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THE PLYMOUTH.

December 1, 1865

THE PLYMOUTH.


THE steam-propeller Falcon, employed by its owners in navigating our great northern lakes, anchored beside the wharf of Hough & Kershaw, in Chicago River; 'navigable water.' Upon the wharf large packing-houses were built, and these, at the time, were filled with valuable stores. Owing to the negligence of those in charge of the Falcon, the vessel took fire; and the flames, stretching themselves to the wharf and packing-houses, set these last on fire, which with their stores were wholly consumed. Hough & Kershaw filed, accordingly, in the District Court for the Northern District of Illinois, a libel in admiralty, for cause of damage, civil and maritime, against the owners of the Falcon, and attached a vessel of theirs called the Plymouth.

The District Court, regarding the case as not one for the Admiralty, dismissed the libel for want of jurisdiction. The Circuit Court, on appeal, considered that the dismissal was rightly made. The case was now here for review.

It is necessary to say that, by act of Congress,*fn1 the District Courts of the United States possess admiralty jurisdiction 'in matters of contract and tort arising in, upon, or concerning steamboats or other vessels,' on our great northern lakes, the same as they do in cases of the like steamboats, and other vessels employed in navigation and commerce on the high seas and tide-waters.

Mr. A. W. Arrington, in favor of the jurisdiction:

The question is, has a court of admiralty, jurisdiction to decree compensation for the damage done by the Falcon?

The question, as respects instance at least, is one primoe impressionis. We can adduce no precedent identical in its circumstances. Two reasons exist for this:

1. Until a recent period the admiralty jurisdiction was repressed and hindered from attaining its appropriate extension by the jealous interference of the common law courts, in England, and by the servile adoption of the English rule, without comment or qualification, in America. That rule excluded the jurisdiction, not only from all waters unaffected by the ebb and flow of the tide, but even from tide-waters within the body of a county. Hence, during the prevalence of such a rule, no case like the present could arise; because, ships could not be the means of setting fire to wharves or houses, without penetrating the body of some county, and then, ipso facto, admiralty jurisdiction would be excluded by the English rule.

2. The local distance betwixt the sites of houses and the possible anchorage of vessels, in most parts of the world, prevents, ex necessitate, the existence of an occurrence like the one in controversy. It is only at Constantinople, in the Golden Horn; in the harbor of Chicago; and in a few other favored ports of the world, that, in the beautiful language of Gibbon, 'ships may rest their powers against the houses, while their sterns are floating in the water.'

But the objection that this case is the first of its kind, must be pronounced invalid, in the light of leading decisions of this court. The same objection was urged, with all the weight which learning and eloquence could give it, against those very adjudications which have now become fixed in admiralty law, and was urged in vain; while, at the same time, those adjudications overruled the supreme authority of prior cases, and cases seemingly established among the most permanent doctrines of Federal jurisprudence. Thus, in the Thomas Jefferson,*fn2 in 1825, this court held that the admiralty jurisdiction was confined 'to the sea, or waters within the ebb and flow of the tide.'
In Peyroux v. Howard*fn3 this doctrine of the former case was approved; the court deciding that if one terminus of a voyage was above the flow of tide-water, the mere fact precluded the exercise of jurisdiction. The law of these cases was followed by all the district and circuit courts. The firmness of an enduring principle seemed to have been obtained. In truth, the structure wanted but one thing to insure its permanence,–rational accordance with the spirit of the age and nation, as developed by the characteristics of the physical geography of America.
In 1848, in Waring v. Clarke,*fn4 the Supreme Court took its first step in a path divergent from the via trita of the ancient English rule, by adjudging that admiralty had jurisdiction in a case of collision, though happening infra corpus comitatus. This was the germination of a new idea. But the full development of reason was reserved for the year 1851, when, in the Genesee Chief v. Fitzhugh,*fn5 this same tribunal shook off the yoke of English authority forever, by declaring that 'tide-water' constituted no proper test of admiralty jurisdiction. That case has been succeeded by a series of judgments, which established the true criterion of jurisdiction as being 'navigable water' per se, in contradistinction to water not navigable, and to nothing else. Now, the case of the Genesee Chief was the first of its kind. There had been nothing like it, either in England or America, since the days of Lord Coke. It was not only a novelty, but one in clear contradiction of all previous authority.

The objection, therefore, has been overruled in advance.

It must be noted, in limine, that the present case, although new in the instance, is not so in principle. On the contrary, the inference we seek to deduce is the logical result of doctrines as old as the common law; and is confirmed, besides, by the analogy of adjudged cases.

First. Let the court consider the nature and characteristics of the two things concerned in the case of damage,–the object injured, and the agent causing the injury.

I. The object, or part of the object, injured–the wharf–was unquestionably a maritime thing. A wharf is the necessary terminus, a quo and ad quem, of every voyage, in certain lines of trade; and becomes thus indispensable to commerce and navigation. It is an instrument of navigation. And it has been decided that the lien of a wharfinger appertains to the jurisdiction of the admiralty.*fn6 It has even been adjudged that the owner of a shipyard, who employs a railway cradle and other fixtures for hauling vessels out of the water, can sue in the admiralty for his services, though the repairing may be done by other parties.*fn7

II. The agent producing the damage, the vessel which communicated fire to the wharf, was a maritime thing. That fact is conceded.

Hence, since both the object and the agent were maritime things, and within the admiralty jurisdiction, would it not shock common sense to exclude from that jurisdiction the injury received by one from the other, in a case of manifest and admitted tort?

III. The locality was maritime. The ship, the maritime agent, in the very act of committing the injury, was moored in a maritime place, namely: in 'navigable water.' And this court has determined that 'navigable water' is the test of admiralty jurisdiction, in cases of tort.*fn8

IV. Another legal principle, in connection with the preceding, covers the case.

The principle is this: That the incident, or that which is accessary, always follows, or is drawn to, the principal thing in a given combination of circumstances. Or, as the maxim is announced by Lord Coke,*fn9 'accessorium non ducit set sequitur suum principale.'
The maxim has been applied to the admiralty jurisdiction in cases reported by Croke, Levinz, Comberback, Saunders, and others,*fn10 and always to this effect: 'That when the principal cause is within the jurisdiction, there is also jurisdiction over the incidents.'
In a case in Siderfin*fn11 a suit was sustained in the admiralty for beaconage, of a beacon standing on a rock in the sea, for the reason that the admiral had jurisdiction of beacons, although the rock was part of the earth and appertained to the inheritance.
All these are common law cases, running back, too, to the cradle of the system; and they all concur to establish the point ruled, at a later period, in Le Caux v. Eden:*fn12 'That when the admiralty has jurisdiction of the original matter, it ought to have jurisdiction of everything incidental.'

Hence, the question is, what was the principal matter or thing in this case of damage? What was the original, or, in the language of the schoolmen, the efficient, cause of the injury? The answer is: The original cause was the ship; or, rather, the ship in action, and performing a wrongful deed to the damage of others. The ...


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