CHAPTER III.

PERSONS AFFECTED BY TORTS.

SECTION 2. DAMAGES FOR DEATH: ADMIRALTY RULE.
THE "HARRISBURG."

(119 U. S. 199. - 1886.)

THIS is a suit in rem begun in the District Court of the United States for the Eastern District of Pennsylvania, on the 25th of February, 1882, against the steamer "Harrisburg," by the widow and child of Silas E. Richards, deceased, to recover damages for his death caused by the negligence of the steamer in a collision with the schooner "Marietta Tilton," on the 16th of May, 1877, about one hundred yards from the Cross Rip Light Ship, in a sound of the sea embraced between the coast of Massachusetts and the islands of Martha's Vineyard and Nantucket, parts of the State of Massachusetts. The steamer was engaged at the time of the collision in the coasting trade, and belong to the port of Philadelphia, where she was duly enrolled according to the laws of the United States. The deceased was first officer of the schooner, and a resident of Delaware, where his widow and child also resided when the suit was begun. Reported below in 15 Fed. Rep. 610.

Mr. Thomas Mart, Jr., for appellant.

Mr. Henry Flanders for appellees.

MR. CHIEF JUSTICE WAITE. The question to be decided presents itself in three aspects, which may be stated as follows: 1. Can a suit in admiralty be maintained in the courts or the United States to recover damages for the death of a human being on the high seas, or waters navigable from the sea,

caused by negligence, in the absence of an act of Congress, or a statute of a State, giving a right of action therefor?

2. If not, can a suit in rem be maintained in admiralty against an offending vessel for the recovery of such damages when an action at law has been given therefor by statute in the State where the wrong was done, or where the vessel belonged?

3. If it can, will the admiralty courts permit such a recovery in a suit begun nearly five years after the death, when the statute which gives the right of action provides that the suit shall be brought within one year?

It was held by this court, on full consideration, in Insurance Company v. Brame, 95 U. S. 756, "that by the common law no civil action lies for an injury which results in death.” (See, also, Dennick v. Railroad Co., 103 U. S. 11, 21.) Such also is the judgment of the English courts, where an action of the kind could not be maintained until Lord Campbell's Act, 9 and 10 Vict. c. 93. It was so recited in that act, and so said by Lord Blackburn in Seward v. The Vera Cruz, 10 App. Cas. 59, decided by the House of Lords in 1884. Many of the cases bearing on this question are cited in the opinion in Insurance Co. v. Brame. Others will be found referred to in an elaborate note to Carey v. Berkshire Railroad, 1 Cush. 475; in 48 Am. Dec. 616, 633. The only American cases in the common-law courts against the rule, to which our attention has been called, are Cross v. Guthery, 2 Root, 90; S. C. 1 Am. Dec. 61; Ford v. Monroe, 20 Wend. 210; James v. Christy, 18 Missouri, 162; and Sullivan v. Union Pacific Railroad, 3 Dillon, 334. Cross v. Guthery, a Connecticut case, was decided in 1794, and cannot be reconciled with Goodsell v. Hartford & New Haven Railroad, 33 Conn. 55, where it is said: "It is a singular fact, that by the common law the greatest injury which one man can inflict on another, the taking of his life, is without a private remedy." Ford v. Munroe, a New York case, was substantially overruled by the Court of Appeals of that State in Green v. Hudson River Railroad, 2 Keyes, 294; and Sullivan v. Union Pacific Railroad, decided in 1874 by the Circuit Court of the United States for the District of Nebraska, is directly in conflict with Insurance Co. v. Brame, decided here in 1878.

We know of no English case in which it has been authoritatively decided that the rule in admiralty differs at all in this particular from that at common law. Indeed, in The Vera Cruz, supra, it was decided that even since Lord Campbell's Act a suit in rem could not be maintained for such a wrong. Opinions were delivered in that case by the Lord Chancellor (Selborne), Lord Blackburn and Lord Watson. In each of these opinions it was assumed that no such action would lie without the statute, and the only question discussed was whether the statute had changed the rule.

In view, then, of the fact that in England, the source of our system of law, and from a very early period one of the principal maritime nations of the world, no suit in admiralty can be maintained for the redress of such a wrong, we proceed to inquire whether, under the general maritime law as administered in the courts of the United States, a contrary rule has been or ought to be established.

In Plummer v. Webb, 1 Ware, 75, decided in 1825, Judge Ware held, in the District Court of the United States for the District of Maine, in an admiralty suit in personam, that "the ancient doctrine of the common law, founded on the principles of the feudal system, that a private wrong is merged in a felony, is not applicable to the civil polity of this country, and has not been adopted in this state" (Maine), and that "a libel may be maintained by a father, in the admiralty, for consequential damages resulting from an assault and battery of his minor child," "after the death of the child, though the death was occasioned by the severity of the battery;" but the suit was dismissed, because upon the evidence it did not appear that the father had in fact been damaged. The case was afterwards before Mr. Justice Story on appeal, and is reported in 4 Mason, 380, but the question now involved was not considered, as the court found that the cause of action set forth in the libel and proved was not maritime in its nature.

We find no other reported case in which this subject was at all discussed until Cutting v. Seabury, 1 Sprague, 522, decided by Judge Sprague in the Massachusetts district in 1860. In that case, which was in personam, the judge said that "the weight of authority in the common-law courts seems to be

against the action, but natural equity and the general principles of law are in favor of it," and that he could not consider it "as settled that no action can be maintained for the death of a human being." The libel was dismissed, however, because on the facts it appeared that no cause of action existed even if in a proper case a recovery could be had. The same eminent judge had, however, held as early as 1849, in Crapo v. Allen, 1 Sprague, 185, that rights of action in admiralty for mere personal torts did not survive the death of the person injured.

Next followed the case of The Sea Gull, Chase's Dec. 145, decided by Chief Justice Chase in the Maryland district in 1867. That was a suit in rem by a husband to recover damages for the death of his wife caused by the negligence of the steamer in a collision in the Chesapeake Bay, and a recovery was had, the Chief Justice remarking that "there are cases, indeed, in which it has been held that in a suit at law no redress can be had by the surviving representative for injuries occasioned by the death of one through the wrong of another; but these are all common-law cases, and the common law has its peculiar rules in relation to this subject, traceable to the feudal system and its forfeitures," and "it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules." In his opinion he refers to the leading English case of Baker v. Bolton, 1 Camp. 493, where the common-law rule was recognized and followed by Lord Ellenborough in 1808, and to Carey v. Berkshire Railroad, 1 Cush. 475; S. C. 48 Am. Dec. 616, to the same effect, decided by the Supreme Court of Massachusetts in 1848, and then says that "in other States the English precedent has not been followed." For this he cites as authority Ford v. Munroe, supra, decided in 1838, but which, as we have seen, had been overruled by Green v. Iludson River Railroad in 1866, only a short time before the opinion of the Chief Justice was delivered, and James v. Christy, 18 Missouri, 162, decided by the Supreme Court of Missouri in 1853. The case of The Highland Light, Chase's Dec. 150, was before Chief Justice Chase in Maryland about the same time with

6

The Sea Gull, and while adhering to his ruling in that case, and remarking that "the admiralty may be styled, not improperly, the human providence which watches over the rights and interests of those who go down to the sea in ships and do their business on the great waters," he referred to a Maryland statute giving a right of action in such cases, and then dismissed the libel because on the facts no liability was established against the vessel as an offending thing.

Afterwards, in 1873, Mr. Justice Blatchford, then the judge of the District Court for the Southern District of New York, sustained a libel by an administrator of an infant child who took passage on the steamer "City of Brussels" with its mother at Liverpool, to be carried to New York, and while on the voyage was poisoned by the carelessness of the officers of the vessel and died on board. (City of Brussells, 6 Ben. 370.) The decision was placed on the ground of a breach of the contract of carriage.

The next case in which this jurisdiction was considered is that of The Towanda, 34 Leg. Int. (Philadelphia) 394; S. C. under the name of Coggins v. Helmsley, 5 Cent. Law Jour. 418, decided by Judge McKennan in the Circuit Court for the Eastern District of Pennsylvania in 1877, and before the judgment of this court in Insurance Co. v. Brame, supra. In that case the ruling of Chief Justice Chase in The Sea Gull was approved, and the same authorities were cited, with the addition of Sullivan v. Union Pacific Railroad, supra.

In The Charles Morgan, 2 Flip. 274, before Judge Swing, in the Southern District of Ohio on the 24th of October, 1878, the subject was again considered. That was a suit in rem, by the wife of a passenger on a vessel, to recover damages for the death of her husband; and in deciding upon the sufficiency of a plea to the jurisdiction, the judge, after quoting a remark of Mr. Justice Clifford in The Steamboat Co. v. Chase, 16 Wall. 532, that "difficulties, it must be conceded, will attend the solution of this question, but it is not necessary to decide it in this case," retained the libel because, "as the case at bar will probably go to the Supreme Court of the United States, it will be better for all parties that the appeal should be taken after a trial upon its merits." Our decision in Insurance Co. v.