The Steam Propeller Thomas Swan.

she carried a large number of persons from New London, to an island called Mystic Island, below the mouth of the harbor of New London, and near the Connecticut shore, on which island such persons landed, the vessel remaining at a wharf at the island. The persons so carried were some of them actors in, and others of them spectators at, a pugilistic combat which took place on the island. Afterwards such persons reembarked on the vessel, and were taken by her to and landed at a place called Noank, on the main land of Connecticut. From there the vessel proceeded, without any passengers, to the city of New York, touching on the way at a wharf in the harbor of New London. The trip with the persons referred to, other than the proper crew of the vessel, was wholly within waters in the State of Connecticut.

The power invoked, under which it is claimed that the legislation of Congress can be held to apply to this vessel, while engaged in the transaction in question, is that conferred on Congress by the eighth section of the first article of the Constitution, "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." There is no doubt, since the decision in the case of Gibbons v. Ogden (9 Wheaton, 1), that the power to regulate commerce among the several States, comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States, which are accessible from a State other than that in which they lie; and that such power, so far as locality is concerned, extends to the waters traversed by the Thomas Swan while carrying the persons referred to, on the occasion in question. (Gilman v. Philadelphia, 3 Wallace, 713, 724; The Daniel Ball, 10 Wallace, 557, 564). But, while the conferring of that power authorizes all appropriate legislation to insure the convenient and safe navigation of all the navigable waters of the United States, including the subjection of vessels to inspection and license, in order to secure their proper

The Steam Propeller Thomas Swan.

construction and equipment, yet the legislation is only authorized when it protects or advances inter-state or foreign commerce; and this requires, at least in respect to regulations like those alleged to have been violated in this case, that the vessel, to be subject to such legislation, shall be engaged in inter-state or foreign commerce. (The Daniel Ball, supra; The Bright Star, 1 Woolworth's C. C. R. 266.)

Was the Thomas Swan engaged in inter-state or foreign commerce, in respect to the carrying of passengers, on the occasion referred to? In the case of The Daniel Ball (supra), a penalty was sought to be recovered against the vessel by the United States, because she had not been either licensed or inspected, as provided by the said Acts of 1838 and 1852. It was set up, as a defence, that the vessel was engaged solely in domestic trade, and commerce within the State of Michigan, and was not engaged in trade or commerce between two or more States, or in any trade by reason of which she was subject to the navigation laws of the United States, or was required to be inspected and licensed. The license was required for a vessel transporting merchandise or passengers; the inspection, for a vessel carrying passengers. The Daniel Ball was employed in transporting merchandise and passengers on a route wholly in the State of Michigan. Some of the goods she carried were shipped on her for places in other States than Michigan, and some came from other States, and were destined for places within the State of Michigan. She was a common carrier on the route on which she ran, although she did not run in connection with or in continuation of any lines of transportation beyond her route. The Supreme Court held, that, so far as the vessel was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan, and destined to places within that State, she was engaged in commerce between the States, and was subject to the

The Steam Propeller Thomas Swan.

legislation of Congress. The ground of the decision was, that the vessel was employed as an instrument of commerce between the States--commerce between the States, in any commodity, commencing whenever such commodity has begun to move, as an article of trade, from one State to another-and that the fact that several different and independent agencies were employed in transporting the commodity, some acting entirely in one State, and some acting in two or more States, did not affect the character of the transaction, but each agency was subject to the regulation of Congress to the extent in which it acted in such transportation.

I do not think the Thomas Swan is, on the evidence, brought within these principles. It is not shown that she transported any passenger whose destination was, in any proper sense, from any place without the State of Connecticut to Mystic Island, or from Mystic Island to any place without the State of Connecticut. She was not, in any proper sense, an instrument in carrying passengers from without the State of Connecticut to Mystic Island, or from Mystic Island to any place without the State of Connecticut. Nor is there any evidence that any passenger she carried was transported, in any proper sense, by her agency, from without the State of Connecticut to Mystic Island, or from Mystic Island to any place without the State of Connecticut. No circumstance like the buying of a ticket for transportation, though by different agencies, from any place without the State of Connecticut to Mystic Island, or from Mystic Island to any place without the State of Connecticut, on the part of any passenger carried by the Thomas Swan is shown. Nor is it shown that any person she took to Mystic Island had any destination to Mystic Island at any time while such person was outside of the limits of Connecticut. The only tickets shown to have been sold connected with any transportation to Mystic Island, were tickets sold at New London, which entitled the buyers

The Schooner Dutchess.

to transportation to Mystic Island and back to a point in Connecticut. The fact that the persons who returned from Mystic Island to the main land in the vessel, intended to go to places outside of Connecticut, cannot affect the question.

The libel must be dismissed.

Thomas Simons (Assistant District Attorney), for the United States.

Beebe, Donohue & Cooke, for the claimant.

APRIL, 1872.

THE SCHOONER DUTCHESS.

COLLISION. VESSEL AT ANCHOR.-PLEADING. INEVITABLE ACCIDENT.

A sloop at anchor was sunk in the night, and a libel was filed against a schooner to recover the damages, alleging that the schooner negligently ran into her and sank her, in consequence of the schooner's being insecurely anchored. The answer of the schooner denied any collision, and alleged that the schooner was properly anchored, and dragged her anchors through the resistless force of the elements alone, and alleged that, if any injury was done to the sloop by the schooner, it was the result of inevitable accident:

Held, That, on the evidence, it was proved that there was a collision between the two vessels sufficient to account for the sinking of the sloop;

That therefore, on the pleadings, the burden of proof was on the schooner to show that that collision was caused by inevitable accident, and that she had failed to establish it.

BLATCHFORD, J. The sloop Exertion, owned by the libellant, while at anchor on the night of November 22d, 1870, off the foot of Hammond street, New York, laden with a cargo of brick, was sunk. The libel alleges that the sloop, while so lying at anchor, was run into and

The Schooner Dutchess.

against by the schooner Dutchess, in consequence of the Dutchess' being insecurely and improperly anchored, and no proper attention being paid to her, and seeks to recover the damages resulting from such collision, on the ground that it caused injuries to the sloop, by reason of which she sank.

The answer denies that the Dutchess was improperly or insecurely anchored and that no proper attention was paid to her. It alleges, that the sloop sank through injuries occasioned by the negligence of her own crew, and not from any collision between her and the schooner; that the schooner was properly and securely anchored and manned, and managed with due care and proper skill; that she dragged her anchors through the resistless force of the elements, without any fault on the part of those on board of her; that human skill and precaution could not have prevented her drifting; and that any injury that was done to the sloop by the schooner, if any was done, which is denied, was the result of inevitable accident only.

I deem it satisfactorily established by the proofs, that the schooner, while she was dragging her anchors, came into collision with the sloop, and inflicted the injury in consequence of which the sloop sank. The answer does not set up that the sloop was anchored in an improper place, or in proximity to the Dutchess too close for safety, nor is either of such facts established by the evidence. Nor does the answer set up that any negligence on the part of the sloop caused the collision, if there was one. It merely sets up that there was no collision, but that the sloop sank from some injuries attributable to the negligence of her crew, and caused otherwise than by a collision between her and the schooner, and that, if there was a collision, it was the result of inevitable accident. The manner of the collision, and the character of the wound, as described by the witnesses from the sloop, and as established by the

BT. VOL. VI.—4