The Constitution of the United States of America: Analysis and Interpretation Part 115

[351] L'Invincible, 1 Wheat. 238 (1816). _See also_ In re Fa.s.sett, 142 U.S. 479 (1892).

[352] Sherlock _v._ Alling, 93 U.S. 99, 104 (1876). _See also_ Old Dominion S.S. Co. _v._ Gilmore (The "Hamilton"), 207 U.S. 398 (1907).

[353] Jennings _v._ Carson, 4 Cr. 2 (1807); Taylor _v._ Carryl, 20 How.

583 (1857).

[354] Thirty Hogsheads of Sugar _v._ Boyle, 9 Cr. 191 (1815); The Siren, 13 Wall. 389, 393 (1871).

[355] Hudson _v._ Guestier, 4 Cr. 293 (1808).

[356] La Vengeance, 3 Dall. 297 (1796); Church _v._ Hubbart, 2 Cr. 187 (1804); The Schooner Sally, 2 Cr. 406 (1805).

[357] The Brig. Ann, 9 Cr. 289 (1815); The Sarah, 8 Wheat. 391 (1823); Maul _v._ United States, 274 U.S. 501 (1927).

[358] Section 9 of the original Judiciary Act, since carried over in 28 U.S.C.A. -- 1333, saves to suitors such a common law remedy.

[359] For example, the Court stated in The "Moses Taylor" _v._ Hammons, 4 Wall. 411, 431 (1867), that a proceeding _in rem_ as used in the admiralty courts, is not a remedy afforded by the common law and that a proceeding _in rem_ is essentially a proceeding possible only in admiralty.

[360] 318 U.S. 133 (1943). In the course of his opinion for the Court which contains a lengthy historical account of Admiralty jurisdiction in this country, Chief Justice Stone cited Smith _v._ Maryland, 18 How. 71 (1855), where the Court without discussion sustained the seizure and forfeiture of a vessel in a judgment _in rem_ of a State court for violation of a Maryland fishing law within the navigable waters of the State.

[361] Judiciary Act of 1789, 1 Stat. 73, -- 9; La Vengeance, 3 Dall. 297 (1796); United States _v._ The Schooner Sally, 2 Cr. 406 (1805); United States _v._ Schooner Betsey and Charlotte, 4 Cr. 443 (1808); Whelan _v._ United States, 7 Cr. 112 (1812); The Samuel, 1 Wheat. 9 (1816).

[362] Hendry _v._ Moore, 318 U.S. 133, 141 (1943).

[363] Charles Warren, The Supreme Court in United States History, II, 93-95 (Boston, 1922).

[364] 10 Wheat. 428 (1825).

[365] 5 How. 441 (1847). _See also_ New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344 (1848). Aside from rejecting English rules, Waring _v._ Clarke did not affect the rule concerning the ebb and flow of the tide, inasmuch as the collision occurred within the ebb and flow of the tide, though within the body of a county. Citing Peyroux _v._ Howard, 7 Pet. 324 (1833); The "Orleans" _v._ Phoebus, 11 Pet. 175 (1837); The "Thomas Jefferson," 10 Wheat. 328 (1825); United States _v._ Coombs, 12 Pet. 72 (1838).

[366] 12 How. 443 (1852).

[367] Soon afterwards in Jackson _v._ Steamboat Magnolia, 20 How. 296 (1858), the Court rejected what was left of narrow doctrines of the extent of admiralty jurisdiction by holding that a collision on the Alabama river above tidal flow and wholly within the State of Alabama came within the grant of admiralty jurisdiction in the Judiciary Act of 1789 which extended it "to rivers navigable from the sea * * * as well as upon the high seas."

[368] _See_ Warren, II, 512-513.

[369] 109 U.S. 629 (1884); _see also_ Perry _v._ Haines, 191 U.S. 17 (1903) where the admiralty jurisdiction was extended to inland ca.n.a.ls.

[370] 10 Wall. 557 (1871).

[371] Ibid. 563. _See also_ The Montello, 20 Wall. 430 (1874), where this doctrine was applied to the Fox River in Wisconsin after it had been improved to become navigable.

[372] 141 U.S. 1, 12-15 (1891). This case contains a good review of admiralty cases to the time of its decision.

[373] 311 U.S. 377, 407-410 (1940).

[374] 316 U.S. 31, 41 (1942).

[375] 3 Wheat. 336 (1818). _See also_ Manchester _v._ Ma.s.sachusetts, 139 U.S. 240 (1891) which followed this rule and which seems to contain a rule a.n.a.logous to the "silence of Congress" doctrine applied in cases involving State legislation which affect interstate commerce.

[376] Ibid. 389.

[377] The St. Lawrence, 1 Bl. 522, 527 (1862).

[378] The "Lottawanna," 21 Wall. 558, 576, (1875); _see also_ Janney _v._ Columbian Ins. Co., 10 Wheat. 411, 418 (1825), where it was held that the admiralty jurisdiction rests on the grant in the Const.i.tution and can only be exercised under the laws of the United States extending that grant to the respective courts of the United States.

[379] 4 Wall. 411, 431, (1867); The Hine _v._ Trevor, 4 Wall. 555 (1867).

[380] Knapp, Stout & Co. _v._ McCaffrey, 177 U.S. 638 (1900); Red Cross Line _v._ Atlantic Fruit Co., 264 U.S. 109 (1924).

[381] Chelentis _v._ Luckenbach S.S. Co., 247 U.S. 372 (1918).

[382] Rodd _v._ Heartt, 21 Wall. 558 (1875).

[383] Old Dominion S.S. Co. _v._ Gilmore, 207 U.S. 398 (1907).

[384] Ibid.

[385] 312 U.S. 383 (1941).

[386] 244 U.S. 205 (1917).

[387] Ibid. 202, 215-218. This was a five to four decision with Justices Holmes, Pitney, Brandeis, and Clarke dissenting. Justice Holmes' dissent is notable among other reasons for his epigrams that "Judges do and must legislate, but they can do so only interst.i.tially; they are confined from molar to molecular motions," ibid. 221; and that "the common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or some quasi-sovereign that can be identified." Ibid. 222.

Justice Pitney attacked the decision as unsupported by precedent and contended that article III speaks only of jurisdiction and does not prescribe the procedural or substantive law by which the exercise of admiralty jurisdiction is to be governed. Ibid. 225-229.

[388] 40 Stat. 395 (1917).

[389] 253 U.S. 149 (1920).

[390] Ibid. 160. For the discussion of the statute as an invalid delegation of power, _see_ ibid. 163-166. Justice Holmes wrote a dissent in which Justices Pitney, Brandeis and Clarke concurred.

[391] 42 Stat. 634 (1922); overturned in Washington _v._ W.C. Dawson & Co., 264 U.S. 219 (1924).

[392] 44 Stat. 1424.

[393] Nogueira _v._ New York, N.H. & H.R. Co., 281 U.S. 128 (1930); Vancouver S.S. Co. _v._ Rice, 288 U.S. 445 (1933).

[394] 244 U.S. 205, 216.

[395] 317 U.S. 249 (1942).

[396] Ibid. 252.

[397] Ibid. 253. Citing Baizley Iron Works _v._ Span, 281 U.S. 222, 230 (1930).

[398] 317 U.S. 249 (1942). Cases cited as strengthening the claim were Sultan Ry. & Timber Co. _v._ Dept. of Labor, 277 U.S. 135 (1928); Grant Smith-Porter Co. _v._ Rohde, 257 U.S. 469 (1922); Millers' Underwriters _v._ Braud, 270 U.S. 59 (1926); Ex parte Rosengrant, 213 Ala. 202 (104 So. 409), affirmed 273 U.S. 664 (1927); State Industrial Board of New York _v._ Terry & Tench Co., 273 U.S. 639 (1926); Alaska Packers a.s.so.

_v._ Industrial Accident Commission, 276 U.S. 467 (1928). Cases cited against the claim were Baizley Iron Works _v._ Span, 281 U.S. 222 (1930); Gonsalves _v._ Morse Dry Dock Co., 266 U.S. 171 (1924); Nogueira _v._ N.Y., N.H. & H.R. Co., 281 U.S. 128 (1930); Northern Coal & Dock Co. _v._ Strand, 278 U.S. 142 (1928); Employers' Liability a.s.surance Co.

_v._ Cook, 281 U.S. 233 (1930). Justice Black _also_ cites Stanley Morrison, Workmen's Compensation and the Maritime Law, 38 Yale L.J. 472 (1929). In the Davis case the Court was not guilty of exaggeration when it declared that "the very closeness of the cases cited * * * has caused much serious confusion," and went on to picture rather vividly the jurisdictional dilemma of an injured employee who might suffer great financial loss as a result of the delay and expense if he guessed wrong, and might even discover that his claim was "barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere." 317 U.S. 249, 254. Likewise the dilemma affected employers who might not be protected by contributions to a State fund and at the same time be liable for substantial additional payments. The Court had harsh words for the Jensen rule but indicated that its reversal would not solve the problem. Ibid. 256. Justice Black also pointed to Parker _v._ Motor Boat Sales, 314 U.S. 244 (1941), where the Court, after stating that Congress by the Longsh.o.r.emen's Act accepted the Jensen line of demarcation between State and federal jurisdiction, had proceeded to hold that, in shadowy cases where the claimant was in a twilight zone he was ent.i.tled to recover under the State statute in the absence of federal administrative action under the Longsh.o.r.emen's Act on the ground of its const.i.tutionality. In brief it would seem that in shadowy cases a claimant may elect either a federal court applying the Longsh.o.r.emen's Act or a State forum applying the State compensation law.