Erastus Cornelius Benedict.

The American admiralty, its jurisdiction and practice, with practical forms and directions online

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plainly embraces all classes of persons having any relation 1
time ti'ansactions ; those who build and furnish vessels ; the
equip, man and supply them ; those who load and unload
those who freight them ; those who are employed in their
to navigate or to preserve them, or to perform the various f u
necessaiy or convenient to be performed, to enable the vesse
best manner to answer the purposes to which she is devote
also those who injure her, or viola'te their duty or obligat
her, — a jurisdiction, to all intents and purposes, equal to tha
ed by the admiralty, and set forth in so much detail by Dr.
pliin. Indeed, it is not possible for the English language t
the grant clearer, or broader, or stronger.^^

•Ante, §§48-60, 126, 127, 151, 158; 1 I ^^ Ante, §§26, 51, 158.
Black. Com. 106, 107, 108. I " Ante, §§ 126, 151, 158, 101-

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§ 164. Basiness of Tice Admiralty Courts. — These commissions
were issued and acted under, in their widest interpretation, during
the whole period of colonial government, here and elsewhere. The
actual business of the vice-admiralty courts, as shown by their rec-
ords, up to the time of the Revolution, shows that this extended
jurisdiction was not dormant, but active.^

§ 165. Jnrisdiction complained of. — ^It has indeed been said,
that this extensive jurisdiction of the admiralty in the colonies was
the subject of complaint at the time of the Revolution ; and it is un-
doubtedly true, that the extension of the admiralty jurisdiction be-
yond its ancient limits was, in some petitions and public documents,
stated as one of the grievances of the colonies. The difficulty with
tlie mother country grew out of the imposition of taxes, and the
collection of revenue; and the whole of that jurisdiction was given
to the admiralty, as was also trespass on the king's lands, and other
matters which were peculiarly offensive. " It was ordained," says
the old Congi-ess in their list of grievances, " that whenever offences
should be committed in the colonies, against particular acts imposing
duties and restrictions upon trade, the prosecutor might bring his
action for the penalties in the Court of Admiralty." These were
in no sense admiralty and maritime cases, and it was this recent ex-
tension beyond the ancient limits — the limits of those commissions —
pf which the colonists complained, and not the proper exercise of
admiralty and maritime jurisdiction which had been practised from
the earliest times ; and the fact that the constitution uses the words
"aK cases of admiralty and maritime jurisdiction," taken in connec-
tion with those complaints, shows that the convention intended that
the word all as well as the word maritime should have its proper

" Stokes* Const of the Colonies,
270; Dunlap's Ad. Prac. 85, 37; The
Tilton, 5 Mason, 472.

" Waring V, Clarke, 46 IT. S. (5 How. )
456; id. 4S4.

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The Jurisdiction os* the State Courts of Ai

§ 166. Admiralty Courts of the States. — At the tim<
olution each state assumed for itself all the powers of
including all judicial powers in their greatest plenituc
far as they were limited by the Articles of confederatio
of the states in which an admiralty court had previously
court was retained, the judge being appointed by the n
tuted state, by a simple commission, as Judge of the (
miralty. No statute had specified his powers, and his
was silent on the subject. He was appointed to exerc
powers as the colonial courts had exercised. Such wer
setts and New York. In some of the states, as in Ne
statute 15 Rich. II. was enacted, and in others the jui
mained unchanged. Thus, in different states, the con
the admiralty courts and the limits of the admiralty
were widely different. In some of them the court w
altogether; and in others new courts were established
regulated by statute.^

§ 167. Statate of Pennsylyania. — In Pennsylvania
establishing a court of admiralty was passed Sept. 9, 1
for regulating and establishing admiralty jurisdictioi
1780. By this latter act it was enacted that the judge s
a Court of Admiralty, and therein have cognizance ol
versies, suits and pleas of maritime jurisdiction, not c
the common law, offences and crimes other than contei
said court only excepted, and thereupon shall pass 8(
decree according as the maritime law and the law of
the laws of this commonwealth shall require.*'

By section 22, it was enacted that " all and every,
ings of the court of admiralty of this commonwealth, si

» Ante, § 24; 1 Greenl. Laws of N. Y. 11, 18, 150, 152, J

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to the prohibition of the Supreme Court of Judicature in like man-
ner, and with like effect as the prohibition of the Court of King's
Bench in England, in like cases." *

§ 168. Statute of New Jersey. — In New Jersey, an act regu-
lating and establishing admii-alty jurisdiction, was passed in 1781,
which provided that the Judge of the Admiralty should "hold a
Court of Admiralty, and therein have cognizance in all cases of
prize, capture and re-capture upon the water, from enemies, or by
way of reprisal, or from pirates, and in general of all controversies,
suits and pleas of Maritime Jurisdiction, and thereupon the said
Judge shall pass sentence and decree according to the maritime law
and the law of nations, and the ordinances of the Honorable, the
Congress of the United States of America, and the laws of this

The second section provided that all causes should be tried by a
jury. The 20th section established the same rule as to prohibitions
as the Pennsylvania act.^

§ 169. Statute of Maryland. — In Maryland, a court of admiralty
was established in 1776, for the trial of captures and seizures, with
full power to take cognizance of all libels on account of such cap-
tures and seizures and to proceed to a final determination, and de-
cree thereupon. ..." The process and proceeding to be as usual
in courts of admiralty, but if either party demand a jury on any
material controverted fact," a jury was to be summoned.*

§ 170. Statute of Tirginia. — Virginia passed an act in 1779, as
follows : —

" Be it enacted by the General Assembly, That the Court of Ad-
miralty to consist of three judges, any two of whom are declared to be
a sufficient number to constitute a court, shall have jurisdiction of all
maritime causes, except those wherein parties may be accused of
capital offences, now depending and hereafter to be brought before
them." It was expressly provided that such court was to be "'gov-
erned in their proceedings and decisions by the regulations of the
Congress of the United SUites of America ; by the acts of the gen-

*Law8 of Pennsylvania, 1778.
■ Laws of New Jersey, 1781.
* Laws of Maryland, 1776.

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eral assembly ; by the laws of Oleron and the Rhodian and
Law%^ so far as they have been heretofore observed in the
Courts of Admiralty ; and by the laws of nature and nat
wide and beneficial jurisdiction. No one can fail to obs(
distinctly the ancient ordinances and maritime laws, the (
and the former practices of the English Admiralty, are ad
stead of the narrow limit observed by the English Adiii
that time.^

§ 171. Diversity in State Statutes. — These being the or
whose early statutes were conveniently accessible to me, I
sidered these references sufficient fully to establish that
wliich could hardly fail to exist in twelve different states, \
though friendly and united for certain purposes, were, nevi
independent of, and foreign to, each other.

With this diversity existing, it could hardly be con ten
the phrase, all cases of admiralty and maritime jurisdictio
include only the cases so-called in some particular state w
not pointed out, much less to perpetuate in each state its
law of admiralty jurisdiction ; thus making diversity instef
formity of admiralty jurisdiction a portion of our organic
requiring the constitutional grant to the general governm
ceive a different constiniction in the different states. Su(
of things must have made the judicial system of the Unit<
entirely impracticable. In this view of the state courts of a
the grant must have been intended to embrace a general

If all the states, before the adoption of the constitutioi
enacted the statute 15 Rich. II., it is not perceived hovs
have had any influence on the construction of the constiti
the states, without exception, had abolished their courts of a
and swept away all their admiralty and maritime jurisdicti
the constitution was fi*amed, such legislation, instead of i
useless or nugatory the grant in question, would only have
it so much the more necessary. And on the same prin(
modification or limitation of the state jurisdiction would h^^
feet on the construction of the constitutional grant. C
certain class would be still maritime cases, and it would be

•Laws of 1779, chap. 26; 10 Hen. I (5 How.) 474; TheTilton,5 1
Stat. 98; Waiing v. Clarke, 46 U. S- 1 Dunlap's Pr. 36.

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less important that they should be subject to the Federal judiciary,
to secure that equal administration of the maritime law, and that
uniformity and nationality of decision under it, which would pro-
mote the harmony of the commercial world, of which the states
formed an important part. And it would be none the less certain
that a grant to the general government of jurisdiction in all such
cases would make them all subjects of national jurisdiction, to be
distributed to such courts, and proceeded with in rem or in personam^
with or without a jury, in such manner as Congress should provide.*

"Martin v. Hunter's Lessee, 14 U. S.
(1 Wheat.) 324-5; Waring v, Clarke, 46
U. S. (5 How.) 461 ; New Jersey Steam

Nav. Co. V, Merchants' Bank, 47 IT. S.
(6 How.) 385.

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The Admiralty and Maritime Jurisdiction of F
Other Portions of Continental Europj

§172. Maritime Law of Franee. — The marine or
France have always been held in deservedly high estim
wisest statesmen and monarchs have all along, through i
ries, given the most profound attention to the subject (
law; and, under the administration of courts of admiral
the ablest judges, a system of maritime law has been th
more perfectly than in any other country ; while at the
commentators and jurisconsults of most various learnin
profound and practical reflection, have been the cause an
of this constant attention to the best interests of maritime
Cleirac says the marine ordinances of France are of the
thority, and that all the princes and republics of Eui
ocean, have adopted or followed them, and that they
and as such observed by all Christian Europe, and are a1
ed to the Roman civil law and the customs of the Me
Sea. They are thus by this great authority declared to
the general maritime law.*

The jurisdiction of the French Admiralty has always
widest and most salutary character.

§ 173. Ordinance of 1681—" The judges of the Adm
the ordinance " shall take cognizance, preferably to all
between all persons of whatever quality or condition, e
privileged, French and strangera, as well in demanding as
of all that concerns the construction, tackle and furniti
victualling, and manning, sale and adjudication of ships.

*' We declare them competent judges? of all actions.

» Ord. de la Marine, L. I. tit 2, jtrts.
1-11; Merville Com. 13-25; 1 Valin,
112-131; Cleirac, Lea Us' et Coutumes

de la Mer, Jurisdiction <

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from charter parties, freighting, bills of lading, freight, engaging
and wages of seamen, and victuals furnished to them by order of the
master during the manning of ships, together with policies of insur-
ance and obligations of bottomry, or on the return from a voyage,
and generally of all contracts concerning the commerce of the sea,
notwithstanding all submissions and privileges to the contrary.*

§ 174. " They shall likewise take cognizance of prizes taken at
sea, wrecks, shipwrecks, and stranded ships, of jettison and contri-
bution of averages, and of damages happened to ships and their lad-
ing, and also of inventories and deliverances of assets, left in ships
by persons dying at sea.

" They shall likewise take cognizance of the dues for licences,
thirds, tenths, sea marks, anchorage and others belonging to the
Admiral, and of those which shall be levied or pretended by the
lords of manore, or other private persons near the sea, upon the
fisheries or fish, and upon goods or ships going out or coming into

" The cognizance of fishing in the sea and salt water, and the
mouths of rivers shall belong to them, and likewise that of parks
and fisheries ; and they shall also take cognizance of the quality of
nets and lines and of the buying and selling of fish in the boats, or
upon the shore, ports, or harboi-s.

§ 175. *' They shall likewise take cognizance of damages done by
ships to the fisheries, either upon the coasts or in navigable rivers,
and of those that the ships shall receive from them, and likewise of
the ways appointed for hauling up ships coming from the sea, if
there be no regulation, title or possession to the contrary.

" They shall also take cognizance of the damages done to the keys,
banks, moles, palisadoes, and other works cast up against the vio-
lence of the sea, and shall take care that the depth of the ports and
roads be preserved and kept clean.

" They shall take up the bodies of drowned persons, and shall
draw up a report of the condition of the corpses found at sea and on
the sand, or in the ports, as likewise of the drowning of mariners
sailing in navigable rivers.

* This and the following thi-ee sec- | tional articles of the Ordonnance de la
tions are a translation of the jurisdio- | Marine, L. 1, tit 2, arts. 1-11.

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§ 176. " They shall be present at the musters and reviews of the
inhabitants of the parishes subject to the sea watch, and shall take
cognizance of all differences arising upon that account, and likewise
of crimes committed by them that are upon the guard of the coasts,
while they are under arms.

"They shall also take cognizance of piracies and robberies, and
desertions of seamen, and generally of all crimes and offences com-
mitted upon the sea, its ports, harbors and shores." *

§ 177. Other Enropean Codes. — These various codes and systems
cannot but have been familiar to the framers of the constitution ;
and, for the purpose of this treatise, it is not necessary to inquire
further into the jurisdiction of the admirals, or of the admiralty
courts of the various commercial nations of the world. They will
be found to differ considerably in the mere admiralty law — the mar-
itime regulations of the municipal code ; but there will be found,
also, a great uniformity in their adoption of those principles and rules
which constitute the genei-al maritime law. Those which have been
referred to, show the same difference in municipal regulation, and
the same uniformity in general principles, which would appear on
a more extended examination. A brief list of them is here given
for the double purpose of showing the univerbality of maritime
codification in commercial nations, and of directing the student to
the numerous and cognate sources of the maritime laws.

§ 178. Tbe Same. — Some of them are actual legislative enact-
ments, others the ordinances of monarchs, and others are mere com-
pilations, made up of extracts from well-known ancient codes and
ordinances. Othei's, again, are mere essays and treatises on mari-
time subjects, which, in consequence of their practical wisdom, have,
by long use and authority, come to be considered the highest evi-
dence of marine law ; andothei-s are the voluntary regulations which
persons interested in shipping have adopted for their own conven-
ience; and which, in like manner, have ripened into law. They
are to be found in the great work of Pardessus, in which he has

* Ord. de la Marine L. 1, tit 2, arts.
1-11. In the third part of the " Us et
Coatumes de la Mer,'* Cleirac, in his
learned and curious treatise, ** La Ju-
risdiction de la Marine ou 4e TAdmi-

rautie," has extracted and collected
the text of the royal ordinances of the
Admiralty of France, from the earliest
periods. Cleirac, 310.

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collected the maritime laws of all commercial nations, and preceded
each by a historical notice, valuable for the combined results of
thorough historical and antiquarian research, careful and ingenious,
criticism, as well as liberal and generous views of the true end and
proper extent of the maritime law.*

§ 179. The Maritime Law of tbe Bhodians.^— This is the most
ancient code of maritime law. It was promulgated about nine hun-
dred years before the Christian eni, and about seventy years after
tlie time of Solomon. These laws being founded upon natural jus-
tice, entered largely into the maritime legislation of all the com^
mercial nations of antiquity, of whose laws we have any knowledge.
They were generally received in the Mediterranean, and Greece and
Itome acknowledged their authority. In the time of Julius Csesar
and of Augustus, the distinguished jurisconsults, Ofilius, Labeo, and
Labinus, adopted them, especially in cases of jettison ; and the
Emperora Claudius, Vespasian, Trajan, Adrian, and Antoninus, con-
firmed those laws, and directed that all cases of maritime commerce
should be decided according to them.®

§180. Tlie Maritime Laws of tlie Kingdom of Jerusalem. —

These laws date back to the existence of the Christian Kingdom of
Jerusalem, established after the capture of the Holy City by God-
frey de Bouillon, in the first Crusade.^

§ 181. Tbe Booles or Judgments of Oleron, commonly called
the Laws of Oleron, take their name from the Island of Oleron.
The English and French have long disputed the honor of having
produced these laws, and their real origin is undoubtedly obscui*ed
by a remote antiquity ; but, by common consent, they are admitted
to be the foundation of all the European maritime codes. The
earliest French edition to which Pardessus refere, published in 1485,
beai"s for a title, " Jugemens de la Mer^ dea MdisterSy des Mariniers^
des Marchants^ et de tout leur estre^'' a liteial translation of which is
the title. of the earliest English edition, published in the reign of

* Pardessus, Loix Maritimes, poMtfii.
& Sea Laws, 76, 78; 1 Pard. Loix Mar.
^Encyc. de Jurisp., Ai-t Rhodien; 1

Boulay Paty, tit Prel. §§1-6; 2 Brown,
Civ. and Ad. Law, 38; 3 Kent's Com. 1
' 1 Pard. 275.

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Henry VIII. — "Judgments of the Sea, of Masters, of Marine
Merchants, and all their doings." ®

§ 182. Les Jngemens de Damme on Lois de Wei^tcai

These are mainly a ti*anslation of the Laws of Oleroii, mi
Dam, a city of Austrian-Flanders, situated a short distanc
the sea, near to Bruges.®

Coutumea d* Amsterdam^ JSnchui/sen and Stavem. — These ah
substantially translated from the Laws of Oleron, and they \
titled, " Ordonnance que les patrons et les negocians observei
eux sur le droit Maritime^ ^^

Maritime Laws of the Low Countries.^

§ 183. laws of Wisbuy.-^Wisbuy, in the island of Gothla
the great maritime and commercial entrepot of the north of ]
more than five hundred j^ears ago, and her maritime code w
known as " Dat hogeste und dat oldeste water rechte van
** The ancient and supreme water law of Wisby,^^ " The
water law established by the merchants and masters^ ^^

§ 184. Le Consnlat de la Men — H Consnlato del Hare
Consulate of the Sea. — Grotius says that the Consulate vn
up of various enactments of the Greek Emperoi-s of Germany
kingdoms of France, of Spain, of Syria, of Cyprus, of Majoi
of the republics of Venice and Genoa.

In an Italian edition, printed at Venice in 1539, it has tli
according to Pardessus : " Libro de consulato nuovammite s\
a ricoretto nel quale sono scritti capitoli a statuti e buone ordi
ehe le anfichi ordinerono per li casi de mercantie et di mari
cante et marinari et patroni di navilio,^^ ^^

" Id commence le livre du consulate nouvellement corrigS e
mS^ dans lequ^l sont contenus les loix et les ordinances sur I
maritimes et mercantiles''' ^*

8Prynne, 107; Sea Laws, 116, 120;
Cleirac, 1, 7; Malynes; Pet. Ad. Dec.
Append.; 1 Pardessus Loix Mar. 283,
323; Brown Civ. and Ad. Law,39; Miege,
Anc. Sea Laws; 1 Bouclier Consul at,
chap. 18 to 27.

» 1 Pard. Loix Mar. 371.

1^ 1 Pardessus Loix Mar. 405.

" 4 Pard. Loix Mar. 1, 10, 185.

«2 Brown Civ. and Ad. Li
Pard. Loix Mar. 424, 463 ; Sea L
Cleirac, 136, 139, 463, 524;
Pet. Ad. Dec. Append. ; Miege,
Laws; 1 Boucher Cons, cliap. :

i«2 Pard. 1, 49; Grotius de
So Par. lib. 3, chap. — note 4;
Loix Mar. 11.

1* 2 Boucher Consulat, I, titl

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§ 185. Le Gnidon de la Mer. — This is an ancient treatise entitled
**i« Guidon pour ceux que font marchandize et qui mettent d la
Mer;'^ written in French for the use of the merchants of Rouen.
It is devot^ mainly to the law of maritime insurance, but Cleirac
declares that it is written with such consummate ability that, in ex-
plaining the coirtract of insurance, the author has completely elu-
cidated the whole subject of maritime contracts and naval commerce.
It is a work of the highest authority.^^

§ 186. The Laws of the Hanse Towns. — In the year 1254, Lubec,
Brunswick, Dantzic, and Cologne, in German}', and, subsequently,
Bruges in Flandei-s, London in England, and Novogorod in Russia,
and the principal citiea of the Rhine aiyi other portions of Europe,
constituted a soi-t of maritime confedemcy, for the protection and
promotion of their commercial interests ; and, for that purpose,
about the year 1597, formed a code of maritime law of the great-
est respectability, embracing in its brief articles, much of what had
before existed in the separate codes of the Hanseatic and other
cities, and of the nations of Europe.

This code may be found in 3 Pard. 431, 455 ; Miege*s Anc. Sea
Laws ; Brown Civ. and Ad. Law, 39; 3 Kent's Com. 1-21; Cleirac,
157, 166 ; Pet. Ad. Dec. Append. ; Sea Laws, 190, 195.

§ 187. Other Codes. — The other maritime ordinances and codes
which had existed before that time, were numerous, and are here
briefly enumerated, in the order in which maritime legislation or
codification was commenced in each nation or city.

A. D. 940. The Maritime Law of Norway. 3 Pard. 1, 21.
" 1063. Maritime Law of the Two Sicilies. 6 Pard. 214,

" 1117. Maritime Law of Iceland. 3 Pard. 45, 55..
" 1150. Maritime Law of Denmark. 3 Pard. 205, 229.
" 1158. Maritime Law of Lubec. 3 Pard. 391, 399.
" 1160. Maritime Law of Pisa and Florence. 4 Pard. 545,

" 1224. Maritime Law of the Prussian States. 8 Pard. 447,

" 1232. Maritime Law of Venice and Austria. 5 Pard. 1.

"2 Pard. Loix Mar. 369, 377; Cleirac, 181; 2 Brown Civ. and Ad. Law, 41.

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1248. Maritime Law of Catalonia, Arag

Majorca. 6 Pard. 321, 333.

1254. Maritime Law of Sweden. 3 Pai

1270. Maritime Law of Hamburgh. 8

1270. Maritime Law of Russia. 3 Fare

1303. Maritime Law of Bremen. 3 Pa:

" Maritime Law of the Papal States

1316. Maritime Law of Genoa. 5 Pare

*^ Maritime Law of Sardinia. 5 Pa

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"Admiralty" and "Maritimb."

§ 188. Our Constitntion gare the Broadest Grant of Jurisdic-
tion. — In the foregoing brief review of the admiralty and maritime
jurisdiction of the different portions of the British Empire, of the
original states of our union, and of the nations of continental Eu-
rope, it has been shown that admiralty and maritime cases consist
of many very numerous classes of cases, everywhei'e distinctly char-
acterized by their relation to ships and shipping ; that of these nu-
merous and various cases, the English Admiralty Court, at the time
of the American Revolution, entertained jurisdiction of but very
few, the Admiralty Courts of Scotland still more, the British Co-
lonial Courts of Vice-Admiralty still more, the early English Admi-
ralty still more, the French Admiralty Courts, and those of other

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 11 of 80)