APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ALABAMA
Fuller, Harlan, Brewer, Brown, White, Peckham, McKenna, Holmes, Day
MR. JUSTICE HOLMES delivered the opinion of the court.
This is an appeal from the District Court on the question of jurisdiction, which is certified. The case is a libel in rem against a British vessel for the destruction of a beacon, Number 7, Mobile ship-channel lights, caused by the alleged negligent running into the beacon by the vessel. The beacon stood fifteen or twenty feet form the channel of Mobile river, or bay, in water twelve or fifteen feet deep, and was built on piles driven firmly into the bottom. There is no question that it was attached to the realty and that it was a part of it by the ordinary criteria of the common law. On this ground the District Court declined jurisdiction and dismissed the libel. The Blackheath, 122 Fed. Rep. 112.
In The Plymouth, 3 Wall. 20, where a libel was brought by the owners of a wharf burned by a fire negligently started on a vessel, the jurisdiction was denied by this court. See also Ex parte Phoenix Ins. Co., 118 U.S. 610. In two later cases there are dicta denying the jurisdiction equally when a building on shore is damaged by a vessel running into it. Johnson v. Chicago and Pacific Elevator Co., 119 U.S. 388; Homer Ramsdell Transportation co. v. La Compagnie Generale Transatlantique, 182 U.S. 406, 411. And there are a number of decisions of District and other courts since The Plymouth, which more or less accord with the conclusion of the court below. 62 C.C.A. 287, 290. It would be simple, if simplicity were the only thing to be considered, to confine the admiralty jurisdiction, in respect of damage to property, to damage done to property afloat. That distinction sounds like a logical consequence of the rule determining the admiralty cognizance of torts by place.
On the other hand, it would be a strong thing to say that Congress has no constitutional power to give the admiralty
here as broad a jurisdiction as it has in England or France. Or, if that is in some degree precluded, it ought at least to be possible for Congress to authorize the admiralty to give redress for damage by a ship, in a case like this, to instruments and aids of navigation prepared and owned by the Government. But Congress cannot enlarge the constitutional grant of power, and therefore if it could permit a libel to be maintained, one can be maintained now. We are called on by the appellees to say that the remedy for any case of damage to a fixture is outside the constitutional grant.
The precise scope of admiralty jurisdiction is not a matter of obvious principle or of very accurate history. As to principle, it is clear that if the beacon had been in fault and had hurt the ship a libel could have been maintained against a private owner, although not in rem. Philadelphia, Wilmington & Baltimore R.R. v. Philadelphia & Havre de Grace Steam Towboat Co., 23 How. 209; Atlee v. Packet Co., 21 wall. 389; Panama Railroad v. Napier Shipping Co., 166 U.S. 280. Compare The Rock Island Bridge, 6 Wall. 213. But, as has been suggested, there seems to be no reason why the fact that the injured property was afloat should have more weight in determining the jurisdiction than the fact that the cause of the injury was. The Arkansas 17 Fed. Rep. 383, 387. The F. & P.M. No. 2,33 Fed Rep. 511, 515; Hughes, Adm. 183. And again it seems more arbitrary than rational to treat attachment to the soil as a peremptory bar outweighing the considerations that the injured thing was an instrument of navigation and no part of the shore, but surrounded on every side by water, a mere point projecting from the sea.
As to history, while as is well known the admiralty jurisdiction of this country has not been limited by the local traditions of England, The Lottawanna, 21 Wall. 558, 574, et seq., the traditions of England favor it in a case like this. The admiral's authority was not excluded by attachment even to the main shore. From before the time of Rowghton's Articles he could hold inquest over nuisances there to navigation
and order their abatement. Art. 7, Black Book (Twiss), 224; Clerke's Praxis; 1 Select Pleas in Adm., 6 Seld. Soc. Publ. xlv, lxxx; Articles of Feb 18, 1633, Exton, Maritime Dicaeology, pp. 262, 263; 2 Hale de Port., c. 7, p. 88, in Harg. Law Tracts; Zouch, in Malynes, Lex Merc., 3d ed. S 151; De Lovio v. Boit, 2 Gall. 398, 470, 471, note. Coke mentions that "of latter times by the letters patents granted to the lord admiral he hath power to erect beacons, seamarks and signs for the sea, &c." 4 Inst. 148, 149. To the French admiral, it is expressly stated, belonged "Contraincte et pugnicion, tant en criminel, que en civil," in this matter. 1 Black Book, 445, 446. See Crosse v. Diggs, 1 Sid. 158. Spelman says: "The place absolutely subject to the jurisdiction of the admiraltie, is the sea, which seemeth to comprehend publick rivers, fresh waters, creekes, and surrounded places whatsoever within the ebbing and flowing of the sea at the highest water." Eng. Works, 2d ed. 226. Finally, by the articles of February 18, 1633, all the judges of England agreed that the admiralty jurisdiction extended to "injuries there which concern navigation upon the sea." Exton, Maritime Dicaeology, ad fin., pp. 262, 263. And "if the libel be founded upon one single continued act, which was principally upon the sea, though part was upon land, a prohibition will not go." Com. Dig. Admiralty, F. 5; 1 Roll Abr. 533, pl. 18.
What the early law seems most to have looked to as fixing the liability of the ship was the motion of the vessel, which was treated as giving it the character of a responsible cause. Bracton recognizes this as an extravagance, but admits the fact, for the common law. 122 a, 136 b. 1 Select Pleas of the Crown, 1 Seld Soc. Pub. 84. The same was true in the admiralty. Rowghton, ubi sup. art. 50; 2 Rot. Parl. 345, 346, 372 a, b ; 3 Rot. Parl. 94 a, 120 b, 121 a ; 4 Rot Parl. 12 a, b, 492 b, 493. The responsiblilty of the moving cause ...