its effect would be rather to supplement than to "work material prejudice."

But there is one class of cases in which its effect would be far-reaching; that is, in case of the representatives of a seaman suing for a death caused by negligence of the shipowner, the basis of the suit being a state statute giving such a right of action.

Under the old admiralty authorities, the only responsibility of a shipowner to a seaman, in the absence of personal negligence, is for maintenance and cure, and does not extend beyond the seaman's life. Hence it ought to follow as a corollary from these decisions that a state can not create a right of action for negligent injuries resulting in the death of a seaman. Prior to those decisions such suits were com

But, with these qualifications, if the subject-matter discussed in this chapter is by nature maritime, the power of a state to give an action enforceable in an admiralty court, in the absence of congressional legislation, seems to follow.

Restrictions of State Statute Binding

As the right to sue depends on the state statute, it follows that the state, in giving the right, may name the conditions on which it is given. Hence the restriction of the right to sue to one year, contained in Lord Campbell's Act and embodied in nearly all the state statutes based upon it, is binding on suits in the admiralty court. This is not a statute of limitations, but a condition on which the right is given, and performance must be shown by the plaintiff as part of his case.27

26 Transfer No. 12, 221 Fed. 409, 137 C. C. A. 207.

27 Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358; Stern v. La Compagnie Générale Transatlantique (D. C.) 110 Fed. 996; International Nav. Co. v. Lindstróm, 123 Fed. 475, 60 C. C. A. 649. Unless the California statute differs from the usual form of these statutes, Western Fuel Co. v. Garcia, 255 Fed. 817, 167 C. C. A. 145,

In this connection it is material to consider how far the workmen's compensation laws enacted in many states affect the right to sue in the admiralty for damages resulting in death.

This is largely a question of construing the state legislation on the subject. The usual type of compensation law restricts those who come under its terms to the remedies provided by the law itself. The right of action for damages resulting in the death of an employé is to that extent abolished.

Logically it should follow that, where the right of action depends on a state statute, it would fall in the admiralty court wherever it would fall in the state court. The power which makes can unmake, in whole or in part. It can repeal such a right entirely, or modify it as seems best.

So far this question has not been directly presented, and it remains to be seen whether the judges will follow their heads or their hearts.28

Fatal Injury on Water-Death Ashore

In discussing the bounds of admiralty jurisdiction in tort, it has been seen that where the cause of action is consummate on the water, admiralty has jurisdiction, though addi

deciding the contrary, cannot be sustained. It is true, as the court says, that the recognized principles of the maritime law are unaffected by local legislation, at least since the recent decisions of the Supreme Court. But the right to sue for damages resulting in death is not "a recognized principle of the maritime law," but a new right depending so far on state statutes and subject to the conditions of those statutes. Besides, there are many instances where the "recognized principles of maritime law" have been affected by local legislation, such as pilotage, materialmen's liens, local regulations of navigation, and a number of others.

28 Bjolstad v. Pacific Coast S. S. Co. (D. C.) 244 Fed. 634, is somewhat analogous. There the Workman's Compensation Act of New Jersey was held to modify the New Jersey death statute as to one class of employés. Judge Dooling aptly said: "If one has to rely on a state law to support a claimed right, he must take the law as he finds it, hardships and all." But on May 27, 1920, the Supreme

tional injuries immediately following on land may aggravate the damages, and that on the other hand, where the cause of action is consummate only on land, admiralty has no jurisdiction, although the injury originated on water.""

The application of this doctrine to the case of a person injured fatally on a ship, but not dying till after he has been carried ashore, depends-or ought to depend on the character of the state statute giving the right.

It is well known that state statutes giving this right of action fall under two classes. One class recognizes the right of the deceased to sue for the injury inflicted, and provides that such right of action, vesting independent of statute in the deceased, shall survive, thus simply abolishing the common-law rule that a personal right of action dies with the person. The Massachusetts and Louisiana statutes may be taken as types of this class, and these are called "survival acts."

Another type gives an entirely new right of action to the parties injured by the death, such as dependents, for the loss to them by reason of the death, independent of any right of action to the deceased. Lord Campbell's Act in England, which was the prototype of these statutes, and the Virginia statute, are good illustrations of this type. These are usually designated as "death acts."

It is obvious that under a survival act the right of action is consummate when the fatal injury is inflicted, and that the subsequent suffering and death are only cumulative. It is equally obvious that under a death act the right of action is not consummate till death occurs.80

Court decided such acts invalid as affecting admiralty. bocker Ice Co. v. Stewart, 252 U. S.

29 Ante, p. 199.

Knicker

40 Sup. Ct. 438, 64 L. Ed.

30 In Carolina, C. & O. R. R. v. Shewalter, 128 Tenn. 363, 161 S. W. 1136, Ann. Cas. 1915C, 605, L. R. A. 1916C, 964 (affirmed without opinion Shewalter v. Carolina, C. & O. Ry., 239 U. S. 630, 36 Sup. Ct. 166, 60 L. Ed. 476), is an admirable discussion of these two classes. See, also, Michigan Cent. R. Co. v. Vreeland, 227 U. S. 59, 33 Sup. Ct. 193, 57 L. Ed. 417, Ann. Cas. 1914C, 176.

Hence, in a case arising under a survival act, admiralty ought to have jurisdiction, though the death occurred on land.

And in a case arising under a death act, admiralty ought not to have jurisdiction, where the death occurred on land. Accordingly, in Ryley v. Philadelphia & R. R. Co.,81 Judge Adams held that admiralty had no jurisdiction in a case turning on the Pennsylvania statute (a death statute) where the injured party died on shore.

And in Hamburg-Amerikanische Packetfahrt Aktien Gesellschaft v. Gye,32 the Circuit Court of Appeals for the Fifth Circuit held, in a case arising under the Louisiana statute (a survival statute), that there was jurisdiction.

33

This case was followed in the Anglo-Patagonian 3 by the Circuit Court of Appeals for the Fourth Circuit, in a case arising under the Virginia statute (a death statute), overlooking the radical difference between the Louisiana and Virginia statutes.

SAME-UNDER CONGRESSIONAL STATUTES 114. Congress, under its general power to regulate maritime subjects, can give a right of action in admiralty for death injuries; and a congressional statute would supersede any state statutes in so far as they conflict with it.

It is now necessary to consider how far Congress may legislate on the subject.

81 (D. C.) 173 Fed. 839.

32 207 Fed. 247, 124 C. C. A. 517. That the Louisiana act is a survival act, see Carolina C. & O. R. R. v. Shewalter, 128 Tenn. 363, 161 S. W. 1136, Ann. Cas. 1915C, 605, L. R. A. 1916C, 964, affirmed Shewalter v. Carolina, C. & O. Ry., 239 U. S. 630, 36 Sup. Ct. 166, 60 L. Ed. 476, ante, note 30, and the Corsair, 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed. 727.

33 235 Fed. 92, 148 C. C. A. 586.

The federal courts as a class derive their admiralty jurisdiction direct from the Constitution, and not from congressional statutes. How far may federal statutes affect the admiralty jurisdiction? There are many statutes which do affect it-like the statutes regulating the rules of the road at sea, requiring inspection of steamers, regulating the rights of merchant seamen, etc. It was at one time supposed that similar legislation rested upon the power to regulate commerce, which reasoning, if sound, would have defeated the power of regulating vessels engaged solely in internal commerce. And so it was held as far back as the GENESEE CHIEF, decided in 1851, that Congress derives some powers of legislation from the admiralty clause of the Constitution, and is not limited to the commerce clause. This has been reiterated in many later cases, notably in EX PARTE GARNETT, decided in 1891.

34

This power of Congress to regulate admiralty jurisdiction must now be defined more accurately. As the grant is by the Constitution itself, Congress cannot change the general limits or bounds of the admiralty. But within those bounds, as understood by the common consent of enlightened maritime nations, it may regulate procedure, and even rights. It may adopt into our law doctrines of marine law found in other maritime codes, though our admiralty courts had never before administered such a doctrine. It cannot make that marine which is not marine by nature, but, if it is marine by nature, and so recognized in maritime circles, Congress may give it a place in our admiralty law which it had never had before. To illustrate, Congress could pass a statute regulating the manner in which approaching vessels. should act to prevent collision, though both were enrolled in Virginia, and never left the boundaries of Virginia; but Congress could hardly pass a statute regulating the pre

§ 114. 84 12 How. 443, 13 L. Ed. 1058.

35 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631.