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VOL. 1.

Jurisdiction

of the courts of the United States.

This brief exposition of the footing on which the admiralty jurisdiction over controversies relative to the possession and ownership of ships rests in England, I have deemed necessary for the purpose of elucidating the footing on which it stands in this country. And I shall conclude my observations. upon the subject by a brief extract from the able and learned judgment pronounced by Mr. Justice STORY in the only reported case, as far as I know, falling within this branch of jurisdiction which has been decided in our courts. It will be seen that it

really turned upon a question of adverse title, and that had the suit been instituted in the High Court of Admiralty of England, jurisdiction of the case would probably have been declined upon that ground. The schooner had sailed from New-York in ballast, bound to Conwayborough in the State of North Carolina, and was stranded on the beach near the banks of Chickamacomico. While lying on the beach, she was advertised and sold by order of the master. She was afterwards sent with a cargo to Boston, and was there arrested by the former owners, on the ground that the sale was unnecessary, illegal and collusive, and that they had not therefore been divested of their title and right of possession.

Judge STORY, after referring to the general views expressed by him in the case of De Lovio v. Boit, relative to the extent of the admiralty jurisdiction in this country, and to the course of decision in the English admiralty respecting this particular class of cases, expressed himself as follows: "I am not aware that this distinction between petitory and possessory

suits (somewhat analogous to the distinction in CHAP. 11. actions respecting the realty, between droitural and possessory suits), has, in point of jurisdiction, ever been admitted in the actual practice of the courts of the United States, sitting in admiralty. It stands, as far as I have been able to trace it, upon no prinple, unless it be that titles derived from the common law shall be nowhere litigated, except in courts of common law; a proposition that, carried to its full extent, would prostrate the entire jurisdiction of the admiralty in instance causes. Indeed, the titles to ships principally depend upon the maritime law, as recognized and enforced in the common law; and the admiralty does little more in instance cases, than to carry into effect the declarations of the maritime law, so recognized and enforced. No doubt exists, that the admiralty possesses authority to decree restitution of ships wrongfully withheld from the owners; and if so, it ought to possess plenary jurisdiction over all the incidents. That was the clear opinion of Lord HALE, in Radley v. Egglesfield (1 Vent., 173, 308), which was afterwards confirmed by the whole court; and it was there said, that when the admiralty hath original cognizance of the principal matter, it hath also cognizance of the incidents thereto. The same case is reported in other books, and particularly in 2 Saund. R., 260, and in Lev., 26, where the doctrine is stated at large. It had been decided in the same way in the reign of Queen Elizabeth (Anon. Cro. Eliz., 685); and the

"Ex parte Blanshard, 2 Barn. & Cresw., 244.

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doctrine is so reasonable in itself, that the difficulty is to conceive how it ever could have been questioned. In the exercise of the prize jurisdiction, it has been constantly admitted to the largest exent.

"In cases not strictly of prise, but partaking of their nature, as in cases of illegal captures in violation of our neutrality, the courts of the United States have never hesitated to inquire into and decide the title, however complicated.' In cases of salvage and bottomry, a like course has been adoptted, as well as in cases of seizure for forfeitures." But what is still more directly applicable, in case of marine torts, the Supreme Court has gone at large into the question of proprietary interest, and has moulded its final decree according to the ultimate rights established by the parties. Rose v. Himely (4 Cranch, 241) is an instance full of intricate and perplexing inquiries on this very point of title.

"For myself, meaning to speak with all due deference for the judgment of others, I feel bound to confess my inability to perceive any sound distinction, as to the point of jurisdiction, between petitory and possessory suits. If there were a series of American decisions on the subject, which in

"See Talbot v. Janson, 3 Dall., 133; Del Col v. Arnold, 3 Dal., 383; L'Invincible, 1 Wheat. R., 257; The Alerta, 9 Cranch, 359; The Nuestra Senora de la Caridad, 4 Wheat. R., 497; The Antelope, 10 Wheat. R., 66; The Santa Maria, 7 Wheat. R., 490.

"The Mary Ford, 3 Dall., 188; The Adventure, 8 Cranch, 221; The Blaireau, 2 Cranch, 240.

"The Mars, 8 Cranch, 417; The Plattsburgh, 10 Wheat. R., 133; The Antelope, 10 Wheat. R., 66; 11 Wheat. R., 413; 12 Wheat R.,

point of authority ought to control my judgment, CHAP. 11. I should cheerfully bow to them. One cannot, indeed, but feel the truth of the language of Lord TENTERDEN, that this jurisdiction of the Court of Admiralty is a most useful part of the jurisprudence of the country.' As such, I cannot but think that it ought not to be surrendered but upon principles too clear to admit of judicial doubt(a)."

The admiralty jurisdiction of petitory as well as of possessory suits is recognized, and, by implication affirmed by the Rules of the Supreme Court, regulating admiralty proceedings(6), and has at length been expressly and unequivocally asserted in a formal judgment of that court, referring with approbation to the decision and adopting the reasoning of Mr. Justice STORY in The Tilton(c).

The question may now therefore be regarded as definitely settled.

"In Ex parte Blanshard, 2 Barn. & Cresw., 244."

(a) The Tilton, 5 Mason's R., 465.

(b) See Appendix, Rule xx.

(c) Ward v. Peck, 18 Howard's R., 267.

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CHAPTER XII.

SALVAGE.

SALVAGE constitutes an important subject of the admiralty jurisdiction; and this jurisdiction may be exercised as well in personam, as in rem(a).

Suits in admiralty for salvage have been of frequent occurrence in this country, as well as in England; and the general principles pertaining to the subject having thus been repeatedly brought under discussion in our courts, may now be considered as settled. These principles may be conveniently arranged under the following heads: 1. Who may become salvors; 2. What constitutes a salvage service; 3. The amount of salvage to be allowed, and the manner of its distribution; 4. By what acts of the salvor his claim to salvage is forfeited.

(a) The Hope, 3 Robinson's R., 215; The Trelawney, id., note; The Schooner Boston, 1 Sumner's R., 328, 341; Brevoort v. The Fair American, 1 Peters's Adm. Decis., 87, 94; Rule xix of the new Rules of Practice in causes of admiralty and maritime jurisdiction, by which it is declared, that "In suits for salvage, the suit may be in rem, against the property saved, or the proceeds thereof; or in personam, against the party, at whose request and for whose benefit the salvage service has been performed."

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