By the Court, Talcott, J.
The defendant is an Ohio corporation, sued as the owner of the propeller Wisconsin, which was an American vessel, enrolled and licensed for the coasting trade, and which took fire on'the evening of the 21st of May, 1867, was run upon Grenadier Island, in Lake Ontario, and burned to the water’s edge. The vessel was one of a line owned by the defendant, engaged in the transportation of passengers and freight between Ogdensburgh, in the State of Hew York, and intermediate ports, and Chicago.
The fire is assumed to have occurred on Lake Ontario, within the territorial limits of the county of Jefferson, in the State of Hew York, it being so alleged by the plaintiff in his complaint, and substantially admitted in the answer. The plaintiff, with his family, was a passenger upon the vessel, at the time of her destruction, and had with him his household furniture and other property, and a large amount of money, in United States legal tender notes and specie. He had been a resident of Lower Canada, and was, with his family and all his property, on his route emigrating to the State of Missouri. As a result of the destruction of the vessel, the plaintiff’s wife and four of his children were drowned, and all his property was destroyed, except a trifling amount consisting of melted specie, afterwards recovered from the hull of the vessel, and the plaintiff himself received some personal injury. The plaintiff made the contract for the transportation of himself and his family and property, with an agent of the defendant, stationed at Montreal, and the contract was for the transportation from Ogdensburgh to Chicago. The [385] plaintiff, however, for his own convenience, went upon the vessel, with his family and property, at Broekville, a Canadian port, at which the vessel touched on its route, after leaving Ogdensburgh.
The action was brought to recover damages for the destruction of the property of the plaintiff, and the injury, to his person, and the plaintiff had a verdict for $7300, which was the amount the jury, as it must be assumed, fixed as the value of his property destroyed, including $4000 in United States legal tender notes, and the damage sustained by the plaintiff from his personal injury.
The voluminous case and bill of exceptions contains numerous exceptions to the rulings of the court in relation to the admissibility of evidence, and to the rulings of the court on questions of law, most of which it is unnecessary to consider. The fundamental question presented, is as to the effect upon the case of the legislation of congress. The defendant, at various stages of the case, and in various forms, sought to invoke the application of the act of congress of March 3, 1851, entitled “An act to limit the liability of ship owners, and for other purposes.” The court, however," ruled that the act in question had no application to the case, apparently upon the ground that the action was 'for negligence, and was sought to be maintained by proof of negligence. The ruling’ was in effect that if the jury should he satisfied that the fire and loss were attributable to negligence, whether of the owners, or their servants, the master and mariners, then the act had no application to the case, and the defendant was liable as a common carrier, upon the principles of the common law; and much evidence was- admitted touching the intoxication and other conduct of the master and hands upon the voyage, and at the time of the disaster.
The act of congress of 1851, referred to, provides, in the first section, that “ no owner or owners of any ship or vessel shall be subject or liable to answer for, or make [386] good to any one or more persons, any loss or damage which may happen to any goods or merchandise, whatsoever, which shall be shipped, taken in or put on board any such ship or vessel, by reason or by means of any fire happening to or on board the said ship or vessel unless, such fire is Caused by the design or neglect of such owner or owners'' The third section of the same act provides that the liability of the owner or owners of any ship or vessel, “ for any act, matter or thing, loss, damage or forfeiture, done, occasioned or incurred, without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners, respectively, in such ship or vessel, and her freight then pending.’’ By the sixth section of the act it is provided “ that nothing in the preceding sections shall be construed to takeaway or affect the remedies to which any party may be entitled against the master, officers or mariners, for or on account of any embezzlement, injury, loss or destruction of goods, wares, merchandise, or other property put on board any ship or vessel, or on account of any negligence, fraud, or other malversation of such master, officers, or mariners, respectively.” - .
The seventh section of the act provides that the act shall not apply to the owner or owners “ of any canal boat, barge, or lighter, or to any vessel of any description whatever used on rivers or inland navigation.”
The claim of the defendant is, to exemption arising under an act of congress. The Supreme Court of the United States is the ultimate arbiter of the question, where the claim is denied, and its decisions upon the subject are binding and conclusive upon the State courts. The questions arising as to the. applicability to the case at bar, having been distinctly decided in the Supreme Court of the United States, it will be necessary, in this court, only to refer briefly to those decisions.
That the act of 1851 does not apply to vessels of the [387] character of, and engaged in the navigation and business in which the propeller Wisconsin was engaged, notwithstanding the exception of certain vessels by the seventh section, was distinctly decided in the case of Moore v. The American Transp. Co., (24 How. U.S. 1.) It was reiterated in Walker v. The Transportion Company, (3 Wall. 150.)
The plaintiff, in his complaint, alleged divers acts of negligence and misconduct on the part of the master, officers and crew of the vessel, and divers misrepresentations by the defendants’ agent at Montreal, concerning the seaworthiness and qualities of the vessel, and, against the objection of the defendant, gave a variety of evidence tending to show that the fire and the loss thereby occasioned, occurred and was greatly aggravated'by the want of skill, negligence and misconduct of the officers and crew, upon the voyage.
Apparently, the learned justice, at the circuit, applied to the act of 1851 tthe common law rule, that the act or neglect of the agent, within the scope of his employment, is the act or neglect of the principal, and considered the statute as having been designed only to relieve the owners of vessels, as carriers, from their common law liability as insurers, against all except the act of God or public enemies. He held that the act did not apply to a case where actual negligence on the part of the owner, or any of his servants or agents, was relied upon; and that the words of the first section, “ unless said fire is caused by the design or neglect of such owner or owners,” embraced the design or neglect of the agents, servants and employees of the owners. Although this might, upon the first impression, seem to be the reasonable and just construction of the language in question, the ruling must have been otherwise, had the attention of the court been called to the case before referred to, of Walker v. The Transportation Company, (3 Wall. 150.) In that case the precise [388] point was presented and adjudicated. The- substance of "the decision being thus summed up in the opinion delivered : “We are therefore of the opinion that in reference to fires occurring on that class of vessels to which the statute applies, the owner is not liable for the misconduct of the officers and mariners of the vessel, in which he does not participate personally.” That decision, it will be noticed, was made in a case where a corporation (The Western Transportation Company, a New York corporation,) was the owner, and sued as such.
It is manifest, therefore, that in view of these authoritative interpretations of the act of 1851, the ruling of the court below was erroneous.
By the third section of the act, the liability of the owner “ for any act, matter or thing, loss, damage or forfeiture, done, occasioned or incurred without the privity or knowledge” of such owner, is limited to the value of the interest of the owner" in the ship and her freight then pending. This, by its terms, includes cases of fire, and assumes that-the owner may be liable for acts or omissions which have occurred without his knowledge or privity, notwithstanding the provisions of the first section. But there is a difficulty in the case beyond what has been discussed.
It is now well settled that the admiralty and maritime jurisdiction, conferred by the constitution upon the courts of the United States, extends over vessels of the character of the Wisconsin, and over the waters where this disaster occurred; and that such jurisdiction was conferred by the first section of the third article of the constitution, and in no manner depends upon the act of 1845, which was enacted under the then prevalent idea, in accordance with previous decisions, that the maritime jurisdiction of the courts of the United States was limited to localities within the ebb and flow of the tide. The present doctrine, as repeatedly enunciated by the Supreme Court of the United States, is that the grant of jurisdiction by the constitution [389] extends over all navigable waters of the United States, and the vessels navigating the same. (See The Genesee Chief, 12 How. 443; The Hine v. Trever, 4 Wall. 555; The Eagle, 8 id. 15; N. E. Mu. Ins. Co. v. Denham, 11 id. 1.)
Though the jurisdiction, as conferred by the constitution upon the courts of the United States, is not, by the terms of that instrument, declared to be exclusive, yet it is acknowledged that the jurisdiction may, by congress, be rendered exclusive. (Martin v. Hunter’s Lessee, 1 Wheat. 337. The Moses Taylor, 4 Wall. 411.) This is admitted by the court of last resort in this State. (In re, the Steamboat Josephine, 39 N. Y. 19. Brookman v. Hummill, 43 id. 554.)
Congress, by the judiciary act of 1789, enacted that the district courts of the United States shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, saving to suitors the right to a common law remedy where the common law is competent to give it. This has been held to have effectually excluded the State courts from all jurisdiction in such cases, except where the common law affords a remedy; so that State statutes which have been enacted, providing remedies in the State courts which are not afforded by the common law, but only by courts of admiralty, are, as applied to cases which are within admiralty and maritime jurisdiction, unconstitutional and void. (See cases before cited.)
In admiralty, the term “torts” includes wrongs suffered in consequence of the negligence or malfeasance of others, where the remedy at common law is by action on the case. (Phila. &c. R. R. Co. v. Phila. &c. Steam Tow Boat Co., 23 How. U. S. 209.)
The jurisdiction of courts of admiralty in matters of contract, depends upon the nature and character of the contract, but in torts it depends entirely on locality. Judge Mason, delivering the opinion of the Court of Appeals, in the case of the Steamboat Josephine, before cited, says, the terms “ admiralty and maritime jurisdiction, according to [390] etymology and received nse, extend to all things done upon and relating to the sea, to transactions relating to commerce and navigation, and to damages and injuries upon the sea, and all maritime contracts, torts and injuries.” (39 N. Y. 22.)
Whether, therefore, the action, in this case, is upon the contract, or for the tort, it is clearly a “ civil cause of admiralty and maritime jurisdiction,” within the provisions of the ninth section of the judiciary act of 1789, and as such the proper district court of the United States has exclusive original cognizance thereof, unless the common law is competent to give the remedy. “ It is not a remedy in the common law courts which is saved, but a common law remedy.” (The Moses Taylor, 4 Wall. 411.)
The act of 1851, section 3, limits the liability of the owner “ for any act, matter or thing, loss, damage or forfeiture done, occasioned or incurred without the privity or knowledge” of the owner, to the value of the .interest of such owner in the ship and pending freight. While it is, perhaps, true, that any defect in the construction or fitting of the ship and its appurtenances, by means whereof loss or damage is occasioned, is to be attributed to the negligence of the .owner, notwithstanding the construction which the federal court has put upon the exemption in the first section, yet even in that case, the owner is only liable to the value of his interest in the ship and freight, unless he has knowledge of, or is privy to, the defect.
The fourth section provides for the case where loss or destruction of property shall be suffered by several freighters or owners of property on the same voyage, and the whole value of the ship and freight shall not be sufficient to make compensation to each of them, by enacting that they shall receive, from the owner of the ship, compensation pro rata ; and it provides that, for that purpose, the owners of the property lost and the owners of the ship, or any of them, may take the appropriate proceedings in any [391] court, for the purpose of apportioning the sum for which the owners of the ship shall be liable, amongst the parties entitled thereto. The same section provides, furthermore, that it shall be deemed a sufficient compliance with the act, if the owners of the ship shall transfer their interest in the vessel and freight, for the benefit of the claimants, to a trustee to be appointed by any court of competent jurisdiction, to act as trustee for the persons who may be legally entitled thereto, “ from and after which transfer all claims and proceedings against the owner or owners shall cease.”
It appears from the case, that there must be a considerable number of persons entitled to make claims against the owners of the Wisconsin, in consequence of the disaster in question, if any one is entitled; some of whom, besides the plaintiff, had commenced actions, and others had employed attorneys to prosecute their claims. And it is evident that the owners, if liable at all, must be' liable for a very large amount. ISTo evidence was given touching the value of the interest of the defendant in the vessel or the pending freight. The court had, before the opening of the defense, ruled, in effect, that the act of 1851. had no application to the case.
Section 4 of the act contemplates the calling in of all claimants, whether they shall have commenced actions or not, for the purpose of adjusting their respective claims, and the apportionment, pro rata, among them of the amount for which the owners are liable, under the act. It -contemplates the discharge of the owner from all actions and claims upon the ■ assignment of his interest in the vessel and freight to a trustee, who is, it must be assumed, to collect the pending freight, realize the value of the interest in the vessel, and to make distribution of the proceeds among the claimants, after the validity and amount of their respective claims shall have been, in some manner, under the direction of the court, settled and adjudicated.
The act of 1851, as is settled, is a valid enactment, under [392] the power of the "federal government, to regulate commerce, or its jurisdiction over the subject of admiralty and maritime law, as applicable to American vessels and waters. The owners of vessels, to which this act applies, are entitled to invoke its protection in the cases to which it is applicable, and the act cannot be superseded, disregarded or set aside, by the State courts, in a case to which it applies. A proceeding, therefore, to enforce the liability of vessel owners in a case to which the act applies, calls for the administration of the act; and remedies, in such a case, can only be granted according to the provisions of the act.
These remedies cannot be afforded by a court of common law, which has not the methods or the machinery whereby the act can be administered. It is," therefore, a case where the common law is not competent to give the remedy, within the meaning of the judiciary act of 1789. Such an action being a civil cause of admiralty and maritime jurisdiction, congress has, as it has been shown it may do, in effect excluded the jurisdiction of the State courts, because it has provided,á remedy for the owners of vessels, and for claimants in such cases, which the common law is not competent to give.
The proceedings required in the administration of the act of 1851 are such as are used in courts of admiralty, and are in accordance with the practice and methods' of procedure in such courts, and also, to a great extent, of courts of equity. But the act of 1789 does not save remedies in equity, but only remedies existing at the common law. It seems plain, therefore, that an action which requires the' administration of the act of 1851, can be originally brought only in the proper district court of the United States.
If, therefore, the claim made by the plaintiff, and the testimony adduced by him to sustain it, had related solely to such facts as the conduct of the seamen on the voyage, &c., which did not establish that the loss arose from the personal design or neglect of the owners, then the owners [393] were not liable. If the facts tended to establish that the fire was occasioned by neglect, which is to be attributed as the personal neglect of the owners, such, perhaps, for example, as some fault in the construction or equipment of the vessel; ■ yet, if this defect existed without the knowledge or privity of the owners, they would only be liable to the extent, and in the manner specified in the act of 1851, (except so far as that act is modified by the act of 1852, which will hereafter be considered;) and the remedy could not be afforded by a court of common law. Were it not, therefore, for the provisions of the act of 1852, it would be necessary to dismiss the suit, as was done by the Court of Appeals in the case of Brookman v. Hummill, (43 N. Y.. 554.)
In/1852 an act of congress was passed (ch. 106) entitled “ An act to amend an act to provide for the better security of the lives of passengers on board of vessels propelled wholly or in part by steam, and for other purposes.” That act contains numerous regulations relating to the construction, equipment, inspection and licensing of passenger boats propelled by steam. By the 30th section of this'act it is provided “ that whenever damage is sustained by any passenger, or his baggage, from explosion, fire, collision or other cause, the master and owner of such vessel, or either of them, and the vessel, shall be liable to each and every person so injured, to the full amount of damage, if it happens through any neglect to comply with the provisions of law herein prescribed, or through known defects or imperfections in the steaming apparatus, or of the hull.”
The 44th section enacts “ that all .parts of laws heretofore made, which are superseded by or are inconsistent with this act, are hereby repealed.” The provision of the 30th section, which makes the owners liable for the “ full amount” of the damage sustained by the passenger or his baggage, is clearly inconsistent with such parts of the act of 1851 as limits the owner’s liability to the value of his [394] interest in the vessel; and the declaration, that such liability is absolute, provided the damage arises from any neglect to comply with the provisions of the act of 1851, which make it requisite to the liability that the neglect to which the damage is to be attributed should be the personal neglect of the owner, and which limit the liability, even where the owner is liable, in the cases where the act or neglect is without his privity or knowledge.
- ■ The complaint contains sundry allegations, apparently based on the act of 1852, of omissions to comply with its provisions, and which are expressly stated to have been contrary to the provisions of the statutes of the. United States. For example : The act of 1852 requires (§ 3) that every such vessel “ shall have not less than three double-acting forcing pumps with chamber at. least four inches in diameter, two to be worked by hand and one by steam, if steam can be employed, otherwise by hand; one whereof shall be placed near the stern, one near the stem, and one •amidship, each having a suitable, well-fitted hose, of at least two-thirds of the length of the vessel, kept at all times in perfect order and ready for immediate use.”
The complaint alleges that there was no steam forcing pump on board the vessel, and only two hand forcing pumps, and “that the hose carried on said propeller for. use of said pumps was not of the length required by law, and was old, rotten and leaky, and would not hold or convey water, but was entirely insufficient and useless for the ex-tinguishment of fires on board said vessel,” &c. The complaint also alleges that the burning of said propeller, and the consequent destruction of life and property, would have been prevented if the vessel had been supplied with suitable .and serviceable pumps and hose as required by the statutes of the United States. Evidence was given on the trial tending to sustain these allegations.
So far as the action was- based upon the allegation of neglect to comply with the provisions of the act of 1852, [395] it was an action upon the statute. But where the action upon the 30th section of the statute of 1852 is in personam, the common law is competent to afford the remedy. Where an action is to enforce a right created by statute, if the statute prescribes a remedy, that specific remedy, and no other, can be pursued. If, however, the statute prescribes no remedy, resort may be .had, for its enforcement, to the common law, where that can afford an adequate remedy. (Dudley v. Mayhew, 3 Comst. 9.) Section forty-one, of the statute in question, enacts that “ all penalties imposed by this act may be recovered in an action . of debt by any person who will sue therefor in any court of the United States.” The statute imposes various specific pecuniary penalties for certain specified acts and neglects, and it is to those specific penalties that the 41st' section must be construed as referring.
The liability sought to be enforced in this action is not a penalty, within the meaning of the provision, and the act prescribes no remedy for the enforcement of the liability in question. Therefore, though the liability be founded upon a statute of the United- States, and the cause of action is a civil cause of admiralty and maritime jurisdiction, yet, as the remedy sought is one which can " be afforded by the common law; as the" state courts are not expressly, or by necessary implication, prevented from entertaining the action, and the statute which creates the liability prescribes no remedy, the liability to the extent specified in the act of 1852, may be enforced by action in a state court proceeding, according to the course of the common law.
The liability, however, under the 30th section of the act of 1852, is limited to damage sustained by the “passenger, or his baggage.” The damage to the passenger, intended by the act, is doubtless the injury to his person. As the title indicates, the general, object of the act was the better [396] protection of the lives of passengers, and has no reference to shippers.
If it had been intended to embrace all loss, or damage, occurring to any description of property on board, belonging to a person who happened also to be a passenger on board, the liability for baggage would not have been specifically declared. The act is not, therefore, inconsistent with the provisions of the act of 1851, so far as shippers, and as property, other than baggage, are concerned. The word baggage, as mentioned in the act of 1852, must receive the ordinary construction applied to that term.
A portion of the property lost by the plaintiff, on the occasion of the disaster, is described as his baggage, and he' also alleges injury to his person. The jury has specifically, and in answer to the interrogatory submitted to them by the court on that subject, found that the person of the plaintiff was injured. They have, in like manner, •found that a large amount of his property on board the vessel was destroyed. They have found these damages to have been occasioned by the neglect of the defendant, but they have not specifically assessed' the damages for the injury to the plaintiff’s person, or the loss of his baggage; neither have they found that the negligence of tbe.defendant, which they found, was a neglect to comply with any of the provisions of the act of. 1852, alleged in the complaint; and it does not appear from the record but that the neglect referred to in the special verdict, may have been some of the other acts which, under the ruling of the court, were admitted as evidence of negligence on the part • of the defendant, such as the conduct of the sailors, &c. The cause must therefore be remanded for a new trial, on which the evidence of negligence must be confined to neglect to comply with the provisions of the ■act of 1852, and to “ known defects, or imperfections, in the steaming apparatus, or the hull;” some one, or all, of which have caused the disaster; and the damages recov[397] ered must be confined to the damage sustained by the plaintiff' through the injury to his person, and the loss of his baggage.
[Fourth Department, General Term, at Rochester,
March 6, 1872,
Judgment reversed, and a new trial granted, costs to •abide the event.
Mullin, P. J., and Johnson and Takott, Justices.]