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Argument for Petitioner.

can hold that this jurisdiction covers all localities where it chances to be a “little damp," and, under the guise of jurisdiction, the United States courts can be given the power to practically destroy the rights of citizens who are compelled to patronize ships.

Wherever it is applicable, the law was radical enough before. Under the decision of the majority of this court, in Providence and New York Steamship Co. v. Hill Manufacturing Co., 109 U. S. 578, in the case of loss happening by fire, the owner of the ship is not liable at all unless the neglect was shown to be his own personal neglect, and even then, his liability is confined to his interest in the ship.

On account of the importance of the proposition that “it is not within the judicial province to give to the words used by Congress a narrower meaning than they are manifestly intended to bear” in order to save an act from the objection of unconstitutionality, we refer, in addition to the Trade Mark Cases, to the following: United States v. Reese, 92 U. S. 214, 220, 221 ; Virginia Coupon Cases, 114 U. S. 269, 304, 305 (a civil case which applies the principle recognized in the Trade Mark Cases, and in United States v. Reese); Spraigue v. Thompson, 118 U. S. 90 ; Allen v. Louisiana, 103 U. S. 80; State Tonnage Tax Cases, 12 Wall. 204, 217, 219; Leloup v. Port of Mobile, 127 U. S. 640, 647; and Lord v. Steamship Co., 102 U. S. 541.

II. The commerce clause of the Constitution, upon which we submit this legislation must be based, and to which the decisions of this court and of other United States courts refer such legislation for its sanction, not only does not authorize, but it prohibits any act by Congress broad enough to control or regulate internal commerce or traffic between citizens of the same State. This clause was intended to place such commerce beyond its control. See Veazie v. Moore, 14 IIow. 573 et seq.; Gibbons v. Ogden, 9 Wheat. 194, 195; Moore v. American Transportation Company, 24 How. 37 and 39; The Daniel Ball, 10 Wall. 564, 565; The Trade Mark Cases, 100 U. S. 95 et seq.; Lord v. Steamship Company, 102 U, S. 543; Sands v. River Company, 123 U. S. 295.

Argument for Petitioner

III. Authority for this legislation cannot be found in the clause providing that the judicial power shall extend to all cases of admiralty and maritime jurisdiction.

We admit that the jurisdiction of the admiralty court is not circumscribed by the commerce clause; that the courts may try cases involving vessels engaged in purely internal commerce, and questions appertaining to such commerce. But this affects only the forum. It does not concern the substantial rights of the parties.

A shipowner entitled to the benefits of the limited liability act of 1851, need not go into a court of admiralty at all; his rights are secured independently of the tribunal. He may assert them by a plea to a common law action in any court. See The Scotland, 105 U. S. 33, 34. Generally it will be found that the remedies of the District Court are more full and complete, but the shipowner is not confined to this court, and his rights are the same in any tribunal. If this be so, the correlative rights of his patrons ought to be the same, no matter in what tribunal they may be adjudicated.

Other cases, in addition to those heretofore cited, hold that the validity of this legislation depends upon the commerce clause. See The War Eagle, 6 Bissell, 366; Lord v. Steam

. ship Co., 4 Sawyer, 292; The Mamie, 5 Fed. Rep. 821; the same case is affirmed in 8 Fed. Rep. 367; American Transportation Co. v. Moore, 5 Michigan, 392 and 393 ; Headrich v. Virginia &c. Railway Co., 48 Georgia, 549.

If, then, this legislation can be separated from its effect upon the traffic rights and obligations of the parties concerned, and can be confined to a mere regulation of vessels, we insist that no authoritative decision can be found which will sustain the validity of a law of Congress requiring a vessel engaged solely in internal commerce, and entirely disconnected from interstate or foreign commerce, to be licensed, or which otherwise regulates such a vessel. Many can be cited against this power of Congress, and some of the decisions herein before discussed are in point on this branch of the case.

In Gibbons v. Ogden, in discussing the power of Congress

Argument for Petitioner.

over navigation, under the commerce clause, the court limits it to that which is in some manner connected with foreign nations or among the several States, or with the Indian tribes. 9 Wheat. 1, 197.

In the Passenger Cases, 7 How. 283, 400, Mr. Justice McLean says: “If Congress should impose a tonnage duty on vessels which ply between ports within the same State, or require such vessels to take out a license, or impose a tax on persons transported in them, the act would be unconstitutional and void."

In Sinot v. Davenport, 22 How. 227, this court held that an act of the State of Alabama, which was broad enough to regulate vessels under the control of Congress was void, but in treating of the control of Congress over ships, the court, on page 243, recognizes the limitation contended for by us, a limitation which the act of 1886 not merely ignores, but proposes to repudiate.

The case of The Bright Star, 1 Wool. C. C., is very much in point. The question decided by Mr. Justice Miller was whether she was compelled to take out a license, and was under the inspection laws. This question had been determined in the negative by the judge of the District Court, and his decision was, on appeal, affirmed in a full and exhaustive opinion. Mr. Justice Miller holds that it is not in the power of Congress to regulate vessels confined to internal commerce, and “that Congress has in its legislation steadily kept this in view." See also The Oconte, 5 Bissell, 463; The War Eagle, 6 Bissell, 366. In The Thomas Swan, 6 Ben. 42, Judge Blatchford approves and follows Judge Miller's opinion, holding that The Thomas Swan does not fall within the principle of The Daniel Ball, ubi supra. See also Gilman v. Philadelphia, 3 Wall, 557, cited by Judge Miller in 1 Woolworth.

IV. In conclusion, we submit what we have heretofore incidentally noticed, that if this legislation can be based upon the jurisdictional clause of the Constitution, and if the commerce clause can be expunged, yet still it cannot be constitutional. In any event, in order for the courts of the United States to have jurisdiction, the waters must be navigable

Opinion of the Court.

waters of the United States which, as already noticed, are waters which by themselves, or by their connection with other waters, form a continuous channel for commerce among the States, or with foreign countries. See The Genesee Chief, 12 How. 443; Allen v. Newberry, 21 How. 244; The Hine v. Trevor, 4 Wall. 555; The Belfast, 7 Wall. 624; Steamer St. Lawrence, 1 Black, 522; Butler v. Boston Steamship Co., 130 U. S. 527.

Mr. R. G. Erwin opposing.

MR. JUSTICE BRADLEY delivered the opinion of the court.

This is a petition for a writ of prohibition to be directed to the judge of the District Court of the United States for the Eastern Division of the Southern District of Georgia, to prohibit said judge from taking further cognizance of a certain suit instituted before him in said court. The suit sought to be prohibited is a libel filed in said court by John Lawton, owner of the steamboat Katie, seeking a decree for limited liability for the loss and damage which accrued by fire on said steamboat in the Savannah River on the 12th of October, 1887. A copy of this libel is annexed to the petition for prohibition. It sets out the facts that Lawton was the owner of the steamboat; that she was an enrolled vessel of the United States, duly licensed to carry on the coasting trade; that she had for twenty years been engaged in transporting merchandise, goods and commodities from and to the ports of Savannah and Augusta, and intermediate ports and landings on the Savannah River, in the States of South Carolina and Georgia; and that some of the said goods were transported by said steamboat as one of the through lines of carriers, issuing through bills of lading to and from ports and places within the State of Georgia, and ports and places in other States of the United States and foreign countries.

The libel then states that on the 8th of October, 1887, the said steamboat left Augusta for Savannah and intermediate places on the river in South Carolina and Georgia, intending to load a cargo chiefly of cotton, being properly manned and

Opinion of the Court.

equipped; that on the 10th day of October, having then on board 643 bales of cotton, she left a landing called Burton's Ferry, and shortly after struck on a sand bar, and notwithstanding the utmost endeavor of master and crew, remained there till October 12th, when fire was discovered in the cotton near the bow of the steamboat; that the fire spread with great rapidity, and some of the bales of cotton had to be thrown overboard to prevent it from spreading more; and after three hours of the hardest and most hazardous work, the master and crew succeeded in clearing the bow of the burning cotton, and saving the vessel and a portion of the cargo, but leaving the vessel much burned and damaged. A list of the cargo was attached to the libel, which proceeded to state that nearly all of the consignees of the cotton lost or damaged had brought suits against the libellant; and a list of the suits was also appended to the libel, in two of which attachments were issued; that the amount thus sued for, and the loss and damage happening by means of said fire, exceeded the value of the said steamboat and her freight on said voyage ; that the fire was not caused by any negligence of the libellant, or of the master and crew, and that by reason of the exception against fire contained in the bills of lading and receipts, the libellant was not liable for the loss and damage caused by said fire; that libellant did not know the cause of the fire nor had any information as to the cause, not being on board of the vessel at the time; and that all the loss, destruction and damage to the bales of cotton happened by means of said fire, and that said fire was not caused by the design or neglect of the libellant, but was solely caused without his privity or knowledge.

After an allegation that the Savannah River is a navigable stream lying partly in Georgia and partly in South Carolina, and that the contracts for carrying the cotton were maritime contracts, the libellant proceeded to contest his entire liability, under the act of Congress in that behalf, and under the bills of lading; and if he should be held liable he claimed the benefit of limited liability. The libel concluded with the usual prayer for appraisement of the vessel, and a monition to all persons claiming damages to appear, etc.

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