cautions which approaching railroad trains should take to avoid collision, and relegate their enforcement to the admiralty courts.

"It is true, we have held that the boundaries and limits of the admiralty and maritime jurisdiction are matters of judicial cognizance, and cannot be affected or controlled by legislation, whether state or national.' Chief Justice Taney in the St. Lawrence, 1 Black, 522, 526, 527 [17 L. Ed. 180]; The Lottawanna, 21 Wall. 558, 575, 576 [22 L. Ed. 654]. But within these boundaries and limits the law itself is that which has always been received as maritime law in this country, with such amendments and modifications as Congress may from time to time have adopted." 36

39

This subject has been considered by the Supreme Court in connection with the statute limiting the liability of a vessel owner for torts of his ship or crew to the value of the ship. This act was passed on March 3, 1851, 9 Stat. 635 (U. S. Comp. St. §§ 8020-8027). In Norwich & N. Y. Transp. Co. v. Wright, it is said to have originated in the maritime law of modern Europe. In the SCOTLAND,38 the court, repeating what it had said in the LOTTAWANNA, says that the foreign maritime codes and compilations were operative in any country only so far as that country chose to adopt them, and not as authority per se; but that Congress could adopt such a principle into our law from the general body of maritime law. In EX PARTE PHENIX INS. CO., an application was made for the benefit of this limitation against a fire on land started by a passing steamer. The court held, however, that the limitation was only intended to protect against such causes

40

36 Butler v. Boston & S. S. S. Co., 130 U. S. 527, 9 Sup. Ct. 612, 32 L. Ed. 1017.

37 13 Wall, 104, 20 L. Ed. 585.

38 105 U. S. 24, 26 L. Ed. 1001.

39 21 Wall. 558, 22 L. Ed. 654.

40 118 U. S. 610, 7 Sup. Ct. 25, 30 L. Ed. 274.

of action as the district court could have heard on libel in rem or in personam, and a loss consummate on land was not one of these. In other words, this case settled that the limitation could only be pleaded against such causes of action as were in their nature maritime, no matter in what forum, state or federal, they were asserted.

Then came BUTLER v. BOSTON & S. S. S. CO.11 There the act was invoked as a protection against a suit on account of the death of a passenger on Massachusetts waters, brought in a Massachusetts court under a Massachusetts statute. If this cause of action was not maritime by nature, and the Massachusetts act could not have given a remedy enforceable in the admiralty, it would have been the duty of the court, under the principles of EX PARTE PHENIX INS. CO., to have refused the benefit of the limited liability act against the suit as one of which a District Court would not have had original jurisdiction in admiralty. But the court decided that Congress had power to adopt the act from the Continental maritime codes, and to extend its protection to death cases, and that this power came from the admiralty and maritime clause of the Constitution, not from the commerce clause.42

This would settle the question that such a cause of action is maritime by nature, if it were not clear enough already. In the first part of this chapter it has been shown that the leading Continental maritime nations recognized such a right of action. If Congress can ingraft on our maritime law their limited liability act, it can, on the same principle, borrow their action for death injuries.

This reasoning is not affected by the later case of Richardson v. Harmon,43 which held that nonmaritime causes of

41 130 U. S. 527, 9 Sup. Ct. 612, 32 L. Ed. 1017.

42 See, also, Albert Dumois, 177 U. S. 240, 20 Sup. Ct. 595, 44 L. Ed. 751.

43 222 U. S. 96, 32 Sup. Ct. 27, 56 L. Ed. 110.

action could also be proved in a limited liability proceeding. It turned not upon the original limited liability act construed in ex parte Phenix Ins. Co., but on the amendment of June 26, 1884.**

If this reasoning and the above authorities establish that such a cause of action is maritime, two results follow:

(1) A state statute can be made to regulate the right, and can give it in personam or in rem, enforceable in the admiralty, or by an ordinary personal action in its own

courts.

(2) An act of Congress may also regulate the subject, and in such case it would supersede the state statute, at least so far as foreign vessels are concerned, or as far as it would regulate the remedy in admiralty.*

44 23 Stat. 57 (U. S. Comp. St. § 8028); Appendix, post, p. 497. * When this work was nearly through the press, Congress passed the following:

[Public-No. 165-66th Congress.]

[S. 2085.]

An Act Relating to the maintenance of actions for death on the high seas and other navigable waters.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.

Sec. 2. That the recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought.

Sec. 3.

That such suit shall be begun within two years from the

In the concluding paragraph of the opinion in BUTLER v. BOSTON & S. S. S. CO., supra, the court reserves the question whether a state statute can have this effect. This was probably a mere cautious reservation of a question not directly involved, but the conclusion would seem to follow from the above authorities.

date of such wrongful act, neglect, or default, unless during that period there has not been reasonable opportunity for securing jurisdiction of the vessel, person, or corporation sought to be charged; but after the expiration of such period of two years the right of action hereby given shall not be deemed to have lapsed until ninety days after a reasonable opportunity to secure jurisdiction has offered.

Sec. 4. That whenever a right of action is granted by the law of any foreign State on account of death by wrongful act, neglect, or default occurring upon the high seas, such right may be maintained in an appropriate action in admiralty in the courts of the United States without abatement in respect to the amount for which recovery is authorized, any statute of the United States to the contrary notwithstanding.

Sec. 5. That if a person die as the result of such wrongful act, neglect, or default as is mentioned in section 1 during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal representative of the decedent may be substituted as a party and the suit may proceed as a suit under this Act for the recovery of the compensation provided in section 2.

Sec. 6. That in suits under this Act the fact that the decedent has been guilty of contributory negligence shall not bar recovery, but the court shall take into consideration the degree of negligence attributable to the decedent and reduce the recovery accordingly.

Sec. 7. That the provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this Act. Nor shall this Act apply to the Great Lakes or to any waters within the territorial limits of any State, or to any navigable waters in the Panama Canal Zone.

Sec. 8. That this Act shall not affect any pending suit, action, or proceeding.

Approved, March 30, 1920.

HUGHES, ADM.(2D ED.)—16

THE LAW GOVERNING

115. The right of action is governed by the law of the place where it arose; or by the law of the flag if it arose

on the high seas; in so far as the relations of the parties under the flag are concerned.

If the death occurs from a collision between two vessels of different flags, there is no right of action by those fatally injured on one vessel against the other vessel, where the collision occurs on the high

seas.

It is an important question what law governs in such cases. A state statute would regulate any such occurrence on the waters within its jurisdiction, and any negligent killing on the high seas of any one on a vessel would be governed by the laws of the vessel's hailing port as far as those aboard are concerned.45

It is a favorite principle of admiralty that its rights of action follow a ship around the world, and may be enforced in any port. This is true as to personal injuries, and in such cases the court enforces the law of the place where

45 McDonald v. Mallory, 77 N. Y. 546, 33 Am. Rep. 664; Hamilton, 207 U. S. 398, 28 Sup. Ct. 133, 52 L. Ed. 264 (a collision between two ships of the same flag, where the law common to both was applied): La Bourgogne, 210 U. S. 95, 28 Sup. Ct. 664, 52 L. Ed. 973 (a French ship, where the French law was applied in favor of those aboard); Bjolstad v. Pacific Coast S. S. Co. (D. C.) 244 Fed. 634; International Nav. Co. v. Lindstrom, 123 Fed. 475, 60 C. C. A. 649. In Davidson v. Hull, [1901] 2 K. B. 606, which was a collision on the high seas between a Norwegian and an English vessel, causing the death by drowning of one of the Norwegian's crew, it was held that a suit would lie against the English vessel. The question turned, however, mainly on the construction put on the English act of Parliament as a question of intent, and not on any application of the principles of Conflict of Laws.