vessel that has done the injury returned to its own country, their remedy might be altogether lost; for she might never return, and, if she did, there is no part of the world to which they might not be sent for their redress.

In the subsequent case of The Griefswald, Swab. 430, decided by the same judge in 1859, which arose out of a collision between a British bark and a Persian ship in the Dardanelles, Dr. LUSHINGTON said: "In cases of collision, it has been the practice of this country, and, so far as I know, of the European states and of the United States of America, to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found, and this practice, it is manifest, is most conducive to justice, because in very many cases a remedy in personam would be impracticable.'

"

The subject has frequently been before our own admiralty courts of original jurisdiction, and there has been but one opinion expressed, namely, that they have jurisdiction in such cases, and that they will exercise it unless special circumstances exist to show that justice would be better subserved by declining it. It was exercised in two cases of collision coming before Mr. Justice BLATCHFORD, while district judge of the Southern district of New York: The Jupiter, 1 Ben. 536, and The Russia, 3 Ben. 471. In the former case, the law was taken very much for granted; in the latter, it was tersely and accurately expounded, with a reference to the principal authorities. Other cases might be referred to, but it is unnecessary to cite them. The general doctrine on the subject is recognized in the case of The Maggie Hammond, 9 Wall. 435, 457, and is accurately stated by Chief Justice TANEY in his dissenting opinion in Taylor v. Carryl, 20 How. 611.

As the assumption of jurisdiction in such cases depends so largely on the discretion of the court of first instance, it is necessary to inquire how far an appellate court should undertake to review its action. We are not without authority of a very high character on this point. In a quite recent case in England, that of The Leon XIII. L. R. 8 Prob. Div. 121, the subject was discussed in the court of appeal. That was the case of a Spanish vessel libeled for the wages of certain British seamen who had shipped on board of her, and the Spanish consul at Liverpool protested against the jurisdiction of the admiralty court on the ground that the shipping articles were a Spanish contract, to be governed by Spanish law, and any controversy arising thereon could only be settled before a Spanish court or consul. Sir ROBERT PHILLIMORE held that the seamen were to be regarded for that case as Spanish subjects, and, under the circumstances, he considered the protest a proper one, and dismissed the suit. The court of appeal held that the judge below was right in regarding the libelants as Spanish subjects; and on the question of reviewing his exercise of discretion in refusing to take jurisdiction of the case, BRETT, M. R., said: "It is then said that the learned judge has exercised his discretion wrongly. What, then, is the rule as regards this point in the court of appeal? The plaintiffs must show that the judge has exercised his discretion on wrong principles, or that he has acted so absolutely differently from the view which the court of appeal holds, that they are justified in saying he has exercised it wrongly. I cannot see that any wrong principle has been acted on by the learned judge, or anything done in the exercise of his discretion so unjust or unfair as to entitle us to overrule his discretion."

This seems to us to be a very sound view of the subject; and, acting on this principle, we certainly see nothing in the course taken by the district court, in assuming jurisdiction of the present case, which calls for animadversion. Indeed, where the parties are not only foreigners, but belong to different nations, and the injury or salvage service takes place on the high seas, there seems to be no good reason why the party injured, or doing the service, should ever be denied justice in our courts. Neither party has any peculiar claim to be judged by the municipal law of his own country, since the case is pre-eminently one communis juris, and can generally be more impartially

698.

and satisfactorily adjudicated by the court of a third nation having jurisdiction of the res or parties, than it could be by the courts of either of the nations to which the litigants belong. As Judge DEADY very justly said, in a case before him in the district of Oregon: "The parties cannot be remitted to a home forum, for, being subjects of different governments, there is no such tribunal. The forum which is common to them both by the jus gentium is any court of admiralty within the reach of whose process they may both be found." Bernhard v. Creene, 3 Sawy. 230, 235.

As to the law which should be applied in cases between parties or ships of different nationalities, arising on the high seas, not within the jurisdiction of any nation, there can be no doubt that it must be the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted. This rule is laid down in many cases; among others the following: The Johann Friederich, 1 Wm. Rob. 35; The Dumfries, Swab. 63; The Zollverein, Id. 96; The Griefswald, Id. 430; The Wild Ranger, Lush. 553; The Belle, 1 Ben. 320; The Scotia, 14 Wall 171; The Scotland, 105 U. S. 24, 29; The Leon, 6 Prob. Div. 148. In the case last cited, which was that of a British ship run down by the Leon, a Spanish ship, the question was specifically raised by the respondents, (the owners of the Leon,) who set up in defense that if there was any negligence in her navigation, her master and crew, and not her owners, were liable by the Spanish law. This defense was overruled, and the general maritime law, as understood and administered in England, was held to govern the case; by which law the owners were held responsible. The same rule was followed by this court in The Scotland, and was applied to the collision of a British with an American ship on the high, seas; although, it is true, we applied to that case the rule of limited liability established by the act of congress, regarding that act as declarative of the general maritime law to be administered by our courts.

The rule requiring the application of the general maritime law to such cases has some qualifications, which, though not affecting the present case, should always be borne in mind. One of these qualifications is that the persons in charge of either ship will not be open to blame for following the sailing regulations and rules of navigation prescribed by their own government for their direction on the high seas, because they are bound to obey such regulations. The Scotia, 14 Wall. 170, 184. Another qualification is that if the maritime law, as administered by both nations to which the respective ships belong, be the same in both in respect to any matter of liability or obligation, such law, if shown to the court, should be followed in that matter in respect to which they so agree, though it differ from the maritime law as understood in the country of the forum; for, as respects the parties concerned, it is the maritime law which they mutually acknowledge. The Scotland, 105 U. S. 24, 31.

The first of these qualifications can rarely be called into requisition at the present day, since, for more than 20 years past, all the principal maritime nations of the world (at least, those whose vessels navigate the Atlantic ocean) have concurred in adopting a uniform set of rules and regulations for the government of vessels on the high seas. These rules and regulations have become international, and virtually a part of the maritime law. Scotia, 14 Wall. 171, 187. They will be presumed to be binding upon foreign as well as domestic ships unless the contrary is made to appear.1

The

1 The International Rules of 1863-Abb. Shipp. (11th Ed.) App. CCCLXIX.; 13 Rev. St. 58-were revised by an order of council, in England, in August, 1879, to take effect from the first of September, 1880, and, as thus revised, have been adopted by most com mercial nations. See 4 Prob. Div. 241-249. They were adopted for both public and private vessels of the United States by act of congress approved March 3, 1885. Public act No. 100. They had been adopted for public vessels before. See Luce, Seamanship, (Ed. 1884,) 360.

*371

We are then brought to the question of the merits of the case between the parties as shown by the pleadings and finding of facts. And this does not require any extended discussion. It is shown that the bark had her proper lights burning brightly, visible on a dark night, and with a clear atmosphere, at least two miles; and that, in character and location, they conformed to the regulations of the bark's nationality, which are the same as those of the British board of trade, (or the international rules before referred to;) that the mast-head light of the steamer was sighted right ahead, distant about a mile; that the bark was kept steady on her course until the steamer was almost upon her and apparently about to run her down; that then the order was given to put the helm hard a-port; that in a few seconds the steamer's starboard light came in view, and in another instant she struck the bark in her port side, cutting her in two obliquely. In all this we see nothing that the people in charge of the bark did which it was not their duty to do by the international rules. It was their duty to keep her steady on her course, and it was the duty of the steamer to see the bark and to avoid a collision.

On the other side, it appears that the steamer, which was a large and powerful one, 416 feet long and 38 feet beam, was coming towards the bark, end on, at about 11 knots an hour; that she had a lookout on the lee side of her bridge, (which was over 150 feet from her bow,) where the officer in charge of the deck also was, but had no other lookout on duty. The rest of the watch, except the man at the compass and one at the wheel, were underneath the turtle-back, or top-gallant forecastle. No lookout was on the turtle-back, although it would have been entirely safe to station one there. The omission to do so was for the alleged reason that the vessel was plunging into a headsea, and taking so much water over her bows that he would have been of no use there. The bark was not seen by those in charge of the steamer until just at the instant of the collision; yet objects could be seen at a distance of from 500 yards to a mile, and 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 was reported to his room-mates long enough before the collision to enable the second steerage steward, who heard the report, to go up the companionladder, cross the deck, and reach the steamer's rail.

We think that these facts furnished a sufficient ground for the conclusions at which the court arrived, as before rehearsed; the substance of which was that the collision occurred by the negligence of those having charge of the Belgenland, in not seeing the bark, and in not taking the proper precautions due to such a night and such a sea, by reducing speed and keeping a sufficient lookout.

It is argued that there is no express finding of negligence or fault, as matter of fact, but only as an inference from the facts found. But we think that the facts found furnish such conclusive proof of negligence that it may be regarded as properly found among the conclusions of law as a legal inference from those facts. U. S. v. Pugh, 99 U. S. 265. The counsel of the appellants suppose that the court below found the Belgenland in fault on the mere presumption arising from the fact of collision, and the primary duty of the steamship to avoid it. But this is not a just view of the decision. There was much more in the facts of the case than the existence of such a presumption, as the foregoing rehearsal of the facts clearly shows. The ability to see objects at a distance; the fact that the men in charge of the steamer failed to see the bark, while a passenger did see her from his room; the fact that there was but one lookout for such a large steamer; that other lookouts could have been stationed on the turtle-back; the fact that the speed was not slackened, and no precautions taken to get a better view ahead;-these facts, in addition to the presumption arising from the steamer's duty, present a very different case from that supposed by the appellants. The decision of the court must

be taken as the collective result from the whole case. It cannot be judged from mere isolated expressions in the opinion.

The rule contended for by the appellants, that negligence and fault must be proved, and not presumed, is undoubtedly a sound one, and hardly needs cases to support it. But the circuit court evidently did not rest the case on presumption, but upon proof, from which it properly deduced negligence on the part of the steam-ship. At all events, this court, upon a careful consideration of the facts found, is satisfied that there was such negligence, and that it was the cause of the catastrophe.

The decree of the circuit court is affirmed, with interest to be added to the amount from the date of the same.

(114 U. S. 340)

EAST ALABAMA RY. Co. v. DOE ex dem. VISSCHER and others.

(April 13, 1885.)

RAILROAD COMPANY-EXECUTION-SALE of Right of WAY.

Various owners of lands in Alabama granted to a railroad corporation of that state, and its assigns," in 1860, a right of way through the lands, to make and run a railroad, the corporation having a franchise to do so and to take tolls; and it obtained a like right, as to other land, by statutory proceeding. It graded a part of the line. V., a judgment creditor of the corporation, in 1867, levied an execution on the right of way, and it was sold to V., and the sheriff deeded it to him, and he took possession of the road-bed. In 1870 he contracted with another railroad corporation to complete the grading of the line of road for so much per mile, and, on being paid, to transfer to it all his title to the franchise, right of way, and property of the old corporation. He completed the work, and was not paid in full, but gave possession of the road, in 1871, to the corporation, and its franchises and, road and property passed, in 1880, to another corporation, the defendant, against; whom V. brought an action of ejectment, to recover the road-bed. Held, (1) the? right of way could not be sold on execution, or otherwise, to a purchaser who did not own the franchise; (2) there was nothing in the contract to estop the defendant from disputing the right of V. to recover in ejectment, on the strength of his title; (3) V. could not recover.

In Error to the Circuit Court of the United States for the Middle District of Alabama.

Edward Patterson and H. C. Semple, for plaintiff in error. Sam. F. Rice, for defendants in error.

BLATCHFORD, J. In November, 1880, the defendants in error brought an action of ejectment, in the circuit court of Chambers county, Alabama, against the East Alabama Railway Company, to recover premises described in the complaint as follows: "A certain tract or parcel of land, being the railroad bed of the railroad, formerly known and called the East Alabama & Cincinnati Railroad,' from Lafayette to the county line of Lee county, together with all the land contiguous to said road-bed, on each side thereof, to the distance of 75 feet from the center thereof, said railroad being now known and called as the East Alabama Railway,' with the appurtenances, situate in the county of Chambers aforesaid." Lafayette is in Chambers county, and Lee county lies south of Chambers. The suit was duly removed by the company into the circuit court of the United States for the Middle district of Alabama. It was tried before a jury, in December, 1881, on a suggestion that the company had been in adverse possession of the premises for more than three years before the bringing of the suit, and had made permanent and valuable improvements by building a railroad thereon; and on the plea of not guilty. The jury found for the plaintiffs "for all the prop

erty described in the complaint," and assessed their damages at $3,963.40, and there was a judgment accordingly. The company brings a writ of error. The bill of exceptions sets forth all the evidence in the cause. The following are all the facts which it is needful to state: The Lafayette Branch Railroad Company was incorporated by the legislature of Alabama, February 7, 1848, to construct a railroad from Lafayette to intersect or connect with the Montgomery & West Point Railroad at some suitable point between Chehaw and West Point. By an amendatory act of April 9, 1854, the company was authorized to extend its road beyond Lafayette in the direction of the Tennessee river, and to connect the same with any railroad built, or being built, or to be built, so as to connect with some point on the Tennessee river. By an amendatory act of January 25, 1860, its name was changed to the Opelika & Oxford Railroad Company, and it was authorized to connect its road with the Alabama & Tennessee River Railroad at or near Oxford, Calhoun county. The companies were successively organized. In 1861 one Richards was elected president. The Opelika & Oxford Company acquired the right of way through the lands of all the proprietors of the soil, from a point on the Montgomery & West Point Railroad, about two miles northerly from Opelika, in Lee county, to Lafayette, by deeds from all the proprietors, (save in one case.) The deeds, except in the description of the land through which the road was to pass, were all in the form of the following one:

"MARY F. MCLEMORE TO OPELIKA & OXFORD R. R. Co.

"Alabama, Chambers County: This indenture, made this thirty-first day of August, in the year of our Lord one thousand eight hundred and sixty, between Mary McLemore, of Chambers county, of the one part, and the Opelika & Oxford R. R. Company, of the other part, witnesseth: That the said Mary F. McLemore, for and in consideration of the sum of one dollar to her in hand paid, at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, doth give, grant, bargain, and sell unto the said railroad company, and their successors and assigns, the right of way over which to pass at all times by themselves, directors, officers, agents, hirelings, and servants, in any manner they may think proper, and particularly for the • purpose of running, erecting, and establishing thereon a railroad with requisite number of tracks; and to this end the limit of said right of way shall extend in width fifty feet on each side of the slope stake of the right of way of the said railroad when completed, and to extend in length through the whole tract of land owned and claimed by said Mary F. McLemore, and known as the north half of section 23, township 22, of range 26, situated, lying, and being in Chambers county, adjoining lands of James F. Dowdell, Evan G. Richards, and Nolan J. Wright, and running in such direction through said tract of land as the said Opelika & Oxford Railroad Company, by their engineers, shall think best suited for the purpose of locating and establishing their works; and connected with the said right of way, the said company shall have the right to cut down and remove all such trees, underwood, and growth, and timber on each side of said road as would, by falling on or striking the same, injure the rails or other parts of said road, together with all and singular the rights, members, and appurtenances to the said strip, tract, or parcel of land being, belonging, or in anywise appertaining, and, more especially, the right of way over the same; to have and to hold the same unto the said Opelika & Oxford R. R. Company, their successors and assigns, to their own proper use, benefit, and behoof forever, in fee-simple, upon condition, and it is expressly understood, that should the said railroad contemplated as aforesaid be not located and established on and along said strip, parcel, or tract of land described in the above and foregoing indenture, then said indenture is to be wholly null and void, and of no effect; and the said Mary