THE AMERICAN DOCTRINE AS TO SURVIVAL IN ADMIRALTY-INDEPENDENT OF STATUTE

112. In America there is, independent of statute, no right of action in the admiralty for death injuries.

In' the United States the decisions have been far from harmonious. In our dual system of laws, we must consider the question independent of state statute, and also as affected by such statutes.

Some of the District Judges, when the question came before them, decided that the common-law doctrine did not govern the admiralty courts; that it was not consonant with natural justice; and that the widow and children had a natural right to damages. Hence they sustained suits by the widow and children, not by the administrator, even in states that had enacted Lord Campbell's Act.11

The question first came before the Supreme Court in Ex parte Gordon,12 decided in 1881. A libel had been filed in a District Court against a vessel for a death caused by a marine collision. A writ of prohibition was asked to restrain the court from entertaining the case as one beyond its cognizance. The Supreme Court decided that, as collision was a marine tort, the District Court had jurisdiction over the subject-matter; that whether to consider this special claim was a question of the exercise, not of the existence, of jurisdiction; that the lower court could pass upon such a question; and that the proper way to raise it was by appeal. This, therefore, settled nothing.

One branch of the question was presented squarely in the HARRISBURG,18 decided in 1886. That was a collision

§ 112. 11 Sea Gull, Chase, 145, Fed. Cas. No. 12,578; Highland Light, Chase, 150, Fed. Cas. No. 6,477.

12 104 U. S. 515, 26 L. Ed. 814.

18 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358.

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between the schooner Tilton and the steamer Harrisburg, a Pennsylvania steamer, in Massachusetts waters, in which the mate of the Tilton, a citizen of Delaware, was killed. His widow and child libeled the steamer in the United States District Court at Philadelphia. Both Massachusetts and Pennsylvania had statutes giving suits to the administrator, but these were held inapplicable, as the libel had not been brought within the time required by those statutes.

Chief Justice Waite reviewed the American decisions, and held that the rule of the common law against the right was well established, and that there was nothing to show that the rule of the admiralty law was different; and he held that, independent of statute, the right of action did not exist, reserving the question whether a statute could give it. This and the subsequent case of the Alaska 11 settle that the right of action does not exist independent of statute.

Then came the CORSAIR," decided in 1892. It was a libel in rem against a Louisiana steamer by the parents of a passenger killed by the negligence of the steamer in Louisiana waters. The claim was based upon the sections of the Louisiana Code providing for the bringing of actions for injuries resulting in death. The court held that the statute was evidently not intended to give a remedy in rem, and that, therefore, the court had no jurisdiction of the case. The opinion, however, seems to consider that an action in personam could have been sustained, though this was not necessary to the decision.

In the Hamilton 16 the Supreme Court entertained jurisdiction of claims for loss of life filed in a limited liability proceeding, and intimated again that a proceeding in personam could be resorted to, though it was not necessary to the decision. As a limited liability proceeding stops any other, whether in a state or federal court, and compels all cred

14 130 U. S. 201, 9 Sup. Ct. 461, 32 L. Ed. 923. 18 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed. 727. 16 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264.

itors, whether lien creditors or not, to come in, this settles nothing as to the power to establish such a right of action in admiralty by statute.

Hence the question must next be considered, first, in reference to state power of legislation; and, second, in reference to congressional power of legislation.

SAME UNDER STATE STATUTES

113. A state statute may give a remedy for death injuries, enforceable by proceedings in rem or in personam

in the admiralty courts, or by ordinary suit in the common-law courts.

The mere fact that a state statute may affect a ship or subjects over which admiralty has jurisdiction does not invalidate it. There are many cases where there are concurrent remedies in the state and admiralty courts. Hence there can be no question of the right of a state to give the remedy by common-law action, even for a cause of action maritime by nature. In American S. B. Co. v. Chase,17 decided in 1872, which was a suit at common law for a death in the waters of Rhode Island caused by a marine collision, the Rhode Island statute giving the right of action at common law was held valid, notwithstanding the point made by defense that the cause of action was maritime by nature, and that the statute was an infringement of the exclusive admiralty jurisdiction of the federal courts. The court forbore to decide whether it was maritime or not, but held that the state could authorize a common-law action in either case.

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In Sherlock v. Alling, decided in 1876, an Indiana statute to the same effect was attacked on another ground. It was claimed to violate the commerce clause of the federal

§ 113. 17 16 Wall. 522, 21 L. Ed. 369.

18 93 V. S. 99, 23 L. Ed. 819.

Constitution, as imposing a new burden on commerce. But the court held that it affected commerce only indirectly, and that in such matters the states could legislate as long as Congress failed to legislate on the subject.

Hence, as far as this special subject is concerned, the power of a state to legislate, in the absence of legislation by Congress, is clear, subject to certain restrictions.

This is, subject to the qualification, explained in a former connection,1o that a state cannot give to its courts an action in rem pure and simple to enforce a maritime cause of action.

The power of a state to legislate in matters of admiralty cognizance has been frequently considered. In Ex parte McNiel,20 the court says that, though a state statute cannot confer jurisdiction on a federal court, it may give a substantial right, which is enforceable in the proper federal court, whether equity, admiralty, or common law, according to the character of the right given. In other connections the court has decided that, if the subject-matter is maritime a state statute may annex a right in rem, enforceable in the admiralty court. It may give its courts jurisdiction even of admiralty matters, provided it does not give them an admiralty procedure in rem. Hence a state statute giving a right of action in rem for supplies and repairs on domestic vessels is valid as long as it leaves the power of enforcing the same by pure proceedings in rem to the federal courts.2 21

But a state statute giving a right of action in rem for building a ship does not confer such a power of enforcement on the federal courts, as such a transaction is not maritime by nature, and the states cannot change the nature of an action from nonmaritime to maritime.2 22

19 Ante, pp. 29, 110.

20 13 Wall. 236, 20 L. Ed. 624.

21 Glide, 167 U. S. 606, 17 Sup. Ct. 930, 42 L. Ed. 296.

22 Roach v. Chapman, 22 How. 129, 16 L. Ed. 294.

For the very reason that it is not maritime they can give a remedy in rem to their own courts to enforce a shipbuilding contract, as the power of the states over matters not maritime is not restricted by the constitutional provisions giving the federal courts exclusive cognizance of cases of admiralty and maritime jurisdiction.28

A further limit on the state power of legislation over admiralty subjects has been added by recent decisions of the Supreme Court. Heretofore it has been the usual, if not universal, understanding as to the Supreme Court decisions that, if a state statute creates a right of action in connection with subjects maritime by nature, an admiralty court would recognize it and enforce it by its own peculiar procedure, and that, if the subject is maritime by nature, the limit as to state legislation was simply on its power to interfere with the exclusive jurisdiction of an admiralty court in rem

But in Southern Pacific Co. v. Jensen 24 the court went far beyond this. It held that a state law could not "work material prejudice to the characteristic features of the general maritime law, or interfere with the proper harmony and uniformity of that law in its international and interstate relations," and it held that a common-law court in the trial of a case was required to apply the doctrines of admiralty law, if the case was of a maritime nature, regardless of a state statute purporting to affect it.

It repeated the ruling in two later cases.25 As there was in ordinary cases no established admiralty rule as to injuries resulting in death, this additional qualification would not affect the state power of legislation over such cases, as

28 Edwards v. Elliott, 21 Wall. 532, 22 L. Ed. 487; North Pacific S. S. Co. v. Hall Bros. Marine Ry. & Shipbuilding Co., 249 U. S. 119, 39 Sup. Ct. 221, 63 L. Ed. 510.

24 244 U. S. 205, 37 Sup. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900.

25 Chelentis v. Luckenbach S. S. Co., 247 U. S. 372, 38 Sup. Ct. 501, 62 L. Ed. 1171; Union Fish Co. v. Erickson, 248 U. S. 308, 39 Sup. Ct. 112, 63 L. Ed. 261.