CHAPTER II.

THE JURISDICTION OF THE AMERICAN COURTS OF ADMIRALTY.

8. The constitutional provision concerning admiralty law. Article III, §2, of the United States Constitution provides that "The judicial power shall extend * * to all cases of admiralty and

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maritime jurisdiction."

Section 9 of the Judiciary Act of 1789 provided that "the district courts * * shall have exclu

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sive original cognizance of all civil causes of admiralty and maritime jurisdiction," and this section is substantially reënacted in the United States Revised Statutes, § 563, subdivision 8.

Upon these sections of the Constitution and the Judiciary Act the admiralty jurisdiction of the federal courts substantially depends. No attempt is made in them to define what are cases of admiralty and maritime jurisdiction. Those questions were left to be determined by the recognized admiralty law as it existed at the time of the adoption of the Constitution as construed by the courts. The admiralty law as it then existed has been modified to some extent by statutes, such as the act limiting the liability of shipowners, the Harter Act, and others; but it still remains true that the greatest part of the existing admiralty law has existed for centuries and took its rise in the customs of commerce and of the sea.

9. The American test of admiralty jurisdiction.— The rule in this country is that all navigable waters are subject to admiralty jurisdiction. The rule in England was that the admiralty jurisdiction was restricted to waters in which the tide ebbed and flowed. This rule, in England, was practically equivalent to making navigability the test, as there are very few rivers in England which are navigable beyond the point at which the tide ebbs and flows. The English rule was at first followed in this country. Under that rule, of course, large parts of the great rivers and all of the Great Lakes were excluded from admiralty jurisdiction. When the commerce upon the Great Lakes and rivers became large enough to make the question important, the rule was changed so as to make navigability instead of the ebb and flow of the tide the test of the admiralty jurisdiction.1 The admiralty law does not apply to navigable waters entirely within the limits of a state, but it does apply to all parts of a waterway between states, even if a part of such waterway is an artificial canal entirely within the limits of a state. It applies to vessels on voyages in such an artificial waterway, although the vo ge has begun and is intended to end in the same state. But such artificial waterways must be large and sustain a commerce of a substantial character.

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10. Vessels subject to admiralty jurisdiction.— The admiralty jurisdiction extends to any movable floating structure capable of navigation and designed for navigation. It includes lighters, carfloats, float

1 The Genesee Chief, 12 How. 463 (U. S.).

2 In re Garnett, 141 U. S. 1; The Daniel Ball, 10 Wall. 557 (U. S.).

ing docks, dredges, and barges with no motive power aboard. It does not include a floating drydock permanently attached to the shore, and not intended for navigation, or a floating gas buoy.*

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11. The admiralty jurisdiction over contracts.— The test of admiralty jurisdiction in cases of contracts is whether the nature of the transaction was maritime. The test of admiralty jurisdiction in cases of tort is the locality, whether the tort has arisen on public navigable waters. As the test of admiralty jurisdiction in cases of contract is whether the contract relates to a maritime transaction, it follows that the admiralty has no jurisdiction over the following contracts: A contract to build a ship, which is regarded as a contract relating to a transaction wholly on land; a contract of partnership in a trade venture, in which one of the parties contributes the vessel and the other his skill in labor;s a mortgage on a ship for money borrowed for a purpose unconnected with the use of the vessel; a suit for an accounting, even if the accounts relate to a ship.10 An agreement to make a charter party is not maritime," although a charter party is purely maritime. A contract to pay wharfage while loading or unloading a ship, or in her regular use in navigation, is a maritime con

3 Cope v. Vallette, etc., Co., 119 U. S. 625.

4 Gas Float Whitten (No. 2), (1897) App. Cas. 337 (Eng.).

5 New England, etc., Co. v. Dunham, 11 Wall. 1 (U. S.).

• The Plymouth, 3 Wall. 20 (U. S.); Ex parte Phenix Ins. Co., 118 U. S. 610.

7 People's, etc., Co. v. Beers, 20 How. 393 (U. S.).

8 Ward v. Thompson, 22 How. 330 (U. S.).

Bogart v. The John Jay, 17 How. 399 (U. S.). 10 Minturn v. Maynard, 17 How. 477 (U. S.). 11 The Eugene, 87 Fed. 1001.

tract,12 but not wharfage for a ship laid up for the winter.13 The admiralty has jurisdiction of all contracts which are maritime in their nature, such as charter parties, marine insurance policies, bills of lading, seamen's wages, and suits on bottomry or respondentia bonds.

12. Admiralty jurisdiction over torts.-The admiralty has jurisdiction of torts occurring on navigable waters. A tort must be entirely consummated on the water. The fact that it commences upon the water does not give jurisdiction if the injury itself is inflicted on the shore. Thus, the admiralty has no jurisdiction in the case of a fire which, originating on a ship, damaged buildings on shore;1 nor damages to a bridge caused by the negligent navigation of a vessel.15

13. Injuries to crew or passengers.-The legal relations between the crew and the ship or her owners are substantially the same as between master and servant at common law, so far as relates to the question of torts to the person. The common law doctrine of fellow servants applies. The relations between the passengers and the ship or her owners are governed by the general law of passenger carriers, except as modified by statute. The United States Revised Statutes contain elaborate provisions for the protection of passengers.

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12 Ex parte Easton, 95 U. S. 68.

13 The C. Vanderbilt, 86 Fed. 785.

14 The Plymouth, 3 Wall. 20 (U. S.).

15 Johnson v. Chicago, etc., Co., 119 U. S. 388; Cleveland, etc., Co. v. Cleveland, etc., Co., 208 U. S. 316.

16 §§ 4252-4289, 4463-4500.

The doctrine of imputed negligence by which a person on a ship not identified with its management was formerly held in some cases chargeable with the negligence of his own vehicle is no longer followed. As the law now stands, a person injured on a vessel in collision can proceed against either vessel, as either or both are negligent." The admiralty has jurisdiction of assaults upon navigable waters. Under the Supreme Court admiralty rule 16 there is no remedy in rem against the ship for such assaults. There is such a remedy against the owner, if the assault is made by any of the crew in the course of his employment.18

14. Liability for injuries causing death.-By the common law, and by the civil law, there was no right of action for injuries causing death. For several centuries past, the leading Continental nations have permitted a recovery in admiralty for death claims. In England, there is no right of action in admiralty for injuries resulting in death. In this country, the decisions have been extremely conflicting. The trend of decisions is that the admiralty has no independent jurisdiction in such cases, but wherever a state statute gives a cause of action, the admiralty can enforce it when occurring upon a vessel of such state. Congress could undoubtedly give such a right of action by statute. But the law governing in suits of this kind is the law of the place where the negligent killing occurred, if it arose within the jurisdiction of any

17 Little v. Hackett, 116 U. S. 366.

18 Chamberlain v. Chandler, 3 Mason 242 (U. S.); The Miami, 78 Fed. 818.