destroyed by fire.

9th. They denied that the cotton was improperly stowed; that the engine, machinery, etc., were imperfect and insufficient; that the officers carelessly, improperly, or negligently managed the boat; or that by reason of these things the boat was lost. The contrary of all these things was averred; and they further averred, that they had complied with the requisitions of the Act of Congress passed on the 7th of July, 1838.

353*] *In verification of this last averment, they filed the inspection certificate, dated on September 23d, 1839.

On the 18th of October, 1842, the District Court pronounced a pro forma decree, dismissing the libel with costs, from which an appeal was taken to the Circuit Court.

Under the authority of the Circuit Court, commissions to take testimony were issued, under which a vast mass of evidence was taken on both sides.

The libelants offered evidence to prove the following positions. That the furnaces were unsafe and insufficient; that there was no proper casing to the steam chimney, nor any safe lining of the deck where the chimney passed through; that dry pine wood was habitually kept in a very exposed situation; that, especially, there was a very improper stowage or disposition of the cargo on board, considering what that cargo was; that the boat had no tiller chain or rope, such as the act of Congress, as well as common prudence, required; that there were on board no fire buckets, properly prepared and fitted with heaving lines; that the fire engine was in one part of the boat, while the hose belonging to it was kept or left in another, and where it was inaccessible when the fire broke out; and that in other respects the respondents were guilty of negligence the more culpable, as the same boat had actually taken fire in her last preceding voyage, and no measure of caution had been taken to prevent a recurrence of the accident.

The respondents, on the contrary, offered evidence to rebut that adduced in support of the above, and particularly that the boat, hull, engine, boiler, and general equipment were good; that the most experienced men had been employed, without regard to expense, in putting her into complete order; that she had a captain, pilot, and crew equal to all ordinary occasions, and that respondents were not liable if they did not prove fit for emergencies which might appall the stoutest; that the boat was well found in tool chests; that there were on board a suction hose, fire engine, and hose, as required by the act of Congress, that they were stowed in a proper place; that sufficient reasons were shown why they were not available at the fire; that there were three dozen and a half of fire buckets on board; that the steering apparatus was good; that the loss of the boat did not result from her not having "iron rods and chains" instead of "wheel or tiller ropes"; that the parting of the wheel ropes, if occasioned by the fire, did not contribute at all to her loss.

and general equipment were

At November Term, 1843, the cause came on to be heard before the Circuit Court, when the court pronounced the following decree:

"This cause came on to be heard upon the

and testimony in the case. The respondents submitted to a decree.

"Whereupon it is ordered, adjudged and decreed, that the said libelants have and recover of the said respondents the sum of twenty-two thousand two hundred and twenty-four dollars, and costs of suit, and that execution issue therefor according to the course of the court." An appeal from this decree brought the cast up to this court.

It was argued by Mr. Ames and Mr. Whipple for the plaintiffs in error, and Mr. R. W. Greene and Mr. Webster for the defendants. The arguments extended over a wide field, and it is impossible to give them in extenso. All that can be done will be to place before the reader the leading views of the respective counsel, and the reasons in support of them.

The brief filed by Mr. Ames and Mr. Whipple appears to contain these views and authorities. It was as follows:

The libel, after stating that the respondents, as common carriers of merchandise from the city of New York to Stonington, in the State of Connecticut, were owners of the steamboat Lexington, used by them for carrying on their said business, states, in articles second and third.

"Second. That the complainants, on the high seas, and within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of the United States and of this court, on the 13th day of January, A. D. 1840, contracted with the respondents for the transportation by water, on board of the said steamboat Lexington, from the said port of New York to the said port of Stonington, of certain gold coin amounting to fourteen thousand dollars, and of certain silver coin amounting to eleven thousand dollars, to the libelants belonging; and the said respondents, then and there, for a reasonable hire and reward, to be paid by the libelants therefor, contracted with the libelants that they would receive said gold and silver coin on board of the said steamboat Lexington, and transport the same therein, on the high seas, from said New York to said Stonington, and safely deliver the same to the libelants.

"Third. That the libelants, on the said 13th day of January, A. D. 1840, at said New York, delivered to the said respondents, on board of the said steamboat Lexington, then lying at said New York, and within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of the United States and of this court, and the respondents then and there received on board of said steamboat, the said gold coin and silver coin, for the purpose of transporting the same by water, on *the high seas, from said New York to [*355 said Stonington, and to deliver the same to the libelants, as aforesaid."

The libel then proceeds to state the loss of the Lexington, whilst on her voyage from New York to Stonington, on the 13th of January, 1840, and of the gold and silver coin on board, by fire, and attributes the loss to the improper stowage of the gold and silver coin, the imperfect and insufficient engine, furnace, machinery, furniture, rigging, and equipments of the boat, and her careless, improper, and neg

ligent management and conduct by the officers, servants, and agents of the respondents; and by reason thereof claims damages to the amount of twenty-five thousand dollars.

The proceeding is in personam, the process being a warrant of attachment and monition, both the attachment and monition being special. The appellants contend that the decree of the Circuit Court for the Rhode Island district should be reversed, and the libel dismissed, on the following grounds:

First. That the contract set forth in the libel, and claimed to be proved, and for breach of which damages are sought therein-to wit, a contract to carry the gold and silver coin of the libelants, in the steamboat of the respondents, from the city of New York to Stonington, in the State of Connecticut-is not a contract within the admiralty and maritime jurisdiction of the courts of the United States; and hence that this court, sitting as a court of admiralty, has no jurisdiction of this cause.

Second. That, in fact, the libelants did not deliver to the respondents, and the respondents | did not receive from the libelants, the said gold and silver coin to carry, but that the contract of the libelants was wholly with one William F. Harnden, a carrier and forwarder on his own account and risk, and as such contracted with and paid by the libelants; and hence, that if the libelants have any cause of action for the loss of their said coin, it is against Harnden, and not against the respondents, there being no privity of contract between the libelants and respondents.

Third. That if, in their own name, which we deny, the libelants could pursue the respondents, it could only be by virtue of and under the contract of Harnden and the respondents, for the transportation on board of the boats of the respondents of Harnden's express crate; and that, by virtue of this contract, Harnden was the insurer of his own crate, whilst on board the respondents' boats, using said boats as his own.

Fourth. That although, under these cir356*] cumstances, we cannot *be liable for any degree of negligence, or for want of sufficiency in our boat and equipments, to the libelants, with whom we did not contract, and for whom we did not carry, we deny, as a matter of fact, the charge made against us in the libel in this respect, and contend that our boat was staunch and strong, and well equipped, and that her loss by fire was not occasioned by any deficiency in her equipments, or any unskillfulness or negligence in her conduct.

First point. We say that this court, as a court of admiralty, has no jurisdiction of the contract set forth in the libel-a carrying contract, stated and claimed to have been made in the city and within the body of the County of New York, and to be performed by the respondents by a trip of their boat, in which she passed around the head of New York harbor, up the East River, through a portion of Long Island Sound, to Stonington, infra fauces terræ -land locked the whole way.

It is well settled that this court will judicially notice geographical facts relating to causes before them. In United States v. La Vengeance, 3 Dallas, 297, this court took judicial

too, The Apollon, 9 Wheat. 374. In Steamboat Jefferson, 10 Wheat. 428, and in Peyroux v. Howard, 7 Peters, 342, this court took judicial notice of the fact that the tide ebbed and flowed at New Orleans.

The general question of the jurisdiction of the courts of the United States as courts of admiralty, and especially in relation to contracts, has been much discussed; and we refer the court, for the general learning and argument upon this subject, to the late Judge Winchester's opinion in The Sandwich, 1 Peters's Adm. Dec. 233, note; Hall's Adm. Prac. Introduction; and to the opinions of the late Mr. Justice Story in De Lovio v. Boit, 2 Gall. 398, etc., and The Schooner Volunteer, 1 Sumner, 550, in which a very enlarged admiralty jurisdiction is contended for; and to the very able and critical opinions of Mr. Justice Johnson, late of this court, in Ran msay v. Allegre, 12 Wheat. 611; and of Mr. Justice Baldwin, late of this court, in Bains v. The Schooner James and Catharine, 1 Baldwin, 544; and to 1 Kent's Com. 367-377, 5th ed., where a very restricted jurisdiction over contracts is held to have been given to the courts of the United States by the provisions of the Constitution.

Upon this subject, and in relation to the case at bar, we submit to the court the following points and considerations:

The Constitution of the United States provides (article 3, sec. 2), that "the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and the treaties made, or which shall be made *under their authority; [*357 to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign state, citizens, or subjects."

By this clause, the judicial power of the United States is to extend to "all cases of admiralty and maritime jurisdiction;" and whether, considering the letter of the clause, or the nature of the cases embraced in it, the jurisdiction of the courts of the United States is held to be exclusive. The Sandwich, 1 Peters's Adm. Dec. 233, note, Judge Winchester; Martin v. Hunter's Lessee, 1 Wheat. 333; Bains v. Schooner James and Catharine, 1 Baldwin, 544; 1 Kent's Com. 377, 5th ed.

If this jurisdiction be not imperatively exclusive, by force of the Constitution, it may, at least, become exclusive at at the the option option of of Con- Congress; and hence the question of its extent becomes greatly interesting, both as to the jurisdiction of the States and of the common law; or, in other words, to the right of trial by jury.

The jurisdiction is given over "all cases," without reference to the citizenship of the parties, which indicates the extent; and it is not given over "all admiralty and maritime cases," but over "all cases of admiralty and maritime jurisdiction," which indicates the limit of the jurisdiction.

in direct reference to some court, and the reading of the clause, therefore, is, "all cases of which admiralty and maritime courts have been accustomed to exercise jurisdiction;" the words "admiralty" and "maritime" being synonymous-the one describing the jurisdiction by the name of the court, the other by the nature of the causes tried in it.

The jurisdiction of courts is necessarily a matter of artificial law, dependent upon convenience, circumstances, policy; and is usually parcelled out by positive regulations.

With regard to the Continental maritime courts, and the courts of admiralty in England, this has been especially the case.

Though founded on the customs and usages of the Mediterranean Sea, collected in the Consulat, these customs and usages were adopted and modified to suit the different countries of Europe, by positive regulation, and courts established with jurisdiction and rules of decision marked out by the code of each State or commercial city. Us et Coustumes de la Mer, published at Bordeaux, 1681; Sea Laws, 251-256, 376, 377.

358*] *Though some matters are within the jurisdiction of all maritime courts, yet it is obvious that on a great variety of subjects the codes differ; and that there is no universal maritime law fixing with precision the juris diction of courts of admiralty or maritime courts.

To what source, then, are we to go to ascertain what cases are committed to the courts of the United States by the terms "cases of admiralty and maritime jurisdiction," used in the Constitution?

We submit, first, that we are not to go to the codes or laws of France, Spain, Holland, the Hanse Towns, etc. -to countries of the civil law-to ascertain the meaning of these terms, thus adopting a varying standard of jurisdiction; but, as in other cases, to the law of the parent country, England-the country from whence this was settled, and from whence we derive, in general, all our laws and institutions.

Fourth. That it is of no importance to consider the question, whether the terms of the statutes of Richard II. render them applicable, as statutes, to this country; inasmuch as they, with the decisions under them, formed a part of the law of England, fixed the relative jurisdiction of the courts of admiralty and common law, and had fixed it centuries before the settlement of this country.

We might with much more reason contend, that the royal order of King Edward I. and his lords, and of King Edward III., and of his solemn convocation of judges, which were intended *to restrain the courts of com- [*359 mon law, or the inferior manorial jurisdictions, were of no binding force upon this country, as invasions of the ancient law of England, than can be contended on the other side, that solemn acts of Parliament, passed so many years ago, are to be disregarded, as showing the ancient state of the English law.

Fifth. That at the settlement of this country, and at the Revolution, it is perfectly notorious that the courts of admiralty in England not only did not exercise, but did not claim to exercise, jurisdiction over such contracts as the one set forth in the libel.

We do not refer to the claims of civilians in their treaties, in which they claimed everything in general terms. Sea Laws, 208, extracts from Godolphin's View of the Admiral's Jurisdiction.

From such contracts as that set forth in the libel, the courts of admiralty were expressly excluded by the terms of the acts of Richard II., confirmed and explained by the acts of Henry IV. and Elizabeth. See Acts; Sea Laws, 229, 234, 235, and in 6 Vin. Abr. 520, 521. These acts were plainly and pointedly intended to restrain the jurisdiction of admiralty on waters within the body of a county, and especially within all ports and havens. See Brownlow, part 2, p. 16; Sea Laws, 333; see cases collected in 2 Gall. 429, 447, and 6 Vin. Abr. 523-527.

Dr. Browne admits, what same other civilians deny, that ports, creeks, and havens are within the restraining acts of Richard II. and Henry IV., and that the admiralty jurisdiction was excluded from these places by those acts. 2 Browne, Civ. and Adm. Law, 92; 3 Dunlap, 33; see, too, opinion of Sir Chris. Robinson, in The Public Opinion, 2 Haggard, 398.

Indeed, the whole criticism by Judge Story, in De Lovio v. Boit, of the decisions under the statutes of Richard. is intended to show rather that they were decided wrongly, than that they did not decide that the admiralty had no jurisdiction over contracts made in ports and ha

The undoubted doctrine of the common law courts, since these statutes at least, has ever been that the jurisdiction of admiralty over contracts is confined to contracts made upon the high sea, to be executed upon the high sea, of matters in their own nature maritime. 2 Gall. 437.

One great point of dispute between the common lawyers and the civilians, in the construction of the statutes of Richard II., was the meaning of the words "things done upon the sea," in stat. 13 Richard II., and "things done and arising within the bodies of counties," in stat. 15 Richard II.

Judge Story, contended that the words "things done upon the sea" meant "things done touching the sea;" i. e., maritime affairs and transactions.

material man, to enforce a lien given by the local law of Louisiana in such cases.

439.

Unlike the French admiralty jurisdiction, the English admiralty jurisdiction, over contracts at least, originally depended upon the place where made or transacted; and even, it would seem, upon the occupation of the parties to them. See Order of King Edward I.: 2 Gall. 402, n. 16; Black Book of Admiralty, quoted by Judge Story, 2 Gall. 405.

Sixth. That, as a matter of fact, the courts | of admiralty in this country, previous to the adoption of the Constitution of the United States, so far as their decisions have been considered of value enough to be published, never did exercise jurisdiction over contracts of the character of that set forth in the libel, but held themselves confined to the limits of the jurisdiction of the English courts of admiralty. Clinton v. Brig Hannah, Bee's Adm. R. 419, decided by Judge Hopkinson in 1781; Shrewsbury v. Sloop Two Friends, Bee's Adm. R. 435, decided by Judge Bee in 1786. See, also, The Brig Eagle, Bee, 78, and Pritchard v. The Lady Horatia, Bee, 168, the former decided in 1796, and the latter in 1800, after the adoption of the Constitution; in the latter of which, the ground of the jurisdiction of the court in the case before it is noticed, and the English cases relied on and reviewed.

Seventh. The terms of the commissions of courts of vice-admiralty in this country, in former times, and of the judges of admiralty in England, afford no index to the true limits of their jurisdiction. They were mere matters of form, and Lord Stowell, speaking of his own

These decisions conform to the decisions of Clinton v. Brig Hannah, Shrewsbury v. Sloop Two Friends, and Pritchard v. The Lady Horatia, before cited from Bee, which suppose that the remedy in admiralty depends upon the fact of a lien.

The third resolution of the agreement of February 4th, 1632, between the judges of the King's Court of Westminster and the judge of the Court of Admiralty and the attorney-general, concerning the jurisdiction of the English admiralty, was in these words:

"If suit be in the Court of Admiralty for building, amending, saving, or necessary victualling of a ship. against the ship itself, and not against any party by name, but such as, for his interest, makes himself a party, no prohibition is to be granted, though they be done within the realm." Dunlap's Adm. Prac. 14; Hall's Adm. Prac. 24, 25, Introduction.

In the time of Charles I., it seems that the English admiralty had jurisdiction to enforce a lien in favor of material men, by a proceeding in rem. 6 Vin. Abr. 527.

2. Cases of possessory, and, perhaps, petitory suits concerning vessels.

The case of The Steamboat Orleans v. Phœbus, 11 Peters, 175, 184, was a libel in rem, in the nature of a possessory suit, brought by one part owner of a vessel against the others, praying that the vessel might be sold, and he paid his advances and freight in account and with other part owners, and his proportion of the proceeds of the sale. The court below, strangely enough, decreed an account and sale. It being shown that the boat was employed in plying between New Orleans and Maysville, *on the Ohio River-i. e., her substantial [*362 employment being in the waters without the ebb and flow of the tide, though she touched

miralty, says: "It is universally known, that a great part of the powers given by that commission are totally inoperative." The Apollo, 1 Haggard's Adm. R. 312, 313; see, too, Schooner Volunteer, 1 Sumner, 564, 565.

Eighth. No case has yet been decided by the Supreme Court of the United States, affirming the admiralty jurisdiction of the court over a contract of this character.

361*] *The decisions of the Supreme Court

terminus of her trips, New Orleans-the libel was dismissed by this court for want of jurisdiction.

Undoubtedly, had her substantial employment been on waters where the tide ebbed and flowed, the court would have entertained the suit so far as to decree a stipulation in favor of the part owner for his security, though the account and sale were out of the course of

Possessory suits, in relation to vessels, have always been entertained by the English courts of admiralty without prohibition.

"Until some time after the Restoration,"

says Lord Stowel, "the courts of admiralty exercised jurisdiction over petitory suits, when it was found by other courts that it belonged exclusively to them; since which it has been very cautious not to interfere at all in

133, 136.

Pursuing the same subject in the case of The Warrior, 2 Dodson, 288, he re-affirms the above in regard to petitory suits, and adds: "The jurisdiction over causes of possession | was still retained; and although the higher tribunals of the country denied the right of this court to interfere in mere questions of disputed titles, no insinuation was ever given by them that the court must abandon its jurisdiction over causes of possession." See, too, 2 Browne's Civ. and Adm. Law, 113, 114, 397; Dunlap's Adm. Prac. 24, 29, 30.

3. Cases of mariners' wages. The steamboat Jefferson, 10 Wheat. 429, was a libel in rem for wages earned on board a steamboat plying between Shippingport, in Kentucky, and places up the Missouri River, which was dismissed by this court for want of jurisdiction over the contract, as one not relating to service performed on waters in which the tide ebbed and flowed.

If the service had been substantially performed on tide waters, the admiralty would have had jurisdiction; such contracts being within the acknowledged jurisdiction of the English admiralty. 2 Browne's Civ. and Adm. Law, 36, 37; Dunlap, 26, 27.

4. Cases of salvage.

Hobart et al. v. Drogan et al., 10 Peters, 108, 119, 120, 121, was a case of salvage.

Salvage has always been deemed within the jurisdiction of the English admiralty. See the case of The Joseph Harvey, 1 Rob. 306, in which Sir William Scott says: "It is allowed 363*] *that the court may, in case of pilotage, as well as salvage, direct a proper remuneration to be made."

Andrews v. Wall, 3 How. 568, was also a case of salvage, the proceeds being in possession of the court, and ordered to be distributed according to an agreement of consortship between the salvors. As his Honor Judge Story observed, in delivering the opinion of the court, it has always been held in the English admiralty, as incidental to the jurisdiction of the court over the subject of salvage, that the court has power to entertain supplementary suits in relation to the proceeds in their possession, and to order them to be paid over to the parties interested according to their right. Ninth. We know of no case, out of the first circuit, in which the jurisdiction of the court in admiralty over such a contract as this has been affirmed.

The Sloop Mary, 1 Paine, 671, was a libel to enforce a bottomry bond, executed by the owner and master in the West Indies, to enable him to purchase a cargo. One question was, whether the case was within the admiralty jurisdiction of the court, the bond being made by the owner as owner of the vessel, since as master he could not have made such a bond for the mere purchase of cargo, but only for necessary supplies and repairs. The court sustained their jurisdiction, upon the ground that this was a maritime contract, the vessel being hypothecated for the payment of the sum loaned, and the payment being contingent upon the safe arrival of the vessel.

cuted by the owner in a home port. This is going farther than this court has intimated it felt authorized to go. 4 Cranch, 328.

That the English admiralty has always had undisputed jurisdiction over bottomry bonds, and of all contingent hypothecations of cargo and freight, is well settled; the jurisdiction depending, not upon the consideration of the contract, but upon whether the payment be contingent upon the arrival of the vessel. The Barbara, 4 Rob. 1; The Zodiac, 1 Haggard, 325; The Atlas, 2 Haggard, 48; The Murphy, 2 Browne's Civil and Adm. Law, 530; Dunlap's Adm. Prac. 27, 28.

Second point. That, in fact, the libelants did not deliver to the respondents, and the respondents did not receive from the libelants, the said gold and silver coin to carry, but that the contract of the libelants was wholly with one Wm. F. Harnden, a carrier and forwarder on his own account and risk, and as such contracted with and paid by the libelants; and hence, that if the libelants have any cause of action for the *loss of said coin, it is [*364 against Harnden, and not against the respondents, there being no privity of contract between the libelants and respondents.

Harnden was the collector of drafts, etc., for the Merchants' Bank, in the city of New York, and carrier of the specie in question.

His business was that of a carrier and forwarder of specie, small packages, etc., collector of drafts, purchaser of goods, etc., carried on in offices kept by him in New York and Boston, and how he did his business as a carrier is proved by Harnden, 118, 121; Lockwood, 102, 105.

His mode of carrying between New York and Stonington is shown by his agreements with the respondents, owners of boats plying between those places.

The agreement of August, 1839, provides, "that the said William F. Harnden, for and in consideration of the sum of $250 per month, to be paid monthly to the said New Jersey Steam Navigation Company, is to have the privilege of transporting in the steamers of said company, between New York and Providence, via Newport and Stonington, not to exceed once in each day, from New York and Providence, and as less frequently as the boats may run between and from said places, one wooden crate, of the dimensions of five feet by five feet in width and height, and six feet in length (contents unknown), until the 31st December, A. D. 1839, and from this date.

"The following conditions are stipulated and agreed to, as part of this contract, to wit: The said crate, with its contents, is to be at all times exclusively at the risk of the said William F. Harnden; and the New Jersey Steam Navigation Company will not, in any event, be responsible, either to him or his employers, for onsible the loss of any goods, wares, merchandise, money, notes, bills, evidences of debt, or property of any and every description, to be conveyed or transported by him in said crate, or otherwise, in any manner, on the boats of said company.

"Further, that the said Harnden is to attach