Dillon, Ch. J.
1. ADinnALT-sr: iedlrauóurts1 exclusive. The leading question on this appeal is, whether the State courts have jurisdiction of the cause actiorL set forth in the petition ? Defend-an^ ™sists that the action, being in rem, brought against the steamboat by name, and seeking to condemn and sell the boat to satisfy the damages which she caused to the plaintiff, is within the admiralty jurisdiction of the federal courts, and that such jurisdiction is exclusive. This position, under the recent decisions of the Supreme Court of the United States, below referred to, is well taken.
The Constitution declares that the judicial power of the United States “ shall extend to all cases of admiralty and maritime jurisdiction.” Art; 3, § 2.
The ninth section of the judiciary act of 1789, in establishing the jurisdiction of the several federal courts, provides that the District Courts of the United States “ shall also have exclusive original jurisdiction of all cimil causes of admiralty a/nd ma/riiim.e jurisdiction, includ[196]*196ing seizures under laws of impost, navigation or trade of tlie United States, when the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden.” A clause of this (ninth) section “ saves to suitors, in all cases, the right of a common law remedy where the common law is competent to give it.”
In the recent cases of The Moses Taylor (4 Wall. 411) and The Ad Hine (id. 411; S. C., 6 Am. Law Reg. [N. S.] 586; 1 West. Jurist, 231), it is decided by the Supreme Court of the United States that it is competent for congress, under the constitutional provision above quoted, to make the jurisdiction of the federal courts exclusive in admiralty cases. Having declared this proposition, that court further decided that the jurisdiction conferred upon the federal courts by the ninth section of the act of 1789, in civil causes of admiralty and maritime jurisdiction, is, in express terms, made exclusive, and that this exclusion extends to the State courts.
The point decided in the case of The Ad Hine is, that a collision between steamboats on the interior public navigable rivers of the United States, though the collision occurs above tide water, and infra corpus comitatus, makes a case of admiralty cognizance, when the remedy is by a direct proceeding against the steamboat by name, and not against the owners.
2. — actions against boats unaer state law: proceedinga in rem. This decision overturns our State boat law (Rev. ch. 148) so far as that law undertakes to give a remedy in rem against the boat or vessel for a cause of , _ action oí admiralty cognizance: that is, a . cause of action essentially maritime in its nature and properly falling within the limits of the jurisdiction of the federal courts in admiralty.
It may be remarked, that our statute (Rev. ch. 148) embraces cases not cognizable in admiralty, and to this extent the statute is not in conflict with the constitutional [197]*197legislation of congress conferring exclusive admiralty jurisdiction on the District Courts of the United States. The exact limits of the exclusive admiralty jurisdiction of the federal courts are, in many respects, yet to be judicially established.
The question now recurs, Is the case made by the petition one in which a remedy m rem is given in admiralty? In other words, Could the plaintiff have libeled the defendant for the same injury in the admiralty courts of the United States? If these questions ought to be answered in the affirmative, then it follows, that the jurisdiction of the admiralty court would be exclusive.
3_tow aadiction i™!-’ termined. To determine the question of admiralty jurisdiction in rem, regard must be had to the character of the waters, the character of the boat or vessel and to the character of the contract or tort which forms the subject of the action. In the case at bar the injury complained of was committed on the Missouri river.
4 _t0 what it extends. The admiralty jurisdiction, under the ninth section of the judiciary act, extends to the public navigable rivers of the United States, — to all public waters capable of being navigated by maritime or commercial vessels propelled by wind or steam. The Genesee Chief, 12 How. 443; Fretz v. Bull, id. 466; Waring v. Clark, 5 id. 441; The Magnolia, 20 id. 296; Nelson v. Leland, 22 id. 48; The Ad Hine v. Trevor, supra.
If it is essential, under the act of 1789, to the jurisdiction in admiralty of the federal courts, that the stream shall be navigable from the sea by vessels of ten or more tons burden (a point not necessary to discuss), the Missouri river is such a stream.
The boat — defendant in this case — is a steam vessel nav[198]*198igating the river Missouri, as a common carrier of passengers and freight. That the admiralty jurisdiction extends to vessels or boats of this character, admits of no doubt. If the present action had been brought against the flatboat, the question might be different. As to the character of the vessels or craft, to which the jurisdiction in admiralty extends, see The Salsbury (Olcott Adm. 71); McCormick v. Ives (1 Abb. Adm. 418); Many v. Noyes (5 Hill, 34); Leddo v. Hughes (15 Ill. 41); Thackeray v. The Farmer (Gilpin, 524); 1 West. Jurist, 243, and valuable note of the learned annotator.; see also Abbott’s Nat. Dig. title “ Admiralty,” where the cases in the federal courts, respecting the nature and extent of admiralty jurisdiction, are conveniently arranged and accurately digested; Galena, etc., Packet Co. v. Rock Island Bridge, just decided by the Supreme Court of the United States.
5 _marl_ time torts. That admiralty will take cognizance of maritime torts is also clear. Fretz v. Bull, Nelson v. Leland, and The Ad Hine v. Trevor, were cases of collision on the Mississippi river, the first two between flat-boats and steamboats, and the latter between two steamboats, in both cases above tide water.
6. — collision of steam-and iiat-boat. If the defendant had actually collided with the flatboat, the former might be libeled in admiralty. The present injury (assuming, as we must, the , „ . , , . . . truth ol the petition, m determining the jurisdictional question) is the same in character and governed by the same principle. See The Moxey, 1 Abb. Adm. 73. There is but one point of possible difference between this case and that of the Ad Hine. In that case, the injury sued for occurred on the Mississippi river. Here it occurred on the Missouri. There the injury complained of was a tort. So it is here. In that case, it was another steamboat that was injured by the tortious act of the Ad Hine, In this case it was a flat-boat laden with lumber, [199]*199and actually navigating tbe river, that was injured by tbe defendant. The owner of this flat-boat was engaged in lawful commerce on the river. He was conveying lumber from one place to another.
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Dillon, Ch. J.
1. ADinnALT-sr: iedlrauóurts1 exclusive. The leading question on this appeal is, whether the State courts have jurisdiction of the cause actiorL set forth in the petition ? Defend-an^ ™sists that the action, being in rem, brought against the steamboat by name, and seeking to condemn and sell the boat to satisfy the damages which she caused to the plaintiff, is within the admiralty jurisdiction of the federal courts, and that such jurisdiction is exclusive. This position, under the recent decisions of the Supreme Court of the United States, below referred to, is well taken.
The Constitution declares that the judicial power of the United States “ shall extend to all cases of admiralty and maritime jurisdiction.” Art; 3, § 2.
The ninth section of the judiciary act of 1789, in establishing the jurisdiction of the several federal courts, provides that the District Courts of the United States “ shall also have exclusive original jurisdiction of all cimil causes of admiralty a/nd ma/riiim.e jurisdiction, includ[196]*196ing seizures under laws of impost, navigation or trade of tlie United States, when the seizures are made on waters which are navigable from the sea by vessels of ten or more tons burden.” A clause of this (ninth) section “ saves to suitors, in all cases, the right of a common law remedy where the common law is competent to give it.”
In the recent cases of The Moses Taylor (4 Wall. 411) and The Ad Hine (id. 411; S. C., 6 Am. Law Reg. [N. S.] 586; 1 West. Jurist, 231), it is decided by the Supreme Court of the United States that it is competent for congress, under the constitutional provision above quoted, to make the jurisdiction of the federal courts exclusive in admiralty cases. Having declared this proposition, that court further decided that the jurisdiction conferred upon the federal courts by the ninth section of the act of 1789, in civil causes of admiralty and maritime jurisdiction, is, in express terms, made exclusive, and that this exclusion extends to the State courts.
The point decided in the case of The Ad Hine is, that a collision between steamboats on the interior public navigable rivers of the United States, though the collision occurs above tide water, and infra corpus comitatus, makes a case of admiralty cognizance, when the remedy is by a direct proceeding against the steamboat by name, and not against the owners.
2. — actions against boats unaer state law: proceedinga in rem. This decision overturns our State boat law (Rev. ch. 148) so far as that law undertakes to give a remedy in rem against the boat or vessel for a cause of , _ action oí admiralty cognizance: that is, a . cause of action essentially maritime in its nature and properly falling within the limits of the jurisdiction of the federal courts in admiralty.
It may be remarked, that our statute (Rev. ch. 148) embraces cases not cognizable in admiralty, and to this extent the statute is not in conflict with the constitutional [197]*197legislation of congress conferring exclusive admiralty jurisdiction on the District Courts of the United States. The exact limits of the exclusive admiralty jurisdiction of the federal courts are, in many respects, yet to be judicially established.
The question now recurs, Is the case made by the petition one in which a remedy m rem is given in admiralty? In other words, Could the plaintiff have libeled the defendant for the same injury in the admiralty courts of the United States? If these questions ought to be answered in the affirmative, then it follows, that the jurisdiction of the admiralty court would be exclusive.
3_tow aadiction i™!-’ termined. To determine the question of admiralty jurisdiction in rem, regard must be had to the character of the waters, the character of the boat or vessel and to the character of the contract or tort which forms the subject of the action. In the case at bar the injury complained of was committed on the Missouri river.
4 _t0 what it extends. The admiralty jurisdiction, under the ninth section of the judiciary act, extends to the public navigable rivers of the United States, — to all public waters capable of being navigated by maritime or commercial vessels propelled by wind or steam. The Genesee Chief, 12 How. 443; Fretz v. Bull, id. 466; Waring v. Clark, 5 id. 441; The Magnolia, 20 id. 296; Nelson v. Leland, 22 id. 48; The Ad Hine v. Trevor, supra.
If it is essential, under the act of 1789, to the jurisdiction in admiralty of the federal courts, that the stream shall be navigable from the sea by vessels of ten or more tons burden (a point not necessary to discuss), the Missouri river is such a stream.
The boat — defendant in this case — is a steam vessel nav[198]*198igating the river Missouri, as a common carrier of passengers and freight. That the admiralty jurisdiction extends to vessels or boats of this character, admits of no doubt. If the present action had been brought against the flatboat, the question might be different. As to the character of the vessels or craft, to which the jurisdiction in admiralty extends, see The Salsbury (Olcott Adm. 71); McCormick v. Ives (1 Abb. Adm. 418); Many v. Noyes (5 Hill, 34); Leddo v. Hughes (15 Ill. 41); Thackeray v. The Farmer (Gilpin, 524); 1 West. Jurist, 243, and valuable note of the learned annotator.; see also Abbott’s Nat. Dig. title “ Admiralty,” where the cases in the federal courts, respecting the nature and extent of admiralty jurisdiction, are conveniently arranged and accurately digested; Galena, etc., Packet Co. v. Rock Island Bridge, just decided by the Supreme Court of the United States.
5 _marl_ time torts. That admiralty will take cognizance of maritime torts is also clear. Fretz v. Bull, Nelson v. Leland, and The Ad Hine v. Trevor, were cases of collision on the Mississippi river, the first two between flat-boats and steamboats, and the latter between two steamboats, in both cases above tide water.
6. — collision of steam-and iiat-boat. If the defendant had actually collided with the flatboat, the former might be libeled in admiralty. The present injury (assuming, as we must, the , „ . , , . . . truth ol the petition, m determining the jurisdictional question) is the same in character and governed by the same principle. See The Moxey, 1 Abb. Adm. 73. There is but one point of possible difference between this case and that of the Ad Hine. In that case, the injury sued for occurred on the Mississippi river. Here it occurred on the Missouri. There the injury complained of was a tort. So it is here. In that case, it was another steamboat that was injured by the tortious act of the Ad Hine, In this case it was a flat-boat laden with lumber, [199]*199and actually navigating tbe river, that was injured by tbe defendant. The owner of this flat-boat was engaged in lawful commerce on the river. He was conveying lumber from one place to another. While thus engaged in the navigation of the stream, the defendant, at the time similarly engaged, negligently and willfully injures the plaintiff’s boat. We have referred more particularly to the Ad Hine case, because the question of admiralty jurisdiction was there most fully examined. In principle this case is identical with that.
The present case, as to the jurisdictional question, is precisely like Fretz v. Bull, and Nelson v. Leland, above cited, in both of which it was held by the Supreme Court of the United States, that a case of collision between a steamboat and a flat-boat, on inland navigable rivers, was of admiralty cognizance. See also The S. B. Southern Belle, Newb. Adm. 461; S. C. affirmed on appeal to Supreme Court of the United States, 18 How. 584.
These authorities settle the question, that, for the injury set forth in the petition, the plaintiff might have libeled the boat - defendant in admiralty. If this might- have been done, then the same authorities also settle the question, that the plaintiff cannot pursue a remedy against the boat in rem, under the State laws, and in the State courts. For the Ad Hine case expressly rules, that the remedy adopted by the plaintiff in the present case viz., a suit against the boat by name and a seizure of it, is not a common law remedy, and therefore not one of the remedies saved to suitors by the ninth section of the judiciary act.
8. — want of when urged. If the foregoing views are correct, it follows, that the District Court of Woodbury county had no jurisdiction of the case made by the petition. If it be conceded that the jurisdiction of that court was not questioned below, the objection is not waived; [200]*200for the case is of such a nature that the court would not thereby acquire jurisdiction; and the objection may be taken in any stage of the proceeding.
It erred in assuming jurisdiction and rendering judgment against the defendant. Elder v. Manuf. Co., 4 Gray, 201; Smith v. Dubuque Co., 1 Iowa, 494; Chapman v. Morgan, 2 Greene, 374; Low v. Rice, 8 Johns. 409; Davis v. Packard, 7 Pet. 281; Dudley v. Mahew, 3 Cow. 9.
Whether a judgment rendered in such a case would be void, if not appealed from, we need not determine. The judgment below is reversed, and an order will be entered in this court dismissing the case.
Reversed.