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The fact of locality alone does not give a court of admiralty jurisdiction of an action for a tort committed on the high seas or navigable waters, but it must further appear that the tort was maritime in character, having some relation to a vessel or its owners. Campbell v. Hackfeld, (C. C. A. 1903) 125 Fed. 696.

An action against a contracting stevedore by an employee to recover for personal injuries sustained while discharging a vessel, through the alleged negligence of defendant or his other employees, is not within the admiralty jurisdiction, where no fault is charged against the vessel, her owners, offieers, or crew. Campbell v. Hackfeld, (C. C. A. 1903) 125 Fed. 696.

A court of admiralty is without jurisdiction of an action against an agent who issued a policy of marine insurance, brought under Act Pa. May 1, 1876 (P. L. 66), sec. 48, which provides that the agent of any foreign company which does not comply with the laws of the state shall be personally liable "on all contracts of insurance" made by him on behalf of such company. Such an action is not one on contract, but one to recover statutory damages for a tort committed in violating the law, and imposed for the benefit of the person injured, and is not maritime. Reliance Lumber Co. v. Rothschild, (1904) 127 Fed. 745.

An action to recover damages for a personal injury received by belant by falling from a dock when attempting to go on board a vessel after dark, charged to have been due to the negligence of those in charge of the vessel in removing the gang plank, is not maritime, and therefore not within the jurisdiction of a court of admiralty, where the right of recovery is based on the tort. The Albion, (1903) 123 Fed. 189.

Injuries by vessel. The admiralty jurisdiction of the federal courts extends to a libel in rem against a vessel for negligently colliding with and destroying a beacon standing some fifteen or twenty feet from the channel, in water twelve or fifteen feet deep, though it is built upon piles driven firmly into the bottom. The Blackheath, (1904) 195 U. S. 361, 25 S. Ct. 46, 49 U. S. (L. ed.) 236.

In The Curtin, (1907) 152 Fed. 588, the court expressed the opinion, without positively so deciding, that an action for injury to a pier by a moving vessel is not cognizable in admiralty.

A pontoon floating upon the water of a navigable stream, between high and low water mark, rising and falling with the tide and used as a landing in connection with a ferry, although fastened to the shore by a cable, is not land, and an action for an injury to a person thereon by a moving vessel is for a maritime tort and within the admiralty jurisdiction. The Mackinaw, (1908) 165 Fed. 351.

Injurics to structures on land. — A court of admiralty has no jurisdiction of a libel in rem against a vessel, based on injuries inflicted to the piers or abutments of a railroad bridge spanning a navigable stream,

to the piling placed around the centre abutment in order to protect vessels from injury. and to a shore dock or wharf. Cleveland Terminal, etc., R. Co. v. Cleveland Steamship Co., (1908) 208 U. S. 316, 28 S. Ct. 414, 52 U. S. (L. ed.) 508. Nor can redress be afforded in admiralty for injuries inflicted by a colliding vessel upon the draw of a bridge over a navigable stream, and to its centre pier protection. The Troy, (1908) 208 U. S. 321, 28 S. Ct. 416, 52 U. S. (L. ed.) 512.

A collision in a navigable river between vessels and the surface part of borings made to locate an aqueduct under the bed of the river for municipal purposes is not in any sense maritime, and a suit to recover damages for injury to such borings is not within the admiralty jurisdiction. The Poughkeepsie, (1908) 162 Fed. 494, affirmed 212 U. S. 558, 29 S. Ct. 687, 53 U. S. (L. ed.) 651.

Admiralty had no jurisdiction of the injury where a pier of a lawfully constructed bridge resting in the bottom of a navigable river was run into by a vessel, causing a span of the bridge to fall into the stream, though the damage was largely effected by the action of the water after the fall of the bridge. West v. Martin, (1908) 51 Wash. 85, 97 Pac. 1102.

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Contribution. A court of admiralty has jurisdiction of a libel brought by one of two vessels, which were both adjudged to be in fault for a collision, to enforce contribution on account of its payment of the entire damage to the cargo of the other vessel. Erie R. Co. v. Erie, etc., Transp. Co., (1907) 204 U. S. 220, 27 S. Ct. 246, 51 U. S. (L. ed.) 450. Right of action for a death. There is no admiralty jurisdiction under the general maritime law authorizing the maintenance of a proceeding in rem against a vessel for the death of a person injured as the result of negligence. The Lotta, (1907) 150 Fed. 219. There is no right of action for wrongful death under the general maritime law. Williams v. Quebec Steamship Co., (1903) 126 Fed. 591.

In the absence of an Act of Congress or a state statute giving a right of action therefor and a lien on a vessel, a libel in rem cannot be maintained in admiralty to recover for the death of a human being on the high seas, resulting from negligence. The Aurora, (1908) 163 Fed. 633; Williams v. Alaska Commercial Co., (1903) 2 Alaska 43, 64.

"In the admiralty, it has become well settled that where damages or death occur, it is not sufficient that the wrong originated upon the water. If it was not consummated upon the water, jurisdiction does not exist." Ryley v. Philadelphia, etc., R. Co., (1909) 173 Fed. 839, holding that the court had no jurisdiction to award damages for the death of a person on shore from injuries caused by a collision in the Delaware river.

The steamer Bertha engaged to tow the schooner Dora B. to Lituga bay, but owing to rough weather passed that port and steered for Yakutat. Before reaching Yakutat, and while off the coast of Alaska, the hawser parted. Instead of returning to the tow and rendering further assistance, the Bertha kept

on her course, abandoning the Dora B., which was carried on the coast and wrecked, and the deceased lost his life. It was held to be immaterial that the parting of the hawser happened over three miles off shore and out of the jurisdiction of the court, it appearing that the disaster which caused the decedent's death happened upon the shore within the three-mile limit and within the jurisdiction of the court. Williams r. Alaska Commercial Co., (1903) 2 Alaska 43.

"The decision in The Harrisburg, (1886) 119 U. S. 199, 7 S. Ct. 140, 30 U. S. (L. ed.) 358, settled the proposition definitely, that in the absence of federal or state legislation giving a right of action therefor, a suit in admiralty cannot be maintained to recover damages for death caused by wrongful act or negligence upon the high seas. Whether an action in rem in the admiralty can be maintained upon the statute of a state, unless a lien is distinctly given, and whether such an action will lie, even if a lien be given, are questions about which the courts have dif fered." Fisher v. Boutelle Transp., etc., Co., (1908) 162 Fed. 994.

The statutory law of a state authorizing recovery for wrongful death may be enforced in a court of admiralty where the death occurred in a collision in the waters of the state. Trauffler v. Detroit, etc., Nav. Co., (1910) 181 Fed. 256.

A statute of a state may be applied to a suit in admiralty to recover for a death on the high seas arising purely from tort, where the vessel belonged to the state in question; but the burden rests upon the libelant to establish by satisfactory evidence that the vessel was one of such state, where it is denied, which cannot be presumed from the fact that her owner is a corporation of such state. Fisher . Boutelle Transp., etc., Co., (1908) 162 Fed. 994.

A section in the Oregon statutes declared that, when the death of a person is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action at law against the latter, if the former might have maintained an action, had he lived, against the latter for the injury done by the same act or omission. Another section declared that every boat or vessel used in navigating the waters of the state shall be subject to a lien for all demands for damages for injuries done to persons or property by such boat or vessel; another section provided for the priority of liens; and another section declared that any person, instead of proceeding against the master, owner, or agent, may sue the boat or vessel by name. It was held that, where a longshoreman employed by a vessel was killed while assisting in loading her by an alleged defect in the gang plank, his administratrix was entitled to maintain a libel in rem in the admiralty courts of the United States to recover damages for his death. The Aurora, (1908) 163 Fed. 633.

Code Pub. Gen. Laws Md. 1904, art. 67, secs. 1, 2, creating a cause of action for wrongful death, and providing for assessment of damages by a jury, is not for that reason unenforceable in the federal courts of admiralty sitting in that state by a libelant to recover for wrongful death happening in consequence of a negligent obstruction in the navigable waters of the state; the right of trial by jury not being indispensable to the enforcement of the right conferred. Maryland r. Miller (1910) 180 Fed. 796.

Seizures. In cases of seizures on land, the District Court proceeds, not as a court of admiralty, but as a court of common law upon a trial by jury. U. S. v. Spraul, (C. C. A. 1911) 185 Fed. 405, 408.

Vol. IV, p. 235, sec. 563, cl. sixteenth.

An act cannot be held to be a tort either in violation of the law of nations, or of a treaty of the United States, when the Executive, Congress, and the treaty-making power all have adopted the Act. O'Reilly de Camara r. Brooke, (1908) 209 U. S. 45, 28 S. Ct. 439, 52 U. S. (L. ed.) 676.

Defendant, while governor of Cuba during its occupation by the United States, abolished a valuable franchise owned by plaintiff, who was a Spanish subject. On appeal the Secretary of War of the United States confirmed the governor's order. Subsequently, by the so-called "Platt Amendment," incorporated in the treaty between the United

Vol. IV, p. 236, sec. 566.

Application of statute. The provision for a jury trial "in causes of admiralty and maritime jurisdiction" applies only to the Great Lakes and waters connected therewith, and then only to such issues of fact as arise in cases of contract or tort, the statute having no reference to foreign vessels or those

States and the republic of Cuba, it was provided that "all acts of the United States in Cuba during its military occupancy thereof are ratified and validated, and all lawful rights acquired thereunder shall be maintained and protected." It was held that such ratification was equivalent to an original authorization of defendant by the United States government to make the order in question and exempted defendant from any personal liability to plaintiff for depriving her of her property right in the franchise. O'Reilly de Camara . Brooke, (1906) 142 Fed. 858, affirmed (1908) 209 U. S. 45, 28 S. Ct. 439, 52 U. S. (L. ed.) 676.

trading between ports of the same state. The Western States, (C. C. A. 1908) 159 Fed. 354, certiorari denied 210 U. S. 433, 28 S. Ct. 762, 52 U. S. (L. ed.) 1136.

Proceedings for deportation under section 13 of the Chinese Exclusion Act of Sept. 13, 1888, 25 Stat. L. 479, 1 Fed. Stat. Annot. 772,

are administrative rather than judicial, and are not "causes" in the proper sense of that word as used in section 566, providing for a jury trial. Toy Tong v. U. S., (C. C. A. 1906) 146 Fed. 343.

Procceding for recovery on forfeited recognizance. Under this section and the provisions in the 7th Amendment to the Federal Constitution, 8 Fed. Stat. Annot. 37, defendants in a proceeding by scire facias on a forfeited recognizance in a federal District Court in which the United States sought to recover $1,000 were entitled to a trial by jury of issues of fact tendered unless such right was waived. Hollister v. U. S., (C. C. A. 1906) 145 Fed. 773. Effect of verdict.

In The Western States, (C. C. A. 1908) 159 Fed. 354, certiorari denied 210 U. S. 433, 28 S. Ct. 762, 52 U. S. (L. ed.) 1136, a passenger filed a libel against a steamboat in rem, charging the owners with negligence in performing the contract for libelant's transportation, and the issue was tried by a jury under this section. It was held that the verdict was not merely advisory, and that the power of the court can go no further than to grant a new trial, but that the district judge properly set aside a verdict for $15,000 on the ground that it was the result of passion and prejudice, or a misunderstanding of his charge, and entered a decree for libelant for $5,000.

Trial without a jury.-R. S. sec. 649, 4 Fed. Stat. Annot. 393, which provides for the waiving of a jury, applies only to the Circuit Court. U. S. v. Cleage, (C. C. A. 1908) 161 Fed. 85; U. S. v. St. Louis, etc., R. Co., (C. C. A. 1909) 169 Fed. 73; Low v. U. S., (C. C. A. 1909) 169 Fed. 86.

In Low r. U. S., (C. C. A. 1909) 169 Fed. 86, a criminal case, the defendants and the government waived a jury, and the case was heard upon the evidence by the court, and a general judgment rendered of guilty upon certain counts and not guilty upon others. On writ of error it was held that the judge must be regarded only as an arbitrator, the court also saying: "For the reason indicated we may not inquire into the sufficiency

Vol. IV, p. 239, sec. 607.

This section is superseded by Judicial Code, sec. 118, ante, p. 192 of this Supplement.

If

The measure of the power and authority of a circuit judge within the territorial limit of his circuit is the power and authority of the circuit justice allotted to that circuit. the circuit justice may exercise his authority in chambers either inside or outside his circuit, and outside of the particular district

Vol. IV, p. 243, sec. 609.

This section is expressly repealed by Judicial Code, sec. 297, ante, p. 250 of this Supplement; and Circuit Courts are abolished by Judicial Code, sec. 289, ante, p. 249.

One of the judges named, sitting alone, exercises the power of all three. Cuyler v. Atlantic, etc., R. Co., (1904) 132 Fed. 568.

of the evidence to support any judgment, or any matter of form in respect to the indictment, nor review the action of the court below upon the admission or rejection of evidence, nor any question of law arising out of or upon the evidence. But if there appears upon the record proper, the process, the pleadings, and the judgment, defects which should have prevented the rendition of the judgment, and for which it should have been arrested, such apparent defect or insufficiency in law is equally fatal upon writ of error.' Bond v. Dustin, (1884) 112 U. S. 604, 5 S. Ct. 296, 28 U. S. (L. ed.) 835; Kentucky L., etc., Ins. Co. r. Hamilton, (1894) 63 Fed. 93, 99, 11 C. C. A. 42.

Review on writ of error after trial by court. Where an action at law triable by jury under this section is by consent of the parties tried to the court without a jury, no question of fact or law decided upon or in connection with the trial is subject to reexamination in an appellate court. U. S. v. Louisville, etc., R. Co., (C. C. A. 1909) 167 Fed. 306; U. S. v. St. Louis, etc., R. Co., (C. C. A. 1909) 169 Fed. 73. In U. S. v. Cleage, (C. C. A. 1908) 161 Fed. 85, the court said: "In these respects the law applicable to the District Courts and to the review of their judgments is to-day precisely the same as was the law applicable to the Circuit Courts and to the review of their judgments before the enactment of the statute now embodied in sections 649 and 700 of the Revised Statutes [4 Fed. Stat. Annot. 393, 450]. Where, in a cause otherwise triable by jury, the parties agree upon a statement of the ultimate facts, and not the evidence of them, and the cause is then submitted to the court, without a jury, for its decision of the questions of law arising upon the facts so stated, the judgment may be reviewed upon a writ of error; and this because there the facts are not determined upon a trial by the court, but by the agreed statement, which is spread at large upon the record, as part of it, as would be a special verdict."

of the litigation, a circuit judge may do the same judicial acts, provided only he acts within his circuit. Horn v. Pere Marquette R. Co., (1907) 151 Fed. 626, holding that a circuit judge, sitting at chambers within his circuit, may appoint a receiver in a cause pending in another district of the circuit. See also R. S. sec. 368, 4 Fed. Stat. Annot. 257.

A district judge is a judge of the Circuit." Court, and, when presiding therein, has jurisdiction to appoint a commissioner to select jurors from which a grand jury is to be drawn for that court under the Act of June 30, 1879, ch. 52, sec. 2, 4 Fed. Stat. Annot. 749. U. S. v. Miller, (1911) 187 Fed. 369.

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Vol. IV, p. 249, sec. 629, cl. sixteenth.

This subsection "has reference solely to those actions brought under the statute to redress the deprivation of the civil rights secured by sections 1977 and 1979 of the Revised Statutes [1 Fed. Stat. Annot. 791, 795]." Holt v. Indiana Mfg. Co., (1900) 176 U. S. 68, 20 S. Ct. 272, 44 U. S. (L. ed.) 374. Alleged deprivation of due process of law. -A suit against the governor and certain officers of the national guard of a state, founded on imprisonment for two and onehalf months under the order of the governor, without sufficient reason, but in good faith in the exercise of his power under the state

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Vol. IV, p. 258, sec. 641.

The denial in summoning or impaneling jurors, of any equal civil rights secured to an accused by the Federal Constitution or laws, does not, unless authorized by the state constitution or laws, as interpreted by its highest court, give the right to remove a criminal prosecution from a state to a federal Circuit Court, under this section. Kentucky v. Powers, (1906) 201 U. S. 1, 26 S. Ct. 387, 50 U. S. (L. ed.) 633.

constitution and laws to call upon the military arm of the government to suppress an insurrection, is not within the original jurisdiction of a federal Circuit Court as a suit authorized by law to be brought to redress the deprivation of any right secured by the Constitution of the United States. In such case it cannot be successfully contended that plaintiff was deprived of his liberty without due process of law. Moyer v. Peabody, (1909) 212 U. S. 78, 29 S. Ct. 235, 53 U. S. (L. ed.) 410, affirming judgment in (1906) 148 Fed. 870.

dietion in this section was not transferred to the appellate jurisdiction of the Circuit Court of Appeals by section 4 of the Act of 1891, 4 Fed. Stat. Annot. 397, creating the latter court. The Joseph B. Thomas, (C. C. A. 1906) 148 Fed. 762.

of equity judges in matters of equitable cognizance, according to the rules and practice of the English courts of equity, at the time of the adoption of the Constitution. Horn v. Pere Marquette R. Co., (1907) 151 Fed. 626, holding that a federal circuit judge had authority at chambers to make an order appointing a receiver in a pending cause.

A local statute relative to the qualifications of grand jurors, and providing that persons to be competent must be above the age of twenty-one and under the age of sixtyfive years, and that no exception to any such juror on account of his age shall be allowed after he has been sworn, does not deny or prevent the enforcement of any rights secured to a person indicted by the grand jury under any law providing for equal civil rights of

citizens of the United States, within the meaning of R. S. sec. 641. New Jersey v. Corrigan, (1905) 139 Fed. 758.

Under a local law which provides that no person shall be a competent juror for the trial of a criminal case, unless he be a citizen at least twenty-one years of age, a housekeeper, sober, temperate, discreet, and of good demeanor, and that juries de medietate lingua may be directed by the court, it was held that it did not appear as a matter of law that, because the statute also required jurymen in criminal cases to be citizens, the court had no power to grant an alien charged with a criminal offense a jury consisting of six citizens and six aliens of his own nationality, or that the state courts would so construe such sections as to deny an alien such right; and hence an alien charged with a crime was not entitled to have the prosecu. tion removed to the federal courts because he could not secure a jury de medietate linguæ in the state courts, under this section. Kentucky v. Wendling, (1910) 182 Fed. 140.

Removal of an indictment to a federal court on the ground that under the law of the state the petitioner has no right to challenge a grand juror after he has been sworn is unauthorized, as the petitioner has an adequate remedy for any alleged grievance in the state courts; and, failing therein, can obtain relief by a writ of error to the United States Supreme Court. New Jersey v. Corrigan, (1905) 139 Fed. 758. But see Kentucky. Powers, (1906) 201 U. S. 1, 26 S. Ct. 387, 50 U. S. (L. ed.) 633.

Denial of civil rights. The right of removal under this section, given to a defendant who is denied or cannot enforce his civil rights in the judicial tribunals of the state, is not affected by the fact that such rights may be enforced ultimately by proceedings in error in the Supreme Court of the United States. The remedy by removal is given by the statute to all who bring themselves within its provisions. Kentucky r. Powers, (1906) 201 U. S. 1, 26 S. Ct. 387, 50 U. S. (L. ed.) 633, reversing (1905) 139 Fed. 452.

While this section is not as broad as the provision of the Fourteenth Constitutional Amendment for the equal protection of the laws, since it is confined to the action of judicial tribunals, it is not restricted to cases where civil rights are denied by legislative action of the states; but it applies as well where, by rulings in other cases, or in the same case prior to final hearing, a rule of judicial decision has been established which will presumably so affect the judicial tribunals of the state as to cause a denial of civil rights to a defendant, or prevent their enforcement. Kentucky v. Powers, (1906)

Vol. IV, p. 260, sec. 643.

A petition for the removal of a criminal prosecution commenced in a state court against a revenue officer of the United States, under R. S. sec. 643, need not be filed until after the indictment of the defendant, where an indictment is required by the state law,

201 U. S. 1, 26 S. Ct. 387, 50 U. S. (L. ed.) 633, reversing (1905) 139 Fed. 452.

Where the petitioner's failure to obtain a trial of an action in a state court resulted from her inability to secure an attorney for that purpose, or because the plaintiff had been able to secure postponements of the trial against defendant's protest, and not because of any command or authority of the state, or. any provision of the laws of the state, it was held that the defendant was not entitled to remove the cause to the federal courts under R. S. sec. 641. Scott. Kinney, (1905) 137 Fed. 1009.

The nonrecognition by the state courts of the validity of a pardon pleaded in bar of a criminal prosecution, even if involving a denial of a right secured to the accused by the Federal Constitution or laws, does not make a case for a removal of such cause from a state to a federal Circuit Court under this section. Kentucky v. Powers, (1906) 201 U. S. 1, 26 S. Ct. 387, 50 U. S. (L. ed.) 633, reversing (1905) 139 Fed. 452.

Denial of equal protection of laws.-A petition for removal filed by a defendant in a criminal prosecution, taken in connection with the transcript filed in the federal court, showed that petitioner had been tried three times on the charge in a Circuit Court of Kentucky, and that each time he had been convicted, and the judgment reversed by the state Court of Appeals; that the crime charged grew out of a political contest; that on the second and third trials petitioner had been discriminated against in the selection of the jurors by those charged under the state law with the duty of drawing the panel and summoning venire men, with the result that all the jurors by whom he was tried were in each case members of the opposite political party to himself; that on objections properly taken to the panel and jury on that ground, and on motions for new trial, the court refused to consider evidence offered to prove such discrimination, and ruled that the petitioner had no right to object thereto, inasmuch as the jurors chosen possessed the statutory qualifications. By Kentucky Code Crim. Prac., sec. 281, as construed by the Court of Appeals, such rulings of a trial court with respect to juries are made final, and are not subject to review. It was held that by such discrimination petitioner was denied the equal protection of the laws secured to him by the Fourteenth Amendment to the Federal Constitution, and that the petition showed a right of removal under this section. Kentucky v. Powers, (1906) 201 U. S. 1, 26 S. Ct. 387, 50 U. S. (L. ed.) 633, reversing (1905) 139 Fed. 452.

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