ined, and with great ability and research, by the Circuit Court of the United States for Massachusetts, in the Insurance case of De Lovio v. Boit. It was maintained, that in very early periods the admiralty jurisdiction, in civil cases, extended to all maritime causes and contracts, and in criminal cases to all torts and offences, as well in ports and havens within the ebb and flow of the tide, as upon the high seas; and that the English admiralty was formed upon the same common model, and was co-extensive in point of jurisdiction with the maritime courts of the other commercial powers of Europe. It was shown, by an exposition of the ancient cases, that Lord Coke was mistaken, in his attempt to confine the ancient jurisdiction of the admiralty to the high seas, and to exclude it from the narrow tide waters, and *from *368 ports and havens. The court agreed with the admiralty civilians, that the statutes of 13 R. II. and 15 R. II. and 2 H. IV., did not curtail this ancient and original jurisdiction of the admiralty, and that, consistently with those statutes, the admiralty might exercise jurisdiction over torts and injuries upon the high seas, and in ports within the ebb and flow of the tide, and in great streams below the first bridges; and also over all maritime contracts, as well as over matters of prize and its incidents. It appeared, from an historical review

the ground of uniform practice for half a century duly acquiesced in; but he admitted with great candour, that the jurisdiction on the admiralty side of the court might reasonably be questioned, though it was not for that court, under the extraordinary sanction given to the practice, to renounce it. In Wyman v. Hurlburt, 12 Ohio R. 81, the court waived the question whether the great lakes, above the ebb and flow of tides, were subject to the jurisdiction of the courts of admiralty. But now, by act of congress of February 26th, 1845, c. 20, the district courts have the same jurisdiction in matters of contract and tort, concerning steamboats and other vessels of 20 tons burden and upwards, enrolled and licensed for the coasting trade, and employed in business of commerce and navigation between ports and places in different states and territories, upon the lakes and navigable waters connecting said lakes, as is now exercised and possessed by the said courts in cases of like steamboats and other vessels employed in navigation and commerce upon the high seas, or tide waters within the admiralty and maritime jurisdiction of the United States. The maritime law of the United States, as far as the same is or may be applicable thereto, shall constitute the rule of decision in such suits, in the same manner and to the same extent, and with the same equities as it now does in cases of admiralty and maritime jurisdiction, with a saving of the right of trial by jury, and of a concurrent remedy at common law in competent cases.

of the progress of the controversy for jurisdiction, which lasted for two centuries, between the admiralty and the courts of common law, that the latter, by a silent and steady march, gained ground, and extended their limits, until they acquired concurrent jurisdiction over all maritime causes, except prize causes, within the cognizance of the admiralty. The common law doctrine was, that the sea, ex vi termini, was without the body of any county; but that all ports and havens, and all navigable tide waters, where one might see from one land to the other what was doing, were within the body of the county, and under the exclusive jurisdiction of the common law courts. On the sea-shore or coast, high and low water mark determined what was parcel of the sea, and what was the line of division between the admiralty and the courts of law; and it was held that it ought to be so considered, by parity of reason, where the tide ebbs and flows, in ports and havens; and that the admiralty jurisdiction extends to all tide waters in ports and havens, and rivers beneath the first bridges. It was admitted, however, that the common law originally had jurisdiction on the high seas, concurrent with the admiralty; and that in cases manifestly within the admiralty jurisdiction, both civil and criminal, the common law now claimed concurrent jurisdiction.

The result of the examination in that case was, that the jurisdiction of the admiralty, until the statutes of Richard II., extended to all maritime contracts, and to all torts, inju

ries and offences on the high seas, and in ports and *369 *havens, as far as the ebb and flow of the tide; that the common law interpretation of those statutes abridged this jurisdiction to things wholly and exclusively done upon the sea, but that the interpretation was indefensible upon principle, and the decisions founded upon it inconsistent; that the admiralty interpretation of those statutes did not abridge any of its ancient jurisdiction, and that interpretation was consistent with the language and intent of the statutes, and analogous reasoning, and public convenience. It was considered that the decisions at common law on this subject were not entitled to outweigh the decisions of the great civilians of the admiralty. The vice-admiralty courts in this country, under the colonial governments, exercised a most ample jurisdiction, to the extent now claimed, over all

maritime contracts, and over torts and injuries, as well in ports as upon the high seas; and the constitution of the United States, when it conferred not only admiralty but maritime jurisdiction, added that word ex industria, to remove every latent doubt. This large and liberal construction of the admiralty powers of the district courts, and their extension to all maritime contracts, torts and injuries, was recommended by the general equity and simplicity of admiralty proceedings, and the policy and wisdom of that code of maritime law, which had embodied the enlightened reason of the civil law, and the customs and usages of the maritime nations, and regulates by its decisions, the commercial intercourse of mankind.a

This enlarged extension of the civil jurisdiction of the admiralty, as declared in the Circuit Court in Massachusetts, remains to be discussed, and definitively settled, in the Supreme Court. (1) It has been subsequently and frequently

a

Judge Story stated, in this case, that all civilians and jurists agreed that maritime contracts included, among other things, charter-parties, affreightments, marine hypothecations, contracts for marine service in the building, repairing, supplying and navigating ships, contracts between part owners of ships, contracts and quasicontracts, respecting averages, contributions, and of missions and policies of insurance. He said that admiralty courts of other foreign countries, had exercised jurisdiction over policies of insurance as maritime contracts.

(1) The subject came before the Supreme Court in New-Jersey S. N. Co. v. Merchants' Bank, 6 How. R. 344, and was much considered. A decree of the C. C. of R. Island, in admiralty, upon a libel in personam, against a steamboat company for the loss by fire of specie carried in their boat, was affirmed by a majority of the court. It was considered by Mr. Justice Neilson, in delivering the opinion of the court, (p. 386) that the grant of power in the constitution could not have had reference to the admiralty jurisdiction exercised in England at the time of the formation of the constitution; and even if such was to be regarded as the fact, it was shown that the practical construction given to the constitution, both by the legislative and judicial departments, had asserted and upheld a much more comprehensive jurisdiction. A line of jurisdiction had been established which fully embraced the contract in question. Mr. Justice Woodbury (p. 377) concurred in the judgment of the court below, not on the ground of a breach of contract which gave admiralty jurisdiction, but on the ground that the cause of action was a marine tort. Mr. Justice Daniel gave an elaborate dissenting opinion, in which he considered the ground of the libel to be a breach of an express contract over which admiralty has no jurisdiction, either in personam or in rem, p. 416. See, also, Waring v. Clarke, 5 How. R. 441, where the same general principles are established. It was held, that admiralty has jurisdiction in cases of tort and collision as far up rivers as the tide ebbs and flows, although it may be infra corpus comitatus. The clause in the judiciary act saving to suitors' common law remedies in certain cases, means that, in cases of concurrent common law and admiralty jurisdiction, the common law jurisdiction is not taken away.

But where a vessel was lost by being run on shore in order to save the lives of the crew, and a libel in personam was filed by the owner of the vessel against the consignee of the cargo, for a contribution by way of general average, it was held, that the admiralty courts of the United

asserted in the circuit and district courts. Thus in Plumer v. Webb,a the jurisdiction of the admiralty over all *370 maritime contracts upon the doctrine of the case *of De Lovio v. Boit, was declared, and it was considered, that inasmuch as courts of admiralty act as courts of equity and administer justice upon the same principles, and with equal safety, maritime contracts were suitable objects of such a jurisdiction; and especially as such contracts require a liberal interpretation and enlarged good faith, and the application of a comprehensive equity. So in Steele v. Thatcher, and Drinkwater v. The Brig Spartan, in the District Court for Maine, the doctrine in De Lovio v. Boit was explicitly recognised as sound. It was declared to have been before the public for twelve years, without having its reasoning met, or its conclusions shaken; and it was adjudged that the admiralty had a general jurisdiction over maritime contracts; and the circumstance that the contract was under seal did not affect the jurisdiction, though it was admitted, that in England the courts of law would grant a prohibition in such a case. The broad jurisdiction of the American courts of admiralty, over all executed maritime contracts, (for the jurisdiction is confined to executed contracts,c) and all cases of a maritime nature, has been equally asserted in the circuit courts of the United States at New-York and Philadelphia, founded on the language of the constitution, and the judiciary act of 1789. This enlarged admiralty cognizance of civil causes was elaborately vindicated, on principles of reason, as well as on the ground of authority, in the case of the Schooner

a 4 Mason's Rep. 380. b1 Ware's Rep. 91. 149.

3 Mason's Rep. 16, 17.

The Sloop Mary, 1 Paine's Rep. 673. Wilmer v. The Smilax, and Davis & Brooks v. Brig Seneca, in the Circuit Court of the Pennsylvania district.

States had not jurisdiction. Jurisdiction is confined to cases where the vessel or cargo, under the maritime law, is subject to an absolute lien in the hands of assignees; in cases of general average the lien is a qualified one, depending upon possession of the goods, and ceases when they are delivered over to the consignee. Cutler v. Rae, 7 How. R. 729. This important constitutional question was decided without argument. Mr. Justice Wayne expressed a determination not to regard the decision as an authority, should the question again arise. In the United States v. The New-Bedford Bridge, 1 Wood & Minot's R. 401. Mr. Justice Woodbury has given the subject of admiralty jurisdiction a most learned and exhaustive examination. His opinion fills more than one hundred pages of the report.

Tilton. It was there held, that the admiralty had jurisdiction of all causes of a maritime nature, inclusive of questions of prize, whether they arose from contracts or from torts. The jurisdiction was clear, in all matters that concerned owners and proprietors of ships, as such. It was observed that suits in the admiralty, touching *property *371 in ships, were either petitory suits, in which the mere title to the property is litigated and sought to be enforced, or they were possessory suits, to restore to the owner the possession, which he had under a claim of title. The jurisdiction over both classes of cases was exercised by the admiralty, until some time after the restoration in 1660, when the courts of law interfered, and claimed the exclusive cognizance of mere questions of title; and the admiralty jurisdiction over petitory suits has been, in England, abandoned for a considerable length of time, though it is constantly upheld as to possessory suits. The distinction does not appear to rest on any sound principle, for the question of title is necessarily involved in that of the possession; and it is admitted by the courts of law, that the admiralty possesses authority to decree restitution of a ship unlawfully withheld by a wrong doer from the real owner. In the case of illegal captures, and of bottomry, salvage and marine torts, the admiralty courts in this country inquire into and decide on the rights and titles involved in the controversy; (1) and where they have jurisdiction of

5 Mason's Rep. 465. It is not disputed that courts of admiralty have jurisdiction over charter-parties and maritime contracts generally, but not over preliminary contracts leading thereto. Andrews v. Essex F. & M. Ins. Company, 3 Mason's R. 6. The Schooner Tribune, 3 Sumner's R. 144. (2)

Haly v. Goodson, Merivale's Rep. 77. Lord Stowell, in the cases of The Aurora, 3 Rob. Adm. Rep. 133. 136; The Warrior, 2 Dodson's Rep. 288; and The Pitt, 1 Hagg. Adm. Rep. 240. 2 Bro. Civ. and Adm. Law, 114, 115.

In the matter of Blanshard, 2 Barnw. & Cress. 244.

(1) It is held, that courts of common law have jurisdiction to determine questions of salvage. They may entertain suits to redeem property claimed to be held by a salvage lien, if no suit is pending in admiralty. Cashmere v. De Wolf, 2 Sandf. (Law) R. 379.

(2) Admiralty, it is said, has no jurisdiction to enforce the specific performance of an agreement relating to maritime affairs. Davis v. Child, 1 Davies' Dist. Ct. Rep. 71. But see, ante, p. [369,] note (1). In the English admiralty, in a case where A. signed shipping articles and entered as mate, and the articles contained an agreement that he should enter on a voyage to Gallatz, and then be discharged, it was held, that the contract being special, the court had no jurisdiction to award what was due on the breach. The Debreczia, 12 Jurist R. of S. 143, 1848. The ship did not sail on the voyage.