jurisdiction of the legislative powers of any one nation to make the maritime law for the whole world, so far as the courts of other countries are concerned."

Whether, by virtue of the general consent of the nations, as above described, any one nation would be authorized as against the others so to modify its maritime law as to make that maritime which they should unite in declaring to be not maritime, it is not necessary to determine, inasmuch as the cause of action in question is clearly maritime.

The stress laid by the Court of Appeals on the legislative character of the law which it declared no one nation had power to make, raises the preliminary inquiry as to whether a statutory modification of the maritime law would stand on any different footing from a modification by judicial decision.

There can be no ground for laying down the arbitrary proposition that the nations have consented to each other's adjudicating as to transactions on the high seas in accordance with the law of the sea as declared by the courts of the forum and not as declared by its legislature. Either the admiralty jurisdiction is based on a consent which involves such changes within admitted maritime limits as each nation finds necessary or expedient, or it is based on a consent which involves only the maritime law as each nation conceives it, in its pure form, to be. In the latter case a change by judicial decision must be as obnoxious as one by legislative enactment. For example, in The Genesee Chief1 the Supreme Court of the United States declared that the admiralty jurisdiction embraced the Great Lakes, and that therefore the Act of Congress of February 26, 1845,2 which purported to extend the admiralty jurisdiction to the Great Lakes was, so far as that was concerned, void and of no effect. What difference could it make to Great Britain, if she were inclined to object to the extension of the in rem process and maritime liens to her vessels in a place that had never before been subject to the admiralty jurisdiction, whether that extension resulted from the statute or the decision? There is no basis for any distinction.

Assuming, therefore, that a nation cannot draw within its maritime jurisdiction that which is admittedly not maritime, and that, if any change at all may be made it may be as well by statute as by judicial decision, is there any line beyond which a single state

1 12 How. (U. S.) 443

25 Stat. at L. 726.

cannot go in modifying its maritime law, where other nations are involved?

It is very clear, to begin with, that vital changes in the general maritime law have been made by the different maritime states and have been generally acquiesced in.

Take, for instance, the subject of limitation of liability. Here is a matter which the Supreme Court of the United States. has repeatedly declared to be peculiarly a subject of admiralty jurisdiction.1

Limitation of liability has been a well-established principle of the general maritime law of Europe since medieval times. Yet England refused to recognize any such principle until 1734, and then only to a limited extent. Not until 1862 did the principle receive its fullest measure of recognition there, and today the rule is substantially less favorable to shipowners than in almost any other important maritime jurisdiction. While the states of Massachusetts and Maine enacted limited liability statutes in 1818 and 1820, it was not until 1851 that Congress took any action on the matter.2

The rejection by England and the United States of the doctrine of limitation of liability was a modification of the maritime law as generally received. It was moreover a modification of the most vital importance. The fiat of the English and American courts at one stroke took away from shipowners a protection which confined their liability to the value of the ship and freight pending, and which in many cases would amount to a complete defense, and substituted in the place thereof an infinite liability.

Yet it was never heard that a decree of an English or American admiralty court before the days of limited liability in those countries holding foreign shipowners to an unlimited liability failed of recognition in foreign countries as a valid decree on the ground suggested. The extension of the American admiralty jurisdiction to the

1 The Scotland, 105 U. S. 24; Providence & N. Y. S. S. Co. v. Hill Mfg. Co., 109 U. S. 578; Butler v. Boston S. S. Co., 130 U. S. 527, 549; In re Garnett, 141 U. S. 1; 13; Oregon Railroad & Navigation Co. v. Balfour, 179 U. S. 55, 56.

2 Norwich & N. Y. Transportation Co. v. Wright, 13 Wall. (U. S.) 104; The Scotland, 105 U. S. 24; Butler v. Boston S. S. Co., 130 U. S. 527, 556; In re Garnett, 141 U. S. 1, 14; The Rebecca, 1 Ware (U. S.) 188; The Epsilon, 6 Ben. (U. S.) 378; Thomassen v. Whitwell, 9 Ben. (U. S.) 458; In re Long Island, etc., Transportation Co., 5 Fed. 599; The Katie, 40 Fed. 480, 494; In re Whitelaw, 71 Fed. 733, 734.

Butler v. Boston S. S. Co., 130 U. S. 527, 556; In re Garnett, 141 U. S. 1, 14; The Katie, 40 Fed. 480, 494.

Great Lakes,1 already referred to, also involved a vital change by which foreign ships might be subjected to the peculiar admiralty process in a large field where the admiralty was never supposed to have any jurisdiction whatever. There is no evidence that England has ever refused to recognize a decree of an American admiralty court pronounced in pursuance of this extension of the admiralty jurisdiction of the United States.

Another striking example is presented by the Harter Act.2

The Act applies to foreign as well as domestic vessels. It is narrower than the limited liability acts in applying only to the relations between ship and cargo, and it is broader in extending a complete, in place of a partial, immunity.

By the general maritime law of Great Britain a stipulation relieving a carrier from responsibility for the negligence of his servants is valid. The Harter Act declares such stipulations absolutely invalid, thereby following the decisions of the American courts, which refused to enforce such contracts even when they contained a clause providing that the English law should govern.

If, therefore, an American citizen shipped goods by a British ship from a British port to New York under a bill of lading which stipulated that the shipowner should not be responsible for the negligence of the master or crew and that the British law should govern, Sections 1 and 2 of the Harter Act would, if the ship were libelled by the cargo-owner in an American court, deprive the shipowner of the benefit of his stipulation, whether or not he obtained the benefit of the exemption of Section 3. Conversely, if a citizen of Great Britain shipped goods in an American bottom from an American port to Liverpool under a bill of lading not containing any exempting clause, but providing that the English law should govern, the cargoowner might, under Section 3 of the Act, be deprived of all redress for the loss of his goods if his suit were brought in an American

court.

Yet there can hardly be a question that the judgment of the

1 The Genesee Chief, 12 How. (U. S.) 443; The Hine, 4 Wall. (U. S.) 555; The Glide, 167 U. S. 606, 614; Water Power Co. v. Water Commissioners, 168 U. S. 349, 361.

2 Act of Feb. 13, 1893, c. 105, 27 Stat. at L. 445.

8 The Carib Prince, 170 U. S. 655; The Silvia, 171 U. S. 462; The Chattahoochee, 173 U. S. 540; The Etona, 64 Fed. 880.

4 The Delaware, 161 U. S. 459.

5 Carver, Carriage by Sea, 3 ed., 117, § 101.

6 Ibid. 122, § 103 a.

American courts would in all such cases be recognized as valid in Great Britain.

Further, it is at least questionable how far, prior to the decision in the case of The Bold Buccleugh1 in the year 1851, the maritime law of England gave a lien for collision damage. At one period, at any rate, there was, and perhaps at the present time there is, no lien under the English law in the absence of a personal remedy against the owners. Even in the modern decisions most favorable to the lien it is limited to cases where the collision is caused by the fault of the owner or those who may fairly be said to represent him.2 Contrast this doctrine with the broad American rule that gives a lien for collision damage in all cases whatsoever.3

It might well happen that a British ship, libelled in an American admiralty court in a collision case, would be held, under circumstances which would not give rise to a lien according to the maritime law of England. It is not probable, however, that Great Britain would refuse to recognize the validity of such a decree because it involved a modification of the maritime law to which she had not consented.

It thus appears that the different nations have not hesitated to make important changes, both by statutes and by judicial decisions, in the maritime law; that these changes have for the most part been made by each state separately and alone; and that the other states have not failed to acquiesce in adjudications rendered in accordance with these changes, even although their own citizens or vessels were affected.

Assume, however, that there is a line beyond which the nations cannot be presumed to have gone in consenting to each other's jurisdiction as to transactions on the high seas; where is that line to be drawn? Shall we say that in giving this consent the nations had reference to the general maritime law as it was understood at a given period, and that all subsequent modifications or amendments must be disregarded? If so, what is that period of time and who is to determine it? Or is the general maritime law as commonly accepted without reference to any particular period of time

2 Abbott, Merchant Ships and Seamen, 14 ed., 1011; Marsden, Collision, 5 ed., 72, 80 et seq.; Williams & Bruce, Adm. Pr., 3 ed., 82; The City of Norwalk, 55 Fed. 98, 111. 8 The Palmyra, 12 Wheat. (U. S.) 1, 14; Brig Malek Adhel, 2 How. (U. S.) 210, 234; Thorp v. Hammond, 12 Wall. (U. S.) 408; The Clarita and the Clara, 23 ibid. 1 ; Workman v. The Mayor, 179 U. S. 552; The Barnstable, 181 U. S. 464, 467.

the important feature? In any view, who is to determine what the general maritime law is at any period of time? It is obvious that there would be as many separate answers to these questions as there are maritime nations. Those answers, moreover, would be not unlikely to be conflicting. It is quite certain that each nation would determine for itself what the general maritime law was, and whether or not a particular statute or decision of a foreign tribunal was a departure therefrom. The result could only be confusion.

Even supposing it were possible to arrive at some agreement as to what the general maritime law was at any particular period, still it is not to be presumed unless cogent reasons compel, that the maritime states deliberately bound themselves to a hard and fast system of law unchanging and unchangeable however imperatively the shifting conditions of society might demand modification.

As Mr. Justice Holmes puts it in The Blackheath,1 "It would be a strong thing to say that Congress has no constitutional power to give the admiralty here as broad a jurisdiction as it has in England or France."

The suggestion, though made in a different connection, is wholly pertinent to the present discussion. It is impossible to believe that the nations could have contemplated that the system of law which they had agreed might be administered by each other in relation to maritime affairs should forever remain unalterable. They must have contemplated the possibility of modification. Yet, except in the extremely improbable event of an international agreement, no modification could be effected otherwise than by the maritime states separately.

If the admiralty jurisdiction respecting transactions on the high seas rests on the consent of the different maritime states, as it most assuredly does, those states by force of such consent have the right to adjudicate upon such transactions by the principles of the general maritime law as understood and administered in any state assuming jurisdiction, and as that state in the exercise of a reasonable discretion may, within the limits above referred to, choose to alter or modify it by statute or decision, having due regard to the fact that "the convenience of the commercial world, bound together, as it is, by material relations of trade and intercourse, demands that, in all essential things wherein those relations bring them [the

1 195 U. S. 361, 364. See also The Lottawanna, 21 Wall. (U. S.) 558; Butler v. Boston S. S. Co., 130 U. S. 527, 555; In re Garnett, 141 U. S. 1, 13; In re Long Island, etc., Transportation Co., 5 Fed. 599, 616; The Katie, 40 Fed. 480, 493