BYBD, J.
1. It seems to be the settled law of England, that the maritime lien which a shipper has upon a vessel, for an injury to his goods, can not be enforced in a court of admiralty.—Abbott on Shipping, 127; Birley v. Gladstone, 3 M. & S. 205; Gladstone v. Birley, 2 Mer. 401; Pierson v. Robinson, 3 Swanst. 139, n. But in this country the rule is otherwise.—Clark v. Barnwell, 12 Howard, 272; Rich v. Lambert, ib. 347; Schooner Volunteer, 1 Sumner, 551; The Gold, Hunter, 1 Bl. & Howl. Adm. 300; The Boston, ib. 309.
Whether this lien attaches in fresh-water navigation, or where the water is partly fresh and partly tidal; whether on vessels employed exclusively in State or inter-State trade ; whether, where it does attach, the admiralty courts of the United States have exclusive jurisdiction or not; and if not, in what cases it is exclusive, and in what the States have concurrent and independent jurisdiction; these, and cognate questions, have been subjects of discussion in this [63]*63country, and upon some of them the adjudications have been variant and conflictive. Without attempting a review of the cases, we will cite the leading ones : DeLovio v. Boit, 2 Gallis. 398; Ramsay v. Allegre, 12 Wheat. 614; The Gen. Smith, 4 ib. 438; Hallett v. Novion, 14 John. 273; 16 ib. 327; The Thomas Jefferson, 10 Wheat. 428; Waring v. Clarke, 6 How. 441; 6 ib. 344; Paroux v. Howard, 7 Pet. 524; Orleans v. Plabus, 11 Pet. 175; The Commerce, 1 Black, 574; The Genesee Chief, 12 How. 443; Fretz v. Bull, ib. 466 ; The Magnolia, 20 ib. 296; Pierce v. Page, 24 ib. 228; Stokes’ Case, 22 ib. 48; Allen v. Newberry, 21 ib. 244; The Niagara, ib. 7; Sturges v. Clough, ib. 451; Taylor v. Carryl, 20 ib. 583; Gilman v. Philadelphia, 3 Wallace, 713 ; and cases cited in the foregoing, and on brief of counsel in this cause.
In the case cited from 3d Wallace, Justice Swayne, delivering the opinion of the court, says: “ The States may exercise concurrent or independent power, in all cases but three: 1st, where the power is lodged exclusively in the Federal constitution; 2d, where it is given to the United States, and prohibited to the States; and, 3d, where from the nature and subjects of the power it must necessarily be exercised by the national government.” In that case he further says: “ The power here in question does not, in our judgment, fall within either of these exceptions.” That case, in its facts, was not like this, but in principle we can see no substantial difference.
In the case of Taylor v. Carryl, (supra,) Justice Cámpbell, delivering the opinion of the court, quotes approvingly from Judge Story, as follows : “ Mr. Chancellor Kent and Mr. Bawle seem to think, that the admiralty jurisdiction given by the constitution is in all cases necessarily exclusive. But it is believed that this opinion is founded in mistake. It is exclusive in all matters of prize, for the reason that, at common law, this jurisdiction is vested in the courts of admiralty, to the exclusion of the courts of common law. But, in cases where the jurisdiction of the common law and admiralty are concurrent, (as in cases of possessory suits, mariners’ wages, and marine torts,) there is nothing in the constitution necessarily leading to the conclusion, that the jurisdiction was intended to be exclusive. * * * * But [64]*64tlie States might well retain and exercise the jurisdiction, in cases of which the cognizance was previously concurrent in the courts of common law.”
From these principles we conclude, that the States have the power to confer on their courts the jurisdiction to enforce a maritime lien, arising within their respective limits, where, by the common law, such courts had jurisdiction of the subject-matter. At common law, a shipper, on a vessel engaged in either foreign or internal navigation, could bring a suit in the common-law courts, to recover damages for any injury to the goods shipped by him, for which the owner of the vessel was liable. Seamen have a lien on the vessel, for their wages earned in her service, which they could enforce in a court of admiralty; and they also had a remedy by an action in a court of common law, for services rendered, against the owner of the vessel, or the person on whose account the vessel was running; and we see no reason why the State legislature is not competent to authorize its courts to enforce that lien, even in a suit in the nature of an admilalty proceeding, without in the least interfering with the admiralty jurisdiction,of the courts of the United States.
We see nothing in the case of Jackson et al. v. Steamer Magnolia, (supra,) in conflict with these views. That case only decides, that the Federal courts have jurisdiction of a marine tort, committed within a county of a State, and above tide-water. It does not hold that the jurisdiction is exclusive in those courts over such torts. The supreme court of the United States have not been harmonious in their decisions upon this and kindred questions, and the members of the court have, on several occasions, been nearly equally divided; as, in the cases of the Steamer Magnolia, Taylor v. Carryl, and Gilman v. Philadelphia, supra. This court has heretofore passed upon the jurisdictional question involved in the decision of this cause.—Richardson v. Cleavland, 5 Porter, 251; Steamer Morris v. Williamson, 6 Ala. 50; Steamer Farmer v. McCraw, 31 Ala. 659.
From these decisions, and those above cited, we deduce the following propositions: That, by the maritime law, a shipper has a hen on the vessel, for any damages to his [65]*65goods, for which, by the common law, he could maintain an action; that this lien was not enforcible in a court of admiralty in England; that such a lien may be enforced in the courts of the United States having admiralty jurisdiction ; that their jurisdiction is not exclusive in all cases, but the State legislatures may confer on their courts the authority to enforce such hen by a suit in the nature of an admiralty proceeding, in all cases, where, by the common law, the State courts would have jurisdiction of the subject-matter of the suit, and the contract of shipment was made, the damage done, and the place of delivery under the contract was to be, within the jurisdictional limits of the State. We thus limit the proposition, for the reason that the facts of this case are within the limitations laid down.
Whether by the maritime law any lien exists in favor of a shipper for an injury to his goods, against the vessel upon which they are laden, navigating exclusively the rivers of a State or country above tide-waters, although the tides flow from the ocean or bays up such river a considerable portion of their navigable course, is a question not necessary for us to decide in this case. If that law did not give, such a lien in such a case, then it seeflis clear to us, that the State legislature could declare such a lien, and authorize its enforcement in its courts.
We have discussed the question as though such alien, in such a case, was given by the maritime law; and in that view we hold, that the weight of authority sustains the constitutionality of the act of the 7th October, 1864, under which this proceeding was commenced, at least to the extent contended for by the counsel for Boon & Co. As to the other libellants, the bill of exceptions shows, that “ it was agreed that all three cases should be tried upon the same issue, and the case of Boon & Co. was selected as the case.” If Boon & Co. are entitled to recover, then the effect of the agreement is to authorize a recovery in favor of the other appellees.
2. At common law, a common carrier, who was deprived of goods by pirates, was excused from liability, if without fault himself, to the owner or consignee. Eobbery was no defense. Congress has declared, by an act approved in [66]*661820, that any person, who shall, upon the high seas, or in any river where the tide ebbs and flows, &c., commit robbery, and be convicted thereof, shall be adjudged to be a pirate, and punished with death.—1 Brightly’s Digest, p. 208, § 35. This act seeks to protect the carrier, by punishing the offender as a pirate, and not as he would be, if left to the State courts, as a robber, and by a heavier penalty than robbery is generally punished by the State laws. It appears to us to be a violation of the received rules of interpretation, or acceptation of legal terms and definition of crimes, to hold that the persons who robbed The Belfast are pirates within the meaning attached to that term by the common or maritime law; and it would be equally violative of legal principles and justice to hold, that a law which adjudged and punished them as pirates, would therefore relieve the carrier who had been so robbed from a common-law liability arising from the contract of shipment.
In the case of The United States v. Jackalow, (1 Black, 487,) the supreme court say, that it is competent for congress to prescribe the punishment of offenses committed on the high seas, in any haven or bay, or in any river where the sea ebbs and flows, although within the limits of a State. Without questioning, at this time, the doctrine thus broadly laid down, still we do not see how congress can, by a criminal law, change or modify the civil liabilities of persons contracting within a State. If so, it would seem that congress might, by declaring that larceny, or embezzlement, on any vessel by any officer thereof, or other person, upon the high seas, or any river where the tide ebbs and flows, within the limits of a State, was piracy, relieve the carrier from liability for goods or money thus stolen or embezzled. A criminal law should not be construed in derogation of civil liabilities imposed by the common law and by contract, nor should it be given an effect beyond the legitimate objects of the law — the prevention of crime, and the punishment of the offender.
3. The counsel of the appellant contends, that the court should not have sustained the exceptions to the amended answer, set out in the record as “ Exhibit W” to the bill of [67]*67exceptions. Neither the exhibit, nor the bill, shows what the exceptions were. If, therefore, any valid exception could have been taken, we must presume, in support of the ruling of the court, that it was taken. The counsel for appellees insist, that this amendment is repugnant to the original answer, and that therefore the court properly sustained the exception to it. Such an objection to the filing of the amended answer might have been well made; but, after the court had allowed the party to file it, such an exception, under the liberal system of pleading tolerated in modern times, and by our Code, would come too late, and ought not to prevail.
4. The first plea, in the amended answer, is founded upon an alleged mistake in the contents and execution of the bill of lading. Such a mistake, if available in any court, can not be invoked by the appellant as a defense to the libel, in the form here pleaded. It is averred, that the “ contract of shipment was entered into by mistake of fact, to-wit, as to the existence of such custom,” &c. A mistake made in the contents of a written contract can not be taken advantage of by way of defense, in a court of law or equity, but, to avail himself of it, the party mast become the actor in a court of equity for the reformation of the contract.—Hogan v. Smith, 16 Ala. 622; 1 Story’s Eq. Ju. §§ 111, 116, 120-6-8, 137, 146-9, 150-3-8.
5. The second plea sets up fraud and misrepresentation of the several libellants in procuring the execution of the bills of lading; and it is, therefore, coñtended by the counsel for appellant, that no recovery can be had on the bill of lading, or in this proceeding. A question of some intricacy is presented by the contents of this plea. The law, as to the effect of fraud upon all contracts, is clear and well defined ; and we shall, in the course of this opinion, refer only to so much' of that law as is applicable to the contents of this plea. In passing upon the matters set out in the plea, we will refer to two reflections which claim some notice. One is, that the captain of a steamboat, engaged in navigating a river, should be deceived by the representations of others as to the existence of a custom, which vitally affected the liabilities of the vessel or its owners, in whose service [68]*68he was employed. The other is, that he should have so readily declined from putting a clause in the bill of lading, upon a representation that the custom of the river rendered it unnecessary; if such was the fact, why should the shippers have objected to its insertion ? The very objection by them was sufficient to have put the captain on his guard, and made him insist on putting in the bill of lading the exception of loss by robbery; for, if such exception had been established by custom, the shippers could not have been injured by its insertion, if such a custom could be set up against the common law, — which this court has held could not be done.
And here lies the difficulty of the case. Taking the averments of the plea to be true, it seems to us that the representations made, related to both matters of fact and law. As to the latter, the captain, in contemplation of law, was not ignorant; and as to matters of fact, whether he knew them to be true or not, he seems to have been negligent in acquiring a knowledge of a custom affecting the business in which he was engaged, and as to the existence of such a custom, if it existed, as to which he ought to have been as well acquainted as the libellants, if not better ; and there was no relation existing between the parties, which authorized the captain to rely upon the representations alleged to have been made, without inquiry. Ordinarily, a fraudulent misrepresentation of a matter of law is no ground for an action or relief.—Martin v. Wharton, 38 Ala. 637. A misrepresentation of a matter of fact may be. A custom, to have the force and effect of law, must conform to all the rules laid down in the books; and though its existence may be a question of fact in one sense, yet its effect is matter of law; and as to the latter, it is a trite maxim, ignoraniia legis neminem excusat; nor can a fraudulent misrepresentation of the effect of law upon a given state of facts, ordinarily afford any right to relief, or any defense to an action.—Juzan v. Toulmin, 9 Ala. 684; Cowles v. Townsend, 37 Ala. 77; Hogan v. Smith, supra; 1 Story’s Eq. Ju. §§ 191-7-9, 200 a; 2 Kent, 484-86, 4th ed.
A party who sets up a fraudulent misrepresentation of facts, as a ground of relief or defense, must not be guilty [69]*69of laches; and if it appears that he did not not use ordinary diligence, in acquiring a knowledge of the facts, and that he did not stand in a relation to the party making the representations, which authorized him to rely upon them without inquiry, he can not avail himself of such representations as a ground of relief or defense. No such relation is set up or insisted on in this case, and the captain acted on the representations, alleged to have been made, improvidently, if not recklessly, in a matter as to which he ought to have been as well informed as the libellants; and the very assertion which they made as to the custom, and objection to its insertion in the bill of lading, should have put the captain on the inquiry. Taking all these views together, we are of opinion, that the plea under consideration is insufficient and, defective, and the court therefore properly sustained the exceptions thereto. — See authorities last cited.
The record does not purport to set out all the evidence, and if the evidence set out was not sufficient, we would presume that there was sufficient introduced to authorize the decree of the court below.
The foregoing disposes of all the questions raised, and so thoroughly argued by the learned counsel for both parties, at the bar and in writing ; and, as we are not able to detect any error assigned upon the record, the decree of the court below must be affirmed, with costs.
BYRD, J.
Since writing the foregoing opinion, the casi of the steamboat Ad. Hine v. Trevor, decided at the December term, 1866, of the supreme court of the United States, and in manuscript, has been brought to our notice by appellant’s counsel; and he earnestly insists that it is decisive of this case. ¥e were not aware that such a decision had been made, and we consider it as settling clearly some of the questions to which we refer in our opinion as being unsettled; and upon the facts of that case, there can be no doubt of the correctness of the result attained by the court. The main fact in that case, which was decisive of the question of the jurisdiction of the courts of Iowa, is, that a State can neither confer a lien, nor enforce a right, [70]*70arising under the maritime law of the United States, or by statute of a State, where a marine tort takes place out of the limits of the State, and in another State. That was a question involved in the decision of that cause, and that decision must be the law of this court.
Mr. Parsons, in his work on Maritime Law, says: “ In fourteen of our western and southern States, actions may be brought against vessels by name. * * * * But in these States, it seems, that actions of this sort will not be sustained under their statutes, if the cause of action arose out of the State.” This view would have been decisive of the case of the Ad. Hine, supra. Mr. Parsons further says (vol. 2, p. 510): “ The act of 1845, relating to the lakes and navigable waters connecting the same, gives no jurisdiction over the domestic commerce of a State — that is, over contracts for carrying goods between ports and places in the same State ;” and he cites the case of Allen v. Newberry, 21 How. 244.
Mr. Parsons is speaking of the jurisdiction of the United States courts as courts of admiralty, in the above extract. In the case of Allen v. Newberry, it is decided, that the jurisdiction of those courts does not extend “to a case where there was a shipment of goods from a port in a State, to another port in the same State, both being in "Wisconsin.” Nelson, J., delivering the opinion of the court, says : “In the case of Gibbon v. Ogden, (9 Wheat. 194,) it was held, that this power did not extend to the purely internal commerce of a State;” and he quotes the following extract from the opinion of Chief-Justice Marshall in that case : “ The genius and character of the whole government seem to be, that its action is to be applied /to all the external concerns of the nation, and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, when they do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then,” he observes, “may be considered as reserved for the State itself.” Justice Nelson, in the same case, quotes from the case of The New Jersey Steam Navi[71]*71gation Company v. Merchants’ Bank, (6 How. 392,) as follows : “Contracts growing out of the purely internal commerce of the State, &c., are generally domestic in their origin and operation, and could scarcely have been intended to be drawn within the cognizance of the Federal courts.”
The case of Allen v. Newberry is “ on all fours” with the case under consideration. In that case, the boat was running between a port in Wisconsin and one in Illinois; and in the case before us, the boat was running between a port in Mississippi and one in Alabama; and in both cases, the goods were shipped at a port in one State, to be delivered in another port in the same State.
In the case of the Ad. Hine, the court has not considered the case of Allen v. Newberry; and it was not necessary to do so, for it does not lie within the same field of maritime jurisdiction — marine torts and contracts of affreightment. To reverse this case, we would have to disregard the case of Allen v. Newberry; which we are not disposed to do, but will leave it for the consideration of the supreme court of the United States, whether the case of the Ad. Hine is in conflict with that case. We do not think that there is any conflict. If in this case we are mistaken, it will give that court an opportunity to settle another question as to the admiralty jurisdiction of the Federal courts.
The distinction we make may be thus stated: Neither by the common law, nor by the maritime law, had the shipper any lien on a vessel for goods laden on and lost by it, where the vessel was navigating rivers or waters within the body of a county; and we can not see how the grant by the Federal constitution, of all admiralty and maritime jurisdiction, to the circuit courts of the United States, can create a maritime lien in favor of a shipper, where the contract of affreightment is made, and the goods are shipped, and are to be transported to a place within the body of a State. We can find no authority whatever for such a doctrine. It is unnecessary to consider whether, by the maritime law of Europe, a shipper has such lien against vessels navigating the Seine, the Danube, the Bhine, or Vistula, without going out to sea, or beyond the limits of the kingdoms within which they respectively have their course. For those king[72]*72doms, or most of them, are governed by the civil, and not by the common law; and it is well settled, that the common law of England is the common law of this country, so far as it is accommodated to, or modified by our institutions ; and to hold that a shipper’s lien exists by the maritime law, on a vessel running exclusively the rivers of a State, would be a confusion of terms and ideas wholly unknown to, and unrecognized by, the common law or the maritime law of England or this country. We admit, that it may be competent for congress to declare such a lien, under the grant of power to regulate commerce between the States. But we are not aware that congress has ever done so; and in the absence of congressional legislation, it is competent for the States to declare such a lien to exist upon the vessels running within their limits, upon contracts of affreightment made within their jurisdiction, and to be executed within the same.
By way of illustration, take the case of a steamboat running between Borne, in Georgia, and the Ten Islands in the Goosa river, in Alabama, on a portion of that stream which has no navigable connection with tide-water. Gan a maritime lien, in favor of a shipper on such a boat, be said to exist by the maritime law, or by any act of congress ? If so, we are not aware of it. If, as in the case of Allen v. Newberry, no such lien is declared in such a case by the act of congress of 1845, on the north-western lakes and rivers, we can not see how such a lien exists under the act of 1789, or by the maritime law. Besides, if the act of 1845 did not declare such a lien to exist on those lakes and rivers, still the act of 1789, and the maritime law, were then in force throughout the whole extent of our country; and if such a hen did exist under the latter act, or by the maritime law, of which the admiralty courts of the United States had exclusive jurisdiction, the court would have so declared in the case of Allen v. Newberry. All the decisions — from the existence of the government — of the United States courts, have uniformly held that such a contract of affreightment as was made in this case, was not within the jurisdiction of the United States courts; and all the State courts and legislatures have so held; and under the adjudication [73]*73of the Moses Taylor and Ad. Hine, we do not feel that we are authorized to depart from them. We do not consider those cases as touching the point of this, or as overruling Allen v. Newberry. We concede, that the question has, perhaps, become somewhat involved in difficulty by those cases; and even if we thought they had rendered the question doubtful, it might be our duty, if such a practice prevailed, to certify it to the supreme court of the United States, as novel and difficult; and not being able to do so, to decide the case as we have done, so as to permit the only party who can, to appeal to that final tribunal.
This case raises points, which, perhaps, will enable that court to lay down a rule which will finally settle the questions left open by the case of the Ad. Hine. If the State had the power to give a lien by law, to a shipper on a vessel in such a case of affreightment as this, then we hold, that the State could also confer the jurisdiction upon their courts to enforce such a lien, and that they could do so by a process of foreign attachment, or by a proceeding in a common-law court in the nature of an admiralty proceeding. We can see no substantial reason why one form is more objectionable than the other; for, whilst we concede that the States have no authority to establish courts of admiralty, we can not see why the States could not adopt admiralty forms and proceedings, where applicable, to try civil causes, preserving, as the statute does in this case, the right of trial by jury. We therefore adhere to the conclusion attained in the former opinion, and modify the reasoning thereof, to the extent it has been overturned by the cases of the Moses Taylor and the Ad. Hine, and no further.
A. J. WALKER, C. J.
By the second section of the third article of the constitution, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction. The ninth section of the act of congress of 1789 declares, that the district courts of the United States shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction.—1 Brightly’s Digest, 24. Whatever may have been the earlier ad[74]*74judications of the Federal and State courts, and the deliverances of the American law-writers, the late decisions of the supreme court of the United States establish, in my judgment, the following propositions: 1st, that the admiralty jurisdiction bestowed by the 9th section of the act of congress of 1789, on the district courts of the United States, excludes all admiralty jurisdiction by the State courts, and that that act is constitutional; 2d, that a contract of affreightment has an admiralty lien on the vessel, which may be enforced by libel, and that jurisdiction over such contracts and liens appertains to the district courts of the United States, under the provisions of the constitution and the act of 1789; 3d, that this jurisdiction extends to contracts of affreightment made and to be executed upon an interior river, above tide-water, and within the territorial limits of a single State; and, 4th, that the proceeding-under the Alabama statute in this case is an admiralty proceeding, and involves the exercise of admiralty jurisdiction.
From these propositions it results, that the act under which this proceeding was had is in contravention of an act of congress, passed in pursuance of the constitution of the United States, and is void; and the court below had no constitutional jurisdiction of the case. I cite the decisions which, in my judgment, establish the foregoing propositions, with the single remark, made with the utmost respect for my brothers, that they seem to me to be conclusive, and that I yield to them because they are, upon correct judicial principles, binding upon us. — The Genessee Chief, 12 How. 443; The Magnolia, 20 ib. 296; The Moses Taylor, in MSS.; The Ad. Hine, in MSS.
I think there is no distinction, so far as the question of jurisdiction is concerned, between those cases in which the admiralty jurisdiction is based upon a marine tort, and those in which it is based upon a contract of affreightment; and that, consequently, the decisions in the former class of cases are applicable to the latter, to which this belongs. The supreme court of the United States has changed its position upon the subject of restriction of its admiralty jurisdiction, so as not to apply to commerce upon navigable interior rivers; and as an appeal lies to the supreme court [75]*75of tlie United States, I think it is our duty to make a corresponding change.
I concur with my brothers in their opinion upon the other points decided.