The American Authorities

In the United States the marine classics are mainly decided cases. The only treatise covering the whole field is the excellent two-volume work of Parsons on Shipping and Admiralty, which cannot be commended too highly. Its only fault is that it was published fifty years ago. There are other good works on separate departments of marine law; such as Marvin's work on Salvage, Dunlap's Admi ralty Practice, Betts' Admiralty Practice, Spencer's work on Collisions, and especially Benedict's treatise on Admiralty Practice, which is indispensable on the subject of which it treats.

As to the European codes and works above named, it must be borne in mind that they are only persuasive authority. They are evidence of the general maritime law, and not necessarily of our maritime law, except in so far as they have been adopted by us. As was said by Mr. Chief Justice Tilghman in an early Pennsylvania case: "They and the commentators on them have been received with great respect both in the courts of England and the United States, not as conveying any authority in themselves, but as evidence of the general marine law. When they are contradicted by judicial decisions in our own country, they are not to be regarded, but on points which have not been decided they are worthy of great consideration." 4

+ Morgan & Price v. Insurance Co. of North America (1807) 4 Dall. 455, 1 L. Ed. 907, cited in 30 Fed. Cas. 1203. See, also, LOTTAWANNA, 21 Wall. 558, 22 L. Ed. 654; Scotland, 105 U. S. 24, 26 L. Ed. 1001: Elfrida, 172 U. S. 186, 19 Sup. Ct. 146, 43 L. Ed. 413.

THE COLONIAL ADMIRALTY JURISDICTION, AND CONSTITUTIONAL GRANT OF "ADMIRALTY AND MARITIME JURISDICTION"

3. The grant of "admiralty and maritime jurisdiction" to the federal courts in the Constitution means the jurisdiction exercised by the colonial and state admiralty courts, and not the narrower jurisdiction of the English courts.

Prior to the Revolution, the several colonies had admiralty courts by virtue of commissions from the crown. These commissions conferred a jurisdiction much wider than that of the same courts in the mother country."

On the Declaration of Independence, each colony became a separate nation, and organized its own system of courts. Although the abuses of power in revenue matters had been one of the grievances which led to the Revolution, and contributed an indignant sentence to the Declaration of Independence, the different colonies practically adopted the jurisdiction of the colonial vice admiralty courts for their own, impressed by its advantages to their nascent shipping; and they disregarded the confined limits of the British marine tribunals. The Virginia statute of 1779 is a good illustration:

"Be it enacted by the general assembly, that the court of admiralty, to consist of three judges, any two of whom are declared to be a sufficient number to constitute a court, shall have jurisdiction in all maritime causes, except those wherein any parties may be accused of capital offenses, now depending and hereafter to be brought before them, shall take precedence in court according to the order in time of their appointment, and shall be governed in their proceed

§ 3. An idea of its extent may be gathered from Lord Cornbury's vice admiral's commission, set out in extenso in section 124 et seq., Ben. Adm.

ings and decisions by the regulations of the Congress of the United States of America, by the acts of the general assembly, by the Laws of Oleron and the Rhodian and Imperial Laws, so far as they have been heretofore observed in the English courts of admiralty, and by the laws of nature and of nations."

These courts were in active operation from the date when the colonies declared their independence in 1776 to the adoption of the Constitution in 1789.

THE WATERS INCLUDED

4. The waters included in the admiralty jurisdiction are all waters, whether tidal or not, navigable for commerce of a substantial character.

Repudiation of Ancient Tidal Test for Test of Navigability Article 3, § 2, of this instrument extended the judicial power of the United States, inter alia, "to all cases of admiralty and maritime jurisdiction." It was long assumed without examination that the measure of the jurisdiction. referred to in this clause was that of the English admiralty courts at the time of the Revolution. Their standard was the reach of the tides. In the contracted islands of the mother country there were no navigable waters that were not tidal. And so, when the question first came before the Supreme Court, it decided that the domain of the American admiralty was bounded by the ebb and flow of the tide." But this rule soon became embarrassing. In Peyroux V.. Howard the court found itself gravely discussing whether a slight swell at New Orleans could properly be called a tide. Our early statesmen, living in weak communities. strung along the Atlantic Coast, did not realize the possi

610 Hen. St. p. 98.

§ 4. 7 Thomas Jefferson, 10 Wheat. 428, 6 L. Ed. 358. 8 7 Pet. 342, 8 L. Ed. 700.

bilities of the boundless West, inaccessible from its barrier of mountains and savages. Jay, our first Chief Justice, had been willing to barter away the navigation of the Mississippi, and even to restrict the export of cotton, which laid the foundation of our national wealth. The mighty rivers and their tributaries which gave access to a continent, the Great Lakes of our northern border, which had witnessed some of our most notable feats of arms, were by this tidal test relegated to a place with the English Cam and Isisnot wide enough for a boat race. The restriction could not be endured, and so the court gradually broke away from English traditions. In Waring v. Clarke it decided that our Constitution did not mean to adopt the English standard, and that the admiralty could take cognizance of controversies maritime in their nature, though they arose in the body of a county. This first step was but a preliminary to entire emancipation, and its corollary was THE GENESEE CHIEF,10 which repudiated the tidal test entirely, and held that the true criterion of jurisdiction was whether the water was navigable.

Since then the court has frequently said that the grant of jurisdiction in the Constitution referred, as to subject-matter, not to the curtailed limits of the English admiralty, but to the system with which its framers were familiar; and this was the colonial and state admiralty, which was practically coincident with the ancient continental admiralty.11 What are Navigable Waters

It is not easy to say as matter of law exactly what waters are navigable in this sense. Care must be taken to distinguish between the clause granting the admiralty jurisdiction to the federal courts and the clause granting to congress the power to regulate interstate and foreign com

5 How. 441, 12 L. Ed. 226.

10 12 How. 443, 13 L. Ed. 1058.

11 LOTTAWANNA, 21 Wall. 558, 22 L. Ed. 654; Ex parte Easton, 95 U. S. 68, 24 L. Ed. 373.

merce. The Supreme Court has frequently said that they are independent of each other. Yet the admiralty jurisdiction is at least as extensive as the commercial clause. It extends to waters constituting actually or potentially a link in interstate commerce and navigable by craft of sufficient bulk to be engaged in interstate commerce, though such waters lie entirely within the limits of a state and above tide water, and though the voyage be between ports of the same state.12

Under the commerce clause the phrase "navigable waters" has been often considered. THE DANIEL BALL13 was a proceeding against a steamer for violating the federal license laws. She navigated entirely within the state of Michigan, on a short river, and drew only two feet of water. The river emptied into Lake Michigan. In the course of the opinion the court said: "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, in their ordinary condition, as highways for commerce over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States, within the meaning of the acts of Congress, in contradistinction from the navigable waters of the states, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other states or foreign countries in the customary modes in which such commerce is conducted by water."

In Leovy v. U. S.11 the court upheld an act of the Louisiana Legislature authorizing the damming of a small bayou

12 IN RE GARNETT, 141 U. S. 1, 11 Sup. Ct. 840, 35 L. Ed. 631; Harrison v. Fite, 148 Fed. 781, 78 C. C. A. 447; Manigault v. Springs, 199 U. S. 473, 26 Sup. Ct. 127, 50 L. Ed. 274.

13 10 Wall. 557, 19 L. Ed. 999.

14 177 U. S. 621, 20 Sup. Ct. 797, 44 L. Ed. 914.