BIGELOW v. NICKERSON, 70 F. 113

JENKINS, Circuit Judge, after stating the facts, delivered the opinion of the court. It is determined that, at the common law, no civil action would lie for an injury resulting in death (Insurance Co. v. Brame, 95 U. S. 754), and that, in the absence of

an act of congress, or a statute of a state, giving a right of action therefor, no suit will lie in the admiralty for personal injury causing death through negligence on the high seas, or on waters navigable from the sea (The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140; The Alaska, 190 U. S. 201, 9 Sup. Ct. 461). It is also settled that, if a state statute gives a right of action touching a subject of maritime nature, the admiralty can. administer the law by á proceeding in rem, if the statute grants a lien, or in personam, no lien being granted. The Corsair, 145 U. S. 335, 347, 12 Sup. Ct. 949.

I# is also the law that, if the negligent act causing death occur within the jurisdiction of a state, the law of such state governing such action is applicable. Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Alling, 93 U. S. 99; The Transfer No. 4, 20 U. S. App. 570, 9 C. C. A. 521, 61 Fed. 364, affirming The City of Norwalk, 55 Fed. 99.

In the first of these cases the negligent act causing death occurred upon the waters of Narragansett Bay, within the jaws of the headlands, and so within the territory of the state; in the second, upon the Ohio river, above the line of low-water mark, and within the territorial jurisdiction of the state of Indiana; in the last, upon the East river, just above Blackwell’s Island, and within the .territorial jurisdiction of the state of New York.

In Re Humboldt Lumber Manuf’rs’ Ass’n, 60 Fed. 428, the negligent injury causing death occurred on the high seas on Humboldt bar, off the éntrance to Humboldt Bay, and within two miles of the shore. The court applied the doctrine “that the sea, within a belt or zone of three miles from the shore, as distinguished from the rest of the open sea, formed part of the realm,” and held that the statute of California giving a right .of action for negligent injury causing death was applicable.

It will be observed that in none of the cases to which we have referred did the negligent injury occur upon the high seas beyond the three-mile belt or limit, and that is true of all the cases which have come under our notice. The Corsair, 145 U. S. 335, 12 Sup. Ct. 949; The Oregon, 45 Fed. 63; Killien v. Hyde, 63 Fed. 172; The Victory, 63 Fed. 632. The statute only takes cognizance of torts within the jurisdiction of the state, and has no extraterritorial effect.

It is urged that the collision and negligent injury here took place upon the waters of Lake Michigan, and without the belt limit of three miles, and that, therefore, within the decision in U. S. v. Rodgers, 150 U. S. 249, 14 Sup. Ct. 109, it occurred upon the high seas, and without the territorial jurisdiction of the state of Wisconsin. The question is thus sharply presented whether the locus in quo lies within the territorial waters and within the jurisdiction of the state of Wisconsin. The precise point decided in U. S. v.

Rodgers was that a district court of the United States had jurisdiction to entertain the trial of one for a crime, committed on an American vessel on the waters of the Detroit river, beyond the boundary line between the United States and the dominion of Canada, and within the waters of the province of Ontario. Jurisdiction was held, under sections 5346 and 730, Rev. St., upon the ground that the locus in quo was on a river within the admiralty jurisdiction of the United States, and out of the jurisdiction of a state of the Union.

It was ruled that, by the statute, congress intended to include “the open, unin’closed waters of the lakes under the designation of high seas,” with respect to the offenses enumerated in the statute; and the locus in quo being within the admiralty jurisdiction of the United States (The Genesee Chief, 12 How. 443), it was competent for congress to provide for the punishment of offenses committed upon an American vessel within a, foreign jurisdiction.

The question still remains open and undecided by the supreme court whether the jurisdiction of a state bordering upon one of the Great Lakes extends beyond low-water mark; whether the doctrine of a three-mile belt, recognized in the case of oceans, may be applied to the Great Lakes; and whether state jurisdiction, with respect to such lakes, is coextensive with the boundary line of the scale, when one of its lines is declared to be a line running through the middle of the lake.

We think it must be conceded that Lake' Michigan is not a “high sea,” in the sense that it is “open and un-inclosed, and not under the exclusive control of any one nation or people, but is the free highway of adjoining nations or people,” to use the language employed by Mr. Justice Gray. This lake lies wholly within the territory of, and as respects foreign nations is under the exclusive dominion of, the government of the United Stales. If we may indulge the expression, it is not “no man’s land.” It is not by nature free to the commerce of the world. It is so free solely by the grace of this government.

It is included within the territorial boundaries of four states. The organic law of the territory of Michigan, enacted in 1805, made its westerly boundary a line drawn from the southerly bend or extreme of Lake Michigan, through the middle of the lake, to its northern extremity. 2 Stat. 309. This line was confirmed and established upon the admission of the state of Michigan into the Union in 1836. 5 Stat. 49. The act provided that the state of Michigan should “have jurisdiction over all the territory included within” the boundaries described in the act.

The organic law of the territory of Wisconsin, enacted in 1836, established its eastern boundary “by a line drawn from the northeast corner of the state of Illinois through the middle of Lake Michigan to a point in the middle of said lake, and opposite the main channel of Green Bay,” etc. 5 Stat. 10. The same line, substantially, was established by the enabling act for the admission of the state of Wisconsin into the Union, passed in 1846. 9 Stat. 56.

It. is said that, while the geographical limits of the state extend beyond the place of collision, its territorial limit, its right of sovereignty, its power to enact and enforce laws, does not extend further than the point of navigability, or, at the most, beyond a three-mile belt or none. We think the vice of the contention lies in the application of international law to the subject in hand. As between nations, the territorial limit of sovereignly with respect to the high seas anciently extended no further than to low-water mark.

In later days, “to make good the assertion of the jurisdiction over the foreigner therein,” the character of territory was given to the three-mile zone. This, as we think, ought not to be applied to a lake which is not the common boundary of nations, an'd which is within the exclusive jurisdiction of one nation,™to a body of water that is not by nature open to the commerce of the world. It has never, so far as we are able to say, been applied by any nation, except with respect to its external littoral waters. Lake Michigan is a high sea, within the provisions of the act under consideration in U. S. v.

Rodgers, but it is not an open sea, nor a boundary line between nations. The government of the United States had the sole jurisdiction over this body of water. It saw fit to give to the different states, founded out of the surrounding territory, jurisdiction over its waters, subject to its paramount right in the regulation of commerce and. navigation.

The Northwest Territory was ceded by the state of Virginia, and accepted by the United States in trust, for the purpose only of the creation of states, and the vesting in them over 'the whole of this territory of the sovereignty that formerly pertained to the granting state. Shively v. Bowlby, 152 U. S. 1, 26, 14 Sup. Ct. 548. In the case of Illinois Cent. R. Co. v. Illinois, 146 U. S. 387, 13 Sup. Ct. 110, and in the case of Shively v. Bowlby, 152 U. S. 1, 14 Sup.

Ct. 548, it is said to be the settled law of this country that “ownership of, and dominion and sovereignty over, lands covered by tide waters or navigable lakes, within the limits of the several states, belong to the respective states within which they are found, with the consequent right to use or dispose of any portion thereof, when that can be without substantial impairment of the interest of the public in such waters, and subject to the paramount right of congress to control their navigation, so far as may be necessary for the regulation of commerce.” In the latter case it is said (page 58, 152 U.

S., and page- 548, 14 Sup. Ct.) that, upon admission of states into the Union, the “administration and disposition of the sovereign rights in navigable waters, and in the soil under them,” passed to the control of the states within whose boundaries such waters were included. See, also, Mann v. Land Co., 153 U. S. 273, 286, 14 Sup. Ct. 820. The grant to the United States, in the constitution, of all cases of admiralty and maritime jurisdiction, does not extend to a cession of the waters in which those cases may arise, or of general jurisdiction over them.

Congress may pass all laws which are necessary for giving the most complete effect to the exercise of the admiralty and maritime jurisdiction granted to the government of the Union, but the general jurisdiction over the place, subject to this grant, adheres to the territory, as a portion of territory not yet given away, and the residuary power of legislation will still remain in the state. U. S. v. Bevans, 3 Wheat. 336.

We are therefore of opinion that the surrounding states, within the limits prescribed in their respective organic acts, have sovereign rights in and over the navigable waters of Labe Michigan, subject to' the paramount right of the federal government to regulate navigation and commerce between the states and with foreign nations. The right of the state to legislate and to enforce its laws is plenary, within the boundaries prescribed, limited and controlled only by the paramount law of the nation. There does not necessarily result any conflict. Both jurisdictions can coexist in the same plane in complete harmony.

Legislation of the character of that under consideration is not open to the objection that state laws cannot extend or restrict the jurisdiction of the admiralty court. As suggested by Mr. Justice Clifford, in Steamboat Co. v.

Chase, supra: “Tlie practical effect allowed to tlie state statute Is to take the case out of the operation of the common-law maxim that personal actions die with the person.” And, as well observed by Judge Lacombe, in The Transfer No. 4, supra: “The admiralty courts, before the passage of the statute, exercised jurisdiction over precisely such claims for damages, when brought in his lifetime by the person injured, and there seems no sound reason why they should not exercise like jurisdiction when the tort is committed in a locality where tlie municipal law preserves the right to redress beyond the life oí the injured person.

It is not, logically, an enlargement of jurisdiction, so as to -cover a general subject not cognizable before, but a mere Increase of the varieties of the cases embraced within that subject.” This jurisdiction of the admiralty court, with respect to subjects maritime, to enforce new remedies granted by state laws, is fully recognized by the supreme court. Thus, Mr. Justice Brown, delivering tlie opinion of that court in The Corsair, supra; observes: “A maritime lien is said, by writers upon maritime law, to bo the foundation of every proceeding in rem in the admiralty.

In much the larger class of cases, the lion is given by the general admiralty law, but in oilier Instances, such, for example, as insurance, pilotage, wharfage, and materials furnished In the home port of the vessel, the lien is given, if at all, by the local law. As we are to look, then, to the local law, in this instance, for the right to take cognizance of this class of cases, we are bound to inquire whether the local law gives a lien upon the offending Tiling.

If it merely gives a right of action in personam for a cause of action of a maritime nature, the district court may administer the law by proceedings in per-sonam, as was done with a claim for ha If-pilotage dues, under the law of New York, in the case of Ex parte McNiel, l-'i Wall. 2¾5; but unless a lien be given by tlie local law, there Is no lien to enforce by proceedings in reifi in the court of admiralty.” We think tlie clear result of the authorities to be that the sovereignty of tlie slate of Wisconsin extends to the middle of the lake, and that its laws, so far as they do not conflict with the laws of the United States passed in the regulation of commerce and of navigation, are operative within its prescribed boundary.

Such state legislation upon subjects of a maritime nature has been generally recognized in the admiralty (The J. E. Rumbell, 148 U. S. 1, 13 Sup. Ct. 498; The Lottawanna, 21 Wall. 558; The America, 1 Low. 176, Fed. Cas. No. 289; The Marion, 1 Story, 68, Fed. Cas. No. 9,087; The California, 1 Sawy. 463, Fed. Cas. No. 2,312; The Glenearne, 7 Fed. 604; The B. F. Woolsey, Id. 108; The Julia L. Sherwood, 14 Fed. 590; The Two Marys, 10 Fed. 919, 16 Fed. 697; The Shady Side, 23 Fed. 731; Woodruff v. One Covered Scow, 30 Fed. 269), and we perceive no reason to deny operation of the law invoked in this case.

It is not, in our judgment, like the case of the law of a state intended to be operative upon the high seas, which belong to no one nation and to no one people, but to all nations and to all peoples. In the absence of legislation by congress denying a right of recovery for death occurring through negligent injury upon the waters of Lake Michigan, we perceive no reason for the refusal of an admiralty court to gi te effect to the beneficent provisions of this law within the limits of the state.

A question has arisen, not suggested by the appellant upon the argument, whether the proviso of the act of the legislature of the state of Wisconsin, that the action for damages occasioned by negligent injury causing death should be “brought for a death caused in this state and in some courts established by the constitution and laws of the same,” is a condition or limitation upon the right granted, so that the right can only be asserted and enforced by and through the courts of the state, and that suit therefore cannot be maintained in a federal court.

We are of opinion that the question must be resolved in the negative. The legislature of a state cannot confer jurisdiction of any sort upon a federal court. Such tribunal derives its jurisdiction from the constitution of the United States, not by grant from the legislature of a state. We enforce a right created by the state because the right given touches a subject within the constitutional jurisdiction of the federal court.

We think it not competent for a state to so restrict a general right that one entitled to invoke the jurisdiction of a federal court in the prosecution or defense of a suit may not assert the right so granted in a federal court, or that the state may in any way restrict the exercise of the jurisdiction of a federal court to administer the law of the state between persons who come within its jurisdiction. The proviso of the act in question, if it was designed to and in so far as it restricts the enforcement of the right to a state court, is, in our judgment, inoperative and void.

The judicial power of the United States, lodged in the federal courts, extends, by the very terms of the constitution, to all classes of admiralty and maritime jurisdiction. The subject-matter of the right here asserted was within such jurisdiction. The statute, as said by Judge Lacombe, in The Transfer No. 4, supra, created a mere addition to the variety of cases embraced within that jurisdiction, so far as it comprehends deaths caused by negligent injury upon navigable waters within the state.

It does not, as well held by Judge Brown, in The City of Norwalk, 55 Fed. 98, create a new cause of action. “It does, indeed, create a new right and liability; but it does not create a single one of the elements that make up the fundamental cause of action, — that is, the essential grounds of the demand. All these elements exist independently of the statute, and are not in the least affected by it. It no more creates the wrong, or the damage, than it creates the negligence or the death; nor does it, as in the pilotage and double wharfage cases, add anything to the damages sustained.

It authorizes no recovery except for The pecuniary damages’ already existing. It is apparent, therefore, that, as suggested by Mr. Justice Clifford, in Steamboat Co. v.

Chase, 16 Wall. 532, The statute does no more than take the case out of the operation of the common-law maxim that an action for death dies with the person.’ ” A civil right of action, acquired under the laws of a state where the injury was inflicted, or a civil liability incurred, the action being transitory, may be enforced in the courts of any other state in which the party may be found, according to the course of procedure of the latter (Dennick v. Railroad Co., 103 U. S. 11; Railway Co. v. Cox, 145 U. S. 593, 604, 12 Sup. Ct. 905; Huntington v. Attrill, 146 U. S. 657, 670, 13 Sup. Ct. 224; Railroad Co. v.

Babcock, 154 U. S. 190, 198, 14 Sup. Ct. 978), and this although a like wrong; or liability would not be actionable in the state where the suit is brought. It is also settled that, whenever a state statute gives a right, the same may be enforced in a federal court whenever the citizenship of the parties or (he nature of the subject will permit. In Insurance Co. v. Morse, 20 Wall. 445, the state of Wisconsin, having the rigid: to determine (he conditions upon which it would permit foreign coipora-tions to transact business within its territory (Doyle v. Insurance Co., 94 U.

S. 535), provided that any foreign tire insurance company should, as a condition of being permitted to do business within the state, appoint an attorney within the state upon whom process of law could be served, with an agreement of the company that it would not remove the suit for trial into the federal court. It was held that an agreement of the company executed in pursuance of the provisions of the statute was void as against public policy, and that the provision of the statute was in conflict with the constitution of the Cniled States. The Chief Justice and Mr.

Justice Davis dissented, upon the ground that the state could rightly exclude foreign corporations altogether from doing business within the state, and had therefore the right to impose such restrictions and conditions upon the company, in permitting its admission to the state, as it saw fit, and that the company accepted the permission with the conditions attached, and was bound thereby. This reasoning, however, was not accepted by the court. The decision has been often approved. Doyle v. Insurance Co., 94 U. S. 535; Kern v. Huidekoper, 103 U. S. 485, 492; Barron v. Burnside, 121 U. S. 186, 7 Sup.

Ct. 931; Southern Pac. Co. v. Denton, 146 U. S. 202, 207, 13 Sup. Ct 44; Goldey v. Morning News, 156 U. S. 518, 523, 15 Sup. Ct. 559. Mr. Justice Blatchford, in Barron v. Burnside, speaking for the court, says that the supreme court “lias uniformly asserted that no conditions can be imposed by the state which are repugnant to the constitution and laws of the United' States.” We consider the question foreclosed, and no longer open to discussion.

No condition imposed upon a right granted by a state, which prevents one from availing himself of his constitutional prerogative of appeal to the courts of the United States, can be upheld. 8uch condition conflicts with the federal constitution, and is nugatory aud void. In Railway Co. v.

Whitton’s Adm’r, 13 Wall. 270, an administrator, under letters of administration granted by the state of Wisconsin, but who was in fact a resident of the state of Illinois, brought suit against the railway company, a corporation of the slate of Wisconsin, in a state court, to enforce a claim under the statute under consideration for negligent injury of the company causing the death of Ms intestate within the stale of Wisconsin. He subsequently, under the provisions of the federal statute, removed the suit into the federal court.

It was there objected that the right to sue in such case existed by virtue of the statute only, and that the rigid: by the statute was given only on a condition that the suit be brought in a Wisconsin court. The contention was, however, over ruled by the supreme court by tbe unanimous opinion of the judges,, and it is there said (page 286): “In all cases where a general right is thus conferred, it can be enforced in any federal court within the state haring jurisdiction of the parties.

It cannot be withdrawn from the cognizance of such federal court by any provision of state legislation that it shall only be enforced in a state court. The statutes of nearly every state provide for the institution of numerous suits, such as for partition, foreclosure, and the recovery of real property, in. particular courts, and in the counties where the land is situated; yet it never has been pretended that limitations of this character could affect, in any respect, the jurisdiction of federal courts over such suits when the citizenship of one of the parties Avas otherwise sufficient.

"Whenever a general rule as to property or personal rights for injuries to either is established by state legislation, its enforcement by a federal court'in a case between proper parties is a matter of course, and the jurisdiction of the court in such case is not subject to state limitation.” See, also, Ellis v. Davis, 109 U. S. 485, 497, 498, 3 Sup. Ct. 327; Davis v. James, 2 Fed. 618; Holmes v. Railway Co., 5 Fed. 75; Mineral Range R. Co. v. Detroit & Lake Superior Copper Co., 25 Fed. 515.

It is sought to distinguish the Whitton Case from the present in this: that that suit was. originally brought in a state court, and removed to a, federal court, while the case in hand was originally brought in a federal court; and it is said that the former case was a compliance with the statute. We are unable to assent to the suggestion. The fact stated was given no significance in the Whitton Case. It was determined upon the broad principle stated. We cannot give to the word “brought,” as used in the statute, so restricted a meaning.

If the statute sought to limit the right of action to the courts of the state, it contemplated that the right given should be enforced by them and by them only. It would not be satisfied by the commencement of a suit in the state court, and its immediate removal to a federal court. A like contention was urged in Ex parte Schollenberger, 96 U. S. 369, 376, 377, and was adversely disposed of. The jurisdiction exercised upon the removal is original. Removal is only an indirect mode by which the federal court acquires original •jurisdiction. Virginia v. Rives, 100 U. S. 313, 337.

With respect to fault in the collision here, we are satisfied with the conclusion of the district judge. It was the duty of the Holland to keep out of the way of the Aldrich. Considering that she had under charge a long and unwieldy tow, it was her duty to avoid dangerous proximity to the approaching vessel. Being thus bound to keep out of the way, the burden is cast upon her to prove that the collision was due to the fault of the other vessel. This duty has' not been discharged.

We are satisfied, from a careful consideration of the evidence, which, as usual in such cases, is quite conflicting, that the Holland first designed to pass to leeward of the Aldrich, and, in pursuance of that intention, passed the point of intersection ,of the courses of the two vessels, and then changed her purpose with a view to pass to windward. Otherwise, her green light would not have been exhibited to the lookout upon the schooner over the port bow.' The change of course of the schooner was after the steamer had passed her to windward, and at a time when the collision was inevitable.

It is probable that the Aldrich then swung up into the wind, because she was struck on the port bow between the stern and the cathead. The wheelsman of the Aldrich insists that he put her wheel up. We think that in this he must be mistaken..

The error was, however, in the presence of imminent danger, and is not such a fault as would preclude a recovery by the schooner. “Where one ship has by wrong maneuvers, placed another ship in a position of extreme danger, that other ship will not be held to blame if she has done something wrong, and has not been maneuvered with perfect skill and presence of mind.” The Bywell Castle, 4 Prob. Div. 219; The Elizabeth Jones, 112 U. S. 514, 526, 5 Sup. Ct. 468; The Maggie J. Smith, 123 U. S. 349, 355, 8 Sup. Ct. 159.

It is further claimed that the Aldrich was in violation of the regulations in that she exhibited no torchlight. We need not consider whether the regulation with respect to torchlights was in force at this time, or had been repealed by the legislation claimed, or was applicable to the situation. The position and course of the schooner was distinctly apparent to the Holland. Her lights were burning and seen by the lookout of the Holland. A torch would not have disclosed anything that was not known without it to those navigating the Holland.

Its absence in no way contributed to or induced this collision, and, if the exhibition of a torch be required by the regulations, is not a fault availing to defeat a recovery.