dent to the contract, is, itself, maritime, and must be enforced. by the federal courts of admiralty, they being vested by the constitution and laws with exclusive jurisdiction of such causes.24 § 567. Jurisdiction of suits by seamen for wages. All persons (apprentices excepted) who shall be employed or engaged to serve in any capacity on board of any vessel belonging to any citizen of the United States shall be deemed and taken to be seamen,25 their contracts for service and compensation are maritime, and the several district courts of the United States have exclusive original jurisdiction of all suits in admiralty for seamen's wages; 26 and in all such suits, "the libelant may proceed against the ship, freight and master, or against the ship and freight, or against the owner or the master alone in personam." 27 § 568. Same-Wages not dependent on freight.-The ancient rule of the sea that "freight is the mother of wages" has been abolished by act of congress, providing that "no right to wages shall be dependent on the earning of freight by the vessel.'' 28 § 569. Jurisdiction of suits by master for his wages.-Every person having the command of any vessel belonging to any citi 24 The Glide, 167 U. S. 606, 624 (42:296); The J. E. Rumbell, 148 U. S. 1, 21 (37:345); Perry v. Haines, 191 U. S. 17, 55 (48:73). 25 U. S. Rev. Stat. sec. 4612; 6 Fed. Stat. Anno. p. 930; Saylor v. Taylor, 23 C. C. A. 343. 26 Sheppard v. Taylor, 5 Pet. 675 (8:269); Lee v. Ins. Co., Fed. Cas. No. 8,190; Desbrow v. Walsh Bros. 36 Fed. R. 607; The W. F. Brown, 46 Fed. 290, Wishart v. The Nixon, 43 Fed. R. 926; The Atlantic, 53 Fed. R. 607; The Lucy Anne, 3 Ware, 253, Fed. Cas. 8,596. 27 Admiralty rule 13; The Ethel, 13 C. C. A. 504, 66 Fed. R. 340; Sheppard v. Taylor, 5 Pet. 675 (8:269). Baines v. The James, Bald. 567, Fed. Cas. No. 756; The Heaton, 43 Fed. R. 595; Plummer v. Webb, 4 Mason, 380, Fed. Cas. No. 11,233; The Steamboat Ohio, 28 U. S. Rev. Stat. sec. 4525; 6 Fed. Stat. Anno. p. 863; The Ocean Spray, 4 Sawy. 105, Fed. Cas. No. 10,412; Brown v. Chandler, Fed. Cas. No. 1,998; The Niphous Crew, Fed. Cas. No. 10,277; The Saratoga, 2 Gall. 164, Fed. Cas. No. 12,355. zen of the United States shall be deemed and taken to be the master thereof,29 and his contract is maritime, and the several district courts of the United States have exclusive original jurisdiction of all suits in admiralty upon such contracts to recover wages; 30 but in such suits the master can proceed in personam only, as, under the general maritime law he has no lien.31 § 570. Towage contracts.-Towage contracts are maritime, and the several district courts of the United States have exclusive original jurisdiction of all suits in admiralty based on such contracts; 2 but a suit in admiralty by the owner of a tow against her tug to recover for an injury to the tow sustained by negligence on the part of the tug, is a suit ex delicto and not ex contractu, the contract in such suit being alleged by way of inducement only to the real grievance complained of, which is the wrong suffered by the libelant in the injury or destruction of his boat resulting from the negligence of the tug.33 § 571. Jurisdiction of suits to recover compensation for pilotage.-Pilotage is a strictly maritime service, and the district courts of the United States have original exclusive jurisdiction of all suits in admiralty brought to recover compensation for pilotage performed or tendered, although arising under state laws; 34 but the concurrent remedy at law is fre 29 U. S. Rev. Stat. sec. 4612; 6 Fed. Stat. Anno. p. 930. 30 The Hoag, 168 U. S. 443, 444 (42:537). 31 Orleans v. Phoebus, 11 Pet. 175 (9:677). 32 The Oscoda, 66 Fed. R. 347; The Williams, Brown's Adm. 208, Fed. Cas. No. 17,710; The Canal Boat W. J. Walsh, 5 Ben. 72, Fed. Cas. No. 17,922; The Acadia, Brown, Adm. 73, Fed. Cas. No. 24; Ward v. Banner, Fed. Cas. No. 17,149; The Erastina, 50 Fed. R. 126. 33 The John G. Stevens, 170 U. S. 113, 127 (42:969); The Arturo, 6 Fed. R. 308; The Brooklyn, 2 Ben. 547; The Deer, 4 Ben. 352; The Liberty No. 4, 7 Fed. R. 226; The Quickstep, 9 Wall. 665 (19:767); The Syracuse, 12 Wall. 167 (20: 383). 34 Ex Parte McNeil, 13 Wall. 236, 243 (20:624); Ex parte Hager, 104 U. S. 521 (26:876); The Edith Godden, 25 Fed. R. 511; Glenarne, 7 Sawy. 202; The Schooner Kalmar, 10 Ben. 243, Fed. Cas. No. 7,601; Hobart v. Drogan, 10 Pet. 108 (9: 363); The California, 1 Sawy. 463; The Wane, Fed. Cas. No. 17,297; The George S. Wright, Deady, 591, Fed. Cas. No. 5,340; The Schooner Anne, Fed. Cas. No. 412; The Alzena, 14 Fed. R. 174; The Brig. America, 1 Lowell, 176, Fed. Cas. No. 289; The Lidia Fowler, 113 Fed. R. 605. quently resorted to in the state courts to recover pilotage, in which case it is strictly a personal action.35 In all suits in admiralty "for pilotage the libelant may proceed against the ship and master, or against the ship, or against the owner alone or the master alone in personam.' 9 36 § 572. Same State laws regulating pilots are constitutional. By an act of congress approved August 7, 1789, it was provided, "That all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the existing laws of the states respectively wherein such pilots may be, or with such laws as the states may respectively hereafter enact for the purpose, until further legislative provision shall be made by congress." 37 This early recognition of the right of the states to enact such legislation, has resulted in the establishment, by all the maritime states, of a complete and compulsory code of pilot regulations, which have been held by the supreme court to be constitutional.38 § 573. Jurisdiction of suits for salvage.-Salvage is a strictly maritime service, and suits in admiralty to recover it are within the exclusive original jurisdiction of the district courts of the United States; 39 and, "in all suits for salvage, the suit 35 Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299 (13:996); Thompson v. Darden, 198 U. S. 310, 317 (49:1064). 36 Admiralty rule 13. 37 1 U. S. Stat. at L. ch. 9, sec. 4, p. 54; U. S. Rev. Stat. sec. 4235; 5 Fed. Stat. Anno. p. 747. In the revision, that clause of the statute referring to future state legislation was omitted. 38 Cooley v. Board of Wardens of The Port of Philadelphia, 12 How. 299 (13:996); Ex parte McNeil, 13 Wall. 236, 243 (20:624); Olsen v. Smith, 195 U. S. 332, 345 (49:224); Thompson v. Darden, 198 U. S. 310, 317 (49.1064); Wilson v. McNamee, 102 U. S. 572 (26:234). In Olsen v. Smith, supra, Mr. Justice White delivering the opinion of the court, construing the pilotage laws of the state of Texas, said: "The first contention in effect is that the state was without power to legislate concerning pilotage, because any enactment on that subject is necessarily a regulation of commerce within the provision of the constitution of the United States. The unsoundness of this contention is demonstrated by the previous decisions of this court, since it has long been settled that even though state laws concerning pilotage are regulations of commerce, 'they fall within that class of powers which may be exercised by the states until congress has seen fit to act upon the subject.'" 39 Houseman v. The Schooner North Carolina, 15 Pet. 40 (10: 653); The Steamboat Cheesman v. Two Ferry Boats, 2 Bond, 363, Fed. may be in rem against the property saved, or the proceeds thereof, or in personam against the party at whose request or for whose benefit the salvage service has been performed." 40 § 574. Same-Libel for salvage against the United States.Under the second section of the Tucker Act, defining the concurrent jurisdiction of the court of claims and the district courts of the United States, a district court has jurisdiction in admiralty of a libel in personam for salvage against the United States.41 § 575. General average contribution.-General average contribution is defined to be a contribution by all the parties in a sea adventure to make good all the losses sustained by one of their number on account of sacrifices voluntarily made of part of the ship or cargo to save the residue and the lives of those on board from an impending peril, or for extraordinary expenses necessarily incurred by one or more of the parties for the general benefit of all the interests embarked in the enterprise. Losses which give a claim to average are usually divided into two classes: (1) Those which arise from sacrifices of part of the ship or part of the cargo, purposely made in order to save the whole adventure from perishing. (2) Those which arise out of extraordinary expenses incurred for the joint benefit of ship and cargo. Five things must concur in order to constitute a valid claim for general average contribution, namely: (1) There must be a common danger to which the ship, cargo, and crew were all exposed, and that danger must be imminent and apparently Cas. No. 2,633; Western Transp. 40 Admiralty Rule 19; United States v. Cornell Steamboat Co. (advanced sheets, June 15, 1906). 41 United States V. Cornell Steamboat Co. (advanced sheets June 15, 1906), and see further as to the responsibility of the government for salvage service, the following cases: The Davis, 10 Wall. 15 (19:875); United States v. Wilder, 3 Sumn. 308, Fed. Cas. 16,694; The Exchange v. McFadden, 7 Cranch, 116 (3:287); The Siren, 7 Wall. 152, 165 (19:129). inevitable, except by incurring a loss of a portion of the associated interests to save the remainder; (2) there must be the voluntary sacrifice of a part for the benefit of the whole, as for example, a voluntary jettison or casting away of some portion of the associated interests for the purpose of avoiding the common peril, or a voluntary transfer of the common peril from the whole to a particular portion of those interests; (3) the attempt so made to avoid the common peril to which all those interests were exposed must be to some practical extent successful, for if nothing is saved there cannot be any such contribution in any case; (4) the sacrifice must be made by the master or owner, or other person charged with the control and protection of the common adventure, and representing and acting for all interests included in that adventure, and those only; and (5) the sacrifice must not be caused by the fault or negligence of any of the persons in interest.12 The district courts of the United States have exclusive original jurisdiction of all suits in admiralty for general average contribution, but the concurrent common-law remedy is frequently resorted to in order to enforce such rights." 43 § 576. Jurisdiction of suits on policies of marine insurance. A policy of marine insurance is a maritime contract, having reference to maritime transactions, springing from the law maritime, and deriving all its material rules and incidents from that system; and the district courts of the United States. have exclusive original jurisdiction of all suits in admiralty based on such contracts." A contract of marine insurance is neither commerce nor an instrumentality of commerce, but a mere incident of commercial intercourse; and a state has the undoubted power to prohibit foreign insurance companies from making contracts of 42 Star of Hope, 9 Wall. 203, 237 (19:638); Ralli v. Troop, 157 U. S. 386, 428 (39:742); The Irrawaddy, 171 U. S. 187 (43:130); McAndrews v. Thatcher, 3 Wall. 365 (18:159); Barnard v. Adams, 10 How. 270 (13:417). 43 Star of Hope, 9 Wall. 203, 237 (19:638); Ralli v. Troop, 157 U. S. 386, 428 (39:742); The Irrawaddy, 171 U. S. 187 (43:130). 44 Barnard v. Adams, 10 How. 270 (13:417); Insurance Co. v. Ashby, 13 Pet. 331 (13:186). 45 De Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 3,776; Insurance Co. v. Dunham, 11 Wall. 1, 36 (11:90). |