duly appre- ciated and fully recognized. Perhaps to the comments of others, one other refer- ence should be add«d, rather by way of suggestion than as an assumption or implication, that any import- ant matter had been left unconsidered, or overlooked by those who had hitherto entered upon and seemingly exhausted the discussion ; and this reference may or may not have force and effect in fixing the meaning of the terms "Admiralty" and "Maritime," and limiting or qualifying their significance in defining jurisdiction. In Great Britain, neither the Admiralty Court, known as the High Court of Admiralty, nor the appellate admiralty courts, known as that of the Lords Commis- sioners, Delegates, or Judicial Committee of the Privy Council, appear to have ever, at any time, taken cogni- zance of cases arising on policies of insurance. But, on the contrary, for this particular class of cases, at the period when Sir William Blackstone prepared his Commentaries, there had existed in London, a special court, denominated "The Court of Policies of Insurance." Vide 43 Elizabeth, chap. 12. 36 COURT FOE INSURANCE IN ENGLAND. . In the chapter on Courts of Special Jurisdiction (3 Black. 74, 75), that learned commentator gives an ac- count of this special court, which will be foimd in full in the Appendix (E). At first, these matters of assurance were submitted in London to a course of arbitration by " grave and discreet merchants " appointed by the Lord Mayor ; but " divers persons " having "withdrawn themselves from this course," " had driven the assured to bring separate actions at law against each assurer : " and, therefore, by an enabling act. Parliament empowered the Lord Chancellor to " grant a Standing Commission to the Admiralty Judge, Recorder, two Doctors of the Civil Law, two common lawyers and eight merchants; three of whom could determine summarily these causes, subject to appeal solely to the Court of Chancery." Although the admiralty judge was one of this mixed commission of fourteen persons, and, on appeal, the decision of any three of them could be revised, in Chan- cery, yet no such power to review, revise, or reverse was ever delegated to the Lords Commissioners in Admiralty, to the Delegates, or Judicial Committee of the Privy Council. Under these circumstances, may it not present a grave question for any one, whether policies of insur- ance were even by implication, embraced within the admiralty and maritime jurisdiction of England ? And, if not, certainly such jurisdiction could not be deemed to have been conferred on the United States district courts, by the Constitution of the United States or the General Judiciary Act of ].789, unless by a violent and forced interpretation of the phraseology, "admiralty and maritime jurisdiction." COURTS TO SETTLE OE CONGRESS DEFINE. 37 Now, whether the existence of this mixed standing jmmission in England to hear and determine causes of isurance, and denominated " a Court of Policies of isurance," be reconcilable with the doctrine contended )r and the construction claimed in the decision of De lovio V. Boit, may be well and safely left to the mem- ers of the profession to determine, each for himself, ccording to their varied convictions, prejudices, or pre- ilections. Certainly, should a case of sufficient magnitude again rise, in which the question could be fairly presented the fall court at Washington, it is quite desirable to lave it carried there ; and it would seem to be, at least, ioubtful if the decision of 1815 would there secure an pffirmative sanction. But if the enlarged jurisdiction, as exercised hitherto a the first circuit, should, as matter of policy or con- '^enience, be deemed the better practice, let Congress lirectly interpose (if it can constitutionally), and sup- )ly at once the needed legislation for all the circuits. 5urely, in this country, congressional would seem to )e preferable to judicial legislation. In England, many Lcts of Parliament, during the long and useful judicial jareer of Sir Stephen Lushington, have been passed, vhich materially extended the jurisdiction and im- )roved the practice of the English Admiralty Court ; md this important legislation, as I understand it^ is due jrimarily to the counsel and just influence of that great md experienced admiralty judge. And now, if harmony be desirable in the administra- ion of the law in aU of the United States circuits, then here should be uniformity in the legislation, conferring urisdiction, and regulating the practice of the courts in 38 ADMIRALTY JURISDICTION. the several circuits. Congress alone can compel such uniformity, by applying the appropriate remedy. If Congress omit this high duty, a doubtful decision and unreliable precedent wiU still continue to disturb that harmony of action and practice, which ought to prevail, alike in all the different circuits of the United States, where questions of admiralty are likely to arise. Note. — Since completing chapter 11., part 3d of Browning and Lnshing- ton's Reports have come to hand, and for the first time, I have examined " the Rules for Appeals in Ecclesiastical and Maritime Causes," adopted by the Privy Council December 11, 1865, to take effect from and after Feb- ruary 1, 1866. These Rules are framed for the government of the ecclesiastical and ad- miralty courts in cases of appeal; and, it is to be observed, that while the courts are styled "Admiralty," their causes are called " Maritime," thus employing these terms substantially if not precisely as synonymous. This will become more apparent by referring to the preamble, caption, and several of the adopted rules. By an act of 6 & 7 Vict., ch. 38, entitled "An Act to make further Regu- lations for facilitating the hearing of Appeals and other Matters by the Judi- cial Committee of the Privy Council," it was enacted, among other things, that the Judicial Committee might, from time to time, make such rules, orders, and regulations respecting the practice and mode of proceeding in all appeals, from the Ecclesiastical and Admiralty and Vice-Admiralty Courts, as to them should seem fit ; these not to be of any force or effect until approved by her Majesty in Council. Accordingly, at the Court at Windsor, the 11th day of December, 1865 — The Judicial Committee reported Rules, which her Majesty, by and with the advice of her Privy Council, saw fit to approve; and enjoined the Right Honorable Judge of the High Court of Admiralty, Dean of the Arches, and all other judges and officers of the said courts of admiralty and ecclesiastical jurisdiction, to take notice thereof and goverji themselves accordingly. They were entitled " Rules for Appeals in Ecclesiastical and Maritime Causes." First, provision is made for the meaning of certain terms ; thus "Appeals" shall mean " an appeal to her Majesty in Council in Ecclesiastical and Mari- time Causes." So " Registry " shall mean " the Registry of her Majesty's Court of Appeals in Ecclesiastical and Maritime Causes." " Registrar " shall mean " the Registrar of her Majesty in Ecclesiastical and Maritime Causes." USAGE IN ENGLAND BT PKIVY COUNCIL. 39 " Document " shall mean " Docunjpnt, etc., under the seal of her Majesty in Ecclesiastical and Maritime Causey." Thus, in 1865, the responsible legal advisers of the Crown seem to have used the terms "Admiralty " and " Maritime " as convertible : "Admiralty " to designate that court; " Maritime " to designate the causes of the Admiralty Court. In the text page (14), the author attempted to establish a similar proposi- tion; which attempt is now seemingly justified by the acts of the Judicial Committee of the Privy Council. CHAPTER m. MATTERS WHEREIN THE UNITED STATES FEDERAL COITRTS EN- TERTAIN AND DECLINE ADMIRALTY JURISDICTION. Having, in the preceding chapters, treated of the origin and general restrictions of- admiralty practice and jurisdiction, and having endeavored to define, with 1 precision, the meaning of the terms admiralty and mar- itime, when employed to designate, either in England or the United States, a particular jurisdiction, I will pro- ceed first to make a condensed statement of the difier- ent decisions made by our highest and most respected tribunals, in relation to matters of which the Federal pourts, as admiralty courts, have already taken cogni- zance ; and will, afterwards, notice a few cases, in which the same courts have declined to entertain or exercise such jurisdiction. In a series of cases, the Supreme Court, since its original organization under the Constitution, have sol- emnly decided that the Federal courts have and can exercise admiralty jurisdiction ; thus, in cases of salvage of one foreign vessel by the officers and crew of another foreign vessel : 2 Cranch, 240, Mason v. Ship Le Blai- reau; so, in suits to try the title to proceeds in the registry of the court : 3 How. 568, Andrews v. Hall ; m proceedings in rem to enforce a lien of material-men, for necessaries and supplies furnished to a vessel in a port CASES AFFIRMING JURISDICTION. 41 ) which she is foreign ; or, on the faith that such ves- ;1 is foreign, if so held out : 9 Wheat. 409, St. Jago de uba ; so, in case of a domestic vessel, if the local law Lves a lien, material-men may enforce it in admiralty : Pet. 324, Peyroux v. Howard ; so, in tortious seizures fc sea, process in rem by libels to attach goods, rights ' ad credits, in the hands of third persons or garnishees, lay be sustained, without specifying the property to e attached, and, by that attachment, compel appear- nce; and then proceed to a decree of condemnation satisfy the claim : 10 Wheat. 473, Mann v. Almeida ; 3 this same case, it appeared that though the seizure ?;as piratical, the civil remedy is not merged in the iracy; so also, the Federal courts may exercise ad- liralty jurisdiction over contracts of affreightment to e performed on the sea, between the cities of Provi- ence and New York : 6- How. 344, New Jersey Steam Navigation Co. v. Merchants Bank; Hkewise, over claims ar pilotage, even though State laws regulate both the ervice and its compensation : 10 Pet. 108, Hobart v. )urgan ; so, over seizures upon waters navigable from he sea, by vessels of ten or more tons burden : 4 Cranch, :43, United States v. Schooner Betsy and Charlotte ; ,nd 7 lb. 112, Whelan v. United States ; also, over in- brmations in the District Court to enforce the forfeiture if a vessel, for exporting arms and munitions, contrary the act ^f May 22, 1794 : 3 DaUas, 297, United States . La Vengeance ; over questions of forfeiture arising mder the same act prohibiting the slave-trade : 2 Cranch, ;06, United States v. Schooner SaUy ; over collisions ccurring on the Mississippi Eiver, above the ebb and low of tide : 12 How. 466, Fretz et al. v. Bull et al. ; his last case, and The Genesee Chief, controlling and 4 » 42 JURISDICTION AFFIRMED. overruling the decision given in The Thomas Jefferson, reported in 10 Wheat. 428 ; over collisions within the ebb and flow of tide on the Mississippi River, even if " infra corpus comitatus : " 5 Howard, 441, Waring et al. V. Clarke. This case was the colliding of the Steamer De Soto with The Luna, first tried by the District Judge, McCaleb, at New Orleans, and, on appeal, finally deter- mined by the Supreme Court in 1847. In the year 1850, by the decision of the case of The Genesee Chief, 12 How. 443, admiralty jurisdiction, un- der the Constitution, was adjudged to be extended to the navigable lakes and rivers, without regard to the ebb and flow of the tides of the ocean. It was also determined that Congress had power to pass the act of 26th February, 1845, under the provisions of the Con- stitution ; and that the judicial power of the United States extended to all cases of " admiralty and maritime jurisdiction" and as regulations thereof In LTnvincible, 1 Wheat. 238, it was decided that, in prize questions, the Federal courts of admiralty will inquire, if the alleged wrongdoer is duly commissioned ; or, by the use of our territory to increase his force, has trespassed on our neutral rights ; and that the exclu- sive cognizance of prize generally belongs to the cap- turing power. Accordingly, courts of other countries refrain from extending redress for alleged torts, com- mitted by public armed ships, in asserting and vindicat- ing beUigerent rights ; yet, notwithstanding the general rule, that the right of adjudicating, in prize questions, belongs to the courts of the captor's country exclusively, it appears, by the case of The Estrella, 4 Wheat. 298, that when the captured vessel comes voluntarily tuUUn the territory, or when brought infra prceddia of a neutral JUKISDICTION AFFIRMED. 43 power, that neutral power, through its established courts, may inquire if its neutrality has been violated by the capture ; and if so, it becomes obligatory upon such courts to make restitution of the property. But this, however, is an exception, and so prohat regulam. When belligerents violate our neutrality, if the prize comes voluntarily within our territory, it is restored by the courts to its original owner : La Amistad de Eues, 5 Wheat. 385; but restoration is confined to the specific property, with costs and expenses pending suit; not inflicting vindictive damages, or awarding compensation for plunderage, as in cases of ordinary marine torts. If the original owner shall seek restitution upon the ground that our neutrality has been violated by the captors, the burden of proof is thrown upon the owner ; and should a reasonable doubt remain as to the fact, jurisdiction would not be entertained or exercised by our courts. Under the general law of nations, the Federal courts, without any specific act of Congress on the subject, would have ample authority to decree restitution of property, captured in violation of the territory : The Estrella, 4 Wheat. 298. Jurisdiction of the Federal courts in admiralty and maritime causes is given by the Constitution, in general terms ; its extent, therefore, is to be ascertained by a reasonable and just construction of the words used when taken in connection with the whole instrument: 1 Black. U. S. Rep. 522, The Steamer St. Lawrence. Chief Justice Taney, in giving the opinion of the court, in this case, says : " The court could not, consistently with its duty, refuse to exercise a power, with which the Constitution and laws had clothed it, when its aid was invoked by a 44 JUEISDIGTION AFFIRMED, party who was entitled to demand it as a matter of right." In The Propeller Commerce, 4 "Wallace, 411, the court determined that the transportation of passengers by sea is as much a maritime contract in its nature, as is that for the transportation of merchandise; and, as such, would be cognizable in admiralty . But, without beuig restricted in the citation of cases to such only as may have been finally determined by the United States Supreme Court, civil jurisdiction in admiralty, in general, is founded on the subject-matter ; though, in torts, locality may stUl be a test. If the subject-matter of a contract relate to marine navigation, then the admiralty has jurisdiction, even though the agreement were entered into upon land : 4 Wash. C. C. 453, Zane v. The President ; Paine, 671, The Mary. Over ransoms, admiralty has exclusive jurisdiction: 2 GaU. 325, Massonnaire v. Keating; and, generally speaking, over all seizures for forfeiture : 2 Wheat. 1, Slocum V. Mayberry; 3 Wheat. 246, Gelston v. Hoyt; 4 Cranch, 443, United States v. The Betsey; 7 lb. 112, Whelan v. United States. Jurisdiction, however, was divested by a release and restoration of the property seized, before any legal pro- ceedings were had resulting in any adjudication : m such case, the court, when once divested of its jurisdic- tion, could not be again invested therewith, or legally reinstated, but by a new seizure. Although but one remedy is possible for a party, stiU the right to proceed in rem, in cases of maritime torts, is cumulative ; and a party may, for remedy in tort, resort to process in personam as well as process in rem. 1 Pet. Adm. 94, 95, Brevoor v. Fair American. JURISDICTION AFFIRMED. 45 A parent may recover in admiralty damages for a wrongful abduction of his minor son, upon a voyage ; and also wages for maritime service. 4 Mason, 380, Hummer v. Webb. Displaced owners, by petitory suits, may be reinstated in the possession of their vessel. 5 Mason, 465, The Tilton. Owners may sue their master for damage, conse- quent upon a wrongful' capture, made by him. Bee, 369, Dean v. Angus. Our courts may decree sale of ship and cargo if in their custody. 4 Cranch, 2, Jennings v. Carson. Admiralty has cognizance over matters on land, if they be incident to those at sea. 2 Pet. Adm. 309, 324, Moxon V. Fanny. Bottomry bonds, given by master or owner, and claims for supplies, furnished in a neutral port to a foreign vessel, are cognizable in admiralty: 2 Gall. 191, The Jerusalem ; Paine, 671, The Mary ; Bee, 78, The Eagle ; Ibid. 116, The Rainbow. And under appropriate heads, will be found proper references, indicating how far the admiralty courts have assumed, or may now rightfully exercise, jurisdiction over particular matters of a maritime nature ; whether those matters have to do with the navigation and pre- servation of ships and shipping; the carriage of goods by sea, freight, bills of lading, charter-parties, the trans- portation of passengers or merchandise, or, generally, affect incidentally or directly the rights of shippers, freighters, owners, consignors or consignees, merchants, masters, mates or mariners. But on the contrary, there are other decisions of our highest tribunal, by which the United States district 46 JURISDICTION NOT AFFIRMED. courts are restricted in the exercise of admiralty juris- diction ; and the Federal courts refrain from exercising such, jurisdiction. Such are the cases of The Thomas Jefferson,^ in 1825 ; The Steamer Orleans,^ in 1837, and 350 Chesfe of Tea,^ and Eamsey v. Allegre/ in 1827; Cutler v. Eea/ in 1849; Minturn v. Maynard/ and Steamer John Jay/ in 1854. The case of The Thomas Jefferson, continued to be the established law, until the decision in The Genesee Chief and Fretz et al. v. BuU et al., in 1850 ; when it was over- ruled ; having stood twenty-five years uncontrolled by any adverse decision. Those of 1827 and 1837 stiU stand ; that of 1849 is expressly disavowed by Mr. Jus- tice Wayne, because it was not argued at Washington ; while those of 1854 are recognized at the present time as declaratory of the true and just principles of admi- ralty jurisprudence in the United States. The Thomas Jefferson was a case for wages, earned above the ebb and flow of tide, upon the Missouri Eiver; the employment of The Orleans was deemed not sub- stantially maritime : in the case of the 350 Chests of Tea, the attempt was to enforce, by libel in rem in admi- ralty, a lien for duties on imported goods : in Eamsey v. Allegre, to maintain a suit in personam against an owner of a vessel, where he had given his note for the debt, and, at the time of the hearing, the note had neither been surrendered nor tendered : in The John Jay, to foreclose the mortgage of a vessel by sale or by transfer of the possession to the mortgagee : in Minturn v. May- nard, to obtain an account for moneys paid for the use of the owners of a steamer between them and their 1 10 Wheat. 428. S n Pet. 175. 3 12 Wheat. 486. * Ibid. 611. 5 7 How. 729. 6 17 How. 477. " Ibid. 399. JURISDICTION NOT APFIEMED. 47 agent : and, in Cutler v. Eea, the owners of a vessel promoted a libel against the consignee of the cargo, to recover the contributory share, due in general average, from such consignee for cargo after it had been deliv- ered to him by the master.^ And in all of these various cases, the decision of the Supreme Court was adverse to the exercise of admiralty jurisdiction by the Federal courts. Subsequent decisions are generally in harmony with the doctrines so promulgated by the highest authority in the United States ; and the doctrine still remains, unless where the cases have been necessarily qualified by subsequent decisions; or controlled by the legislation of Congress in reference to admiralty, and especially by Ihe act of February 26, 1845. In the latest volumes of Howard's, Black's and Wal- lace's Eeports, are adjudged cases upon salvage, colli- sion, and bottomry, many of which abound in learned discussions and valuable legal suggestions upon the questions decided. These decisions and the act of 1845 further confirm the doctrine of this country in regard to the extent of jurisdiction in maritime matters. In England also, by certain acts, as chaps. 65 and 66 in 3 & 4Vict. and chaps. 74 and 104, in 17 & 18Vict. (all passed through the in- fluence or at the instance of Sir Stephen Lushington), ad- miralty jurisdiction has been materially enlarged. Not to mention convoy, ransom, and mortgages, its criminal jurisdiction is broader and now embraces other subjects of a maritime nature, not heretofore cognizable in ad- miralty courts. But the prominent distinction in England aaid the 1 But vide Dupont v. Vance, 19 How. 162. 48 ■ ITS EXTENT IN THE UNITED STATES. United States is this : That whereas in England locality, tide-water, boundaries, and bridges still remain as for- merly binding and decisive as a test of jurisdiction, here those tests have virtually, in regard to inland waters and county lines, ceased to exist. Not only is the EngHsh rule of infra corpus comitatus superseded by American decisions or abrogated by American legislation, but in the United States there is no necessity that a tort should occur within the ebb and flow of tide even in order to give the Federal courts jurisdiction over it ia admiralty, These elements were inherent and vital in English admiralty; in the United States it is quite other- wise. The Federal courts now take cognizance of col- lisions on the Mississippi, above or below New Orleans; on the Missouri, where the water is salt or fresh, above or below the ebb and flow of tide ; on the Yazoo, EHza- beth, Ohio, Alabama, Hudson, East and other rivers, Chesapeake, Delaware, Mobile, and other bays ; and in short, on any of our great lakes or inland waters or riv- ers navigable from the ocean. Indeed, the arm of this jurisdiction embraces, practically, all American waters, and a much wider circle of subjects than has been con- fided to the British admiralty courts, at any time, since the war of prohibitions ceased in that coimtry. Without, then, turning aside to enumerate the vari- ous cases in the circuit and district courts, not brought by appeal or writ of error before our highest tribunal, it may well be affirmed that, in the United States, ad- miralty jurisdiction extends to whatever subjects were within its cognizance prior to the American Revolution; have since been included within it by courts of author- ity previous to or under the Constitution ; and by virtue of the Judiciary Act of 1789, or any other subsequent EXTENDED BY LEGISLATION. 49 legislation of Congress. "What is most marked, in our progress in this branch of maritime jurisprudence, is discoverable in the act of February 26, 1845, which is peculiarly distinctive of the United States. England still regards county lines, the ebb and flow of tide, and the first bridge of its rivers, the Thames, Humber, and others, as limiting its admiralty jurisdiction. In the United States, bridges, tides, and county lines are nothing. If a tort occur within our waters to a sailing or steam vessel, and the employment of such vessel is maritime, or essentially commercial, and the route or destination from one State or Territory to another State or Territory, the owners may lawfully seek redress in the Federal courts against the colliding or faulty vessel. There is here no prohibition. Since the act last re- ferred to, there is almost unrestricted jurisdiction over such cases in admiralty. That act provided that our district courts should "have, possess, and exercise the same jurisdiction in matters of contract and tort, arising in, upon, or con- cerning steamboats and other vessels of twenty tons and upwards, enrolled and licensed for the coasting trade, and at the time employed in business of com- merce and navigation, between ports and places in different States and Territories, upon the lakes and nav- igable waters connecting said lakes, as is now possessed and exercised by the said courts in cases of the like steamboats and other vessels employed in navigation and commerce upon the high seas or tide waters, within the admiralty and maritime jurisdiction of the United States ;" and it further provides for parties in suits so brought, the same remedies, forms of process, and modes of procedure as in admiralty ; also making the United 50 OLD ACTS REPEALED IN ENGLAND. States maritime law the rule of decision in such cases ; saving to parties the right of trial by jury on any issue of fact, where either party shall require it ; and " a concurrent remedy at common law, where it is compe- tent to give it ; and any concurrent remedy which may be giveji by the State laws, where such steamer or other vessel is employed in such business of commerce and navigation." Thus a great advance was made in extending admi- ralty jurisdiction, when this act was passed ; and grave doubts were suggested as to its expediency and consti- tutionality. Indeed, in 1850, 12 How. 443, in the case of The Genesee Chief, its constitutionality was directly questioned. But the Supreme Court adjudged the law to be constitutional, and subsequent proceedings in "ad- miralty have been in accordance with that decision. The gradual progress in the United States was duly observed in England. But a similar advance in Great Britain seemed impracticable, so long as the antiquated acts of Kichard II. remained unrepealed. There were two of these parliamentry acts : — 1st. That of 13 Richard II., ch. 5, as follows : "It is accorded and assented, that the admirals and their dep- uties shall not meddle, from thenceforth, of anything done within the realm, but only of a thing done upon the sea, as it hath been used in the time of the noble prince King Edward, grandfather of the king." 2d. 15 Richard II., ch. 3 : "All contracts, pleas, and querelas, and all other things rising within the bodies of counties, as well by land as by water, and also wreck of the sea, shall be tried, etc., by the laws of the land, and not before nor by the admiral, nor his lieutenant in any wisfe." IMPROVED LEGISLATION OF ENGLAND. 51,. By the act of Parliament 3 & 4 Vict., ch. 65, § 6, both of these ancient acts were repealed ; and since ; 1841 the Dean of the Arches could perform the func- tions of an admiralty judge in his absence. By act 20 & 21 Vict., ch. 77, § 10, provision is made for the judge of probate to officiate when the office of admiralty judge may happen to be vacant; and since 1861, by 24 Vict., ch. 10, § 14, the Admiralty Court has been a court of record. Its powers seem now to be pretty precisely defined and greatly enlarged. Mr. Justice McLean in The Magnolio, 20 How. 335, referring to the act 3 & 4 Vict., says, that " Statute has placed English admiralty substantially on the same footing that it is maintained in this country. To this remark, it is believed there are but two or three excep- tions. Insurance, ransom, and surveys are believed to constitute the only exceptions. Whether an insurance is within the admiralty, has not been considered by this court." Jurisdiction is the power to hear and determine a cause. 6 Pet. 691, United States v. Arredonte. In ad- miralty courts, the exercise of this power ought never to be declined, from considerations of policy, convenience, or in deference to others. The public and parties have some concern with the personal opinions as well as right to the judicial decrees of an admiralty judge. Ordi- narily, he hears and decides without a jury. Without being possessed of legal jurisdiction, he cannot, even by agreement, be clothed with it. 20 How. 583. He should not, a fortmi, then refuse to exercise jurisdiction, where he may manifestly be clothed with it when acting with- out a jury. A good judge of admiralty may and should become a 52 JUDGE OP ADMIRALTY. truly great magistrate. Such an one may make for him- self and leave to the nations a name and praise among men. "While his office may occasionally call for the most exacting investigation of great and grave questions of international and general maritime law, it also brings him in almost daily contact with a class of persons, who, as suitors, need sympathy and protection, and often deserve favor. As a judge, then, he should be tender and not timid ; fond of the principles of admiralty law, and not unfa- miliar with the details and practice of this interesting branch of jurisprudence ; devoted to his daily duties, and quietly but firmly discharging them, so long as health may permit him or his own personal tastes be content to retain office. But above all, let him thoroughly eradicate all politi- cal aspirations : indulge in no delusive visions of other public distinctions ; leaving only for himself that chas- tened ambition, which is swayed and satisfied by nailght else save a desire to do right and perform his duty well and wisely, while acting as judge. Such a judge may not want the occasion, and will find ample time, to enable him to devote his mind and all its energies, duly to discharge the appropriate functions of his position ; and if so, he may rightfully be classed with Stowell and Lushington in England, and Sprague in this country; all of whom have been eminently successful in their judicial career ; the latter also con- spicuous as a model of official courtesy and courage. On some occasions, the admiralty has been unjustly arraigned as inconsistent with free institutions. The noble vindication of it by Chief Justice Taney should VINDICATION OP THE ADMIRALTY. 53 disabuse the public mind of all future prejudice. In Taylor v. Caryl, 20 How. 615, he says : "I can therefore see no ground of jealousy or enmity to the admiralty jurisdiction. It has in it no one quality inconsistent with or unfavorable to free institutions. The simplicity and celerity of its proceedings make a jurisdiction of that kind a necessity in every just and enlightened commercial nation. / " The delays unavoidably incident to a court of common law, from its rules and modes of proceeding, are equivalent to a denial of justice, where the rights of seamen, or maritime contracts or torts are concerned, and sea^faring men. the witnesses to prove them; and the public confidence is conclusively proved by the well-known fact, that in the great majority of cases where there is a choicfe of jurisdictions, the party seeks his remedy in the Court of Admiralty in- preference to a court of common law of the State, however eminent arid distinguished the State tribunals may be." All the cases cited upon jurisdiction may be profit- ably reexamined and studied by the reader. De Lovio v. Boit in 1815 ; The Thomas Jefferson in 1825 ; The Or- leans V. Phoebus, 1835 ; The Coomb's case, 1838 ; The New Jersey Steamboat Navigation Co. v. Merchants Bank; Clarke et al. v. Waring et al., 1848; The Gen- esee Chief and Ontario, 1851 ; Fretz et al. v. Bull et al., 1851 ; Walsh v. Eogers, 13 How. 283 ; The Magnoho, 1857 ; Taylor «J. Caryl, 20 How. 615 ; Grant v. Poullon, ibid. 162; Hemmenway ,«>. Fisher, ibid. 255; People's Ferry Co. v. Beers, ibid. 393 ; Snow et al. v. Hill et al, ibid. 543. Admiralty jurisdiction in the United States, then, extends to cases involving the claims of material-men ; 5* 54 GENERAL JURISDICTION. mariners' wages ; contracts of affreightment ; bottomry and respondentia bonds ; possessory, and petitory suits between part-owners ; salvage, collision, necessary sup- plies and repairs in foreign ports ; survey and sale of damaged or disabled ships ; pilotage, wharfage, consort- ship, spoliation and damage, assaults, imprisonment and other torts at sea ; ransom, convoy ; demurrage ; all questions of prize and its incidents, including claims for damages and costs in cases of wrongfiil capture ; seizures ; also to all criminal cases for which there is any express legislative enactments since 1789; such as seizures for violation of the customs, post-oflfice or revenue laws, and all such other offenses as may be deemed and declared to be criminal by congressional enactments. COLLISION. 55 CHAPTER IV. COLLISION. Having stated all that seemed to be necessary and useful upon jurisdiction generally, the subject of collision in American waters shall next claim attention, as being one which has already required the consideration of the American courts to a considerable extent, and is likely, in future, to demand still more of the time and attention of courts. A large class of marine torts, denominated cases of collision, are properly embraced within the admiralty jurisdiction of the United States: Certain technical rules, which apply to like cases in England (and possibly originating from its insular posi- tion), are in the United States measurably abrogated, superseded, or at least greatly extended; such are especially those relating to the ebb and flow of tide and to the fresh or salt qualities of tide-waters, and " infra primos pontes " of its principal rivers. A series of decisions of the Supreme Court are re- ported, most of which, with perhaps one exception, may be deemed and considered as the prevailing and estab- lished law of the land. The General Smith, Magnolio, Genesee Chieij Monticello, New York, and Oregon, de- cided by the Supreme Court at Washington, were much considered, and- are decisions of weight ancJ authority. 56 COLLISION, JtTRISDICTION, The Thomas Jeflferson has for many years ceased to be authority, having been overruled. And by these cases and others, the doctrines estab- lished as rules of proceeding and decision in admiralty, in cases of collision, are, that process in rem is sustain- able in the United States district courts for collisions occurring on the Mississippi, Missouri, Alabama, and other great inland rivers and waters, whether above or below the ebb and flow of tide, or within the bodies of counties even {infra corpus comUatus) ; and^; since the passage of the act of February 26, 1845, also in cases of tort occurring on our great lakes and other inland waters, as well as on waters " navigable from the sea." Early, indeed, in our political history and. life as a people under the Constitution, waters "navigable from the sea " were embraced within the admiralty juris- diction of the United States, particiilarly 'in' cases', of seizure. ■ In § 9, of the Judiciary Act of 1789, it is expressly provided, that " the district courts shall have, exclu- sively of thie courts of the several States, Cognizance of all crimes and offenses that shall be cognizable under the authority of the United : States, committed within their respective districts or upon the high seas ; and shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of import, navigation, or trade of the United States, where • the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burden, within their ' respective dis- tricts as well as upon the high seas ; saving to suitors, in all cases, the right of a common-law remedy, when the common law is competent to give it" AND EXTENT IN UNITED STATES, 57 And this, as yet, remains unmodified by Congress, as he clause is above cited, unless it be to extend its neaning ; and also unqualified, save by a doubtful in- erpretation pronounced as the opinion of the Supreme ]!ourt in the Case of The Thomas Jefferson in 1825, bxit ince adjudged ill-considered and erroneous in 1850. This case having ceased to be law, or a rule of decision )r authority, the law of 1789 must still prevail in our !ourts, together with a little added jurisdiction, con- ferred upon the district courts by Congress, in the years L835-1845, 1848 and 1853. In those districts of the first six circuits on the sea- joard, where foreign commerce has chiefly flourished, jspecially in the First Circuit, numerous decisions have )een given in cases of collision occurring at sea and on 'waters navigable from the sea;" many of which are Nell considered, accurately stated, and of high author- ty ; so that whenever cited as precedents in argument, ;hey are generally deemed conclusive in analogous cases irising in courts. Such are those in Gallison's, Mason's, Sumner's, Sto- ry's, Woodbury and Minot's, and Curtis' Eeports. So ilso are those in Ware's Reports, and the many as yet uncollected opinions of Mr. Justice Clifford upon this subject. In 1 Sprague's Decisions, there are nine different cases reported upon collision; all well reasoned, stated and letermined, and deserving the highest respect as au- ;horities upon this subject : The Schooner lion (p. 40) ; The Rival (p. 128) ; Lenox and Winnisimmet Ferry p. 160) ; Allen v. McKay (p. 219) ; The Osprey (p. J45); The Clement (p. 257) ; The R. B. Forbes (p. 328); ind The Julia M. Hallock (p. 539) ; all decisions upon 58 TRIBUNALS collisions investigated and tried in the Massachusetts District Court, in each of which judgment was pro- nounced by Judge Sprague since 1840. His immediate predecessor was the Hon. Judge Davis; and .the predecessor of Judge Davis was the Hon. John Lowell. In the Second Circuit, which embraces the Southern District of New York, Judge Samuel E. Betts long presided ; and the reported decisions of this distin- guished jurist, like those of Judge Sprague, have come to be considered of about as high authority by the pro- fession, as if pronounced by the principal judge of the circuit. Judges Robert Troup, John Sloss Hobart, William P. Van Ness, Elijah Paine, and Pierpont Edwards were predecessors of Judge Betts. In the Third Circuit, including Pennsylvania and New Jersey, Justices Washington, Baldwin, and Grier have presided in the Supreme Court; while in the district courts of that circuit, have presided Judges Hopkinson, I*eters, Morris, Pennington, Rossell, and Dickinson; and their recorded decisions will be found in the Reports of Washington, Hopkinson, Peters, Baldwin, Gilpin, Crabbe, and Wallace, Jr. The Admiralty Reports of Richard Peters, Jr., are both a mine and manual of marine law. The Fourth Circuit comprises Maryland; and some admiralty decisions of Judge Winchester may be found in Peter's Jr.'s Admiralty Decisions. But there is no regular book of reports for that district and circuit. In the Fifth Circuity heretofore the South Carolina Circuit, Judge Bee long presided, and with great ability. His Reports contain numerous and various admiralty IN SIX FIKST CIRCUITS U. S. 59 decisions of weight and authority, and exhibit their author as a learned and upright magistrate; administer- ing the law in the true spirit of a competent admiralty judge, fitted for his positicgi, and devoted to the dis- charge of its various duties. The Sixth Circuit includes Louisiana, of which State New Orleans is the great commercial centre and port of entry. In consequence of the extended foreign and inland navigation and commerce carried on, at, from and to New Orleans, that port has been "productive of many cases of collision and other marine torts, which re- sulted in obtaining from the Supreme Court decisions of great practical importance, and have beconae precedents of leading authority. Such is the case of The Steamer De Soto, adjudicated at Washington in 1847. It is re- ported in 5 Pet. 441, and usually cited as the case of Clarke et al. z;. Waring et al. On the Mississippi River, ninety-five miles above New Orleans, the De Soto col- lided with the Steamer Luna ; and Thomas Clarke, the master of the Luna, libelled the De Soto, for loss and damage occasioned by the collision. The original hearing^was before Judge Theodore H. McCaleb, who, in the United States District Court, decreed for the libellant damages at $12,000, and the sale of the De Soto. From this decree the claimants, Nathaniel S. War- ing and Peter Dalmar, appealed. There was a libel and supplemental libel; and an answer and supplemental answer also; and the case was argued by Eeverdy Johnson for the libellants, and J. J. Crittenden for the claimants. The question argued was a want of jurisdiction in the District Court as a court of admiralty ; which was 60 CLABKE ET AL. V. WARING ET AL. affirmed to belong to the District Court by a majority of the judges ; and the opinion of the court was given by Mr. Justice Wayne in behalf of his brethren, Chief Justice Taney and Justices McLean and Nelson ; while Catron, Daniel, Woodbury, and Grier dissented. It may not be superfluous to give in brief the doc- trine flowing from this decision ; and these were — 1. That the grant of admiralty jurisdiction was not limited to, nor interpreted by, the cases in England decided when the Constitution of the United States was adopted in 1789. 2. That such jurisdiction is not taken away because the common-law courts have concurrent jurisdiction. 3. That our admiralty courts have jurisdiction in torts and collisions happening on the high seas, within the ebb and flow of tide, as far up inland as the tide ebbs and flows, though infra corpus comitatus. 4. That the saving clause in § 9, of the act of 1789, means that concurrent jurisdiction does not take away jurisdiction from the common-law courts. Several members of the court gave separate prepared opinions. Woodbury, J., gave an elaborate dissenting opinion, in which Justices Daniel and Grier expressly concurred, and Mr. Justice Catron gave a brief opinion of his own. The court reviewed all the former cases, 10 Wheat. 428, The Thomas Jefferson; 7 Pet. 342, Peyroux v. Howard; 11 ibid. 175, The Orleans v. Phoebus ; 12 ibid. 72, United States v. Cooms, etc. ; in which locality gives jurisdiction, and deem it to be res adjudicata. Smith V. Condry, 1 How. 28, also originated in New Orleans. There the subject of damage in cases of col- lision is discussed, and the American rule stated ; and LIABILITY FOR DAMAGES. 61 it was there determined that the question, by whose fault a collision happened, was a proper question for a jury to decide. In these six circuits, which comprise the more com- mercial districts of the United States, have occurred more marine cases than in all the other circuits, and conse- quently the reports for adjudication in admiralty are chiefly to be looked for in the district courts at Boston, New York, Philadelphia, Baltimore, Charleston, and New Orleans. Since 1845, the enlarged jurisdiction reaches the inland waters and great lakes of the country, and colhsions there may be frequent, notwithstanding all the precautions of Congress, merchants, and navigators. California has yet hardly entered upon this branch of the admiralty law, but will doubtless soon commence its discussion and furnish material for its District Court and the profession. As to the rule of damages in cases of collision, the ancient maritime law exacted full compensation from the faulty colliding vessel and its owners; and this same rule was practiced upon up to the time of the enact- ments of 7 Geo. II. 15 ; 26 Geo. IH. 86 and 159, and 17 & 18 Vict. 104, § 503. By these acts of Par- liament the rule was so modified as to substantially conform to that first adopted by Holland, among the European nations ; and that was to limit the amount of damage to the value of the ship or property exposed to hazard. To encourage trade and commerce, and protect ship- owners against indefinite and consequently disastrous liability, to which they seemed to be held in the case of Walter v. Brewer, 11 Mass. 99, the Legislature of Mas- sachusetts, in February 20, 1819, (Stat. 1818, ch. ''22), 62 LIABILITY LIMITED. first introduced a limitation to that liability in certain specified cases. Ship-owners ceased thereby to be liable for the misconduct of masters and mariners beyond the value of the ship and freight; and a charterer was con- sidered the owner, if he undertook to man, victual, and navigate another's vessel at his own expense ; that is, pro hoc vice, the charterer was, in contemplation of law, owner. Those provisions were reenacted in 1836, (Eev. Stat. ch. 32, §§ 1-4), and, in some respects, extended ; and ar-e now to be found in the same form in the Gen- eral Statute of 1860, ch. 52, §§ 18-21.; and the same principle is adopted by Congress in the act of 1851, ch. 43, §§ 3, 4, and 5. These sections, with some qualifica- tion, supersede State^ laws ; and render further State legislation superfluous. What is law in Massachusetts now, is also law for all the other States of the Ameri- can Union. What is quite noticeable, the act of Congress is almost an exact transcript of the law of Massachusetts. Not only is the ship-owner's liability circumscribed in both, but in both he has the privilege to surrender to freight- ers, or a trustee for them, all his interest in vessel and freight, and thus stay all legal proceedings against him, and protect himself entirely against all liability for further costs of litigation. In England and the United States, as well as Holland, the liability of ship-owners to damage is limited to the value of the vessel in fault and her freight; and though in The Public Opinion (2 Hag. 898), which was a cause of collision, occurring in the river Humber, the court decided that torts of this description were not subjects of admiralty jurisdiction when arising infra corpus comi- in England ; yet it is held otherwise, as has been SUITS FOK DAMAGES. 63 seen, in the United States, in a series of decisions, as well as settled also by congressional legislation; and now not only do these decisions apply to torts upon our rivers and other inland lakes and waters, but reach cases of collision of ships at anchor in land-locked harbors, or at the wharves, if water-borne, of our great ports of entry. It would seem to be an indispensable con- sideration to the recovery of damage, however, that at the time of the injury both colliding vessels should be water-home. 6 N. Y. Leg. Obs. 401, Livingstone v. Propeller Express. As to the proceedings in a libel for collision, all in- terested as owners, or otherwise, may join originally in the proceedings; or be admitted subsequently as parties by petition to the court, at its discretion, or for cause; or the master, in the name and on behalf of those interested, may institute proceedings in rem, by one suit in admiralty, requiring only one plea, trial, and decree, to determine the whole question of damage ; thus effectually avoiding that needless circuity of numerous actions, which the common law renders indispensable. It has been determined that an arrested ship may be delivered on bail ; 1 Gall. 145, Alligator ; and that the testimony of persons on board is admissible ex necessitate as evidence at the trial, even though such persons may be interested in the result. 1 Sum. 329, The Boston ; ibid. 400, The Henry Ewbank ; and 1 Dod. 345, The Charlotte Caroline. But see the act of July 2, 1862, passed by Congress, to which reference will again be made in a subsequent part of this treatise. By the act of Congress of August 23, 1842, ch. 188, authority was given to the Supreme Court of the United States to frame and establish rules and regulations gov- 64 PLEADINGS. erning causes of admiralty and maritime jurisdiction; and under and in pursuance of that act, the court adopt- ed, in 1844, a code of rules in admiralty numbering, in all, forty-seven ; of which rules the twelfth, eighteenth, and perhaps others, have subsequently been modified or abrogated in part. But the fifteenth is as follows : — "In all suits for damage by collision, the libellant may proceed against the ship and master, or against the ship alone, or against the master or the owner alone in personam." This rule remains unmodified, and as it was originally prepared. It is understood that these admiralty rules were drawn up by Mr. Justice Story, and also that the act of February 26, 1845, was originally prepared by him. • Under the fifteenth rule, and the general principles of maritime jurisprudence applicable to cases of collision, the customary allegations in the libel (and they are not only formal but may become quite material) which are deemed necessary to give to the court jurisdiction, are — 1. The locality of the injured vessel, her destination, tonnage, rig, provision in tackle, apparel and furniture, condition as to soundness, and complement of hands as a crew to navigate. 2. Her time of departure, being so manned, etc., ar- rival, mooring, watch, and warning to colliding vessel ; sufficiency of tide, sea-room, and ability of vessel in fault to avoid; her own helplessness and vigilance of the plaintiff ship ; carelessness of the respondent ship ; forcible collision, its effect, injury by fouling and esti- mated damage. 3. That damage would not have happened without want of care. PLEADINGS. 65 4. That the injured and complaining ship was tight, stanch and strong ; that the libellants are the true and lawful owners of the libelling ship, her tackle, apparel and furniture. 5. After the collision and damage, pilots and others remoored or secured; shipwrights and others repaired the damaged ship, at a specified or estimated value of $ ; whereby libellants have sustained a damage for services and repairs amounting to f 6. Offering to verify, if denied, the foregoing allega- tions ; .craving leave to refer to depositions and other proofs to be exhibited in the cause. These allegations are to be signed by the libellants and sworn to before the District Court, its clerk, or a commissioner. And the foregoing are the ordinary formal allegations in collision cases, and are sufficient to present an issue for hearing by the court, in behalf of the libellant. The usual defensive allegations by the libellee, or claimants, or other parties intervening, are — 1. The ownership, tonnage, and present locality of the libelled vessel. 2. Admitting such articles in the libel as are true, and propounding others which deny, qualify, or contra- dict those in the libel. 3. Stating and alleging a series of defensive articles, importing justification of the libellee and want thereof in libellant. 4. Proffering a verification generally, if denied; and craving leave to exhibit depositions and other proofs ; and — 5. Praying the court to pronounce against the libel, 6 * 66 HEARINGS. condemn the libellant in costs, and otherwise right and justice to administer in the premises. The answer is to be signed and sworn to in like man- ner as the libel. And since the extension of admiralty jurisdiction to the lakes and other great inland waters, there should be further allegations ; as that proper lights and signals were duly displayed, and competent lookouts or watch were upon deck and properly stationed, as far forward as possible, and finally with an officer, on deck and in command, entirely competent to the duties of his station, vide ch. 69, 1864; ch. 234, 1866; and ch. 83,' 1867, United States. These additional allegations seem to be required by act of- the United States Congress, August 30, 1852, ch. 106, and decisions of the United States Supreme Court since its passage ; especially in the cases arising on Lakes Erie, Michigan, and Ontario, and St. Law^ rence Kiver, where proceedings in admiralty for colli- sion and such torts were first commenced in the district courts of the western circuits and Northern New York, or the other circuits already referred to. The cases alluded to are the Steamer Louisiana, Propeller Niagara, and Propeller Atlantic, cases in 21 Howard, and other subsequent decisions of the United States Supreme Court, as reported in Howard, Black, or Wallace. With the appropriate allegations to promote or de- fend a libel filed, the next matter to be attended to will be the exhibit of the respective proofs by the parties. In order to recover, the libellant should be proved to have been in the exercise of ordinary care, and the libellee to have been in want of it ; and if this be LORD STOWELL's "FOUR POSSIBILITIES." 67 otherwise, the libellant cannot recover; but both parties may be adjudged blamable, and several cases of this description will be cited from the latest reports. The contest in collision cases, ordinarily, turns upon the proofs ; the rules of law applicable being generally few, but clear, and well understood. Lord Stowell has stated these rules, generally as coming under four heads in the case of The Woodrop Sims, 2 Dods. 83. From the brevity and accuracy of his statement of the rules, the case itself has been as much .cited in collision cases as perhaps any other known adjudication. He says: "There are four pos- sibilities under which an accident of this sort may occur. In the first place, it may happen without blame being imputable to either party; as where the loss is occa- sioned by a storm, or any other vis major. In that case, the misfortune must be borne by the party on whom it happens to light ; the other not being responsible to him in any degree. Secondly, a misfortune of this kind may arise when both parties are to blame ; as where there has been a want of due diligence or of skill on both sides. In such a case the rule of law is, that the loss must be apportioned between them ; as having been occasioned by the fault of both of them. Thirdly, it may happen by the misconduct of the suffering party only ; and then the rule is, that the sufferer must bear his own burden. Lastly, it may have been the fault of the ship which ran the other down; and in this case, the injured party would be entitled to an entire com- pensation from the other, but not exceeding the value of the offending ship and cargo." The Trinity Masters considered the Woodrop Sims to blame, in running down the brig Industry, because 68 TRINITY RULES. the Sims had the wind free and ought to have got out of the way ; and so it was decreed. Besides, the Masters of Trinity House in England and experts in the United States, when called upon to aid the Admiralty Court, have also their established rules. Those of the Trinity Masters, adopted in 1840, are re- cognized and substantially adopted in the United States. 1. That those ships having the wind fair shall " give way " to those on the wind. 2. That when both are going by the wind, the vessel on the starboard tack shall keep her wind ; and the one on the larboard tack bear up ; thereby passing each other on the larboard hand. 3. That when both vessels have the wind free, large, or arbeam, and meet, they shall pass each other in the same way, on the larboard hand, by putting the helm to port. Steam vessels are considered in the light of sailing vessels navigating with a fair wind, and should give way to sailing vessels on a wind on either tack. RULE FOR STEAM VESSELS. When steamers meet on different tacks or course, and there is danger, if their course is continued, of co- lision, each vessel shall put her helm to port. ADDITIONAL PROPOSED RULE. A vessel coming up with another should pass her to leeward. After the proofs are all exhibited, then the District Court, in the first instance, proceeds to pass upon the law and facts and give judgment. If the evidence be in writing, and the parties feel aggrieved, either or both may claim an appeal to the Circuit Court j if one OTHER RULES OF NAVIGATION. 69 party appeals, both ought to claim an appeal, as the better practice ; and from the decision of the circuit judge, the case, by writ of error or appeal, may be car- ried to the Supreme Court at Washington, and there definitively determined. In addition to the Trinity rules, heretofore inserted in the text of this treatise, the increased appUcation of the agency of steam in propelling vessels, has caused other and more stringent rules to be adopted, and the numerous cases in England and this country authorize the statement of them to be substantially as follows' : — Steam vessels must take all possible care to run clear of sailing vessels. A steamer passing, in a narrow channel, either a steam or sailing vessel, must so pass, as to leave the one to be passed on the larboard hand ; whether she is meeting, or overtaking and passing, the other. Two steam vessels being so near as to risk collision, both must port the helm, so as to pass each other on the larboard side. " Port the helm " means larboard in contradistinction to starboard ; and is so used to avoid confusion in giving orders. With these rules and such others as the growth of commerce may gradually render necessary to protect navigation and prevent marine torts and losses by collision, the practitioner has but the twofold duty to perform, of stating the law clearly ; arranging his proofs lucidly ; and then submit for decision the cause and his client's interest. In The Clement, 2 Curt. 368, there is a clear state- ment given of the rules of navigation by the learned jurist then presiding in the first circuit. Collision may properly be defined to be either one 70 LAW UNIPOBM. vessel running foul of another, or two vessels running foul of each other. Though losses by collision have recently produced much discussion, and many decisions, still, in reality, but little conflict is discoverable in those decisions or among the numerous writers on maritime law, who have in- cidentally discussed this species of marine loss and damage. Emerigon, Valin, Pardessus, and Boulay Paty, in marine afiairs, are much referred to as well as the other writers noticed in the first chapter. The Roman law has become antiquated in its rule as to apportion- ment ; differing entirely from that adopted in more modern times by other nations of Europe and particu- larly by Holland and England ; which, in this respect, are in harmony with the United States. Indeed the most important rules are now weU under- stood and correctly practiced upon in modern courts of admiralty ; and the chief difficulty lies in reaching by the means of evidence the real source, origin, and cause of colhsion. If it happen at sea, on a dark night, or in a severe storm, much agitation, excitement, and con- sequent confusion would necessarily attend it ; and so the evidence, derived from opposite sources, would nat- urally partake of the character of the scene ; and thus the real cause would be inscrutable and might remain undiscoverable. If, on the other hand, the collision should happen in clear weather, in the day-time, in harbor, or in rivers navigable from the sea, or on any of the big lakes or other inland waters of the United States, then the evi- dence would be plain and the facts so clear that they would unerringly point to the blamable source and responsible cause of the disaster. , PAETY BLAMABLE. 71 If the party sued be in fault, or if it should appear that the collision was in consequence of his want of skill, care, knowledge, or prudence, then would he be deemed liable for damages. What is reasonable care depends very much upon the surrounding circumstances and the precise situation of the navigators. But there should always exist a common obligation between the parties to make every reasonable effort to avoid danger and a common respon- sibility in case of neglect. 6 N. Y. Leg. Obs. 401, Livingston v. Steam Towboat Express. If the libellant is so in fault that he or his agent sub- stantially contributed to the injury, he cannot recover ; nevertheless he may be only so in fault to a certain limited extent ; but yet not to such extent as would prevent his recovering. 9 Car. & P. 613, Kaisin" v. Mitchel ; S Mees. <& Wels. 244, Bridge v. Grand Jimc- tion Eailway Co. ; 11 East, 60, Butterfield v. Forrester ; 38 E. C. L. Rep. 254, note ; 9 Car. & P. 601, SiUs v. Brown. By whose fault the collision was occasioned is a question of fact for a jury. 1 How. 28, Smith v. Condry. Where the collision arose vi majore, without the fault or negligence of any one, open or concealed, the owners of the ship and cargo must bear their own loss ; and it is not, in any form, a subject of apportionment, contrib- ution, or general average. Where it resulted from error, inattention, want of sufl&cient precaution and proper care, and the blame is inscrutable, undiscoverable, or equally imputable to both parties, then is presented a question which to courts is most embarrassing ; and the marine law, then, appor- 72 BOTH. IN FAULT DIVIDE THE PAMAGE. tions the loss, by a sort of judicium rmticum, or, as Kent terms it, judicium rusUcorum ; and so it is held by the foreign ordinances and the jurists of Continental Eu- rope. But this rule is not adopted in England ; nor is it recognized or accepted in the United States to its full extent. It may possibly be better stated in the language of the courts, by a brief notice and review of the American decisions on collision, which shall now be given. Some annotators have said, that there had been no limitation imposed by legislative enactment to the lia- bility of ship-owners for the misconduct of their masters and mariners ; and so it appeared to have been deter- mined in Walter v. Brewer, 11 Mass. 99, in the year 1814 ; or perhaps the limit of liability was left indefinite and uncertain ; so much so, indeed, that the Legislature of Massachusetts, in 1819, February 20, interposed and passed an iact expressly limiting such liabUity of owners of ships, for the sake of encouraging trade and com- merce, to the value of the ship and freight ; and also considered the charterer as the owner, provided such charterer should man, victual, and navigate the vessel, at his own expense. See Mass. Stat. 1818, ch. 122. This limitation on the liability of the owner had been formerly coextensive with the amount of loss; and it, accordingly, became thenceforward restricted to the value of the property at hazard, as already appears in a former part of this chapter. Though this privileged protection is extended to owners for acts of embezzling, it does not however seem to apply in cases of collision. 14 Gray, 301, Walker v. Boston and Hope Insurance Company; 3 Story, R 492, Pope V. Nickerson. S'tA.TUTES AND RECENT CASES. 73 In England, also, similar restricting acts have been passed, as will appear by referring to 26 Geo. III. chs. 86 and 159 ; and finally, 17 & 18 Vict. ch. 104, § 503 ; which, latter enactment assimilates the statutes of England very much to the acts of Congress; thereby placing the English and American courts almost pre- cisely on the same footing, as to limited liability of owners. Having already referred to 1st Sprague's Decisions, and many adjudications of the Supreme Court of the United States, such as The Genesee Chief, Fretz et al. v. Bull et al, Walsh v. Eogers, Smith v. Condry, The Pro- peller Monticello, Steamer Oregon v. Rocca, and New York V. Rea, and others ; it only remains to add for reference the more recent decisions of our highest tribunal and other cases which have been adjudicated in the district and circuit courts. In 19 Howard, there are three caset: Ure v. Coff- man, p. 56 ; United States v. Steamer St. Charles, p. 108 ; and New York and Virginia Steamship Com- pany V. Calderwood, p. 241. In 20 Howard, 296, Jackson v. Steamer Magnolio, which was a cause of collision and much considered. Ibid. p. 543, is the case of Snow et al. v. Hill, which was a colhsion by towed steamers. In 21 Howard, are two cases of collision, appro- priate to be read by the student : The Steamer Law- rence V. Fisher et al., p. 1; and The New York and Liverpool Mail Steamship Company v. RumbuU, p. 372. This last was a collision between a sailing and steam- vessel ; and the opinion of the court was delivered by Mr. Justice Chfford. There is also the case of Cham- berlain V. Ward, which was a collision on Lake Erie, 7 74 RECENT CASES. where the fault was mutual a,nd the damages appor- tioned. Vide 21 How. 548. In 22 Howard, are reported two cases ,of collision, one occurring on the Yazoo Eiver, the other on the Delaware : 22 How. 48, Nelson v. Leland ; ibid. 461, New York and Baltimore Transportation Company v. Philadelphia and Savannah Steam Company. In 23 Howard, are to be found also two cases of collision, both occurring in the Chesapeake Bay : the one on p. 287, Haney v. Baltimore Steam Packet Com- pany, in which Grier, J., gave the opinion of the court; the other on p. 448, Mitredge v. Dill, where also the opinion of the court was given by Mr. Justice Clifford. In 24 Howard, are reported three cases of coUison, severally occurring on the East, Ohio, and Elizabeth, rivers : Sturgis v. Boyer, 24 How. 110 ; Pearce v. Page, ibid. 228 ; and Union Steam Company v. New York and Virginia Steam Company, ibid. 307 ; in the first and last, the decisions were pronounced for the court by Clifford, J., and in the second by Mr. Justice McLean. In 1 Black, 414, The Marcellus, is a case of col- lision in the harbor of Boston ; and again the opinion was delivered by Mr. Justice Clifford; also 1 Black, 574, Propeller Commerce, another case of collision, occur- ring on the Hudson River ; and in that also an opinion is delivered by Clifford, J. In Gallison, Mason, Sumner, Ware, Davis, Abbott, Dallas, Cranch, Howland, Howland and Blatchford, Crabbe, Gilpin, Newberry, Stuart, Bee, and Peters, Jr., the more important decisions there reported are familar to the profession, and do not materially vary the doc- trines already laid down in the text. RULES AND REGULATIONS. 75 A French rule requires that one vessel, following another, on entering a port before they come to anchor, shall avoid or steer clear of the vessel ahead ; and this, whether the two are sailing or steam vessels. In this rule there is practical good sense, and, if adopted, would doubtless be readily acquiesced in, as sound law and sense ; and as a rule useful to prevent collisions. When a vessel is at anchor, near a channel much frequented by other vessels, she ought to display signal lights in the night-time ; and even when riding at an- chor in the harbor, on a dark night, there should be, at least, a look-out or deck watch ; or perhaps, more prop- erly, an anchor watch. O'NeH v. Sears, 24 Law Eep. 731, by Sprague, J. ; and see S. C. reported in 2 Sprague, p. 52. In 1840, August 7, was passed an act by the British Parliament to improve the practice and extend the jurisdiction of the High Court of Admiralty ; authoriz- ing, by § 18, the admiralty judge to make rules and regulations for proceedings in admiralty; also providing that the Dean of the Arches Court should sit as admi- ralty judge in his absence ; and that advocates, surro- gates and proctors in the Arches should also practice in the Admiralty Court. The act consists of twenty-four sections and is cited as that of 3 & 4 Vict. ch. 65. The act of August 7, 1854 (17 & 18 Vict. ch. 78), enabled the Admiralty Court to appoint commissioners and substitute stamps for fees. That of August 8, 1859, obliterated all distinctions between the practitioners in the various courts ; enabling sergeants, barristers, attorneys and solicitors to practice in the admiralty courts ; the sergeants and barristers as . advocates, and the attorneys and solicitors as proctors. 76 RULES AM) REGULATIONS. On July 3, 1854, the judge of admiralty (the Hon. Stephen Lushington) passed rules as authorized by the act of 1840, § 18. December 12, 1854, the same magistrate certified certain rules as to fees, stamps, etc., as having been adopted by her Majesty's Privy Council, under what is termed the "Admiralty Court Act," 1854, and cited as the 17 & 18 Vict. ch. 78. On the 1st December, 1855, the same judge adopted a set of rules, orders and regulations in regard to in- stance proceedings ; which were sanctioned by the Privy Council December 7, 1855 ; also, after the 1st of January 1856, proceedings were specially directed to be printed by his order. In 1859, other rules were framed by Dr. Lushington, more fuU and complete ; and these were approved by the council November 29, 1859 ; the same to take efiect January 1, 1860; with tables for fees, and forms cover- ing all customary proceedings in the English admiralty. There are in all one hundred and eighty-seven sections: And so appropriate to the subject of this chapter is § 62, that it is here cited in fuU. " Sect. 62. In causes of damages, unless the judge shall otherwise order, each proctor shall, before any pleading is given in, file a document, to be called a preliminary act, forms of which may be obtained in the registry, containing a statement of the following particulars : — " 1. The name of the vessels which came into col- lision and the names of their masters. " 2. The time of collision.- " 3. The place of collision. " 4. The direction of the wind. REGULATIONS. 77 " 5. The state of the weather. " 6. The state -and force of the tide. " 7. The course and speed of the one vessel when the other was first seen.* " 8. The lights, if any, carried by her. " 9. The distance and bearing of the other vessel when first seen. " 10. The lights, if any, of the other vessel which were first seen. " 11. Whether any lights of the other vessel, other than those first seen, came into view before the collision. " 12. What measures were taken, and when, to avoid the collision. " 13. The parts of each vessel which first came in contact." And this document, inclosing these preliminary acts, shall be sealed up, and only opened by order of the judge, after the proofs are filed; unless otherwise agreed by the proctors and sanctioned by the judge. Since, in collision cases, the controversy is usually one of fact ; that is, which party is culpably in fault, and, the evidence procurable may be conflicting, as it usually must be, and so the real occasion or cause of collision may be thereby rendered uncertain or even inscrutable, the rule, adopted by Dr. Lushington in 1859, above cited, may be suggestive to any ofl&cial desiring to secure the rights of innocent parties against ofiending or wrong-doing parties. At this present writing (January 12, 1863), the author has observed a movement in the United States Congress to provide additional rules to prevent maritime collisions — and it is not inoppor- tune. Vide Appendix F. The commerce of the world is constantly increasing, 7* 78 EEGULATIONS. as well as the amount of tonnage invested in ships. Almost every day adds another sailing or steam sea- going vessel to our navy or merchant marine; our lakes and inland waters and rivers are being incessantly trav- ersed by vessels propelled by wind or steam. The danger of damage, therefore, from collision, is becoming gradually greater and the security against danger less. It is proper, then, that all in public station should ex- ercise the utmost vigilance in providing the necessary preventive measures to protect the mercantile and shipping interest in this respect. Vide United States Laws, ch. 59, 1864. A strict compliance with the recognized rules of nav- igation should be generally enforced; and if it be found, by experience, that additional rules are needful, they should, by competent authority, at once becom:e a part of the laws of the sea. If existing rules are found im- perfect or inadequate, to effect the security designed "to commerce, then they should be modified accordingly. Whether the American courts have rules sufficient to meet the marine exigencie| of the. times or not, it is, at all events, quite clear, that, in this :fespect, England! is somewhat in advance of the United States in framing special rules for signal lights and requiring the use of horns, bells, and steam whistles for fog signals, and the exhibition of white lights, between sunrise and sunset, by sea-going vessels when at anchor in roadsteads and fairways. But «;«iie Appendix G. There are some existing rules of navigation which ought not always, however, to be strictly complied with, nor, under all circumstances, rigidly enforced. Some- thing, after all, must necessarily be left to the nautical judgment and caution, of. a skillful navigator, to act as circumstances may require. REGULATIONS. . 79 Thus, when vessels meet on different tacks, and there is danger of collision by continuing their respec- tive courses, the rule is that one shall port her helm. This is well generally, but not invariably prudent : for suppose the vessels to meet in a fog, and are almost aboard of each other, before their presence or proximity is known; if both port their helm, they may strike right dead ahead, and not only collision but inevitable destruction to both may be the consequence. Whereas, if one should luff or go in stays and the other bear away or wear, a collision may thereby be avoided. In this condition, it may be essential, to avoid collision, that the vessel that luffs should come right up in the wind's eye, until the helmsman, who " cuns the ship," sees the sails shivering in the wind. Some discretion is vital to good nautical management. Many other cases may be supposed, where a strict literal compliance with any specific prescribed rules would result in disaster ; and yet some skillful ma- noeuvre in the management of the ship by a cool, col- lected and prudent navigator, if permitted to exercise his nautical skill, might avoid both disaster and danger even. The law, therefore, very properly confides much • to the discretion of experienced ship-masters as well as skillful pilots. 1 Sprague, 221. Hence the importance of calling upon the aid of Trinity Masters by the court or nautical assessors, by the committee of the Privy Council in England, and experienced and expert seamen in this country, to assist the courts in ^weighing the evidence, and enabUng them, to lay the blame, in cases of collision, where it rightfully belongs. In 1 Sprague, 219, it was declared to be the established 80 ^RECENT CASES. rule to divide the damage, where both parties were in fault, negligent, or otherwise blamable. Allen et al. v. Mackay et al. : and generally in such cases the costs will be divided also. Yet, in The London, Browning and Lush. 82, the court held and will occasionally ex- ercise a discretionary power to condemn the plaintiff in costs. Several recent cases of collision, where both were to blame, are collected and here cited for the convenience of the student. The Steamboat Boston, 01c. 407 ; Brig Rival, 1 Sprague, 128 ; Lennox v. Winnisimmet Co., ibid. 160 ; 2 Sprague, 17, Marcia Trebon ; ibid. 52, O'Neil v. Sears ; 1 Spinks, 91, Carron ; ibid. 96, Aliwell; ibid. 269, Wansfell ; Swabey, 28, Calypso ; ibid. 55, James ; ibid. 306, Lind ; and in Lush. 388, Milan ; Brown, and Lush. 287, Great Eastern ; also two cases of inevitable acci- dent. The Peerless, Lush. 30, and The London, Brown, and Lush. 82. The Catalina, 2 Spinks, 23. A Dutch and Spanish vessel came into colHsion. The Spanish crew boarded the other vessel, and behaved with great violence. The court deemed the Dutch vessel to blame for the col- lision, and pronounced for the Spaniard ; but gave no costs, on accoimt of the subsequent misconduct of the Spanish crew; thus reserving, as in The London, Brown, and Lush. 82, a discretionary power to award or with- hold costs, in po&nam, as may be required. Several other cases may be found in Brown, and Lush- ington of general importance : as The Europa, p. 89, where it was held, that a maritime lien may be lost by lapse of time and laches. In The Faulkland and Navi- gator, p. 204, it was held that wearing was unusual without good cause, and a vessel, sailing on the wind, should tack, and not wear without sufl&cient sea-room. SALVAGE. 81 CHAPTER V. SALVAGE. SalvagTe is a claim for compensati'en, or rather a re- ward for services substantially and essentially maritime, volmitarily rendered, and resulting in success. So that salvage services are characterized by three qualities or ingredients, as attending them, which must distinguish them intrinsically from other labor or service. Techni- cally such services, therefore, must be maritime, volun- tary, and successful. When a suit for a claim of this kind is promoted in admiralty, the proceedings should be commenced, ac- cording to the direqtions to be found in the nineteenth rule of the " Eules of Practice in Admiralty," as adopted by the United States Supreme Court in 1845. That rule is as follows : — " In all suits for salvage, the suit may be in rem against the property saved, or the proceeds thereof j or in per- sonam, against the party at whose request and for whose benefit the salvage service has been perforpaed." Formerly, the master, in his own name, but in behalf of himself, owners, mariners, and all known to be inter- ested in the salvage claim, instituted proceedings iri rem against the salved property; and afterward others, for cause, might become parties by petition to the court, before any final decree had been made. 82 SALVAaE TENDER. But the proper course, in promoting, in the admiralty, a hbel for salvage is, to insert aU the salvor's names as libellants, with approximate allegations of their re- spective interests and claims ; and should any persons entitled to share as salvors be omitted, they can, by petition to the court, be admitted to become parties, in any stage of the subsequent proceedings, at the discre- tion of the court. The cases of. The Boston, 1 Sumner, 328, and The Henry Ewbank, ibid. 400, heard and determined by Mr. Justice Story, are leading American cases upon salvage, and much cited and relied upon. Tender of salvage, before trial, is not too frequently practiced ; but yet may always be judicious. Tenders are ordinarily disregarded by the admiralty courts of England, unless made by formal acts of the court. 2 Wm. Rob. 9, The Hope. Propositions to settle by compromise are often ex- pressed in equivocal terms ; and, consequently, are calcu- lated to mislead ; or liable to be misapprehended by the parties. 1 Lush. 13, The John. But where a sufl&cient tender has been made ; is well understood, and yet has not been accepted ; salvors would not be entitled to costs. 4 C. Eob. 103, Vrow Margaretta; Abbot on Shipping, 403 j 1 Hagg. 157, The John and Thomas ; Swab. 256, The Mobile ; 1 Lush. 454, Compte Nesselrode; 1 Newb. 329, The Charles; 6 Notes of Cases, 290, The Johannes ; 1 Spinks, 171, The Bata- via ; 2 Spinks, 252, The Hopewell j but vide Brown, and Lush. 82, The London. When a tender has not been seasonably accepted, the court may reduce it. 2 Hagg. 18, The General Palmer. What portion of the proceeds of the property saved SALVAGE. 83 shall be awarded to the salvors depends upon the hazard incurred; the merit and success of the service, rendered; and, in some measure upon the amount of value and the property saved. In the case of The Thetis (2 Knapp, P. C. 390), de- cided in 1834 by the judicial committee of the Privy • Council, and the opinion delivered by the then vice- chancellor (Sir Lancelot Shadwell), one third of the amount of the salved property was awarded to the salvors. There the claimants recovered, by great ex- ertions, treasure from a wreck, derelict and sunk under water near Eio Janerio. Sir Thomas Parker, the rear admiral in command of the naVal station where the disaster occurred to the Thetis, commenced operations for recovery with the diving-bell and other apparatus, and thereby recovered $750,000 out of about |820,000 in bullion, which was the amount on board of the wrecked vessel when lost. To the admiral was awarded one eighth; and to the admiralty, repayment for the pay, victualhng, and wear and tear of the king's ship. Also vide 3 Hagg. 14, S. C. The amount awarded is discretionary with the court, as a general rule. Vide The Dos Hermanos, 10 Wheat. 306, and 1 Gall. 133, Tyson v. Prior. In derelict cases, the salvage awarded is seldom under two fifths ; generally one hal^ and rarely less. The American and English decisions in this respect are in harmony ; the leading cases are, in the United States, Talbot V. Leeman, 1 Cranch, 1 ; The Harmony, 1 Pet. Adm. 7#l» The former was a case of recapture of the salvor's own vessel ; the latter of the vessel of another. The ground upon which the service is deemed merito- rious to the recapturer is the legality of the original 84 SALVAGE AWARDS. capture. If there were probable cause for it, then the capture is to be considered hostile, and so lawful. If not, then it was unlawful ; and the captors would be lia- ble for damages and costs to the claimants. In The Adeline (9 Cranch, 244), one sixth was allowed for salvage claim; in The Adventure (8 Cranch, 221), one half; in Bond v. Brig Cora (2 Wash. C. C. 80), one third was allowed ; in The Blaireau (2 Cranch, 440), one third for the salvors and one third for the owners ; in Hobart v. Drogan (10 Pet. 108), one third ; in Bowe v. nameless Brig (1 Mason, 372), one half was stated to be the general rule, but that the rule is flexible ; in The Emulous (1 Sum. 270), it was one seventh; in The Mes- senger (2 Pet. Adm. 284), one third ; in the 5 Negroes, (Bee, 201), one tenth; in the 194 Slaves (Bee, 226), one fifth ; in The Friendship (Bee, 175), salvage for money saved was adjudged to be from one fifth to one tenth of the amount saved ; in 140 Barrels Flour (2 Story, 195), and The Elizabeth and Jane (Ware, 35), one half was considered proper award in cases of derelict, and this allowance might be enlarged at the discretion of the court; and so, of course, while it now remains discretionary with the court, may the allowance be diminished. In Smith v. Stewart (Crabbe, 218), Judge Hopkinsoh thought the rule to be generally the more trouble the more salvage ; in The A. D. Patchin, 1 Blatch. 414, the court deemed a written agreement not binding, yet, if fairly made, it would be of weight in fix- ing the amount to be awarded on salvage principles; in Sturgis v. Law (3 Sand. 651), salvage, by long^ustom, was considered as belonging to the admiralty, and not the common law courts ; nothing was deemed due for saving life in The Emblem (Davies, 61), yet that even RIGHT TO SALVAGE. 85 loss of life the court will consider in fixing the amount of salvage ; this doctrine is in conflict somewhat with recent English decisions and acts of Parliament; so that the conclusion from these cases and references is, that the amount to be awarded to salvors for merito- rious maritime services, voluntarily rendered and result- ing in success, varies from one half to one tenth of the value of the property saved ; and, in cases of derelict, may be enlarged even beyond the one half The shipper is not entitled to salvage unless he con- sent to a division of the salved effects. 3 Sum. 543, The Nathaniel Hooper. The finder in derelict acquires a right against the owner and consequent lien for his salvage claim, on the salved property. The Bee, Ware, 332. In The Emblem, it was considered that if the owners abandon on the institution of proceedings in rem, the salvors were without any claim in personam against the owners. In 1 Story, 314, 340 Pigs of Copper, liberal allow- ance of salvage is deemed good policy. In The Etna (Ware, 462), a minor's share was con- sidered his own property, even where the suit was in the father's name as prochdn ami; and if the father should assume privately to settle the claim without the son's knowledge and consent, and give a receipt in full, it would be set aside, and full wages decreed to the son, notwithstanding the parent's receipt. In The Henry Ewbank (1 Sum. 400), a salvor per- mitted a claim of others, who were co-salvors, to" be pro- moted and a decree pronounced, before he applied to the court for his share of the salvage to be awarded ; yet, upon petition, he was admitted as a party; and 8 86 SALVAGE SERVICE FOEFEITURE. compensation was decreed for his claim to be paid out of the proceeds then in court. Without reviewing the English and American de- cisions, at present, I shall proceed to notice the ques- tions usually mooted on the trial of salvage cases ; and this is possibly the more direct and sure way of turning the attention of the student to those principles of juris- prudence, which underlie and are chiefly applicable to a salvage service and its incidents. There are four inquiries appropriate to be made in discussing a salvage claim : 1. What constitutes a salvage service ? 2. Who are salvors ? 3. What compensation shall salvors have ? 4. Has there been any cause for forfeiture ? Salvage service may be defined to be the saving from probable loss a ship or her cargo, when in imminent peril ; or recovering the one or the other, after actual loss or abandonment, sine spe recuperandi vel amino rever- tendi. Abbott on Shipping, 659. Persons performing such service (and it must be an essentially maritime service) become salvors, in contem- plation and by implication of law, and therefore are entitled , to compensation for the service so rendered, unless by some misconduct on their part, they shall have forfeited their claim for salvage. Embezzlement, negligence, fraud, spoliation, dishon- esty, or indeed any misconduct on the part of salvors, is sufficient ground for forfeiture ; and persons guilty of any such misconduct, forfeit their salvage, wholly or in part ; if it be in part only, then it may be presumed that the forfeiture was imposed or inflicted by the court in pc&nam. SALVAGE SEEVICE. 87 The remuneration, when any is awarded for salvage services, generally varies from one quarter to one half of the salved property ; or more, in derelict, at the court's discretion, may be awarded. Salvage services, rendered or tendered spontaneously by the persons performing it, must be essentially mari- time in its nature ; and not necessarily originating in any mutual agreement ; nor is it dependent upon any express contract previously entered into by the salvors. Whenever useful salvage service has been actually ren- dered, the law implies that the salvor is entitled to com- pensation or reward, to be allowed at the discretion of the judge of an admiralty court. Indeed, all prior stipu-' lations are superfluous and disregarded in admiralty ; having no binding force and effect whatever, unless it be as a guide or standard to fix the amount of salvage to be awarded. If a claimant has paused before the service, to stipulate for remuneration, his claim for sal- vage would, for that reason, be subjected to suspicion, as to whether it* had been voluntarily rendered; and would accordingly be more rigidly scrutinized by the admiralty judge. Certainly the claim is no stronger because the salvor, promoting it, may have cautiously made a previous agreement ; and perhaps it ought not to be deemed, for that ■ reason only, any weaker ; especially where beneficial and meritorious service had been actually rendered. The essence of this claim is, that it is for a service in its nature substantially maritime, freely and willingly performed, and not done from a sense of duty, but resulting successfully. By disaster, a loss occurs ; and timely aid steps in 88 WHO SALVORS. and recovers the otherwise lost property ; or it may be that property is in imminent peril and danger of being lost, and human enterprise, daring, or nautical skill inter- poses and saves it from actual loss ; in all such cases, the service rendered, vrhen voluntary and successful, is what may be denominated legal salvage service ; and if the service be strictly maritime, or even substantially so, the person performing such service, is, in contempla- tion of law, a salvor ; and as such becomes, with or without contract or previous stipulation, legally entitled to compensation or salvage reward. Thus stated, the doctrine derived from all ancient codes of maritime jurisprudence and modern legislation, as affecting claims for salvage, necessarily prevents and excludes, as a general rule, all those persons from claim- ing as salvors, whose duty, arising from situation, con- tract, or otherwise, it is k) exert themselves to the utmost to save from peril or rescue from loss, while present, either an endangered ship or her loading. For instance, the master, officers, "and seamen of a vessel cannot properly become salvors and be entitled to a claim for salvage, unless it shall be made, at the same time, to appear in admiralty that they have ren- dered extraordinary services; and, by their personal exertions, have gone quite beyond the appropriate line of their duty as master, officers, and seamen. The Blaireau, 2 Cranch, 240; Hobart et al. v. Drogan et al. 10 Pet. 108 ; The Neptune, 1 Hagg. 237 ; The Florence, 20 Eng. L. & Eq. 516 ; and The Warrior, Lush. 476. Passengers, as a general rule, cannot ordinarily be deemed salvors, and as such become entitled to sal- vage recompense, inasmuch as there is a duty incum- bent upon all on board a vessel in imminent danger, to PASSENGEKS SALVOES. 89 exert themselves to their utmost ability, to save the ship, and thereby contribute to their own as well as the spcurity of others. This duty, as well as the dan- ger, is alike common to all on board of the imperilled ship. Park on Insurance, 303 ; McGinnis v. The Steamer Pontiac, Newb. 130, and S. C. 5 McLean, 359. Nevertheless, where a passenger shall have departed from his own sphere and transcended altogether his appropriate line of duty, and, by conspicuous ability, nautical skill, and personal effort, enterprise, or daring superadded, shall have contributed, to save Or rescue an endangered ship or lost cargo ; or has been otherwise instrumental in so doing ; even a passenger may thus become in law a salvor, and entitled to salvage compen- sation. The earlier leading cases are those of Newman V. Walters, 3 Bos. & Pul. 612, and The Two Friends, 1 Eob. 271. The Two Friends was the case of an American ship, taken by the French and afterwards recaptured by the * crew. The rescue was to the advantage of the owners, and the underwriters signally approved the service' by voluntarily giving to the master the very handsome re- ward of £1,250. But the owners intervened in the libel by a passenger, and a question of jurisdiction was raised and argued ; but it was overruled by Sit W. Scott. Some of the crew were British subjects j one on board, a Mr. Miller, was deemed a passenger, but ren- dered valuable service. He paid £270, to buy over some Danish sailors on board ^he French ship, and was " very instrumental in effecting the rescue." To the sailors, American and others, the court awarded £300 each. To Miller, the passenger, the same sum as the under- 9* • 90 PASSENGERS writers had paid the master (^£1,250), with the addition of ^270 paid by him to gain over the Danes, and. £.50 more for personal expenses. The case of Newman v. Walters was heard and de- termined in the Common Pleas Court. Substantially it was a vessel derelict by wreck and not at sea. The facts are fit to be made accessible to the student of admiralty law ; and the principles there enunciated by Lord Alvanley, C. J., and his associates, Messrs. Justices Heath and Rooke, should become famiHar to all practi- tioners, as they have given tone and character to all subsequent adjudications, touching especially the obhga- tions, rights, privileges, and legal staivs generally of the passenger on board ship, in time of peril, arising from wreck, violence of the elements, abandonment by crew, or capture by enemies. The case was decided in 1804 ; and the general facts were as follows. The Ship Betsey, a British ship, struck and stranded on the Chichester Shoals. Her captain and three of her crew escaped in the pinnace. The pilot in charge was drunk. The plain- tiff was but a passenger ; as the case finds, " a free passenger from Gravesend to Saint Kitts ; " as such, he was at liberty to quit at pleasure or stay by the ship ; it was his right, and he might have gone ashore in the pinnace with the deserting master. But he was urged by,the mate and rest of the crew to remain and take charge. He had seen service in the merchant marine as master-mariner, was, therefore, experienced as a navigator, and yielded to the urgent request of those who remained by the ship. He was not, as a passenger, obliged so to do. On his part, it was accordingly optional; and his remaining was a voluntary act, whereby he did more than was required of' him in his AS SAIVOKS. 91 situation aiid capacity of passenger on board ship. His detention, then, was equivalent to a retainer by the only agents of the owners present, after the actual master had escaped in the pinnace. When the plaintiff first took command, the pilot was about to let go the anchor, an act by which the ship would probably have been irrecoverably lost. But the plaintiff Newman, interfered and prevented this error ; thus summarily displacing the pilot; and afterward safely brought the ship into Ramsgate harbor. On landing, the owner promptly recognized his con- duct ; approved all he had done ; applauded his efl&- , ciency and merit ; and, by letter, strongly commended Captain Newman to the liberality of the underwriters : estimating and putting down ^200, as the least sum that should be awarded to the plaintiff" for his effective services. The action, whick was indebitatus assumpsit, was tried before Lord Alvanley, by a jury, who found for the plaintiff" a verdict for dG400. A motion was made for a new trial, on two grounds, substantially: 1. No legal salvage. 2. Excessive dam- ages. The motion was argued by Cockell, Bailey, and Best in favor, and Shepherd and Heywood against it. But the motion, after argument, was refused, and the verdict sustained : the three judges all concurring. The cases cited and commented upon in argument, were The Two Friends, supra; The Joseph Harvey, 1 Ch. Bob. 306, and The Beaver, 3 ibid. 292 ; which to- gether supplemented all the law and authority then ap- plicable to the subject. The Beaver was a case of rescue, by the master and a boy, against five Frenchmen. She was a British ship, 92 PASSENGERS captured by the French. The master knocked down the Frenchman at the helm, took away his pistols, kept the others at bay, and subdued the whole ; and, with the boy, aided by a relief crew from a British man-of-war, safely brought his vessel into an EngUsh port. In the Admiralty Court, Sir William Scott awarded the master and boy ^£1,000 : £850 for master, and £150 for boy; to the twelve seamen from the man-of-war d£500 in all. In The Joseph Harvey, the facts found induced Sir W. Scott to pronounce it an " unpardonable efirontery," to claim for them any salvage merit. The principle, however, was there recognized as a sound general rule of maritime jurisprudence, that a service, which should exceed the usual line or limit of positive duty, may be elevated into a service of merit ; as that pilotage or towage service may become exalted to the grade and rank of a salvage service, and entitled to extra compen- sation, as such. And the same principle is equally applicable, and may rightfully be extended, to agents, passengers, and other persons. Thus, the actual master, rightfiflly in command of an endangered ship, may, at a time of extreme peril, be sick or indisposed; and so unable to perform his proper part; or he may, from excessive alarm and agitation, become physically incompetent to discharge his own*, duty well ; or he may, from inexperience or want of the requisite nerve and resolution, prove to be physically unequal to the trying exigency in which he finds himself and his command suddenly involved : un- der these circumstances, or any of them, if a passenger AS SALVOES. 93 of known experience, personal courage, nautical skill, or other desirajsle qualifications, should assume the com- mand and control of affairs, at others' request or of his own volition, and thereby ultimately through his sub- sequent suggestions, gallantry, personal efforts, or prac- tical ingenuity, contribute to the saving or rescuing of an imperilled vessel, such passenger ought to be deemed a salvor, and as such become legally entitled to salvage remuneration. In the case supposed, the merit would be so marked, that no admiralty court would, in obedience to any mere technical rule, appear to be justified in withholding compensation. To refuse to reward merit so conspicuous, would be incongruous with the primary principles of admiralty law, ignoring the reason and disregarding the policy and spirit which ought to characterize and pervade its proper adminis- tration in courts of admiralty. Bond v. Brig Cora, 2 Wash. C. C. 80 ; S; C. 2 Pet. Adm. 361. In this case, both the district and circuit judge recognized judi- cially, as early as 1806, the merit and claim to salvage service of a Spanish passenger, on board an American vessel, and decreed accordingly. When, therefore, a mere passenger has voluntarily rendered meritorious service, and effectively contributed to the salving of a ship, endangered or derelict, his ser- vice should be adequately rewarded by a remuneration commensurate with its proper value. For when he shall have stepped out of his sphere and gone beyond the appropriate line of his duty, and has voluntarily ren- dered valuable service, which resulted in success, then he becomes legally as well as morally, well entitled to remuneration from those benefited by the service. If passengers contribute to the rescue of a vessel by 94 PASSENGERS recapture, their merit as salvors is duly recognized, and should be suitably rewarded. Even female pas- sengers may render meritorious salvage service. Such was the fact in the case of Clayton et al. v. The Ship Harmony, 1 Pet. Adm. 70. Mrs. Ann CoUett and Miss Esther CoUett were passengers in the Harmony, an American ship, which was captured by a French corvette, and put in charge of a prize crew of three French oJG&cers, with seven other men, and ordered to Rochelle. Two days after the capture, the Americans, seven in number only, including the two ladies, rose and overpowered the French crew, retook the Harmony, and brought her into port. The two lady passengers assisted throughout the enterprise ; one of them, during the last scene of the enterprise, actually taking the helm : and both evincing throughout a firmness of mind, in the critical situation, which was deemed as honorable to them, as was their humanity in attending to the wounded, after the contest was over. Such ser- vice was indeed meritorious ; its merit could not faU to be duly appreciated, and it was handsomely recog- nized by the court: and had these passengers joined in the libel for salvage, a full share of $3,603.41, would have been judicially decreed to them. The principle was declared however, by this author- ity, that even female passengers may be legal salvors ; thus further qualifying the old doctrine, that passen- gers cannot become salvors, though aiding and assist- ing in salvage service ; that being mere matter of duty of a passenger. Also, vide 1 Hagg. 194 ; The Jane and Matilda. But the case of Hamilton E. Towle v. The Steamer Great Eastern, 11 L. T. (N. S.) 516, is more recent ; and AS SALVORS. 95 moreover it is one of singular interest, both for the peculiar merit of the libellant, and the amount of the salvage compensation decreed to him as salvor. In a gale, the steamer's rudder-shaft was broken, and her paddle-wheels disabled. The steamer was herself thrown into the trough of the sea ; labored badlj ; be- came almost hopelessly unmanageable ; and was tempo- rarily utterly helpless. At this juncture, the libellant disclosed a plan of relief, which he had himself con- ceived ; and was permitted, by the master, to cause it, under his superintendence, to be put in execution. By this scheme, which was the application of a newly- devised steering apparatus, extemporized for the occa- sion, the steamer was reHeved from peril, and safely . brought into port. For this service, whether it be called advice, suggestion, invention, ingenuity, informa- tion, or science illustrated on the ocean by practical mechanics, Mr. Towle sued as salvor, was adjudged to be salvor, and rewarded as such. For this meritorious service the court decreed to the libellant, as salvage, the liberal sum of $15,000. The service rendered was extraordinary, ptoffered at a time of extreme peril, when the ordinary maritime manoeuvres and nautical expedients of seamen present had proved unavailing ; the naval engineer and naviga- tors were baffled ; but the civil and practical engineer was successful. And therefore upon principle, prece- dent, and policy, the law commended Mr. Towle's claim to the court's favor. Thus it has been seen that passengers can justly become salvors ; and the old dogma "to the contrary, once so restrictive and exclusive, is constantly being relaxed hy modern legislation or recent judicial de- 96 PILOTS AS SALVORS. cisions. This rule, like that declaring freight to be the mother of wages, is gradually being extended and becoming more flexible; and like that, it must ulti- mately yield to the advance of sound jurisprudence and modern civilization, as do other ancient doctrines or technical fictions, which formerly discredited the ad- miralty law and its administration. In England they are legislated ; in the United States, they are adjudi- cated, out of the maritime law and continued legal ex- istence. PiMs also may become salvors, in cases of distress ; or under peculiar and extraordinary circumstances. Generally, however, their services are strictly profes- sional, and within the line of their ordinary duty. While this is the case, they must as a class be content with the usual pilotage compensation, prescribed by the Pilot Commissioners or the Legislature. But there are occasions when pilotage, like towage service, may be justly exalted into a salvage service. If pilots, in a time of peril or distress, perform unusual maritime ser- vice, out of the sphere of their profession and beyond their line of duty, which shall have contributed to the ultimate salving of property imperilled, then it is but right, in admiralty, that they should be classed legally among salvors and rewarded as such. When so remu- nerated, it is immaterial whether such compensation be denominated extra pilotage or salvage. The more rational way of dealing with it, however, would seem to be, to designate it as salvage reward, or salvage in lieu of or in addition to pilotage. Whatever may have been the old rule or" former practice, the modern doctrine that a pilot, stepping outside of his profession, and per- forming voluntarily a service beyond the line of his SEAMEN AS SALVORS. 97 professional duty, may be treated judicially as a salvor, is fully, sustained by the authorities usually cited and relied upon. Vide The City of Edinburgh, 3 Hagg. 333 ; Hand v. Elvira, Gilpin, 60 ; Hobart et al. v. Drogan et al. 10 Pet. 108. So seamen may, in certain contingencies, become salvors of their own as well as other vessels. While, indeed, under a continuing contract, and in the cus- tomary discharge of his stipulated duty, which requires him to do his utmost for the navigation and preserva- tion of his own vessel, to which he owes allegiance, a seaman is not to be deemed capable of acquiring the character of salvor and so entitled to salvage compen- sation. But when, by a termination of the mariner's contract, practical or theoretical, actual or constructive, a seaman is deserted and left solitary and alone, and with his consent, as Toole in the Blaireau,. or without his consent, as was Knowlton's case in the Triumph (1 Sprague, 428) ; or where a mariner by his shipmates is abandoned, but with the master's consent or order, at all events, the crew following the master's 'example, it would seem that a seaman, in such situation, ought not to be excluded from salvage reward, if he shall have really performed a salvage service. The John Perkins, in 21 Law Eep. 87 ; S. C. 19 ibid. 99. In all its varied aspects, the Admiralty Court, without a servile devotion to any technical rule, should exercise a sound judicial discretion, in weighing the facts and estimating the value and merit of any service rendered under so peril- ous a predicament. Toole's service in the Blaireau, and Knowlton's in the Triumph, was to their own vessel ; Nickerson's may possibly have been beneficial to both his own and another's vessel. 9 98 SEAMEN And if the court be not prohibited by some express, inflexible, and well-established rule of maritime law, it should generally endeavor to do some justice, as did Judge Ware toward one of the crew of the Wyvern for contributing, accidentally or providentially, to the ulti- mate safety of the John Perkins, (19 Law Rep.). Hence the reversal by the Circuit Court of this decree of the District Court has ever seemed to have been made in obedience to a harsh technical rule, and, ex industria, to uphold that rule, without quahfication. It was followed too closely and adhered to too te- naciously. As it now stands, however, the decision must still be deemed an authority ; though not withoiit the possible chance of a reexamination at least, if not some substantial modification or qualification of the Circuit Court's adjudication or opinion. For three dismal days, the deserted, if not disheart- ened seaman, Nickerson, remained in gloomy solitude, by the Wyvern, while embedded in ice, on a bleak coast, unaided by his shipmates and without orders from his commander'; during that trying period, he performed acts alleged and once adjudged to have been bene- ficial to another vessel, the John Perkins. These acts may have saved that other vessel from possible destruc- tion ; upon this hypothesis, at any rate, the case was heard and determined. Assuming such to be the fact, might not these acts, like the conduct of Toole and Knowlton, have supplemental merit ? If so, they would ' present a similar claim, in fact and principle, to judicial recognition and appreciation in admiralty. Dr. Lush- ington concluded that " an abandonment at sea does vacate the contract." In The Florence, 20 Eng. L. & Eq. Rep. 613, he said : "The true question is, whether AS SALVOES. 99 there was a vis major of so permanent a character as to dissolve the contract; permanent, according to all human probability, for the lav? never can depend upon mere possibilities." " The contract with the mariners was then at an end — not suspended, but terminated." An abandonment by the master, in apprehension of danger and to save life, is justifiable because necessary. And such an act, done lond fide, not only suspends but terminates the mariner's contract ; and once terminated, nothing but a fresh agreement can properly resuscitate it. In the same case (p. 614), the court say that "if capture alone puts an end to a contract, which appears to have been the leaning of Lord Stowell, then, a fortiori, aban- donment ex necessitate would do so." And every aban- donment by a master should be presumed to be a necessary abandonment, and, it would seem, whether at sea or on the coast, though there is an admitted dis- tinction. Had the master's temporary separation from the Wyvern proved permanent, though the master may have been justified, the seaman would have been ap- plauded. Even if bound by contract to the Wyvern, the seaman was not so bound to the John Perkins, and if the owners of the one might avail themselves of this plea, the owners of the other vessel surely could not ; for there was no subsisting contract between them and Nickerson, the seaman. Was he, then, rightfully excluded from asserting a salvage claim against the latter, merely because he may have owed allegiance to the vessel of the former, under a possibly continuing and subsisting contract with them as owners of the Wyvern ? It really appears, that this precise technical rule was 100 AGENTS AND OTHERS AS SALVORS. in the John Perkins pushed by the court to an extreme ; and the decision seems hardly in harmony with the primary principles of the admiralty, or with that liberal and indulgent spirit, in which admiralty law should usually be administered. Judge Story would digress in the discussion, and go out of his way to seek to solace or sustain his "wards or favorites in admi- ralty." The main purpose in administering this special branch of jurisprudence is or should be to do right, and tolerate no wrong ; in other words, to do justice firmly but fairly. Its administration should be conducted with tenderness toward the mariner, courage toward the master or merchant, but with fidelity and justice toward aU who sue for its protection, or challenge its penalties. In this spirit, in 1 Spinks, 17, The Medora, Dr. Lush- ington, following the example of his three immediate predecessors in ofl&ce, stated that the true rule and cor- rect practice was " to get at the truth ; " while in Dexter V. Munroe, 2 Sprague, 39, Judge Sprague says, " admi- ralty is not restrained from doing substantial justice by mere forms or technicalities," but that it has power by its process " to do complete justice" to all parties. These two conspicuous admiralty magistrates, like Lord Stowell, signally displayed, during their long judi- cial careers, those high qualities which often only long experience can confer and develop; and which, with culture, candor, courtesy, and courage on the bench, contribute to create, exemplify, and illustrate the char- acter of a model administrator of admiralty law. Others also may be salvors, as agents and magis- trates under extraordinary circumstances ; or persons giving information or advice, if contributing to any beneficial result. But no cases of leading importance OWNERS AS SALVOES. - -" 101 ■■'■( V' are reported unless that already cited of Towfe V. T^^i: Great Eastern, 11 L. T. (N. S.) 516. It remains now to recur to the status of ship-owners in salvage cases. Good sense, good principle, sound law, and true policy all concur in recognizing owners as per- sons having a standing in court, and fit persons to be made parties in claims for salvage, though formerly it was otherwise. Having enumerated pretty fully the dif- ferent kinds of personal merit which entitle persons on shipboard to successfully assert their claims to salvage^ recompense, it remains to recur to the general doctrines of the maritime, and perhaps insurance law, which un- derlie and sustain the claim of ship-owners to salvage remuneration. I refer to insurance law, because the owner's property may be jeoparded by deviation, actual or constructive ; if not justified, a deviation, by vacating the policy, might work a possible forfeiture of insurance and subject the owner to a total loss. I am aware that deviation, for some purposes, is both excusable and justifiable. Thus, turnulg aside to suc- cor distress or save life is a humane act, to be justified and encouraged by the law and court ; and should be classed among meritorious salvage acts. A ship at sea is under the exclusive charge of the master, and beyond the control of the owners. As the owner's accredited agent, the master may legally deviate to help, aid, suc- cor or relieve those in distress, even though, by such act, he may possibly risk the owner's insurance. Devia- tion, as matter stricti juris, is not generally permissible. If, therefore, it be right to deviate for relief at any time, it is an exception to the general rule, and so probat regulam. This rule is substantially stated in sev- eral authorities : The Vine, 2 Hagg. 2 ; The Salacia, ibid. 9* 102 OWNERS 264 ; The Jane, ibid. 343 ; and The Martha, 3 ibid. 436 ; and together sustain the following propositions : — Parties, not personally and actively engaged in eflfecfc- ing a salvage service, were not formerly entitled to par- ticipate in a salvage recompense. The Vine, supra. But for actual losses sustained, as for supplying sails, or furnishing stores to ships or crews in distress, owners may be remunerated. The Baltimore, 2 Dods. 138. So, for diversion from employment ; or experiencing special mischief; or inconvenience occasioned by devia- tion. The Vine, supra. So, by incurring loss, with consequential risk, by detention, damage, or expense, owner's claim for remu- neration may be well founded. The Jane, supra; And for services rendered, but attended with risk to owner's property, the owners of a salving ship may be allotted a portion of the salvage awarded. The Salacia, supra. And here, I think, occurs, for the first time, the desig- nation of a salving ship. But, in TheBlendenhaU, 1 Dods. 417, owners were judicially deemed to possess sufficient interest to have a hcus standi for the purpose of opposing a claim of a joint salvor; and, finally, in the case of The Haidee, 1 Notes of Cases, 598, the owner of a salving vessel was considered a not unfit person to originate a suit for salvage. This brief preliminary view of the law and earlier authorities readily and naturally conducts the student to the general investigation and consideration of the problem, under what circumstances and to what extent owners as such may be treated as constructive, actual, and meritorious salvors. And to that investigation and discussion, under the more recent authorities, I shall next invite attention. AS SALVOKS. 103 All the authorities, whether of long standing, as The Vine and Branston, 2 Hagg. 3, n., or of a more ^recent date, will be referred to, at the hazard of being deemed by the critical reader slightly prolix ; and perhaps un- necessarily so. But such is the interest and impor- tance which surrounds this particular subject of inquiry in admiralty or rather branch of admiralty jurispru- dence, af the present time, that a full examination of it does not appear to be superfluous. About one tenth part of the 644 salvage awards col- lected in Pritchard's Digest, are to owners and vessels, boats, tugs, and steamers. As I have estimated it, about thirty-five cases recognize owners as salvors, and twenty- five the vessels themselves. That is to say, some judg- menls and decrees for distribution disregard the old rule as stated in the Vine [supra), that efiective personal service is to be rendered for salving property or assist- ing persons in distress by other living human beings present on the spot, or at the scene of danger. The owner and his ship do nof come within this cat- egory ; and therefore, to become salvors entitled to salvage reward, it must be by reason of an exception to the rule. Under this exception, owners are deemed construc- tively to take the place and share with others, in sal- vage awards, according to their relative merit by hazard to their insured property. The elements of their merit and claim will abun- dantly appear by the cases hereafter referred to, and commented upon. The doctrines extracted from them cannot fail to commend themselves to the great and growing interests of all mercantile men in our various commercial communities. 104 ■ OWNERS In The Thetis, 3 Hagg. 62, £17,000 was first awardedj but upon appeal, the Privy Council added £12,000, making the final award amount to £29,000. This is the greatest amount, awarded as salvage, in any known reported case. In The Beulah, 1 "W. Kob. 477, the salvage awarded was £500, of which £415 was fijr the owners. In The Waterloo, 2 Dods. 443, whole award £4,000, owners £2,000 of it. In The Hope, 3 Hagg. 423, awarded by ' court £2,000, to owners £850. The Helen, 3 Hagg. 430, n., £1,300, to owners one half, £650. The Deveron, 1 W. Kob. 180, £1,600, owners £700. The Carolina, ibid. 124, £18,000, for owners one third, £600. The How- ard, 3 Hagg. 256, £2,000, owners one half, or £1,000; and in The Earl Grey, 3 Hagg. 364, £900, owners £450; and these authorities, with others to be cited, plainly indicate the estimation in which owners of tugs or tow- boats, steamers or saiUng- vessels, are likely, in future, to be held by magistrates presiding in admiralty courts. The most recent authority, The Golondrina, reported 1 Adm. & Eccl. Rep. 334, is not only significant but decisive of the principles applicable to the status and merit of owners. There the whole salvage allowed was £1,800, the owners share £1,000 ; the proportion dis- tributed to the owner being much greater than in any previously cited case, except that of the Beulah, supra. Owners, therefore, when their vessels happen to be employed for salving purposes, may justly become en- titled to share in salvage awards ; and, when so enti- tled, their proportion should be measured by the risk run, and intrinsic merit of the service rendered by their vessel. In the time of sailing-vessels, the rate allowed to AS SALVORS. 105 owners was, as a general if not universal rule, one third part of the salvage awarded. But since Fulton's suc- cessful application of that mysterious power, steam, as an agent in propelling vessels up rivers and across the ocean, the admiralty courts have steadily recognized the superior merit of large steamers, and awarded rec- ompense accordingly in a marked and emphatic manner. Lord Stowell led the way in such recognition ; and for such service, the steamers Monarch, Solway, Jasper, Alhambra, and others have since been the subjects, and their owners the recipients, of liberal remuneration by admiralty and quasi admiralty tribunals, in England and the United States. In enumerating, therefore, all who may rightfully be designated as salvors, the classification would be imper- fect, unless it should also contain the names of owners, as possible salvors, when their property shall have been risked and employed, meritoriously, for salving the property of others. So it is required by recent decis- ions and modern usage ; and the rule is entirely con- sonant with the now established practice in admiralty courts. Theoretically, according to the old text-writers, the mariner is the real legitimate salvor. Nevertheless, experience has taught us that there are occasions when an owner's property in shipping may not only be a potential agent, but an indispensable instrument, in se- curing and saving the property of another, or rescuing the crew of a stranger vessel. And when this happens, it is but just that the owner whose ship is so hazarded, should share in the distribution of the salved property, and, as co-salvor with the crew, largely participate in the salvage awarded. 106 OWNERS By the maritime law, a master is permitted so to em ploy his owner's vessel ; and at the treble risk of losing his owner's ship, cargo, and insurance also, by reason of such deviation for salvage purposes. In such cases, it is good policy to reward liberally ; and this policy is favored in admiralty courts ; for the greater the remuneration, the greater wiU be the en- couragement given to merchants, for furnishing masters with fitting instructions, in behalf of humanity. Chris- tian charity, and civilization. The merit of the mariner is no less, because the mer- chant's reward appears relatively greater. And though, by judicially decreeing to the latter a discretionary amount, or an aliquot part of the salvage awarded, it may seem to abstract somewhat from the mariner's in- dividual share, yet in reality, the compensation of all may be much increased, rather than diminished, by ad- hering to this recognized rule and practice. Moreover, the law encourages and adopts it as good policy ; inasmuch as it furnishes worthy incentives to both merchant and mariner; stimulating the one to give broad and liberal instructions to his master; and the other to make the utmost personal exertion for the salvation of life and property, when at hazard. The peculiar merit of a salving steam-vessel (or its owner), is, that the salving crew is enabled to go quicker and nearer to the scene of danger ; be more sure of recovering from loss or rescuing from danger ; and, withal, perform the service more efficiently and with less danger to themselves personally. It is not then singular at all that the admiralty courts should award to the owners of salving steamers a liberal proportion of the salvage decreed, as good policy. AS SALVOES. 107 The rate has fluctuated and varied according to cir- cumstances. Formerly the rule was inflexible, and seldom departed from, to allow the owners of salving sailing-vessels one third. And this rule is supposed to have been acted upon in the early American cases of The Mary Ford (3 Dall. 188), and The Blaireau, (2 Cranch, 256). But since the application of steam as a motive power, and the consequent construction of large steam- ers for transporting property and passengers, the old rule ceased to be inflexible ; is now materially relaxed, and has gradually become obsolete j so that the rate of salvage, generally, is much enhanced both in England and the United States. ■ As has been stated. Lord Stowell first judicially scanned and admitted the superior merit of large steamers over wrecking and the ordinary tug boats; and in The Earl Grey (3 Hagg. 363), first innovated upon the then existing rule by awarding, to the owners of the steamer Monarch, more than one third of the salvage. A like relaxation and modification of the rule" is perceptible in The Raikes, 1 Hagg. 245 (1824)3 The Beulah, 1 W. Bob. 477 ; The William Beckford, 3 Ch. R.355; The Albion, 3 Hagg 254 (1835) ; The Graces, 2 W. R 294 (1844); The Haidee, 1 Notes of Cases, 598 (1842); The Medora, 5 ibid. 294 (1845); The Al- fin, Swab. 193 (1857); The Kinglock, 1 Spinks, 267 (1864); and the American cases, 3 Dall. 188, 2 Cr, 256; Brig Cora, 2 Wash. C. C. 80 (1827); The Henry Ewbank, 1 Sum. 400 ; 1 Am. L. Reg. 554, The Wil- liam Penn ; and in the still more recent case of The C. W. Ring, in 2 Am. L. Rev. 259. In the Earl Grey, Lord Stowell allowed the owners 108 OWNERS. one half for their proportion ; in the "William Penn, Mr. Justice Wayne allowed about five seventhi3 ; and in the C. W. Wing, the owners were allowed three fifths of the awarded salvage. Having cited the Mary Ford, otherwise McDonough V, Danery, as an early illustration and authority of the one-third rule, it is proper to state that case more fully, in order more correctly to appreciate its value as an authority. As I understand the report, the case was manifestly a mis-trial in the District Court. Substan- tially the facts are, that the Mary Ford, a British ship, was captured in 1794, by the fleet of Commodore Vil Manderine, under the French Republic, in mid-ocean, where she was abandoned by the captors the day after the capture ; and in that situation was fallen in with by the American ship George, manned out by part of the American crew, and brought safely into Boston har- bor; there libelled in the District Court by William Foster and others in behalf of the owners and crew of the George; ship and cargo sold, by consent of parties, at an excess of $8,241.43 over the appraisement of $35,986.27; and the whole proceeds of the sale, $44,- 227.70, less costs and charges, held to abide the decision and award in behalf of the finders and intervening claimants. The resident British Consul, Thomas Mc- Donough, intervened for the British owners ; and T. B. Thomas Danery intervened for the captors, as resident consul of the French Eepublic ; McDonough and Danery thus being the nominal parties. The District Judge, John Lowell, allowed as salvage for all the libellants one third part of the gross pro- ceeds ; and two thirds of the salvage was awarded to the owners ; but did not make any decree as to the resi- OWNERS. 109 due, except that it was to remain for British owners or others deriving right thereto. An appeal was claimed to the Circuit Court by the French consul Danery, there heard, and Mr. Justice Gushing gave judgment in favor of the French Kepublic and those concerned in the capture. And by appeal, the case was carried up to the United States Supreme Court, there argued for the British owners and French captors ; but no one appeared for the original libellants, the owners and crew of the sal- ving ship. In the Appellate Court, it was substantially determined that the British owners were divested, by capture, of their property and rights in the ship ; that the captors had sufficient firm possession of their prize ; but afterward voluntarily abandoned the Mary Ford, leaving her a derelict ship at sea ; that ,the district judge, having rightfully exercised jurisdiction of sal- vage, might, with equal propriety, have adjudicated upon the residue, and awarded it, in whole or part, to the libellants. But the owners and crew, not having formally appealed, they were not strictly before the Appellate Court as parties. Wherefore, the Supreme Court declined to disturb the decree, or change the pro- portion or award in any respect ; but strongly intimated, however, that no right revived by postliminy to the British owners, in consequence of the abandonment by the captors, because there was no recapture. The brief opinion of the court was as follows : — By the Court. We are all unanimously of opinion the District Court had jurisdiction upon the subject of salvage ; and that, consequently, they (it) must have power of determining to whom the residue of the property ought to be delivered. 10 110 OWNERS.' " In determining the question of property, we think, that immediately on the capture, the captors acquired such a right as no neutral nation could justly impugn or destroy ; and, consequently, we cannot say, that the abandonment of the Mary Ford, under the circum- stances of the case, revived or restored the interest of the original British owners. " Some doubts have been entertained by the court, whether, on the principles of an abandonment by the French possessors, the whole property ought not to have been decreed to the American libellants ; or, at least, a greater portion of it, by way of salvage ; but, as they have not appealed from the decision of the infe- rior court, we cannot now take notice of their interest in the cause. " Upon the whole, let the decree be affirmed." By an inspection of the original record it appears that the owners really received two thirds of the amQunt awarded as salvage. The case, therefore, of McDonough V. Danery is not and ought not to be cited as an au- thority for the old rule of awarding to the owners one third of the salvage reward for their ship's claim and service. But the conceded claim of owners to share in sal- vage, at the present day, is established by a series of cases, many of which have already been referred to and others wiU be cited hereafter. In 1844, Dr. Lushington, in delivering his judgment in the Graces, said : " To render assistance to vessels in distress is an ingredient in awarding remuneration." In 1857, in the Alfen, the same judge looked with favor upon steamers salving vessels aground, because of the celerity and efficiency with which the service is performedv OWNERS. Ill In 1864, the same experienced judge in admiralty declared in the Kinglock : " The principle I have always endeavored to follow is this, that where steamers render salvage service they are entitled to a greater reward than other set of salvors, who render the same service ; and for this plain reason : in consequence of the power they possess, they can perform such services with infi- nitely greater celerity than any other vessels, with infinitely greater safety to the vessel in danger, and frequently under circumstances in which no other assistance could by possibility prevail." Thus, by a process called by the civilians a species of novation, the claim of owners, in behalf of their ship when employed in salvage service, is delegated, subro- gated or substituted for what might otherwise be the claim of an active, living, and volunteering crew, who personally incurred the peril and contributed to or participated in the exertions and service requisite to constitute them legal salvors and entitle them to sal- vage remuneration. This is not only technically a sound principle, but it will be seen by the authorities cited, that the principle is now incontestably the established law in admiralty, by the courts of England and the United States. In the Norden (1 Spinks, 185), it was held that smacksmen, like steamers, may become salvors. In the ColUer (1 Adm. & Eccl. Eep. 83), that an owner of a salving steamship, though also charterer of a salved sailing-ship, was not barred by the fact that owner and charterer were one and the same persons. In the Elizabeth and Jane (Ware, 39-40), in a de- cree of salvage, the captain, who was also owner of the Merit, was awarded his share as master, and also his share as owner. 112 NATUKE OF SALVAGE. From what has already been stated in this treatise upon the status, merit, and rights of owners in admiralty, where their own property has been placed at hazard, for the purpose of salving the property of others, may readily be gathered what may be the legal grounds of their claim to salvage ; and under what circum- stances the quantum should be augmented or diminished by the Admiralty Court, in awarding salvage or decree- ing its distribution. Judges should ever bear in mind that the policy of the law is to Stimulate and encourage others to engage readily in rendering salvage services. It may be useful^ therefore, to examine to some ex- tent the nature of salvage as a contract, on leaving the subject of owners and their rights and privileges. The nature of salvage, as a contract, is discussed in 1 Story, 314, 340 Pigs of Copper. In meritorious cases, it is deemed good policy to award a liberal sal- vage recompense. It is just as well as politic, in salvage suits, to so administer the law, as to encourage others to make exertions, and render voluntarily, at the proper timiB, such needed salvage service as may be likely to prove useful, and contribute to the ultimate security of life and property. Admiralty courts, therefore, acting upon this policy, generally reward liberally, in order to induce persons, in a situation to become salvors, to tender and render, in time of wreck or distress, such assistance opportunely. So doing, they may not only beneficially affect commerce and the shipping interest generally, but may. also efficiently contribute to the preservation of human life. And since the enactment of the Merchant Shipping Act, in England, it has become, since 1854, the duty of LIFE SALVAGE. 113 the Admiralty Court to give a corresponding revrard for the salvation of life and salvage of property. The Bartley, Swab. 199, ibid. 205 ; The Coromandel, Lush. 81; The Eastern Monarch, ibid. 182; The Johannes, Brown, and Lush. 306 ; The Pensacola, ibid. 341 ; The Fusilier, 10 L. T. ( N. S.) 699. Mere good intentions, or wishes, however expressed but not acted upon, are utterly insufficient to sustain a claim for salvage. Not only must an expressed intent or wish be acceptable and welcome ; but it should be accompanied and followed up by some cor- responding effort, producing a beneficial result. Thus the subsequent act may render the former expression meritorious. In plain terms, property endangered must be actually rescued from impending peril ; or, if lost, must be recovered by a salvor's agency, for the owner's benefit ; such agency being attended with some per- sonal danger, voluntarily incurred. 4 Wash. C. C. 651, Brig Dodge ; Newb. 421, T. P. Leathers. And it would not be an unapt definition of salvage service to say, that it consisted in securing property from' probable marine loss ; or recovering it from actual present loss, from perils of the sea, for its owner, with hazard to the salvor. Olcott, 462, The John "Wurtz. There may be two sets of salvors; called first and second salvors. If, therefore, one set of salvors, while performing a salvage service, themselves fall into distress, and are relieved by another set of salvors, the first salvors do not lose their right to salvage; but the second salvors are permitted to participate with the first, according to their several merits. To require the original salvors to relinquish all claim to salvage, before the second set of salvors give the necessary assistance, 10* 114 FIRST AND SECOND SALVORS would be imposing an inadmissible condition, which in admiralty should be judicially disregarded. The Henry Ewbank, 1 Sum. 400 ; The E. U., 1 Spinks, 63 ; The Undaunted, Lush. 92; The Samuel, 4 Eng.L. & Eq. 581. Where one set of salvors have possession of, and are striving to bring into port and save, an abandoned ves- sel, another set are not permitted to interfere and partake of the salvage, unless the first set of salvors appear to be unable to effect the saving without the aid of the second salvors. 1 Gilp. 60, Hand v. Elvira. It is in consonance with the established principles of maritime law, to hold those entitled to be regarded as meritorious salvors, who begin the salvage service and are in the successful prosecution of it. It may be stated, generally, that parties taking pos- session, have a right to retain it until the salvage is completed ; and no other person has the right to inter- fere with them, provided they are able to eflfect the sal- vage, and are conducting the business with fidelity and vigor. Olcott, 77, The John Gilpin. An indispensable ingredient of a salvage claim is that the service rendered has contributed immediately to the rescue or preservation of property in peril at sea. The title of salvor arises fii-om -actual possession of property in peril, with power to save it, and the actual employment of means to that end. Notorious possession, with the avowal of the object of such possession, are cardinal requisites to the creation or maintenance of the privileges of a salvor • and where they do not exist, any other person may take the property with all the advantages of the first finder. Olcott, 462, The John Wurtz. AND THEIR RELATIVE RIGHTS. 115 Such is the clear policy of the law. It rewards hb- erally a meritorious salvor ; but it counts first in the order of his meritorious acts, a prompt use of sufficient means, both in getting at property needing relief, and abiding with it till its salvage is completed. The value of such services is enhanced, and their compensation augmented proportionally to the danger and loss to the salvor attending such exertions, and their benefit to the owner. Olcott, 462, The John "Wurtz. And while salvors are engaged as such, they are legally entitled to the sole possession of the property to be salved. If others interfere, such interference is a wrongful interruption ; even if done by those who com- plete the salvage and bring in the salved property. 1 Dods. 417, The Blendenhall; 2 Hagg. 361, The Car- lottaj Edwards, 175, The Maria; 3 Hagg, 243, The Queen Mab ; ibid. 167, The Eflfort. Original salvors in possession have a qualified prop- erty in the salved property. Courts guard with jealousy these rights, and uphold them. Legal dispossession without cause is impossible. Vide also, 1 W. Rob. 410, The India; 3 Hagg. 160, The Eugene Bourne; 2 W. Eob. 306, The Glasgow Packet; and 3 Hagg. 385, The Dantsic Packet. Under extraordinary circumstances, then, it is plain, that salvage services may contingently be rendered by officers, seamen, pilots, passengers of either sex, agents, magistrates, engineers, and even by the master on board of the ship imperilled, or which has perished by sea- peril or " cum vi verdmrum." The ordinary claims of salvors give rise to no contro- versy about their right, or even merit, except so far as it may supply a mode or means of fixing the quantum. 116 FUNCTIONS OF COURT But in extraordinary claims, then, the primary question is the salvor's right; that being settled, then a contest arises to ascertain the degree of merit, and finally to determine the quanium of salvage to be allowed. It is equitable that the award should be reasonable. In mili- tary salvage cases, the quanium is an aliquot part, limited in different countries by some statutable provision. In civil salvage causes, what shall be awarded is a matter of judicial discretion, varying according to the recog- nized principles of the general maritime law, and not fixed by any prescribed municipal regulation. In administering this law, it is alike the privilege and province of a judge in admiralty to pronounce judgment in behalf of substantial justice, or in defer- ence and obedience to the well-known principles and precepts of maritime law. The function of drawing the precise line where sal- vage service begins and contract duty ends, in the case of seamen, is not always easily performed. It is often quite difBcult and embarrassing even for those possess- ing the highest capacity for the judicial ofiice. In investigating the marine rights and settling the legal staim of mariners and merchants, mere learning will not alone suffice, but something more is requisite. There should be superadded also a predisposition to do right for the sake of the right and do justice for justice's sake. Accordingly, the fixing of the quantum of com- pensation, in civil salvage cases, is left unreservedly to the court's discretion, unrestricted by any statutable limit. The court are, therefore, at liberty to award a larger or less sum, as the facts may justify or circum- stances seem to require. An asserted salvage service, at first, may appear to OVER salvor's rights. 117 he devoid of every ingredient and quality of salvage merit ; approximating so nearly to the performance of stipulated duty under a contract obligation, that it may be next to impossible to discriminate the one from the other with precision. Thus a towage service may be so near akin to a salvage service as to embarrass any court; and it has, elsewhere, been already stated that a pilotage may be elevated to the rank of a salvage ser- vice. Admiralty courts, therefore, are wisely clothed with discretionary powers ; and, together with legisla- tors, are constantly modifying for the sake of ameliorat- , ing certain antiquated dogmas of the general maritime law. In cases of derelict, distress, and shipwreck, fragments are now held subject to lien for payment of wages, even if freight be not earned. The remains of a wreck, or fragments rescued in derelict, should be sold ; when sold, the proceeds should be held to constitute a fund to be applied first to the discharge of the mariner's lien for wages. Grave doubts have been entertained and expressed by high authority as to the proper designa- tion of this compensation. Whether it should be sal- vage, wages, or qtiasi salvage, or wages in the nature of salvage, or wages paid under an exception to the rvile, or generally guanium meruit, pro opere et labore. In this ■uncertain state of shifting and conflicting opinions and oscillating decisions, it was long doubtful what would and should ultimately be its " true designation." Kent, Story, StoweU, and Judge Ware all seemingly differed. In the Neptune (1 Hagg. 227), which was a shipwreck with fragments saved, Lord StoweU upheld a suit for wages, eo nomine ; but stated it to be " an exception" to the rule making wages dependent upon the earning of 118 seaman's right to remnants, freight. Kent calls it " rather a claim for salvage," but misnamed wages (3 Kent, Com. 196). In the Two Cath- arines (2 Mason, 334), Judge Story says, " the claim for wages is fully supported by maritime policy." But, in the Massasoit (1844, 1 Sprague, 97), which was a case of shipwreck and abandonment, but with remnants saved. Judge Sprague says, " we may give its true des- ignation, — wages as such are recoverable." And this decision Kent, in a note (3 Com., p. 251), pronounced to be " a startling violation of a principle of maritime policy." Hitherto the decision has remained unshaken ; and the courts have not appeared to be greatly startled. On the contrary, the legislators of the British Parha- ment promptly proceeded pari passu, with an American district judge, by formally abrogating all law which required the payment of wages to be thereafter de- pendent upon the earning of freight. After its abrogation in England (1845), Judge Betts, in Davis v. Leslie (Abbott, 130), denounced the rule as an antiquated " figment," often " oppressively enforced against seamen." There has been great incongruity in the courts in striving on the one hand to uphold this old axiom in its entirety; on the other, in struggling to so qualify it as to render it easy to conform to it according to circumstances. Before England legislated, or Dana, arguendo in the Niphon's Crew, (7 Law Rep. p. 266), predicted its extinc- tion, the old dogma was judicially extinguished by Judge Sprague ; he, unlike others, not having " the fear of it before his eyes." He could not " propitiate it by a misnomer ; " and would not call wages salvage ; but asserted that " wages are the legitimate offspring of the mariner's contract united with performance." THOrOH FREIGHT BE NOT EARNED. 119 The maxim has worked mischief enough already, and should have expired before British legislation, in 1845, pressed the life out of it. C. J. Kent, in Den- nett V. Tomhagan (3 Johns. 156), could and should have performed its final office, and not left it for Judge Sprague. The axiom, though quaint, is not and never was true. The mariner contracts to perform ; and performance, according to stipulation, generates his title to wages. He does not stipulate to insure freight; that would neither be within his province or power. It lies exclu- sively within the control of the owner to secure freight or risk its loss. Thus in the Saratoga (2 Gall. 175), Mr. Justice Story says : " If the voyage or freight be lost by the negligence, fraud, or misconduct of the owner or mas- ter, or be voluntarily abandoned by them ; if the owner have contracted for freight upon terms or con- tingencies, differing from the general rules of maritime law ; or if he have chartered his ship to take freight at a foreign port, and none is to be earned on the outward voyage ; in all these cases, the mariners are entitled to wages, notwithstanding no freight has been earned." And in the Neptune (1 Hagg. 227), the Lady Dur- ham (3 ibid. 196); and Sidney Cove (2 Dods. 13); it was held substantially, that though in shipwreck the cargo be lost, still if the proceeds from a sale of the fragments were sufficient to cover wages, the mariner was entitled to be paid. Vide also the Keliance (2 W. Eob. 119). It therefore appears, that the opinions of legal minds have been quite fluctuating and even antagonistic, in regard to the soundness of the maxim, that freight is 120 OLD MAXIM OBSOLETE. the mother of wages. Lord Stowell and Mr. Justice Story deliberately question its soundness ; Judge Betts denounces it as an " old figment," oppressive to the seaman ; and Judge Sprague (obtorto coUo), like ti strong man and great magistrate, grapples with the maxim itself in 1814, and tramples upon it. And his opinion preceded the enactment of ch. 112, 7 & 8 Vict., by § 17 of which it was enacted, that seamen of vessels wrecked or lost may earn and recover wages, though no freight be earned. By sections 182 and 183 of the Merchant Shipping Act, passed in 1854 (cited as ch. 104, 17 & 18 Vict.), aU agreements with seamen signing away their rights were declared' null ; and their claims to recover w§.ges were no longer dependent upon the contingency of earning freight. In England, therefore, the obnoxious, and, as Judge Betts called it, " oppressive," dogma is now superseded and ameliorated by legislation. And a similar course might be wisely pursued by the Congress of the United States, unless the adjudged cases, already referred to, practically render such American legislation superfluous. Having been so often disclaimed or disavowed, as a portion of the condensed good sense of maritime law, it may be supererogatory to further denounce it as a fancy or "figment;" and therefore the maxim may safely be left to the courts or Congress, to become ultimately obsolete in the one, or supplemented with new legislation in the other. The authorities to uphold the controverted rule are : 1 Pet. Adm. 48, The Cato; ibid. 79, The Harmony j ibid. 204, The Cynthia; 2 ibid. 424, The Catharine Ma- ria; 2 Mason, 319, The Two Catharines; Gilpin, 77, The SALVAGE OE WAGES. 121 Sophia; ibid. 188, The Hercules; 3 Mass. 563, Froth- ingham v. Prince ; 5 ibid. 253, Coffin v. Storer ; 3 Johns. 156, Dunnett v. Tomhagen ; and 3 Kent, Com. 195, d seq. Authorities not yet cited, and not upholding it, beside The Massasoit, supra, are The America, Newb. 195 ; The John Taylor, ibid. 341; The Wave, 2 Paine, 131; The Dawn, Davies, 121 ; Reed v. Hussy, Bl. & Howl. 523 ; The Eeliance, supra, and the Holder Borden, 1 Sprague, 144. This last case is one of singular interest in its main features. The Holder Borden was a whale-ship belong- ing to Fall Eiver. She was commanded by J. J. Pell. In the Indian Ocean, the ship struck upon a coral reef) not designated on any chart ; but in sight, however, of a low sand island, and many miles distant from any inhabited land. Such was her situation, that rescue seemed to be hopeless, and recovery of ship or cargo impossible. Captain Pell, however, on the reef, formed his only plan of ultimate safety : which was to con- struct on the island a schooner craft from the materials to be saved from the stranded ship. By means of these remnants, and the structure formed from them, he hoped to secure his ship's company, and such por- tions of the cargo and oil, as might prove to be practi- cable. After months of time, toil, and perseverance, difficulties, almost insurmountable, were measurably overcome ; and his craft, called the Hope, was launched, equipped, and started for Oahu. Arriving there, an- other vessel, the Brig Delaware, was purchased and laden. And after an absence of nearly three years. Captain Pell had the satisfaction of returning to his home port, with the purchased brig, a quantity of 11 122 WAGES INDEPENDENT OF FREIGHT. oil and some portion of remnants, saved from his wrecked ship, the Holder Borden. What became of his extemporized schooner craft does not appear in the report. Had she returned to the United States, she must have been a curiosity in naval architecture, worth seeing if not saving. Held, the master and crew were not salvors, but the Hope was their property, and they were entitled to pay for transporting cables and anchors of the ship to Oahu ; that the purchased brig belonged to the owner, who had a hen for compensation for service beyond risk and expenses. In 1 Sprague, 91, and ibid. 428, 210 Barrels of Oil, and the Triumph, are instructive cases upon the gvMn- tum and merits of salvage. And although the books make the distinction be- tween the right to wages or salvage, the one ought not in future to be confounded with the other. Each should be designated by its proper appellation. For a good judge, stare decisis is a safe rule, where there are decisions to be followed. But without such decisions the practice may mislead, as construction and a priori reasoning may imperceptibly take the place of au- thority. The quaint maxim, however specious it may seem, clothed in axiomatic language as usual, that freight is the parent or mother of wages, is not now and never was a strictly legal truth. This may be tested by reference to the causes or grounds of for- feiture of wages. Thus the seaman forfeits his wages, in whole or part, and in poenam always, by drunkenness, insubordination, disobedience, negligence, embezzlement, desertion, or other wrongful absence ; piracy, mutiny, revolt, running away with a' vessel animo furandi ; or any other unspeci- AUTHORITIES - DISTRESS. 123 fied misconduct, developing itself in inability or indis- position to perform his contract duty and terminating in non-performance of his contract obligations. To all these, the principle of forfeiture strongly applies ; not because by these acts freight is not earned, or is lost, but because they constitute a breach of contract. The violation of the contract is the gist of the real legal offense. The loss of freight may be an incident, and often is a consequence of such violation; but cannot supplement the real offense, which is the non-perform- ance or breach of a mariner's contract stipulation. Under four considerations, may salvage service be proffered and rendered : in cases of distress, rescue, recapture, and derelict. Many authorities, old and recent, may be cited to each of these conditions. I. Where salvage has been rendered in cases of dis- tress ; and the English authorities are usually : The Sarah, 1 Eob. 312; The William Bickford, 3 Rob. 355 ; The Vrow Margaretha, 4 Rob. 147 ; The Balti- more, 2 Dods.' 132 ; The Clifton, 3 Hagg. 120 ; The Ranger, 9 Jur. 119 ; The City of Edinburgh, 2 Hagg. 334 ; The Sappho, Swab. 242 ; The Santipore, 1 Spinks, 234 ; The Paris, ibid. 289 ; The Undaunted, Lush. 92 ; L'Esperance, 1 Dods." 46 ; The Elenora Carlotta, 1 Hagg_ 156; The Nicolai Henrich, 22 Eng. L. & Eq. 615; The Houthandel, 1 Spinks. 25. In this last case, it would seem that salvors, when in possession, are authorized to take a salved ship to the port most convenient to themselves. The Silver Bullion, 2 Spinks, 74; S. C. "Shipping Gazette" of Dec. 8, 1854, and 2 Pritch. Adm. Dig. 1081-86 ; The Lady Worsley, ibid. 253. Sal- vors, retaining possession from owner's agent, forfeit 124 EESCUE, RECAPTURE, DERELICT. salvage for misconduct. The Wear Packet, ibid. 256. The court refused to entertain claim of parties convicted for misconduct in same transaction. The Bomarsund, Lush. 77. Services accepted in distress. The Little Joe, ibid. 88; a case of ambiguous signal and infor- mation ; and the case of Towle v. The Great Eastern, 11 Law Times (N. S.), 516. While the American au- thorities ordinarily cited, are The Blaireau, 2 Cranch, 240; The Elvira, 1 Gilp. 60; The Centurion, Ware, 477 ; H. B. Foster, Abbott, 222 ; A Kaft of Spars, ibid. 291 ; Miller v. Kelley, ibid. 564. II. Where salvage has been rendered in case of res- cue, the English authorities are: The Two Friends, 1 Rob. 271 ; The Beaver, 3 Eob. 292 ; The Eesolution, 6 Eob. 23 ; The Governor Raffles, 2 Dods. 14 ; The Francis and Eliza, 2 Dods. 115 ; The Salacia, 2 Hagg. 262; The Florence, 20 Eng. L. & Eq. 607. And the American authorities are : The Harmony, 1 Pet. Adm. 70 ; The Fair American, 1 ibid. 87 ; The T. P. Leathers, Newb. 421 ; 2 Sprague, 101, The James T. Abbott; signal for aid, a foundation for claim of salvage ; ibid. 51, a Quan- tity of Iron. Claim of parties unnecessarily interfering with wrecked property is not admissible. m. Where salvage service has resulted in recapture, the English authorities are : The Santa Cruz, 1 Rob. 49 ; The San Bernardo, ibid. 178 ; The Haas, ibid. 286 ; The Amor Parentum, ibid. 303. And the American au- thorities are : The Harriet, Bees. R. T 28 ; Bas v. Tingey, 4 Dall. 37; The Amelia v. Talbot and Seaman, 1 Cranch, 1; The Harmony, 1 Pet. Ad. 70; The Pair American, 1 Pet. Ad. 87. IV. Where salvage claim is set up in cases of derelict, the English authorities usually cited are : The Aquila, DERELICT. 125 1 Eob. 37; The Fortuna, 4 ibid. 193; The Jonge Bas- tiaan, 5 ibid. 322 ; The EUiotta, 2 Dods. 75 ; King v. Property Derelict, 1 Hagg. 383 ; The Charlotte, 2 Hagg. 361 ; The Carohne, 2 W. Rob. 124 ; The Watt, ibid. 70; The Effort, 3 Hagg. 165; The Windsor Castle, 2 Notes of Cases, Supp. 13; The Clarisse, Swab. 129; The Santipore, ibid. 231 ; The Jan Hendrick, ibid. 181 ; The Persia, ibid. 166 ; The Orbona, ibid. 161; The E. U., ibid. 63 ; The George Dean, ibid. 290 ; The Minerva, 1 Spinks, 271; The Fenix, 1 Swab. 13; The Cosmopoli- tan, 6 Notes of Cases, Supp. 17 ; The Coromandel, Swab. 205 ; The Barefoot, 1 Eng. L. & Eq. 661 ; The Samuel, 4 Eng. L. & Eq. 581 ; The Florence, 20 ibid. 122 ; The Britannia, 3 Hagg. 153 ; The William Ham- ilton, ibid. 168 ; The Derelict Unknown, ibid. ; The Ju- bilee, 3 Hagg. 43 ; The Champion, Brown. & Lush. 69. There a master left for assistance, and while ab- sent others took possession. On his return, the master resumed possession and displaced the other parties. Held justified. And the American authorities are : The Mary Ford, 3 Dall. 388 ; Eowe v. Brig , 1 Mason, 372 ; The BeUona, Bee, 193 ; The Belle Creole, 1 Pet. Ad. 34 ; The Emulous, 1 Sumn. 207 ; The Boston, ibid. 328 ; The Nathaniel Hooper, 3 ibid. 542; The Henry Ew- bank,libid. 400; 140 Bbls. Flour, 2 Story, 195 ; The Rising Sun, Ware, 378 ; The Bee, ibid. 322 ; The Elizar beth & Jane, ibid. 35 ; The Amethyst, Davies, 20 ; The John Perkins, 21 L. Rep. 87 ; The John Gilpin, 01- cott, 77; Post V. Jones, 19 How. 161; The Galaxy, Bl. & Howl. 273; The Schooner John Wurtz, Olcott, 462 ; The Hercules, Gilp. 184 ; The Saratoga, 2 Gall. 187; The Two Catharines, 2 Mason, 319; Pitman v. 11* 126 EFFECT OF SEA-ABANDONMENT. Hooper, 3 Sumn. 60; 1 Newb. 412, The Delphos ; ibid. 421, The T. P. Leathers ; ibid. 329, The Charles ; 1 Gall. 132, Tyson v. Prior ; 2 Sprague, 48, The Czarina. From these authorities it may be gathered, Mrst, What, in legal contemplation, constitutes dere- lict, by the maritime law. Second, When, in any just sense, the mariner is so absolved from his allegiance to his ship and contract, that he may become a salvor and legally participate in a meritorious salvage claim ; and, generally, what princi- ples of maritime jurisprudence control and govern ad- miralty courts, in awarding salvage, fixing the amount, apportioning it among salvors, and designating the sal- vors in derelict cases. Derelict has been defined by Dr. Lushington ; and his definition is in consonance with the admitted prac- tice, since 1798, of his three predecessors, Lord Stowell, Sir Christopher Kobinson, and Sir John NichoU. That definition may be found clearly and succinctly stated in the Florence (20 L. & Eq. 607) ; and it is this sub- stantially : that a ship or cargo when abandoned at sea, by order of the master, with no purpose of returning to, or prospect of regaining it, becomes in law derelict. On authority, principle, usage, and in every just sense, it is a legal maritime derelict ; and the direct effect is, to set aside the shipping contract as between mariner and merchant ; compelling all to look out for self-pres- ervation ; while the logical and legal result is, to liber- ate the mariner himself from further allegiance to the ship, unless in exceptional cases. The judgment of the master, acting on the spot, as the owner's lawful agent, is in law conclusive ; and the mariner, thus released from his covenanted duty of aid- RELEASE OF MARINER. 127 ing to his utmost ability in the navigation and preserva- tion of the ship, is left free to volunteer, either for sal- vage or other service. And so, accordingly, in many cases it has actually happened, that the sailor himself may and has become salvor even of his own ship, or any portion of its frag- ments ; thus practically suspending the ancient rule or axiom, that freight is the mother of wages as to the saUor. The sailor may also become salvor of other ships. A case of this description occurred in 1844, the Two Friends (2 W. Eob. 349). There the crew of a stranded ship took to the boats ; fell in with another stranded vessel ; boarded her and safely brought her into an English port. Their owner claimed to participate with them in the salvage to be awarded, upon the grounds, that some of the salvors were his apprentices ; and that the salvors, in effecting the salvage, moreover, had the use of his boats, , ropes, sails, and compass. But the interposed claim of the owner was properly rejected ; and Dr. Lushington awarded £300, to the crew only, as salvors. There are then at least three ingredients essential to a marine abandonment : and unless all concur, there can be no derelict. The presence of all make the delic- tum legally and certainly derelict; the absence of any one leaves it equivocal and doubtful. Construction alone can complete it. The ship, then, must be in peril at sea ; abandoned by the crew, sine spe recuperandi ac sine animo reveriendi; and it must be by the master's order or other equiva- lent act. These, occurring together, render the pre- liminary abandonment a legal maritime act; and 128 mariner's contract cancelled. leaves the forsaken property in the condition of a ma- rine derelict, with all tke qualities, incidents, and liabili- ties of that species of property. The shipping articles are theoretically annulled ; the mariner of the forsaken ship, by operation of law, is practically discharged from the further performance of his stipulated duty ; and thereby the theoretical union of interest has been practically terminated as between the merchant and mariner ; while the latter is left to consult his own security and interest ; being by act of the master and operation of law, legally absolved from his contract obligation of navigating and preserving the ship for the owner ; and consequently rendered inca- ble of earning further wages for himself under his con- tract with the owners. Claims for salvage, against derelict property, are gov- erned accordingly by like principles as govern such claims in other cases. The elements and ingredients, which constitute the merit of such claims, are similar in all. The service must be voluntary, and the award should be adequate. The amount is regulated by the circumstances of each case ; and is fixed at the discre- tion of the court. But the old rule, giving a moiety of the salved property to the salvor in derelict cases, is now practically abrogated ; the standard being ade- quate compensation according to the merit of the serv- ice performed ; and the award, usually, is in proportion to the value of the property saved, the exertions made, and the risks run by the salvors ; and not a definite, fixed, aliquot part prescribed as the old rule presup- posed. In several decisions, as the Blaireau, the Holder Borden, the Neptune, (1 Hagg. 236), the Florence, SEAMEN SALVORS. 129 and the "Warrior, in Lush. 476, the mariner is pro- nounced salvor of his own ship ; and, as such, entitled to salvage reward. This, if it be an exception to the contract stipulation, turns upon the existence and pres- ence of the three elements, already stated to be essen- tial and preliminary to a marine abandonment. Not only must the spes recuperandi but also the animus rever- tendi be wanting ; a sea peril must exist ; and, when these concur, the crew take to the boats, and the ship is forsaken by the master's direction, or his example even, as I think, then all, together, constitute and consummate the legal preliminary act of a marine abandonment, necessary to sustain a claim for salvage, on the part of the crew ; and when this actually takes place, then follow all the legal consequences of dissolving the contract, severing or suspending the mariner's allegiance to his ship, absolving him from his covenanted duty, and as a corollary from all, restoring him generally to the normal and natural condition of man, with the right of self-preservation, and freedom to seek first his own safety, himself selecting the proper method and means, and afterwards doing what he may voluntarily do in order to preserve such materials as will ultimately se- cure and keep alive his claim and lien for wages : and that lien attaches even to the last plank of an aban- doned and derelict ship ; for the lien of the seaman for his wages, inheres, adheres, and coheres to every frag- ment and timber-head of a lost or stranded vessel, for the seaman's benefit. It co-exists in the salved prop- erty until the whole fund produced by the proceeds of any sale thereof is entirely exhausted. The lien itself, whenever it once attaches, being inahenable, unassigna- ble, and even inextinguishable ; so remains, unless, by 130 ACT OF MASTER BINDS OWNER. some recognized mode of legal proceeding or voluntary- discharge, as by payment, bail, satisfaction, or other secu- rity, or judicial sale, loss, or destruction of the res ipsa ; or by want of diligence in the creditor himself, his lien shall have become legally and permanently extinct. Whenever, therefore, in the judgment of the master, who {jpro hac vice) is the accredited legal agent of the owner, all hope of recovering, and purpose to return to a foundered or stranded ship, are gone, and the mas- ter's orders to abandon are issued ; these together constitute and consummate what may be technically termed, a legal maritime abandonment. The cited authorities will be found to have well de- fined, expounded, and properly qualified the general principles of maritime jurisprudence, as applicable to cases not only of derelict, but also of distress, rescue, and recapture ; the merit generally of salvage service ; the amount to be awarded ; and the mode of apportion- ing what may be judicially awarded in admiralty among the salvors. In the case of the Charlotte Wylie (2 W. Eob. 495), the vessel was returning to England from Africa. The master and one mariner were sick with fever, and so incapable of duty. A signal of distress was displayed, and the commander of H. M. S. Cygnet put on board the Wylie a master and two seamen to assist in navigating her home to England ; and for this service, salvage was claimed by the commander and crew of the Cygnet, and it was pronounced for. The owners interposed a claim for freight, primage, and insurance, but it was disaUo wd. In the William (2 W. Eob. 522), a tender was re- jected ; but the court adjudged it to be sufficient, and condemned the salvors in costs. This, in England, is according to a strict rule of the admiralty. TENDER, COSTS, AND KINDS OF SALVAGE. 131 As to tender and costs, vide Lush. 11, The John ; ibid. 85, The Sovereign ; ibid. 485, The Comte Nesselrode ; 2 W. Eob. 9, The Hope ; 1 ibid. 334, The Ocean ; 6 Notes of Cases, 290, The Johannes ; 1 Spinks, 171, The Batavier; 2 ibid. 252, The Hopewell; Swab. 168, The Legatus. Generally, if a tender, duly made, is deemed by the courts sufficient, it is followed with no costs; but this general rule ipaay have an exception, where peculiar , circumstances, of a mitigating char- acter may seem to justify a departure. In the judicial exposition of the principles of mari- time law, applicable to salvage, it matters but little whether the claim be for civil or military salvage. Of course, there is a distinction, but it is in the facts to be dealt with rather than in the rules and principles to be applied to those facts. Salvage is called civil, when it arises in a case of derelict or distress ; military, when it grows out of a re- capture conjointly with land forces, or wholly or in part by them, or by rescue from pirates or other enemies. And the chief distinctive feature in civil and military salvage is ; that whereas in the former, the amount to be awarded as salvage is confided to judicial discretion and governed by the general maritime law ; in the lat- ter, the award is to be made and its amount fixed and regulated by statute, as in the United States and Eng- land, and not at all left to the discretion of the court. In both countries, the rule is to give to salvors, who claim a military salvage, one fifth, sixth, or eighth part of the salved property. In other respects, the claim is settled upon principles, which are alike applicable to both civil and military salvage. Having collected .and cited the principal authorities, 132 SALVAGE CONCLUDED. usually referred to in discussing and adjudicating sal- vage claims, in the various cases of derelict, distress, rescue, and recapture, it is apparent, that all marine losses, by foundering at sea, stranding on a coast, or by wreck generally, will be governed by the rules and principles laid down by the admiralty courts in the decisions of those cases as reported. For many considerations, the subject of salvage must ever be one of intense interest to the student of admi- ralty law. The late Hon. Rufus Choate, whose name and fame are deeply cherished, where he was first and earliest known in the courts as an advocate and jurist, delivered a glowing and highly popular lecture, in his own pecu- liar style, on what he termed " the Literature of the Sea." In that elegant but now lost lecture, the untold dan- gers and delights of sea-life were graphically depicted by him : the vast ocean, with its unexplored depths, hid- den treasures, sublime scenes, marvellous views, golden glories of sunrise and sunset, myriads of inhabitants, music, murmurings, and mountains of obstacles and per- ils, were represented as having made, to many mari- ners, their chosen vocation a most engaging, attractive, and even fascinating pursuit. There the mariner's real character was strikingly developed ; his courage culti- vated ; and piersonal daring so displayed that man often seemed to be more tTian mortal. Moulded by nature for ease, indolence, and luxury, as a mariner, he is made to laugh at labor and defy danger. The mariner, in a tempest at sea, or by the winds forced upon a lee-shore, may concentrate the effort and energies of a whole life into a moment ; his every act and exertion (like those of a general on the field of battle when surprised) CONCLUSION. 133 may be, in the highest degree, intensified, whether the act called for be one of judgment, skill, prudence, gal- lantry, or adventure and activity. Hence, the topics in salvage cases are invested with an unusual interest ; and are ordinarily more exciting than all others (except perhaps those arising out of collision) ; so that they seem to be well calculated to give scope and occasion for the attractive display of all those highest of professional gifts, logic, rhetoric, learn- ing, and judgment. 12 134 GENERAL AVERAGE. CHAPTER VI. GENERAL AVERAGE. Jettison is a marine loss incurred by casting goods overboard, and rendered necessary to be so voluntarily incurred from some supposed or actual impending peril, vphich cannot apparently be warded off by any possible human agency, in season to secure the general safety of ship or cargo. The occasion, therefore, for throvring overboard mer- chandise of value or bulk, belonging to individuals, in order to lighten a vessel and so save other portions of the cargo, or the ship itself, from being wrecked on shore, or foundering at sea, presupposes certain- condi- tions of danger to exist, which man cannot control ; and which, therefore, if not provided for seasonably, may ul- timately result in the total loss of ship, or peril to cargo and crew. And these conditions are, Mrst, there must exist great stress of weather and consequent imminent peril occasioned thereby ; or Secondly, there must exist such pressing hostile pursuit and consequent danger of capture by enemies or pirates, that no chance or hope even of escape seems possible, but by jettison, to lighten or relieve the vessel and so increase her speed ; or Third- ly, there must exist generally, such sudden or unforeseen peril as is likely to baffle the skill and judgment of the best and bravest of nautical men, in order to avert a BEFINITIONS. 135 common danger; by promptly resorting to the only method of easing and relieving an imperilled ship, in throwing over what will most contribute to that end, whether heavy or light, cheap or valuable goods. And whatever is thus parted with for the common benefit and safety must be made good by what is pre- served by reason of the jettison ; in other words, mer- chandise remaining safe, after other goods have been cast overboard, are subject to contribution for the amount thus lost, in proportion to their value. And this, in insurance and maritime law, is what is commonly understood and designated by the expression, general average. It may be defined to be a general contribution, levied on all, to make good an individual loss, by a jettison, voluntarily but necessarily incurred, to secure and pre- serve other's goods on board from destruction by wreck or other sea-peril ; that is, the portion sacrificed is enti- tled to remuneration from the remnant saved. This proposition, thus stated, seems to be sufficiently comprehensive to truly define general average, as it has, in jettison cases, been judicially tested, technically treated, or historically traced. The principle upon which it rests is one of highest antiquity; and is really but a manifestation of an in- stinct of human nature, put verbally into a legal formu- lary. Self-preservation is a law of our being. Whatever is essential to man's personal safety, man will instinctively find a mode and means of doing, and give a reason for it ; and thus, this instinct has ultimately become form- ally incorporated into the municipal law of society and nations. 136 ORIGIN. The only fragment of the Rhodian law (the oldest maritime code now known), embraces the principle, and has furnished the doctrine of general average to all the most enlightened maritinae nations of the world ; and this fragmentary relic of the Ehodian law could hardly have survived the wreck of time, in any authentic form, had it not been by Justinian incorporated into the Eo- man Code (Dig. 14, 2) ; and so permanently preserved. " RhodiS, lege cavetur, omnium contributione sarciar tur, quod pro omnibus datum est." " jEquissimum enim est commune detrimentum, fieri eorum, qui propter amissas res aliorum, consecuti sunt ut merces suas salvas habuerunt." — Dig. 14, 2-5. And the principle is, that whatever is bestowed for the benefit of all, shall, by a general contribution of all, be made good by all ; while the reason assigned is, that it is eminently just, that the loss should be common to all such as, through others' losses, have succeeded in saving their own* goods or portions of them. Whether both the principle and the reason for it are taken fi-om the Ehodian law, may admit of doubt ; at all events, the former certainly is, while the latter may have been the gratuitous commentary or interpolation of Justinian. Lord Tenterden (when plain Mr. Abbott), in the text of Abbott on Shipping (p. 476), and before him, Emeri- gon (ch. 12, § 40), both refer to the 12th Ode of Juve- nal on Shipwreck; in which the poet, addressing his friend Corvinus, happily and classically gives expression to the principle of jettison as well as its practical appli- cation. The vessel bearing Catullus, during a storm, became so water-logged, her mast giving away, and the huU ELEMENTS. 137 rolling from side to side, that the pilot became baffled, and his experience and nautical skill was rendered una- vailing ; the gale and dangers still increasing, when Ju- venal makes Catullus to exclaim in his trepidation and solicitude for life, thus : — " Fundite quae mea aunt, dicebat, cuncta, Catullus ; Prsecipitare volens etiam, pulcherrima, vestem Purpuream Atque alias.'' The sentiment, so elegantly expressed (in an ode not deemed the Poet's best), is but a transcript of nature, and its instinctive promptings, from panic in time of personal peril ; and the Ehodians, the oldest of known navigators aiid maritime legislators, made this instinct the basis of their rule of law in regulating cases of jet- tison ; and the rule was accordingly adopted by Justinian and embodied in the Eoman Code, under the article " De Jactu," and has now become a part and parcel of the maritime law not only of Continental Europe, but of England and the United States also. The essential elements, therefore, of general average claims are threefold : I. There must be a common danger, rendering a jet- tison necessary. II. There must be an actual throwing overboard of goods, to avert or avoid the common danger, and III. There must be a result indicating that the jetti- son necessary was potential and instrumental in avert- ing the common danger ; and did actually produce the consequent rescue or escape from further peril of the ship, cargo,' or crew. And the presence of these elements, common danger, voluntary sacrifice, and consequent security furnish all the legal ingredients for a general average claim; 12* 138 LOSS BY SACRIFICE. though a recognized qualification to this general doc- trine may be found in cases of improper stowage ; also in losses of timber, thrown from the deck of the deal ships from British North America, when there is no proof of any existing custom so to lade these ships, and a knowledge of such custom is not brought home directly to the ship-owners. The cases on this subject usually referred to, exhibit many nice distinctions and sharp criticisms; but, on the whole, are reconcilable with the general statement of the rules already laid down. If the loss be not necessary, or were not voluntary, or did not contribute to the general security, the legal foundation for a general average claim is clearly want- ing ; for then the asserted loss would be not only no sacrifice, but has proved to be entirely unavailing and superfluous. The premeditated sacrifice of part must be made with the design to preserve the residue; and if Such be the eflFect, and a general or partial preservation is contingently produced by the partial sacrifice, so de- signed and made, the preserved property remaining is liable for contribution to make good the portion volun- tarily sacrificed. The qualifications and exceptions to the general doc- trine of general average are precise and various. The loss must be voluntary, incurred by the agency of man in extreme peril, and not caused by any ordi- nary sea-peril, or springing from any groundless panic. The goods must be thrown and not washed overboard ; the jettison, to be sufficient ground for a contribution, must be premeditated and not accidental. All writers agree in these qualifications generally. GROUND OF CLAIM. 139 But in regard to certain exceptional cases, the foreign jurists are not in harmony. They differ especially as to the merit of general average claims, where there .has been an intentional stranding of the vessel to save cargo, crew, and freight, or either. In the books and cases, it is termed a voluntary stranding. ' Still, this even must be under such compul- sion from storm, enemy, or pirates as to render it hardly a voluntary stranding. Not only is there conflict among the maritime writers of Europe but also among eminent jurists in the tJnited States. The United States Supreme Court follows " without hesitation the doctrine, as well founded in authority and supported by principle, that a voluntary stranding .of the ship, followed by a total loss of the ship, but with a saving of the cargo, constitute, when designed for the common safety, a clear case of general average." And this conclusion was pronounced by Mr. Justice Story for the court in the case of the Columbian Insur- ance Company v. Ashby et al. (13 Pet. 331); directly overruling the decision of C. J. Kent in the case of Bradhurst v. Columbian Insurance Company, in 9 Johns. Eep. 9 ; and affirming or concurring in that of Mr. J. Washington in Case v. Eeilly (3 Wash. C. C. 298) ; and of the Supreme Court of Pennsylvania, in Sims v. Gur- ney (4 Binn. 513) ; and Gray v. Wain (2 Serg. & Kawle, 229). This doctrine is sustained by Bynkershoek, Jacob- son, Valin, Voet, Browne, and others in Europe, and opposed by Emerigon, Stevens, and Huberus. The doubt arises from the expression, " Salvd navi" occurring in Emerigon's comments on the Digest of the Romans. 140 LOST SHIP ENTITLED TO While the safety of the ship is made by Emerigon and his school essential to a general, average claim, ju- rists of different opinions deem the claim to be well founded in the maritime law, whether there be a total or partial destruction of the ship, provided such loss was voluntarily incurred, with the design to promote the common benefit. The case in 13 Peters, 331, was decided in 1839. It came before the court on a special verdict in error from the" circuit court for (Alexandria in the District of Columbia) the Fourth Circuit. The jury found that the Brig Hope sailed for Barba- does from Alexandria, May 27, 1825; that, going down the Chesapeake Bay, such was the weather, that the captain came to anchor; finally dropping all three anchors, best bower, small bower and kedge ; that the gale increasing to almost a hurricane, the vessel " ripped up the windlass, parted chain cable," and drifted with the scope of both cables paid oxit; struck and thumped on the shoals, swung around broadside to the wind and heavy sea ; and in this situation, for the safety of the crew and preservation of the vessel and cargo, the captain ran the vessel on the bank; where, after the storm, she was left high and dry, it not being prac- ticable to get her off The cargo was saved; the vessel, valued at $3,000, was sold for $256.40 ; and the question was. Should the saved portion of the cargo contribute to make good the lost portion of the ship ? The discussion was full and ample ; and the court, in giving its opinion, fully but succinctly reviewed the leading opinions of the foreign jurists and the adjudged cases in the United States ; and thence concluded that GENERAL AVERAGE CLAIM. 141 the weight of authority was decidedly in favor of the present claim for general average.