OLD DOMINION STEAMSHIP COMPANY, Owner of the Steamship Hamilton, Petitioner, v. PRIMUS GILMORE, Administrator of the Estate of Alfred Gilmore, Deceased, et al.

This is a proceeding for the limitation of liability of the steamship Hamilton in respect of a collision on the high seas with the steamship Saginaw, in which the Saginaw was sunk and her chief mate and some of her crew and passengers were drowned. It is found, and not disputed, that both vessels were to blame. Both vessels belonged to corporations of the state of Delaware. A statute of that state, after enacting that actions for injuries to the person shall not abate by reason of the plaintiff's death, provides that, 'whenever death shall be occasioned by unlawful violence or negligence, and no suit be brought by the party injured to recover damages during his or her life, the widow or widower of any such deceased person, or, if there be no widow or widower, the personal representatives, may maintain an action for and recover damages for the death and loss thus occasioned.' Act of January 26, 1886, as amended by act of March 9, 1901. Delaware Laws 1901, vol. 31, p. 500. On the strength of this statute the representatives of a passenger and of three of the crew filed claims, and the claims were allowed by the district court (see 134 Fed. 95, 139 Fed. 906) and afterwards by the circuit court of appeals (77 C. C. A. 150, 146 Fed. 724). A certiorari was granted by this court to settle the question, as stated by the petitioner, whether the Delaware statute applies to a claim for death on the high seas, arising purely from tort, in proceedings in admiralty. Incidentally the right of representatives of the crew of the Saginaw to recover their claims in full against the Hamilton also has been discussed.

Apart from the subordination of the state of Delaware to the Constitution of the United States, there is no doubt that it would have had power to make its statute applicable to this case. When so applied, the statute governs the reciprocal liabilities of two corporations, existing only by virtue of the laws of Delaware, and permanently within its jurisdiction, for the consequences of conduct set in motion by them there, operating outside the territory of the state, it is true, but within no other territorial jurisdiction. If confined to corporations, the state would have power to enforce its law to the extent of their property in every case. But the same authority would exist as to citizens domiciled within the state, even when personally on the high seas, and not only could be enforced by the state in case of their return, which their domicil by its very meaning promised, but, in proper cases, would be recognized in other jurisdictions by the courts of other states. In short, the bare fact of the parties being outside the territory, in a place belonging to no other sovereign, would not limit the authority of the state, as accepted by civilized theory. No one doubts the power of England or France to govern their own ships upon the high seas.

The first question, then, is narrowed to whether there is anything in the structure of the national government and under the Constitution of the United States that takes away or qualifies the authority that otherwise Delaware would possess, a question that seems to have been considered doubtful in Butler v. Boston & S. S. S. Co. 130 U. S. 527, 558, 32 L. ed. 1017, 1024, 9 Sup. Ct. Rep. 612. It has two branches: First, whether the state law is valid for any purpose; and, next, whether, if valid, it will be applied in the admiralty. We will take them up in order.

The power of Congress to legislate upon the subject has been derived both from the power to regulate commerce and from the clause in the Constitution extending the judicial power to 'all cases of admiralty and maritime jurisdiction.' Art. 3, § 2. 130 U. S. 557. The doubt in this case arises as to the power of the states where Congress has remained silent.

That doubt, however, cannot be serious. The grant of admiralty jurisdiction, followed and construed by the judiciary act of 1789 [1 Stat. at L. 77, chap. 20, § 9], 'saving to suitors, in all cases, the right of a common-law remedy where the common law is competent to give it' (Rev. Stat. § 563, cl. 8, U. S. Comp. Stat. 1901, p. 457), leaves open the common-law jurisdiction of the state courts over torts committed at sea. This, we believe, always has been admitted. Martin v. Hunter, 1 Wheat. 304, 337, 4 L. ed. 97, 105; The Hine v. Trevor (The Ad. Hine v. Trevor) 4 Wall. 555, 571, 18 L. ed. 451, 456; Leon v. Galceran, 11 Wall. 185, 20 L. ed. 74; Manchester v. Massachusetts, 139 U. S. 240, 262, 35 L. ed. 159, 166, 11 Sup. Ct. Rep. 559. And as the state courts in their decisions would follow their own notions about the law and might change them from time to time, it would be strange if the state might not make changes by its other mouthpiece, the legislature. The same argument that deduces the legislative power of Congress from the jurisdiction of the national courts, tends to establish the legislative power of the state where Congress has not acted. Accordingly, it has been held that a statute giving damages for death caused by a tort might be enforced in a state court, although the tort was committed at sea. American S. B. Co. v. Chase, 16 Wall. 522, 21 L. ed. 369. So far as the objection to the state law is founded on the admiralty clause in the Constitution, it would seem not to matter whether the accident happened near shore or in mid-ocean, notwithstanding some expressions of doubt. The same conclusion was reached in McDonald v. Mallory, 77 N. Y. 546, 33 Am. Rep. 664, where the death occurred on the high seas. Sherlock v. Alling, 93 U. S. 99, 23 L. ed. 819, reinforces Chase's Case, and answers any argument based on the power of Congress over commerce, as to which we hardly need refer also to Cooley v. Port Wardens, 12 How. 299, 13 L. ed. 996; Ex parte McNeil, 13 Wall. 236, 20 L. ed. 624; Wilson v. McNamee, 102 U. S. 572, 26 L. ed. 234; and Homer Ramsdell Transp. Co. v. La Compagnie G en erale Transatlantique, 182 U. S. 406, 45 L. ed. 1155, 21 Sup. Ct. Rep. 831, concerning state pilotage laws.

The jurisdiction commonly expressed in the formula that a vessel at sea is regarded as part of the territory of the state was held, upon much consideration, to belong to Massachusetts, so far as to give preference to a judicial assignment in insolvency of such a vessel over an attachment levied immediately upon her arrival at New York, in Crapo v. Kelly, 16 Wall. 610, 21 L. ed. 430. That decision was regarded as necessitating the conclusion reached in McDonald v. Mallory, supra. Other instances of state regulation are mentioned in The City of Norwalk, 55 Fed. 98, 106; but without further recapitulation of the authorities, we are of opinion that the statute is valid. See Workman v. New York, 179 U. S. 552, 563, 45 L. ed. 314, 321, 21 Sup. Ct. Rep. 212. We should add, what has been assumed thus far, as it had to be assumed in order to raise the question discussed, that we construe the statute as intended to govern all cases which it is competent to govern, or, at least, not to be confined to deaths occasioned on land. McDonald v. Mallory, supra. If it touches any case at sea, it controls this. See The Belgenland (The Belgenland v. Jensen) 114 U. S. 355, 370, 29 L. ed. 152, 157, 5 Sup. Ct. Rep. 860. Whether it is to be taken to offer a similar liability of Delaware owners to foreign subjects (Mulhall v. Fallon, 176 Mass. 266. 54 L.R.A. 934, 79 Am. St. Rep. 309, 57 N. E. 386) need not be determined now.

We pass to the other branch of the first question,—whether the state law, being valid, will be applied in the admiralty. Being valid, it created an obligatio,—a personal liability of the owner of the Hamilton to the claimants. Slater v. Mexican Nat. R. Co. 194 U. S. 120, 126, 48 L. ed. 900, 902, 24 Sup. Ct. Rep. 581. This, of course, the admiralty would not disregard, but would respect the right when brought before it in any legitimate way. Ex parte McNiel, 13 Wall. 236, 243, 20 L. ed. 624, 626. It might not give a proceeding in rem, since the statute does not purport to create a lien. It might give a proceeding in personam. The Corsair (Barton v. Brown) 145 U. S. 335, 347, 36 L. ed. 727, 731, 12 Sup. Ct. Rep. 949. If it gave the latter, the result would not be, as suggested, to create different laws for different districts. The liability would be recognized in all. Nor would there be produced any lamentable lack of uniformity. Courts constantly enforce rights arising from and depending upon other laws than those governing the local transactions of the jurisdiction in which they sit. But we are not concerned with these considerations. In this case the statutes of the United States have enabled the owner to transfer its liability to a fund and to the exclusive jurisdiction of the admiralty, and it has done so. That fund is being distributed. In such circumstances all claims to which the admiralty does not deny existence must be recognized, whether admiralty liens or not. This is not only a general principle (Andrews v. Wall, 3 How. 568, 573, 11 L. ed. 729, 731; The J. E. Rumbell, 148 U. S. 1, 15, 37 L. ed. 345, 348, 13 Sup. Ct. Rep. 498; admiralty rule 43; The Galam, 2 Moore P. C. C. N. S. 216, 236), but is the result of the statute which provides for, as well as limits, the liability, and allows it to be proved against the fund (The Albert Dumois, 177 U. S. 240, 260, 44 L. ed. 751, 762, 20 Sup. Ct. Rep. 595. See Workman v. New York, 179 U. S. 552, 563, 45 L. ed. 314, 321, 21 Sup. Ct. Rep. 212).

The second question concerns the right of the representatives of the crew to recover their claims in full. There is a faint suggestion that the mate of the Saginaw was negligent; but on this point we shall not go behind the findings below. The main objection is that the statute allows a recovery beyond the maintenance and support which were declared in The Osceola, 189 U. S. 158, 175, 47 L. ed. 760, 764, 23 Sup. Ct. Rep. 483, to be the limit of a seaman's rights against his own vessel when injured by the negligence of the master or a fellow servant on his ship. But the question here regards the liability of the Hamilton, another vessel. The contract between the seaman and the owners of the Saginaw does not affect the case. Erie R. Co. v. Erie & W. Transp. Co. 204 U. S. 220, 226, 51 L. ed. 450, 453, 27 Sup. Ct. Rep. 246. Neither does the Harter act, even if its terms could be extended to personal injuries and loss of life. The Chattahoochee, 173 U. S. 540, 43 L. ed. 801, 19 Sup. Ct. Rep. 491. Neither does the negligence of the Saginaw. The Atlas (Phoenix Ins. Co. v. The Atlas) 93 U. S. 302, 23 L. ed. 863.

We are of opinion that all the claimants are entitled to the full benefits of a statute 'granting the right to relief where otherwise it could not be administered by a maritime court.' Workman v. New York, 179 U. S. 552, 563, 45 L. ed. 314, 321, 21 Sup. Ct. Rep. 212.

Decree affirmed.