U. S. 170, 172. These established principles and our holding in Central Vermont Ry. Co. v. White, 238 U. S. 507, 511, 512, we think make it clear that the question of burden of proof is a matter of substance and not subject to control by laws of the several States. It was also error to give quoted instruction number eight. Since the deceased endured no conscious suffering he had no right of action; and possible recovery was limited to pecuniary loss sustained by the designated beneficiary. Garrett v. Louisville & Nashville R. R. Co., 235 U. S. 308, 312; Chesapeake & Ohio Ry. Co. v. Kelly, 241 U. S. 485, 489. The act makes the widow sole beneficiary when there is no child and only in the absence of both may parents be considered. The deceased left a widow and although they had lived apart no claim is made that rights and liabilities consequent upon marriage had disappeared under local law. Of course, we do not go beyond the particular facts here disclosed. In the circumstances, proof of the mother's pecuniary loss could not support a recovery. The judgment below is reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed. CHELENTIS v. LUCKENBACH STEAMSHIP COMPANY, INCORPORATED. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT. No. 657. Argued April 18, 1918.-Decided June 3, 1918. By the general maritime law, the vessel owner is liable only for the maintenance, cure and wages of a seaman injured in the service of his ship, by the negligence of a member of the crew, whether 372. Argument for Petitioner. a superior officer or not; and this liability is not subject to be enlarged to full common-law indemnity by the law of a State. Southern Pacific Co. v. Jensen, 244 U. S. 205. So held, in a case brought in a state court of New York, and removed to the District Court, to recover full common-law damages from a Delaware owner for injuries received at sea on a voyage to New York. Section 20 of the Seamen's Act of March 4, 1915, c. 153, 38 Stat. 1185, declaring "seamen having command shall not be held to be fellowservants with those under their authority," was not intended to substitute the common-law measure of liability for the maritime rule in such cases. The Judiciary Act of 1789, § 9, giving exclusive original admiralty and maritime jurisdiction to the District Courts, saves "to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." Held, that this, recognizing the fundamental distinction between rights and remedies, allows a right sanctioned by maritime law to be enforced through an appropriate common-law remedy, but does not give a plaintiff his election to have the defendant's liability measured by common-law standards instead of those prescribed by the maritime law. 243 Fed. Rep. 536, affirmed. THE case is stated in the opinion. Mr. Silas B. Axtell, with whom Mr. Arthur L. Burchell was on the brief, for petitioner: All decisions concede to the common-law courts the right to apply their own remedies in accordance with the provisions of the saving clause in § 9 of the Judiciary Act of 1789. As concurrent remedies existed at common law and under the maritime law in such cases, a suitor always enjoyed the right to determine which remedy should be pursued. Leon v. Galceran, 11 Wall. 185 (an action for wages); Schoonmaker v. Gilmore, 102 U. S. 118 (a collision case); Chappell v. Bradshaw, 128 U. S. 132 (damages by fire caused by negligence); Knapp v. McCaffrey, 177 U. S. 638 (lien for towage); Kalleck v. Deering, 161 Massachusetts, 469 (personal injuries to a seaman, opinion per Mr. Justice Holmes).. Argument for Petitioner. 247 U.S. The concurrent jurisdiction of the two systems of law arises from the saving clause and it has been held many times that the only remedy which the common law is not competent to give under that section is the right to an action in rem in a maritime matter. Of those cases the admiralty courts have unquestioned and exclusive jurisdiction. McDonald v. Mallory, 77 N. Y. 546; The Hamilton, 207 U. S. 398; Rounds v. Cloverport Foundry, 237 U. S. 301; The Hine v. Trevor, 4 Wall. 555. In saving the common law Congress intended to save the common law of the States, there being no United States common law. Wheaton v. Peters, 8 Pet. 591-657; Western Union Telegraph Co. v. Call Publishing Co., 181 U. S. 92-101. This intention was crystallized by § 721, Rev. Stats. Congress intended to supplement the very limited law of the sea by saving rights at common law. See The Moses Taylor, 4 Wall. 411; Waring v. Clarke, 5 How. 440, 460– 461; American Steamboat Co. v. Chase, 16 Wall. 522, 530, 532, 534; Atlee v. Packet Co., 21 Wall. 389, 395. Southern Pacific Co. v. Jensen, 244 U. S. 205; and Schwede v. Zenith S. S. Co., 244 U. S. 646, show clearly that there are two jurisdictions, each independent of the other and each working out its own body of law according to its own ideas. A few illustrations will serve to show the application of different law upon the same facts in these two courts. Erie R. R. Co. v. Erie Transportation Co., 204 U. S. 220; Belden v. Chase, 150 U. S. 674; Workman v. New York City, 179 U. S. 552; The China, 7 Wall. 53; Homer Ramsdell Co. v. Compagnie Générale, etc., 182 U. S. 406; Quebec S. S. Co. v. Merchant, 133 U. S. 375; The Osceola, 189 U. S. 158. In England the courts of common law apply common-law principles (Hedley v. Pinkney, [1894] A. C. 222); also in Ireland (Ramsay v. Quinn, Ir. Rep. 8 C. L. 322), and in Scotland (Leddy v. Gibson, 11 Ct. Sess. Cas., 3d series, 304). The liability of the master to the servant is a liability 372. Argument for Petitioner. imposed by law and is not a matter of contract. The contract fixes the relation of the parties, the law does the rest. The John G. Stevens, 170 U. S. 113; Knapp v. McCaffrey, 177 U. S. 638; Martin v. Pittsburgh Ry. Co., 203 U. S. 284; Keithley v. Northern Pacific S. S. Co., 232 Fed. Rep. 255, 259; Swayne & Hoyt v. Barsch, 226 Fed. Rep. 581, 590; The Quickstep, 9 Wall. 665, 670. The principles here contended for do not tend to destroy the uniformity of the admiralty law. When Congress left open the common law over torts committed at sea it must have contemplated just such a case as this. If it had been essential that the admiralty jurisdiction be made exclusive, we believe that Congress could, without offense to constitutional provisions, have made it so. If at any time it should develop that greater uniformity is needed, the power always rests with Congress to attain that end by appropriate legislation, as in the analogous situation covered by the Federal Employers' Liability Act. Admiralty courts often follow the common law, for the reason that the law of admiralty, being, as it is, a collection of a few rules and customs of the sea which are grossly inadequate to cover its needs, literally borrowed common-law principles. Common-law courts on the other hand never adininister the admiralty law. In a common-law action on a maritime contract, as where a seaman sues for damages for failure of the ship owner to supply him with treatment for injuries, the contract is interpreted in the light of admiralty law but that law is not the basis of recovery. Harden v. Gordon, 2 Mason, 541; Holt v. Cummings, 102 Pa. St. 212. When, however, a case arises in a common-law court where the relief demanded cannot be sustained on some principle known to the common law, the court will refuse to act. Unless such a principle can be applied, the remedy asked for is not a remedy which the common law is competent to Argument for Petitioner. 247 U. S. give. See, e. g., Lipson v. Harrison, Q. B., 1854, 24 Eng. L. & Eq. 208; Merritt v. Tice, 77 App. Div. 326. Section 20 of the Seamen's Act of 1915 removed the only obstacle to recovery in a common-law action by abolishing the fellow-servant rule. The same is true of its effect upon the maritime law, for there also it was the fellow-servant rule alone which prevented recovery by a seaman from the owner on account of personal injuries received in his work and not due to unseaworthiness of the ship. Save for this rule, it is incorrect to say that in maritime law recovery was limited to maintenance and cure. Those were independent contractual rights, really part of the seaman's wages (Harden v. Gordon, 2 Mason, 541). There is nothing in the maritime law which makes them exclusive of other claims. The admiralty courts have followed the courts of common law, and the reason why the ship owner is liable only for failure to supply a seaworthy ship is that, under that law, unamended, all on board a ship are fellow servants, and if the ship be seaworthy, then, obviously, any injury which occurred would have to be caused by either the negligence of the injured person or one of his fellow servants, and, therefore, there could be no recovery. If, on the other hand, the ship were unseaworthy and a seaman were injured because of it, he was allowed to recover damages upon the theory that the ship owner had failed to supply him with a reasonably safe place in which to work, that expression being synonymous with "seaworthy vessel." The matters decided in The Osceola, 189 U. S. 158, are not inconsistent with this view. The court was not promulgating any new rules in that case, and an examination of the decisions upon which it based its rulings will show them all founded on the fellow-servant doctrine. See also The Queen, 40 Fed. Rep. 694, 697; The Sachem, 42 Fed. Rep. 66; The Bolivia, 59 Fed. Rep. 626, 628; The Miami, 93 Fed. Rep. 218; The Egyptian Monarch, |