arks "But it is asked, If they were we would this court hold plea of It may be time enough to anwhenever the fact occurs. In I will say, without scruple, that inconvenience that would arise if cart of justice was to hold plea in or, conversely, if American courts areas of this nature respecting the Bh seamen on such occasions; esa question of jus gentium, and ferent from the question of a tract which is a creature of the tions of the country, to be apstred and explained by its own There might be good reason, for this court to decline to interfere and to remit them to their own tram, but this is a general claim, ral round of quantum meruit, by a sound discretion, acting on es and I can see no reason why ould be afraid to trust to the the courts of another on such a quesnature, so to be determined. de, 1 Rob., 271, 278. become settled very much in acse views. That was a case of the same principles would seem to case of destroying or injuring a of saving it. Both, when acted se between persons of different come within the domain of the faticas, or communis juris, and proper subjects of inquiry in miralty which first obtains juthe rescued or offending ship at injustice of the meritorious or of controvercies between foreigners in cases not Of course, if any treaty stipulations exist be In the absence of such treaty stipulations, Mr Martin, of Maryland, who, how-however, the case of foreign seamen is undoubt press the point, and referred to edly a special one when they sue for wages unts of Sir William Scott in The der a contract which is generally strict in its Justice Marshall, speaking character and framed according to the laws of disposed of the question as fol- the country to which the ship belongs; framed $t has been suggested," said he also with a view to secure, in accordance with risdiction of the court; and those laws, the rights and interests of the shipAt the authorities the point does owners as well as those of master and crew, as : have been ever settled. These well when the ship is abroad as when she is at her founded on the idea that up- home. Nor is this special character of the case of peteral policy this court ought entirely absent when foreign seamen sue the ace of a case entirely between master of their ship for ill-treatment. On genfrom any positive incapacity eral principles of comity, admiralty courts of er the considerations drawn other countries will not interfere between the Tetence those in favor of the parties in such cases unless there is special reason much to over-balance those for doing so, and will require the foreign conis the opinion of this court sul to be notified, and, though not absolutely may exist in a case where bound by, will always pay due respect to, his be objected to there ought wishes as to taking jurisdiction. er the parties assent to it." In cyrting had not been taken in it was in the present. But **low that circumstance can affect of the court, however much it Hiace a discretion in taking jurisdic yes often exist which render en warns for the court to take jurisdiction Not alone, however, in cases of complaints made by foreign seamen, but in other cases also where the subjects of a particular nation invoke the aid of our tribunals to adjudicate between them and their fellow-subjects as to matters of contract or tort solely affecting themselves and determinable by their own laws, such tribunals will exercise their discretion whether to take cognizance of such matters or not. A salvage [364] [365] [367] case of this kind came before the United States are in general substantially governed by t master and crew of a British ship found anoth- Justice Story's decision in this case was So, in a question of ownership of a foreign In 1839 a case of collision on the high se between two foreign ships of different countri (the very case now under consideration) can before the English Admiralty. The Johan Friederich, 1 W. Rob., 35. A Danish ship w sunk by a Bremen ship, and on the latter bein libeled, the respondents entered a protest again the jurisdiction of the court. But jurisdictio was retained by Dr. Lushington, who, among other things, remarked: "An alien friend is e titled to sue [in our courts] on the same fo ing as a British-born subject; and, if the fo eigner in this case had been resident here ar the cause of action had originated infra corp comitatus, no objection could have been taken Reference being made to the observations Lord Stowell in cases of seamen's wages, t judge said: "All questions of collisions a questions communis juris; but in cases mariners' wages, whoever engages voluntari to serve on board a foreign ship necessarily u dertakes to be bound by the law of the count to which such ship belongs, and the legality his claim must be tried by such law. the most important distinctions, therefore, specting cases where both parties are foreig ers is whether the case be communis juris not. *** If these parties must wait until t vessel that has done the injury returned to own country their remedy might be altogeth lost, for she might never return; and if she d there is no part of the world to which the might not be sent for their redress." One In the subsequent case of The Griefswald, Swab., 430, decided by the same judge, in 185 which arose out of a collision between a Briti barque and a Persian ship, in the Dardanelle Dr. Lushington said: "In cases of collision has been the practice of this country, and, far as I know, of the European States and the United States of America, to allow a par alleging grievance by a collision to proceed rem against the ship wherever found, and th practice, it is manifest, is most conducive justice, because in very many cases a reme in personam would be impracticable." But, although the courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong, yet where such controversies are communis juris—that is, where they arise under the common law of nations-special grounds should appear to induce the court to deny its aid to a foreign suitor when it has jurisdiction of the ship or party charged. The existence of jurisdiction in all such cases is beyond dispute; the only question will be whether it is expedient to exercise it. See 2 Parsons on Ship. & Adm., 226, and cases cited in notes. In the case of The Jerusalem, 2 Gall., 191, decided by Mr. Justice Story, jurisdiction was exercised in the case of a bottomry bond, although the contract was made between subjects of the Sublime Porte, and it did not appear that it was intended that the vessel should come to the United States. In this case Justice Story examined the subject very fully and came to the conclusion that wherever there is a maritime lien on the The subject has frequently been before of ship an admiralty court can take jurisdiction own admiralty courts of original jurisdictio on the principle of the civil law-that in pro-and there has been but one opinion expresse ceedings in rem the proper forum is the locus rei sita. He added: "With reference, therefore, to what may be deemed the public law of Europe, a proceeding in rem may well be maintained in our courts where the property of a foreigner is within our jurisdiction. Nor am I able to perceive how the exercise of such judicial authority clashes with any principles of public policy." That, as we have seen, was a case of bottomry, and Justice Story, in answer to the objection that the contract might have been entered into in reference to the foreign law, after showing that such law might be proven here, said: "In respect to maritime contracts there is still less reason to decline the jurisdiction, for in almost all civilized countries these namely: that they have jurisdiction in su cases and that they will exercise it unle special circumstances exist to show that justi would be better subserved by declining it. was exercised in two cases of collision comi before Mr. Justice Blatchford, whilst distri judge of the Southern District of New Yor The Jupiter, 1 Ben., 536, and The Steamsh Russia, 8 Ben., 471. In the former case t law was taken very much for granted; in t latter it was tersely and accurately expound with a reference to the principal authoriti Other cases might be referred to, but it is u necessary to cite them. The general doctri on the subject is recognized in the case of 1 Maggie Hammond, 9 Wall., 435, 457 [76 U. 772,780), and is accurately stated Taney in his dissenting opinion * 7 Carryi, 20 How., 611 [61 Ü. Š., bk. nationalities, arising on the high seas, not with. in the jurisdiction of any nation, there can be no doubt that it must be the general maritime law as understood and administered in the courts of deeption of jurisdiction in such the country in which the litigation is prosecuted. me, renda so largely on the discretion of the The rule is laid down in many cases; amongst instance, it is necessary to inquire others the following: The Johann Friederich, pellate court should undertake to 1 W. Rob., 35; The Dumfries, 1 Swab., 63; The We are not without author- Zollverein, Id., 96; The Griefwald, Id., 430; The wy character on this point. In Wild Ranger, Lush., 553; The Belle, 1 Ben., cent case in England-that of The Leon 320; The Scotia, 14 Wall., 171 [81 U. S., bk. 20, F. Div., 121-the subject was dis- L. ed. 822]; The Scotland, 105 U. S., 24, 29 [bk. the cut of appeal. That was the 26, L. ed. 1001, 1003]; The Leon, 6 Prob. Div., Ash vessel libeled for the wages of 148. In the case last cited, which was that of seamen who had shipped on a British ship run down by The Leon, a Spanish and the Spanish consul at Liver- ship, the question was specifically raised by the agast the jurisdiction of the respondents (the owners of The Leon), who set on the ground that the ship-up in defense that if there was any negligence were a Spanish contract, to be in her navigation her master and crew, and not Spanish law, and any controversy her owners, were liable by the Spanish law. - could only be settled before a This defense was overruled, and the general or consul. Sir Robert Philli- maritime law as understood and administered the seamen were to be regarded in England was held to govern the case; by **Spanish subjects, and under which law the owners were held responsible. s be considered the protest a The same rule was followed by this court in smissed the suit. The court The Scotland, and was applied to the collision that the judge below was right of a British with an American ship on the high the belants as Spanish subjects: seas, although it is true we applied to that ion of reviewing his exercise of case the rule of limited liability established by ing to take jurisdiction of the the Act of Congress, regarding that Act as deMB, said: "It is then said that clarative of the general maritime law to be adedge has exercised his discretion ministered by our courts. Wat, then, is the rule as regards this curt of appeal? The plaintiffs that the judge has exercised his ng principles, or that he has ely differently from the view of appeal holds, that they are She has exercised it wrongly. any wrong principle has been arned judge or anything done f his discretion so unjust or eatle us to overrule his discre The rule requiring the application of the general maritime law to such cases has some qualifications which, though not affecting the present case, should always be borne in mind. One of these qualifications is that the persons in charge of either ship will not be open to blame for following the sailing regulations and rules of navigation prescribed by their own government for their direction on the high seas; because they are bound to obey such regula tions. The Scotia, 14 Wall., 170, 184 [81 U. S., bk. 20, L. ed. 822, 824]. Another qualificato us to be a very sound view of tion is that if the maritime law as administered and acting on this principle we by both nations to which the respective ships thing in the course taken by the belong be the same in both in respect to any ming jurisdiction of the matter of liability or obligation, such law, if which calls for animadversion. shown to the court, should be followed in that the parties are not only foreign-matter in respect to which they so agree, though to different nations, and the it differ from the maritime law as understood service takes place on the high in the country of the forum; for, as respects to be no good reason why the the parties concerned, it is the maritime law ordring the service should ever which they mutually acknowledge. The Scot are in our courts. Neither party land [supra]. claim to be judged by the bis own country, since the one communis juris and more impartially and satisfacby the court of a third nation of the res or parties than it arts of either of the nations belong. As Judge Deady in case before him in the "The parties cannot be refram, for, being subjects of , there is no such tribunal. is common to them both by - many court of admiralty within process they may both be jerry Greene, 3 Sawy., 230, 235, ach should be applied in parties or ships of different The first of these qualifications can rarely be called into requisition at the present day, since for more than twenty years past all the principal maritime nations of the world (at least those whose vessels navigate the Atlantic Ocean) have concurred in adopting a uniform set of rules and regulations for the government of vessels on the high seas. These rules and regulations have become international, and virtually a part of the maritime law. The Scotia [supra]. They will be presumed to be binding upon foreign as well as domestic ships unless the contrary is made to appear.* The International Rules of 1863 (Abbott on Ship., 11th ed., App. CCCLXIX; 13 Rev. Stat., 55) [370] [371] [372] We are then brought to the question of the | sive proof of negligence that it may be regarde merits of the case between the parties as shown as properly found amongst the conclusions o by the pleadings and finding of facts. And law as a legal inference from those facts. this does not require any extended discussion. S. v. Pugh, 99 U. S., 265 [bk. 25, L. ed. 322 It is shown that the barque had her proper The counsel of the appellants suppose that th lights burning brightly, visible, on a dark night court below found the Belgenland in fault o and with a clear atmosphere, at least two miles; the mere presumption arising from the fact o and that, in character and location, they con- collision and the primary duty of the steam formed to the regulations of the barque's ship to avoid it. But this is not a just view o nationality, which are the same as those of the the decision. There was much more in th British Board of Trade (or the International | facts of the case than the existence of such Rules before referred to); that the mast-head presumption, as the foregoing rehearsal of th light of the steamer was sighted right ahead, facts clearly shows. The ability to see object distant about a mile; that the barque was kept at a distance; the fact that the men in charge o steady on her course until the steamer was the steamer failed to see the barque, whilst almost upon her and apparently about to run a passenger did see her from his room; the fac her down; that then the order was given to put that there was but one lookout for such a larg the helm hard a-port; that in a few seconds the steamer; that other lookouts could have bee steamer's starboard light came in view, and in stationed on the turtle-back; the fact that th another instant she struck the barque in her speed was not slackened and no precaution port side, cutting her in two obliquely. In all taken to get a better view ahead; these facts, i this we see nothing that the people in charge of addition to the presumption arising from th the barque did which it was not their duty to do steamer's duty, present a very different cas by the International Rules. It was their duty from that supposed by the appellants. Th to keep her steady on her course, and it was the decision of the court must be taken as the co duty of the steamer to see the barque ant to lective result from the whole case. It canno avoid a collision. be judged from mere isolated expressions i the opinion. The rule contended for by the appellantsthat negligence and fault must be proved an not presumed-is undoubtedly a sound one an hardly needs cases to support it. But the ci cuit court evidently did not rest the case of presumption, but upon proof, from which properly deduced negligence on the part of th steamship. At all events this court, upon careful consideration of the facts found, is sat isfied that there was such negligence, and tha it was the cause of the catastrophe. The decree of the Circuit Court is affirmed with interest to be added to the amount from th date of the same. On the other side it appears that the steamer, which was a large and powerful one, 416 feet long and 38 feet beam, was coming towards the barque, end on, at about eleven knots an hour; that she had a lookout on the lee side of her bridge (which was over 150 feet from her bow), where the officer in charge of the deck also was; but had no other lookout on duty, the rest of the watch, except the man at the compass and one at the wheel, were underneath the turtle-back, or top-gallant forecastle. No lookout was on the turtle-back, although it would have been entirely safe to station one there. The omission to do so was for the alleged reason that the vessel was plunging into a head sea and taking so much water over her bows that he would have been of no use there. The barque was not seen by those in charge of the steamer until just at the instant of the collision; yet objects could be seen at a distance of from 500 yards to a mile and the port light of GLOUCESTER FERRY COMPANY, Plƒƒ the barque was seen by a steerage passenger on the steamer, looking out of his room just under the bridge, and was reported to his roommates long enough before the collision to enable the second steerage stewart, who heard the report, to go up the companion ladder, cross the deck and reach the steamer's rail. We think that these facts furnished a sufficient ground for the conclusions at which the court arrived, as before rehearsed; the substance of which was that the collision occurred by the negligence of those having charge of the Belgenland, in not seeing the barque and in not taking the proper precautions due to such a night and such a sea, by reducing speed and keeping a sufficient lookout. It is argued that there is no express finding They were adopted for both public and private True copy. Test: James H. McKenney, Clerk, Sup. Court, U. § in Err., v. COMMONWEALTH OF PENNSYLVA (See S. C., Reporter's ed., 196-218.) Constitutional law-interstate commerce; regu lation of taxation of capital stock of ferry company engaged in-review of authoritiesnote. 1. Commerce among the States consists of inter course and traffic between their citizens, and in cludes the transportation of persons and property and the navigation of public waters for that pur pose, as well as the purchase, sale and exchange of commodities. 2. The power to regulate interstate and foreign commerce vested in Congress is the power to pre regulation of-power of Congress how far exclusive NOTE.-Constitutional law-interstate commerce The power to regulate interstate commerce vested in Congress is the power to prescribe the rules by which it shall be conducted, to determine when i shall be free from, and when subject to, duties or other exactions. When the subjects of commerce are national in by which it shall be governed-that | pon which it shall be conducted; vten it shall be free from, and when as or other exactions. ce to the subjects of commerce The history and facts appear in the Statement of the case by Mr. Justice Field: In March, 1865, the Gloucester Ferry Comtated in their nature or sphere pany, the plaintiff in error here, was incorpoStates may prescribe regulations tervenes and assumes control. rated by the Legislature of New Jersey to esojects of commerce are national tablish a steamboat ferry from the town of require uniformity of regulation Gloucester, in that State, to the city of Philaof the States the power of Con- delphia in Pennsylvania, with a capital stock merce with foreign nations and be- of $50,000, divided into shares of $50 each. ich consists in the transporta- During that year it established, and has ever and property between them, is a ever since maintained, a ferry between those ca. Character and requires uniformCongress alone can deal with places, across the river Delaware, leasing or on, and its non-action is a declara-owning steam ferry-boats for that purpose. At remain free from burdens imposed each place it has a slip or dock on which pastransportation implies exemption sengers and freight are received and landed; her than such as are imposed by the one in Gloucester it owns, the one in Philafor the use of the property delphia it leases Its entire business consists facities afforded for its use, or as value of the property with- in ferrying passengers and freight across the river between those places. It has never transacted any other business. It does not own, and has never owned, any property, real or personal, in the city of Philadelphia other than than the lease of the slip or dock mentioned. All its other property consists of certain real estate in the county of Camden, New Jersey, needed for its business, and steamboats engaged in ferriage. These boats are registered at the port of Camden, New Jersey. It has never owned any boats registered at a port of Pennsylvania, and its boats are never allowed to remain in that State except so long as may be necessary to discharge and receive passengers and freight. of the State. anding passengers and freight the form of taxes upon such transpacts necessary to its completion the exclusive power of Congress. enterference with the landing transportation. All restraints passengers and freight which is ned to such measures as will ang the vessels and Collision are their safety and convenience, Lecharge or receipt of their pasats and a necessary means-of urse between States bordering and it must therefore be conthe imposition by the States of burdens upon the commerce beal stock of the Gloucester Ferry New Jersey corporation engaged in persons and property between tate and Philadelphia in Pennject to taxation by the State of a tax on that portion of which is involved in the persons and property, whatever y by which it is carried on. No. 185.] 2,285. Deculed Apr. 13, 1885. to the Supreme Court of the Pennsylvania. Sy In July, 1880, the auditor-general and the delphia, and was there heard upon a case stated, e uniformity of regulation, | authority is regulation. H. & St. J. R. Co. v. Husen, ster Ferry Co. v. Pa., see batik. 23, 347, 349: Gilman v. Wall.), 713, bk. 18, 96; Hen824, bk. 23, 543; Mobile 28, 1, bk. 26, 241; Brown v. red by Congress, the power ate interference. Gibbons V * Sinnot v. Davenport, 63 b. 16, 243; Hall V. De Cuir, 96 "Legislation may in a great variety of ways affect commerce and persons engaged in it, without constituting a regulation of it within the meaning of the Constitution." Hall v. De Cuir, 95 U.S., 485, supra: Sherlock v. Alling, 93 U. S., 103, bk. 23, 820; State Tax on R. Gross Receipts, 82 U. S. (15 Wall.), 284, bk. 21, 164; Munn v. Illinois, 94 U. S., 113, bk. 24, 77. The power of Congress does not extend to contracts not designed to create impediments to commerce. A Contract by an elevator company to handle all grain brought by a railroad company at a certain price is not repugnant to the power of Congress. Dubuque, etc., R. Co. v. Richmond, 86 U. S. (19 unta to a declaration that trazeled. In addition to the Wall.), 584, bk. 22, 173. xclusive control shall re1 Astiz Ferry Co. v. Pa., see Welbk. 347. Precanaba Co. b. 27, 442; Henderson v. 642, Brown. Houston, din Congress covers navigation. 2 The paramount authority to regulate bridges and other structures that affect the navigation of the navigable waters of the United States is in Conpress Newport & Cin. Bridge Co. v. U. S., 105 U. S., 470, bk. 26, 1143, and authorities cited. But in the absence of legislation by Congress, the Wh.), 1; Passenger States may authorize and regulate bridges and other obstructions to navigation within their limits. Cardwell v. Bridge Co., 113 U. S., 205, bk. 28, and authori the largest import. • ate it embraces all the instru- ties cited. Congress may improve harbors and rivers. S. Car. set the telegraph as an agency [197] |