there is in admiralty courts acting at all under the jurisdiction conferred by the statute, as their jurisdiction at best is but a conferred one. No greater anomaly is perpetrated than is done in holding that admiralty courts have jurisdiction over actions in rem for causing the death of a person where the state statute gives a lien. This the supreme court has held can be done. In other matters not strictly maritime in their nature, where liens have been provided by the state legislature, admiralty courts have not hesitated to assume jurisdiction. If there is reason to doubt the power of admiralty courts to apply the act to torts not maritime, under the general provisions of the constitution conferring admiralty jurisdiction upon them, no substantial reason can be urged why the appropriate state or federal courts, as courts of law, cannot take jurisdiction of such actions where the vessel is engaged in interstate commerce, under the provisions of section 8, article 1, of the constitution, which authorizes congress to regulate commerce with foreign nations and among the several states. The supreme court have decided that the district courts cannot, as admiralty courts, administer the provisions of the act where the cause of action is not maritime. This decision does not, however, necessarily preclude the federal or state courts, as courts of law, from administering relief under the statute. The situation of docks, warehouses, bridges, abutments and other structures erected on the banks of or in the midst of navigable waters, rendering them the common source of collisions with vessels, but which are not within the admiralty jurisdiction of the courts, constitute one of the common perils of navigation. No other than a technical reason can be urged why the ship-owner, whose vessel collides with one of these, should not be entitled to relief as fully as one whose ship collides with another vessel. In both cases they are common perils of navigation, and should both be entitled alike to the relief afforded by the statute, whether the 1 Ex parte Phoenix Ins. Co., 118 U. S. 610, 618. person or thing damaged is upon the water or upon the land.1 In the case of a non-maritime tort, where the vessel is not employed on public navigable waters, the loss is not within the terms of the statute, and its owners cannot claim the benefits of the act. While the weight of authority undoubtedly is to the effect that the act is limited exclusively to matters over which admiralty courts have jurisdiction," the author is of the opinion that the supreme court will not sustain the limited interpretation this view imposes upon a final determination of the question, and that the court will hold that the act was intended to cover not only all liability arising from maritime losses, but also all other losses to which vessels are subject while employed on public navigable waters; that the statute created a new right, and that appropriate state or federal courts, as courts of law, are qualified and have the power, under the statute, to adopt such means as may be necessary to carry out the evident intent of the act. The terms of the statute do not limit it to maritime causes of action. Its object being to encourage shipbuilding, it should be liberally construed. It cannot be urged that, because congress by implication gave the district courts jurisdiction to apply the act, that therefore it limited it to matters over which admiralty courts are accustomed to assume jurisdiction. It is within the power of congress to confer on the district or other courts jurisdiction over any matter it sees fit where there is no constitutional provision to the contrary. The act is sufficiently broad to cover all losses where the personal negligence of the owner does not contribute to it." In re Vessel Owners' Towing Association Co., 26 Fed. R. 169, 172; The St. Nicholas, 49 Fed. R. 671. 2 The Garden City, 26 Fed. R. 766. 3 Goodrich Transportation Co. v. Gagnon, 36 Fed. R. 123; Salmon Falls Mfg. Co. v. Tangier, 6 Am. L. 4 Craig v. Continental Ins. Co., 26 Fed. R. 798. Losses by fire, collisions, personal injuries, are all such as may be relieved against by application to the proper court. 6 Sec. 215. Proceeding in rem.- The nature of the action under the statute partakes of the features of an action in rem. Although neither the statute nor the rules of the supreme court directly authorize a seizure of the vessel on filing the petition prescribed by the court, yet there can be no doubt of the authority of an admiralty court to so proceed under the general method of procedure characteristic of these courts. The manner of procedure suggested by the act is the one usually adopted, viz., by conveyance of the vessel to a trustee; the supreme court having held that a seizure under a process from the court is not necessary. The procedure further partakes of the nature of an action in rem; as where there is a fund in court, to be divided among the creditors of the ship; or where the ship is itself surrendered, and is in custody of the court. In so far as it is sought to restrain the personal actions of the creditors, it partakes of the nature of an action in personam. It may therefore be considered as a mixed action, partaking of the properties of an action in equity. The jurisdiction of the court does not depend upon the possession of the ship or the proceeds of its sale. It may take jurisdiction over the action although 1 Salmon Falls Mfg. Co. v. Tangier, 6 Am. L. Reg. 504; Providence, etc. Steamship Co. v. Hill Mfg. Co., 109 U. S. 578. 2 Norwich Co. v. Wright, 13 Wall. 104; Thomassen v. Whitwell, 9 Ben. 403; The Manitoba, 122 U. S. 97; The North Star, 106 U. S. 17; The Bristol, 29 Fed. R. 867. 3 The Epsilon, 6 Ben. 378: The Amsterdam, 23 Fed. R. 112; The City of Columbus, 22 Fed. R. 460; The Marine City, 6 Fed. R. 413. 4 Benedict's Adm., sec. 557. 5 The John Bramall, 10 Ben. 495. 6 In re Morrison, 147 U. S. 14, 34. 7 The Goodrich Transp. Co., 26 Fed. Rep. 713. 8 In re Morrison, 147 U. S. 14, 34; In re City of Norwich, 6 Ben. 330; In re Prov. & N. Y. S. S. Co., 6 Ben. 124. The proceeding to limit the liability is not an action against the vessel or freight, except where they are surrendered to a trustee. In re Morrison, 147 U. S. 14. the ship or the proceeds of its sale are without the district where the court is situated, where the petitioner stipulates for its value in compliance with the rules of court, or offers to surrender his interest in the vessel. The proceeding to limit the owner's liability is not an action against the vessel, or her freight, except where they are surrendered to a trustee. In this respect the proceeding differs from the ordinary case of an action in rem. The fund arising from an action in rem for the loss of a vessel represents the vessel itself. The same is true in a proceeding to limit the owner's liability, the fund paid into court, or stipulated for as the value of the ship, represents the vessel itself." Neither the Sec. 216. When the act may be invoked. statute nor the practice of admiralty courts limits the time within which the owner may avail himself of the provisions of the law. As the supreme court says in the case of The Benefactor: "Precisely when the owners of a ship in fault ought to be regarded as precluded from instituting proceedings for a limitation of liability might be difficult to state in a categorical manner. Perhaps they can never be precluded so long as any damage or loss remains unpaid. But in a particular case relief should not be granted except upon condition of compensating the other party for any costs and expenses he may have incurred by reason of the delay in claiming the benefit of the law. The institution of proceedings for limitation of liability must, however, be subject to some limitations growing out of the nature of the case. They must be regarded as ineffectual as to any specific party if not undertaken until after such party has obtained satisfaction of his judgment. The doctrine of laches, as applied in admiralty courts, would be properly applicable to such a case. The court would justly refuse its aid in compelling a return of money received. But the omission to take the benefit of the law in reference to a particular party ought In re Morrison, 147 U. S. 14; The Mendota, 14 Fed. R. 358. In re Leonard, 14 Fed. R. 53. 3 13 Otto, 239. not to preclude the owners of a ship from claiming its benefit as against other parties suffering loss by the collision. There may be many persons who have sustained but trifling losses, which the owners may be perfectly willing to pay, whilst at the same time they may have just ground for resisting the claims of others. In such cases a concession to the demands or a failure to resist the claims of one party ought not to conclude them as against the demands of the other parties." In the case of The Alpena' it was held by the district court of Illinois that "each voyage or trip, each separate journey which the ship makes from one port to another, must be treated as a separate venture, involving its own particular hazards, losses and earnings; and that when each voyage is ended, it is for the owner to decide whether the losses have been such as to make it expedient for him to invoke the protection given by this act of congress. If he does not decide to do this, but sends his ship upon a new voyage, he thereby concedes his personal liability for the damages incurred on the past voyage." It is hardly to be conceived that congress, in passing the act for the relief of ship-owners, intended to impose upon them the hardship the above reading of the law would inflict. There is nothing to indicate that the supreme court, in promulgating the rules of practice under this act, intended to prevent a party from having the benefit of the law, unless initiatory steps are taken for that purpose before the necessity for such a course arises, and before it appears that he is liable at all. Indeed it would be questionable if the court could exercise such power. Neither the law nor the rules of practice prevent a party from invoking the benefit of the act at any time prior to actual payment of the owner's liability and satisfaction of the injured party's demand. The rule stated in The Benefactor 2 affords the owner the most liberal opportunity to enjoy the provisions of the statute, 18 Fed. R. 280. See, also, The 213 Otto, 239. Percy Birdsall v. The Invertros socks, 55 Fed. R. 683. |