New Jersey Steam Navigation Company v. MERCHANTS'BANK.
This text of 47 U.S. 344 (New Jersey Steam Navigation Company v. MERCHANTS'BANK.) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
*393 Mr. Justice CATRON.
1. In' my judgment, the New Jersey Steam Navigation Company were entitled to all the benefits of Hamden’s contract with them, in regard to the property of others with which he (Hamden.) was intrusted, for the purpose of transporting it in his crate. And though the company can rely on all the defences which they could have relied upon if Hamden had sued them, still .1 think the libellants can maintain this suit.
Had a trover and conversion been made of the money sued for, or an open trespass been committed on it by throwing it overboard, by the servants or agents of the company, then either Hamden, the bailee of the bank, might have sued the company, or the bank might have sued. As to the right to sue, in the case put, by the bank, there can be no doubt; as such acts were never contemplated by the contract, nor covered by it.
The Navigation Company were responsible to Harnden (and to those who employed him), notwithstanding the contract, for acts of gross negligence in transporting the property destroyed; as, for instance, if the servants of the company, in navigating the vessel, omitted to observe even slight diligence, and failed in the lowest degree of prudence, to guard against fire, then they must be deemed in a court of justice to have been guilty of gross negligence; by which expression I mean, that they acted reckless of consequences as respected the safety of the vessel and the lives and property on board and in their charge, that such conduct was contrary to common honesty, and that the master and owners were liable for loss by reason of such recklessness, as they would have been in case of an affirmative and meditated fraud that had occasioned the same loss, and that this burning was a tort.
Whether it is evidence of fraud in fact, as Sir William Jones intimates, or whether it is not, as other writers on bailments declare, is not worthy of discussion. The question is this. Is the measure of liability the same where a ship is burned because the master and crew did not observe the lowest degree of prudence to prevent it, and in a case where she is wilfully burned ? This is the question for our consideration. In the civil.law, I apprehend no distinction in the cases put exists; nor do I believe any exists at common law. But by the laws of the United States, such gross and reckless negligence as that proved in the case before us was a fraud and a tort on the shippers, and the fire that occurred, and consequent loss of life, a crime on the part of the master.
By the twelfth section of the act of 1838, chap. 191, every person employed on any steamboat or vessel, by whose negli *394 gence to his respective duty the life of any person shall be destroyed, shall be deejned guilty of manslaughter, and subject to conviction and imprisonment at hard labor for a time not exceeding ten years. 5 Statutes at Large, 306. Here the legislature have put gross negligence in the category of crimes of a high grade, and of, frauds of Course.; nor can this court assume a less stringent principle, in a case of loss of property, than Congress has recognized as the true one, if life be destroyed by such negligence. From the facts before us, I feel ■warranted in saying, that, had the captain survived the destruction of the ship and the loss of many lives by the disaster, he would have been clearly guilty according to the twelfth section.
One single .circumstance is decisive of the culpable negligence. By section ninth of the above' act, it is made “ the duty of the master and owner of every steam-vessel employed on the sea, to provide, as a part of the necessary furniture, a suction-hose and fire-engine and hose suitable to he worked on said boat in case of fire, and carry the same upon each and every voyage, in good order.” This vessel, had something of the kind; but it was in no order for use, and a mere delusion, and a sheer fraud on the law and the public. Had there been such an engine and hose, the fire-could have been extinguished in all probability, as Í apprehend.
2. There, was only a .single rigged bucket on board, and nothing else to reach the water with, and the money of libellants was thrown from the boxes, and they used to lift water.
3. The flue from the furnace ran through three decks, and was red-hot through the three decks, and the cotton was stowed within eighteen inches on all sides of this red-hot flue, and the bales pressed in, three tiers deep, from the boiler-deck to the next deck, so that it would have been with much difficulty that the cotton could have been removed should-afire occur; there the fire did occur, and.the cotton was not removed,— wherefore the vessel was burnt. And, from the mode of stowage a fire could hardly be avoided, and was to be expected and guarded against.
Then as. to the jurisdiction: The fire occurred on the high sea, It was a tort there. . The case depends not on any contract, but on mere tort standing beyond, the contract. The locality of the tort is the locus of jurisdiction. Locality is the strict limit. 2 Bro. Adm. Law, 110; 3 Bl. Comm. 106. The conflict between the Luda and De Soto, in Louisiana, 1847, 5 Howard. But especially 2 Bro. Adm. Law, 144, which lays down the true doctrine as follows: —
“ We have now done with the effect of the master’s con *395 tracts or violence, as to his owners, and proceed to consider how he and they "are affected by his negligence. And, first, as soon as merchandises apd other commodities be put. on board a ship, whether she be riding .in a port or haven, or upon the high sea, the master is chargeable therewith; and if the same be lost- or purloined, or sustain any damage, hurt, or loss, whether in the haven or port before, or upon the seas after-, she is upon her Voyage, whether it be by mariners or by any other through their permission, the owner of the goods has his election to charge either master or owners, or both, at his pleasure, —though he can have but one satisfaction, — in a court of' common law, if the fault be committed infra carpus comitatus ; in the admiralty, if super altvm mare ; and if it be on a place where there is divisum imperium, then in one or the other, according to the flux or reflux of the sea.”
I think the libel in this case covers my view of it. It sets out the facts of how the money was shipped in general terms, but avers it was lost by fire, and by reason of an insufficient furnace,- insufficient machinery, furniture, rigging, and equipments, and' the careless, negligent, and improper management of said steamboat Lexington by the servants and agents of the-Navigation Company.
If this technical objection had been addressed to the court below, it could have been easily remedied, and cannot be favorably heard here, now, no doubt, made for the first time.
I .therefore, think there was jurisdiction in the Circuit Court to try the libel; and, secondly, that the decree was proper, and ought to be affirmed, without alteration.
Mr. Justice DANIEL.
The inquiries presented for consideration in this cause resolve themselves into two obvious or natural divisions; the one involving the rights of the parties as growing out of their alleged undertakings; the other the right.
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*393 Mr. Justice CATRON.
1. In' my judgment, the New Jersey Steam Navigation Company were entitled to all the benefits of Hamden’s contract with them, in regard to the property of others with which he (Hamden.) was intrusted, for the purpose of transporting it in his crate. And though the company can rely on all the defences which they could have relied upon if Hamden had sued them, still .1 think the libellants can maintain this suit.
Had a trover and conversion been made of the money sued for, or an open trespass been committed on it by throwing it overboard, by the servants or agents of the company, then either Hamden, the bailee of the bank, might have sued the company, or the bank might have sued. As to the right to sue, in the case put, by the bank, there can be no doubt; as such acts were never contemplated by the contract, nor covered by it.
The Navigation Company were responsible to Harnden (and to those who employed him), notwithstanding the contract, for acts of gross negligence in transporting the property destroyed; as, for instance, if the servants of the company, in navigating the vessel, omitted to observe even slight diligence, and failed in the lowest degree of prudence, to guard against fire, then they must be deemed in a court of justice to have been guilty of gross negligence; by which expression I mean, that they acted reckless of consequences as respected the safety of the vessel and the lives and property on board and in their charge, that such conduct was contrary to common honesty, and that the master and owners were liable for loss by reason of such recklessness, as they would have been in case of an affirmative and meditated fraud that had occasioned the same loss, and that this burning was a tort.
Whether it is evidence of fraud in fact, as Sir William Jones intimates, or whether it is not, as other writers on bailments declare, is not worthy of discussion. The question is this. Is the measure of liability the same where a ship is burned because the master and crew did not observe the lowest degree of prudence to prevent it, and in a case where she is wilfully burned ? This is the question for our consideration. In the civil.law, I apprehend no distinction in the cases put exists; nor do I believe any exists at common law. But by the laws of the United States, such gross and reckless negligence as that proved in the case before us was a fraud and a tort on the shippers, and the fire that occurred, and consequent loss of life, a crime on the part of the master.
By the twelfth section of the act of 1838, chap. 191, every person employed on any steamboat or vessel, by whose negli *394 gence to his respective duty the life of any person shall be destroyed, shall be deejned guilty of manslaughter, and subject to conviction and imprisonment at hard labor for a time not exceeding ten years. 5 Statutes at Large, 306. Here the legislature have put gross negligence in the category of crimes of a high grade, and of, frauds of Course.; nor can this court assume a less stringent principle, in a case of loss of property, than Congress has recognized as the true one, if life be destroyed by such negligence. From the facts before us, I feel ■warranted in saying, that, had the captain survived the destruction of the ship and the loss of many lives by the disaster, he would have been clearly guilty according to the twelfth section.
One single .circumstance is decisive of the culpable negligence. By section ninth of the above' act, it is made “ the duty of the master and owner of every steam-vessel employed on the sea, to provide, as a part of the necessary furniture, a suction-hose and fire-engine and hose suitable to he worked on said boat in case of fire, and carry the same upon each and every voyage, in good order.” This vessel, had something of the kind; but it was in no order for use, and a mere delusion, and a sheer fraud on the law and the public. Had there been such an engine and hose, the fire-could have been extinguished in all probability, as Í apprehend.
2. There, was only a .single rigged bucket on board, and nothing else to reach the water with, and the money of libellants was thrown from the boxes, and they used to lift water.
3. The flue from the furnace ran through three decks, and was red-hot through the three decks, and the cotton was stowed within eighteen inches on all sides of this red-hot flue, and the bales pressed in, three tiers deep, from the boiler-deck to the next deck, so that it would have been with much difficulty that the cotton could have been removed should-afire occur; there the fire did occur, and.the cotton was not removed,— wherefore the vessel was burnt. And, from the mode of stowage a fire could hardly be avoided, and was to be expected and guarded against.
Then as. to the jurisdiction: The fire occurred on the high sea, It was a tort there. . The case depends not on any contract, but on mere tort standing beyond, the contract. The locality of the tort is the locus of jurisdiction. Locality is the strict limit. 2 Bro. Adm. Law, 110; 3 Bl. Comm. 106. The conflict between the Luda and De Soto, in Louisiana, 1847, 5 Howard. But especially 2 Bro. Adm. Law, 144, which lays down the true doctrine as follows: —
“ We have now done with the effect of the master’s con *395 tracts or violence, as to his owners, and proceed to consider how he and they "are affected by his negligence. And, first, as soon as merchandises apd other commodities be put. on board a ship, whether she be riding .in a port or haven, or upon the high sea, the master is chargeable therewith; and if the same be lost- or purloined, or sustain any damage, hurt, or loss, whether in the haven or port before, or upon the seas after-, she is upon her Voyage, whether it be by mariners or by any other through their permission, the owner of the goods has his election to charge either master or owners, or both, at his pleasure, —though he can have but one satisfaction, — in a court of' common law, if the fault be committed infra carpus comitatus ; in the admiralty, if super altvm mare ; and if it be on a place where there is divisum imperium, then in one or the other, according to the flux or reflux of the sea.”
I think the libel in this case covers my view of it. It sets out the facts of how the money was shipped in general terms, but avers it was lost by fire, and by reason of an insufficient furnace,- insufficient machinery, furniture, rigging, and equipments, and' the careless, negligent, and improper management of said steamboat Lexington by the servants and agents of the-Navigation Company.
If this technical objection had been addressed to the court below, it could have been easily remedied, and cannot be favorably heard here, now, no doubt, made for the first time.
I .therefore, think there was jurisdiction in the Circuit Court to try the libel; and, secondly, that the decree was proper, and ought to be affirmed, without alteration.
Mr. Justice DANIEL.
The inquiries presented for consideration in this cause resolve themselves into two obvious or natural divisions; the one involving the rights of the parties as growing out of their alleged undertakings; the other the right. of the libellant to prosecute his claim in the mode adopted in the court below, and the power of the court to adjudicate it in1 that or in any other mode whatever. This latter -inquiry, embracing as it does the nature and. extent of the admiralty powers of the government of the United States, and by consequence the construction of that article of the Constitution by which alone those powers haVe been invested, challenges the most solemn, deliberate,- and careful investigation. I approach that investigation with the diffidence which -its wide-spread interest and importance, and a deep conviction of my own deficiences, cannot but awaken.
The foundation, nay, the whole extent and fabric, of the ad *396 iniralty power of the government are to be found in that portion of the second section of the third article of the Constitution, which declares that the judicial power shall extend (amongst other subjects of cognizance there enumerated) “ to all cases of' admiralty and maritime jurisdiction.”
The distribution of this admiralty power so created by the Constitution, with reference to the tribunals by which, and the - modes in which, it shall be executed, is contained in the act to establish the judicial courts of the United States of 1789, section ninth, which constitutes the District Courts of the United States courts of exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, and of certain seizures under the laws of imposts, concluding or quali- . fying this investment of power with these plain and significant terms: —.“ saving to' suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.”
Looking now to the provisions of the third article of the Constitution, and to those of thé ninth section of the Judiciary Act, we recur to the inquiry, What is this civil and maritime jurisdiction derived from the Constitution, and vested by the Judiciary Act in the District Courts, — what the standard by which its scope and.power, its “space'and verge,” are to be measured, —what the núes to be observed in the modes of its execution ? Although the Constitution and act of Congress do not precisely define nor'enumerate the former, nor prescribe in forms and precedents the latter, yet it will hardly be pretended, that either the substance or the forms of admiralty jurisdiction were designed by the founders of our jurisprudence to be left without limit, to be dependent on surmise merely, or controlled by fashion or caprice. They were both ordained in reference to some known standard in the knowledge and contemplation of the statesman and legislator, and the ascertainment of that standard by history, by legislative and judicial records, must furnish the just response to the inquiry here propounded.
' In tracing the origin, existence, and progress of the colonial institutions, or in seeking illustrations or analogies requisite for the comprehension of those institutions down to the period of separation from the mother country, it is to the laws and policy of the latter that we must chiefly look as guides to any thing like accurate results in pur investigations. For the necessity here intimated, various and obvious causes will at once be perceived. As instances of these may be exemplified, — 1st,- similarity of education and opinion, strengthened by intercourse and habit; 2d, national pride, and the partiality which naturally creates in the offspring admiration and • imitation of the parent; 3d, identity of civil and political rights in the *397 people of both regions; 4thly, and chiefly, perhaps, the jealousy of the mother country with regard to her national unity, power, and greatness, — a principle which has ever prompted her to bind in the closest practicable system of efficient uniformity and conformity the various members of her extended empire. These causes have had their full effect in regulating the rights of person and of property amongst British subjects .everywhere within the dominions of England. There is not, and never has been, a question connected with either, in which we do not find every Englishman appealing .to the common law, or to the charters and statutes of England,-as defining the nature and as furnishing' the best protection of his rights. He uniformly clings to these a? constituting at once his birthright, his pride, and his security. Vide 1 Bl. Comm. 127, 128. Would it not be most strange, then, with this strong tenacity of adherence to their peculiar national polity and institutions, that we should suppose the government or the people of England disposed to yield their cherished laws and customs in matters which peculiarly affect them in a national point of' view, to wit, the administration of their maritime and commercial rights and interests ? It would seem to me equally reasonable to expect that the admiralty courts of England, or of any part of the dominions of England, in. order to define or settle their jurisdiction, would as soon be permitted to adopt, as the source and foundation and measure., of their power, the ordinances, if such there be, of China or Thibet, as those of France, Genoa, or Venice, or of any other portion of the. continent of Europe, whether established by the several loeal governments oh the .continent, pr based upon the authority of the civil law. With respect to the realm of England, the origin and powers of the court' of admiralty are placed upon a footing which leaves them no longer - subjects of speculation or uncertainty. Sir William Bláckstone, in his Commentaries, Vol. III. chap. 5, p. 69, informs us, — upon the authority of Sir Henry Spelman, Glossary, 13, and of Lambard, Archeion, 41, — that the Court pf Admiralty was first erected by King Edward III. Sir Matthew Hale, in his History of the Common Law, Vol. I. p. 51 (London edition of 1794; by Runnington), speaking of the court of admiralty, says, — “ This court is not bottomed or founded upon the authority of the civil law, but hath both its powers and jurisdiction-by the law and custom of the realm in -such matters as are proper for its cognizance.” And in a note (m) by the editor to the page just cited, it is said, — “ The original jurisdiction of the admiralty is either by the connivance or permission of the, common law courts. The statutes are only in affirmance of the common law, and to pre *398 vent the great power which the admiralty had gotten in consequence of the Laws of Oleron. That, generally speaking, the courts of admiralty have no jurisdiction in matters of contracts done or made on land; and the true reason for their jurisdiction in matters done at sea is, because no jury can come from thence; for if the matter arise in any place from which the pais can come, the common law will not suffer the subject to be drawn ad aliud examen.’’'' And for this doctrine are cited 12 Reports, 129; Roll. Abr. 531; Owen, 122; Brownlow, 37 a; Roll. Rep. 413; 1 Wilson, 101; Hobart, 12; and Fortescue,, De Laudibus, 103, edit. 1775. Again, Lord Hale, Vol. I. pp. 49 —51, speaking of the jurisdiction of the admiralty, lays down the following limits to its power: — “ The jurisdiction of the •admiralty court, as to the matter of it is confined by the laws of the realm to things done upon the high sea only; as depredations and piracies upon the high sea; offences of masters and mariners upon the high sea; maritime contracts made and to be executed upon the high sea; matters of prize and reprisal upon the high sea., But touching contracts or things made within the bodies of the English counties, or upon the. land beyond the sea, though the execution thereof be in some measure upon the high sea, 'as charter-parties or contracts made even upon the high sea, — touching things that, are not in their own nature maritime, as a bond or contract for the payment of money, — so also of damages in navigable rivers, within the bodies of counties, things done upon the shore at low-water, wreck of the sea, &c., — these things belong not to the admiral’s jurisdiction. And thus the common law' and the statutes of 13 Richard II., cap. 15, and of 15 Richard II., cap. 3, confine and limit their jurisdiction to matters maritime, and ■such only as are done upon the high sea.”
In this cursory view of" Lord Hale of the admiralty jurisdiction, there is one feature which cannot escape the most superficial observation; and that is, the extraordinary care of this learned judge to avoid every, implication from uncertainty or •obscurity of "terms, which might be wrested as a pretext for the assumption of power not clear, well founded, and legitimate. In the extract above given, it will be seen that the sea, as the .theatre of the admiralty power, is mentioned in eight different instances, in every one of which it is accompanied with the adjunct high. Altwm mare is given as the only legitimate province of the admiral’s authority; and then, as if to exclude the possibility of improper implication, are placed in immediate and striking contrast the transactions and the situations as to which, by the common law and the statutes of England, the interference óf the admiralty was utterly inhibited. “ But,” *399 he proceeds to say, “ touching contracts or things made within the bodies of the English counties., or upon the land beyond the sea, though the execution thereof be in some measure upon •the high sea, as charter-parties or contracts made even upon the high sea, —.touching things that are not in their own nature maritime, as a bond or contract for the payment of money, — so also of damages in navigable rivers, within the bodies of English counties, things done upon the shore at low-water, wreck of the sea, &c., — these things belong not to the admiral’s jurisdiction.”
Sir William Blackstone, treating of the cognizance of private wrongs, Book 3, chap. 7, p. 106, speaks of injuries cognizable by the maritime or admiralty courts. “These courts,” says this writer, “have jurisdiction and power to try and determine all maritime causes, or such injuries as, although they are in their, nature of common law cognizance, yet, being committed on the high seas, out of the reach of our ordinary courts of justice, aré therefore to be remedied in a peculiar court of . their own. All admiralty causes must, therefore, be- causes arising wholly upon the sea.” He then cites the statutes 13 and 15 Rich. II., Co. Litt. 260, Hob, 79, and 5 Reports, 106, for the positions thus asserted. I shall, in the progress of this opinion, have occasion further to remark-upon this language, “ courts maritime or admiralty courts,” here used by this learned commentator, when I come to speak of an interpretation placed upon the second section of the third article of the Constitution, as implying an enlargement of the powers conferred, from á connection of the terms admiralty and maritime in the section just mentioned. What I would principally advert to here is- the description of the causes denominated maritime, and as falling solely and peculiarly within the admiralty jurisdiction, and to the reason why they are thus denominated maritime, and as such assigned to the admiralty. They are, says this learned commentator, “maritime, or such injuries as, although they are in their nature of common law cognizance, yet, being committed on the high seas, out of .the reach of our ordinary courts of justice, are therefore to be\remedied in a pe- . culiar • court of 'their own. All admiralty causes must, therefore, be causes arising wholly upon the seaj and not within the precincts of any county.” Here, then, is the explicit declaration, that it is the theatre, the place of their origin and performance, exclusively, not their relation to maritime subjects, which . determines their forum; for they are causes, says he, which in their nature may be of common law1 cognizance. In this connection it seems not out- of place to advert to the discrimination made by the same author between the pretensions to power *400 advanced by certain tribunals which subsisted and grew up rather by toleration than as forming any fundamental and regular portions of the British constitution. Thus, in Book 3, chap. 7, pp. 86, 87, speaking of the ecclesiastical, military, and maritime courts, and the courts of common law, he says, — “ And with regard to the three first,. I must beg leave, not so much to consider what hath at any time been claimed or pretended to belong to their jurisdiction by the officers and judges of those respective courts, but what the common law allows and permits to be so. For these eccentrical tribunals (which are principally guided by the rules of the imperial and canon laws), as they subsist and are admitted in England, not by any right of their own, but upon bare sufferance and toleration from the municipal laws, must have recourse to the laws of that country wherein they are thus adopted to be informed how far their jurisdiction extends, or what causes are permitted and what forbidden to be discussed or drawn in 'question before them. It matters not what the Pandects of Justinian or the Decretals of Gregory, have ordained ; they are of no more intrinsic authority than the laws of Solon or Lycurgus; curious, perhaps, for their antiquity, respectable for their equity, and frequently of admirable usq in illustrating a point of history. Nor is it at all material in what light other nations may consider this matter of jurisdiction. Every nation must and will abide by its own municipal laws, which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance which other nations have referred entirely to the temporal courts, as concerning wills and successions to intestates’ chattels; and perhaps we may, in our turn, prohibit them from interfering in some controversies which, on the Continent, may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts; and .if any tribunals whatsoever attempt .to exceed the limits so prescribed' to them, the king’s courts of common law may and do prohibit them, and in some cases punish their judges.” So far, then, as the opinions of Hale and Blackstone are entitled to respect, — so far as the writings and decisions of the venerable expounders of the British constitution to which they refer may be regarded as authority, — th'e origin and powers of the admiralty in England, the subjects permitted to its peculiar cognizance, the control exerted to restrict it to -that peculiar cognizance by the common law tribunals, would seem Dot to be matters of uncertainty.' S-ir- William Blackstone, too, is a writer of modern date, and, as such, his opinions may claim exemption from the influence of conflict *401 of bigotry or prejudice^ which the advocates of the admiralty seem disposed to attribute to the opinions or the times of Spelman, of Fortescue, and Coke.
Passing from the testimony of the writers already mentioned, let us call in a witness as to the admiralty powers and jurisdiction, as existing in England for a century past, at least, whom no one will suspect of disaifection to that jurisdiction. I allüde to Mr. Arthur Browne, Professor of'Civil Law in the University of Dublin, in whose learned book scarcely any assertion of power ever' made by the admiralty courts, however reprobated and denied' by the common law tribunals, is not commended, if not justified, and scarcely one retrenchment or denial of power to the former is not as zealously disapproved. Let us hear what this witness is compelled, though multo cum gemitu, to admit, with respect to the jurisdiction of the instance court in cases civil and maritime, — cases identical in their character with that now under consideration. After di-, lating .upon the resolutions of 1632, and upon what by him are designated as the irresistible arguments of Sir Leoline Jenkins in favor of the powers of his own court, Professor Browne is driven to the following concessions. Of the common law courts .he.says (Vol. II. p. 74), — “ Adhering on their part, to the strict letter of the rule, that the business of the admiralty was only with contracts made upon the sea, they here took locality as the only boundary, though in the instances before mentioned, of contracts fhade on sea, they refused this limit; and having insisted, as indeed Judge Blackstone has even of late done, that contracts upon land, though to be executed on the sea, and contracts at sea, if to be executed .on land, were not-cognizable by the admiralty, they left to it the idle power of trying contracts made upon the sea to be also executed upon the sea, of which one instance might not happen in ten years.” Again (p. 85), speaking of what he -characterizes as “the torrent'of prohibitions which poured forth from the common law courts,” he tells us, that “ little was left for the .authority of the admiral to operate upon, in the subject of contracts, amidst those curbs so eagerly and rapidly thrown upon him in the last ' century, save express hypothecations of ship or goods made at sea or in foreign ports, and suits for seamen’s wages.” At the close of this chapter on the jurisdiction of the instance courts, Mr. Browne preseilts his readers with the general .conclusion to which his investigations on this head had conducted him, in the following-Words : — “ The result of our inquiries in the present chapter, as to the'extent of the jurisdiction of the instance court of admiralty which is at present seemingly allowed by the common law courts, is, that it is confined in matters of *402 contract to suits for seamen’s wages (on all hands admitted to be an exception to the rule restricting the admiralty to the sea), • or. to those on hypothecations. In matters of tort, to actions for assault, collision, and, spoil, and in quasi contracts; to actions by part-owners for security, and actions of salvage ;' but if a party,” says he, “ institute a suit in that court ón a charter-party, for freight, in a cause of average and contribution,- or to decide the property of a ship,’ and be not prohibited-, I do not see how the Court could refuse to retain it.” In this concluding passage from Mr.- Browne’s chapter oh the jurisdiction of the instance courts, there axe two circumstances which impress themselves .upon our attention, as seemingly, indeed palpably, irreconcilable with the law or with each other. The first is the concession (a concession said to be made upon a general survey of the subject) as to the limit imposed by the common law tribunals ■ upon the admiralty; the second, the opinion, in the very face of this concession, that the admiralty, if it should not be actually-prohibited, if it .could only escape the vigilance of the common law courts, might proceed, might make an incursion within this established, this prohibited, nay, conceded boundary. Opinions like these evince an adherence to the admiralty apparently extreme, and almost contumacious; and.it may be owing to this devotion, that decisions have been pressed into its support, which, to my apprehension, do not. come directly up to the point they are called to fortify, or, if they, did, are too few in number and too feeble to remove the firmly planted landmarks of the law. Thus the casé of Menetone v. Gibbons, 3 T. R. 267, is cited as authority that the admiralty has cognizance over contracts,- though executed on land and under seal.. This case, it is.true, is somewhat anomalous in its features, but yet it is thought that no fair exposition of it can warránt. the conclusions attempted to be deduced from it. . Notwithstanding some expressions which may have fallen from-some of the; judges arguendo, -it is certainly true, that every justice who decided that case put his opinion essentially upon these foundations: — that the. case was one of a hypothecation of the ship, in the course of a foreign voyage, by the master, who had a right to hypothecate; that the contract provided for .or gave no remedy except in rem, whereas- the common, law courts proceed against the parties only; that if the court should decide against the admiralty jurisdiction (and this, too, after a sentence of condemnation and sale of the ship), being unable to give any redress under the contract by proceeding in rem, the party making the advances would be irreparably injured. This case should be expounded, too, in connection with that of Ladbroke v. Crickett, decided by the same -judges twelve *403 months previously (2 T. R. 649), in which a natural- distinction is taken between the extent of the right to prohibit the . jurisdiction -of the admiralty before sentence, and the right to impeach its proceedings after they are consummated and carried into execution without interference. In the' latter case, Buller, whose remarks have been quoted from Menetone v. Gibbons, says (p. 654): — “ There is a great difference between applications to this court for prohibitions to the admiralty pending the suit and after sentence: in the first case, this court will examine the whole case, and see the grounds of the proceedings in the admiralty: but the rule is quite the reverse after sentence is passed: in such a case, they will not look out of the proceedings; for the party who applies-for a prohibition after sentence must show a nullity of jurisdiction on the face of the proceedings; therefore the plaintiff in this case could not go into evidence at the trial to impeach the decree of the court of admiralty. The case states, in general terms, that that court did pronounce a decree for the sale of the ship in question, and that a warrant issued out of that court for seizing and selling the ship. So that we must take it that they had jurisdiction, for nothing appeal's on the face of the decree to show that they had not.” Showing conclusively, that this case determined nothing as to the original legitimate powers either of the com-r mon law or admiralty tribunals, but positively refusing to institute a comparison between them. The next case adduced by Mr. Browne, and the last which I shall notice, is that of Smart v. Wolff, 3 T. R. 323. The first remark which is pertinent to this case is, that it was a case of prize, one of a class universally admitted to belong peculiarly and exclusively to a court of admiralty ; and the question propounded in it, and the only question, was as to the proceeding practised by the court for carrying into effect this its undoubted jurisdiction. There the goods had been, by an interlocutory order, delivered to the captors, upon a stipulation to respond for freight, if allowed on the final decree; and the amojmt of freight ultimately allowed being greater than that covered by the stipulation, the court, by a proceeding substantially in rem, ordered the ...captors to bring in so much of the cargo as would be equal to the excess of the allowance beyond the amount of the stipulation. A rule for a prohibition obtained from the King’s Bench was, upon full argument, discharged, and the grounds of the court’s decision are fully disclosed in the opinion of all the judges, in accordance with the reasoning of Mr. Justice Buller, who is here particularly quoted Because he has been referred to as favorable to the doctrines of Mr. Browne, and who thus expresses himself: — “ Every cáse that I. know on' the subject is a *404 clear authority to show that questions of prjze and . their consequences are solely and exclusively of the admiralty jurisdiction. After the cases of. Lindo v. Rodney, Le Caux v. Eden, and Livingston v. McKenzie, it would only be a waste of time to enter into reasons to show that this court has no jurisdiction over those subjects. Still less reason- is there for saying, that the admiralty shall be prevented from proceeding after it- has made an interlocutory decree-; because that would be to say, that the admiralty has jurisdiction at the beginning of the suit, and not at the end of it.” The case of Smart v. Wolff, then, is assuredly no direct authority, if authority at all, to sustain the theory Or the partialities of Professor Browne. Indeed, the ' utmost that can be drawn from this case in favor of those theories is an expression of belief, by Justice Buller, that my Lord Coke entertained not only a jealousy of, but an enmity against, the admiralty; a belief which, whether well- or ill founded, must be. equally unimportant, — -.equally impotent to .impugn an inveterate, a confirmed, nay, an admitted course and body of jurisprudence. Upon a review of all the authorities to which I have had access, the conclusion of my.mind is certain and satisfactory, that, with some temporary deviations, or ir- - regularities, such as the resolutions of 1632, the jurisdiction of the instance court of thé admiralty,"both- by the common law arid by the statutes of 13 and 16.Richard II., down to the period at which, during the reign of the present queen, that • jurisdiction was enlarged, was,.in matters of contract (with the known exception of seamen’s wages), limited.to maritime contracts made and to be executed upon the high -sea, and to cases of hypothecation of the ship upon her voyage.; and- in matters ■ of civil tort, to cases also occurring upon the sea, .without the body of the county. But this restriction upon the jurisdiction of the instance courts' of ^England, so uniformly maintained by the common law courts df that country, — acknowledged,' how-. ever condemned, by Mr. Browne; and admitted in argument in this case,;— it is contended, does not apply to the powers and jurisdiction of the like courts iri^‘the United States,'and did not apply at the period when the Federal' Constitution was adopted, but that a jurisdiction more varied and enlarged, as practised ' in the British colonies in North.America, and under the general confederation at the adoption of the Constitution, was in the contemplation of the frairiers of this Constitution, and must therefore be referred to as-the measure, of the powers conferred in the language of the secqnd. section of the third article, — “-all cases of admiralty and maritime jurisdiction.” In testing the accuracy of these positions, it would be asking too much of this court to receive as binding authority the decisions -of *405 tribunals inferior to' itself, farther than they rest upon indisputable and clear historical truths in our colonial history; truths, too, which shall sustain a regular and recognized system of jurisdiction. It will not be sufficient to allege- some obscure, eccentric, or occasional exertions of power, if they could-be adduced, and upon these to attempt to buildup an hypothesis or a system-, — nay, more, to. affirm them to be conclusive proofs of a system established, general, well Mown to and understood by the framers of the Constitution, and. therefore entering necessarily into their acceptation of- the terms “ admiralty and maritime.jurisdiction.” The dangér of yielding to such scanty and inadequate testimony must .be obvious tp every-mind. The still greater danger of theorizing upon words not of precise or definite import, freed from the restraints of settled acceptation, has been {exemplified in our own time and country, in ,an able, learned, and ingenious effort to confer on the admiralty here powers not mereiy coextensive with the most ambitious pretensions of the English admiralty at any period of its existence, but powers that may be derived from the laws and institutions of almost every community of ancient or modern Europe,, and covering, not only séas and navigable waters, but men and their transactions having no necessary connection with waters.of any description, viz. shipwrights, material men, and insurers (vide 2 Gall. 397); and this upon the assumption, that the term maritime implied more than the word admiralty, when unassociated with it, and that this was so understood hy the framers of the Constitution, who designed it as an enlargement of the admiralty power. Yet if we turn to the language, of Mr. Justice Blackstone, Yol. III. p. 106, he tells us that the courts maritime are the admiralty courts, using the terms maritime and admiralty as convertible ■; and that the injuries triable in the admiralty (or maritime cáuses) are such as are of common law cognizance, yet, being committed on the high seas, are. therefore to be tried by.a peculiar court. Again, p. 68, he says,' — “ The maritime courts, or such as have power and jurisdiction to determine all maritime injuries arising upon the seas, or in .parts out of the reach of the common law, are. only the court of admiralty and its court of appeal.” So, likewise, Sir Matthew Hale, p. 50, in characterizing maritime contracts to be those made and to be executed upon the sea, certainly excludes any implication beyond these ; and this must be' taken as the English interpretation of the term maritime, by which it is understood as identical with admiralty.
And here it seems proper to remark, that I cannot subscribe to the opinión, either from the bench or the- bar, that the decisions of inferior courts, which it is not merely the right, but *406 the dirty, of this tribunal to revise, should, by their intrinsic authority as decisions, be recognized as binding on the judgment of this court. They are entitled to that respect to which their accuracy, when examined, may give them just claims; but it is surelv a perversion of our judicial' system to press them as binding merely because they have been pronounced. If these decisions can be appealed to upon the mere force of their language, I would quote here the words of Judge Washington, in the case of the United States v. Gill, 4 Dall. 398, where he declares, that “ the words of the Constitution must be taken to refer to the admiralty and maritime jurisdiction of England, ’ from whose code and practice we derive our systems" of jurisprudence, and obtain the best glossary.” Nor am I disposed to consider the doctrine of the civil law which has been mentioned, to escape from the silence of our own code or that of England upon the subject.
I do not contest the position, that the established, • well-defined, regular, and known civil jurisdiction of the admiralty ■ courts of England, or of the vice-admiralty. courts of the American colonies, was in the contemplation of the men who achieved' our independence, and was adopted-by those who framed the Constitution. I willingly concede this position. That which I do resist is what seems to me an effort to assert, through .the colonial vice-admiralty courts, powers which did not regularly inhere in their constitution; powers which, down to. the date of the quarrel with the mother country, were never bestowed on them by statutory authority; powers which to their superior — from whom they emanated, and to. whom they were inferior and. subordinate, the High Court of Admiralty— had long been conclusively denied, as has been already abundantly shown. With respect to the establishment and powers of these courts, we are informed by Browne, 2 Civ. and Adm. Law, 490, that “ all powers of the vice-admiralty courts within his Majesty’s dominion's are derived from the high admiral, or the. commissioners of' the admiralty of England, as inherent and incident to that office. Accordingly, by. virtue of their commission, .the lords of the admiralty are authorized to erect vice-admiralty courts in North America, the West Indies, and the. settlements of the East India Company ”; “ and in case any person be aggrieved by sentence or interlocutory decree having the force of a'sentence, he may appeal to the High Court of Admiralty.” Blackstone, also, says (Vol. III. p. 68), — “Appeals from the vice-admiralty courts in America, and our other plantations, and settlements, may be brought before the courts of admiralty in England, as being a branch Of the admiral’s jurisdiction.” Stokes, in his Yiew of *407 the Constitution of the British Colonies. in North America, speaking of the vice-admiralty courts, says (chap. 13, p. 271), — “ In the first place, as to the jurisdiction exercised in the courts of vice-admiralty in the colonies', in deciding' all maritime causes, or causes arising on the high seas, I have only to observe, that it proceeds in the same manner that the High Court of Admiralty in England does.” Again (p. 275), he says,— “ From the courts, of vice-admiralty in the colonies, an appeal lies to the High Court of Admiralty in England.” Mr. Browne, in his second volume of Civ. and Adm. Law, p. 491, accounts for the jurisdiction of the vice-admiralty courts in America,, in revenue causes, by tracing it to the statute of 12 Charles II. commonly called the Navigation Act, and to statutes 7th and ¡3th of William III., c. 22, and .designates this as totally foreign.to the original jurisdiction of the admiralty, and unknown to it. With this view of the origin and powers of the vice-admiralty courts of the colonies, Showing them to be mere branches, parts of the admiralty, and emanating from and subordinate to the latter, it would seerri difficult to percejye on their part powers more comprehensive than those existing in their creator and ■ superior, vested, too, with authority to supervise and control them. The existence, of such powers, certainly cannot rest upon correct logical induction, but would appear to be at .war equally with common apprehension and practical execution. Power can never be delegated which' the authority said, to delegate itself never, possessed, ñor can such power be indirectly exercised under a pretext of controlling or supervising those to whom it could not be legitimately delegated. The colonial vice-admiralty courts, as regular parts of the English admiralty, created by its authority, could by their constitution, therefore, be invested only with the known and restricted jurisdiction of the former. If a more extended jurisdiction ever belonged to,, or be claimed for, these colonial tribunals,' it must rest on some peculiar and superadded ground, which it is incumbent on the advocates of this jurisdiction clearly to show. Has any thing of the kind been adduced in the argument of this cause ?' Beyond the provisions of the statutes of Charles II. and William III., relative to cases of revenue, has there been shown any enlargement by statute of . these vice-admiralty powers, any alteration by judicial decision in England of the constitution and powers of the vice-admiralty courts, as emanating from, and limited by, the jurisdiction of the admiralty, in the mother country ? Strongly as authority for the- affirmative of these inquiries has been challenged, nothing satisfactory to my mind, nothing, indeed, having the appearance of authority, has been adduced; because, I take it *408 for granted, from the distinguished ability of the counsel, such authority was not attainable. The learned and elaborate-investigations of the counsel for the appellants have brought to light a series of proofs upon the jurisdiction of the vice-admiralty courts, all in strict accordance with the positions laid down in Blackstone, Stokes, and Browne, and exemplify,ing beyond these the actual and practical extent and modes to which and in which that jurisdiction was permitted and carried into operation in the Colonies. These developments are valuable as illustrations of our early history, but they are still more su to the' jurist seeking to ascertain the boundaries of right amidst contested limits of power. A recapitulation of them here would require an inconvenient detail. They well deserve, nevertheless, to be 'presérved and remembered, as showing incontestably, with the exception of revenue cases arising under, the statutes.of Charles and of William, and designated on all hands as .“ totally foreign to the original jurisdiction of the admiralty, and unknown to it,!’ that the constitution and functions of the vice-admiralty courts, from the earliest- notices of their existence, in the American colonies, were modelled upon and strictly limited to those of the mother country (of which they were branches or portions); that, so far from there having grown up a more enlarged and general jurisdiction in the colonial vice-admiralty courts, — a jurisdiction known and acquiesced in, — every effort on their part to transcenl the boundary prescribed to their superior in the mother country was watched with jealousy by the common law tribunals,'and by- them uniformly suppressed. Coming down to the periods immediately preceding the Revolutionary conflict, and embraced by the war, and during the existence of the Confederation, the volumes of testiúiony poured forth in the forms of essays, speeches, and resolutions prove that the pretensions theif advanced by the British government, through the medium of the admiralty jurisdiction, extending that jurisdiction beyond its legitimate province as. an emanation from the admiralty at home, so far from being regarded as pertaining to a known and established system, were received as novelties and oppressions, -— as abhorrent to the genius of the people, to the British constitution Itself, and. worthy to be repelled even by an appeal to arms. It would seem, then, reconcilable neither with, reason nor- probability, that the men who made these solemn protests, — that a community still warm from the. contest induced by them, — should, upon their emancipation from evils considered intolerable, immediately, by a species of political suicide, rivet those same evils indissolubly upon themselves. Much more reasonable does it appear to me, that the statesmen who framed *409 qur national charter, when conferring the admiralty and maritime jurisdiction, had in their contemplation that jurisdiction only which was familiar to themselves and their fathers, was venerable from time, and in practice acceptable to all; they could not have intended to sanction that whose very existence théy denied. This view of the question' is further fortified by th'e opinion of two ablé American jurists, both of them contemporaneous with the birth of our government. I allude.-to the opinion of Chancellor Kent, expressed át page 377 of the first, volume of his Commentaries, 5th edit., and to that of Mr. Dane, found in volhme sixth of his Abridgment; p. 353. It is in close conformity to, and congenial with; the seventh amendment of the Constitution, and with the saving in the Judiciary Act of the right to a remedy at common law, -wherever the common law should be competent to give' it. An able illustration of the construction here .contended for- may also- be seen in the elaborate opinion of the late Justice Baldwin in the case of Bains v. The Schooner James and Catharine, Baldwin’s Reports, 544,. where^ the learned jüdge, in support, of his conclusions, with great strength of reasoning, and upon authority, expounds the term “ suits at common law,” in the seventh amendment of the Constitution, and the phrase, “ the right to a common law remedy where*, the common law is competent to give it,” contained in the’.saving in the ninth section of the Judiciary Act, showing their just operation in limiting the admiralty-within proper bounds. I deem it wholly irregular to attempt to -adduce general admiralty powers from the cognizance vested.in the courts as to seizures; these are purely cases of revenue, are. treated in England as anomalous, and as not investing general admiralty jurisdiction, but as unknown to it; or jurisdiction in cases of contract, as between private persons. This interpretation disposes at . once of all-'the conclusions which it-is attempted to draw from the several cases of seizure decided in this court. The obiter dictum in the case ' of the General Smith ought not to be regarded as authority at all, much less'as, laying the foundation of a system. From the - best lights I have been able to bring to the inquiry before us, reflected either from the jurisprudence of the mother country, from the history of the colonial government, or the. transactions of the general Confederation, I am satisfied that thé, civil, admiralty, and maritime jurisdiction conferred by the second section of the third article of the Constitution was the- restricted jurisdiction known to be. that of the English admiralty, insisted upon and contended for by the North American colonies, limited in matters of contract (seamen!s wages excepted)’ to things ■ agreed upon and to be performed upon the sea, and qases-of hy *410 pothecation, and in civil torts to injuries occurring on the same theatre, and excluded as to the one and the other from contracts made, or torts committed, within the body of a county.
It has been urged in argument, that the restriction hére proposed is altogether unsuited to and unworthy the expanded territory and already great and increasing commerce of our country. To this may be replied the fact, that it was thought sufficiently broad for a nation admitted even at this day to be the most commercial on the globe. In the next place, I am by no means prepared to concede that the interests of commerce, and certainly other great, interests in society, axe to he bener fited by incursions upon the common law jurisprudence of the country. Recurring, as a test, to the institutions and to the condition of various nations, a very different and even opposite conclusion would be impressed by it. But even if it be admitted that a power in the admiralty such as would permit encroachments upon the venerable precincts of the common law would he ever so beneficial, the reality of such advantage, and the right or power to authorize it, axe essentially different concerns. An argument in favor of power founded upon calculations of advantage, in a government of strictly delegated powers, is scarcely legitimate when addressed to the legislature; addressed to the judiciary, it seems to be especially out of place. In my view, it is scarcely reconcilable with government in any form, so far as this term may signify regulated power, and ought to have influence nowhere. If a restricted admiralty jurisdiction, though ever so impotent for good or prolific of inconvenience, has been imposed by the Constitution, either or both those evils must be of far less magnitude than would he attempts to remedy them by means subversive of the Constitution itself, by unwarranted legislative assumption, or by violent judicial, constructions. The pressure of any great national necessity for amendments of that instrument will always insure their adoption.
To meet the objection urged in this case to the jurisdiction deduced from the character of the contract sued on, it has been insisted that the foundation of this suit may he treated as a marine tort, which, having beep committed on Long Island Sound, and therefore not within the body of any county, is exempt from objection on the score of locality. If the pleadings and proofs in this cause presented a case of simple or . substantial tort, occurring without the. body of a county, no just objection could he made to the jurisdiction. It is, therefore, proper to inquire whether a case of marine tort, in form or in substance, is presented upon this record. There is a class of cases known tor the common law, in which a plaintiff having *411 a right of action arising upon contract may waive his remedy directly upon the contract in form, and allege his gravamen as originating in tort, produced by a violation or neglect of duty: The cases in which this alternative is permitted are, in the first place, those in which, independently of the rights of the plaintiff arising from express stipulations with the defendant, there are duties or obligations incumbent on the latter resulting from the peculiar position he occupies with respect to the public, giving the right to redress to all who may suffer from the violation or. neglect of these public obligations. Such are the instances of attorneys, surgeons, common carriers, and other bailees. The wrong in these instances is rather the infringement of these public and general obligations, than the violation of the private direct agreement'between the parties; and agree ment, contract, is not the foundation of the demand, nor can it be properly taken.as the measure of redress to be adjudged; for I presume it is undeniable, that, if the relations of the parties are the stipulations of their contract exclusively or essentially, their remedies must be upon such stipulations strictly. Secondly, they are cases in which a kind of quasi tort is sup-, posed to arise from a violation of the contract immedíatély between the parties. These cases, although they are torts in form, are essentially cases of contract. The contract, therefore, must be referred to, and substantially shown, to ascertain the rights of the parties, and to measure the character, and extent of the redress to either of them. It can in no material feature be departed from. This I take to be the rationale of the practice, and the view here taken appears to be sustained by authority. Thus, in Boorman v. Brown, 3 Adolph. & Ellis, 525, New Series, Tindal, C. J., delivering the opinion of all the court, says,'— “ That there is a large class of cases in which the foundation of the action springs out of the privity of contract between the parties, but in which,. nevertheless, the remedy for the breach or noñ-performance is indifferently in assumpsit, or .in case upon tort, is not disputed.” Again (p. 526), the same -judge says, — “ The principle iri all these cases would seem to be, that' the contract creates a duty, and the neglect to perform that duty, or the non-performance, .is a ground of action upon tort.” In the case of Winterbottom v. Wright, 10 Mees. & Wels. 114, Lord Abinger thus states the law: — “ Where a party becomes responsible' to the public by undertaking a public duty, he is liable, though the injury may have arisen from the negligence of his servant or agent; so, in cases of public nuisances, whether the act was done by the party or a servant, or in any other capacity, you are liable to' an action at the suit of any person who suffers.. These; however, are' *412 cases where the real ground of the liability is the public duty, or the commission of the public nuisance. There is also a class of cases, in. which the law permits a contract to be turned into a tort; but unless there has been some public duty under- ■ taken, or. public nuisance committed, .they are all cases in which an áction might have been maintained upon the contract; but there is no instance in which a party who was not a privy to the contract entered into with him can maintain any such action.” And Alderson, Baron, in the same case says, — “ The only safe rule is, to confine the right to recover to those who enter into the contract. If we go one step beyond that, we may go fifty.” So, too, in Tollit v. Sherstone, 5 Mees. & Wels. 283, a case in tort, Maulé, Baron, says, —It is clear that an action of contract cannot be maintained by a person who is not a party to the contract; and the Same principle extends to an action arising out of the contract.” In farther proof that, these actions in form ex delicto, founded on breach of contract, are essentially actions of contract, it is clear that, in such actions,'an infant could not be debarred the privilege of his nonage, nor-could the operation of the statute of limitations upon the true cause of the action be avoided; both these defences would apply, according to the real foundation of the action.
With respect to these cases ex delicto quasi ex contractu, as they have been called, it has been ruled, that if the plaintiff states the custom, and also relies on an undertaking general or special, the action is in reality founded on the contract, and will be treated as such„ Vide Orange County Bank v. Brown, 3 Wendell, 158.
■If the practice of the common law courts above considered he at all ‘applicable to suits in the admiralty, how would it operate upon the case before us? Ic this case, as presented on the face of the libel, or upon the proofs adduced in its support, either formally or substantially a case founded solely bn public duty, or upon contract between the parties ? It would séem to be difficult, in any form of words, to state a. contract more express than is set out in the libel in this ’cause. It is true that in the- first article there is a statement, that the respondents were common carriers of merchandise between the city of- New York and the town of Stonington in Connecticut, but it is nowhere alleged that the property of the complainants was délivered to the respondents as common carriers, or was received by them in that character, or under any custom or obligation binding them as carriers. So far from this, it is averred in the second article of the libel, that the complainants contracted on a particular day, and at a particular place, and *413 that at that very place, and on that'very day, the respondents contracted with the libellants, for a certain reward and hire tb be paid, to transport the said merchandise, &c., — mutual and express stipulations set forth. Is this the statement of a general custom, a responsibility accruing from implied public duties, or is this not rather the exclusión of eVery tiling of the kind ? Again, article third of the libel avers, that on the day and at the. place mentioned in the second article, viz. on the 13th .day of July, 1840, at the city of New York, the libellants delivered to the respondents their merchandise, and it was received by the latter, to be transported according to the agreement between them. If, then, the. power of proceeding in- tort for a breach of the contract, known to the common law courts, can be extended to the admiralty^ it would still, as in the former tribunals according to the authorities, present every question for decision as a question of contract, between patties .(.and because they were so) to the contract, by the stipulations according. to which alone, the rights and wrongs, of all must be adjusted. This election of the proceeding in tort arising ex contractu, if permitted to the admiralty,, would leave the'subject of jurisdiction just where it. would' stand independently of such election. In the exercise of such election, .you..are necessarily driven to the contract to ascertain the existence, the nature, and extent of the assumed tort, in other words, the infraction or fulfilment of the contract,. and the investigation develops inevitably an agreement; of which, with respect to par-, ties, to locality,.or subject-matter, or to. all these, the admiralty can have no cognizance.
But after all, I would inquire for the authority under which the admiralty has been allowed to assume, under an artificial rule of common law pleading, jurisdiction of. matters not falling naturally, directly, and appropriately within its , cognizance. Indeed, its admirers and advocates, from Sir Leoline Jenkins to Professor Browne, have zealously defended it against every imputation of attempts at assumption, insisting that the subjects claimed for its cognizance, and its modes of claiming them, were such only as naturally and appropriately belonged to it. They have as zealously complained of abstractions by the common law courts, by means of uncandid and unreason.able fictions, of matters naturally and, familiarly belonging to the admiralty. If á single precedent exists showing that, by the artificial rules of, pleading practised in the common law courts, partaking in some degree of fiction, the admiralty has ever obtained jurisdiction over matters which otherwise would not have , fallen within its cognizance, , that precedent is . unknown to me; and it is equally certain that I am unwilling, to *414 create one. And it is remarkable, that, in direct opposition to this effort to give jurisdiction to the admiralty by borrowing a license from the common law courts, w;e have the explicit declaration of Professor Browne himself, amidst all his partiality,. that in matters of tort, the jurisdiction of the admiralty is limited to “ actions for assault, collision, .and spoil,” — instances of pure tort, excluding every idea of fiction, and equally excluding one single attribute of contract. Vide Vol. II., chap. 4, p. 122.
Í am extremely diffident as to the wisdom and safety of enlarging a jurisdiction, (ánd especially by the force of implication,) which from the earliest trace's of its existence (whatever has been said in this, casé about the power of reform in this respect) has alwaj/s been exercised by rules and principles less congenial with our institutions thar are the principles and proceedings of the common law; which, by the mere force of-implication in the terms “ admiralty and maritime,” overrides the seventh amendment of the Constitution, and the important saving in the ninth section, of the Judiciary Act; which by á like, implication frees itself altogether from all restriction imposed, both'by the second section of the third article of the Constitution, and by the eleventh section of the Judiciary Act, with respect to controversies between citizens of the same State. A jurisdiction substituting, too, for the' invaluable safeguard to truth secured by confronting the witness with court and jury, a machinery by which the aspect and the force of testimony' are graduated rather by the address and skill of the agents employed to fabricate it', than by its own intrinsic worth, and transferring' the trial of facts resting upon credibility to a tribunal often rémote and inconvenient, and constrained to decide on statements that may be merely colorable, often entirely untrue.
Again, to decide this case upon the ground of liability of. the owners for a tort committed by the master, would present this strange incongruity. Although, by the common law, owners of vessels were responsible for losses occasioned by the misconduct of masters as their.' agents, to the full amount of such losses, yet as long since as the statute of 7 George II., passed in 1734, nearly forty years before our independence, this responsibility was expressly limited in extent to the value of the vessel and the freight. The laws of Gleron and Wisby, Wé are told by Lord Tenterden (vide Treatise on Shipping, p. 395), contain no pfovision on this subject, though this writer Worms us, upon the authority of Yinnius, that such a provision was contained in the laws of Holland, and that by. the laws of Rotterdam, as early as 1721, the owners were exempted from liability for the acts of the master done without their *415 order farther than their part of the-ship amounted, to. . By the' French Ordonnahce of the Marine, Book 2, tit. 8, art. 2, the rule is thus given: — “ Les proprietaires des navires serorit responsable des faits du maitre; mais ils en demeureront déehargés en abandonnant leur bátiment et le fret.1’ So, too, Boulay-Paty, in his work entitled Cours de Droit Commercial Maritime, Vol. I. pp. 270 et seq., after interpreting the word/«if oí act .of the-master as inclusive of delicta quasi delicta, acts of negligence or imprudence, as well as his contracts or engagements, upon a comparison of the opinions of various authors, —Valin; Emerigon, Pothier, &c., — comes to the following conclusions: — “ Maintenant, disons dpnc que le capitaine, soit par emprunt, soit par vente de marchandises, soit par délit ou quasi-dflit, n’a que le pouvoir d’engager le' navire et le fret, sans qú’il lui soit possible de compromettre la fortune, de terre de ses armateurs. Ceux-ci se dégagent de toutes les obligations contractées par le maitre, en cours de voyage, par 1’abandon du_riavire et du fret.” This same writer, pages 275 arid 276, lays dowri the following doctrines, which he quotes from -Grotius, from 'Emerigon, from Pothier, and from the Consulat de la Mer: — “ L’obligation ou les. propriétaires sont de garantir les faits de leur capitaine, est plus réelle quq personnelle. . . . Pendant le cours du voyage, le capitaine pourra prendre deniers sur le corps, mettre dés apparaux en gage, ou vendre des marchandises de son chargement. Voilá tout. Son pouvoir légal ne s’étend pas au-delá des limites du navire dont il est maitre, c’est-Adire admihistrateur; ü ne pent engager la fortune, de térre de ses armateurs qu’autant que ceux-ci y ont consentí d’une maniere spéciale. ... De sorte que si le navire périt, ou qu’ils abdiquent leur intérét, ils ne sont gararis de ríen. ... En effet, lé Consülat de la Mer, cap. 33, aprés avoir dit que l’intérét que les armateurs ont sur le- corps, est engagé au paiement des dettes contractées par le • capitaine, en cours de voyage, ajoute que lá peísonne ni les autres biens des coproprietaires ne sont obliges, Amoins qu’ils ne lui eussent donné, Ace sujét, un pouvoir sufñsant.
“ Au ch. 236 il est dit que si le navire périt, c’est assez que cette perte soit pour le compte des quirataires.”
From this view of the law as existing in- England and on the European continent, it is manifest, that, in the former country, the responsibility of the owners, prior to the statute of 7 Geo. II., was a common law liability, and was acknowledged and allowed to the full extent that the demand could be proyen, embracing both-the persons and all the property of the owners ; that since the statute of Geo. II., this liability is Limited to the value of the ship and freight, but still to be en *416 forced in the courts of common law or equity; that, by the maritime law of 4he Continent, the liability of the owners was always limited to the ship and freight, and that, from this restricted liability, the owners were entirely released by an abandonment of ship and freight, or by a total' loss of the former at. sea, whether the claim was made on account of the contract, or tort, ox delictum of the master. But, in this case, the court have sanctioned a liability resting upon common 'law principles, irrespective of any limit -imposed either by statute or by the rules of the maritime law, and this by means, too, of artificial op fictitious constructions, practised upon only in the courts of common law, relative to the forms of actions prosecuted in those courts ; and, for the accomplishment of this object, have permitted the adoption of modes and proceedings peculiarly and solely áppertaining to. the. maritime law, — a system of jurisprudence essentially dissimilar, a system which recognizes no such claim as the present,, but under whose authority the owners would be wholly absolved by the total loss of the vessel, and under which- they would be permitted to stipulate for their own exemption from liability on account of-the barratry or dishonesty of their agents. Vide Abbott on Shipping, p. 294.. The incongruity here pointed out might have been avoided, by confining the parties to their proper forum.
My conclusions, then, upon the question of jurisdiction, are these : — that the case presented by the libel is palpably a proceeding in personam upon an express contract, entered' into between the parties in the city of New York; that it is therefore a case properly cognizable at a common law .court, for any breach of that contract which may have beemcommitted, and: consequently is not a case over which the admiralty court can, under the Constitution and laws of. the United States, have jurisdiction, either in personam or in rem.
Having, felt myself bound to treat at some extent what seemed to me the decisive, and what may, too, be called the public or constitutional question involved in this cause, — the question of jurisdiction, — :as to what may be the merits of this controversy, the obligátions sustained by" the parties to each other, and the extent to which these have been fulfilled or Violated, I shall content myself with simply giving the conclusions to- which my blind has been conducted, without pre- ' tending to reason them, out fully upon the facts or- the "law of the case, because" those conclusions would not be the grounds of a formal dissent, though .disaffirmed, by a' majority of. my brethren.
Whilst I am; impressed with the strong necessity that exists *417 for guarding against fraud or neglect in those who, by holding themselves forth as fitted to take charge of the lives, the health, or the property of the community, thereby invite the public trust and reliance, I am not. prepared to say that there can be no limit or qualification to the responsibility of those who emr bark in these or similar undertakings, — limits which may be implied from the inherent nature of those undertakings themselves, or which may result from express stipulation. It seems to me undeniable, that a carrier may select the particular line or description of business in which he engages, and that, so long as he with good faith adheres to that description, he cannot be responsible for any thing beyond or inconsistent with it.. The rule which makes him an insurer against every thing but the act of God or the public enemy makes him an insurer as to performances only which are consistent with his undertaking as carrier. A common carrier of travellers is bound to the preservation of the accustomed baggage of the traveller, because of the known custom , that travellers carry with them articles for their comfort and accommodation, and the price for which the transportation is, undertaken is graduated on that presumption; but the carrier would not therefore be responsible for other articles, of extraordinary value, secretly transported upon his vehicle, because by this secrecy he is defrauded of a compensation commensurate with the value of the subject transported, and with the increased hazards to which it is attempted to commit him without his knowledge or assent. But to render him liable, he must have received the article for transportation, and it must be a subject falling fairly within the scope of his engagement. Within this range hé is an insurer, with 'the exceptions above stated. But a carrier may, in a given case, be exempted from liability ,for loss, without fraud, by express agreement with the person for whom he undertakes ; for I cannot well imagine a principle creating a disability in a particular class of persons to enter into a,contract fraught with no criminal or immoral element, — a disability, indeed, extending injuriously to others, who might,find it materially beneficial ’ to make a contract with them. A carrier may also be exempted from liability by the conduct of the owner of property, in keep- , ing the exclusive possession and control of it, and thereby withholding it from the care and management of the carrier. Upon applying the principles here succinctly stated to the evidence in this cause, it is not made out in proof, to my mind, that the respondents-ever received, as carriers, from the libellants, or in-, déed in any other capacity, property of any species or description, or ever knew that property of the ljbelíánts was, directly or indirectly, within the' possession of the respondents, or on *418 board their vessel.- It is not in proof that Hamden, in his contract with the respondents, acted as the agent of the libellants or for their benefit, or that, at the time of the agreement or of the shipment made by Harnden, the libellants and respondents were known - to each other by transactions as. shipper and carrier. It is established by proof, that Hamden contracted, in his own name and behalf alone, with the respondents for a separate compartment on board their vessel, to be, with its contents (the latter unknown to the respondents), at all- times under his exclusive control; that the property alleged to have been lost .was, if in this separate. compartment, placed there without certain knowledge of its character or value on the part of the respondents, was under the exclusive direction of Harnden, who accompanied it, and who, up to the time of the . conflagration- of the vessel, held the property under lock and key, and could alone, without violence and a breach of the engagement, have had access to it. Were this controversy directly between Harnden and the respondents, from the peculiar nature of the contract between these parties, and from the possession of the subject reserved to and exercised by the former, any liability of the respondents, even then, might be a matter of doubt ,• but there should, I think, be no difficulty in concluding that no kind of liability could attach to the respondents in favor of persons for whom they had undertaken no duty, and who, in reference to the transaction in question, were strangers, entirely unknown to them. Upon the merits of this case, as w;ell as upon the question of jurisdiction, I think the decree of -the Circuit Court ought to be reversed, and the libel dismissed.
Mr. Justice WOODBURY.
On most of the facts involved in this libel, little controversy exists. It is certain that the respondents took the property of the plaintiffs on board, their steamboat, the Lexington, to carry it, on her last calamitous voyage, the 13th of January, 1840, from New York to Stonington., It is equally certain that it was lost on that voyage, in Long Island Sound, at a place where' the tide ebbed and flowed strongly, and several miles from shore, and probably withoht the limits of any State or county. It is certain, likewise, that the property was lost in consequence of a fire, which broke out in the boat in . the night, and consumed it, with most of the other property on board. The value of it is also sufficiently certain, and that it was put. ' on board, not by an officer of the bank, but by Harnden, a forwarding agent for the community generally, and under a special contract between Harnden and the respondents,, that the *419 latter were not to run any risk, nor be responsible for any losses of property thus shipped by him.
But some other facts are not so certain. One of that character is, whether the fire occurred by accident, without any neglect whatever by the respondents and their agents, or in consequence of some gross neglect by one or both. It‘would not be very material to decide this last fact, controverted as it is and in some degree doubtful, if I felt satisfied that the plaintiffs could-recover anywhere, and more especially in admiralty, on the contract made by Hamden with the respondents, for the breach of the contract to carry and deliver this property.
The first objection to such a recovery on the contract anywhere is, that it was made with Hamden, and not with the bank. Butler v. Basing, 2 Car. & Bayne, 613 ; 15 Mass. 370 ; 2 Story, 32. Next, that he was acting for himself, in this contract, on his own duties, liabilities, and undertakings, and not for them; and that the bank, so far as regards any contract, looked to him and his engagement with, them, and not to the respondents or their engagement with him. 6 Bingh. 131. Next, that the articles, while on board the boat, were to be in the care and control of Harnden, and not of the master or owners; and hence no liability exists on the contract even to him,-much less the bank.. Story on Bailments, p. 547, § 582. And this same conclusion is also urged, because Hamden, by his contract, made an express stipulation, that the property carried should be at his risk, as well as in his care. See 5 East, 428; 1 Ventris, 190, 288. It is contended further, that, if the bank can sue on Karnden’s contract made with the respondents, it must be on the principle of his acting in it as their agent, and not for himself alone; and if so, and they, by suing on it, adopt its. provisions, they must be. bound by the stipulation in it made by him, not to hold the respondents liable for any risk or loss.
It is, however, doubted, whether, with such a stipulation, the respondents are- not, by public policy, to be still liable on a contract like this, in order to insure greater vigilance over all things intrusted to their-care (Gould v. Hill, 2 Hill, 623), and on the ground, that the parties could not mean by the contract that the carriers were to-be exonerated for actual misbehaviofir, but only for accidents otherwise chargeable on them as quasi insurers. Atwood v. Reliance Insurance Company, 9 Watts, 87 ; 2 Story, 32, 33.
It is insisted, next, that, as the unusual nature of the prop-; erty carried, in this case, was not made known to the carriers, nor a proportionate price paid for it's transportation, the owner *420 cannot recover beyond the usual value of common merchandise of such a bulk. Citizens’ Bank v. Steamboat Nantucket, 2 Story, 32 ; 25 Wend. 459 ; Gibbon v. Paynton, 4 Burr. 2301.
But, giving no decisive opinion on the validity of any of these objections, as not necessary in the view hereafter taken, yet they are enumerated to show some of the difficulties in sustaining a recovery on-this contract, notwithstanding their existence.
Another important objection remains to be Considered. It is, that no jurisdiction exists over this contract in a court of admiralty where these proceedings originated. The contract was made on land, and of course within the body-of the county of New York.' It was also not a contract for a freight of goods abroad, or to a foreign country, the breach of which has been here sometimes prosecuted in courts of admiralty. Drinkwater et al. v. The Spartan, Ware, D. C. 149, by a proceeding in rem (155); De Lovio v. Boit, 2 Gall. 398; The Volunteer, 1 Sunnier, 551;. Logs of Mahogany, 2 Sumner, 589; 6 Dane’s Abr. 2, 1, Charter-parties. See a case contra, in the records of Rhode Island, A. D. 1742.
But the law of England is understood to be, even in foreign charter-parties, against sustaining such suits, ex contractu, in admiralty. 3 D. & E. 323; 2 Lord Raym. 904; 1 Hag. Ad. 226, and cases cited in 12 Wheaton, 622, 623.
. By agreement of the judges in A. D. 1632, admiralty was not to try such cases, if the charter-party was contested. Dunlap’s Adm. 14; 4 Instit. 135; Hobart, 268.
It seems, however, to be doubted by Browne (2 Browne’s Civ. and Adm. Law, 122, 535), whether the libellant may nof proceed in admiralty,- if he goes to. recover freight only, and not a penalty. It is also believed, that, in this country, contracts. to carry freight between different States, or within the same State, -if it be on tide-water, or at least on the high seas, have sometimes been made the subject-matter of libels in admiralty. Dunlap’s Adm. 487; 1 Sumner, 551; 3 Am. Jur. 26; 6 Am. Jur. 4; King et al. v. Shepherd, 3 Story, 349, in point; Gilp. D. C. 524; Conkling, Pra. 150; De Lovio v. Boit, 2. Gall. 448. I am inclined to the opinion, too, that, at the time the Constitution of the United States was- adopted, and the words “ cases of admiralty and maritime ” were introduced into it, and jurisdiction over them was subsequently given in civil proceedings, in the áct of 1789, to the District Courts, the law in England had.in some degree become changed in its general principles in respect to jurisdiction in admiralty over contracts. Their courts had become inclined to hold, that the place of performance of a contract, if maritime in its subject, rather *421 than the place of its execution, was the true test as to its construction arid the right under it. This conformed, also, to the analogy as to contracts at common law. See cases in Towne v. Smith, 1 Woodbury & Minot, 135.
It is riot unusual for the place to which, the parties look for fulfilling their duties to be not only different from the place of making the contract, but for the parties to regard other laws and other courts, applying to the place of performance, as controlling and as having jurisdiction over it. Bank of the United States v. Donnally, 8 Peters, 361; Wilcox v. Hunt, 13 Peters, 378 ; Bell et al. v. Bruen, 1 Howard, 169.
Hence, for a century before 1789, Lord Kenyon- says, admiralty 'courts had sustained jurisdiction on bottomry bonds, though executed upon the land; because, “ if the admiralty has jurisdiction over the‘subject-matter, to say that it is necessary for the parties to go upon the sea to execute the instrument borders on absurdity.” See Menetone v. Gibbons, 3 D. & E. 267 - 269; 2 Lord Raym. 982; 2 H. Bl. 164; 4 Cranch, 328; Paine’s C. C. 671. On. this principle, the admiralty has' gradually been assuming jurisdiction over claims for pilotage on the sea, both the place of performance and the subject-matter being there usually maritime. 10 Wheat. 428 ; 7 Peters, 324; 10 Peters, 108; 11 Peters, 175; 1 Mason, C. C. 508. Because, on the general principle just referred to,-as to the object of the contract, if “it concerned the navigation of the -sea,” and hence was in its nature and character a maritime contract, it was deemed within admiralty jurisdiction, though made on land. Zane v. The Brig President, 4 Wash, C. C. 454; 4 Mason, C. C. 380; The Jerusalem, 2 Gall. 191, 465, 448; The Sloop Mary, Paine, C. C. 671; Gilp. D. C. 184, 477, 429 ; 2 Sumner, 1.
This is the principle, at the bottom,/or recovering seamen’s wages in admiralty. Howe v. Nappier, 4 Burr. 1944.
Not that the consideration merely was maritime, but that the contract must be to do something maritime as to place or subject. Plummer v. Webb, 4 Mason, C. C. 380; Berni v. The Janus et al., 1 Baldw. C. C. 549, 552 “A New Brig,” Gilp. D. C. 306. But we have already seen there are several direct precedents in England against sustaining these proceedings in . admiralty on the contract, such as a charter-party or bill. of lading, and strong doubts from some high authorities against it in this country. Chancellor Kent seems to think a proceeding in admiralty, on a charter-party like this, cannot be sustained, except by what he calls “ the unsettled- doctrine laid down in De Lovio v. Boit.” 3 Kent, Comm. 162. See like *422 wise Justice Johnson’s opinion to the like effect in Ramsey v. Allegre, 12 Wheat. 622.
Looking,' then, to the law as held in England in 1789, and not considering it to be entirely clear in favor of sustaining a suit in admiralty on a charter-party like this, and that it is very doubtful whether any more settled or enlarged rule on this .subject then prevailed in admiralty here, or has since been deliberately and generally adopted here, in respect to charter-parties or bills of lading, I do not feel satisfied in overruling the objection to our jurisdiction which has been made on this ground.
The further arguments and researches since Waring v. Clarke (5 How.) tend also, in my view, to repel still more strongly any idea that admiralty , jurisdiction had become extended here, at the Revolution, in cases either of contracts or torts, more broadly than in England.
But it is not necessary now to go into the new illustrations of this cited in the elaborate remarks of the counsel for the.' respondents, or discovered, by .myself;' in addition to those quoted in the opinion of the minority in Waring et al. v. Clarke, and in The United States v. The New Bedford Bridge, 1 Woodbury & Minot. Among mine is the declaration by Lord Mansfield himself, December 20th,- 1775, that the colonies wished “that the admiralty courts should never be made to extend there,” instead of wishing their powers enlarged (6 American Archives, 234;. Annual Register for 1776, pp. 99, 100)-; and there is likewise the protest of the friends of America, the same year, in the House of Lords, that the increase of .admiralty power by some special acts of Parliament was a measure favored at home rather than here, and was not acceptable here, but denounced by them as an inroad on the highly prized trial by jury. 6 American Archives, 226. Among those cited is the. conclusive evidence, that in some of the colonies here before the Revolution, the restraining .statutes of Richard II., as to the admiralty, were eo nomino and expressly adopted, instead of not being in force here. See in South Carolina, 2 Statutes at Large, 446, in 1712, and in Massachusetts, Dana’s Defence of New England Charters; 49 - 54; in Virginia, “the English Statutes” passed before James I., 9 Hening’s Statutes, 131, 203; Commonwealth v. Gaines, 2 Virg. Cases, 179, 185; in Maryland, 1 Maryland Statutes, Kilty’s Report, 223 ; and in Rhode Island, her records of a case in 1763, at Providence.
But I pass by all these, and much more, because, notwithstanding the course of practice here the last half-century in some districts,' and the inattention and indifference exhibited in many others as to the true line of discrimination between the juris *423 diction belonging to the common law courts and that in admiralty, enough appears to induce me, as at present advised, not to rest - jurisdiction in admiralty over, a transaction like this on contract alone. I shall not do it, the more especially when a ground less doubtful in my apprehension exists and can be relied on for recovering all the loss, if the damage was caused by a tort.
I havé turned my attention to ascertain whether the facts, in this case exhibit any wrong committed by the respondents, of such a character as a tort, and in such a locality as may render our jurisdiction in admiralty clear over it, looking to the principles of admiralty law in England, and also in this country, so far as can now be discovered to have existed at the time of our Revolution.
First, as to this, it is argued, that, in point of fact, gross negligence existed in the transportation of this property. If so, this conduct by the respondents' or their agents may be sufficient to justify, a proceeding ex delicto for the nonfeasance or misfeasance constituting that neglect, and causing the'loss of this property, entirely independent of the contract or its form, or the risks under it, or the want of notice of the great value of the property. Particularly might this be sufficient, if the injury was caused in a place, arid undér circumstances, to give a court of admiralty undoubted jurisdiction over it as a marine tort.
The question, of fact, then, as to neglect here, and the extent of it, may properly be investigated next, as in one view of the subject it may become highly important and decisive of the right to recover, and as it is our duty to settle facts in •an admiralty proceeding; when they are material to thei merits.
As before intimated, it is here'virtually conceded, that the property of the plaintiffs, while in charge of the respondents as common carriers on the sea, was entirely lost, by the burning of the boat in which it was transported.
The first inference from these naked facts would be, that the fire was produced by. some cause for which the owners were responsible, being generally negligence, and that prima, fade they were chargeable. 6 Martin, 681; Story on Bailments, <54 533, 538.
Indeed, the common carrier who receives property to transport, and does not deliver it, is always held jprima, fade liable. Abbott on Ship., ch. 3, § 3; 1 Ventris, 190; 6 Johns. 169; 8 Johns. 213 ; 19 Wendell, 245; Story on Bailments, § 533; 3 Kent, Comm. 207, 216; 3 Story, 349, 356; 5 Bingh. 217, 220 ; 4 Bingh. 218.
If they would have this inference or presumption changed, so as to exonerate themselves, it must be done by themselves, *424 and hot the plaintiffs, and by proof removing strong doubts; or, in other words, turning the scales of evidence in their favor • in this attempt. This idea- is fortified by the express provision establishing a presumption, by the act of .Congress, in case of damages by explosions of steam. 5 Stat. at Large, p. 305, $ 13.
Independent of this presumption, when we proceed to examine the evidence on both sides as to the contested points' of fact connected with the loss, it is found to be decidedly against the conduct of the respondents and their agents; and, so far from weakening the presumption against them from the actual loss, it tends with much strength to confirm it; There had, to be sure, been recent repairs, and certificates not long before ob- . tained of the good condition of the boat. But on the proof, she does not seem to have been in a proper state to guard against accidents by fire' when this loss occurred. Her ipachinery.was designed'at first to burn wood, and had not long before been changed to consume anthracite coal, which created a higher heat. And yet there was a neglect fully to secure the wooden portions, of the boat, near and exposed to this higher heat, from the natural and dangerous consequences of it. So was there an omission to use fire-brick and new sheet-iron for guards, nigh the furnace. . On one or two' occasions, shortly before this accident, the pipe had become reddened by the intense heat so as to attract particular attention; and shortly before, the boat actually caught fire, it is probable, from some of those causes, and yet no new precautions had been adopted.
In the next place, the act of Congress (5 Stat. at Large, pp. 304, 305) requires the owners of steamboats “ to provide, as a part of the necessary furniture, a suction-hose and fire-engine and hose suitable to be worked in said boat, in case of fire, and carry the same upon each and every voyage in good order.” (Sec..9.) • And it imposes also a penalty of $ 500 for not complying with any condition imposed by the act.. (Sec. 2.)
The spirit of this requisition is as much violated by not having the hose and engine so situated as to be used promptly and efficiently, as by not having them at all, or not having them “ in good order.”
The hose and engine were not kept together, and hence could not be used on that fatal night! One was stowed away in one part of the boat, and the other elsewhere, so as not to be in a situation to be brought promptly into beneficial use.
Again, it was an imperative provision in the act of Congress before referred to (sec. 9), — and the neglect of it was punished by a fine of $ 300, on the owner as well as master, — “ that iron rods or chains shall be employed and used in the navigating of all steamboats,.instead of wheel.or tiller ropes.” *425 Yet this was not complied with, and renders their conduct in this respect, not only negligent, but illégal.
Though, in fact, this accident may not have proved more fatal than otherwise from this neglect, the non-compliance with the provisipn was culpable, and. throws the burden of proof on the owners to show it did not contribute to the loss. Waring et al. v. Clarke, 5 Howard, 463. It is true, that Congress, some years after, March 30, 1845, dispensed with a part of this provision (5 Stat. at Large, 626), under certain other guards. Yet in this case even those other guards were wholly omitted.
Nor does there appear' to have been any drilling of the crew previously, how to use the engine in an emergency, or any discipline adopted, to operate as a watch to prevent fires from occurring, or, after breaking out, to extinguish- them quickly.- Indeed, ithe captain, on this occasion, checked the efforts of some to throw the ignited cotton overboard, so as to stop the flames from spreading, by peremptorily forbidding 'it to be done.
The respondents, to be sure, prove that, several buckets were on board. But the buckets, except in a single instánce, were not rigged with heaving-lines, so as to be able to draw up water, and help to check promptly any fire which might break out. And in consequence of their fewness or bad location, some of the very boxes containing' the specie' of the plaintiffs were broken open and emptied, in order to hold water. Lastly,when discovered, the officers and crew .do not appear generally to have made either prompt or active' exertions to extinguish the fire, or to turn the vessel nearer shore, where this property, and the passengers, would be much more likely to be preserved, eventually; than by remaining out in the deep parts of the Sound.
The extent and nature ' of the liability thus caused are well settled at law. The property of the plaintiffs was destroyed by fire, through great neglect by the defendants and their agents. Common carriers are liable for losses by fire, though guilty of no neglect, unless it happen by lightning. 1 D. & E. 27; 4 D. &. E. 581; 3 Kent, Comm. 217; 5 D. & E. 389; Gilmore v. Carman, 1 Smedes & Marsh. 279; King et al. v. Shepherd, 3 Story, Rep. 360; 2 Browne, Civ. and Adm. Law, 144; 2 Wend. 327; 21 Wend. 190. These respondents were common carriers, in the strictest and most proper sense of thé law.'. King et al. v. Shepherd, 3 Story, Rep. 349. Sée other cases, post.
They would, therefore, be liable in the present case without such neglect, if this view of it applied to a recovery on the ground of a tort as well as of a contract. But as it may not,' *426 the next inquiry is if the facts disclose a breach of. duty, a culpable neglect, either by the officers or owners of the vessel, amounting to a tort, and for which the defendants are respon-? sible.
It is well settled, that a captain is bound to exercise a careful supervision over fires and lights in his vessel, ordinarily. Malynes, 155; The Patapsco Ins. Co. v. Coulter, 3 Peters, 237, 228, 229; Busk v. The Royal Ex. Ass. Co., 2 Barn. & Ald. 82.
He is required in all things to employ due diligence and skill (9 Wend. 1; Rice’s R. 162), to act “with most exact diligence ” (1 Esp. Ca. 127), or with the utmost care (Story on Bailm. § 327). But how much more so in a steamboat, with fires so increased in number and strength, and especially when freighted with very combustible materials, like this, chiefly with cotton!
His failure to exert himself properly to extinguish any fire amounts to barratry. 3 Peters, 228, 234; Waters v. Merch. Louisville Ins. Co., 11 Peters, 213; 10 Peters, 507. And M the property be insured against barratry, the owners may then recover.
■ To be sure, in one case the owners of a steamboat were exonerated from paying for a loss by fire. But it was only under the special provision of the local laws, rendering them exempt, if the fire occured “by accidental or uncontrollable events.” See. Civil Code of Louisiana, 63d article; Hunt v. Morris, 6 Martin, 681.
So the written contract for freight, as well as that for insurance, sometimes does not cover fire, but specially exempts a loss by it; 3 Kent, Comm. 201-207.
In such case there may be no liability for it on the insurance, and doubtfully on the charter or bill of lading, unless it was caused by gross neglect, crassa negligentia. But in case of such neglect, liability exists even there. 3 Kent, Comm. 217; 3 Peters, 238; 1 Taunton, 227. 1 In this view the owners seem liable for all damages which they or their servants could, have prevented by care. 8 Serg. & Rawle, 533. As an illustration of what are meant by such damages, they are those which happen, if on land, from unskilful drivers, “ from vicious and unmanageable horses, or when occasioned by overloading the coaches, as these would imply negligence or want of care.” Beckman v. Shouse, 5 Rawle, 183.
From the above circumstance, the conclusion is almost irresistible, that what constitutes a gross neglect by the respondents and 'their agents, as to the condition of the. boat and its equipments, existed here, and by the deficiencies and imperfec *427 tion of them contributed much to the loss of. this property ; and beside this, that want of diligence and skill on board, after the fire broke out, as well as want of watchfulness and care to prevent its happening or making'much progress, was manifest.
If any collateral circumstance can warrant the exaction of greater vigilance than usual, on occasions like these, or render neglects more culpable, it was, that the lives of so many par sengers were here exposed by them, and became their victims. This last consideration is imperative, in cases of vessels devoted both to freight and passengers, to hold the owners and their servants responsible for the exercise of every kind of diligence, watchfulness, and skill which the principles of law may warrant. Beside the great amount of .property on board on this occasion, they had in charge from one to two hundred passengers, including helpless children and females, confiding for safety entirely to their care-and fidelity.' All of these, except two or three, were launched into. eternity, during that frightful night, by deaths the most painful and heart-rending. Had proper attention been devoted to the guards ágainst .fire, such as prudence and duty demanded, or due vigilance and energy been exercised to extinguish it early, not only would large amounts of property probably have been saved, but the tragic sufferings and loss of so many human beings averted.
In view of all this, to relax the legal obligations and duties of those who are amply paid for them, or to encourage careless breaches of trusts the most sacred, or to favor technical niceties likely to exonerate the authors of such a calamity, would be of most evil example over our whole seaboard, and hundreds of navigable rivers and -vast lakes, where the safety of such immense property and life depends chiefly on the due attention of the owners and agents of steamboats, and is, unfortunately, so often sacrificed by the want of it. To relax, also, when Congress has made such neglect, when followed by death, a crime, and punishable at. least as manslaughter, would be unfaithfulness to the whole spirit of their legislation, and to the loudest demands of public,policy.
Their enactment on this subject is in these words (see statute before cited, sec. 12): — “ That every captain,” &c., “by whose misconduct, negligence, or inattention to his of. their respective duties, the life or lives of any person on board said vessel may be destroyed,, shall be deemed guilty of manslaughter,” &c.
Showing, then, as the facts seem to do here, wrongs and gross neglect by both the owners and officers of the boat, the next step in our inquiries is, whether any principles or precedents exist against their being prosecuted in admiralty as a *428 tort, and by a proceeding which sounds ex delicto, and entirely independent of any contract.
The recovery, in cases like this, on the tort, counting on the duty of the carrier and its breach by the negligent loss of the property, is common, both in this country and abroad, in. the courts of- common law.
Whether it be redressed there in trespass or case, when suing ex delicto,, is immaterial, if, when case is brought, the facts, as here, show neglect or consequential damage, rather than those Which are direct and with force. And if case lies at common law on such a state of facts, there seems to be no reason why a libel in admiralty may not lie for the wrong, whenever, as here, it was committed on the sea, and clearly within admiralty jurisdiction over torts. For the admiralty is governed by like principles and facts, as to what constitutes á tort, as prevail in an action at law for damages,-and its ingredients'are the same, whether happening on land or water. But case will lie át law, on facts like those here, for reasons obvious and important in the present inquiry. Indeed, on such facts the ancient action was generally in case, and counted on the duty of the carrier to. transport safely the property received, and charged him with tortious negligence in not doing it. 1 Price, 27; 2 Kent, Comm. 599; 3 Wend. 158. In such, proceedings ,at common law, the difference was in some respects, when ex delicto, more favorable to the owners, as then .some neglect, or violence, or fraud, or guilt of some kind, must be shown, amounting to a breach of public duty by the carrier or his servants. Hinter v. Dibdin et al., 2 Adol. & Ell., N. S. 646; 2 New R. 454; 2 Chit. R. 4. While in the action of assumpsit, more modern, but by no means exclusive, the promise or contract alone need be shown, and a breach of that, though without any direct proof of neglect, as carriers are, by their duties, in law, insurers against all losses except by the king’s enemies and the act of God. 3 Brod. & Bingh. 62; 63; 19 Wend. 239;
'Forward v. Pittard, 1 D. & E. 27; 1 Esp. Ca. 36; 2 Chit. R. ■Í; Ashmole v. Wainwright, 2 Adol. & Ell., N. S. 663.
So' it is well settled that these rules of law, and all others as to cominon carriers by land, apply to those by water, and to those boats carrying freight, as this one did; 10 Johns. 1 ; 1 Wils. 281; 3 Esp. Ca. 127; 2 Wend. 327; 3 Story, 349.
What, then, in principle, operates against a recovery ? .
Somte would seem to argue, that a.proceeding ex delicto must be trespass, and that case is not one. But when it proceeds, as here, for consequential damages, and those caused by gross neglect, and not a mere breach of . contract, it sounds ex delicto as much as trespass itself. 1 Chit. Pl. 142.; 3 East, 593; 2 Saund. 47 b.
*429 The misconduct complained of here amounted to a tort, as much as if it had been committed with force. A tort means only a wrong, independent of or as contradistinguished from a mére breach of a contract. The evidence here, in my apprehension, shows both misfeasance and nonfeasance, and a consequential loss from them, which it is customary to consider as tortious. It was here, to be sure, not a trespass vi et. armis, and perhaps not a conversion of the property so as to justify trover, though all the grounds for the last exist in substance, as the plaintiffs have lost their property by means of the conduct of the defendants, into whose possession it came, and who have not restored it on demand, nor shown any good justification .for not doing it.
It is altogether a mistake., as some seem to argue, that' force and a direct injury are necessary to sustain proceedings in tort, either at law or in admiralty, for damages by common carriers. So little does the law regard, in some cases, the .distinction between nonfeasance and misfeasance, in creating á tort and giving any peculiar form of action for it, that in some.instances a nonfeasance is considered as becoming misfeasance ; such as a master, of a vessel leaving his register behind, or his compass, or anchor. . 3 Peters; 235. And “ torts of this nature,” as in the present case, may be committed either by “nonfeasance, misfeasance, or malfeasance,” and often without force. 4 D. & E. 484; 1 Chit. Pl. 151; Bouvier’s Dict., Tort. And even where mala fdes is necessary to sustain the proceeding, gross negligence is evidence, of- it. 4 Adol. & Ell. 876; 1 Howard, 71; I Spence’s Eq. Jur. 425; Jones on Bailments, 8; Story on Bailments, §§ 19, 20. The action in such case is described as “ upon tort,” and arises ex delicto. 2 Kent, Comm. 599. In most instances of gross negligence, misfeasance is involved (2 Cromp. & M. 360); as a delivery to a wrong person, or carrying to a wrong place, or carrying in a wrong mode, or leaving a carriage unwatched or unguarded. 2 Cromp. & M. 360; 8 Taunt. 144. Where case was brought for damage by overloading and sinking a boat, it was called an action “ for ' a tort,” and sustained, though Jhe injury was wholly consequential. 1 Wils. 281.
Again, it has been argued, that if direct force be not a necessary ingredient to recover in this form of action, it must in some degree rest on the contract which existed here with Harnden, and be restrained by its limitations. But the books are full of actions on' the case where contracts existed, which were brought and which count • entirely independent of any contract, they being founded on - some public duty neglected, to the injury of another, or on some private wrong or *430 misfeasance, without reference to any promise or agreement broken. 12 East, 89 ; 4 Howard, 146 ; Chit. Pl. 156; Forward v. Pittard, 1 D. & E. 27; 2 N. Hamp. 291; 2 Kent, Comm. 599; 3 East, 62 ; 6 Barn. & Cres. 268; 5 Burr. 2825; 6 Moore, 141; 9 Price, 408; 5 Barn. & Cres. 605 - 609. Some of the cases cited of this character are precisely like this, being for losses by non-delivery of property by common carriers, and sued for as torts thus committed. 5 D. & E. 389. They go without and beyond the contract entirely.
Nor is intent to do damage a necessary ingredient to sustain either case or trespass. 2 New R. 448. Though the wrong done is not committed by force or design, it is. still treated as ex delicto and a tort, if it was done either by a clear neglect of duty, by an omission to provide safe and well-furnished carriages or vessels, by carelessness in guarding against fires and other accidents, by omitting preparations and precautions enjoined expressly by law, or by damage s consequent on the negligent upsetting of carriages, or unsafe and unskilful navigation of vessels. See cases of negligent defects in carriages and vessels themselves, 2 Kent, Comm. 597, 607; 6 Jurist, 4; The Rebecca, Ware, D. C. 188; 10 East, 555; 1 Johns. Cas. 134; 5 East, 428. Or in machinery, Camden and Amboy Railroad v. Burke, 13 Wend. 611, 627; 5 East, 428 ; 9 Bingh. 457. Even, if the defect be latent, 3 Kent, Comm. 205. See those of care-i less attention, The Rebecca, Ware, D. C. 188. See those of non-conformity to legal requisitions, as hose and engine here not in good order, Waring et al. v. Clarke, 5, Howard. See those consequent on negligent driving, 4 Barn. & Cres. 223 ; Bretherton v. Wood, 3 Brod. & Bingh. 54. If damage or loss happen by neglect or wrong of a servant of a common carrier, the principal is still liable. 13 Wend. 621; Story on Partnership, § 489; Dean et al. v. John Angus, Bee’s Adm. 369, 239; Story on Bailments, § 464; 2 Browne, Civ. and Adm. Law, 136. This is necessary to prevent fraud; if such neglect be not evidence of fraud or misfeasance. The owner should be liable for employing those negligent. Story on Agency, <|> 318 and note.
There is another important consideration connected with this view of the subject, and relieving it entirely from several objections which exist to a proceeding founded wholly on a contract rather than a tort. It is this. Where the injury is caused by a tort or fraud, no question arises as to any special agreement or notice, as with Harnden here, not to assume any risk. ,In short, the agreement, of that kind here, does not exonerate, if “ malfeasance, misfeasance, or gross negligence ” happens by owners or their servants. 13 Wend. 611; 19 Wend. 234, 251, 261; 5 Rawle. 179, 189; 2 Crompt. & M. *431 353 ; 2 Kent, Comm. § 40; Brooke v. Pickwick, 4 Bingh. 218; 3 Brod. & Bingh. 183. Because the wrong is then a distinct cause of action from the breach of the contract, and the exception in it as to the risk was intended to reach any loss not happening .through tortious wrong. “ Even with notice, stage-proprietors and carriers of goods would be liable for an injury or .loss .arising from the insufficiency of coaches, harness, or tackling, from the drunkenness, ignorance, or carelessness of drivers,, from vicious and unmanageable horses, or when occasioned by overloading the-coaches, as these would imply negT ligencé or. want of care.” 3 Rawle, 184. It.is further ¡settled, in this class of cases, that the principle of not being liable for jewels, money; and other articles of'great value, unless notice was given of it and larger freight paid in consequence of it, does not apply. 4 Bingh. 218; 5 Bingh. 223 ; 2 Crompt. & M. 353. Because here the liability is not. that of an .insurer against many accidents and many injuries by third persons of the property carried, and which it may be right to limit to such values as were known and acted upon in agreeing to carry. But it is for the wrong of the carrier himself, or his agents; their own misfeasance or nonfeasance, and hence gross neglect, .renders them responsible for the whole consequential damages, however valuable the property thus injured or lost. 2 Barn. & Ald. 356; 8 Taunt. 174; 4 Binn. 31; 2 Adol. & Ell. 659; 5 Barn. & Ald. 341, 350; 16 East, 244, 245.
Some think the neglect in such case, so as to be liable for valuables, must amount to misfeasance. 2 Adol. & Ell. 659; 2 Myl. & Craig, 358. It must be “misfeasancé or gross negligence.” 2 Kent, Comm. 607, note; 13 Price, 329; 12 B. Moore, 447 ; 5 Bingh. 223 - 225; 8 Mees. & Wels. 443. By a recent .statute in England, under William- IT., though thé carrier has been exonerated from the liability and care of valuables, without notice, yet he cannot be if gross neglect happens. 2 Adol. & Ell. 646.
All this being established at law, what is there to prevent this wrong from being deemed, a tort, in connection with maritime matters, — Or, in other words, “a marine tort,” — and subject to be prosecuted in admiralty ? I am not aware that a marine tort differs from any other tort in its nature or incidents, except that it must be committed, as this was, on the high seas. See cases cited in Waring et al. v. Clarke, 5 Howard. There it was held sufficient to constitute a marine tort,-and one actionable in admiralty, if the wrong was committed only on tide-water.
• We have already suggested, also, as to the gist of the wrong, that gross neglect, the elements and" definition of it, are the same on the water as on land, and consequential or direct dam *432 "ages by a ■wrong are" regarded in the same light on both. The actions of case, as well as trespass, at common law, in illustration of this, are numerous, as to torts on the water. (Sek ante.)
Force, too; is no more necessary to constitute this kind of tort át sea than on land, or in admiralty than in a common law court. 3 Story, 349,. That is the gist of this branch of the case, It is true, that most of thé libéis in admiralty for torts are for such as were caused by force, like assaults and batteries (4 Rob...Adm. 75); or for collision between ships-on the .-sea, to the injury of person or property (2 Browne’s Civ., and Adm. Law, 110; (Dunlap’s Adm. 31; Moore, 89); or for wrongful captures (10 Wheat. 486; Bee’s Adm. 369; 1 Gall. 315; 3 Cranch, 408); or for carrying off a person in inyitwm (Dunlap’s Adm. 53); or for any “ violent dispossession of property on the ocean” (1 Wheat. 257 ; L’Invincible, 1 Wheat 238; 3 Dall. 344). And though, where trespass is brought at common law, or a- tort is sued for in admiralty as “ a mariné trespass,” there must usually have been force and an immediate injury (1 Chit. Pl. 128 ; 11 Mass. 137; 17 Mass. 246 ; 1 Pick. 66; 8 Wend. 274; 3 East; 293; 11 Wheat. 36, argu.; 4 Rob. Adm. 75), yet it need not be implied or proved in trespass on the case at law, or in a libel in admiralty for consequential damages to property." Such "a libel, lies- as well for a tort, to' property- as to the person, oh the sea (2 Browne’s Civ. and Adm. Law, 109, 202 ; Doug. 594, 613, note; 4 Rob. Adm. 73-76 ; Martin v. Ballard et al., Bee’s Adm. 50, 239); Und for consequential injury by a tort there, as well as direct injury. Sloop Cardolero, Bee’s Adm. 51, 60; 3 Mason, 242; 4 Mason 385 - 388; .2 Browne’s Adm. 108 ; 2 Story, 188 ; 2 Sir Leoline Jenkins, 777. It was even doubted once, whether, for such torts at sea, any- remedy existed elsewhere than in admiralty. 2 Browne’s Civ. and Adm. Law, 112. Indeed, 1 Browne’s Civ. and Adm. Law, 397, shows, that, beside rights arising' from contract", there were “ obligations or rights arising to., the injured, party from the torts or wrongs done by another.” And these were divided, into, those arising %x delicto and -those quasi - ex delicto; and the former includes damage” to property, a? in this case. -It meant injury to property bjr destroying, spoil-’ ing, or. deteriorating it", and implied “ faultiness • or injustice ” (401), but not. necessarily force. Either.trespass or.case sometimes lies for a marine tort, even in the collision of vessels,, where at times the only force is .that of winds and tides, and the efforts of the master- were , tó avoid, rather than commit, an injury. 1 Chit Pl. 145; 2 Story, 188 ; 11 Price, 608 ; 3 Car. & Payne, 554. Damages-by insufficient equipments, ropes; &c., mustt be paid by the owners of the vessel to the merchant, *433 even by the Laws of Oleron (art. 10). Sea Laws, 136; Laws of Wisby, art. 49. And nothing is more consequential, or less with force, than that kind of injury.
Finally, the principles applicable to the definition of thé wrong or tort being here in favor o'f a recovery in admiralty, and there being no precedents in opposition, but some in support of it, the inference is strong, that this destruction of the property of the plaintiffs may well be regarded and prosecuted in admiralty as a marine tort.
■Though I admit there are no more cases in point abroad, in 1789, for - sustaining a suit for a consequential irijury by a carrier as a tort, than on the contract, in admiralty, yet thé principles are most strongly in favor of relying on the tort, without any opposing decision, as there is to a libel on the contract. Beside this, other difficulties are avoided, and more ample justice attained, by the libel here for the tort, than by one for the contract,
A moment to. another objection, — that the libel in this case does not contain allegations in proper form to recover damages in admiralty, as if for a maritime tort.
This libel is in several separate articles, rather than in A single count. In none of them is any contract specifically set out, though in one of them something is referred to ás “ contracted.” The libel avers, that the respondents were common carriers ; that a public duty thus devolved on them; that they received the property on board to transport it, and so negligently I conducted, it was lost. The breach is described throughout, not of. what had been “ contracted ” or promised), but as a wrong done, or tort, and specifies several misdoings.. It is in these words: —
“ Yet the respondents, their officers, servants, and agents, so carelessly and improperly stowed the said gold coin and silver coin, and the engine, furnace, machinery, furniture, rigging, and equipments of the said steamboat were so imperfect and insufficient,, and the said respondents, their officers* servants, and agents, so carelessly, improperly, and negligently managed and conducted the said steamboat Lexington, during her said voyage, that by reason of such improper- stowage, imperfect and insufficient engine, furnace, machinery, furniture, rigging* and equipments, and of such careléss, improper, and negligent conduct, the said steamboat, together with the gold coin and silver coin to the libellants, belonging, were destroyed by fire on the.high seas, and wholly lost.”
Where contract .and tort, in the forms of declaration at. common- law in actions of - the cáse, are with difficulty discriminated, the general test adopted is, if specific breaches are as *434 signed, sounding ex delicto, it is case on the tort. Jeremy on Carriers, 117. Here this is done,
The same technical minuteness is not necessary in a libel as in a declaration at common law. 5 Rob. Adm. 322; Dunlap, Adm. 438, 439; Ware, D. C. 51. Only the essential facts, need be alleged, without regard to particular forms, either in contract or tort. Hall’s Prac. 207, 138; Dunlap, Adm. 427.
And in the same libel between the same parties, unlike the rule at common law, it is held by some that both contract and tort may be joined, though it is proper to state them in separate articles in the libel, like separate counts. Semble in 3 Story, R. 349; Dunlap, Adm. 89. And in some cases it is clearly better not to unite them. Ware, D. C. 427. Here, if the libel is considered as but separate paragraphs of one article, it is a good one ‘in tort. Dunlap, Adm. 114, 115; 4 Mason, C. C. 541. And if as separate articles, one of them is valid in tort.
The forms of libels for maritime torts include those which caused only consequential damages, as well as those which caused- direct damages. Dunlap, Adm. 49; 3 Story, R. 349, one count seems to be for the wrong. .
There aré cases of this kind merely for improper usage to passengers, by bad words, and neglect; but no force existed, or was alleged. 3 Mason, C. C. 242.
Others are libels for seducing or carrying away a minor son of the plaintiff to his damage, like the actions on the case at ' common law. Plummer v. Webb, 4 Mason, C. C. 380. Yet they are called, as they are in law, “ tortious abductions.”
So a libel lies for loss of goods “ carelessly and improperly stowed.” Ware, D. C. 189.
But if the libel here was less formal in tort, the liberality practised in admiralty pleadings, regarding the substance chiefly, as in the civil law, would allow here any necessary amendments. Dunlap, Adm. 283; 4 Mason, C. C. 543; 3 Wash. C. C. 484. Or would allow them in the court below, by reversing the judgment, and sending the case back with. directions to permit them there. 4 Wheat. 64, 63; 4 Howard, 154; 1 Wheat. 264, 13; 9 Peters, 483.
The amount of damages which can be awarded in admiralty, in a case like this, has been agitated by some of the court, but was not argued at the bar. It is- not without difficulty, but can in a minute or two be set right. By the ancient practice in admiralty, in case of contracts of freight made by the master, it is true that the owners were liable, whether ex contractu or ex delicto, and whether in personam or in rem, for only the value of the vessel or the capital used in that busi *435 ness. Dunlap, Adm. 31. And' if. the vessel was lost, the remedy against the owners was entirely lost in admiralty'. Ware, D. C. 188. Yet it' is a conclusive answer, that here, as well as abroad, the rule of the eivil and common law is to give the whole loss. 2 Kent, Comm. 606; 3 Kent, Comm. 217. And that this rule of full damage in a libel in admiralty has been adopted here after much consideration. Livingston, Jiistice, in Paine, C. C. 118, says, that, “ it had long been regarded as a general principle of maritime law ” to make the owners liable for a tort by the master, and that now the whole injury was the measure' of damage, .without Reference to the value of the vessel and freight. See also Del Col v. Arnold, 3 Dall. 333; The Appollon, 9 Wheat. 376; 3 Story, R. 347; 2 Story, R. 187.
This is modified by some State laws, under certain .circumstances. See The Rebecca and Phebe, Ware, D. C. And England, by 53 Geo. III. ch. 99.
But even there the owner is still liable beyond the value of the vessel and freight, if the, damage or neglect was “ committed or occasioned” with “the fault or privity of such owner.” See Statutes at Large of that year; Phebe, Ware, D. C. 269. See for this and other statutes, 2 Bro. Civ. and Adm. Law, 45, excusing owners if the pilot alone is in fault. See 6 Geo. IV. ch. 125, §55; 1 Wm. Rob. 46; 1 Dod. Adm. 467. So the whole injury must be paid now' on the contract, and the owners cannot escape by abandoning the vessel which did the wrong. 2 Bro. Civ. and Adm. Law, 206, note.
On principle, also, this is the right rule in admiralty, , clearly, where the owners themselves at home, and not the master abroad, made the contract, or where' they were guilty of any neglect in properly furnishing the vessel, and not he. Phebe, Ware, D. C. 269, 203-206.
The principle of his binding them only to the extent of the property confided to him to act with, or administer on, does not apply to that state of facts (Abbott on Ship. 93), but only to his doings abroad.
The contracts made abroad are usually in his name, as well as by him, and not by the owners, and he only to sue or be sued. Abbott on Shipp., pt. 2, ch. 2, § 5.
In Waring et al. v. Clarke, which was a tort by the master at home, in a collision of two boats, the whole amount of the injury was awarded. See. also 1 Howard, 23 ; 3 Kent, Comm. 238. So principle, no less than precedent, requires it now, in admiralty as well as common law, when the master is usually not a part-owner, but a mere agent of the owners, and doing damage, as here, by unskilfulnes.s or neglect, and not by *436 wilful misconduct'. Ware, D. C. 208; 1 East, 106. For this, .surely; those should suffer who selected him respondet superiori. 1 East, 106; Abbott on Ship., pt. 2, ch. 2, § 9; 2 Kent, Comm. 218.
It is a mistake, likewise, to suppose, as some have, that the rule of damage is thus higher in admiralty than at common .law, or when counting on the tort rather than, contract, The only difference is, that in admiralty, if counting on the contract, doubts exist whether a recovery can be had on the precedents, while, if counting on the tort, no doubt exists, the place of the tort being clearly on the sea, and within admiralty jurisdiction. Nor do I see any sound reason for not sustaining this case in admiralty, when jurisdiction exists there over the subject, because this proceeding is in personam and not in rem. 6 Am. Jur. 4; 2 Bro. Civ. and Adm. Law, 396: 2 Gall. 461, 462; Hard. 173.
The jurisdiction is one thing, the form of proceeding another ; and it is only when the vessel itself is pledged, and no personal liability created, so as to lay a foundation for an. action at law, that the form of proceeding seems to help to give jurisdiction in admiralty, where alone the libel in rem in such case can be followed. 3 D. & E. 269.
But even then, I apprehend, the subject-matter must .be proper for admiralty, or it could not be prosecuted there in rem, because, if the subject-matter is a carriage or horse, rather than a ship or its voyage, or something maritime, admiralty would get no jurisdiction by the' thing itself being pledged, or to be proceeded” against. The Fair American, 1 Peters, Adm. 87; Duponceau on Jurisdiction, 22, 23.
Indeed, the rule in England to this day seems to be adverse to proceeding in admiralty at all, even in rem, to recover freight. Abbott on Shipp. 170. King et al. v. Shepherd et al., 3 Story, 319, was a libel, in personam, against a common car- ‘ rier by water, and held that the liability was the same as on land, and an act of God to excuse must be immediate, and.that the burden of the excuse rests on the respondents, and they axe not discharged by a wreck, but must attend to the property till safe or restored.
So it has been adjudged by this court to be proper to prosecute in admiralty for marine torts, in personam as well as -in rem.. Manro v. Almeida, 10 Wheat. 473; The Appollon, 9 Wheat. 362; Bee, Adm. 141; The Cassius, 2 Story, R. 81; 14 Peters, 99. See also the rules of this court (1845),.for admiralty practice, the 14th, 16th, and 17th (3 Howard, 7, Preface), and which expressly allow in libels for freight proceedings in rem or in personam, and in some trespasses to property either, mode.
*437 I concur, therefore, in the judgment of the court, affirming the decree for full damages, but on the ground of a recovery for the wrong committed as a marine tort, rather than on any breach of contract which can be prosecuted by these plaintiffs, and in admiralty.
Order.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Rhode Island, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this cotut, that the decree of the said Circuit Court in this cause be and the same is hereby affirmed, with costs, and damages at the rate of six per centum per annum.
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