Argument for Appellants.

Co., 44 N. Y. 305; Wallace v. Providence and Stonington Steamship Co., 14 Fed. Rep. 56; The Garden City, 26 Fed. Rep. 766.

The liability of owners is not restricted by act of Congress providing for the security of passengers on steamboats, and their liability is not confined to the acts of omission or commission therein declared to be negligent. The act does not operate to take away any common law liability. Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282; Swarthout v. New Jersey Steamboat Co., 48 N. Y. 209; Carroll v. Staten Island Railroad, 58 N. Y. 126; Navigation Co. v. Dwyer, 29 Texas, 376.

There are a few decisions beside that of Judge Benedict in The Epsilon, 6 Ben. 378, in which the limited liability act has been extended beyond cases of property; and, with the excep tion of the Rhode Island case, Rounds v. Providence &c. Steamship Co., 14 R. I. 344, they are, all of them, District Court cases, or the decisions of District Court judges; and this Rhode Island case, together with most of the others, merely imports to follow the decision of Judge Benedict in The Epsilon as the authority upon the questions. The cases are: In re Long Island &c. Trans. Co., 5 Fed. Rep. 599; The Alpena, 8 Fed. Rep. 280; The Amsterdam, 23 Fed. Rep. 112; Briggs v. Day, 21 Fed. Rep. 727; Craig v. Continental Ins. Co., 26 Fed. Rep. 798.

An examination of these cases will show that the distinction between injury to a passenger and injury to a member of the public, toward whom the ship owed no peculiar obligation, has not always been observed in following the decision in The Epsilon. The Epsilon was not the case of a passenger, but of a man killed by the explosion of the vessel's boiler, while he was on land, standing on a pier. There is nothing in the case to show that other persons on board were passengers. See Ex parte Phoenix Ins. Co., 118 U. S. 610; Johnson v. Chicago & Pacific Elevator Co., 119 U. S. 388, 397. The decision in The Epsilon rests on two grounds: (1) The words of the statute: (2) The Continental Codes.

1. As to the words of the statute:

Argument for Appellants.

The words of the United States statute of 1851, c. 43, § 3, 9 Stat. 635, from which § 4283 of the Revised Statutes is taken, are as follows: "That the liability of the owner or owners of any ship or vessel, for any embezzlement, loss or destruction, by the master, officers, mariners, passengers, or any other person or persons, of any property, goods or merchandise, shipped or put on board of such ship or vessel, or for any loss, damage or injury by collision, or for any act, matter or thing, loss, damage or forfeiture, done, occasioned or incurred without the privity or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner or owners respectively, in such ship or vessel, and her freight then pending." The differences between this expression of the law and that of § 4283 are apparently mostly formal; but there is one change which may be substantial.

The form in the Revised Statutes omits the plural of owner, and the word "ship," and comprehends the persons offending, under the phrase, "by any person." But one substantial change seems to have been made. Instead of the word "loss," in the phrase, "act, matter or thing, loss, damage or forfeiture," in the act of 1851, we have in the Revised Statutes the word "lost" substituted. Omitting the mere punctuation mark after the word "thing," we get as the present expression of the law, "thing lost;" and if this was an intentional change, it shows the more clearly the intention to apply the act to things, and not to persons. Indeed, the adjective "lost" can have no signification, except as connected with "thing."

The rule of construction in such cases has been declared in United States v. Bowen, 100 U. S. 508, as follows: "The Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace, on the first day of December, 1873. When the meaning is plain the courts cannot look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Congress." In that case the word "such" had been interpolated in the revision, which altered the meaning of the statute as it stood prior to the revision; but, as the

Argument for Appellants.

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. But, however 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; Simpson 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