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has always been enforced in this country, being provided for by statute in most of the states. 6

But was there any unlawful interference with the body of the plaintiff's father in this case which would give rise to an action for damages? It has generally been held that, even though there is no right of property (in the ordinary commercial use of the term) in a dead body, certain persons may have rights to it and duties to perform towards it. The rights of relatives and friends to the solace and comfort of burying the remains of a deceased person has been repeatedly recognized, and no violation of it will be tolerated. In the principal case the defendant had embalmed the body of the deceased so that it could very well have been carried to the port of destination for delivery to the plaintiff. Then there was created a duty upon the steamship company to deliver the body to the persons entitled to it. There was no danger in the presence of the body on board the ship, and no inconvenience was caused by it. So far as the facts of the case show there was no duty upon the defendant to embalm the body. The contract between the parties does not show any such duty, and there was none implied by law. But when the task of embalming it had been undertaken and completed, and the body was in such condition that it might have been easily kept on the steamer until arrival at a port, then the law imposed a duty upon the defendant; and the plaintiff was entitled to the legal possession of the body. The interference with that right was an actionable wrong.'

The principal case does not stand, however, for the proposition

*For example, see the statute in New York, which is similar to those throughout the majority of the American jurisdictions; “Except in the cases in which a right to dissect it is expressly conferred by law, every dead body of a human being, lying within this state, must be decently buried within a reasonable time after death." Penal Law, Sec. 2211.

"A right of action has been sustained for an unauthorized dissection of a body contrary to the wishes of relatives. Foley v. Phelps, supra, note 3; Darcy v. Presbyterian Hospital, 202 N. Y. 259 (1911); Burney v. Children's Hospital, 169 Mass. 57 (1897); Larson v. Chase, 47 Minn. 307 (1891): for retaining the organs of a deceased person after an autopsy, without consent, Hassard v. Lehane, 143 App. Div. (N. Y.) 424 (1911); Koerber v. Patek, 123 Wis. 453 (1905), for mutilation of a body, Medical College of Georgia v. Rushing, 1 Ga. App. 468 (1907); Kyles v. Southern Ry. Co., 147 N. C. 394 (1908). Also see N. Y. Penal Law, sec. 2213, and N. Y. Public Health Law (Cons. Laws, Ch. 45) paragraphs 316, 317.

'Wright v. Cemetery Corporation, 112 Ga. 884 (1901); Louisville & Nashville R. R. Co. v. Wilson, 123 Ga. 62 (1905); Bean v. C. C. C. & St. L. R. R. Co., 97 111. App. 24 (1901); Renihan v. Wright, 125 Ind. 536 (1890); Anderson v. Acheson, 132 Ia. 744 (1907); Meyers v. Clarke, i 22 Ky. 866 (1906); Seaton v. Commonwealth, 149 Ky. 498 (1912); Kanavan's Case, 1 Me. 226 (1821); Doxtator v. Chicago, etc. R. R. Co., 120 Mich. 596 (1899); Foley v. Phelps, supra, note 3; Cohen v. The Congregation, 85 App. Div. (N. Y. 165 (1903); Jackson v. Savage, 109 App. Div. (N. Y.) 556 (1905); Darcy v. Presbyterian Hospital, supra, note 7.

The recent case of Deavors v. Southern Express Co., 76 So. (Ala.) 288 (1917), raised a question similar in many respects to that discussed in the principal case. In that case the plaintiff sued the defendant carrier to recover damages for negligence in the carrying of the corpse of plaintiff's brother, consigned to her in Alabama and shipped from Kansas. Defendant had no agent at the place of delivery and the coffin, containing the corpse, was placed on a truck and wheeled under a shed, but was badly damaged from the rain blowing in and breaking through the top. The Alabama court though denying recovery on other grounds recognized the fact that there is a quasi legal right to dead bodies, although not strictly a property right.

that all bodies of persons who die at sea must be delivered to relatives on land. That fact was recognized by the Court of Appeals and discussed in the concurring opinion of Judge Pound, "But it cannot be said that under ordinary circumstances the next of kin of a person who dies on shipboard have such a legal right to the possession of the body that they may recover damages because the burial is at sea. A decent committal of the body to the deep in accordance with the custom in such matters ordinarily discharges the duty which the law imposes."

William E. Vogel, '19.

Carriers: Liability for loss of baggage carried by passengers.--It is a frequent practise among common carriers to place in their tariffs a provision that articles of a certain type shall not be placed in baggage checked by passengers. The effect of such a rule is considered in Borden v. The New York Central R. R. Co., 98 Misc. (N. Y.) 574 (1917). The plaintiff by mistake left some jewelry, which she was carrying with her on an interstate trip, in the defendant's dining car.

She soon discovered the loss, and returned to claim the jewelry, but it had disappeared, and was not recovered. She brought action against the railway company for the loss of the jewlery; it appeared that in the railway company's tariffs was the following clause: "Jewelry * * * * should not be enclosed in baggage to be checked. The carriers issuing and concurring in this tariff will not be responsible for such articles in baggage." Under these circumstances, the passenger had kept the jewelry in her own custody. In an extremely able opinion, Ransom, J., decided that the effect of this rule was to put the defendant company in the position of insurer, and to make it absolutely liable for the loss of the property, provided that the plaintiff's own act did not cause the loss. It was further held that the plaintiff's act in leaving the jewelry in the dining car would not bar her recovery; or that, at least, the jury should decide whether the passenger's act caused the loss.

As the common law has developed, the common carrier is liable as an insurer for goods carried, except where losses arise as follows: from an act of God, from an act of a public enemy, from an act of a public authority, from an act of the shipper, or from the inherent nature of the goods. This includes liability for baggage;, but the carrier may require that before its liability arises, the baggage shall be given into its custody; and if opportunity for this is given, the carrier is not an insurer when the property is not given into its custody. Baggage consists of “those articles of personal convenience or necessity which the passenger takes with him, either for his immediate use or the ultimate purpose of the journey, and which are such as persons of like habits and wants usually take with them for such purposes when on similar journeys *

The question here was as to the measure of a carrier's liability for the loss of baggage


"Hutchinson, Carriers (3d ed.) 289.
23 Hutchinson, Carriers (3d ed.) 1473.

10 Corp. Jur. 1202, and cases there cited. 43 Hutchinson, Carriers (3d ed.) 1475.

which it had refused to carry, and which was lost while in the passenger's custody. Rather strangely, this question seems never to have arisen before in this country. In one English cases where the facts were somewhat similar to those of the principal case, a like result was reached.

The doctrine announced by the court would seem to provide a just solution of the question, which at first sight is a somewhat puzzling one. Of course, in many cases, the question would arise whether the article to which transportation was refused was properly baggage at all; but the law on this point is fairly well settled, and the practical value of the rule announced in the principal case would not be thereby affected.

ichard H. Brown, '19.

Constitutional Law: Admiralty jurisdiction and workmen's compensation acts.-While engaged in unloading in a New York port an ocean-going steamship owned by a Kentucky corporation and plying between ports of different states, a longshoreman was killed. Recovery was allowed under the New York Compensation Act,' but upon appeal the United States Supreme Court, by a decision of five to four, in the case of Southern Pacific Company v. Jensen, 37 Sup. Ct. Rep. 524 (1917), reversed the award. The reversal was put on the ground that any state legislation interfering with the harmony or uniformity of the general maritime law in its interstate and international relations is invalid, as being repugnant to the provisions of the Federal Constitution extending the judicial power of the United States to all cases of admiralty and maritime jurisdiction, and the provisions of the Judiciary Act giving the federal courts exclusive original cognizance of all admiralty and maritime cases, though saving to suitors in all cases the right of a common law remedy where the common law is competent to give it. The question arises whether the power of the state to regulate by statute the liability of employers engaged in ocean transportation between the states and enforce it in the state's own courts is taken away by the conferring of exclusive jurisdiction of all civil cases in admiralty upon the federal courts.

The general maritime law consists of rules and customs relating to commerce and navigation that have grown up during past centuries, with the legislation supplementary thereto. The rules applied in the different jurisdictions vary somewhat but are generally similar. Before the adoption of the Constitution of the United States the jurisdiction to enforce maritime liens by proceedings in rem and to determine the question of prizes captured in war were exclusively cognizable in the admiralty. In civil actions in personam against an individual defendant the courts of common law generally had concurrent jurisdiction with the admiralty courts. It has been held

Munster v. S. E. Ry. Co., 4 C. B. (N. S.) 676 (1858). *Supra, note 4. Jensen v. Southern Pacific Co., 215 N.Y.514 (1915). 2The Moses Taylor, 4 Wall. (U. S.) 411 (1866); The Hine v. Trevor, 4 Wall. (U.S.) 555 (1866); The Belfast, 7 Wall. (U.S.) 624 (1868); Steamboat Co. v. Chase, 16 Wall. (U. S.) 522, 533 (1872); The Lottawanna, 21 Wall. (U.S.) 558 (1874).

Šee cases cited supra, note 2.

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that the lodging by the constitution of the entire admiralty power in the Federal judiciary and the ninth section of the Judiciary Act, with its saving of common law remedies, left the concurrent power of the courts of common law and of admiralty where it stood at common law;" and it has been further held that statutory extensions of the common law jurisdiction, supplementing the inadequate maritime law, are valid.5

There is no doubt that Congress has paramount power to fix and determine the maritime law which shall prevail throughout the country. 6 But until Congress by legislation assumes to change the law it would seem that the states are at liberty to apply their own systems of law in those cases where they had concurrent jurisdiction with the admiralty prior to the constitution. This would seem follow from the analogous situation which exists in regard to interstate commerce. Congress was given power to regulate interstate commerce, but it was held that the states could legislate on many matters pertaining thereto unless Congress undertook to cover the particular field. When Congress manifested its intention to cover a field, its legislation was exclusive and superseded state legislation on the same subject.8 In Sherlock v. Alling,' the court said “*

with reference to a great variety of matters touching the rights and liabilities of persons engaged in commerce, either as owners or navigators of vessels, the laws of Congress are silent and the laws of the State govern.

Thus in maritime matters it would seem that the state courts still possess their common law jurisdiction and will continue to do so until Congress sees fit to assume exclusive control and take away the concurrent jurisdiction of the common law reserved by the saving clause of the Judiciary Act.

It is well settled that the common law courts have jurisdiction in personam against the owner of a vessel to redress a maritime tort.10 Since by the Judiciary Act a right is reserved to a common law remedy where the common law is competent to give it, and since Congress has not seen fit to bring every case which may be dealt with under the admiralty law within its exclusive cognizance, but, on the contrary, has allowed the states to legislate by statute concerning

'N. J. Steam Nav. Co. v. Merchant's Bank, 6 How. (U. S.) 344, 390 (1848); Taylor v. Carryl, 20 How. (U. S.) 583, 598 (1857); Steamboat Co. v. Chase supra, note 2; Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638 (1899); Stoll v. Pacific Coast S. S. Co., 205 Fed. 169 (1913); Rounds v. Cloverport Foundry & Machine Co., 237 U. S. 303 (1915); Kennerson v. Thames Towboat Co., 89 Conn. 367 (1915).

Sherlock v. Allin, g93 U.S. 99 (1876); Steamboat Co. v. Chase, supra, note 2; Knapp, Stout & Co. v. McCaffrey, supra, note 4; The Hamilton, 207 U. S. 398 (1907).

ÓButler v. Boston Steamship Co., 130 U. S. 527 (1889); Re Garnett, 141 U. S. 1, 14 (1890).

'M'Culloch v. State of Maryland, 4 Wheat. (U. S.) 316 (1819); Henderson v. Mayor of New York, 92 U.S. 259, 271 (1875); Michigan C. R. R. Co. v. Vreeland, 227 U. S. 59, 66, 67 (1912); The Minnesota Rate Cases, 230 U. S. 352, 399 (1912),

ŠErie R. R. Co. v. People of New York, 233 U.S.671 (1914); see also, cases cited in supra, note 7.

993 U. S. 99, 104 (1876).

16Manchester v. Massachusetts, 139 U. S. 240 (1890); Leon v. Galceran, il Wall. 185 (1870); Steamboat Co. v. Chase, supra, note 2; The Hamilton, supra,

note 5.

maritime torts, it is submitted that the Workmen's Compensation Act is only a statutory change of the common law and that an employee is none the less within the scope of the Workmen's Compensation Act because his employment is such as to bring him within the admiralty jurisdiction of the United States. The view of the majority of the court that Congress had exclusive jurisdiction of all maritime cases and that this prevents the statutory change of the common law from applying to a case like the present, seems to be unwarranted in view of the decided cases, and the views expressed by Mr. Justice Holmes and Mr. Justice Pitney in their dissenting opinions seem to be more in accord with the spirit of previous decisions touching upon the same subject.12

Harvey I. Tutchings, '18.

Constitutional Law: Impairment of contract: Power of a public service commission to regulate rates of a public utility fixed by franchise from municipality.--In People ex rel. New York & North Shore Traction Co.v. Public Service Commission, 175 App. Div. (N. Y.) 869 (1910), it was held that the New York Public Service Commissions have power under section 49 of the Public Service Commission Law to increase the rate of fare on railroads beyond that stipulated in the consent of the local authorities under which the right to construct and operate was granted, since section 18 of article 3 of the Constitution, requiring such consent, does not authorize the imposition of a condition which would deprive the Legislature through the Commission of the right to exercise the general legislative power vested in it by section 1 of the same article. This case now places the Empire State on the side having the weight of authority, unless the decision be reversed on appeal.

There seems to be no question that a valid franchise or charter contract, made by a municipality or state with a public utility, govern

"Kennerson v. Thames Towboat Co., supra, note 4.

19Steamboat Co v. Chase, supra, note 2; The Hamilton, supra, note 5; Kennerson v. Thames Towboat Co., supra, note 4:

It is interesting to note that the law in this particular has been changed since the writing of this note by the following statute enacted on October 6, 1917, making the law conform to the opinion of the minority of the court:

An Act to amend sections twenty-four and two hundred and fifty-six of the Judicial Code, relating to the jurisdiction of the district courts, so as to save to claimants the rights and remedies under the workmen's compensation law of

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That clause three of section twenty-four of the Judicial Code is hereby amended to read as follows:

“Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, and to claimants the rights and remedies under the workmen's compensation law of any State; of all seizures on land or waters not within admiralty and maritime jurisdiction; of all prizes brought into the United States; and of all proceedings for the condemnation of property taken as prize."

That clause three of section two hundred and fifty-six of the Judicial Code is hereby amended to read as follows:

“Third. Of all civil causes of admiralty and maritime jurisdiction, saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it, and to claimants the rights and remedies under the workmen's compensation law of any State."

any State.

SEC. 2.

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