merce. v. G. N. & P. S. S. Co.1 furnishes another illustration of the regulating power of Congress with regard to comThe facts were, that Section 4283 of the Revised Statutes of the United States, as defined in its application by Section 4289, having limited to the amount of their interest the liability of vessel-owners as common carriers of goods, and the steamer Ventura, owned by the G. N. & P. S. S. Co., and plying on the high seas between San Francisco and San Diego, both on the coast of, and in the state of California, having been totally lost while carrying goods for Lord, he brought suit; the company set up by plea their discharge from liability under the Revised Statutes, and the judge at the trial having directed the jury that the statutes exonerated the defendant, if they should find that the case came within the terms of the statute, a verdict was found for the defendant, and after judgment thereon, a bill of exceptions was taken to the judge's direction, but the Supreme Court affirmed the judgment of the court below, on the ground that as the vessel, though engaged in commerce between two ports in the same state, navigated the high seas, she necessarily became subject to the regulating power of Congress.2 The commercial power as affecting navigation also authorizes congressional legislation with regard to the sale and mortgaging of ships and requires state regulations on that subject to yield when they conflict with those made by Congress. Thus in White's Bank v. Smith, the facts were, that the Act of Congress of 29 July, 1850, having declared that no mortgage of any vessel of the United States shall be valid against any 1 102 U. S. 541. 2 See Norwich Co. v. Wright, 13 Wall. 104, and The City of Norwich, 118 U. S. 468, in further illustration of Sections 4282-4289 Revised Statutes of the United States. 3 7 Wall. 646. 49 Stat. 440. person other than the mortgagor, his representatives, and persons having any actual notice thereof, unless such mortgage" be recorded in the office of the collector of customs where such vessel is registered or enrolled," and a statute of the state of New York having declared that no chattel mortgage should be valid as against the creditors of the mortgagor, or as "against subsequent mortgages in good faith" unless originally, and annually thereafter, filed in the clerk's office in "the town and city where the mortgagor shall then reside," Hoyt, a resident of Buffalo in the state of New York, on 22 May, 1863, executed a mortgage to White's Bank of his schooner Emmett, and the mortgage was on 13 June, 1863, recorded in the office of the collector of customs at Buffalo, where the Emmett was duly enrolled, 66 mortgage was also filed in and on 5 June, 1863, the the clerk's office of the city of Buffalo, but it was not filed therein annually thereafter. Hoyt sold the vessel to Zahm of Sandusky in the state of Ohio, and on 2 June, 1865, Zahm mortgaged her to Smith, and the Emmett having been duly enrolled in the office of the collector of customs at Sandusky, the mortgage to Smith was recorded in that office. Thereafter, the Emmett was sold under a paramount lien for sailors' wages, and the balance of the fund remaining after payment of the sailors' wages was claimed by both Smith and White's, Bank. The court below decided in favour of Smith, but the Supreme Court reversed that decree, and directed distribution to White's Bank, on the ground. that ships or vessels being "the creations of the legislation of Congress" and instrumentalities of commerce, Congress has, as incidental to its power of regulating foreign and interstate commerce, the power of prescribing the manner of selling and encumbering ships, and the requisites to the validity of conveyances and encumbrances thereof, and the laws of the states, when conflicting with such federal regulations, must give way, and, therefore, the mortgage to White's Bank, being prior in point of time to the mortgage to Smith, and having been duly recorded under the act of Congress, was not invalidated by the failure to renew annually its registration in the clerk's office of Buffalo under the law of New York. In Aldrich v. Ætna Co.,1 the ruling in White's Bank v. Smith was reiterated. In his judgment in the Lottawanna,2 Bradley, J., intimates that under the power to regulate commerce, Congress might create a maritime lien for supplies and repairs furnished to vessels in their home ports. While state legislatures cannot create maritime liens, nor confer jurisdiction upon their courts for the enforcement of such liens, as exempli gratia, liens of shippers under contracts of affreightment to be performed on navigable waters within the general jurisdiction of admiralty,3 nor can states authorize their courts to entertain suits for damages for the breach of contracts for the transportation of passengers on the high seas, nor proceedings in rem in cases of collision on navigable waters," yet, as the general maritime law does not recognize liens in favour of material men for supplies furnished to vessels in their home ports, or for materials furnished to ships in process of construction, the states may by statutes authorize such liens, and those liens may be enforced by proceedings in rem in the admiralty courts of the United States. On the same principle, as both at common law and in admiralty, the right of action for a tort is personal and dies with the person injured, 1 8 Wall. 491. 3 The Belfast, 7 Wall. 624. 5 The Hine v. Trevor, 4 Wall. 556. 2 21 Wall. 577. The Moses Taylor, 4 Wall. 411. 6 Edwards v. Elliott, 21 Wall. 532; The Lottawanna, ibid. 558. 3 and no action is maintainable for a tort causing death,' the right of action in such cases, when conferred by a state statute, is enforcible in a state court in case of death caused by collision in navigable waters, which are within the jurisdiction of the state and also within the admiralty jurisdiction of the United States, and it is also enforcible in the common law courts of the United States and in the admiralty courts of the United States,* In his judgment in Sherlock v. Alling 5 Field, J., says, "it is true that the commercial power conferred by the Constitution is one without limitation. It authorizes legislation with respect to all the subjects of foreign and interstate commerce, the persons engaged in it, and the instruments by which it is carried on. . . . The power to prescribe these and similar regulations necessarily involves the right to declare the liability which shall follow their infraction. Whatever, therefore, Congress determines, either as to a regulation or the liability for its infringement, is exclusive of state authority. But with reference to a great variety of matters touching the rights and liabilities of persons engaged in commerce, either as owners or navigators of vessels, the laws of Congress are silent, and the laws of the state govern. Until Congress, therefore, makes some regulation touching the liabilities of parties for marine torts resulting in the death of the persons injured, we are of the opinion that the statute of Indiana applies, giving a right of action in such cases to the personal representatives of the deceased, and 1 Higgins v. Bucher, Yelv. 89; Baker v. Boulton, 1 Camp. 493; Ex parte Gordon, 104 U. S. 515; Crapo v. Allen, 1 Sprague 184; sed. cf. Cutting v. Seabury, ibid. 522. 2 American Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Alling, 93 U. S. 99. 3 C. & N. W. Ry. v. Whitton, 13 Wall. 270. • Ex parte Gordon, 104 U. S. 515; Ex parte Ferry Co., ibid. 519. 5 93 U. S. 103. that, as thus applied, it constitutes no encroachment upon the commercial power of Congress." 34. There are three cases which illustrate clearly the necessary limitations upon the exercise by Congress of its power over subjects of commerce, and the equally necessary limitation of the implied restrictions upon state action. In the Trade-Mark Cases,' the question was as to the constitutionality of the acts of Congress of 14 August, 1876,2 and 8 July, 1870, which authorize the registration in the Patent Office of devices in the nature of trade-marks, make the wrongful use of a registered trade-mark a cause of action in a civil suit for damages, and punish by fine and imprisonment the fraudulent use, sale, and counterfeiting of registered trade-marks. The court in a judgment read by Miller, J., declined to decide, "whether the trade-mark bears such a relation to commerce in general terms as to bring it within congressional control, when used or applied to the classes of commerce which fall within that control, but held, that the statutes in question, not being limited in terms, or by the essential nature of their subject-matter, to the regulation of trade-marks in their relation to "commerce with foreign nations, and among the several states, and with the Indian tribes," they must be held to have been enacted in "the exercise of a power not confided to Congress," and are, therefore, unconstitutional. Prior to the judgment in the trade-mark cases, some of the Circuit Courts of the United States had sustained the constitutionality of the trade-mark legislation, and in McLean v. Fleming, Clifford, J., had said, "protection for lawful trade-marks may be obtained by individuals, firms, or corporations entitled to the 1 100 U. S. 82. 3 Rev. Stat. Sec. 4937 to 4947. 5 96 U. S. 248. 4 |