City of NORWALK.1 the Transfer No. 4 and the Car-Float No. 16. McCullough v. New York, 55 F. 98 (N.Y. 1893)

BBQWH, District Judge.

At about half past 3 o’clock in the morning of March 30, 1892, the steam tug Transfer Ho. 4, having a

railroad car float, 225 feet long, in tow on her starboard side, and projecting about 40 feet ahead of her, was proceeding up the East river against the ebb tide through the easterly channel between Blackwell’s island and the Long Island shore, at the rate of about 2 knots per hour by land. She was bound for the Hew Haven docks • in the Harlem river. The weather was fair; the night starlight, but dark. When near the upper end of Blackwell’s island she shaped her course to cross to the westward between the upper end of Blackwell’s island and Mill rock, and so into the Hárlem river. When from one to three hundred feet above the northerly point of Blackwell’s island, the forward end of her float came in collision with the steam propeller City of Horwalk, about 125 feet long, which had come down through the easterly channel between Flood rock and Hallett’s point, and was making for the westerly channel between Blackwell’s island and the Hew York shore. The square bow of the float struck the port side of the City of Horwalk, aft of her forward gangway, at an angle of about six points. A considerable part of the side of the City of Horwalk was carried away, and part of her cargo was knocked overboard, or shifted, so that she immediately took a strong list to starboard. She rapidly filled with water, and was soon after beached a short distance below on the Blackwell’s Island shore. The fireman and one of the deck hands in alarm jumped from the upper deck of the City of Horwalk to the bow of the float. The engineer, Patrick McCullough, husband of the libel-ant administratrix, was seen a few moments after to jump for the float from the rail of the steamer on the main deck; but failing to reach the float, he fell into the water and was drowned. The libel-ant sued under the state statute to recover damages for his death, as having been caused by the negligence of all the vessels. The steamboat company also filed its libel in rem against the Transfer Ho. 4 and the float, for the damages sustained by the City of Horwalk.

The tide was ebb at the time of the collision, and being about an hour before low water, the current was probably not less than 4 knots. The City of Horwalk, which did not slacken her full speed of about 8 knots, was, therefore, coming down at the rate of about 12 knots by land, and was making, therefore, about six times the speed of the tug and tow by land. When the former was abreast of Flood rock, she was about 550 yards from the place of collision, while the latter could not then have been more than about 90 yards from it. The lights of all the boats were properly burning.

1. In those positions, if the vessels had followed the usual courses, the pilot of the Horwalk should have seen the green light of the tug, and the tug should have seen the red light of the City of Horwalk. The witnesses on both boats, however, testify in the most positive manner that the lights seen at that time were precisely the reverse; the steamer showing only her green light, and the tug, her red light. Accordingly, the pilot of the tug testifies that he supposed the steamer was going down the easterly channel between Blackwell’s island and the Long Island shore; while the pilot of the steamer testifies that he supposed the tug was intending to keep up by the As

torla shore, to go between Mood rock and ETallett’s point. Those are the reasons stated by each for not giving the signals required by the inspectors’ rules. Each testifies that subsequently the other gave a sheer across) Ms bow, and thus brought about collision. A whistle was given by the City of Norwalk just before collision. But the evidence shows that the boats were then so near that the signal was of no use; and on account of their- nearness, also, the Norwalk did not reverse, but kept on at full speed, aa offering the only chance of escape.

Each, also, contradicts the other as to the positions of the boats respective!}- at the time they were first seen. But I tío not find it necessary to determine the precise positions of either vessel In the channel, or the lights wMch at different times might have been exhibited to each other; for both were swinging more or less, and different lights were no doubt exposed to view at different times during a short interval. Independently of these controverted points, there is sufficient to charge both, the steamer and the tug with fault; because it was a misunderstanding by each as to ihe supposed intent of the other, that caused the collision; and this misunderstanding could not possibly have happened had either given the signals required by She inspectors’ rules.

The vessels were visible to each other, and were probably seen 'by each other, when at least 700 yards apart, the steamer being-then a little above Flood rock, and the tug a little below the Blackwell's Island light. As respects the line of the channel, the two were very nearly ahead of each, other, although from some swinging by each, they may each have borne somewhat on the other's bow. The inspectors' rules imperatively required a signal to be given; and the circumstances were such, as made the omission of signals in this case specially dangerous and reprehensible. The tug was recognized as having a railroad float in tow, bound for the Harlem river. Even if the custom had been fixed and invariable for such tows to proceed up the easterly channel between Flood rock and Hallett’s point, the rule would have still required signal;; to be given. . But there was no such invariable custom, and the frequent practice of going to the southward of Little Mill rock iu the nighttime made it at least uncertain which course the tug and float would pursue. In passing around curves and through so swift a. current, there was from the first the greatest danger of collision unless a common understanding was had. Neither had any right in such a sitúa Hon as Hell Gate to trust to mere infer-once derived from the light seen, or the supposed position at a particular moment. The Transfer No. *5,* 49 Fed. Rep. 398. The rule,; as to signals are designed for the purpose of securing a common understanding and of preventing just such mistakes as the present. The Connecticut, 103 U. S. 710, 713; The Ice King, 52 Fed. Rep. 894, and cases there cited. The duty to give such a signal rested upon each alike, 'and both are alike to blame for the omission. Yfithout considering, therefore, any other faults alleged against Transfer No. 4, and the City of Norwalk, those vessels must both, foe held liable; but not the car float, as no fault in her is proved.

The Yew York & Norwalk Steamboat Company is, therefore, entitled upon its libel to a decree for one half its damages and costs.

2. The other libel is brought by the administratrix, for damages for the death of her husband, the engineer of the City of Norwalk. It has been held in this district and circuit in a number of cases that a seaman cannot recover against his own ship for damages occasioned by the negligence of any of the ship’s company in the details of navigation, such as the omission of proper signals, as in the present case, the owners being in no personal fault. Even the officers, in the performance of the ordinary duties of navigation do not stand as the representative, or alter ego, of the owners as respects the other employes on board. As respects such details, all are engaged in one common employment, viz. tbe navigation of the ship, in their several grades, and each person so employed fakes the risk of any negligence of the other in the common employment. The Queen, 40 Fed. Rep. 694; The Frank and Willie, 45 Fed. Rep. 494, and cases there cited; Quinn v. Lighterage Co., 23 Fed. Rep. 363. And such in effect is the decision of the supreme court in the case of Steamship Co. v. Merchant, 133 U. S. 375, 378, 10 Sup. Ct. Rep. 397. See, also, Hedley v. Steamship Co., [1892] 1 Q. B. 58. The deceased being, therefore, disabled from recovering anything from his own ship by reason of his special relations to her as a fellow servant, as respects her share in causing the collision, must be limited to a recovery of only one half his damage against Transfer No. 4; since the latter cannot be prejudiced, nor her liability be increased, by reason of that disability. The Queen, supra.

3. It is further contended that the administratrix can recover nothing from Transfer No. 4, because the deceased lost his life through his own contributing negligence in attempting to jump from tbe City of Norwalk to the float, when the circumstances made such an attempt dangerous. The right of action conferred by the statute is upon condition tbat “the deceased, if living, might himself have maintained an action” for his damages. By the law of this state the plaintiff’s contributory negligence bars his recovery; and such contributing negligence, if found, must, therefore, bar any recovery by the administratrix in an action in this court based upon the state statute. The Harrisburg, 119 U. S. 199, 214. 7 Sup. Ct. Rep. 140; The A. W. Thompson, 39 Fed. Rep. 115. I am of the opinion, however, that the attempt of the deceased to "jump to the float should not he treated as a legal fault, though a mistake, and an error of judgment. He had doubtless seen one or both of his shipmates jump just before. Coming suddenly from the engine room immediately upon the crash of the collision, when a considerable part of the side of the steamer had been carried away, and in tbe alarm attending such a catastrophe in the night-time, there was no time nor opportunity for the exercise of deliberate judgment, and his act should, I think, he treated as errors in extremis are treated, viz. as a mistake made under the apprehension of immediate danger, for which those who wrongfully

brought about the situation, and not himself, should be held to blame.

4. It is further contended that there can be no recovery for loss of life in this court, because there is no liability therefor under the general maritime law of this country, (The Harrisburg, 119 U. S. 199, 7 Sup. Ct. Rep. 140; The Alaska, 130 U. S. 201, 9 Sup. Ct. Rep. 461;) and because, as it is said, it is not competent for state legislation (1) to change the law in maritime cases, or (2) to expend the jurisdiction or a court of admiralty so as to authorize it to enforce a new and purely statutory cause of action.

The question raised is doubtless a most important one. It has not been directly adjudicated m the supreme court. In the case of The Corsair, 145 U. S. 335, 12 Sup. Ct. Rep. 949, it war, held that a. suit in rem, would not lie where the state statute gave no item, thereby confirming the decision of Judge Benedict in The Sylvan Glen, 9 Fed. Rep. 335, and that of Judge Butler in The North Cambria, 40 Fed. Rep. 655. In his opinion in the latter case, Judge Butler observes, that if the state statute indicated a purpose to create such a lien, he would “hold Iho statute to be inoperative in ¡his respect.” “The slates,” he says, “have no power to interfere with, the admiralty system, of laws; they can add nothing to if, nor take anything from it. The subject lies within the exclusive domain of congress.” Judge Hughes, also, iu Hie case of The Manbasset, 18 Fed. Rep. 918, says, that “the state cannot create a maritime right or confer jurisdiction, in any particular, upon an. admiralty court,” (page 828;) that the instances to the contrary, such as state statutes giving liens for supplies to domestic vessels, and actions for half pilotage where no services are rendered, are anomalous exceptions; and that “rights created by state statute, unless identical with mariiimo rights, are not maritime/ (page 927.) And in the recent case of Ingebregtsen v. Nord Deutscher Hoyd S. S. Co., before Judge Green in the district of New Jersey, an action •¿«, personam, which, from the record submitted to me, seems to bo in all respects analogous to this, was dismissed, on exceptions, for want of jurisdiction. So written opinion was delivered. This is the only case I have found in which an action in personam in such a case as this has been dismissed on that ground.

There have been a number of cases, on the .other hand, in which the validity of such state statutes and the jurisdiction of a court of admiralty to enforce them have been considered, and upheld. Among these are the cases of Holmes v. Railway Co., 5 Fed. Rep. 75, and The Oregon, 45 Fed. Rep. 62, 77, before Judge Deady; The Garland, 5 Fed. Rep. 924, 927, before the present Mr. Justice Brown; In re Long Island, etc., Transp. Co., Id. 599, 608, 609, in this court before Judge Ohoate; The Sylvan Glen, 9 Fed. Rep. 336, before Judge Benedict; and. The St. Nicholas, 49 Fed. Rep. 671, 677-679, before Judge Speer.

Besides these, there have been many other cases in which the right conferred by the state statutes to damages for death caused by negligence has been enforced in admiralty without question; in

this circuit, among other cases, that of Felty v. Steamship Co., 29 Fed. Rep. 332, affirmed on appeal by Mr. Justice Blatchford, 32 Fed. Rep. 112, where, as I am informed, the point was argued, hut not considered in the opinion; and in Daly v. Railroad Co., 44 Fed. Rep. 693, affirmed, on this point, in the court of appeal, 49 Fed. Rep. 956, 959, 1 C. C. A. 483, 486. And in the supreme court, although the question has been several times referred to, without adjudication, yet in the last case on the general subject, (The Corsair, 145 U. S. 335, 347, 12 Sup. Ct. Rep. 949,) both the validity of such state legislation, and the jurisdiction of the district courts to enforce it by libel in personam seem directly affirmed. Mr. Justice Brown, in delivering the opinion of the court, says:

Mr. Justice /Gray, also, sitting in the court of appeal in the subsequent case of The H. E. Willard, 52 Fed. Rep. 387, after stating that the admiralty jurisdiction conferred by the constitution cannot be enlarged or restricted by state legislation, says:

Against the power of state legislation in such matters, the doubts expressed by Mr. Justice Bradley in the opinion, in the case of Butler v. Steamship Co., 130 U. S. 527, 9 Sup. Ct. Rep. 612, are cited; in which, after stating that the limited liability act applies to an action brought in a state court under a state statute to recover damages for death caused by negligent navigation within the state limits, he says:

But in the case of The Corsair, three years later, the opinion of the supreme court does not continue the expression of such doubts; and what is said, though obiter, is plainly in support of the maintenance of such libels in personam.

Aside from this expression, however, it seems to me that the previous decisions of the supreme court had substantially covered the case, both as to the competency of the state to create the right, and of a court of admiralty to enforce it.

If it was not within the power of the state “to create such a liability in a maritime case at all,” but within the power of congress alone, then clearly the statutes of all the 80 or more states creating such a liability would be void, so far as they relate to deaths in collision cases arising on navigable waters. For all snob waters are within “the dominion of the admiralty and maritime jurisdiction,” and no action, therefore, in such cases, could he sustained in the state, courts any more than in the courts of admiralty. But the validity

of judgments giving damages in the state courts in such cases and the validity of the statutes on which they were founded, have been twice directly and expressly adjudged: First, in Steamboat Co. v. Chase, 16 Wall. 522, and afterwards in Sherlock v. Alling, 93 U. S. 99. These suits arose on writs of error to judgments in the state couris of Rhode Island and Indiana for deaths in collision cuses like the present, based upon similar statutes of those states, in the former case, the validity of the act was attacked as an incroacliment on the admiralty and maritime power oí congress; in the latter, as an encroachment on the commercial power. In both, canes the validity of the statutes was upheld. Id the latter, the careful opinion delivered by Mr. Justice Field contains what seems to me a full answer to all objections against the authority of the states to pass statutes of this character. He says:

Aside from the grant of power to regulate foreign and interstate commerce, the constitution, it must be remembered, contains no direct grant to congress of legislative power over the maritime law. Its authority upon that subject, over and above the power derived from Hie commercial clause, though no doubt now firmly established, (Butler v. Steamship Co., 130 U. S. 527, 9 Sup. Ct. Rep. 612; In re Garnett, 141 U. S. 1, 14, 11 Sup. Ct. Rep. 840,) rests upon implication only.

The grounds of this implication, briefly stated, are that the constitution, in extending the judicial power to all cases of maritime jurisdiction, presupposes a certain body of maritime law as its necessary attendant; that this law is not only a matter of interstate and international concern, but requires, also, harmony and consistency in its administration, and hence cannot be subject to defeat or impairment by liability to the diverse legislation of numerous

states; and that it cannot be supposed that the states, in parting with all control over the judicial administration of maritime causes, intended to reserve to themselves a general legislative power over the same subject; and that congress must, therefore, he the only body competent to make any needed changes in the general rules of the maritime law.

This view, however, does not exclude state legislation upon matters of merely local concern, which can he much better cared for under state authority, and which have always been thus cared for; nor does it exclude general legislation by the states, applicable alike on land and water, in their exercise of the police -power for the preservation of life and health, though incidentally affecting maritime affairs; provided that such legislation does not contravene any acts of congress, nor work any prejudice to the characteristic fea Lures of the maritime law, nor interfere with its proper harmony and uniformity in its international and interstate relations. The long-established doctrine in the supreme court has been that in this field of “border legislation,'’ state laws are valid until congress interposes, and thereby excludes further state legislation. The Lottawanna, 21 Wall. 558, 581; Cooley v. Port Wardens, 12 How. 299; County of Mobile v. Kimball, 102 U. S. 691, 697-699; Bowman v. Railroad Co., 125 U. S. 507, 8 Sup. Ct. Rep. 689, 1062; Leisy v. Hardin, 135 U. S. 100, 120-122, 10 Sup. Ct. Rep. 681; Manchester v. Massachusetts, 139 U. S. 240, 266, 11 Sup. Ct. Rep. 559; Ficklen v. Taxing Dist., 145 U. S. 1, 12 Sup. Ct. Rep. 810. There is no reason why local state legislation shouldi be deemed any more restricted by the implied power of congress over maritime legislation, than it is by the express grant of the commercial power. That the rule should be ' the same on each subject was intimated by Chief Justice Marshall in U. S. v. Bevans, 3 Wheat. 385, and by Mr. Justice Curtis in Smith v. State of Maryland, 18 How. 71, 76. The subject has been but little discussed, as compared with the frequent review of the commercial power of congress and its limitations.

The instances, however, in which new legal rights, created by state authority in maritime affairs, have been recognized and enforced, are numerous and diverse. They embrace — First, liens for supplies to domestic vessels, (The Lottawanna, 21 Wall. 558;) second, liens for master’s wages, (The Mary Gratwick, 2 Sawy. 342, affirmed by Mr. Justice Field; The Louis Olsen, 52 Fed. Rep. 652; The J. E. Rumbell, [March 6, 1893,] 13 Sup. Ct. Rep. 498;) third, liens for damages for refusing to load under a charter, (The J. F. Warner, 22 Fed. Rep. 342, by Mr. Justice Brown;) fourth, liens for double wharfage, (The Virginia Rulon, 13 Blatchf. 519;) fifth, actions for half pilotage where a pilot’s services were refused, (Ex parte McNiel, 13 Wall. 236, and Ex parte Hagar, 104 U. S. 520, re-affirming Cooley v. Port Wardens, supra;) sixth, liens for expenses of seamen at a quarantine hospital, (The Wensleydale, 41 Fed. Rep. 829;) seventh, regulations as to rivers, harbors, and wharves, (County of Mobile v. Kimball, supra; Escanaba & L. M. Transp. Co. v. Chicago, 107 U. S. 678, 2 Sup. Ct. Rep. 185;

Transportation Co. v. Parkersburg, 107 U. S. 691, 701-704, 2 Sup. Ct. Rep. 732; Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. Aiken, 121 U. S. 444, 7 Sup. Ct Rep. 907; Steamship Co. v. Pennsylvania, 122 U. S. 326, 346, 7 Sup. Ct. Rep. 1118; eighth, penalties imposed for the protection of fisheries, (Manchester v. Massachusetts, supra; Smith v. State of Maryland, 18 How. 71;) ninth, quarantine laws, (Morgan’s L. & T. R. & S. S. Co. v. Louisiana Board of Health, 118 U. S. 455, 6 Sup. Ct. Rep. 1114;) tenth, regulating the charges of floating elevators, (Budd v. New York, 143 U. S. 517, 12 Sup. Ct. Rep. 468;) eleventh, establishing and regulating ferries, (Gibbons v. Ogden, 9 Wheat. 1, 203; Conway v. Taylor, 1 Black, 603; Wiggins Ferry Co. v. City of East St. Louis, 107 U. S. 365, 2 Sup. Ct. Rep. 257; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 204, 214-217, 5 Sup. Ct. Rep. 826.)

Besides these new rights created, of so diverse a character, there are many other local regulations established under state authority, concerning the navigation, of rivers and harbors, anchorage grounds, port wardens, navigation about piers and slips, and wharf and ferry privileges, which give birth to many specific rights that a,re constantly recognized and enforced in the trial of admiralty causes. These acts rest either upon the police power of the states, or on the local nature of the subject, and the absence of any legislation by congress on the same matter. Gloucester Ferry Co. v. Pennsylvania, ut supra. They show that over quite a wide range of local interests, state legislation is competent to deal with purely maritime subjects, and to create rights and duties which must be recognized in admiralty causes, though they may nox change any of the characteristic principles of the maritime law.

Still further, it must be borne in mind that the maritime law is not in Itself a complete and perfect system. In all maritime courts ill ere is a considerable body of municipal law that underlies the maritime as the basis of its administration. Strictly speaking, the maritime law is that alone which is peculiar to, or which specially concerns, maritime transactions. The genera! body of che law as regards the ordinary, fundamental rights of persons and property, whether on land or sea, is, as observed by Mr. Justice Field in the passage above quoted, derived from the constituted order of the state, L e. from the municipal law, which courts of admiralty to a considerable extent must necessarily adopt and follow, subject only to the modifications which the special characteristics of the law of the sea impose on maritime subjects. These general rights and regulations of persons and property are subject to the control of the state and may be changed as the state sees fit, if they are not regulated by congress and do not trench upon its exclusive authority. The administration, of the law in the maritime courts of different countries, therefore, though it might be the same in all that is peculiar to the maritime law, might in other respects differ widely, through the differences in the municipal law which in part enters into the adjudication of maritime causes.

It was upon the recognition of this principle alone, as I understand, that in the case of The Harrisburg, 119 U. S. 199, 213, 7 Sup.

Ct. Rep. 140, it was decided that no action could be maintained in a court of admiralty of this country for loss of life, aside from statutory authority; namely, because there is no rule on this subject belonging specially to the maritime law as such. “It [the maritime law] leaves the matter untouched.” Page 213, 119 U. S., and page 146, 7 Sup. Ct. Rep. And since the maritime courts in each country follow their own municipal law as regards giving damages for death; and inasmuch as by the common law of this country such a cause of action does not survive, — the latter rule must, therefore, obtain in our courts of admiralty. In other words, it is the municipal law that on such a point determines the law applicable in a court of admiralty.

There seem, therefore, to be at least three classes of subjects, (none of them affecting, however, what is peculiar to the general maritime law, or touching its international or interstate relations,) in which state legislation is competent to affect the rights of parties in courts of admiralty, in the absence of legislation by congress, viz.: (1) In the establishment of the general rights of persons and property within the state limits; (2) in the exercise of the police power; (3) in certain local regulations of a maritime nature.

The statute of this state which authorizes a recovery of “the pecuniary damages,” “in behalf of a widow, husband, children or next of kin,” falls within each of the above classes. (1) It is a general law of personal rights, not specially directed to commerce or navigation, but applying alike on sea or shore; (2) it is within the police power; for it is “a statute intended to protect life,” (Huntington v. Attrill, 146 U. S. 657, 675, 13 Sup. Ct. Rep. 224,) through one of the most effectual of all sanctions, viz. by imposing on the offender a liability to pay a pecuniary indemnity; while in the interest of the public, it also tends to avert the dependency or pauperism of the survivors by shifting the burden of their support, in part at least, from the community to the authors of the wrong; (3) it is local in its scope and interferes in no way with any needful .uniformity in the general law of the seas, or with international or interstate interests. Its validity, therefore, as applied to maritime affairs within the state limits, seems to me clear.

5. Jurisdiction. This court has jurisdiction. of the cause, from the nature of the subject, and from the place where, and the causes, out of which, the claim arises. The claim is for damages growing out of a tortious collision, through faults of navigation, arising on navigable waters of the United States. That is a purely maritime transaction. The case is, therefore, a maritime pase; and as such, it is within the original field of the jurisdiction of this court, as established under the constitution and the judiciary act. The court has authority, therefore, to hear and to determine the cause, whether the law applicable to it entitles the libelant to any damages or not. The latter question is wholly different from the question of the jurisdiction of the court. If the state statute has force to affect this transaction as a maritime case, then this court, in hearing the cause, must give effect to the state law. If the

state act is not competent and has no such force, then this court must disregard it. In either case, the court has jurisdiction to hear and determine the cause on its merits as a maritime cause, and is bound to apply whatever law is operative upon it.

This was the precise point adjudicated in Ex parte Gordon, 104 U. S. 515, and in Ex parte Perry Co., Id. 519, where a writ of: prohibition was denied in each cause on the sole ground that the case was by its nature one that the district court had authority to hear and determine. It would, indeed, be a singular anomaly in our jurisprudence if, under state legislation, the state courts could entertain suits that the admiralty courts could not entertain in collision causes, which from time immemorial have been among the characteristic subjects of maritime jurisdiction.

It is urged that the death claim is purely statutory, and not maritime, and lienee not cognizable in this court; that state legislation cannot create a new maritime cause of action; and that to execute state statutes would be to extend the jurisdiction of the court, which, it is conceded, state legislation cannot do. But these objections seem to me to be a11 virtually covered by what has just been said; and to have been repeatedly overruled in substance by the supreme court.

The stale statute does not create the cause of action. It does, indeed, create a new right, and liability; but it does not create a single one of the elements that make up the fundamental cause of action, that is, the essential grounds of the demand. All these elements exist independently of the statute, and are not in the least affected by it. It no more creates the wrong, or the damage, than it creates the negligence or the death; nor does it, as in the pilotage and double wharfage cases, add anything to the damages sustained. It authorizes no recovery except for “the pecuniary damages” already existing. It is apparent, therefore, that, as suggested by Mr. Justice Clifford in Steamboat Co. v. Chase, 16 Wall. 532, the statute does no more than “Lake the case out of the operation of the common-law maxim that an action fox* death dies with the person.”

The effect of the statute is to attach a new legal right and responsibility to a purely maritime transaction. But that does not make the ease in its essential nature any the less a maritime case. Hor does the enforcement of the statute extend the jurisdiction of the court, any more than the giving of damages for the first time for injuries to a cargo of dynamite or petroleum would be an extension of jurisdiction because those articles were new to commerce. Ex parte McNiel, 13 Wall. 236, 243; The Oregon, 45 Fed. Rep. 62, 77; Dennick v. Railroad Co., 103 U. S. 11, 17-18, by Mr. Justice Miller.

If the mere fact that the rights or responsibilities sought to be enforced were created by new legislation, made actions brought to enforce those rights no longer truly maritime, but purely statutory, in the sense of the objection here considered, and therefore outside of the jurisdiction of this court, then all rights based on any new legislation, either by the states or by congress in maritime

affairs, would be equally outside of the jurisdiction of this court to enforce; since it is not within the power of congress any more than of the states, to extend the admiralty jurisdiction of this court to matters not really maritime.

On that theory the law of our admiralty courts would be unalterable, and statutes such as those limiting the liability of shipowners, would not be enforceable in this court. The objection is plainly mistaken. Mr. Justice Bradley, in referring to this point in the case of The Lottawanna, 21 Wall. 576, says:

The principle, indeed, is now well settled, that the federal courts may enforce rights newly created either by the states or by congress, which by reason of their subject or the relations of the parties, fall within any branch of the federal jurisdiction; and that such jurisdiction cannot be restrained even by the express enactment of the state statute. Railway Co. v. Whitton, 13 Wall. 270, 286; Ellis v. Davis, 109 U. S. 485, 497 et seq., 3 Sup. Ct. Rep. 327; Providence, etc., Co. v. Hill Manuf'g Co., 109 U. S. 589, 3 Sup. Ct. Rep. 379, 617; Dennick v. Railroad Co., 103 U. S. 11, 17-20; and see cases collected in 1 Fost. Fed. Prac. § 7. Maritime legislation by congress and by the states has accordingly been frequent and copious; and in the great majority of current admiralty causes, the rights and obligations of the parties are either created or largely modified by national or state legislation, enacted since the adoption of the federal constitution.

The amendment of the law applicable to a maritime case, or the creation of new rights or responsibilities in maritime affairs, by any competent legislation, state or national, therefore, does not make the claim under it any the less maritime; nor withdraw the case from the jurisdiction of this court. The question really returns to the competency of state legislation to affect the law applicable to a maritime transaction; and that such legislation is competent, under certain narrow limits and restrictions which this statute does not transgress, is, it seems to me, sufficiently clear for the reasons above stated.

The objection that the case is not a marine tort, but only a statutory one, is of the same nature as the objection last considered. Before the statute, the case was damnum absque injuria; by the statute, it became at once a tort in the full legal sense, and a marine tort by reason of its place, its nature, and its circumstances, within the definition given by Mr. Justice Blatchford in Leathers v. Blessing, 105 U. S. 626, 630, and as stated also in previous decisions. New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344, 394.

It may be said that if the case under the statute constituted a marine tort, a lien by implication would have been allowed by the supreme court in the decision of The Gorsair, upon the analogy ot

Mens allowed in other cases of marine forts, though the state statute gave no express lien; and that the refusal by the supreme court to recognize any implied lien is, therefore, by implication, a decision that the case is not one of a marine Sort. But there is no general rule of the maritime law that .attaches a lien or privilege to personal torra. Rule 16 in admiralty provides, on the contrary, that for "assault or beating on the high seas, the suit shall be in persona,m only.” And in the maritime codes of all the principal maritime countries for more than *200 years at least, no lien or privilege for pure torts, or foi damages arising from collision, except as regards injuries to the ship’s own cargo involving a breach of her contractual relation, has ever been allowed, until within a recent period in England and this country, and in a few recent codes, which have allowed in collision cases a privilege oí a very low rank. See The Young America, 30 Fed. Rep. 799; The Gratitude, 42 Fed. Rep. 299, The establishment of a lien in England for collision damages to property, (The Bold Buccleugh, 7 Moore, P. C. 267, (apparently arose through a niisinterprelíiuoíi oí the moaning of tho ancient practice of the proceeding in rrn, which, as pointed out by President «Tenue in The Dictator, [1892] Prob. Div. 394, did not involve the existence of a,my lien or privilege on the ship, in the sense in which wo now understand it; but was only a means of compelling an appearance, and included a special citation to the master, as in the continental practice. 2 Brown, Civil Law, 397; The Sloop Merchant, Abb. Adm. 5; Mar. Col. (2d Ed.) 73. Precisely how or when the practice arose of dropping the personal defendant in anils in ¿be English admiralty, is not now determinable; but it was during the long controversy between the admiralty and common-law courts; and it was probably a mere device of the admiralty courts to avoid the persecution of prohibitions, which were not issued where no personal judgment was asked or rendered, Zouch, Adm. 125. Tailing the maritime law as a whole, a lien or privilege for personal torts, or even for damages to property, save the ship’s own cargo, is the exception and not the rule; and by the recent act of congress, approved February 13, 1883, such liens arising from faults or errors of navigation, after July 1st, may possibly be held to be entirely abolished in this country.

It is evident, however, that the supreme court, in the case of The Corsair, did not deem it necessary to consider at all this phase of the case; but chose to look upon the state statute, not as establishing any general principle upon which remedies were to be extended by analogy, but as giving merely a particular remedy, which was to be enforced in the manner, and with the conditions and limitations, provided by the statute. The Corsair, 145 U. S. 347, 12 Sup. Ct. Rep. 949; The Harrisburg, 119 U. S. 199, 214. 7 Sup. Ct. Rep. 140.

That a new right is none the less maritime because based upon state legislation, where the subject-matter is maritime, was necessarily involved in the very recent case of The J. E. Rumbell, (in the supreme court, March 6, 1898,) 13 Sup. Ct. Rep. 498. There the priority of a lien, created by the statute of Illinois, for supplies and master’s wages, as against a prior recorded mortgage,

Kas been most elaborately and broadly treated by Mr. Justice Gray. Conceding that neither the lien nor the jurisdiction of the court to enforce it, could be sustained except upon its maritime character, the court repeatedly affirmed, and the decision was based upon this ruling, that the lien, though resting wholly upon the state statute, was “in the nature of a maritime lien,” and, therefore, enforceable in the district court and entitled to priority over the previous mortgages; thus settling not only the long-vexed question of the right of priority, but the maritime nature of the state lien itself. (The Madrid, 40 Fed. Rep. 677; The Lyndhurst, 48 Fed. Rep. 839, 842; The Samuel Marshall, 49 Fed. Rep. 754, 758, affirmed 54 Fed. Rep. 396, 401.) The court says:

So in the present case, it may be said, that the negligence is maritime, and the right or remedy which the law gives to redress it, is maritime in its nature, and is enforced in admiralty by reason of its maritime nature only. The difference where the original subject-matter and the essential cause of action are not maritime, is clearly pointed ,out by Judge Webb in the case of The H. E. Willard, 53 Fed. Rep. 599, affirmed 52 Fed. Rep. 387. The recent decisions of the supreme court do not, therefore, warrant the inference that a death claim is not to be treated as a marine port, and therefore not cognizable in this court; but they appear to me to support the opposite view.

In the case of The Harrisburg, 119 U. S. 199, 7 Sup. Ct. Rep. 140, the libel was dismissed, not because of any lack of jurisdiction, but because of the absence of any act of congress creating the right; and because “the maritime law, as accepted and received by maritime nations generally, leaves the matter untouched,” and the consequent absence of any distinct rule in the maritime code; and therefore the courts of admiralty, it was held, must take their rule on that subject from the municipal law. From that decision it necessarily follows, that within the sphere in which the municipal law i^s valid and operative, viz. within the navigable waters of the state, the state law, in the absence of any act of congress, as to the survival of any such right of action, or any distinctively maritime rule applicable to the case, must furnish the rule of law as to the right of recovery. And this in effect is precisely what was said and applied in the case of The Corsair.

Finally, it is now settled, that the provisions of the acts of congress -limiting liability in matters of navigation, apply to death claims likfe the present when brought in the state courts; that such'claims are within the language of section 4283, Rev. St., and that they are constructively within sections 4284 and 4285; that such suits in the state courts may, therefore, be enjoined, and the litigation and thé adjustment of all such claims transferred to the courts of admiralty. Butler v. Steamship Co., 130 U. S. 527, 551, 9 Sup. Ct. Rep. 612; Craig v. Insurance Co., 141 U. S. 638, 12 Sup. Ct. Rep. 97.

These acts, as thus construed by the highest authority, are alone fro indent, to show the will of congress that the district courts shall take cognisance of claims like the present. If such claims are valid, and may be rightfully prosecuted to judgment in the state courts, as Hie supreme court has repeatedly determined, then the right to prosecute Oiein in the state courts cannot be enjoined by the district courts under the limited liability acts, unless the demanda come within the jurisdiction of the district courts; nor untestt the latter at the same time take on themselves the recognition and the enforcement of these demands. See The St. Nicholas, 49 Fed. Rep. 671, 677. But besides that, inasmuch as these death claims are cow held by the supreme court to be by construction wiiMu the provisions of section 4284, Rev. St., it follows that such «ia?:n?m¡>3 must have the right to the remedy which that section gives; and they may, therefore, at once file a libel in -ilie district court to establish their own claims, and at the same time ¡wine; in all other creditors entitled to share in a pro rata distribution. The Scotland, 105 U. S. 24, 25; The Dimock and The Alva, 52 Fed. Rep. 598, 599. Since, therefore, under the provisions of the acts of congress, ¡he recovery of damages for death In marinarle cases may be wholly withdrawn from the state courts, by cider of the admiralty courts, after the actions are begun in the wate courts, or may be prosecuted in the first instance in a court of admiralty for a pro rota distribution, citing all dirimente to appear, it is evident that a court of admiralty must have jurisdie tlon over the whole subject, and may award the damages given by the state statute upon a simple libel, as the greater includes the less.

The administratrix is entitled to a decree against the railroad company for $2,500, with interest and costs; and the steamboat company to a decree for half its damages against Transfer No. 4. A reference may be taken therein to compute the amount if not agreed upon.