4"80
FEDERAL
vol. 40.
her'since,\in!a She has an in the copyright, but is not made a party to the suit, either by being'joined as a plaintiff in protecting it, or as a defendant for inequitably violating her agreement not to injure or interfere with the sale of 'I'he proofs brought ,forward on the hearing of tpe mption'tend to show that the plaintiff has notcqntinued the efforts required by the agreement for the sale of the Qook, that sales have quite or nearly ceased. Damages from any further. apprehended publication by the defendant would be comparatively slight. Whether the plaintiff is: so carrying out the agreement on his part to entitle himto equitable relief without joinlng the author, or against publication coming from her, is so doubtful in the present aspects of the case as to make preliminary restraint of what will be of sllch slight injury appear to be unwarrantable, in the exerci1l6 of the discretion inv,olved in granting or refusing such Motion
THEKATIlil·. LAWTON
v.' COMER
al.
(Dt8trlet Oourt, S. D. Georgia, E. D.November 12, 1889.)
L
SmpPlNG-LIMITED LIABILt'ry ACT-CONSTITUTIONAL LAW-INTERNAL COMMERCII.
The act of June 19,1886/ W'tendin!l' the benefits. of limited liability legislation to vessels engaged in inland rinvigation, baving been assailed for alleged unconstitutionality, held, that the act is valid, in view of the power of congress to regulate commerce, law.amended,excepted from, its.<\peJ:ation inland naviga. tion only, and not internal commerce, as insisted. . ',' . . · . . .. ' ' . .' ,'"
S.
a.
';l'he of the law, p.Qtt() internal ,,' .to inlanll,naVIgation. So mucbfor W.edirectpurpose of the act. . SAME·. " ., . ..","'. " '.' ,. ,
SAME.
,
but'
I.
If jnternalcommerce it is. incidentally The purpose of,the ..legilliaturebeing warranted by, the constitution, it is Wholly iInma", terial to consideration of its &etiontllat it has a. pas.:. of state legisla4on. ., f. SAME. ,,:.>, . .. Even though the subjects of this extended limUation of liability, or the territory in which it is effective, are partially within the region of state control, where the subjects are separable, and are partly under the national control, thl;l act'will be by the. ver :tb.e power of co. . ex.tends and as to all .. those obJects to whIch It attaches; and this rule is easn;yappUcable i nthiS case. SAME-ApPLICATION TO SAVANNAH
As to the Savannah river, it is a public navigable stream. The voyages of the Katie and hel: are interstate in character, an,d Of, conS!'IlSs is undoubted.,· .' ., " , .. . '. . The act ,is warranted. also by tpe admiralty clause of,the constitution, Bnd tlw power of congress to modify by statute the application of admtralty doctrines." ' , . ,
..
.
G... SAME-CoNGREI;l8Il)NAL. POWERS-ADMIRALTY. 7. SAME.'
The ,ent1re.1'm:PoS8 oftha liIIJited to eDcourage .mYI'lSt-. ments itl shipping; and tbe:v may De uteJided wherever \he ofthe' United StIl;teshave jurisdiction.' '.', . . , ' ",' " (8Yllab'U8bY the. 0,QW1.) ,. .'
AdWiralty.':' ';
THE KATIE.
481
Ohwolm Erwin, for libela.nt. Denmark, A.dams A.dams, fo1' respondents. SPEER, J. This is a libel brought under the provisions of section 4 of the act of congress of June 19,1886, (24 St. at Large, 80.) Its purpose is to limit the liability of'the ownerof.the steamer Katie for losses to her cargo occasioned by fire. The libelant (the owner) alleges that heis not .iiable at all for the damage which occurred to the cargo, but, if liable, to limit the liability, he prays to be accorded the benefit of the act referred to. The allegations of the libel are that the Katie was on hertlrip when the fire occurred. At thai time, and for 20 years prior thereto, she had been engaged in transporting freight and passengers from and. to the ports of Savannah and Augueta, and intermediate landings on the Savannah river in the states of South Carolina and Georgia. Shebalonged to a line of carriers issuing through hills of lading to and from localities in Georgia, and to and from ports and places in other states of the Union, and to and from foreign ports. The libel contains the usual averments that the damage was done without the privity or knowledge of the owner·. It is admitted in the pleadings that a large portion of the cargo was laden at different points on the Georgia side of the river, and was consigned to merchants in Savannah, and that other portions, consigned in like manner, were received from the South Carolina landings. The various owners of the cargo, as respondents. have interposed a demurrer and motion to dismiss the libel, upon the ground that the fourth section of the act of congress of June 19, 1886, is, as- they in- , sist, unconstitutional and void; alid since the owners of vessels used in rivers or inland navigation were expressly excluded from the right to limit their liability under previous acts of congress (sections 428R·"4289; Rev. St.) it follows, they contend, that no relief can be gJ;'anted under the allegations and prayers of the libel. The gist of the contention of proctors for respondents may be stated as follows: (1) They insist that seotion 4 of act of June 19, 1886, extending the right to limit liability to the owners of "all vessels llsed on lakes or rivers, orin inland navigation, including barges,and lighters, "was intended to affect, and ex vi : termini does affect, vessels used in the purely internal commerce of a state; that this purpose of the act is expllellsed in unequivocal words. (2) Even though it be conceded, they urge, that congress might have provided a measure of relief for owners of a vessel whose interstate traffio relations were corresponding to those of the Katie, without encroaching upon the domain of internal commerce, the court, they insist, may not restrict the application of this act so as to give it partial effect simply because the facts here are appropnateto national control, the statute itself in plain and unambiguous terms, exceeding they contend the limitations of the commerce clause of the constitution. This clause, they' maintain, so far from authorizing, actually prohibits legislation by congress, which will affect the internal commerce bEltween citizens ofthe same state, and since the terms of . the act in question comprehend alike constitutional and uricol1stitutional topics, the entire section of the amended statute must, they argue, be held v.40F.no.8-81
FEDERAL.REPDRTER,vol.
40.
inoperate and void j citing U. S. v. Reese, 92U. S. 220,jPrade-Mark Ch8e8, 100 U. S. 82; Virginia Ooupon aa.";l14,U. S. 304,5 Sup. Ct. Rep. 903; Leloup v. Port of Mobile, 127 U. S. 647,8 Sup. Ct. Rep. 1380; Spraigue v. T1uYmp8iJn, 118 U. S. 90, 6 Sup. Ct.·Rep.988; Allen v. Louisiana, 103 U. S. 80; State TonnageTaa;. Case8, 12 Wall. 219. (3) While respondents concede the.'power of congress to provide, by inspection, license regulations; ete., f0rth£l safety, of vessels, ,engaged in internal traffic, they insistthere betwoondnspection and, other laws intended to control the oharacter of maohinery,equipment, and the like in vessels· plying lipon the navigable wa.tersofthe United States, and laws intended to enlarge. orto'limit thecontraot righ,ts and liabilities of persons concerned witb the same vassels; that the legislation., for the one purpose, may be the :COmmerce clause of the constitution, but for the purpose of affecting the rights of persons. contracting with vessels engaged exclusively in the internal traffio ofa state the enactments of congress are nugatory; citing The Daniel BaU, 10 Wall. 557j& parte Boyer, 109 U. S.631,3Sup.,Ct. Rep. 434; Hatch 6 Fed. Rep. 329; Yale1..cck Manu!g Co. v.Jtnnes,20 Fed. Rep. 903; Sands v. Improvement Co., 123 U. S. 295,.8,Sup.Ct. Rep. US ·. (4) Theyfurthadnsist that the legislation embOdied in the act of March 3,1851, and in sections 4283-' 4289. of the Revised Statutes,: was construed by the supreme court of the UnitedStawsl and by othel' federal courts, to be authorized by the com- , IXlerce claUEle of the constitution; citing Moore v. Transportation 00., 24 How. 37.; 14r.d..v. Steam-Sh'li.pCh., 102 U.S., 541; The Genesee Ohief, 12 How. 443;tke Bright Star, 1: Woolw. 214; The Mamie, 5 Fed. Rep. 819; The War Eagle,.' 6 Biss. 366. 'l'hey argue that the.enactments are otherwise without oonstitutiollal warrant or validity.. (5) They assert that tbeprovjsion of the constitution, "thejudioial power shall extend to all cases ofadminlltty and maritime jurisdiction, I' has relation merely to the law of the. foruIQ; and gives J;loauthority to congress to regulate the property rights and liabilities ofparties litigant. Moreover, even though it,be tlolacededthey say that the admiralty clause confers upon congress the povver to legislate as to all.topics which are- properly within ,the admiralty jurisdiotion, nevertheless the act of June 19, 1886, is broader than that :extensive domain, for it applies to all inland waters, wbile the admiralty jurisdiction is ljmited to those waters which,by , thetnselves,: Gr'.tlieir conneotionewithothers, form a continuous channel for commeree;among the states· or with foreign countries;; citing The DaniehBaD,,10WaU. 557\:tPhe :Genesee Chief, 12 How. 443; Alknv·. Newberry, 21 569; The Belfast, 7 Wall. 624;. TheSt·. Lawrence, l r Black; 527. . .;i1?rbetofs: for respondents instance rivers and inland'waters in the states which. are not included in the'navigable waters of the United States; and. they cite Moor,14 How. 568; The Mo1IJdlo,11 Wall. 411; &m.d8 v. Improveme19-t. Ch., 123 U.,8.295, 8 Sup. Ct; Rep. 113. 'By all ofthis.illeasoningthey reach with great apparent confidence the conelusion that the act of .June 19; 1886, has no; foundation upon. the s.dtnil'lllty. clausf?, none upon the commerae clause, 'of theconstitu-:
'(I
'THE KAtiE. /, '
483 j
ti?n, be' wh6liy as a' consequenoo, tbat the libel mu'St' be dismissed. . , " 'Iti8not 'difficult it would fOl':theobsenting'fuind;trained in the philos'Ophy and history of our law,to s.ppreciatethe interesting\:!on.. sideratidns of legal thOught suggested by the pending inquiry and the gigantic magnitude of the values which Hs ultimll:te adjudication may; Should the of the respondents be deemed finally' controlling,this would afford the twenty-fitst instance when 'an act 'tif congress was decisively adjudged unconstitutiomlJ·. ,' 'When it is .considered that this re(lord of legislative conscientioushessll.hajudicial tism embraces a period of ninety-nine years, the inchoate,'and formative period of a vast and novel experiment in the science of' the exciting exigencies of foreign wars,the corrodinginfiammationofcivil the expansion of three millions of priroitjiV& people, employed mainly in,;;the simple and unproductive occupations qf frontiersmen·, to sixty millions whose ventures in the production of national·weit1th'gre 8$ d.iverse in character as they are, intrepid in enterprise and in results; when also, the mighty volume of decided cases, inyolyiqg application or interpretation of the constitution, is .granted. that the national legislation is withspbstantial stable and valid, and that the oCcasions when it may be courts invalid are rarely afforded. It is equally obvious that the courts will decline to adjudge a statute to beln conflict with the oOllstitution;'unless the reasons therefor are of that convincing atid impel'ative character which at onoe olear the mind of doubt and constrain the inevitia;ble decision. The attetnpted impeachment of the fourth section of the:act·of June 19, 1886,ex'tending the privilege of limited responsibility to "all vessels uSed on lakes orri"ers, orin inland navigation, barges, and lighters," is evolvedtnldnly from this premise of respondents' proetors: . "It seems to us clear that section 4 of the act (save 'in the use of the words 'sea-going vessels') directly collides with the constitution, and that ,its expressed purpose was to do the ver.v thing which congress is prevented from doing. The law, as it stood, excepted from the, operation the owners of vessels engaged in internal commerce. .1;'hedesign of the act of 1886. was so .to change the eXcepting clause as to apply the law to such owners and commerce. Take the law as it was in connection with this fourth'sectioD, and it will then appear that the purpose was to do an unconstitutionalthing: that is to say, the very legislation proposed was unconstitutional if our contention be correct as to the power of congress." . In this connection it may be well to state that ielsewhere in the copious and valuable·brief from which the quotatibnJfs taken an important axiom of constitutional interpretation is frankly set forth, court ought not to declare a law unconstitutional unless the fatal infirmity is made clearly to appear,-to appear, beyond any reasonable donbt." With this cardinal rule in mind, let us attempt to ascertain if,there is not at least a;reasonable doubt as to the existence of error or misapprehension in thepropositionsofthe proctor, above :setforth. Is it tl'\10 that
FEDERAL REPORTER,
vol. 40. ,
90Qgress ,has purpQlile1':by· this to take con.. trol of the internal commerce of the !!tates? Did the law,before the a.r.nell.dment; except from. its operation the owners.of vessels engaged in inte.rnal commerce? poes the amendment assailed apply the law to sucq'Qwners and commerce? 1s it true that the "purpose of congress:was'to do an unconstitutional thing?" It does not appear that the .law of limited liability before tp.e 19th of June, 1886, excepted from its operatJ,on the owners of vessels engaged in internal commerce. 1.'he lapguage of was applicable to the owners of craft of certain descriptionp}ying upon certain waters. It is wholly silent as to the chara.cteror kind of comJDerce for which the vessels or the water routes were utilized. This· is plainly apparent from the language of the proviso before the amendment was adopted: "This act shall not apply to the owner or owners of any canal·boat, barge. or lighter, or to any vessels of any description whatsoever, used in rivers or . inland '1lavigation." It should not be difficult' to undefstand that this is widely variant from the proposition of respondents. The excepting clause, if their con· struction had belm adopted, would probably have read: . "This' act shall not apply tathe owners of any vessel. etc., used in purely ." internal commerce."
.There is; oq:naybe, a vast distinction in the lading, or contracts of a vessel ill.land navigat.ion, anQ. one used for internal commerce. Ayessel maY; be used for int;ernal commerce. and· never traverse inland waters, or may ply the waters of a lake embosomed in the central tel tory .ora and be wholly,engaged in interstate commer,ce. Then it nottru.e that theJaw, before the aJDendment, excepted froIQ its operof vessels engaged in intern8J commerce, but simply vessels were used in rivers or inland navigation. Again, does the amendment to the limited responsibility law, assailed by the raspondents, apply to the of vessels engaged in internal comO' ! meree?',' In the opinion of the court, very clearly not. It has no syllable with reference to internal commerce. It "shall apply also to all vessels used on lakesornvers., or in inland navigation, inCluding cabarges; and ligblters,"", Congre$s, tn the amendment as in fIle excepting elapse of the o085l, with classes or Y5'!3Sels navigating inland watal's and lakes, gave no attention to car· goes. or shipping! contracts. It did not deal w.ithAlommerce, but with sl::.ipping. As we have before seen,there is no essential identity of topic iii a vessel and of the commerce in which it is engaged.. :aya parity of:1-'easoni;ng it follows that congress has not, by this extension .Qfthe limited responsibility privilege, expressed the purpose to take control of internfll nor, soJar as it has been made to appear, was it its purpose to, do &\1 unconstitutiQnal thing. Clopclusions seem to be clearly ,iq.ferablefromthe plain and uqambiguous. words of the clauses which copMitl,ltedthe. old law and the remedial stllotutewhicb, as we :will p.resently ..i!l Pl,lt an encouragement to impQrtant. c).asses of
TBE··Jl:ATm.
485
ping in which the wealth of the country is largely invested. But if the language of the sections quoted was equivocal, there would even then be no difficulty in tracing to its constitutional source the current of this legislation, which has· revived the drooping but vital growth of the country's maritime interests. It is well to remember that it is an elementary principle of construction, not only that the scope of a legislative enactment may be modified by the purpose expressed in the title, but that the intention of the legislature is often gathered from a view of the whole, and every part, of continuous legislation on the same general topic. 1 Kent, Comm. 461,462. Upon consideration of the several en· actments on the subject of limiting responsibility of the owners of shipping, it is not possible to discover any purpose of the national legislation to encroach upon the conceded rights of the states as to internal commerce. It may be, and is, no doubt, true that much of this legislation does incidently affect rights growing out of internal commerce. That, however, is a necessary result, flowing from the variety and extent of the influence, exerted by every act of congress of general operation, howsoever undoubted its constitutionality. An illustration of this may be found in the laws relating to internal taxation. Who may say these do not affect internal commerce? and yet the power of congress is conceded. In the amplitude and diversity of the occupations and enterprises of our countrymen many results flow from congressional action which, if designed as a result of direct legislation, would be held unwarranted. It is enough to say of a law that its purpose, object, and main results are legitimate, and the law of limited responsibility has been often so adjudged: Norwich Co. v. Wright, 13 Wall. 109-128. The act of March 3, 1851, was entitled" An act to limit the liability of ship-owners, and for other purposes." Its provisions applicable to the questions at bar, embodied in sections 4283-4289, Rev. St., are as follows: . "The liability of the owner of any vessel for any embezzlement, loss, or destruction, by any person. of an)' property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage. or injury by or for any act, matter, or thing lost, 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 in such vessel, and her freight then pending," Section 4283, Rev. St. "The ions of [this title, the seven preceding sections.] relating to the limitation of the liability of the owners of. vessels, shall not apply to the owners of any canal-boat, barge. or lighter, or to any vessel of any description whatsoever, used in rivers or inland naVigation." Section 4289. Rev. St. The legislation upon this subject, next succeeding the act of 1851, ia found in the act of June 26, 1884, (23 St. at Large, 53.) This, it is important to observe, is entitled" An act to remove certain burdens on the American merchant marine, and encourage the American foreign carrying trade, and for other purposes." The eighteenth section of this act is as follows: "That the indiVidual liability of a ship-owner shall be limited to the proportion of any or aU debts and liabilities that his individual of the
FEDERAL'REPORTEItl
vol, 40.
vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel, of the sarne·..shall not 6l:c.eed the value of su\}h vessel and freigl)t pending: .provided, tnat. provision sliall not affect the liability of any owner Incuuedpl'evlous to the passage of thisact.nor prevent any clairritmt from joiniilgall the OWners in one action, nor shall' the same apply to wages due to persons employed by said ship-owners." ,
.. ' We thus perceive that the title indicates what the body ofthe act makes clear, viz., that it was intended to encourage, and therefore to foster, the American merchant marine and the American foreign carrying trade. Its chief of the existing law was an enlargement of the privilegf:>s ofexemption. It will be readily observed that it was the consistent legislative purpose to broaden the privileges of the owners of American craft upon the high seas. The enactments it seeInS were found advantageous also, as they were followed very soon afterwards by the act of June 19, 1886, (24 St. at Large, 79,) which is entitled "An act to abolish certain fees for official services to American vessels, and to amend the laws relating to shipping commissiollers, seamen, and owners of vesBels, and for other purposes." The fourth section of this act extends previous enactments relating to limitations of liability to "all sea-going vessels," and here the respondents insist the nationallegisJature exhausted its jurisdiction. . But it was not deemed enough to accord these privileges to sea-going vessels. Avast and rapidly augmenting fleet of American shipping, embracing every type of vessel, from the clumsy sailing craft of the last century, to the latest achievements in naval architecture, whose twin screws and triple expansion engines drive them with incredible swiftness over the teeming waters of the Great Lakes, were wisely esteemed by congress to merit the aid and encouragement of the legislation which had been so effective with sea-going shipping. Nor was this all. It had been found that the vital necessity for cheap transportation for the natural and manufactured productions of the country. often denied in greater or less measure, by railway combinations, had been accomplished by a return to the slower, but cheaper methods of water carriage. Rivers, canals, and inland Jakea, by themselves or their connections, in many instances afl'ordthe most important channels for the ebbing and flowing tide of interstate and foreign commerce. In the case of The Daniel Ball, 10 Wall. 557, where the recovery of a penalty under the act of congress for failure to obtain a license to transport merchandise and passengers upon the bays,Jakes, rivers, or other navigable waters 9f the United States was resisted upon,the ground that the steamer navigating the Grand river, in the state of Michigan, was not engaged in interstate commerce, and for this reason it was insisted congress had no control over her, the supreme court make very pertinent declarations. They decided that the Grand river was a navigable stream. They hold that rivers "are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are, or may be, conducted in the customary modes of trade and travel 00 water, and they constitute navigable waters of the United States,
487
in the meaning of the acts of c!,ngress, in contradistinction from the gable waters of the states, when they form, in their ordinary condition, by themsel\"es, or by uniting with other waters, a continuous highway, over which commerce is, ormay be, carried on with other states or foreign countries, in the customary modes in which such commerce is conducted by water." 10 Wall. 563. This test was applied to Grand river, and the conclusion was reached that it was a navigable stream, and the court adds: "And by its junction with the lake it forms a continued highway for merce, both with other states and with foreign countries. and is thus brought under the direct control of congress."
The court continues: "That power [the power to regulate commerce] authorizes all appropriate legislation for the protection or advancement of either interstate or foreign commerce, and, for that purpose, such legislation as will insure the convenient and safe naVigation of all the naVigable waters of the United States, whether that legislation consists in requiring the removal of obstructions to their use, in prescribing the form and size of the vessels employed them, or in subjecting the vessels to inspection and license, in order to insure their proper construction and equipment. ' The power to regulate commerce.' this court said in Gilman v. Philadelphia,· 3 Wall. 724, ·comprehends the control for that purpose, and to the extent necessary, of all navigable waters of the United States which are accessible from a state othflr than those in which they lie. For this purpose they are the pu blic property of the .n1ltion, and SUbject to aUthe requisite legislation of congress.' But it is contended that the steamer Daniel Ball was only ellgaged in the internal commerce (If the Iltate of Michigan. and was not, therefore. required to be inspected or licensed, even if it be conceded that Grand river is a navigable water of the. United States; and this brings us to the consideration of the second qllestion presented. There is undoubtedly an internal commerce which is subject to the control of the states. The power delegated to congress is limited to commerce · among the several states,' with foreign nations, and with the Indian tribes. This limitation necessarily excludes from federal control all commerce not thus designated, and of course that commerce which is. carried within 'the limits of a state, and does not extend to or affect other states. In this case it is admitted that the steamer was engaged in shipping, and trans-' porting down Grand river, goods destined and marked for other states than Michigan. and in receiving, and transporting up the river, goods brought within the state from without its limits; but inasmuch as her agency in the transportation was entirely Within the limits of the state, and she did not run in connection with, Or in continuation of, any line of vessels or railway leading to other states, it is contended tbat she was engaged entirely in domestic· commerce. But this conclusion does not follow. So far as she was employed: in transporting goods destined for other states, or goods brought from without the limits of .Michigan, and ·destined to places within that state,. tilhewas engaged in comm,erce between the states; and, however limited ibatcommerce may have been, she was, so far as it went. subject to of congress. She was employed as an instrument of that ever a commodity has begun to move as an article of trade frQIU, to another, commerce in that commodity between. the states has The fact that several different and independent agencies are em ployed porting the .commodity, some acting entirely in one state, and some actinK through two or more states, does in no respect affect the character of; the transaction. To the .extent in which each agency acts in that transportation"
488
it is sUbject to the regulation of congress. It is said that, if the position bere asserted be sustained, there is no such thin,:t as the domestic trade of a state; that, congress IDay take the entire control of the commerce of the country, and extend its regulations to the railroads within a state on which grain or \ fruit is transported to a distant market. We answer that the present case relates to transportation on the navigable waters of the United States, and we are 'not called upon to exprrss an opinion upon the power of over interstate commerce when carried on by land transportation. And we answer, further, that we are unable to draw auy clpar and distinct line between the authority of congress to regulate an agency employed in commerce petween the states when that agency extends through two or more states, and when U is confined in its action entirely within the limits of a single state. If its authority does not e'xtend to an agency in such commerce when that agency is confined within the limits of a state, its entire authority over interstate commerce may be defeated. Several agencies combining. each taking up the commodity transported at the boundary line at one end of a state, and leaVing it at the boundary line at the other end, the federal jurisdiction would be entirely ousted, and the constitutional provision would become a dead letter. "
See, also, The Montello, 11 Wall. 411, 20 Wall. 430; .Ex parte Boyer, 109 U. S. 629, 3 Sup. Ct. Rep. 434. In the case last cited the waterway upon which the collision occurred was actually the property of the state of Illinois, and was wholly artificial; and was wholly within its territorial boundaries. The court says, through Mr. Justice BLATCHFORD: "Within the principles laid down by this court in the cases of The Daniel Ball, 10 Wall. 557, and The Montello, 20 Wall. 4i::10, which elCtended the salin The Genesee Chief, 12 How. utary views of admiralty jurisdiction 443. The Hine v. Tre/)ol', 4 Wall. 555, and The Eagle, 8 Wall. 15, we have no doubt of the jurisdiction ofthe districtcourtiil thhlcase." "Navigable water, situated as this canal is, used for the purposes for which it is used, a highway for commerce between ports and places in different states, carried 011 by vessels such as those in question here, is piIblic water of the United States." It is true that 'this case considers and decides a question of admiralty jurisdiction; but the canal, although wholly artificial, and wholly.within the body ofthe state, is declared public water, for the reason that it is a Gonduitfor interstate commerce. In concluding the opinion, Mr. Justice BLATCHFORD observes: . "This case does not raise the question whether the admiralty jurisdiction of the district court extends to waters Wholly within the body of a state, and from which vessels cannot so pass as to carry on commerce between places in such state and places in another state orin a foreign country, and no opinion is intended to be intimated as to jurisdiction in such a case." The case was decided in January, 1884. In December, 1870, in the case of The Montello,-a proceeding to recover a penalty under a statute operative upon the "bays, lakes, rivers, or other navigable waters of the United States,".....Mr. Justice FIELD, for the court, declares that the stream "can only be deemed a navigable water of the United States when it forms by itself; or by its connection with other waters, such a highway." "If, however," the learned justice continues, "the river is not of itself a highway for commerce with. other states or foreign countries, or does not form such a highway by its connection with other waters, and:
· is only navigable between different places within the state, then it is not
.489
a navigable water of tb.e United States, but only a navigable water of the state, and the acts of congress * * * for the enrollment and license of vessels have no application. Those acts only require such enrollment and license for vessels employed upon the navigable waters of the United States." It will be observed that this was the construction of a penal statute, and its application under the admiralty power. But, for the regulation of interstate commerce, as we shall presently see, congress has enacted legislation with reference to the commerce upon water routes, whether they form by connection with other waters ov with railways, a highway for continuous carriage or shipment of passengers or property. The power of congress for this purpose is, we believe, generally conceded. If, therefore, the navigable waters of a state wholly within the state, and with no exterior water connection, are yet utilized under "common control, management, or arrangement," in connection with railroads, for "continuous carriage,"-in other words, for interstate commerce,-for the purposes of such commerce,-they would become public waters of the United States, and subject to congressional control under the commerce clause (paragraph 3, § 8, art. 1) of the constitution, if not under the admiralty clause. See act of. February 4, 1887, entitled "An act to regulate commerce," (24 St.at Large, 379.) But if it be true, as contended, that the terms of the act of June 19, 1886, are so broad that they affect the navigable waters of a state upon which there are vessels wholly engaged in internal commerce, must the act be held a nullity for that reason? From the fact that the indefatigable proctors for respondents have referred to the Kissimee, in Florida, and the Jordan, in Utah, to illustrate their argument, it is perhaps fairly inferable that such streams and lakes are very rare. It is probable, also, that the commerce which they convey is comparatively unimportant. Now, is it not the duty of the court to sustain the act under sideration if it appears that its application to the navigable inland waters of the United States, and to the great body of commerce, is valid and appropriate, even though it may affect, upon occasion, commerce wholly within a state? Concede that its language is susceptible of the meaning suggested by the respondents, it is nevertheless clearly warranted, and operative, as to all the important inland navigation of the country and the Great Lakes, and as to a mighty volume of commercial transactions. It has long been settled that statutes, constitutional in part only, will be upheld so far as they are not in conflict with the constitution, provided the allowed and prohibited parts are separable. Packet Co. v. Keokuk, 95 U. S. 80. A case of controlling authority upon the proposition that the statute may be valid as to one class of commerce, even though invalid as to another, is Ratterman v. Telegraph Co., 127 U. S. 411-428, 8 Sup. Ct. Rep. 1127. There a single tax was assessed by the state of Ohio upon the receipts of the telegraph company. These were derived as well from inter1'tate 88 from internal commerce. The items of the income account were of course capable of separation, but they were remmed and assessed in gross, and without separation or apportionment.
\490,.
sitting incharic<:lry, by the telegraph company, with avennents that the tax was illegal and void, and in conflict with the constitution of the United States, for the alleged reason'that the state was seeking by the actto, impose a tax upon gross 'receipts principally accumulated from in'terstate telegraphic messages. The Jprayers were that the defendant, towit, the treasurer, may be compelled to accept that portion of the tax lawfully due the state and country ,and that he may be enjoined from levying or colleoting the balance of the assessment. To the bill a generaldemurrei' w.as filed. The circuit court, after argument, upon an agreed submission of facts, which was in the main but a statement of the separate amounts received from business within the state, and from business between points in Ohio and in other states,held that the tax by the .state, so far to receipts derived from interstate 'communication, was unconstitutional and void,but,as apportioned to messages. within the state, it was valid. ,The case. reached the supreme court by acertifieate of difference of opinion between the circuit and the distriot judge; and Mr. Justice MILLER, for the court, presenting the unanimous opinion .with the characteristic vigor and, clearness of his judicial deliverances. has with precision, and we think with conclusiveness, defined the rule for our guidance. tbequestion certified" and observing that the agreement oJ parties had avoided the point !that the tax was not separable, thi3 learned justioe decisively states: UNor de) We believe. if there ware allegations, either. in the bill or answer, setting upthat partof the tax was from interstate commerce, and part from commei.'ce wJloUywithill the state, that there would have been any difficillty securing evidence of the amount of receipts chargeable to these separate classes of telegl'am!lby:means ,of the appointment of a referee or master to inquire into that fact, and make report to the court. are we of opinion that there question, under ,tbe decisions oUhis COUl't, in regar<lto holding that; solar as this tax was levied uponrecei'pts properly appurtenant ,to interstate' commerce, it was void, and that, so far as it was. only upon 'Commerce Wholly within the state, it was valid." '
FEDERAL'
vol. 40·
How apposite is this language to'the facts before the court I Here the books and bills of lading of the steamer would show every fact esiSential'tothe apportionment of the cargo into classes,of internal and in,terstate traffic and freight. But ev:en more pertinent is the next succeeding ,remark of the learned justice:' "This precise question was addudged in the Case of State Freight· Tax, 15 Wall.282." There a statu,fury tax, of Pennsylvania of two cents for one class, three oents for an,other, and five ,cents' for another, imposed upon every ton of freight transported by any railroad or canal of that state, was resisted by the Reading Ril.iltoad Company on the that it was levied on interatate,commerce; The returns of the railroad company to the accountiing:officersstated separately the ,limountof freight carried wholly within the state. and the amount hrought into or carried out of the state. The oourt:helci"that: the tax the former' class * * * was valid whien it was imposed; but that-the
491 latter Classes, being commerce states,were not subject to These casesare very satisfactory. . . It is also. true that apportionment and'separation of subjects under control of the state, and without such control, will apply to the transportation routes, as well as to the freight transported or messages forwarded. In the case of Telegraph Co. v. Massachusetts, 125 U. S. 530, 8 Sup. Ct. Rep. 961, where a by that state, estimated against the company upon the length of its lines within the state, as proportioned to their length elsewhere, it was held that since lines along post routes and across riavigable waters of the United States were not s.ubject to taxation; and since, in the state., 233,455 miles of the defendant's lines were thus exempted, there, only 49,850 miles not exempt; and upon this the company of-; fered to pay the .proportion of the tax assessed against it according to mileage by the state authorities. The remaining assessment was enjoined. "We referto this now," continues this valuable opinion, "only for the purpose of showing how easily the question of taxation which is forbidden' by the constitution may be separated from that which is permissible in this class of cases;" If the subjects of taxation are so readily classified' to mark the separate domain of federal and state taxing power, how en·: tirely justifiable will be the same process when necessary to maintain the validity of national legislation I This,as we have' seen, is the unquestionable duty of the court. Vide, also, Tiernan v. Rinker, 102 U. 8. 123; Steam-Ship Co. v. Pennsylvania, 1 Int. St. Com. R,311jTekgraph OJ. v. Penmrylvania, 128 U. 8.39, 9 Sup. Ct. Rep. 6. A case very interesting and very instructive as to this important topic is Steam-Ship Co. v. Penn8']jlvania,122 U. 8. 326-345, 7 Sup. Ct. Rep. 1118. The opinion of the court, rendered by Justice BRADLEY, comprehends an attractive· analysis of the more pertinent decisions upon this rule, with copious references to many others. It will be observed that we have heretofore considered the argument submitted by respondents' proctors as if a portion of the cargo of the Katie was shipped to be transported wholly within the state. It iatme, however, as we shall presently see, that all of it is properly to be ragardedas interstate in its character. It is true, also, that th'e Katie was engaged, in the strictest sense, in interstate and foreign commerce, and that the Savannah river between Augusta and Savannah is, llSclearlYt as the Mississippi between St. Louis and New Orleans, a navigable river of the United States; We extract the following from the valuable and elaborate brief of Mr. Robert Erwin, the proctor for libelant: "Thestatc of Georgia is bounded on the east by a line running ,from the sea, or the mouth of the river Savannah, along the stream thereof. to the fork or confluence made by the dvers Keowee and Tugalo. Code Ga. § 15. It is' proper to state, however, that there has been much discussion as to whethel'! the state of GeorJ{ia extends only to the thread of the strea,m or to. the Carolina shore,. Huwevel' that may be, the seeunl1 article adopted by the conven.,., tion of Beaufol't. which settled. the boundllry between GeorgIa and South, Citrolina, providl'd that the navigable purtiun of the Savannah river should be henceforth equally free to the citizens of both statf'1I, and from all duties, tolla, hindrance, interruption, and' molestation whatsoever attempted"
492
FlllDERAL REPOR'mR,
to be enforced by. one state on the citizens of another. See Hotchkiss, St. La w Ga. 916. And as the steam-boat Katie. on every trip. touched at landings on both shores the rlver.-that is, iII South Carolina and in Georgia, -there can be no doubt that she was engaged in interstate commerce." In Cotton Exchange v. Railroad C'o., 2. Int. Com. R. 375-388, we find it announced that commerce between points in the same state, but which passes another state, is regarded and treated as interstate commerce. Mr. Commissioner Morrison, stating the conclusion of the commission, on page 386, uses the language following: "While passing through Mississippi. after passing from Louisiana, this commerce is interstate, and subject alone to interstate regulations. It is not sUbject at any place between Shreveport and New Orleans to regulation by both the state and the congress. It passes by continuous carriage from Louisiana to and through the state of Mississippi. It is not transportation 'wholly within the state.' .It is subject to regUlation by the prOVision of the act to regulate commerce, and the commission has jllrisdiction to reserve the rates, where the parties interested in them are before it." This report is strongly advisory, and the statement quoted seems otherwise altogether justifiable. Then the Katie was in all respects engaged in interstate commerce. See, also, GloucesterFerryC'o. v. Pennsylvania, 114 U. S. 196,5 Sup. Ct. Rep. 826; The Daniel BaU, supra. To .summarize our conclusions upon this important and interesting we are ot'opinion that the act of June 19,1886, is valid, in view Of the power of congress to regulate commerce: (1) Because the law, atIlended, excepted from its operation inland navigation only, and not internal commerce, .RS inllisted. (2) The amendment extended. the operation of the law, not to .internal commerce, but to inland navigation. So much for the direct purpose of the act. (8) If internal commerce it is incidentally, merely; and the purpose of the legislature being legitimate, and warranted by the constitution, it is wholly immaterial to the consideration of its validity that somewhere it has a casual or contingent effect upon the domain of state legislation. (4) Even t,hough the subjects of this·extended liability, or the territory in which it is effective, are partially within the region of state control, yet, where they are separable, anel are partly under the national control, the act Will be sustained by the courts wherever the power of congress extends, as to all those objects to which it attaches; and this rule is easily applicable to the facts. (5) As to the Savannah river, it is a public navigable stream. The voyages of the Katie and her cargo are interstate in character, and the jurisdiction of congress is undoubted. , It will be seen that the question presented as to the constitutionality of tb,e:Glause extending the benefit and privilege of limited responsibility' .tothe owners of vessels engaged in navigating the inland public watersof the United States has been heretofore considered solely with relation to the commercial power df congress. But the commerce clause constitution is nottpe only title to the validity and effectiveness of the enactments. It is equally clear that the amendment is warranted by section 2, art. 3, ofthe constitution, which extends the judicial power Of the Duited States to all cases of admiralty and maritime jurisdiction.
THE KAm.
493
Since this demurrer was argued, the supreme court'oftbe United States, in Butler·v. Steam-Ship Co., 130 U. S. 527-558, 9 Sup. qt. Rep. 612, has settled with distinctness the following principles applicaqle to this discussion: The law of limited liability was enacted by congress as part of the maritime law of the United States, and is co-extensive in its operation with the whole territorial domain of that law. (2) While the general maritime law, with slight modifications, is accepted as law in this country, it is subject, under the constitution, to such modifications as congress may see fit to adopt. (3) The limited liability act applies to the case ofa disaster happening within the technica1limits ofli county in a state, and toa Q3Se in which the liability itselfarises from a law ofthestate. The case resulted from ,ihe well-known disaster to· the City of Columbus near Gay Head, at the western extremity of Mar.tha's and it was insistedfiy respondents to the libel to liPlitliability, filed Py the steam-ship company, that' the doctrine had no application to cases of personal itijuryand death, and none in the technical limits ofa cO'unty ina state, nor to a cause of acti9u created 'by .state law. All Of these were negatived by the ·. The seems to have been argued with great care and elaboration; and the opini,on, by Mr. Justice BRADLEY, is most valuable. The learned justice declares that the purpose of the limited liability law is,--we may observe, not to affect internal comrrierce,-but for the encouragement of ship-building; and the' employment of ships in commerce: He refers to tpe various attempts which have been mil.deto narrow the operation of the statute. He cites the leading cases in which the beneficentooject ofthe law has been setforth: Norwich Co. v. Wright, 13 Wall. 104} Steam-Ship 00. v. 'Manufactttring Co., 109 U. S. 578, 3 Sup. Ct. Rep. 379, 617. '!The law of limited liability," says the learned justice, "as we have fl'et}uently had occasion to assert, was enacted by congress as a part of' theinl1ritime law of this country, and therefore it is co-extensive in its operlltionwith the whole territorial domain of that law." Norwich Co. v. Wright, ,13 Wall 104-127; The Lottawanna, 21 Wall. 558-577; The Scotland, 105 U. S. 24, Steam-Ship C{). v. ManttfactUll'infT CO' 1 109 578.,.. 593, 3 Ct. Rep. 379, 617. ,In The Lottawanna. we said: "It cannot be supposed that the framers of the that the law should forever reinain unalterable. Congress undoubtedly has authority under the commercial power, if no other,to introduce such' changes 3S are likely to be needed." Page 577. "
Again, On page 575, speaking of the maritime jurisdiction refe;redto in the constitution, and ihe system of law to be administered it was s a i d : . " "The constitution must hllve referred to a system of law co-extensive with, and operating unifor/Illy in, the whole country. It certainly could not have ;been the intention to place the rules and limits ofmariLime law disposal and regulation of the several states, as that would have defeated the 'uniformity and consistency at which the constitution aimed on all stibjllctso'f commercial, character affecting the intercourse of thil stllies withaach other or with fQreignstatea." . . .
vol. 40. . " . .
::.In tne,Scotlanli' this language I ·
to say thatlthe· rule of, limited respbnsibility Is now our ltisthe rule by whlch;thl'Clugh tbeact.1iitcongress, we have Page annouTlced that we propose to administer:jilfltiee in ',;;
"Butdt J
. Again,,,in the same case" (page 29,) we said:
::..
'
:1" '"
.'
'''But whilst adopted the as tlle rule of the generalmarittme la;w,itseflj.oacy aa arple depends upon ,the statute, and not upon any,.inhere:nt, force of tl!-ll IPllritime law. As In The Lottawanna, the o.,arHtwe1aw Is only 'so far operative as law in any country as it is'adoptedb'y andusages:oftbat country; and this particular rule of the maritime law i'lever been adopted in this countr)" until it was enacted by statute. Tneref0re, whilstiit 18 now apart ·ttlf our maritime law. it is neveJ:theless stattiteilaw. t.,
ao. ,it was \''',The rule by the,act Of lssi is nothing more t)1an the. old, maritime rule admiu,istered i,n COUI·ts of admiralty!n all countries 8; '593,SI S :,)';
Up ·'Ot.i!tep; 889. r::,
aile £11li.t bt'longs t<J'the department'of man, timelawo" 101) U. ° ',' J "
thne immt'morial;' :
if this ,
not so, the subject-
These arebelieve!l: the general, if not unanimous, "iewsof the! me"mherll of this court for nearly 20,years past, and they lea'le usil). no doubt that general maritime law, with modifications, is Mcepted as law it is subject to such amenqmentsas see fit to 'OOqpt. One of ,the .modifications of law ,qs ,receivedherl:r was a rejection of the law of lim,ited liability. We :hllJVe rectified'that,.. Congress has restored t,hat article to lour Cod.e. We cannot dQubt its power to do this. fWJAt,thispoint.it ,is material to. 9bserye that the to the act. of operatiQn to inlaQd waters was added in the »eIl/f.1le;, It seems ,to h1tve suggested by an act ofparliament in the providecl. thatthese privilflgEl!l"should not extend lin)': lightE'r, ,\}arg13, or. vessel, of any burden or description rivers or inlan4 id)lly,. .t(), law. ",9pinion of J DRUl1MONDo in /lfie.JVa17;Eagle,,, not. concerned WIth .qpeijtionll of Of in,ternlll To tli& of l\I,r. , Justice BRADLEY abov,equoted, it was 11 modification of,the,maritimelaw. W,-,. have rectified , In fact, Qur statute adopted the maritime law, stat?t;s" that they were followed.' But In England as 1n thIS country the of this great privilege had been gradually but steadily extended; It was the actof7Geo. II. in 1734; It was enlarged by :and1again bY'1Y3'Geo'. 111.',1813.' In 1841, France of 1851 Was pp.qntp,-e by allQf thIS of (Wara[ldPeace, bk. 2, 11, ,§ 18,) Valin, (liber 2, tit. 8,) Pardessus, (2 Droit Com.pt.,3,tit. 2,,0.3, oj
THE KATI&,'
:§2,yitndmshydthers, -renowned writers on laW. Who can 'doubt'itswisdom or its beneficence',: when consjderedinthe light ofsuch experierieeand such' authority? Its philosophy is eminently practical, and is well explained by Mr. Justice BRADLEY, in Norwich 00. v. Wright, 13 Wall. 121: "The great object of the law was to encourage ship-building, and to induce capitalists to invest money in this branch of industry. Unless they can be induced to do so, the' shippingintetests of the ,country must fiag and decline. Those who are willing to manage and work ships are generally unable to build and fit ,them. They Iwve plenty ot bardiness'.and personal daring and enterprise, but they have little capital. On the other hand, those who have capital, and:inves,t it In ships, incur a v.ery large, riSk in 'property to the hazards of, the sea, and t(l,ihe managelUent of sea-faring milD, 'Without making them lMjlefor additionalloss68 and damage to anindeftnite amount. How many enterprises in mining, manufMturing, llnd internal improvement,s would be utterly impr/l,cticable if capitalists were not encouraged to invest' in' tbElIIi 'through Corporate' institutiOns, by 'whicll they are exempt from personal liability or from liability eXicept to a liDlited extent I ',The public intel"ests require the investment of capit,l' ..puch as in any of these enterprises." o",'Ha"mg act of 1851 itEI omission obtitintliebenefit .ofthisltndor the ship-owners who are our couutrymen, congress,firid'ing that it was injrtdicious to .excludetherefroin the. in rectified that l1listalren exclusibnoy the act of June 19, 1886, now consideration. . Who maisuccessfully dispute the 'wisdom af .thislegislatton?" 'Who may' deny and vital im'portance to shippirig .interests afthe couhtry northern ''Oceans of livingwater,-traversed b)' vast and sailing .vessels, discharging irito the"coffers of riational and individual "treasure, an'.'opwence, of wealth beyond the dreams of avarice? ;Is it 'possible to question the benefit of this law; to" the traffic upon those 'mighty streams,lwhich, with their .tributaries, vitalize the contineiit as the arteries human body, br the innumtirable water-cou1'sesof volume; butthe'value of which the:nation is beginning to appre,ci4te, and for the' iml?,f0VemEmt of whitlh' ithe publicfinakes' annual and libetalexpenditures'in order toadvance thl;l' commerce,whicn is declared iri'argtimenthere,to w}icillywithout national control? " , " :,' After ,consIderation inde¥ail of the.'teasons urged against the validity '61 the' act',-considerationhad with .the careftilile$s'and:llttention de:Jriarid'e'd; not al0n.e by the great momentoftheinqMry, but alsooy the :zeal. and eameptness with which' the supposed encroachment upon the rights'bf the state are thoroughly satisfied that !the as well to the commercial power of congress lUI ;to the of as modified· by the, statutes. 'nhas'atrot'J.ed fortunate truth that the constitution of our country is never an obstacle to the praclicitillrid pa-
to
be
aft
conservative purposes of its framers, it furnishes an undoubted warrant
FEDERAL REPORTER, vol. 40. for appropriate to oQr diverse system, and in consonance ,with the expension and nrogress of the country on the paths of civiliza. ,tion as they widen and extend. The demurrer will be overruled.
CHIESA tI. CoNOVER et
al. l
(Dt$trlctOouirt, S. D. Alabama. March 29, 1889.) "SmPPINo-BREAOHOll' CIIA:RTER,PARTy-PERSOlUL LIABILITY 011' MAsTEL
The master ill' oharge at time of8l\izure cannot be made liable in P6l"llottOm fol' breachQf the oharw,r made by his. predepe&Sor, even though he has, withoul; con. Bideration, .promised, to execl1te it.
In Admiralty. On exceptions to libel by defendant A. Conover. Pillans, Torrey k Hanaw, for exceptions· . G.L. &H. T.Smith,fodibelants. '. TOULMIN,J. As I ,understand it, the libel in this case is to recover .damag4:'s for fl.nalleged breach of a charter-party made by the master of th", hark Augustir;w:({obbe,for thereof. The libel alleges that the charter-party was not performed by the master under the, instructions of the owners. It apPears 'libel that the master who executed .the charter-party, is not a, party but that A. Conover, who is a party def4:'ndant. and it is sought to J;llake him liable jojntlywi'th the owners for the alleged damages. The oQ-ly conp-ection he seemS to have the charter-party, so far as of the libel ISPOW, is that he promised the libelant to perfor,m tl1echarter.party., he made liable for a breach of the made by theJprmor master, for he was not a party to it; and, ifit is l;lougl1t to :tI).ake; him, liable for a breach of his subsequent promi!le as for a breach of a.vel'bal it Beems to me it must tl>edone in a Belwrate 8uit., If A. Conover cannot be made liable for the bl'(jach of the made by the fbrmer master, and this suit is to recover damagea for such breach, then the libel makes no case against ,4. Conover, and the e:ltceptionsby him ihatthe libel shows no cause of against him is .well taken, and should be sustained. If the effort il} to make him liable for l;\ breach· of his verbal promise, then no recovery q!1n be had against him in this suit, because there is no consideration for such promise. But, as I have said, I understand from the allt!gations of the libel that its purpose is to recover damages for a breach of the original charter-party, to which contract A. Conover Wll,8 not a ,party, and caIlnotbe made lia\:)le on it. The exceptions to the libel · .. !;
Iltep:Qrted by Peter J.BamiltQn, Esq., of the Mobne bar.