Erastus Cornelius Benedict.

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

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TRev. Stats. §4131, 4318.
•Rev. Stat., § 4131, 4318 et aeq.
• Quarterly Review.



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SHIPS AND VESSELS.



119



articles of manufacture, which often fill the sloops and schooners en-
gaged in the coasting trade of the rivers and bays of the United
States. They are the manufactures of their localities, and the vessels
that carry them are the^hips and vessels of the maritime law, even
though they do not make the three years' voyages of Solomon to
Tarshish, for " gold and silver, ivory, and apes and peacocks." The
earlier, as well as the later codes of maritime law, expressly embrace
the vessels employed in this class of commerce, and it is not easy to
see how a doubt was ever mised on the subject.^^

A question has been raised as to whether canals and canal-boats
come within the admiralty jurisdiction. Judge Hopkinson, in Boon
V. The Hornet,^^ and Judge Betts, in McCormick v. Ives,^ main-
tained that the admiralty has no jurisdiction over canals, on account
of the artificial nature of those waters, and because they are not
within the ebb and flow of the tide ; according to the principle laid
down in the case of the Thomas Jefferson.^ This case, however,
was expressly overruled by the case of the Genesee Chief,^* estab-
lishing navigability as the true test, and the cases depending upon
it fall within it.

In reference to canal-boats, Mr. Justice Nelson, in the Ann Ar-
bor,^ intimated an opinion that they are not within the jurisdiction
of the admiralty, since they are exclusively adapted to traverse the
waters of a canal, having no independent means of propulsion, and
hence, are in no proper sense vessels. The same view was ad-
vanced in the John B. Cole,^® before Judge Conklin, but it was re-
jected by the court ; and in the case of the Eagle,^^ Judge Nelson
quotes with approbation the case of the Diana, 1 Lushington, 539,
in which Dr. Lushington sustained the jurisdiction of the English
Admii-alty over a collision happening in the Great North Holland
Canal. The Welland canal, connecting Lakes Erie and Ontario,
unites the chain of the great lakes, and the rivei*s connected with
them, with the ocean, by the Gulf of St. Lawrence. The Erie
canal and the Oswego canal connect them also with the ocean at
New York, and the northern canal connects Lake Champlain with



"Tbackerey v. The Farmer, Gil p.
526; 2 Chronicles, chap. 9, 21.

" Boon V. The Hornet, Crabbe, 426.

"McCormick v, Ives, Abb. Ad. 421.

"The Thomas Jeflferson, 23 U. S. (10
Wheat) 42S.



1* The Genesee Chief, 63 U. S. ( 12
How.) 443.

w The Ann Arbor, 4 Blatchf. C. C. R.
205.

w Van Santwood v. The John B. Cole,
4 N. Y. Leg. Obs. 376.

" 75 U. S. (8 Wall.) 15.



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120 THE AMERICAN ADMIRALTY.

the ocean at New York. These lakes and canals are all connected
with foreign territories, and now float an immense commerce, for-
eign as well as domestic. The vessels in which it is carried on,
called sometimes canal-boats, and sometimes lake-boats, have a ton-
nage of one hundred and fifty to two hundred and fifty tons, and
they must be registered, or enrolled and licensed as vessels of the
United States,^® and by these connected navigable waters, in such
vessels, the productions of the mines, the forests, the soil, and the
manufactures of vast regions yet to be settled and improved, ai*e to
find their way to the markets of the world. The Suez canal already
connects the Mediterranean with the Eastern seas, and a Panama
canal will soon be a highway between the two great oceans. Chief
Justice Taney, in the Genesee Chief, says of the case of the Thom-
as Jefferson: " We are convinced that, if we follow it, we follow an
erroneous decision, into which the court fell, when the great impor-
tance of the question, as it now presents itself, could not be fore-
seen, and the subject did not, therefore, receive that deliberate
consideration, which, at this time, would have been given to it by
the eminent men who presided here when that case was decided.
For the decision wivs made in 1825, when the commerce on the riv-
ei-s of the West, and on the great lakes, was in its infancy, and of
little importance, and but little regarded, compared with that of the
present day." In view of the proportions which this commerce
must assume, I can see no valid reason for denying these watei"s,
navigable from the sea by vessels of ten or more tons burthen, the
character of navigable waters, and such vessels the maritime charac-
ter of vessels.

§ 221 a. [Since the publication of the second edition of this work,
the views of the text above stated have been sustained by the Su-
preme Court of the United States. The question of jurisdiction
over canals had been brought before that Court in Nov. 1877, by
an application for a writ of prohibition to the District Court for the
Eastern District of New York in the case of The Monitor, (9 Ben.
78), in which that Court had entertained jurisdiction of a collision
occurring on the Raritan canal which connects the waters of New
York Bay with the Delaware River. The Supreme Court was then
equally divided on the question of jurisdiction and denied the appli-
cation without any opinion. In 1880, the District Court for the
" Rev. Stats., §§4261, 4311.



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SHIPS AND VESSELS.



121



Southern District of New York entertained jurisdiction of a collision
on the Erie Canal. Malony v. City of Milwaukee, 1 F. R. 611. And
in 1884 the question was again presented to the Supreme Court in
the case of Ex parte Boyer, (109 U. S. p. 629,) the collision in this
case being on the Illinois Canal connecting Lake Michigan and the
Mississippi. The juiisdiction was sustained. The Court reserved
the question whether the jurisdiction "extends to waters wholly
within the body of a State and from which vessels cannot so pass as
to carry on commerce between places in such State and places in
another State or in a foreign country." There ai-e some such waters.
But the jurisdiction of the Admiralty Courts over almost all canals
and navigable rivers is now established.]

§ 222. What the Term Ship includes. — A ship is usually de-
scribed as consisting of the ship, her tackle, apparel, and furniture —
the steamer, her engine, tackle, etc. This includes the hull and
spars, which constitute the ship ; the rigging, which constitutes the
tackle ; the sails, which are apparel ; the anchors, and numerous
utensils for ship's use, which are the furniture. This does not in-
clude the boats, nor the ballast.'-*



§ 223. The Same though changed. — A ship is always the same
ship, although the original materials of which it was composed may,
by successive repaire and alterations, have been in the course of time
entirely changed ; and if a ship be entirely taken to pieces, without
the intention of reconstruction, should the same materials be recon-
structed into a ship in precisely the same manner, it would not be
the same but another ship.^



*>Sea Laws, 444; The Dundee, 1 Hag.
AcL R, 124; 1 MoHoy, 313; Nouveau
Valin, .S6; The Endless Chain Dredge,
40 F. R 253; A Raft of Ties, 40id. 596;



Tlie City of Pittsburgh, 45 id. 609.

"Sea Laws, 443-4; Malyues, 123 ^ 1
Boulay Paty, 102, 104; 1 Mol. 312.



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CHAPTER XVI.

Seas — Lakes — Rivers.

§ 224. The High Seas. — A ship is none the less or more a ship, be-
cause she is confined to fresh or salt water, or running or stagnant
water. The phrases, the sea^ the high «ea, ths high seas^ are fre-
quently used in connection with the admiralty jurisdiction. The
high 8ea^ the open sea^ are phrases used to distinguish the expanse
and mass of any great body of water, from its margin or coast, — its
harbors, bays, creeks, inlets. Sigh seasj in the plural number, more
properly means the oceanic mass of watei-s, which is composed of
many subdivisions of seas and oceans.^

§ 225. The Sea. — The sea^ what is it in the legal sense ? It means,
when used by a nation or people, the large navigable watera, on
which that people have intercourse • or commerce in ships and ves-
sels. On islands in the ocean, it means the ocean ; in the languages
of the South of Europe, it means the Mediterranean; on the Baltic
Sea, the White Sea, the Zuyder Zee, the Sea of Geneva, the Black
Sea, the Sea of Marmora, the Sea of Azof, the Caspian Sea, the Sea
of Aral, the Red Sea, the Dead Sea, the Sea of Galilee, it means tlie
waters of those seas respectively. In classic Latin and Greek, an-
cient and modern, and in the vernacular tongue of those who dwell
on the shores of those seas, and carry on commerce on their waters,
those waters are the sea, and the vessels which navigate them are
ships. In the 107th Psalm, the phrase, "those who go down to tlie
sea in ship^," is a strictly literal translation of the Greek of the
Septuagiiit, and the Latin of the Vulgate ; and in all these lan-
guages, precisely the same words are used for sea, and for ship, as
are used in Mark iv. 1, for the little sea of Galilee, and the vessels
in the port of Capernaum ; and the same words are in constant use
throughout the Scriptures, for all sorts of navigable waters and nav-
igating vessels. Virgil uses mare, for the river Timavus, and it was
in common use by all writers in Latin, for any large body of naviga-
1 Waring v, Clarke, 46 U. S. (5 How.) 462; Dunlap's Pi*ac. 32.
(122)



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SEAS — LAKES — RIVERS.



123



ble waters, and an adjective was added to give it a specific use.
Mare inferum^ superum^ Tyrhenum^ Tuscurru, Adriaticum^ lonicumy
Mare magnum^ Mare oceani?

§ 226. The Same.— The visible flux and reflux of the tide is by
no means necessary to constitute the sea. There are no visible tides
in the Baltic, the Black, the Caspian, the Aral, the Marmora, the
Azof, the Dead Sea, or the Sea of Galilee. I say visible tides, for,
if the tides be the result of the moon's attraction, then there must be
a tide in all lai-ge bodies of water, for that attraction must be univer-
sal and irresistible ; and although not easily perceptible, because of
the restless character of the fluid, still a tideometer might be con-
structed, with such delicate arrangements, as to show the attraction
of the moon with as much certainty as the heat in her winter rays
is measured by delicately constructed thermometei-s. If the juris-
diction of a court should be made to depend upon such a criteron
instead of the character of the controversy, such an instrument in-
stead of the arguments of counsel, would be necessary to enlighten
the court.



§ 227. The Same. — The Mediterranean Sea was the great theatre
of all the maritime commercial enterprise of the early ages, of which
we have any knowledge. No one ever doubted that cases on that sea
were cases of admiralty and maritime jurisdiction ; yet there is always
a current running the same way, as regularly as in the Mississippi ;
and the Baltic, the White, the Black, and the Caspian seas have no
tide, but, like our inland seas, the great western lakes, they have
at intervals, longer or shorter, a rise and fall of the water, whose
cause is unknown, and which may be the result of atmosphenc pres-
sure, of the force of winds, of uncertain and variable inflowing cur-
rents or of ocean tides, that, by irregular and obstructed subtermnean
channels, manifest their power in iri'egular spasmodic throes.^ If



2 Waring V. Clarke, 46 U. S. (5 How.)
462; Ains. Diet Mare.

•Falconer's Diet 559-60; Silliman's
Joornal, 6 Am. Reg. 343.

" Risk op Water. — The Chieago
Journal of Saturday says: Lake Mich-
igan was playing its anties again all
day yesterday, the water rising from
two to four feet every half hour or so,



and as suddenly receding. ** At dusk
while the Lake was as smooth as a mir-
ror, without wind or any apparent
cause, the water rose to the height of
four feet twice within an hour. What
has caused this great commotion with
old Michigan is a mystery. It is cer-
tainly very unaccountable.** — E. Jour*
Aug. 1, 1S51.



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124 THE AMERICAN ADMIRALTY.

civilization and commerce had first had their harbors, and built their
cities and their ships on the inland waters of the western continent,
instead of the eastern, then our majestic rivers and lakes, the inland
waters of America, would have had the glory of exhibiting the ne-
cessity, and establishing the principles of the maritime law of the
world, as they have already been the theatre of some of the most
brilliant naval and maritime exploits which have contributed to our
national glory.

§ 228. Ebb and Flow of Tides.— It is not difficult to see how the

matter of the tides has risen to a rank in relation to jurisdiction, to
which it is not entitled. At the tirst in England, the rise and fall
of the tide was spoken of only in relation to the space between high
and low water mark in tide watei-s, which was declared to be within
the ebb and flow of the tide, and so within the admiralty jurisdiction,
when the tide was in ; but it had no relation to the general question
of admiralty jurisdiction. " As far as the tide ebbed and flowed,"
meant as far as high water mark on the shoi*e, and not as far up the
stream as the tide was perceptible. It had no relation to tideless
waters. But in England, during the contests with the admiralty,
the common law courts, as has been shown, seized upon anything
for a pretext to further their views, and it was easy to make the
flowing of the tide a limit, as well in the navigable rivers as on the
sea coast. In the general maritime law, there is nothing that con-
fines maritime transactions or the maritime law to tide watera or salt
water. They are limited only to the aflfairs of ships and vessels, and
those who sail, or own, or use, or injure them.*

§ 229. Navigability the Test for Us. — ^In admiralty and maritime
torts and offences, which depend entirely upon locality, the ebbing
and flowing of the tide has been taken as an arbitrary limit to what
is called the high sea ; and in England, the common law courts have
established the tide as the test of jurisdiction in British watew.
But in tlie United States, even in matters which dep)end upon local-
ity, such as seizures, navigability, instead of tide, is made the test.
Congress and the courts embrace within the admiralty and maritime



^Peyroux v, Howard, 32 U. S. (7 Pet)
342; The Orleans v, Phoebus, 36 U. S.
(11 Pet) 175; The U. S. v. Coombs, 37



U. S. (12 Pet) 72; Waring v. Clarke, 46
U. S. (5 How.) 463; anU, § 71.



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SBAS — ^LAKBS — RIVERS. 125

jurisdiction, all seizures on waters navigable from the sea, by ves-
sels of ten or more tons.*

[The above was the language of the early statutes. By the Re-
vised Statutes, § 563, subd. 8, the jurisdiction is declared to extend
to " all civil cases of admiralty and maritime jurisdiction," and to
^^ all seizures on land and on watera not within admiralty and mari-
time jurisdiction." By this change of language the distinction, be-
tween waters navigable from the sea by vessels of ten tons burthen
and other waters, seems to have been obliterated as far as testing the
range of the jurisdiction is concerned.]

§ 230. Blvers and Lakes. — There can be nothing in the mere
rise and fall of the water, which can affect the jurisdiction of courts,
nor in the periodicity of the rise and fall, nor in the cause of that
rise and fall. Periodical inundations and freshets exist in most riv-
ers and lakes, and they are subject to some curious laws which are
known, and to many others which have hitherto eluded discovery.
It is sufficient to say, that they would form quite as respectable a
source of legal jurisdiction and maritime law as any merely lunar
influence.**

§ 231. The Same. — The rivers are properly, and philosophically
speaking, a part of the sea. Tljis fact of physical geography is not
stated for the purpose of thereby establijihing a maritime jurisdic-
tion in all, or in any rivers. For the purpf)se of this question, navi-
gability is the true test. And the court will take judicial notice
that waters are navigable.^ The jui-isdiction does not depend upon
the existence of tides or of salt, or the absence of currents, nor upon
any of the characteristic points of distinction between rivers and



oceans



8



It may seem fanciful,and, perhaps, unprofessional, to devote even
a paragraph or two to such a view of the subject ; but when, by a
strict construction, a narrow and exclusive sense Ls sought to be ap-
plied to words of a larger signification, it is not always useless to

* 1 Stat, at L. p. 77, § 9; Hobart v, Dro-
gan, 35 U. S. (10 Pet) 119; Conk. Treat
2d edit 136, 139, 350, 351; Holmes v.
R. Co., 6 Fed. Rep. 75; The Clatsop
Chief, 8 id. 163.

< Jackson v. The Magnolia, 61 U. S.
OBO How.) 299.



^The Apollon, 9 Wheat 374; Lands
V, A Cargo o£ Coal, 4 Fed. Rep. 478.

'The Genesee Chief, 53 U. S. (12
How.) 454; The Commerce, 66 U. S. (1
Black.) 579; Hine v. Trevor, 71 U. S.
(4 WaU.) 565; The Belfast, 74 U. S. (7
Wan.) 640.



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126 THE AMERICAN ADMIBALTY.

show that a still more strict and technical construction brings us
practically to the same larger and more beneficial signification.

§ 232. Land and Water Systems of the Earth.— The earth is
made up of two great systems, if we may so say, — the land system
and the water system. " And God called the dry land earth, and
the gathering together of the waters called He seas." The land and
the water are each made up of numerous subdivisions, having ge-
neric and specific characteristic definitions. They are, nevertheless,
respectively, one in a general sense. The land is all connected to-
gether, though we do not sometimes see the connection. The moun-
tain, the valley, and the plain, exist as well at the bottom of the
ocean as on the visible dry ground ; and capes and promontories,
isthmuses, peninsulas, and islands are but portions of the land. So
arms, inlets, bays, ports, rivei-s, straits, and lakes are parts of the
sea, as the branches of the tree, or the limbs of the human body
are portions of the body. The waters of our little archipelago of
New York, that wash the shores of Long Island, Staten Island, New
York Island, Bedlow's Island, Governor's Island, Barn Island, Ran-
dall's Island, Black well's Island, etc., thongh they are all within coun-
ties of the state of New York, and within the harbor of New York,
and are connected with the ocean in ever}? direction by straits hardly
more than a pistol-shot in width, do not lose their character as a part
of the ocean, because those islands lie near each other, any more than
the waters, that surround the West India Islands or the islands of
the Grecian archipelago, cease to be portions of the sea, because the
islands of the sea lie clustered in their bosom. Tiie great ocean (for,
in the general sense, tiiere is but one ocean) is but the great cen-
tral mass of water, like the trunk of a tree. It is the great reser-
voir from which water departs in vapor, to be condensed on the land,
and rolled back in rivei*s to its original source, the ocean. If we
could take in, in a panoramic view, the whole apparent Hqueous sys-
tem, we should see that the watei-s are all one mass, apparently as
well as really, with the exception of here and there a lake with a
subteiTanean outlet, and a few rivers that lose themselves in bibu-
lous sands. This is the geogi-aphical and philosophical view of this
great fact of the unity of the waters. " The gathering together of
the waters called He seas." If the ocean and all its rivers and arms
could be dried, and again filled, not by the supplies from rivers, but
by welling up from its own depths, it would present the same ap-



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SEAS — LAKES — DRIVERS.



127



peamnce as before. The great rivers would be shorter, but they
would be there, and filled with the ocean brine, which would send
its vapors to the land, and all the old channels of the rivers would
be again filled with their currents, and the never-ending circulation
wottld be again in motion. It is all one mass of water, and it would
be as rational to say that the peninsulas, promontories, isthmuses, and
islands are no part of the land, so far as the admiralty is concerned,
as that the bays, creeks, channels, inlets, harbors, and rivers are no
part of the sea. For practical purposes, however, in relation to the
admiralty and maritime law, we must be limited, not by any strict
and technical limit, but by the purpose, — the use, — the subject-
matter, for the purposes of commerce. Hence navigability, so far
as water is concerned, is, on principle, the only test of maritime ju-
risdiction.®

§ 233. Navigable Rivers. — The navigable rivera, up to the point
of obstruction to the navigation, " all navigable rivers beneath the
first bridges^^^ — ^that is, so far as they are navigable, — even in Eng-
land, have been held to be within the admiralty and maritime juris-
diction, so far as those classes of cases are concerned, of which the
English Admiralty had jurisdiction, even when arising on the ocean.
In the vice -admiralty courts of the colonies, the jurisdiction extended
to *'*' public streams^ fresh waters^ rivers^ and creeks^



§ 234. Tlie Judiciary Act of 1789.— The United States, by the
fii-st act of Congress in relation to the judiciary, passed Sept. 24,
1789, declared that the admimlty and maritime jurisdiction extended
to ** all waters navigable from the sea by vessels of ten or more tons
burthen;^' and these early acts liave been always held to be impor-
tant contemporaneous constructions of the constitution.^^

[This language has disappeared from our statutes. It had become
so thoroughly settled that the admiralty jurisdiction extended over
such waters that on the revision of the statutes of the United States
in 1873 these words were omitted in the revision, the other words
giving the District Courts jurisdiction over " civil causes of admimlt}'
and maritime jurisdiction " being considered all that was necessary to



•Waring V. Clarke, 46 U. S. (5 How.)
462; ante, § 221.
» Waring V. Clarke, 46 U. S. (6 How.)



464; Conk. Treat. 2d ed. 350, n; Jackson
V. The Magnolia, 61 U. S. (20 How.) 300;
ante^ § 221.



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128



THE AMERICAN ADMIRALTY.



cover this clause as to seizures. But the early act is none the less
valuable as a contemporaneous construction.] ^^

§ 235. Act of 1790 and 1798 — The act for the government and
regulation of seamen in the merchant service, passed July 20, 1790,
section 6, (Rev. Stat. §§ 4546, 4547) subjects all seamen and all
ships and vessels " in the merchant service " (that is to say, not in
the public naval service) to the jurisdiction of the admiralty in cases
of mariner's wages, and it makes no allusion whatever to the sea or
the tides. The act of July 16, 1798, for the relief of sick and dis-
abled seamen, and the act of May 3, 1802, amending the same, ex-
pressly provide, that persons navigating coasting vessels, including
" eveiy boat, raft, or flat,*' going down the Mississippi, with the in-
tention to proceed to New Orleans, shall l>e considered as seamen of
the United States. [But this has been held not to give the admi-
ralty jurisdiction over a suit for the raftman's wages.] ^

§ 236. Other Acts. — The act " for enrolling and licensing ships or
vessels to be employed in the coasting trade and fisheries, and for reg-
ulating the same," passed Feb. 18, 1793, and the previous act for i-eg-
istering and clearing vessels, etc., and the act of March 2, 1819, sup-
plementary to the acts concerning the coasting trade, and the act of
May 2, 1822, for the collection of duties on exports and tonnage in
Florida, expressly include all " the navigable rivers of the United
States:'



§ 237. Navigable Biyers within the Jarisdiction.— A uniform
current of decisions and of practice in eveiy court of the United
States having admii-alty jurisdiction, from the first establishment of
the courts, has settled the law, that all cases arising under these
acts, are cases of admimlty and maritime jurisdiction. It must,
therefore, be conceded, that principle and pi-actice, the law and the
reason of it, the acts of Congress and the decisions under them, all
concur in declaring that navigable rivers are within the admimlty
and maritime jurisdiction, for certain purposes at least ; and the
force of these views seems to be fully felt by Judge Woodbury, in



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 14 of 80)