tOLD DOMINION STEAMSHIP COM¬ PANY, Owner of the Steamship Hamil¬ ton, Petitioner,
v.
PRIMUS GILMORE, Administrator of the Estate of Alfred Gilmore, Deceased, et al.
(See S. C. Reporter’s ed. 398-407.)
Commerce — admiralty — exclusiveness of Federal power — validity of state statute governing action for marine tort.
1. Applying to a claim for a death on the
high seas, due to a tortious collision of two vessels belonging to Delaware corporations, the provision of Del. act of January 26, 1886, as amended by the act of March 9, 1901, authorizing personal representatives to maintain an action and recover damages for a death occasioned by unlawful violence or negligence, does not render such provision
fThis case is reported by the official Re¬ porter under the title of “The Hamilton.”
207 U. S.
1907.
Old Dominion Steamship Co. v. Gilmobe.
repugnant to either the commerce or admi¬ ralty clauses of the Federal Constitution, where Congress has not legislated upon the subject.
Admiralty — state law as rule of deci¬ sion.
2. The liability created by Del. act of
January 26, 1886, as amended by the act of March 9, 1901, in favor of personal repre¬ sentatives of a person whose death is caused by violence or negligence, will be enforced in a proceeding in admiralty for the limita¬ tion of liability arising out of a tortious collision on the high seas of vessels belong¬ ing to Delaware corporations.
Shipping — limiting liability — claims
for death.
3. Personal representatives of a passenger
and of members of a crew who were drowned as the result of the collision of their vessel with another vessel on the high seas may re¬ cover in full in proceedings for the limita¬ tion of liability of such other vessel the lia¬ bility created by Del. act of January 26, 1886, as amended by the act of March 9, 1901, in favor of the personal represent¬ atives of a person whose death is caused by violence or negligence.
[No. 71.]
Argued December 13, 1907. Decided Decem¬ ber 23, 1907.
ON WRIT of Certiorari to the United States Circuit Court of Appeals for the Second Circuit to review a decree which af¬ firmed a decree of the District Court for the Southern District of New York, allowing claims for loss of life in proceedings for lim¬ itation of liability of a vessel for a collision on the high seas. Affirmed.
See same case below, 77 C. C. A. 150, 146 Fed. 724.
The facts are stated in the opinion.
Mr. Harrington Putnam argued the cause, and, with Messrs. Henry E. Mattison and Wing, Putnam, & Burlingham, filed a brief for petitioner:
There is no presumption that the rela¬ tions of the parties are to be fixed by the laws of any one state when an injury ac¬ crues on the high seas through a pure ma¬ rine tort.
Rundell v. La Compagnie Generale Trans- atlantique, 94 Fed. 366, Affirmed in 49 L. R.A. 92, 40 C. C. A. 625, 100 Fed. 655.
The origin of the fiction that a merchant ship may be regarded as a floating portion of a country, or, as the doctrine is some¬ times expressed, that it is a continuation or prolongation of the national territory, is as recent as 1752. Modern writers treat this fiction as having only a limited applica¬ tion.
Hall, International Law (Oxford), 1904. The doctrine of “territoriality” is rather
52 L. ed.
a limit on rights of search, and protection against aggression, than one that confers new rights of action for tort.
Walker, Science of International Law, pp. 130, 131.
The theory applicable to merchant ves¬ sels must be one of contract. It was early settled in England that the law of the flag determines the power of the master to deal with cargo, and measures the scope of the master’s authority to bind the owner by his contracts.
Lloyd v. Guibert, L. R. 1 Q. B. 115.
This was further amplified as to cargo in
1882.
The Gaetano & Maria, L. R. 7 Prob. Div.
146.
The doctrine that merchant ships are part of the territory, if applicable to collisions, would also govern salvage on the high seas. Such attempts to impose foreign laws have often been made, but have never been suc¬ cessful in the United States courts.
Anderson v. The Edam, 13 Fed. 139.
It is also clear that the territorial fiction depends on contracts, because publicists rec¬ ognize that it is only when the crew are on board that the doctrine of territoriality applies. Once the contracting members of the ship’s company leave the vessel, the fiction vanishes.
Woolsey International Law, 6th ed. p. 72.
Statutes providing for the survivorship of rights of action and recovery in case of loss of life have been enacted in varying forms, not only by the states of the Union, but also by foreign countries with which the United States has intimate relations, — es¬ pecially by England and the Canadian prov¬ inces. The system of law on the continent of Europe in some form also gives a recov¬ ery for loss of life. Yet in no ease have the courts of Great Britain or the United States regarded the law of the flag upon the high seas as authorizing such a recovery in the admiralty courts. Even in Canada the admiralty has no jurisdiction for loss of life.
Monaghan v. Horn, 7 Can. S. C. 409.
The same rule was reached in England (notwithstanding Lord Campbell’s act) that admiralty has no jurisdiction for loss of life.
The Vera Cruz, L. R. 10 App. Cas. 59.
In The Corsair (Barton v. Brown) 145 U. S. 335, 36 L. ed. 727, 12 Sup. Ct. Rep. 949, the collision occurred in the Mississippi river, about 10 miles above the city of New Orleans. The libel in rem was followed by an amended libel in personam, but both li¬ bels were dismissed upon the ground that the statute of Louisiana did not authorize an admiralty suit in rem, and the subse¬ quent amendment to the libel in personam
265
Supreme Court of the United States.
Oct. Term,
was improper, as the libel did not aver facts sufficient to establish a ea.use of action.
There is nothing in the Delaware stat¬ ute showing an intent by the state of Dela¬ ware to assert jurisdiction outside its own territorial limits. Such acts of a state are to be presumed to be limited within its power of legislation, which is co-extensive with its territory.
United States v. Bevans, 3 Wheat. 330, 380, 4 L. ed. 404, 410.
The real basis for the fiction of the ter¬ ritoriality of merchant ships in time of peace rests in the supposed power of a coun¬ try to make laws to bind its ,own citizens abroad when they may come to be judged by the courts of their own country.
Story, Confl. L. 8th ed. §§ 21, 22; Queen v. Reyn. L. R. 2 Exch. Div. 63.
By virtue of this power, a foreign state, like France, could impose on its citizens abroad the liability to pay dam¬ ages for death occurring on the high seas, and enforce such right in the courts of France. Whether our Federal courts would enforce this right depends on consid¬ erations of the nature of the liability thus imposed, obligations of comity, and the re¬ lation of such a foreign right to our entire system of maritime jurisprudence.
But this argument entirely fails in the case of one of the states of the Union, which has ceded away all such rights to bind its citizens on the high seas. It cannot, there¬ fore, claim that, on the unenclosed waters of the ocean, vessels of the United States, sub¬ ject to the Federal laws, are under the do¬ main of any suppletory state legislation as to maritime torts.
The judgment in Crapo v. Kelly, 16 Wall. 610, 21 L. ed. 430, sustained a title derived from the insolvency laws of Massachusetts as operative on a New Bedford ship, then on the high seas, so as to prevail over an attaching creditor in New York. This, how¬ ever, was merely as to the transfer and dev¬ olution of property. This court discrimi¬ nated the cases of admiralty jurisdiction which are no longer under the power of Massachusetts. This court has held that Massachusetts remains a sovereign state as to rights of property and as to regulating local fisheries (Manchester v. Massachusetts, 139 U. S. 240, 35 L. ed. 159, 11 Sup. Ct. Rep. 559), but not as to maritime torts.
The evident tendency of the decisions and ■weight of authority is that cases of tort arising upon the high seas, in the admiralty courts of the United States, will be governed by the law of the forum, which is the gen¬ eral maritime law as administered in these courts.
The Scotland (National Steam Nav. Co. v. Dyer) 105 U. S. 24, 26 L. ed. 1001; The
2C6
Belgenland (The Belgenland v. Jensen) 114 U. S. 355, 29 L. ed. 132, 5 Sup. Ct. Rep. 860; The Brantford City, 29 Fed. 373.
Under the common law there was no sur¬ vival of actions for injuries resulting in death. By Lord Campbell’s act this rule of the common law was changed, although it was later decided that Lord Campbell's act had no application whatever in the admi¬ ralty law.
The Vera Cruz, L. R. 9 Prob. Div. 88, L. R. 10 App. Cas. 59.
Our courts have also declared that, in the absence of a statute changing it, the rule in admiralty is the same as provided at the common law.
The Harrisburg (The Harrisburg v. Rich¬ ards) 119 U. S. 199, 30 L. ed. 358, 7 Sup. Ct. Rep. 140.
A state cannot, therefore, destroy the symmetry of the maritime law by creating maritime rights or conferring jurisdiction in any particular upon an admiralty court.
Crapo v. Allen, 1 Sprague, 184, Fed. Cas. No. 3,360; The Manhasset, IS Fed. 922; Welsh v. The North Cambria, 40 Fed. 656; The Lyndhurst, 48 Fed. 841 ; Workman v. New York, 179 U. S. 558, 45 L. ed. 319, 21 Sup. Ct. Rep. 212.
There is no uniformity in the Federal courts at present in dealing with death in the admiralty.
Where loss of life occurs within state waters, the Federal decisions in the lower courts are irreconcilable.
Welsh v. The North Cambria, 40 Fed. 655; The Glendale, 26 C. C. A. 500, 42 U. S. App. 546, 81 Fed. 633; The Willamette, 31 L.R.A. 715, 18 C. C. A. 366, 44 U. S. App. 26, 70 Fed. 874; The Dauntless, 121 Fed. 420, 64 C. C. A. 243, 129 Fed. 715; The St. Nicholas, 49 Fed. 671 ; Robinson v. Detroit & C. Steam Nav. Co. 20 C. C. A. 86, 43 U. S. App. 190, 73 Fed. 883; Burrell v. Fleming, 47 C. C. A. 598, 109 Fed. 489; Quinette v. Bisso, 5 L.R.A. (N.S.) 303, 69 C. C. A. 503. 136 Fed. 825; Alaska Commercial Co. v. Williams, 63 C. C. A. 92, 128 Fed. 362.
Where death has occurred on the high seas, there is a wide difference in applying the terms of state statutes.
The Robert Graham Dun, 17 C. C. A. 90, 33 U. S. App. 297, 70 Fed. 270; Run- dell v. La Compagnie Generale Transatlan- tique, 49 L.R.A. 92, 40 C. C. A. 625, 100 Fed. 655; Oleson v. The Ida Campbell, 34 Fed. 432; The Jane Grey, 95 Fed. 693.
The officer of the watch was a fellow serv¬ ant with the other navigating officers who were engaged in running the vessel at this improper speed. His representatives are, therefore, debarred from any recovery.
Robinson v. Detroit & C. Steam Nav. Co.
207 U. S.
1907,
Old Dominion Steamship Co. v. Gilmore
supra; The A. W. Thompson, 39 Fed. 115; The Queen, 40 Fed. 694.
The seaman is not allowed to recover an indemnity for the negligence of the master, or any member of the crew, but is entitled to maintenance and cure, whether the inju ries were received by negligence or accident.
The Osceola, 189 U. S. 158, 175, 47 L. ed. 760, 764, 23 Sup. Ct. Rep. 483.
As the claim against the Clyde Company is not valid, the claim against The Ham ilton cannot be maintained for its full face, but The Hamilton remains answerable only for half of all such losses.
The City of New York, 25 Fed. 151; The Queen, supra; Stahl v. The Niagara, 77 Fed.
336.
The decrees below have departed from the maritime law and have given an extraterri¬ torial force to state statutes.
Butler v. Boston & S. S. S. Co. 130 U. S. 527, 558, 32 L. ed. 1017, 1024, 9 Sup. Ct. Rep. 612.
Mr. J. Parker Kirlin argued the cause, and, with Messrs. John M. Woolsey and Howard M. Long, filed a brief for respond¬ ents :
There is a quasi-territorial jurisdiction over merchant vessels on the high seas, in¬ hering in the state to whose citizens they belong.
1 Le Droit des Gens, Pradier-Fod€re’s ed. Paris, 1863, Livre 1, chap. 19, § 216; 1 Kent, Com. 27 ; Dana’s Wheaton, Interna¬ tional Law, p. 169, § 109; Wharton, Cond. L. § 356; Bluntschli, Le Droit International Codifie, Livre 4, subd. 4, §§ 317, 318; Heff- ter, Das Europiiisclie Volkerreicht, § 78; 1 Leo, p. 496; Calvo, 1 Le Droit International, p. 552; Droit International Public, 3d ed. Paris, 1905, p. 518, chap. 4, subd. 2, § § 427, 428; Bonfils, 3d ed. Paris, 1901, chap. 2 § 607; Hall, International Law (Oxford), 1904, pp. 253, 254: Hall, Foreign Jurisdic¬ tion of British Crown, Oxford, 1894, p. 246; Lawrence, Principles of International Law, p. 206; Taylor, International Pub. Law, §§ 262, 263, pp. 307, 308; Woolsey, Inter¬ national Law, 2d ed. § 58, p. 71; 1 Moore, International Law, § 174, p. 930; Crapo v. Kelly, 16 Wall. 610, 631, 21 L. ed. 430, 438; Wilson v. MeNamee, 102 U. S. 572, 26 L. ed. 234; The Scotia (Sears v. The Scotia) 14 Wall. 170, 184, 20 L. ed. 824; St. Clair v. United States, 154 U. S. 134. 152, 38 L. ed. 936, 943, 14 Sup. Ct. Rep. 1002; Re Ah Sing, 13 Fed. 289; Wildenhus’s Case (Mali v. Keeper of Common Jail) 120 U. S. 1, 12, 30 L. ed. 5G5, 567, 7 Sup. Ct. Rep. 385 ; Re Moncan, 14 Fed. 48 ; The E. B. Ward, 17 Fed. 459; Ex parte Byers, 32 Fed. 410; The Lamington, 87 Fed. 754; Lindstrom v. International Nav. Co. 117 Fed. 171, 60 C. C. A. 649, 123 Fed. 476; 52 L. ed.
La Bourgogne, 71 C. C. A. 489, 139 Fed. 439; McDonald v. Mallory, 77 N. Y. 546, 33 Am. Rep. G64.
In the eyes of the law, the tort by which the claimants met their death was consum¬ mated within the territorial jurisdiction of the state of Delaware.
Ayer & L. Tie Co. v. Kentucky, 202 U. S. 409, 421, 50 L. ed. 1082, 1086, 26 Sup. Ct. Rep. 679; Hays v. Pacific Mail S. S. Co. 17 How. 596, 15 L. ed. 254; Morgan v. Parham, 16 Wall. 471, 21 L. ed. 303; Wheeling, P. & C. Transp. Co. v. Wheeling, 99 U. S. 273, 25 L. ed. 412; Wiggins Ferry Co. v. East St. Louis, 107 U. S. 365, 27 L. ed. 419, 2 Sup. Ct. Rep. 257; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 29 L. ed. 158, 1 Inters. Com. Rep. 382, 5 Sup. Ct. Rep. 826; Old Dominion S. S. Co. v. Virginia, 198 U. S. 299, 49 L. ed. 1059, 25 Sup. Ct. Rep. GSG; The Havana, 12 C. C. A. 361, 26 U. S. App. 231, 64 Fed. 49G; International Nav. Co. v. Lindstrom, GO C. C. A. G49, 123 Fed. 475; The Plymouth Rock, 13 Blatchf. 505, Fed. Cas. No. 11,237; Scudder v. Calais S. B. Co. 1 Cliff. 370, Fed. Cas. No. 12,505; The Grapeshot (The Grapeshot v. Wallerstein) 9 Wall. 129, 19 L. ed. G51; The Kalorama (Pendergast v. The Kalorama) 10 Wall. 205, 212, 19 L. ed. 941, 943;
The Roanoke, 189 U. S. 185, 193, 47 L. ed. 770, 772, 23 Sup. Ct. Rep! 491; The Golden Rod, 80 C. C. A. 246, 151 Fed. 6; St. Louis v. Wiggins Ferry Co.
11 Wall. 423, 20 L. ed. 192."
There is no constitutional objection to the enforcement, by an admiralty court, of a right of action for death, which survives under the provisions of the Delaware stat¬ ute.
Panama R. Co. v. Napier Shipping Co. 106 U. S. 280, 41 L. ed. 1004, 17 Sup. Ct. Rep. 572.
In the absence of congressional legislation on the subject, a state statute of the kind in question here is valid and enforceable in the Federal courts.
American S. B. Co. v. Chase, 16 Wall. 522, 21 L. ed. 3G9 ; Sherlock v. Ailing, 93 U. S. 99, 23 L. ed. 819; The Corsair (Bar¬ ton v. Brown) 145 U. S. 335, 30 L. ed. 727,
12 Sup. Ct. Rep. 949; The II. E. Willard, 52 Fed. 3S7 ; Ex parte McNiel, 13 Wall. 23G, 20 L. ed. 024; The Transfer No. 4, 9 C. C. A. 521, 20 U. S. App. 570, 61 Fed. 3G7 ; International Nav. Co. v. Lindstrom, GO C. C. A. 649, 123 Fed. 475; La Bour¬ gogne, supra; The Glendale, 26 C. C. A. 500, 42 U. S. App. 546, 81 Fed. G33 ; Burrell v. Fleming, 47 C. C. A. 598, 109 Fed. 489; Quinette v. Bisso, 5 L.R.A. (N.S.) 303, 09 C. C. A. 503, 130 Fed. S25; Robin¬ son v. Detroit & C. Steam Nav. Co. 20 C. C. A. 86, 43 U. S. App. 190, 73 Fed. 883;
267
Oct. Tebk,
Bupueme Coubt of
Humboldt Lumber Mfr3. Asso. v. Christo- pherson, 46 L.R. A. 264, 19 C. C. A. 481, 44 U. S. App. 434, 73 Fed. 239; Alaaka Com¬ mercial Co. v. Williama, 63 C. C. A. 92, 128 Fed. 362.
The objection by counael for the petition¬ er that to enforce such statutes allowing recovery for death, perhaps slightly differ¬ ent in form in the different states, would impair the uniformity of maritime law, is conclusively answered by the remarks of Mr. Justice Bradley in the case of The Lot- tawanna (Rodd v. Heartt) 21 Wall. 558, 572, 22 L. ed. 654, 661. See also the John G. Stevens, 170 U. S. 113, 126, 42 L. ed. 969, 974, 18 Sup. Ct. Rep. 544.
The law of England is now settled that an action in personam for injuries result¬ ing in death on the high seas is maintain¬ able in the court of admiralty.
The Bernina, L. R. 12 Prob. Div. 58, L.
R. 13 App. Caa. 1; The Orwell, L. R. 13 Prob. Div. 80; Davidsson v. Hill [1901] 2 K. B. 606.
In limitation proceedings, jurisdiction to apply the state statutes seems to be clear.
Butler v. Boston & S. S. S. Co. 130 U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612; The Albert Dumois, 177 U. S. 240, 259, 44 L. ed. 751, 761, 20 Sup. Ct. Rep. 595.
If it were impossible to enforce claims for death on the high seas in limitation pro¬ ceedings, by reason of the fact that the court of admiralty is without jurisdiction to en¬ tertain them, a shipowner could not limit his liability in respect of such claims.
Ex parte Phenix Ins. Co. 118 U. S. 610, 618, 626, 30 L. ed. 274, 278, 280, 7 Sup. Ct. Rep. 25.
The negligence of Captain Tunnell is not imputable to the other members of the Saginaw’s crew.
Little v. Hackett, 116 U. S. 366, 29 L. ed. 652, 6 Sup. Ct. Rep. 391 ; Farley v. Wil¬ mington & N. C. Electric R. Co. 3 Penn. (Del.) 581, 52 Atl. 543; The Bernina, supra.
Where an action is brought by a servant against a person other than his master, the fact that the fellow servant of the plaintiff may have been negligent, and that such negligence may have contributed to the acci¬ dent, is not a defense to the third person against whom suit is brought. The case against him stands or falls on the finding as to his own negligence. He is liable for an injury caused by the concurring negli¬ gence of himself and another to the same extent as for one caused entirely by his own negligence.
Grand Trunk R. Co. v. Cummings, 106 U.
S. 700, 702, 27 L. ed. 266, 267, 1 Sup. Ct. Rep. 493; Chicago, St. P. & K. C. R. Co. v. Chambers, 15 C. C. A. 327, 32 U. S. App. 253, 68 Fed. 153.
268
the United States.
Innocent parties suffering damage in a collision may recover all their damages from either vessel, and the question of contribu¬ tion comes up merely as between the two vessels.
The Atlas (Phoenix Ins. Co. v. The Atlas) 93 U. S. 302, 23 L. ed. 863; The Albert Dumois, 177 U. S. 240, 243, 260, 44 L. ed. 751, 754, 762, 20 Sup. Ct. Rep. 595; The Juniata (United States v. The Juniata) 93 U. S. 337, 23 L. ed. 930; The North Star (Reynolds v. Vanderbilt) 106 U. S. 17, 22, 27 L. ed. 91, 93, 1 Sup. Ct. Rep. 41 ; The Chattahoochee, 173 U. S. 540, 549, 43 L. ed. 801, 805, 19 Sup. Ct. Rep. 491; The New York, 175 U. S. 187, 44 L. ed. 126,
20 Sup. Ct. Rep. 67 ; Ex parte Union S. B. Co. 178 U. S. 317, 44 L. ed. 1084, 20 Sup. Ct. Rep. 904; The Conemaugh (Union S. B. Co. v. Erie & W. Transp. Co.) 189 U. S. 363, 47 L. ed. 854, 23 Sup. Ct. Rep. 504.
Mr. George Whitefield Betts, Jr., also argued the cause, and, with Messrs. Hunt, Hill, & Betts, filed a brief for respondents:
Since Congress has not legislated with ref¬ erence to the subject, the statute of the state of Delaware, as a sovereign state, al¬ lowing damages for death, is binding and effective on its vessels when on the high seas.
The Lottawanna (Rodd v. Heartt) 21 Wall. 558, 580, 22 L. ed. 654, 663; The Glide, 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct. Rep. 930; Ex parte McNiel, 13 WTall. 236, 20 L. ed. 624; Cooley v. Port Wardens, 12 How. 299, 318, 13 L. ed. 996, 1004; American S. B. Co. v. Chase, 16 Wall. 522,
21 L. ed. 369; Sherlock v. Ailing, 93 U. S. 99, 23 L. ed. 819.
The “Hamilton” and “Saginaw,” for the purposes of this proceeding, were parts of the territory of the state of Delaware, and subject to its laws.
Wilson v. McNamee, 102 U. S. 572, 26 L. ed. 234; Crapo v. Kelly, 16 Wall. 610, 21 L. ed. 430; The Lamington, 87 Fed. 752; Hall, International Law, 1895 ed. §§ 75, 77,
p. 262.
The weight of all well-considered judicial authority supports the jurisdiction exercised by the lower courts in this case.
Lindstrom v. International Nav. Co. 117 Fed. 170; La Bourgogne, 71 C. C. A. 489,
139 Fed. 433; McDonald v. Mallory, 77 N. Y. 546, 33 Am. Rep. 664; Re Clyde S. S. Co. 134 Fed. 95.
There is no logical reason why damages should be allowed when there is a contract between the decedent and the vessel, and refused when no such contract exists.
The Albert Dumois, 177 U. S. 240, 44 L. ed. 751, 20 Sup. Ct. Rep. 595.
207 U. S.
1907.
402-404
Old Dominion Steamship Co. v. Gelmork.
Mr. Justice Holmes delivered the opin¬ ion of the court :
This is a proceeding for the limitation of liability of the steamship Hamilton in re¬ spect of a collision on the high seas with the steamship Saginaw, in which the Saginaw was sunk and her chief mate and some of her crew and passengers were drowned. It is found, and not disputed, that both ves¬ sels were to blame. Both vessels belonged to corporations of the state of Delaware. A statute of that state, after enacting that ac¬ tions for injuries to the person shall not abate by reason of the plaintiff’s death, pro¬ vides that, “whenever death shall be occa¬ sioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow or widower of any such deceased person, or, if there be no widow or widower, the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned.” Act of Jan-