VOL. 1 Conflicting Judicial a libel on a policy of insurance, decided in 1842, referring to the case of De Lovio v. Boite, as one in which, nearly twenty-seven years before, he had occasion to consider and to affirm the jurisdiction of the district courts of the United States, as courts of admiralty, over policies of insurance, he remarked, that "having not unfrequently been called upon in the intermediate period to reëxamine the same subject, he deliberately adhered to the doctrine therein stated: that in the various discussions which had since taken place in his circuit and elsewhere, he had found nothing to retract, and nothing to qualify, in that opinion, in respect to the true nature and extent of that jurisdiction, and its importance to the commercial and maritime world: that to no nation was it of more importance and value to have it preserved in its full vigor and activity, than to America, as one of the best protections to its maritime interests and enterprises: that it had been his hope and expectation, many years ago, that the jurisdiction of the admiralty over policies of insurance would have been finally settled in the Supreme Court of the United States, in a cause from his circuit, which, however, went off without a decision; but that he had reason to believe that, at that time, his learned brothers, Mr. Chief Justice MARSHALL and Mr. Justice WASHINGTON, were prepared to maintain the jurisdiction, and that he had no reason to believe that a majority of the other judges were opposed to it." But the opinions of Mr. Justice STORY, with opinions. respect to the scope of the admiralty jurisdiction of the American courts, were warmly contested by CHAP. 1. two of his associates on the bench of the Supreme Court-by Mr. Justice JOHNSON, in a learned and able opinion in the case of Ramsay v. Allgre(a); and by Mr. Justice BALDWIN, soon after he took his seat upon the bench, in a tone of undoubting confidence, in the case of Bains v. The Schooner James and Catherine(b). It would be inconsistent with the design of this brief summary, to enter into a detailed examination of the grounds of these conflicting opinions (c). The question on which the controversy mainly turns, is, whether or not in giving a practical construction to the constitutional grant of jurisdiction over all cases of admiralty and maritime jurisdiction, the decisions of the English courts of common law, since the statutes of Richard II., constitute the test by which the extent of the grant is to be determined. The doctrines of these decisions were advanced and established during a protracted and angry contest between the common law courts and the Court of Admiralty, in which the former, being armed with the power of issuing writs of prohibition to the latter, of course, came off victorious. Mr. Justice STORY, and those who concur with him, (a) 12 Wheaton's R., 611 (7 Curtis's Decis. S. C., 395). (b) 1 Baldwin's R., 544. (e) This subject is canvassed by Chancellor KENT, with his accustomed ability and acuteness, in the third volume of his Commentaries, 3d edition, p. 364 et seq. See also Conkling's Treatise on the organization, jurisdiction and practice of the Courts of the United States, 3d edition, p. 260 et seq., where the opposite views taken of the question by Mr. Justice STORY and Mr. Justice JOHNSON are summarily stated. VOL. 1. denied the authority of these decisions altogether; while his opponents insisted that they were obligatory upon us. The course of decision, not only in the courts of the districts composing the First Circuit, but in the Circuit Court for the Southern District of New-York, in the Circuit Court for the Third Circuit during the time of Mr. Justice WASHINGTON, and in the district courts of the commercial districts of Pennsylvania and Maryland during the times of Judges PETERS and WINCHESTER, has been in accordance with the views of the subject entertained by Mr. Justice STORY; while the elder Judge HopKINSON, and Judge BEE, took the opposite view. In the Supreme Court of the United States, the subject has been treated with great caution; but I am not aware of anything in its decisions thus far, that conflicts with the doctrines held by Mr. Justice STORY. On the contrary, its decision in the case of Peyroux v. Howard(a), and its language in several other cases, are wholly at variance with the opinions advanced by Mr. Justice JOHNSON and Contracts of Mr. Justice BALDWIN (6). The precise question whether it extends to contracts of marine insurance, marine insurance. remains yet to be definitely settled by the Supreme Court. But these contracts, relating, as they do, (a) 7 Peters's R., 343 (10 Curtis's Decis. S. C., 506). (b) In several more recent cases the authority of the decisions of the English common law courts, as a criterion by which the limits of the admiralty jurisdiction of the American courts are to be determined, is unequivocally denied. See Waring v. Clarke, 5 IIoward's R., 441 (16 Curtis's Decis. S. C., 456); The Genesee Chief, 12 Howard's R., 443 (19 Curtis's Decis. S. C., 233); Fretz v. Bull, 12 Howard's R., 46 (19 Curtis's Decis. S. C., 249). purely to maritime pursuits, and being eminently CHAP. 1. conducive, if, indeed, they are not to be regarded as indispensable to the successful prosecution of navigation and commerce, it is not easy to perceive upon what ground they can consistently be excepted from the principles already established by that court. It is not to be diguised, however, that the prevalent sentiment of the legal profession seems to be opposed to their subjection to the admiralty jurisdiction. matters of admiralty jurisdiction Mr. Justice STORY, in his Commentaries on the Constitution, after adverting to the uncertain state of the law touching the boundaries of the admiralty jurisdiction, and disclaiming any design to go into a consideration of the vexed questions affecting it, proceeds to what he denominates "a brief view of that which is admitted and indubitable"; and he To what enumerates the following as "among" the matters of mirthe contract falling within the admiralty jurisdiction of extends. the district courts: "The claims of material-men and others for the repair and outfits of ships belonging to foreign nations, or to other states'; bottomry bonds for moneys lent to ships in foreign ports, to relieve their distresses, and enable them to complete their voyages; surveys of vessels damaged by perils of the seas'; pilotage on the high seas; and mari "The St. Jago de Cuba, 9 Wheaton's R., 409, 416; The Aurora, 1 Wheaton's R., 106. The Aurora, 1 Wheaton's R., 96. Janney v. The Columbian Insurance Company, 10 Wheaton's • The Ann, 1 Mason's R., 508. VOL. 1. General average. ners' wages'." To these it is deemed safe to add, charter-parties and other contracts of affreightment, contracts and quasi contracts respecting average contributions, contracts for the conveyance of passengers (a), agreements of consortship(b), wharfage(c), and tonnage. There is also another acknowledged branch of admiralty jurisdiction, founded in a rule of national comity. It is that of enforcing the judgments of foreign courts, when the ends of justice require it; and it is held to be a good cause of reprisal for a sovereign not to compel his courts to execute the sentence of a foreign court, when the person or goods sentenced are within his jurisdiction(d). 1 The Thomas Jefferson, 10 Wheaton's R., 428." (a) The New Jersey Steam Nav. Co. v. The Merchants' Bank of Boston, 6 Howard's R., 344 (16 Curtis's Decis. S. C., 722); Rich & Harris v. Lambert & Lambert, 12 id., 347 (19 Curtis's 'Decis. S. C., 171); The New World, 16 Howard's R., 469 (21 Curtis's Decis. S. C., 261); The Volunteer, 1 Sumner's R., 151; Certain Logs of Mahogany, 2 Sumner's R., 589; The Tribune, 3 Sumner's R., 144; The Cassius, 2 Story's R., 81; Freight and Cargo of The Spartan, Ware's R., 149; The Reeside, 2 Sumner's R., 567; The Rebecca, Ware's R., 189; The Phebe, id., 263; The Paragon, id., 322. The only suit in admiralty to enforce a claim for general average, that appears to have been brought to the notice of the Supreme Court, if it be not indeed the only one that has been instituted in an American court, is that of Cutler v. Rae, 7 Howard's R., 729. It was an (b) Andrews v. Wall et al., 3 Howard's R. (15 Curtis's Decis. S. C., 556). (c) Ex parte Lewis, 2 Gallison's R., 483; The McDonough, Gilpin's R., 101; The Phebe, Ware's R., 354. (d) 2 Bro. Civ. and Adm. Law; The Jerusalem, 2 Gallison's R., 191, 197. |