United States. These cases are as old as navigation itself; and the law, admiralty and maritime, as it has existed for ages, is applied by our courts to the cases as they arise." The jurisdiction, therefore, exists under this clause and not under the first clause of this section.

5

§ 24. What waters are within admiralty jurisdiction. For a number of years after the adoption of the Constitution the admiralty jurisdiction of the United States was deemed to be limited to tide waters, and the Supreme Court refused to recognize such jurisdiction except upon waters affected by the ebb and flow of the tide. These early decisions simply followed the English authorities, which limited admiralty jurisdiction to tide water, as was reasonable enough in England where there are no navigable waters except those in which the tide ebbs and flows. In that country navigable water and tide water are synonymous terms. This doctrine is plainly inapplicable in this country with its great inland lakes and navigable rivers not subject to tidal flow, and the early cases were overruled in 1851 in the leading case of The Genesee Chief, in which it was held that the admiralty jurisdiction of the United States extends to the navigable lakes and streams of the country without regard to the ebb and flow of the tide." This decision has been followed by the court ever since as establishing the correct doctrine.s

While a fundamental test of admiralty jurisdiction is the navigability of the water in question, it is a further requisite that such navigable water should constitute a

5-American Ins. Co. v. Canter, 1 Pet. 511.

6-The Thomas Jefferson, 10 Wheat. 428, followed in Peyroux v. Howard, 7 Pet. 324; The Steamboat Orleans v. Phoebus, 11 Pet. 175; United States v. Coombs, 12 Pet. 72. 7-The Propeller Genesee Chief

v. Fitzhugh, 12 How. 443. This is one of the most important instances in which the Supreme Court has overruled its former decisions.

8-The Daniel Ball, 10 Wall. 557; In re Garnett, 141 U. S. 1; The Robert W. Parsons, 191 U. S. 17.

highway of commerce with other states or with foreign countries. A river or inland lake lying wholly within the limits of a state and having no navigable outlet by which it is so connected with other waters as to form a part of a highway of interstate or foreign commerce, is within the exclusive jurisdiction of the state, and, although itself navigable, is not a navigable water of the United States and is not within the federal admiralty jurisdiction.9

The reason for this doctrine is that admiralty jurisdiction, at the time of the adoption of the Constitution, was understood to relate to the ocean and the arms thereof with a view of uniformity in respect to international commerce, and hence while admiralty jurisdiction extends to all navigable waters so long as they connect with the sea, it cannot extend to landlocked waters, though navigable, lying wholly within the limits of a state.10 But if the stream is navigable and forms a part of an interstate highway, this is all that is required; thus the Erie Canal, though an artificial waterway constructed and owned by the state of New York, is within the admiralty jurisdiction." And the jurisdiction attaches even to vessels engaged wholly in intrastate commerce.12

§ 25. Legislation in admiralty and maritime matters. The Constitution nowhere expressly grants to Congress power to legislate in matters of admiralty and maritime jurisdiction. In most cases such power may properly be exercised in connection with the regulation of interstate and foreign commerce, but, in addition, it is well settled that Congress has an independent power to legis

9-The Montello, 11 Wall. 411; 20 Wall. 430. The point was raised but not decided in Ex parte Boyer, 109 U. S. 629.

10-See The Propeller Genesee Chief v. Fitzhugh, 12 How. 443.

11-The Robert W. Parsons, 191 U. S. 17.

12-The Belfast, 7 Wall. 624; The Robert W. Parsons, 191 U. S. 17.

late in these matters in aid of the judicial power; that is, the extension of the judicial power to cases of admiralty and maritime jurisdiction operates incidentally as a grant of an auxiliary legislative power to Congress. This seems to be a legitimate application of the “necessary and proper" clause of the Constitution.

The power of Congress, then, to legislate in admiralty and maritime matters is an entirely distinct power from the power to regulate commerce and has no necessary connection therewith. 18 And it may be exercised in matters wholly intrastate.14

With reference to the power of Congress in this connection, Mr. Justice Bradley, in a leading case, said: 15 "It cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable. Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed. The scope of the maritime law and that of commercial regulation are not co-terminous, it is true, but the latter embraces much the largest portion of ground covered by the former. Under it Congress has regulated the registry, enrollment, 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 the responsibility of ship owners for the negligence and misconduct of their crews; and many other things of a character truly maritime."

The legislative power of Congress in admiralty matters is exclusive, at least where Congress has acted on the subject.16 Any other rule would defeat the manifest

13-The Propeller Genesee Chief v. Fitzhugh, 12 How. 443; In re Garnett, 141 U. S. 1.

14-In re Garnett, 141 U. S. 1. 15-The Lottawanna, 21 Wall,

16-This is merely one application of the general principle that where Congress legislates in respect to a matter within its jurisdiction such legislation is exclusive.

intent of the Constitution that the system of admiralty law should be co-extensive with the whole country and operate uniformly therein. However, it has been held that until Congress has acted, a state may legislate in regard to the duties and liabilities of its citizens and corporations while on the high seas and not within the territory of any other sovereign.17

§ 26. Exclusiveness of admiralty jurisdiction. Section 9 of the Judiciary Act of 1789 provided "That the district courts shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it." 18 This provision is substantially repeated in Section 256 of the Judicial Code.

The admiralty jurisdiction of the federal courts is not only exclusive but cannot be enlarged or restricted by state legislation. No state legislation can bring within the federal jurisdiction a subject not maritime in its nature, but when a right maritime in its nature, and to be enforced by admiralty process, has been given by a statute of a state, the federal courts have jurisdiction, which is exclusive, to enforce that right according to their own rules of procedure.19 But under the saving clause of the above section, the state courts may enforce maritime rights by common-law proceedings. Thus a bill in equity, as distinguished from proceedings in admiralty, may be maintained in a state court to enforce a common-law lien for towage.20

§ 27. Scope of admiralty jurisdiction. In extending the federal judicial power to cases of admiralty and

17-The Hamilton, 207 U. S. 398. 18-1 Stat. L. 76.

19-The J. E. Rumbell, 148 U. S.

1; The Glide, 167 U. S. 606.

20-Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638.

maritime jurisdiction the Constitution nowhere defines such jurisdiction. The phrase "admiralty and maritime jurisdiction" is assumed to be well understood. In developing the subject in this country the Supreme Court has been governed largely by the English and continental authorities, but has not felt bound to adopt completely or exclusively their conclusions. The federal doctrines of admiralty, while based upon the usages and authorities prevailing both abroad and in this country at the time of the adoption of the Constitution, have been developed and are finally determined by the decisions of the Supreme Court and the laws of Congress on the subject. On this point Mr. Justice Bradley, in a leading case, said: 21 "It is hardly necessary to argue that the maritime law is only so far operative as law in any country as it is adopted by the laws and usages of that country. That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend 'to all cases of admiralty and maritime jurisdiction.' But by what criterion are we to ascertain the precise limits of the law thus adopted? The Constitution does not define it. It assumes that the meaning of the phrase 'admiralty and maritime jurisdiction' is well understood. 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 decisions of this court illustrative of these sources, and 21-The Lottawanna, 21 Wall.