and regulates, by its decisions, the commercial intercourse of mankind. (a)1 (a) Judge Story stated, in this case, that all civilians and jurists agreed that maritime contracts included, among other things, charter-parties, affreightinents, marine hypothecations, contracts for marine service in the building, repairing, supplying, and navigating ships, contracts between part-owners of ships, contracts and quasicontracts, respecting averages, contributions, and of missions and policies of insurance. He said that admiralty courts of other foreign countries had exercised jurisdiction over policies of insurance as maritime contracts. 1 Admiralty Jurisdiction of the United States. The Supreme Court has since decided in accordance with Judge Story's opinion, Insurance Co. v. Dunham, 11 Wall. 1; and that and other cases show that the admiralty and maritime jurisdiction of the United States is not limited by the restraining statutes or the judicial prohibitions of England. Ib. p. 24; Waring v. Clarke, 5 How. 441; New Jersey S. N. Co. v. Merchants' Bank, 6 How. 344; The Magnolia, 20 How. 296; The Commerce, 1 Black, 574; The Belfast, 7 Wall. 624, 640. In The Hine, 4 Wall. 555, 569, Mr. Justice Miller declared it to be settled that the admiralty jurisdiction to which the power of the federal judiciary is by the Constitution declared to extend, is not limited to tide water, but covers the entire navigable waters of the United States; and that the jurisdiction of admiralty causes arising on the interior waters of the United States, other than the lakes and their connecting waters, is conferred by the Judiciary Act of Sept. 24, 1789, § 9, stated ante, 304, and more fully post, 372, in the text. A little later, in The Eagle, 8 Wall. 15, 25, it was laid down that since the decision of The Genesee Chief, 12 How. 443, the admiralty jurisdiction of the district courts upon the great lakes and their connecting waters also must be regarded as conferred upon them by the same act. The act of 1845, ante, 367, n. (b), was passed when the jurisdiction under the Judiciary Act was supposed to be limited to tide waters, and when this was decided by the Supreme Court to be a wrong view of the law, and that the test was navigability, not the ebb and flow of the tide, it followed that the act of 1845 was inoperative to extend the jurisdiction, and if it affected it at all must restrict it, contrary to the intent of the act. It was pronounced not to have the latter effect in The Eagle (contrary to the doctrine of Allen v. Newberry, 21 How. 244, and the dicta in The Hine and Genesee Chief.) See, also, Insurance Co. v. Dunham, 11 Wall. 1, 26. Navigability within the meaning of these decisions is navigability in fact, and those rivers are said to be navigable which are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel may be conducted in the customary mode. The Daniel Ball, 10 Wall. 557, 563. The jurisdiction as to tort is said to depend entirely on locality, and torts committed on navigable waters are cognizable in the admiralty courts. The Belfast, 7 Wall. 624, 637; The Commerce, 1 Black, 574, 579. See Insurance Co. v. Dunham, 11 Wall. 1, 25; and below in this note. With regard to contracts, it is well settled that jurisdiction does not depend upon their having been made upon the sea, nor, it would seem, upon the fact that they are to be performed upon navigable waters, Insurance Co. v. Dunham, 11 Wall. 1, 26, stated supra, (a point in doubt, perhaps, before that case, Belfast, sup.,) but upon the subject-matter of the contract; if that is maritime the contract is maritime. Among the contracts which This enlarged extension of the civil jurisdiction of the admiralty, as declared in the circuit court in Massachusetts, remains have been considered maritime are those for marine insurance, Ins. Co. v. Dunham, sup; for the carriage of passengers on navigable waters, The Moses Taylor, 4 Wall. 411; see, also, The Pacific, 1 Blatchf. 569; charter-party, affreightment, wharfage, &c., as mentioned below in this note. But it seems to be the prevailing opinion that a contract to build a ship is not a maritime contract. People's Ferry Co. v. Beers, 20 How. 393, as explained in Morewood v. Enequist, 23 How. 491, 494, and 11 Wall. 28. See, also, Cunningham v. Hall, 1 Cliff. 43; Young v. The Orpheus, 2 Cliff. 29, 38; The Norway, 3 Benedict, 163, 165. The case of stevedore's service is thought doubtful in The Circassian, 1 Benedict, 209. The original jurisdiction in admiralty exercised by the district courts by virtue of the act of 1789, is exclusive not only of other federal courts, but of the state courts also. The Hine, 4 Wall. 555, 569. It is not a remedy in the common law courts which is saved by the clause in § 9, stated post, 372, ante, 304, n. (b), but a common law remedy. The Moses Taylor, 4 Wall. 411, 412; The Belfast, 7 Wall. 624, 644. If there is a common law temedy it may be pursued at the election of the suitor in the state courts, or in the circuit court if his residence permits. The Belfast, sup.; Leon v. Galceran, 11 Wall. 185, 191. See, also, a masterly article by Mr. Dana, 5 Am. Law Rev. 581, on the history of the admiralty jurisdiction, at pp. 617, 620, from which much assistance has been derived in revising this note. Taylor v. Carryl, 20 How. 583, 598; post, 877, n. (c) and 1. A proceeding in rem to enforce a maritime lien is not, however, a common law remedy, and if a state statute purports to give such a remedy in a common law court it is invalid for that purpose. 7 Wall. 644. On this ground it has been held that state courts have no jurisdiction to enforce a lien for breach of a contract to carry a passenger by steam on the Pacific Ocean by proceedings in rem under a state law, The Moses Taylor, 4 Wall. 411; nor of similar proceedings for a collision on the Mississippi River, The Hine, 4 Wall. 555; nor of similar proceedings to enforce a lien for breach of a contract between citizens of a state for the carriage of merchandise from one port to another within the same state over navigable waters, The Belfast, 7 Wall. 624. A maritime lien is the foundation of a proceeding in rem. The Bold Buccleugh, 7 Moore, P. C. 267, 284; The Rock Island Bridge, 6 Wall. 213; Castrique v. Imrie, L. R. 4 H. L. 414, 447. See The Maggie Hammond, 9 Wall. 435. And whenever a maritime lien arises, the injured party may proceed whether for a breach of a maritime contract or a maritime tort either in rem or in personam at his election. The Belfast, 7 Wall. 624, 642; Leon v. Galceran, 11 Wall. 185, 192. And the same rule seems to apply to some matters not strictly belonging either to contract or tort, such as salvage, jettison, or general average. The Eagle, 8 Wall. 15, 23. Taking this in connection with the rule above stated as to jurisdiction over torts, it has been held that the United States courts have jurisdiction of proceedings in rem for a collision infra corpus comitatus, The Commerce, 1 Black, 574; The Belfast, 7 Wall. 624, 637; The Brooklyn, 2 Benedict, 547; or in foreign waters, and it said that in these cases, as in others, the American law will generally be applied. The Eagle, 8 Wall. 15, 22. See further, as to maritime torts, Phil., Wil. & Balt. R.R. v. Phil. & H. Steam T. Co., 23 How. 209; The Slavers (Reindeer), 2 Wall. 384; Barnett v. Luther, 1 Curt. 434. To give some other instances, the United States courts have jurisdiction of similar proceedings for general average contributions. Dupont de Nemours v. to be discussed, and definitively settled, in the Supreme Court. It has been subsequently and frequently asserted in the circuit and district courts. Thus, in Plummer v. Webb, (b) the jurisdiction of the admiralty over all maritime contracts, upon the doctrine of the case* of De Lovio v. Boit, was declared, *370 and it was considered, that, inasmuch as courts of admiralty act as courts of equity and administer justice upon the same principles, and with equal safety, maritime contracts were suitable objects of such a jurisdiction; and especially as such contracts require a liberal interpretation and enlarged good faith, and the (b) 4 Mason, 380. Vance, 19 How. 162; The Eagle, 8 Wall. 15, 23. But when, as has been determined by the Supreme Court in certain cases mentioned in the notes to shipping in the third volume, post, the lien depends on possession, if possession is given up without reserve there can be no proceeding in rem. Bags of Linseed, 1 Black, 108, 113. See The Eddy, 5 Wall. 481, 494. And it has been held that in some cases, e.g. for contribution in general average, the admiralty jurisdiction in personam was gone also. Cutler v. Rae, 7 How. 729; 8 How. 615. The jurisdiction also extends to similar proceedings for salvage, The Centurion, Ware, 477; A. D. Patchin, 1 Blatchf. 414; Gates v. Johnson, 21 Law Rep. 279; (as to seizures, see Taylor v. Carryl, 20 How. 583;) for torts or breaches of contract by carriers of passengers on navigable waters, The Moses Taylor, 4 Wall. 411; Steamboat New World, 16 How. 469; Pacific, 1 Blatchf. 569; for contracts of charter-party or affreightment to be performed on navigable waters, The Belfast, 7 Wall. 624, 637; The Eddy, 5 Wall. 481; Morewood v. Enequist, 23 How. 491; N. J. Steam Nav. Co. v. Merchants' Bank, 6 How. 344; Carpenter v. Schooner Emma Johnson, 1 Cliff. 633; Church v. Shelton, 2 Curt. 271; The Hardy, 1 Dillon, 460; although made and to be performed abroad by a foreign ship, Maggie Hammond, 9 Wall. 435; for con tracts of wharfage, Kelsey v. The Kate Tremaine, 4 Am. L. T., U. S. Courts R., 92; and to libels by mariners for their wages earned on navigable waters entirely within one state. The Sarah Jane, 1 Lowell, 203, 2 Am. Law Rev. 455. The existence of a maritime lien, and consequently of a proceeding in rem in the admiralty, has been denied against bridges, The Rock Island Bridge, 6 Wall. 218; canal boats fit only for canal navigation, &c., Ann Arbor, 4 Blatchf. 205; Jones v. Coal Barges, 3 Wall. Jr. 53; Hendrick Hudson, 3 Benedict, 419. Compare the General Cass, 5 Am. L. T. 12. The much debated question as to the enforcement in admiralty of liens created by state laws in favor of parties to mari. time contracts to whom the general admiralty law does not give such liens is adverted to in the notes to vol. 3, 170, n. 1. By way of finishing the subject of admiralty jurisdiction, it should be added that it does not extend to the decree of a sale or foreclosure of a ship under a mortgage, Bogart v. The John Jay, 17 How. 399; nor to matters of account between partners, Ward v. Thompson, 22 How. 330; nor to matters of account between part-owners, although the plaintiff was also master and ship's husband. The Larch, 2 Curt. 427. See Kellum v. Emerson, ib. 79; Marengo, 1 Lowell, 52, 1 Am. L. Rev. 88. application of a comprehensive equity. So in Steele v. Thatcher, and Drinkwater v. The Brig Spartan, in the district court for Maine, the doctrine in De Lovio v. Boit was explicitly recognized as sound. (a) It was declared to have been before the public for twelve years, without having its reasoning met, or its conclusions shaken; and it was adjudged that the admiralty had a general jurisdiction over maritime contracts; and the circumstance that the contract was under seal did not affect the jurisdiction, though it was admitted that in England the courts of law would grant a prohibition in such a case. The broad jurisdiction of the American courts of admiralty, over all executed maritime contracts, (for the jurisdiction is confined to executed contracts,) (b)1 and all cases of a maritime nature, has been equally asserted in the circuit courts of the United States at New York and Philadelphia, founded on the language of the Constitution, and the Judiciary Act of 1789. (c) This enlarged admiralty cognizance of civil causes was elaborately vindicated, on principles of reason, as well as on the ground of authority, in the case of the Schooner Tilton. (d) It was there held, that the admiralty had jurisdiction of all causes of a maritime nature, inclusive of questions of prize, whether they arose from contracts or from torts. The jurisdiction was clear, in all matters that concerned owners and proprie tors of ships, as such. It was observed that suits in the *371 admiralty, touching *property in ships, were either petitory suits, in which the mere title to the property is litigated and sought to be enforced, or they were possessory suits, to restore to the owner the possession, which he had under a claim of title. The jurisdiction over both classes of cases was exercised by the admiralty, until some time after the restoration in 1660, when the courts of law interfered, and claimed the exclusive cognizance of mere questions of title; and the admiralty jurisdiction over petitory suits has been, in England, abandoned for a considerable (a) Ware, 91, 149. (b) 3 Mason, 16, 17. (c) The Sloop Mary, 1 Paine, 673; Wilmer v. The Smilax, [2 Pet. Adm. 295 n.,] and Davis v. Brig Seneca, [Gilp. 10,] in the circuit court of the Pennsylvania district. (d) 5 Mason, 465. It is not disputed that courts of admiralty have jurisdiction over charter-parties and maritime contracts generally, but not over preliminary contracts leading thereto. Andrews v. Essex F. & M. Ins. Company, 3 Mason, 6. The Schooner Tribune, 3 Sumner, 144. 1 But see The Pacific, 1 Blatchf. 569; ante, 869, n. 1. length of time, though it is constantly upheld as to possessory suits. (a) The distinction does not appear to rest on any sound principle, for the question of title is necessarily involved in that of the possession; and it is admitted by the courts of law (b) that the admiralty possesses authority to decree restitution of a ship unlawfully withheld by a wrongdoer from the real owner. In the case of illegal captures, and of bottomry, salvage and marine torts, the admiralty courts in this country inquire into and decide on the rights and titles involved in the controversy; and where they have jurisdiction of the principal matter, it is suitable, and according to the analogies of law, that they should possess it over the incidents. Notwithstanding the English practice to the contrary, the admiralty in this country claim to possess a rightful jurisdiction equally over petitory and possessory suits. (c) With respect to the criminal jurisdiction of the admiralty, we (a) Haly v. Goodson, 2 Meriv. 77; Lord Stowell in the cases of the Aurora, 3 C. Rob. 133, 136; the Warrior, 2 Dods. 288; and the Pitt, 1 Hagg. Adm. 240; 2 Bro. Civ. & Adm. Law, 114, 115. (b) In the matter of Blanchard, 2 Barn. & Cress. 244. (c) The schooner Tilton, 5 Mason, 465; Ware Judge, in Ware, 248, s. P. In the case of the Schooner Volunteer and Cargo, 1 Sumner, 551, Mr. Justice Story reasserted, with undiminished confidence, the rightful jurisdiction of the American admiralty over charter-parties and all other maritime contracts, whether made in foreign parts or at home, as matters juris et de jure, and that the court might proceed in rem where there was a lien, and in personam where no such lien existed. He reviewed, with his usual accuracy and spirit, the history of the question of admiralty jurisdiction, as he had already done more at large in De Lovio v. Boit. See supra, 367. On the other hand, in Bains v. The Schooner James and Catharine, 1 Bald. 544, Judge Baldwin held, that admiralty jurisdiction, under the Constitution of the United States, was to be considered as restrained by the statutes and common law of England before the Revolution, and as exercised by the state courts before the adoption of the Constitution. It is high time that this vexed question of admiralty jurisdiction under the Constitution of the United States should be put at rest by a final decision in the Supreme Court of the United States. The Court of Appeals in Kentucky in the case of Case v. Woolley, 6 Dana, 21, do indeed consider the question as authoritatively settled by the cases of De Lovio v. Boit, Plummer v. Webb, Drinkwater v. The Brig Spartan, The Steamboat Thomas Jefferson, and Peyroux v. Howard, that a civil cause arising where the tide ebbs and flows, even though it may be within a county, was a case of admiralty or maritime jurisdiction. Mr. Curtis, in his Treatise on the Rights and Duties of Merchant Seamen, pp. 252, 253, 260, concludes his examination of the cases, with the proposition, that all persons on board a vessel engaged in service, and whose service is of a maritime character, and in the business and employment of the 1 Ward v. Peck, 18 How. 267; Taylor 1 Sprague, 170. But see The John Jay, v. The Royal Saxon, 1 Wall. Jr. 311; The 8 Blatchf. 67. Friendship, 2 Curtis, 426; The Taranto, |