compulsory or voluntary pilotage. One opinion ends: "I for one will not reopen the floodgates of admiralty jurisdiction upon the people of this country."

It has been pointed out more than once that the American jurisdiction in admiralty is not shackled by the chains riveted upon the English jurisdiction in consequence of the warfare of the common-law courts. The opinion recognizes this fact and dismisses the American decisions summarily from consideration, mentioning the fact that contracts of marine insurance are not cognizable by the English admiralty, though a recognized subject of jurisdiction in America. English cases on questions of jurisdiction. must therefore be used in America with great caution.

In fact, much of the reasoning in this case has been explained away in later cases."

In considering the special question whether a suit would lie in admiralty against a pilot, several decisions to the contrary are cited. An examination of them will show that they turned largely in the first place on the fact that the liability of an English pilot is limited by statute and is covered by a bond; and the English courts denied the admiralty jurisdiction over a sealed instrument. These decisions also hold that jurisdiction of suits against a pilot is not conferred by the statutes extending the jurisdiction of the admiralty; for they speak of "damage done by any ship," which does not cover negligent acts of a pilot.

After discussing these decisions, the opinion goes on to assert that, "from beginning to end, not a single case is to be found in the books which shows that the admiralty court ever entertained such a case as this against a pilot."

But in the later case of the Germanic," which was a libel in rem for a collision between two ships, an application was made to bring in a compulsory pilot as codefendant. The

78 Theta, [1893] A. C. 468.

74 [1896] P. 84.

court, not doubting its jurisdiction, refused the application solely on grounds of inconvenience.

The main case under discussion was published in 1892. In 1894 and 1897 the Selden Society published its "Select Pleas in Admiralty," constituting volumes VI and XI of its publications. They were edited by Mr. R. G. Marsden, and each volume contains an introduction which casts a flood of new light upon the early history of the English admiralty, which long had criminal as well as civil jurisdiction. They show many precedents of suits against pilots.""

The opinion in the main case questions the jurisdictionTM of the admiralty over a suit against the master personally for a collision.

But there are certainly precedents in England for suits against a master. In the Ruckers " Lord Stowell sustained a libel against a master by a passenger for an assault. He had the old records searched, and sustained jurisdiction. "in causes of damage between persons who were not connected by any relation arising from official situations on board the ship." This decision is cited with approval in the Zeta." If such a question is an open one in England, it certainly is not in America, as Supreme Court admiralty rules 15 and 16 recognize the right.

In the main case under discussion Kay, J. (at page 310), states as an argument against the jurisdiction that the locality test, if applied literally, would include a slander on the high seas, and the same illustration was used in Atlantic Transport Co. v. Imbrovek, heretofore cited. The Selden Society publication shows precedents for just such suits.78

751 Select Pl. Adm. (Introduction) lxvii, lxx [14]; Id. 102, 213. 64; 197. 2 Id. (Introduction) xxviii, xxix. See, also, the essay by Mears on the admiralty jurisdiction first published as the introductory chapter to Roscoe's Admiralty Jurisdiction, 1903, and republished in 2 Anglo-American History, 312, especially 327.

76 4 C. Rob. 73.

77 [1893] A. C. at p. 483.

78 1 Select Pl. Adm. (Introduction) Ixix, lxxxiii, 100, 212. The

And there are many precedents of suits for assaults."

In fact it is obvious that originally the admiralty had jurisdiction, not over torts alone, but over contracts made out of the realm (including the space between high and low water mark when the tide is in), for the reason, as expressed by Littleton, "Que chose fait hors del Royalme n'aient poet estre trié diens le Royalme per le secrement de 12" that things done out of the realm may not be tried within the realm by the oath of twelve men; in other words, by a jury of the vicinage.80

And so the reductio ad absurdum of the common-law warfare on the admiralty was the conclusion that in case of a murder committed between high and low water mark neither had jurisdiction if the party died on shore.81

And there is abundant authority for the proposition that admiralty has jurisdiction over torts committed on navigable waters, regardless of the presence or absence of a ship in the matter.8*

last reference, it is true, was a suit against the master, but if he is sued individually and not for any act connected with the management of his ship, what is the difference?

791 Select Pl. Adm. (Introduction) lxix, lxxxiii, 111, 217; 2 Id. [Introduction] xxviii-xxix, lxxii (153).

80 Godolphin, View of the Admiral Jurisdiction (Ed. 1685) pp. 92, 94, 103.

81 Lacy's Case, 2 Co. Rep. 93; 76 Eng. Rep. 616: also 1 Leon. 270; 74 Eng. Rep. 246. See, also, case of the admiralty, 13 Co. Rep. 51; 77 Eng. Rep. 1461. Sir Henry Constable's Case, 5 Co. Rep. 107; 77 Eng. Rep. 218.

82 See the charge of Sir Leoline Jenkins to his grand jury, 2 Browne Civil & Admiralty Law 463 et seq., especially 474, 483, and XXXXX 484. See, also, many instances in 2 Select Pl. Adm. such as obstructing the admiralty coroner (lxxii, No. 75), trespass on the foreshore "taking gould stones and sulphur stones" (lxxiv, No. 30), concealing valuables taken from a corpse ashore at Cuckmere Haven (lxxv, No. 47), damage to river wall at Blackwall whereby plaintiff's land was flooded (lxvi, No. 99), trespass to a muscle bed (lxvii, No. 60), and taking a sturgeon (lxxii, No. 118). See, also, 1 Laws Admiralty (Millar, London, 1746) for many instances (pp. 113-116),

DOCTRINE OF CONTRIBUTORY NEGLIGENCE

107. In awarding damages for personal injuries in admiralty, the common-law doctrine that contributory negligence bars recovery does not apply.

It will be seen, in connection with the law of collision, that, where both vessels are in fault, the damages are equally divided, regardless of the degree of fault of each vessel. In assessing damages for injuries to the person, the courts do not feel bound, as in collision cases, to divide them equally, but, where the party hurt is more negligent than the vessel, they may award him damages. The matter is largely in the discretion of the court.83

such as converting salt water to private use, obstructions to navigation, injuries to banks, docks, or wharves, "prejudices done to or by passengers on shipboard," and showing false lights, whether afloat or ashore.

§ 107. 88 Daylesford (D. C.) 30 Fed. 633; MAX MORRIS, 137 U. S. 1, 11 Sup. Ct. 29, 34 L. Ed. 586; Carter v. Brown, 212 Fed. 393, 129 C. C. A. 69.

CHAPTER X

OF THE RIGHT OF ACTION IN ADMIRALTY FOR INJURIES RESULTING FATALLY

108. Survival of Action for Injuries Resulting in Death-The General Common-Law Doctrine.

111. The English Doctrine as to Survival in Admiralty.

112. The American Doctrine as to Survival in Admiralty—Independent of Statute.

SURVIVAL OF ACTION FOR INJURIES RESULTING IN DEATH-COMMON-LAW

DOCTRINE

108. By the common law there was no right of action for injuries resulting in death.

109. CIVIL-LAW DOCTRINE-Neither was there any such right by the civil law in case of the death of a freeman.

110. CONTINENTAL DOCTRINE-The Continental nations, however, recognize such a right, both on land and water, and have recognized it for probably two centuries.

The Common-Law Doctrine

At common law there was no survival of a right of action for injuries inflicted by another causing death; the reasons assigned being that such an action was personal to the party