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The cases of Preston v. Melville, 8 Clark & F. 1, and Blackwood v. The Queen, L. R. 8 App. Cas. 82, cited for the petitioner, relate only to the place in which personal property of a deceased person is to be administered, or is subject to probate duty. The petitioner, while admitting that the statement in the former opinion, that the domicile of the father was in Georgia, was a natural inference from the facts stated in the record, and that it is probable that the wards never acquired a domicile in any northern state, has now offered affidavits tending to show that the father's domicile, at the time of his death and for six years before, was not in Georgia, but in Florida; and has referred to statutes and decisions in Florida as showing that the law of that state in the matter of investments did not differ from the law of New York. St. Fla. Nov. 20, 1828, § 35; Thomp. Dig. 207, 208; Moore v. Hamilton, 4 Fla. 112, and 7 Fla. 44. But if, against all precedent, this new evidence could be admitted after argument and decision in this court, it would afford no ground for arriving at a different conclusion upon the merits of the case.
If the domicile of the father was in Florida at the time of his death in 1850, then, according to the principles stated in the former opinion, the domicile of his children continued to be in that state until the death of their mother in Connecticut in 1859. In that view of the case the question would be whether they afterwards acquired a domicile in Georgia by taking up their residence there with their paternal grandmother. Although some books speak only of the father, or, in case of his death, the mother as guardian by nature, (1 Bl. Comm. 461; 2 Kent, Comm. 219,) it is clear that the grandfather or grandmother, when the next of kin, is such a guardian. Hargrave's note 66 to Co. Litt. 886; Reeve, Dom. Rel. 315. See, also, Darden v. Wyatt, 15 Ga. 414. In S the present case, the infants, when their mother died and they went to the home of their paternal grandmother, were under 10 years of age; the grandmother, who appears to have been their only surviving grandparent and their next of kin, and whose only living child, an unmarried daughter, resided with her, was the head of the family; and upon the facts agreed it is evident that the removal of the infants after the death of both parents to the home of their grandmother in Georgia was with Lamar's consent. Under these circumstances there can be no doubt that by taking up their residence with her they acquired her domicile in that state in 1859, if their domicile was not already there. And there being no evidence that any of Lamar's investments had diminished in value before that time, it is immaterial whether the previous domicile of the wards was in Florida or in Georgia, inasmuch as the propriety of his investments was thereafter to be governed by the law of Georgia.
The law of any state of the Union, whether depending upon statutes or upon judicial opinions, is a matter of which the courts of the United States are bound to take judicial notice, without plea or proof. Owings v. Hull, 9 Pet. 607; Pennington v. Gibson, 16 How. 65; Covington Draw-bridge Co. v. Shepherd, 20 How. 227. And nothing has now been adduced tending to show that, as applied to the facts admitted by the parties, either the law of Georgia or the law of New York was other than we have held it to be.
The question whether, as matter of fact, Lamar acted with due care and prudence in making his investments, was argued at the former hearing, and no reason is shown for reopening that question.
(114 U. S. 355)
JACKSON and another v. JENSEN.1
(April 13, 1885.)
1. ADMIRALTY JURISDICTION-PARTIES OF DIFFERENT NATIONALITIES - JURISDICTION OF UNITED STATES COURTS.
The courts of the United States have jurisdiction in admiralty when the litigants are of different foreign nationalities, and the case, having arisen on the high seas, is one communis juris.
2. SAME-LAW TO BE APPLIED-CASE ARISING ON THE HIGH SEAS-PARTIES OF DIFFER ENT NATIONALITIES.
The law to be applied to cases arising on the high seas beyond the jurisdiction of any nation, and between parties or ships of different nationalities, is the general maritime law, as understood and administered in the country in which the case is tried.
Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.
Morton P. Henry, for appellants. Henry Flanders and J. Langdon Ward, for appellees.
♦ BRADLEY, J. This case grows out of a collision which took place on the high seas between the Norwegian bark Luna and the Belgian steam-ship Belgenland, by which the former was run down and sunk. Part of the crew of the Luna, including the master, were rescued by the Belgenland and brought to Philadelphia. The master immediately libeled the steam-ship on behalf of the owners of the Luna and her cargo, and her surviving crew, in a cause civil and maritime. The libel stated in substance that the bark Luna, of 359 tons, was on a voyage from Porto Rico to Queenstown, or Falmouth, with a cargo of sugar, and when in latitude 44°33′, and longitude 2143', was met by the steam-ship Belgenland, end on, between 1 and 2 in the morning, and was run down and sunk by her, only five of her crew escaping; that the light of the steam-ship was observed right ahead when a mile or more off; that the bark kept her course, as was her duty to do; and that the steam-ship took no measures to avoid her, but came on at full speed until she struck the Luna; and that the collision was altogether the fault of those in charge of the steam-ship.
The master of the Belgenland appeared for her owners, and filed an answer, denying that the Luna, at the time of the collision, was sailing on the course alleged, and averred that she was crossing the bows of the steam-ship, and must have changed her course, and that this was the cause of the collision, that the Luna was not discovered until the instant of the collision, when it was too late to alter the course of the steam-ship; and that the reason why the bark was not seen before, was that she was enveloped in a shower of rain and mist, and that the steam-ship was plunging into a heavy head sea, throwing water over her turtle-deck forward. The proctor for the Belgenland, at the time of filing his answer, excepted to the jurisdiction of the court, and stated for cause that the alleged collision took place between foreign vessels on the high seas, and not within the jurisdiction of the United States; that the Belgenland was a Belgian vessel, belonging to the port of Antwerp, in the kingdom of Belgium, running a regular line between Antwerp and the ports of New York and Philadelphia; and that the bark Luna was a Norwegian vessel, and that no American citizen was interested in the bark or her cargo. The district court decided in favor of the libelant, and rendered a decree for the various parties interested, to the aggregate amount of $50,
1 8. C. 5 Fed. Rep. 86; 9 Fed. Rep. 126, 576, and 16 Fed. Rep. 430.
278.23. An appeal was taken to the circuit court, which found the following, facts, to-wit:
"(1) Between one and two o'clock on the morning of September 3, 1879,* in mid-ocean, a collision occurred between the Norwegian bark Luna, on her voyage from Humacao, in Porto Rico, to Queenstown or Falmouth, and the steam-ship Belgenland, on a voyage from Antwerp to Philadelphia, which resulted in the sinking of the bark, in the total loss of the vessel and her cargo, and in the drowning of five of her crew.
"(2) The wind was between S. W. and W. S. W., and there was not much sea, but a heavy swell. The bark was running free, heading S. E. by E. half E., having the wind on her starbroad quarter. All her square sails were set except her main-royal, and she carried also her fore, main, and mizzen stay-sails and inner jib. Her yards were braced a little, her main sheet was down, but the weather-clew was up. She was making about seven and onehalf knots. Her watch on deck consisted of the first mate and three men; an able seaman was on the lookout on the top-gallant forecastle, and a capable helmsman was at the wheel. She carried a red light on her port side and a green light on her starboard side, properly set and burning brightly, which could be seen, on a dark night, and with a clear atmosphere, at least two miles. The character and location of these lights conformed to the regulations of the bark's nationality, which are the same as those of the British board of trade. About 1:45 o'clock the lookout sighted the white mast-head light of a steamer right ahead, distant, as he thought, about a mile, and reported it at once to the mate, who cautioned the man at the wheel to 'keep her steady and be very careful,' and the bark held her course. No side lights on the steamer were seen from the bark, but, as the vessels approached each other, the white light of the steamer gradually drew a little on the port bow of the bark for three or four minutes. The mate of the bark seeing the steamer's sails, and that she was heading directly for the bark, was close aboard of her, and reasonably apprehending that a collision was inevitable, ordered the bark's helm hard a-port. In a few seconds the steamer's starboard light came into view, and in another instant she struck the bark on her port side, cutting her in two obliquely from the after-part of her fore rigging to the fore-part of the main rigging.
"(3) The Belgenland was steering N. W. by W. half W. by compass, and making about eleven knots. Her second officer had charge of the deck, and his watch was composed of ten able seamen, two quartermasters, the second boatswain, and the fourth officer. One able seaman was stationed on the lee or starboard side of the bridge as a lookout. The second officer was on the bridge. The fourth officer was stationed at the after or standard compass, which was near the mizzen-mast, but at the time was on the bridge, having come there to report a cast of the log. A quartermaster was at the wheel. The rest of the watch were underneath the turtle-back or top-gallant forecastle. The steamer was four hundred and sixteen feet long and about thirty-eight feet beam. The bridge was one hundred and fifty or one hundred and eighty feet from her bow, and was six or seven feet higher than the top of the turtle-back, which was about twenty-five feet above the water. The steamer had her fore, main, and mizzen try-sails, fore stay-sails, and jib set and drawing, and probably her jigger also. She heeled to starboard from ten to fifteen degrees.
"(4) The only lookout on the steamer was on the bridge. None was on the turtle-back, although it would have been entirely safe to station one there, for the alleged reason that the vessel was plunging into a head sea, and taking so much water over her bows that he would have been of no use there. '(5) The bark was not seen by those in charge of the steamer until just at the instant of the collision, when the second officer saw her head sails just
across the steamer's bow, and the lookout in the lee side of the bridge saw her after-sails and stern.
"(6) The moon was up, but was obscured by clouds. There was no fog, but occasional rain, with mist, and the wind was blowing from the S. W. to W. S. W.
"(7) Objects could be seen at the distance of from five hundred yards to a mile. The mast-head light of the steamer was sighted, and at once reported by the lookout on the bark, at the distance of about a mile; the port light of the bark was seen by a steerage passenger on the steamer, looking out of his room just under the bridge, and reported to his room-mates long enough before the collision to enable the second steerage steward, who heard the report, to go up the companion ladder, cross the deck, and reach the steamer's rail; after the collision, the mizzen-mast of the bark was all of her above water, and this was distinctly seen from the steamer when she was at the distance of five hundred yards from it.
"(8) The damages caused by the collision were assessed at $50,248.23.' Upon these facts the court below deduced the following conclusions: "(1) That the vessels were approaching each other from opposite directions, upon lines so close to each other as to involve the necessity of a deflection by one or the other of them to avoid a collision.
"(2) That the lookout on the bark saw the steamer when she was nearly a mile distant, and she was held steadily on her course, and that she thereby fulfilled her legal obligation. Even if her helm was ported, it was at a time and under circumstances which did not involve any culpability on her part. "(3) That it was the duty of the steamer to keep out of the way of the bark, and, to that end, so to change her course as to preclude all danger of collision.
"(4) That the bark could and ought to have been seen by the steamer when they were sufficiently distant from each other to enable the steamer to give the bark enough sea-room to avert any risk of collision. In this failure to observe the bark the steamer was negligent.
"(5) No satisfactory or sufficient reason is furnished by the respondents' evidence for this failure of observation. If it resulted from the inattention of the steamer's lookout, or because their vision was intercepted by her fore try-sail, she was clearly culpable. If it is explicable by the condition of the atmosphere, no matter by what cause it was produced, it was the steamer's duty to reduce her speed, and to place a lookout on her turtle-back. An omission to observe these precautions was negligence. But, considering the proof that the bark held her course, and that the steamer might have seen her by proper vigilance, when suitable precaution against collision might have been taken, a mere speculative explanation of the steamer's presumptive culpability cannot be accepted as sufficient."
A decree was thereupon entered, affirming the decree of the district court in favor of the libelants for the sum of $50,748.23, with interest from March 25, 1881, amounting to $51,954.14, and costs. A reargument was had on the question of jurisdiction, and the court held and decided that the admiralty courts of the United States have jurisdiction of collisions occurring on the high seas between vessels owned by foreigners of different nationalities; and overruled the plea to the jurisdiction. The case is now before us on appeal from the decree of the circuit court.
The first question to be considered is that of the jurisdiction of the district court to hear and determine the cause. It is unnecessary here, and would be out of place, to examine the question which has so often engaged the attention of the common-law courts, whether, and in what cases, the courts of one country should take cognizance of controveries arising in a foreign country, or in places outside of the jurisdiction of any country. It is very fully discussed
in Mostyn v. Fabrigas, and the notes thereto in 1 Smith, Lead. Cas. 765; and an instructive analysis of the law will be found in the elaborate arguments of counsel in the case of the San Francisco Vigilant Committee, (Molony v.a Dows, 8 Abb. Pr. 316,) argued before Judge DALY in New York, 1859. We shall content ourselves with inquiring what rule is followed by courts of ad-* miralty in dealing with maritime causes arising between foreigners and others on the high seas.
This question is not a new one in these courts. Sir WILLIAM SCOTT had occasion to pass upon it in 1799. An American ship was taken by the French on a voyage from Philadelphia to London, and afterwards rescued by her crew, carried to England, and libeled for salvage; and the court entertained jurisdiction. The crew, however, though engaged in the American ship, were British-born subjects, and weight was given to this circumstance in the disposition of the case. The judge, however, made the following remarks: "But, it is asked, if they were American seamen would this court hold plea of their demands? It may be time enough to answer this question whenever the fact occurs. In the mean time, I will say without scruple that I can see no inconvenience that would arise if a British court of justice was to hold plea in such a case; or, conversely, if American courts were to hold pleas of this nature respecting the merits of British seamen on such occasions. For salvage is a question of jus gentium, and materially different from the question of a mariner's contract, which is a creature of the particular institutions of the country, to be applied and construed and explained by its own particular rules. There might be good reason, therefore, for this court to decline to interefere in such cases, and to remit them to their own domestic forum; but this is a general claim, upon the general ground of quantum meruit, to be governed by a sound discretion, acting on general principles; and I can see no reason why one country should be afraid to trust to the equity of the courts of another on such a question, of such a nature, so to be determined." The Two Friends, 1 C. Rob. 271, 278.
The law has became settled very much in accord with these views. That was a case of salvage; but the same principles would seem to apply to the case of destroying or injuring a ship, as to that of saving it. Both, when acted on the high seas, between persons of different nationalities, come within the domain of the general law of nations, or communis juris, and are prima facie proper subjects of inquiry in any court of admiralty which first obtains jurisdiction of the rescued or offending ship at the solicitation in justice of the meritorious or injured parties.
The same question of jurisdiction arose in another salvage case which came before this court in 1804. Mason v. The Blaireau, 2 Cranch, 240. There a French ship was saved by a British ship, and brought into a port of the United States; and the question of jurisdiction was raised by Mr. Martin, of Maryland, who, however, did not press the point, and referred to the observations of Sir WILLIAM SCOTT in The Two Friends. Chief Justice MARSHALL, speaking for the court, disposed of the question as follows: "A doubt has been suggested," said he, "respecting the jurisdiction of the court, and, upon a reference to the authorities, the point does not appear to have been ever settled. These doubts seem rather founded on the idea that upon principles of general policy this court ought not to take cognizance of a case entirely between foreigners, than from any positive incapacity to do so. On weighing the considerations drawn from public convenience, those in favor of the jurisdiction appear much to overbalance those against it, and it is the opinion of this court that, whatever doubts may exist in a case where the jurisdiction may be objected to, there ought to be none where the parties assent to it." In that case, the objection had not been taken in the first instance, as it was in the present. But we do not see how that circumstance can affect