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Cortejo v. American R. Co.

Judges Evans of Kentucky and McCall of Tennessee have recently held this act unconstitutional because, as alleged, it embraces intrastate as well as interstate causes of action, and because it is impossible, as it is said they claim, to separate the valid from the invalid portions, and therefore they feel constrained to discard the whole of it.

Sutherland, in his work on Statutory Construction, states, in § 169, that statutes may be void in part and good in part, and that: "If one provision of an enactment is invalid and the others valid, the latter are not affected by the void provision, unless they are plainly dependent upon each other, and so inseparably connected that they cannot be divided without defeating the object of the statute."

Whatever may be the power of Congress under the now much discussed commerce clause of the Constitution, we do not think that, as to a territory or any dependency substantially within the meaning of that term when used in general legislation by Congress, its power depends on the commerce clause. On the contrary, Congress derives and has supreme power as to territories and dependencies because of that clause of the Constitution empowering it to make all needful rules and regulations with reference to the territory or other property of the United States. So that, without reference to whether the said act of Congress is constitutional as to the states, it is, by its very terms, unquestionably the supreme law of the land in, and binding upon, all courts in the territories of the United States, and in all dependencies that can be comprehended within that

term.

Several months ago, in a cause in this court, No. 396, entitled, Peck S. S. Line v. New York & P. R. S. S. Co. ante, 109, we took considerable pains to demonstrate, and held, that Porto

Cortejo v. American R. Co.

Rico, for all practical purposes, as to the applicability of general laws of Congress not locally or by their own terms inapplicable, is a territory, and such laws are in force here.

For the reasons set forth in that opinion, and because we think it broad enough in terms to apply here, and can see nothing about it that is locally inapplicable, we hold that the national employers' liability act, referred to, is constitutional as to, and is in force in, Porto Rico; and as it became a law some four months before the six months statute of limitations in this particular case had expired, it extended the same to the period of one year from the date of the injury, and we feel that this national legislation is prospective as to the remedy, even if it should not be retrospective as to the injruy itself, but left the local law in force as to that, and therefore it is the supreme law on that subject in this district.

For these reasons, the demurrer will be sustained on the ground that the plaintiff has no right to sue for support, because the action lies to the injured boy himself to sue at once by his next friend or wait until he has attained his majority, and sue by himself in his own right; and it is so ordered.

NATIVIDAD LOPEZ Y ROS

v.

THE NEW YORK & PORTO RICO STEAMSHIP COMPANY.

San Juan, Law, No. 424.

1. The district court of the United States for Porto Rico has jurisdiction

Lopez y Ros v. New York & P. R. Steamship Co.

on its law side of a suit in personam against a steamship company for injuries caused to a workman engaged in lightering freight from one of its steamers anchored in a harbor.

2. Unless in such a suit plaintiff seeks to libel the vessel it need not be prosecuted in admiralty.

Opinion filed March 8, 1907.

Messrs. Henry F. Hord and Juan Guzman Benitez, attorneys for plaintiff.

Messrs. Pettingill & Leake, attorneys for defendant.

RODEY, Judge, delivered the following opinion:

This suit is brought in this court as a district court of the United States, and not in it as a court of admiralty. The plaintiffs, Natividad Lopez y Ros and Zenon Lopez y Ros, are small children, two years and less than one year of age, respectively. They sue by their mother, Ramona Ros, and are alleged to be citizens of, and residents in, Porto Rico. The defendant is alleged to be a New York corporation, engaged in running steamboats and carrying on a freight and passenger business between Porto Rico, New York, and other places, but having an office in Porto Rico and an agent therein, upon whom service of process can be made.

The action is one for damages for the death of Eugenio Lopez, the father of the children, which is said to have occurred on the 19th day of September, 1906, in the port of Fajardo, in said island, and which occurred, as is alleged, through the negligence of the defendant, by the breaking of a chain used in the tackle by which a long stick of piling was being unloaded

Lopez y Ros v. New York & P. R. Steamship Co.

from the defendant's steamboat "Porto Rico," in said port or bay, into a lighter, and which said stick of timber fell upon and killed the said Lopez. It is understood that the deceased was not in the employ of the defendant, but was working for a lighter company that was either unloading or receiving the freight from the ship. The occurrence which resulted in the death took place well out in the bay, wholly disconnected from shore. It is not in any sense a proceeding in rem. Direct . service on the defendant has been had and a straight judgment is asked without any reference to the ship.

Counsel for the defendant first answered and then filed an amendment to the answer, which is a suggestion that amounts to a motion to dismiss for want of jurisdiction, on the ground that the suit should be brought in admiralty, even though it is in no sense a proceeding in rem, and in support of this motion, cites us to the following cases: The Hine v. Trevor (The Ad. Hine v. Trevor) 4 Wall. 555, 18 L. ed. 451; Moran v. Sturges, 154 U. S. 276, 38 L. ed. 987, 14 Sup. Ct. Rep. 1019; Panama R. Co. v. Napier Shipping Co. 166 U. S. 280, 41 L. ed. 1004, 17 Sup. Ct. Rep. 572, and several others.

Against the motion, counsel for plaintiff cites us, among other cases, to American S. B. Co. v. Chase, 16 Wall. 522, 21 L. ed. 369; The Glide, 167 U. S. 606, 42 L. ed. 296, 17 Sup. Ct. Rep. 930; Knapp, S. & Co. Co. v. McCaffrey, 177 U. S. 638, 44 L. ed. 921, 20 Sup. Ct. Rep. 824; and 4 Fed. Stat. Anno. 222.

We have examined not only the authorities to which we are thus referred, but many others to which they refer, and some of the arguments and citations are quite exhaustive. We are, in fact, surprised to find that a question as important as this does not seem to be clearly settled by the Supreme Court of

Lopez y Ros v. New York & P. R. Steamship Co.

the United States, or to have any very appreciable preponderance of authority on either side, either at circuit or in the state courts. Even in the Knapp Case, supra, which is the latest voice of the Supreme Court on slightly analogous facts, the rule laid down in the closing paragraph is not stated so as to aid us very much.

It can be gathered, though, from all the authorities, that, whenever the proceeding is one strictly in rem, it is exclusively of admiralty jurisdiction, even though in such a case the owner of the ship should be cited personally. But we also gather from the authorities that where, as in this case, the suit has no necessary connection with admiralty jurisdiction, as generally understood, and does not seek in any manner to subject the steamboat or the vessel to the payment of the judgment, and the suit is not aided by any attachment, it is within the exception in § 553 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 449), and plaintiffs have a right to proceed on the law side of this court, just as would be the case where seamen are suing for their wages.

While the facts were somewhat different, Mr. Justice Brown, as recent as 1899, in the Knapp Case, supra, cites with approval the doctrine laid down in Leon v. Galceran, 11 Wall. 185, 20 L. ed. 74, and in American S. B. Co. v. Chase, supra, and also states that in Schoonmaker v. Gilmore,. 102 U. S. 118, 26 L. ed. 95, it was held that courts of admiralty had no exclusive jurisdiction of suits in personam growing out of collisions. The Galceran Case was a suit in a state court of Louisiana to recover seamen's wages, and the jurisdiction was sustained, even though the suit was aided by an attachment on a schooner under a statute there. In the Chase Case, the jurisdiction of the state court was also sustained under a statute

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