and freighters claim to be discharged from their contracts on account of the unseaworthiness of the vessel. In such cases, the admiralty courts of all commercial countries have jurisdiction to ascertain the fact of seaworthiness or otherwise, by laws and customs of the port in which the vessel happens to be; and it seems that the admiralty courts of the United States may exercise this power. Dorr v.

The Pacific Insurance Company, 7 Wheaton, 582; Janney v. Columbian Insurance Company, 10 Wheaton, 411.1

[NOTE.-The jurisdiction in admiralty does not depend upon, and is not controlled by, the citizenship or residence of the parties. A libel in personam may be maintained within the jurisdiction of a District Court, provided only that service can be made upon the libellee, or that an attachment can be made upon personal property of his within the district. In re The Louisville Underwriters, 134 U. S. 488. If a suit in admiralty is between American citizens, or between an American citizen and a foreigner, and the cause of action, as, for instance, a collision, occurred in foreign waters, the court would administer the admiralty law of this country, except that it would take notice of any local law or usage, such as a pilot regulation. The court may, at its discretion, entertain a suit between foreigners, and it commonly does so, unless there is some particular reason, such as the request of a consul or minister, or a treaty stipulation, for refusing to take jurisdiction. In such a case, the court would administer the admiralty law as it is understood by the courts of the United States with this qualification: "If the maritime law, as administered by both nations to which the respective ships belong, be the same 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." See Ex parte Newman, 14 Wall. 152; The Belgenland, 114 U. S. 355; The Welhaven, 55 Fed. Rep. 80; The Livius, 47 Fed. Rep. 825.]

In the Revised Statutes, Chapter 5, Title 53, provision is made for special proceedings to ascertain the seaworthiness of vessels bound to sea, at the instance of the first officer and a majority of the crew.

CHAPTER XI.

ADMIRALTY (continued).

IN the last Lecture, gentlemen, I had traversed, in part, the ground of the admiralty jurisdiction of the District Courts of the United States. I had mentioned the different contracts over which they have jurisdiction, and had advanced somewhat beyond that to cases which depended, not upon admiralty contracts, but still upon the nature of the subject-matter, such as salvage and one or two other subjects to which you will remember I adverted at the close of the last Lecture. I now continue that enumeration.

There are two kinds of action concerning the title and the right of possession of vessels, called petitory and possessory actions. Petitory actions are suits to try the legal title to a vessel, or some part of it; and possessory suits are suits to determine who shall have possession of a vessel, or which partowners shall have possession of a vessel, for the purpose of employing it. Over both these subjects, admiralty in the United States has jurisdiction. This was decided in the case of Ward v. Peck, 18 Howard, 267. Concerning petitory actions it is unnecessary to say more than to repeat what I have

already said, that the purpose of the action is to try the legal title to a vessel, or some part of it. Possessory suits, perhaps, require further observation. As it was said very long ago, vessels are built to plough the seas, not to lie by the walls; and accordingly courts of admiralty take jurisdiction of disputes between part-owners, when they are unable to agree on the mode in which their vessels shall be employed. The court will always assign to the majority the right to dictate the adventure upon which the vessel shall sail, if the majority agree and desire to employ the vessel on any particular adventure; but it will require the majority to give security to the minority for the return of the vessel in like good order and condition as when the adventure was begun. On the giving of such security, the court makes a decree allowing the majority of the part-owners to employ the vessel in the adventure in which they desire to employ it. If the majority do not desire to employ the vessel in any adventure, but the minority do, the court will assign to the minority the right so to employ the vessel on similar terms, to wit, security to return the ship in safety, or make compensation for its loss; but in either of these cases, the ship is employed on account either of the majority, in the first instance, or of the minority, in the second instance, and the other part-owners can receive no compensation for their interest or the use of their interest in the vessel. It is considered simply as an adventure of those who thus employ the vessel, and the profits or the loss are for their

account.

You will find this subject very much discussed and most of these principles stated in a case in 11 Peters, 175.1

By the common law, the liability of owners of vessels is limited only by the just claims either of the shippers of merchandise or of those who have suffered from a tort of the master and mariners. By the ancient maritime law, it was otherwise, and the ship-owner could always discharge himself from liability by surrendering his interest in the vessel and freight. That principle of the ancient maritime law of the world was enacted by Congress under the Act of March 3, 1851, which you will find explained in the case of The Norwich Company v. Wright, 13 Wallace, 104, where it was held by the court, that, under this Act of Congress, enabling the ship-owner to surrender his interest in the vessel and freight (I think that was a case of collision, but it would be applicable in any case where ship-owners were liable for damages), the admiralty court had jurisdiction to receive such surrender, and appoint trustees to take possession of the subject-matter, the vessel or freight, to turn it into money, bring the money into court, and the court would then distribute it amongst those entitled to it. And in the same case it is, perhaps I should not say decided, but very clearly intimated, that if the ship is entirely lost, and there is no freight which can be attached by the admiralty court, then the liability of the ship-owner is at an end, it being

1 The Steamboat Orleans v. Phoebus. The court never directs a sale in any dispute between part-owners. Ibid. [See The Marengo, 1 Lowell Dec. 52.]

considered that his liability is only coextensive with his interest in the vessel and freight. This, you perceive, forms a separate subject of admiralty jurisdiction, and I have mentioned it as such.1

I come now to a different class of cases under this jurisdiction, namely, maritime torts, and, as I mentioned in the last Lecture, the jurisdiction. over torts or wrongs depends on the locality where they are committed. If they are committed on the high seas, or within any navigable waters of the United States, that is, the great lakes or navigable rivers, then they are within the jurisdiction of the admiralty. For instance, personal assaults and

1 The provisions of the Act of 1851 are re-enacted in Revised Statutes, §§ 4282-4286. But this law does not release the shipowner from the payment of full costs, if he appears and makes defence. The Wanata, 95 U. S. 600. [The rule applies to foreign ships, The Scotland, 105 U. S. 24, and to ships engaged in inland navigation, In re Garnett, 141 U. S. 1, 11. But the rule does not apply when a ship runs into a building on land, or sets fire to it. Ex parte Phenix Insurance Co., 118 U. S. 610; The Plymouth, 3 Wall. 20. See also, as to the limitation of liability, City of Norwich, 118 U. S. 468; The Scotland, Ibid. 507; The Great Western, Ibid. 520; Butler v. Boston & Savannah Steamship Co., 130 U. S. 527; In re Garnett, 141 U. S. 1.

The Act of Feb. 13, 1893 (27 Stat. 445) provides as follows: "If the owner of any vessel transporting merchandise or property to or from any port in the United States, shall exercise due diligence to make said vessel seaworthy, and properly manned, equipped and supplied, neither the vessel, her owner or owners, agent or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel, etc."]

2 [For example, if a collision between two vessels should occur on a river, within the territory of a State, which was not navigable to the sea, by reason of a dam intervening, or for any other cause, the State courts alone would have jurisdiction of it. If a similar collision occurred on a river navigable to the sea, or if it occurred in a