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628; prohibiting a railroad company from obtaining by contract an exemption from the liability which would have existed had no contract been made, Chicago, Milwaukee & St. Paul Ry. Co. v. Solan, 169 U. S. 133, 136, 137; a like result arising from rules of law enforced in the state courts in the absence of statute, Pennsylvania R. R. Co. v. Hughes, 191 U. S. 477, 488, 491; statutes prohibiting the transportation of diseased cattle in interstate commerce, Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 630, 635; Reid v. Colorado, 187 U. S. 137, 147, 151; statutes requiring the prompt settlement of claims for loss or damage to freight, applied incidentally to interstate commerce, Atlantic Coast Line R. R. Co. v. Mazursky, 216 U. S. 122, even since the passage of the Carmack Amendment, Missouri, Kansas & Texas Ry. Co. v. Harris, 234 U. S. 412, 417, 420; statutes regulating the character of headlights used on locomotives employed in interstate commerce, Atlantic Coast Line R. R. Co. v. Georgia, 234 U.S. 280; Vandalia R. R. Co. v. Public Service Commission, 242 U. S. 255. All these cases affected the responsibility of interstate carriers. Until now, Congress has passed no act concerning their responsibility for personal injuries sustained by passengers or strangers, or for deaths resulting from such injuries, so that these matters still remain subject to the regulation of the several States. We have held recently that even the anti-pass provision of the Hepburn Act (34 Stat. 584, 585, c. 3591, § 1) does not deprive a party who accepts gratuitous carriage in interstate commerce with the consent of the carrier, in actual but unintentional violation of the prohibition of the act, of the benefit and protection of the law of the State imposing upon the carrier a duty to care for his safety; Southern Pacific Co. v. Schuyler, 227 U. S. 601, 612.
In the very realm of navigation, the authority of the States to establish regulations effective within their own borders, in the absence of exclusive legislation by Con
gress, has been recognized from the beginning of our government under the Constitution. As to pilotage regulations, it was recognized by the First Congress (Act of August 7, 1789, c. 9, § 4, 1 Stat. 53, 54; Rev. Stats., $ 4235), and this court, in many decisions, has sustained local regulations of that character. Cooley v. Board of Wardens, 12 How. 299, 320; Steamship Co. v. Joliffe, 2 Wall. 450, 459; Ex parte McNiel, 13 Wall. 236, 241; Wilson v. McNamee, 102 U. S. 572; Olsen v. Smith, 195 U. S. 332, 341; Anderson v. Pacific Coast S. S. Co., 225 U. S. 187; 195.
It is settled that a State, in the absence of conflicting legislation by Congress, may construct dams and bridges across navigable streams within its limits, notwithstanding an interference with accustomed navigation may result. Willson v. Black-Bird Creek Marsh Co., 2 Pet. 245, 252; Gilman v. Philadelphia, 3 Wall. 713; Pound v. Turck, 95 U. S. 459; Escanaba Co. v. Chicago, 107 U. S. 678, 683; Cardwell v. American Bridge Co., 113 U. S. 205, 208; Hamilton v. Vicksburg, Shreveport & Pacific Railroad, 119 U. S. 280; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1,8; Lake Shore & Michigan Southern Ry. Co. v. Ohio, 165 U. S. 365; Manigault v. Springs, 199 U. S. 473, 478.
So, as to harbor improvements, County of Mobile 'v. Kimball, 102 U. S. 691, 697; improvements and obstructions to navigation, Huse v. Glover, 119 U. S. 543, 548; Leovy v. United States, 177 U. S. 621, 625; Cummings v. Chicago, 188 U. S. 410, 427; inspection and quarantine laws, Gibbons v. Ogden, 9 Wheat. 1, 203; wharfage charges, Packet Co. v. Keokuk, 95 U. S. 80; Packet Co. v. Catlettsburg, 105 U. S. 559, 563; Transportation Co. v. Parkersburg, 107 U. S. 691, 702; Ouachita Packet Co. v. Aiken, 121 U. S. 444, 447; tolls for the use of an improved waterway, Sands v. Manistee River Improvement Co., 123 U. S. 288, 295.
So, of provisions fixing the tolls for transportation upon an interstate ferry, Port Richmond &c. Ferry Co. v. Hudson County, 234 U. S. 317, 331; or upon vessels plying be
PITNEY, J., dissenting.
tween two ports located within the same State, Wilmington Transportation Co. v. California Railroad Commission, 236 U. S. 151, 156.
In each of these cases, except the last, which related to intrastate transport, the state regulation had an incidental effect upon the very conduct of navigation in interstate or foreign commerce. If in such cases the States possess the power of regulation in the absence of inconsistent action by Congress, much more clearly do they possess that power where Congress is silent, with respect to a liability which arises but casually, through the accidental injury or death of an employee engaged in a maritime occupation.
Indeed, with respect to injuries that result in death, it already is settled that although the general maritime law, like the common law, afforded no civil remedy for death by wrongful act (The Harrisburg, 119 U. S. 199; The Alaska, 130 U. S. 201, 209), yet a right of action created by statute is enforceable in a state court although the tort was committed upon navigable water (Steamboat Co. v. Chase, 16 Wall. 522, 533; Sherlock v. Alling, 93 U. S. 99, 104), and the liability arising out of a state statute in such a case will be recognized and enforced in the admiralty (The Hamilton, 207 U. S. 398), although not by proceeding in rem unless the statute expressly creates a lien (The Corsair, 145 U. S. 335, 347).
In Sherlock v. Alling, supra, which was an action in a state court and based upon a state statute to recover damages for a death by wrongful act occurring in interstate navigation, it was contended that the statute could not be applied to cases where the injury was caused by a marine tort, without interfering with the exclusive regulation of commerce vested in Congress. The court, after declaring that any regulation by Congress, or the liability for its infringement, would be exclusive of state authority, proceeded to say, by Mr. Justice Field (93 U. S. 104): "But with reference to a great variety of matters touching the
PITNEY, J., dissenting.
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. The rules for the acquisition of property by persons engaged in navigation, and for its transfer and descent, are, with some exceptions, those prescribed by the State to which the vessels belong;'and it may be said, generally, that the legislation of a State, not directed against commerce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affecting the operations of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pursuit. In our judgment, the statute of Indiana falls under this class. Until Congress, therefore, makes some regulation touching the liability of parties for marine torts resulting in the death of the persons injured, we are of opinion that the statute of Indiana applies,” etc.
I deem The Hamilton, supra, to be a controlling authority upon the question now presented. It was there held, not only that the constitutional grant of admiralty jurisdiction, followed and construed by the Judiciary Act of 1789, leaves open the common-law jurisdiction of the state courts over torts committed at sea, but also that it leaves the States at liberty to change the law respecting such torts by legislation, as by a statute creating a liability for death by wrongful act, which was the particular legislation there in question.
To what extent uniformity of decision should result from the grant of jurisdiction to the courts of the United States concurrent with that of the state courts, is a subject that repeatedly has been under consideration in this court, but it never has been held that the jurisdictional grant required state courts to conform their decisions to those of the United States courts. The doctrine clearly
deducible from the cases is that in matters of commercial law and general jurisprudence, not subject to the authority of Congress or where Congress has not exercised its authority, and in the absence of state legislation, the federal courts will exercise an independent judgment and reach a conclusion upon considerations of right and justice generally applicable, the federal jurisdiction having been established for the very purpose of avoiding the influence of local opinion; but that where the State has legislated, its will thus declared is binding, even upon the federal courts, if it be not inconsistent with the expressed will of Congress respecting a matter that is within its constitutional power. The doctrine concedes as much independence to the courts of the States as it reserves for the courts of the Union. Burgess v. Seligman, 107 U. S. 20, 33, 34; East Alabama Ry. Co. v. Doe, 114 U. S. 340, 353; Gibson v. Lyon, 115 U. S. 439, 446; Anderson v. Santa Anna, 116 U. S. 356, 362; Baltimore & Ohio R. R. Co. v. Baugh, 149 U. S. 368, 372; Folsom v. Ninety-six, 159 U. S. 611, 625; Stanly County v. Coler, 190 U. S. 437, 444; Kuhn v. Fairmont Coal Co., 215 U. S. 349, 357, 360.
In Baltimore & Ohio R. R. Co. v. Baugh, supra, the court had under review the judgment of a circuit court of the United States in an action by a locomotive fireman injured through negligence of the engineer. The cause of action arose in the State of Ohio, and the question presented was whether the engineer and fireman were fellowservants. Under the decisions of the Ohio courts they were, but this court held that, as there was no state statute, the question should not be treated as a question of local law, to be settled by an examination merely of the decisions of the state court of last resort, but should be determined upon general principles; the courts of the United States being under an obligation to exercise an independent judgment. The court, by Mr. Justice Brewer, said (149 U. S. 378): “There is no question as to