Argument for Appellants.

But, however

language of the revision was plain, the court construed the law as it read in the revision. So, also, in Cambria Iron Co. v. Ashburn, 118 U. S. 54. And so here, the word "lost" as here used is entirely plain. There is nothing doubtful in the language as it stands. And furthermore, and in addition, we say, that in the light of the history of these statutes it is fairly inferrible that this was an intentional change. that may be, the meaning of the revision is plain. See, further, The Montana, 22 Fed. Rep. 715; Thomassen v. Whitwill, 12 Fed. Rep. 891; The Marine City, 6 Fed. Rep. 413; McDonald v. Hovey, 110 U. S. 619; Pentlarge v. Kirby, 20 Fed. Rep. 898. 2. As to the Continental Codes, it is sufficient to refer to the language of the court in The Lottawanna, 21 Wall. 558, where this court says: "To ascertain, therefore, what the maritime law of this country is, it is not enough to read the French, German, Italian, and other foreign works on the subject, or the codes which they have framed; but we must have regard to our own legal history, Constitution, legislation, usages and adjudications as well. . The scope of the maritime law and that of commercial regulation are not coterminous, it is true, but the latter embraces much the largest portion of ground covered by the former. Under it Congress has regulated the registry, enrolment, license, and nationality of ships and vessels; the method of recording bills of sale and mortgages thereon; the rights and duties of seamen; the limitations of responsibility of ship-owners for the negligence and misconduct of their captains and crews; and many other things of a character truly maritime."

In Norwich Co. v. Wright, 13 Wall. 104, this court says of this law, that its great object was to encourage ship-building, and to induce capitalists to invest money in this branch of industry. See, also, Moore v. Am. Trans. Co., 24 How. 1; Simp son v. Story, 145 Mass. 497. That was the object of the law, and not the encouragement of the transportation of human beings. Respecting the latter traffic Congress has legislated in an opposite direction, passing stringent laws for preserving the security of passengers on steam-vessels. Rev. Stat. §§ 44244426, 4463-4500; 22 Stat. 346, c. 441; Id. 186, c. 374; Hart

Argument for Appellants.

ranft v. Du Pont, 118 U. S. 223; The Strathairly, 124 U. S. 558; The Hazel Kirke, 25 Fed. Rep. 601; The Rosa, 25 Fed. Rep. 601; The Idaho, 29 Fed. Rep. 187; The Pope Catlin, 31 Fed. Rep. 408; Oyster Police Steamers, 31 Fed. Rep. 763.

The purpose of the act of 1851 being as above shown, and the method of carrying it out being also as above shown to be in accordance with the general maritime law, let us examine how that purpose is provided for by the statute.

The Revised Statutes of, the United States provide (§ 4284) as follows: "Whenever any such embezzlement, loss, or destruction is suffered by several freighters or owners of goods, wares, merchandise, or any property whatever, on the same voyage, and the whole value of the vessel and her freight for the voyage is not sufficient to make compensation to each of them, they shall receive compensation from the owner of the vessel in proportion to their respective losses; and for that purpose the freighters and [owner] [owners] of the property, and the owner of the vessel, or any of them, may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto."

Section 4285: "It shall be deemed a sufficient compliance, on the part of such owner, with the requirements of this Title relating to his liability for any embezzlement, loss, or destruction of any property, goods, or merchandise, if he shall transfer his interest in such vessel and freight, for the benefit of such claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such trustee for the person who may prove to be legally entitled thereto; from and after which transfer all claims and proceedings against the owner shall cease."

So it is only in case of damage to "property" that any parties may take "appropriate proceedings in any court" for the purpose of apportioning the sum for which the owner may be liable; and it is only in the case of destruction, etc., of "property, goods, or merchandise," that the owner of the vessel shall be allowed to make the transfer through a court of Admiralty. Is not this fairly conclusive upon the question? Thus it is

Argument for Appellants.

certain that the libel of this company cannot be sustained as against these passengers; and it would seem to be very clear that if Congress had intended that the ship-owner should plead the act in bar of proceedings instituted against him by a passenger, the act would have provided a means to enable him to take "appropriate proceedings" for an apportionment, and for the surrender of his vessel as well, as in the case of injury to goods or damage to property by collision. Walker v. Boston Insurance Co., 14 Gray, 288; The Scotland, 105 U. S. 24; Peoples' Ferry Co. v. Beers, 20 How. 393; The St. Lawrence, 1 Black, 522; Insurance Co. v. Dunham, 11 Wall. 1.

Whenever the Supreme Court has applied the general maritime law to cases arising before them, it will be observed that they have limited themselves to that. The growth of admiralty jurisprudence within this country has been in the direction of a freedom from the confined limits within which, owing to the well-known jealousy of the courts of common law in England, the law of the admiralty was in that country restricted. But, while our admiralty law has expanded and developed, and this by the application of the general maritime law, our Supreme Court has carefully kept it within the boundaries of the law and usages of this country, and has not imported the modern codes into our system. The General Smith, 4 Wheat. 438; The St. Jago de Cuba, 9 Wheat. 409; United States v. La Vengeance, 3 Dall. 297; United States v. The Sally, 2 Cranch, 406; United States v. The Betsey and the Charlotte, 4 Cranch, 443; The Samuel, 1 Wheat. 9; The Octavia, 1 Wheat. 20; Hobart v. Drogan, 10 Pet. 108; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344; Rich v. Lambert, 12 How. 347; The Genesee Chief, 12 How. 443; Ward v. Peck, 18 How. 267; Dupont v. Vance, 19 How. 162; The China, 7 Wall. 53; The Merrimac, 14 Wall. 199; Sherlock v. Alling, 93 U. S. 99; The Scotia, 14 Wall. 170; The Alabama and The Gamecock, 92 U. S. 695; The Atlas, 93 U. S. 302; The Virginia Ehrman and The Agnese, 97 U. S. 309; The North Star, 106 U. S. 17.

In none of these cases have the modern codes been imported into our system of laws. The court has aimed to apply the general maritime law of the world, when it could do so with

Argument for Appellants.

out infringing upon the law and usages of this country. Beyond that it has in no case undertaken to go.

But if the act limiting liability could otherwise be held to apply to loss of life or injury to passengers, the act of Congress of 1871, 16 Stat. 440, c. 100, would take this case out of its operation. This is the same act of 1871 as that passed upon in Carroll v. Staten Island Railroad Co. (supra).

Section 51 thereof, (Rev. Stat. § 4401,) provides that "every coast-wise sea-going steam vessel, subject to the navigation laws of the United States, and to the rules and regulations aforesaid, not sailing under register, shall, when under way, except on the high seas, be under the control and direction of pilots licensed by the inspectors of steamboats."

This provision (as well as all the other provisions of this act) does not restrict the common law liability, or diminish it.

The lost steamship was a coast-wise, sea-going steam vessel, under enrolment, subject to all the laws and rules of navigation applicable to such vessels; and at the time of the loss was on a voyage from Boston to Savannah, and was wrecked in Vineyard Sound, upon the shore of Martha's Vineyard, Massachusetts, and when the catastrophe happened she was within the waters of Massachusetts, and was not upon the high seas. If there was an omission in Vineyard Sound to have a pilot in charge, that would likewise be an infringement of the act. But if the omission to have a pilot in charge did not come under the act, yet such omission would be none the less fault or negligence at the common or by the maritime law.

One of the issues raised upon the agreed statement of facts is, whether the ship was under the control and direction of a licensed pilot at the time of the disaster. And it there appears that the claim of the company is that the captain was in charge of the ship at that time, and not the second mate, who is claimed not to have been a pilot. And it further there appears that the ship was a coast-wise, sea-going steam vessel, under enrolment, and on a voyage from Boston to Savannah, and while proceeding through Vineyard Sound stranded on Devil's Bridge, off and near Gay Head, Martha's Vineyard. Thus it appears that she was not proceeding on the high seas, but

VOL. CXXX-35

Argument for Appellants.

within the waters of Massachusetts, so that a pilot should have been in charge under the act of 1871. So proceeding, if she was not under the control and direction of a licensed pilot, there was an infringement of the act of 1871.

Then, again, it is conceded that there was negligence on the part of those employed by the company in the grounding and wrecking, and that the steamship proceeded nearer the shore than was prudent or skilful. If, as the company contend, the captain was in charge of the ship, the case falls equally within the provisions of the law, as is above set forth. The effect of the act of 1871 upon the limited liability act does not appear to have been argued or considered in The Garden City, 26 Fed. Rep. 766, although both acts are considered in that case.

II. A statute of the State of Massachusetts, providing for recovery in the case of loss of life, is relied on. That law, as contained in the Public Statutes of Massachusetts, c. 73, § 6, is, and at the time of the disaster was, as follows: "If the life of a passenger is lost by reason of the negligence or carelessness of the proprietor or proprietors of a steamboat or stage-coach, or of common carriers of passengers, or by the unfitness or gross negligence or carelessness of their servants or agents, such proprietor or proprietors and common carriers shall be liable in damages not exceeding five thousand nor less than five hundred dollars, to be assessed with reference to the degree of culpability of the proprietor or proprietors or common carriers liable, or of their servants or agents, and recovered in an action of tort, commenced within one year from the injury causing the death, by the executor or administrator of the deceased person, for the use of the widow and children of the deceased, in equal moieties; or, if there are no children, to the use of the widow; or, if no widow, to the use of the next of kin."

The tort here complained of is a marine tort, and, therefore, cognizable by a court of Admiralty. So also is the breach of contract between the carrier and the passenger the breach of a maritime contract. Chamberlain v. Chandler, 3 Mason, 242; The City of Brussels, 6 Ben. 370; Sherlock v. Alling, 93 U. S. 99. Upon either basis, therefore, the statute providing for recovery can be relied on and enforced.