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FRANKLIN MOORE, GEORGE FOOT, AND GEORGE F. BAGLEY, PLAINTIFFS IN ERROR, v. THE AMERICAN TRANSPORTATION COMPANY.

December 1, 1860

FRANKLIN MOORE, GEORGE FOOT, AND GEORGE F. BAGLEY, PLAINTIFFS IN ERROR,
v.
THE AMERICAN TRANSPORTATION COMPANY.



THIS case was brought up from the Supreme Court of the State of Michigan, by a writ of error issued under the 25th section of the judiciary act; the construction of a clause of a statute of the United States (the exception in section 7 of the act of March 3, 1851) being drawn in question, and the decision being against the right set up and claimed by the plaintiffs in error.

The suit was originally commenced in the Circuit Court for the county of Wayne, in the State of Michigan, holden in the city of Detroit, and was brought by the plaintiffs in error, merchants resident in that city, against the American Transportation Company, a corporation created by the State of New York.

The declaration was in assumpsit, and charged the defendants as common carriers by water, of goods and chattels for hire, by canal boats and steam propellers, from New York to Detroit. It then alleged the delivery of about $3,000 worth of groceries on board the propeller at Buffalo, which were not delivered through the burning of the propeller.

The defendants pleaded the general issue, non assumpsit, and, under the Michigan practice, appended to the plea a notice that the statute of March 3, 1851, would be relied on as exempting the defendants. No replication was filed setting up the exception in the last section of said act, because the practice in that State does not permit such a pleading.

The cause was tried twice. At the first trial, the Circuit Judge ruled in favor of the plaintiffs, instructing the jury that that portion of the act giving the exemption claimed by the defendants was not applicable to the case, but that the vessel was engaged in inland navigation, under the exception, as claimed by the plaintiffs; and accordingly, September 11, 1857, the plaintiffs had a verdict of $3,050.70.

The defendant presented a bill of exceptions, and took a writ of error to the Supreme Court of Michigan, where the verdict was set aside and a new trial granted, upon the ground that the propeller, when navigating Lake Erie, was not engaged in inland navigation under said exception, as claimed by the plaintiff, and held by the court below.

The case is reported in 5 Mich., (1 Cooley,) 368. November 16, 1858, the new trial was had; and of course it resulted, under the decision of the appellate court given above, in a verdict for the defendants.

The plaintiffs then filed their bill of exceptions, given at large in the record, showing that they requested the court to charge 'that the act of Congress of March 3d, 1851, had no applicability to the case, inasmuch as the 'Spaulding,' being used principally in navigating between the cities of Buffalo and Detroit, by way of Lake Erie and Detroit river, was engaged in river and inland navigation within the exception in the last clause of section 7 of said act;' and that the court refused so to charge, and charged to the contrary, and the plaintiffs duly excepted.

Upon writ of error by the plaintiffs, the Supreme Court of Michigan affirmed the judgment below, in accordance with their former decision, and the plaintiffs brought the case up to this court.

It was argued by Mr. Walker and Mr. Russell for the plaintiffs in error, and by Mr. Hibbard for the defendants. A motion was made to dismiss the writ for want of jurisdiction, but the arguments upon this point will not be reported, nor upon the point of the constitutionality of the act of Congress.

The argument of Mr. Russell and Mr. Walker upon the main point, for the plaintiffs in error, was as follows:

The question to be decided is, whether a vessel engaged in navigation and commerce between the port of Buffalo, on Lake Erie, and the port of Detroit, on the river Detroit, is within the meaning of said act of Congress, 'used in rivers or inland navigation.'

While we most cheerfully concede that the intention of the Legislature is to be derived from the language which it has used, yet, in ascertaining that intention, the previous state of the law, the defects to be remedied, and the history of the legislation, may all be appropriately referred to.

Sedgwick on Statutes, 237, 239.

By the common law, the stringent rule in relation to the liabilities of common carriers was held to be as applicable to common carriers by water as by land.

Morse v. Slue, Ventris, 190, (23 Car., 2d.)

Same, Raymond, 220.

Rich v. Kneeland, (11 Jac., 1st,) Cro. Jac., 330.

Dale v. Hall, 1 Willson, 281, (A. D. 1750.)

The first limitation of the liability of ship owners was by the act of 7 Geo. II, c. 15, A. D. 1734.

It is not easy to determine what at this time was the liability of ship owners by the Continental law, nor was that law uniform; but it is very clear that they were not held to so strict a liability as by the common law. Thus it would seem, that in case of embezzlement or other wrong, by the master or mariners, that the owner was only liable to the extent of ship and freight.

Abbott on Shipping, 395.

Story on Bailments, sec. 488.

Hunt v. Morris, 6 Mart. La., 676; 3 Kent., 218.

The act of Parliament referred to provided substantially for the same thing, and thus put English ships upon an equality with foreign vessels. The special occasion of the passage of this act seems to have been the decision in the case of Boucher v. Lawson, which held that owners were, under some circumstances, liable for embezzlements committed by the master, without default of the owner.

Abbott on Shipping, 128, 395.

The liabilities of ship owners were still further limited by the act 26 Geo. III, A. D. 1786. By this act owners were exempted from liability in case of robbery, although not committed by the master or persons employed upon the vessel, and also from all responsibility in case of loss or damage by fire.

Abbott on Shipping, 397, 398.

This act seems to have been suggested by the case of Sutton v. Mitchell, 1 Term Reports, 18, which was an attempt to make the owners responsible for a robbery committed at the instigation of a mariner.

Abbott on Shipping, 397.

Two other cases decided the same year (1785) may have had some influence in promoting this legislation.

Forward v. Pittard, 1 Term, 27.

Trent Navigation Co. v. Wood, 3 Esp., 127.

The liabilities of ship owners were still further limited by 53 Geo. III, c. 159, which exempted owners from all responsibility for any damage, by reason of any act or neglect without their fault or privity, beyond the value of the ship or vessel and freight.

Abbott on Shipping, 398.

The object of all this legislation was to encourage British shipping, and put it at least upon an equality with that of other nations, and it has accordingly been held that these laws were only applicable to British shipping.

The Dundee, 1 Hagg., 113.

Pope v. Dogherty, 7 Am. Law Reg., 181.

Although the rule of the common law, in relation to the liability of common carriers, has been fully recognised in this country from its earliest settlement, and the applicability of that rule to carriers by water, and although in many instances ship owners have been held liable for losses by fire occurring without neglect on their part, yet no successful attempt was made to limit their liabilities until the passage of the act of 1851.

2 Kent's Com., 599 and 609.

McClure v. Hammond, 1 Bay., 99.

1810, Scheiffelin v. Harvey, 6 Johnson, 170.

1815, Elliott v. Rossel, 10 Johnson, 1.

Cases of Fire.

1834, Harrington v. Shaw, 2 Watts, 33.

1823, Stbt. Co. v. Bason, Harper, 264.

1838, Patton v. McGrath, Dudley, 159.

1843, Gilmore v. Carman, 1 S. and M., 279.

1843, Hale v. N. J. S. Nav. Co., 15 Conn., 539.

1848, N. J. S. Nav. Co. v. Merchants' Bank, 6 How., 334.

These last two cases, which grew out of the burning of the Lexington, very strongly attracted the attention of shipping and commercial men, and led to the enactment of March 3, 1851. Although the law upon this subject was perfectly well settled, losses by fire upon the ocean had been of such rare occurrence, that ship owners had not fully recognised their liabilities until these decisions.

The history of that act during its passage is curious, suggestive, and instructive.

23 Congressional Globe, 713-718.

When first introduced into the Senate, the last clause of the act was as follows: 'The preceding sections shall not apply to the owner or owners of any canal boat, nor to the owner or owners of any lighter or lighters employed in loading or unloading vessels, or in transporting goods or other property inland from place to place.' Thus limiting the exception to canal boats and lighters engaged in inland commerce, or, in other words, extending the benefits of the law to all other vessels of every description within the jurisdiction of Congress.

The bill had been carefully prepared by the Committee on Commerce, and was called up by Mr. Hamlin, Senator from Maine, one of that committee. He said: 'It is a bill which I think is just in its provisions, and it places our commercial marine upon the same basis as that of England.'

Its consideration was opposed by several distinguished Senators, and urged by others as a measure of great importance. Mr. Davis, of Massachusetts, said 'that it is by a recent decision some two or three years since that the owners of ships have comprehended their liabilities,' and urging the consideration of the measure as a system which had been for many years in operation in England, and said, 'it is simply putting our merchant marine upon the same footing as that of Great Britain. We are carriers side by side with that nation in competition with them, and we cannot afford to give them any very great advantage over us without affecting our interest very seriously.'

Mr. Cass urged its consideration with great earnestness, for similar reasons; and when before the Senate upon its merits, Mr. Hamlin said: 'It is true that the changes are most radical from the common law upon the subject, but they are rendered necessary, first, from the fact that the English common-law system really never had any application in this country; and second, that the English Government has changed the law, which is a very strong and established reason why we should put our commercial marine upon an equal footing with hers. Why not give to those who navigate the ocean as many inducements to do so as England has done? Why not place them upon that great theatre where we are to have the great contest for the supremacy of the commerce of the world? This is what this bill seeks to do, and it asks no more.'

Mr. Butler, of South Carolina, opposed the bill, and said: 'Great Britain has more interest in relieving itself from liabilities upon the ocean than any other.'

Mr. Underwood, of Kentucky, as representing the agricultural interests of the West, opposed the bill, and especially that portion of it exempting the owners of the vessel from liabilities for loss by fire; he said: 'The argument is, that we cannot compete with our great rival upon the ocean, with Great Britain, and that we must pass the first section of this bill in order to come into competition with her;' and he thought the bill would be injurious to the agriculturists, who produced articles of commerce, but who were not their own carriers; that it would lessen the security without lessening the cost of freight.

It was to obviate these objections coming from the interior that Mr. Pearce, of Maryland, moved to strike out the clause of the bill, and to insert the clause under consideration: 'This act shall not apply to the owners of any canal boat, barge, or lighter, or any vessel of any description whatsoever used in rivers or inland navigation.'

Mr. Hamlin, who had charge of the bill, said: 'If those who represent the interior waters of the country desire such an amendment, I am perfectly willing that it should be made.'

Mr. Phelps, of Vermont, living upon the banks of Lake Champlain, opposed the amendment, and said: 'If there is any portion of our navigation which is entitled to the benefit of this change in the common law of the country, it is our inland navigation. From my own experience in my own immediate neighborhood, of the navigation of the waters of the inland section of the country in which I reside, it is proved that this navigation is more subject to accidents, against which they cannot guard, than is the navigation of the sea. Under these circumstances I am opposed to the amendment, because I think that if the principle which is incorporated in the bill be adopted, it should be adopted in regard to all our navigation, internal as well as external.'

Mr. Pearce, who introduced the amendment, said: 'The memorials which gave rise to this bill came from that class of our people who were interested in ocean navigation, and one of the strongest arguments in support of this bill is, that it would put the ocean navigation of this country upon an equal footing with the ocean navigation of England and other countries. No such argument applies to this case; it is very manifest that the passage of this bill, without this amendment, will operate very disadvantageously to the interests of inland navigation.'

Mr. Rantoul was willing to vote for the amendment, because it did not affect those sections directly interested in foreign navigation, and was willing that the other sections should make such arrangements as best suited their purpose.

Mr. Seward opposed the amendment, because it introduced 'one system for ships that were engaged in the State of New York, another system for the commerce on our lakes, on Lakes Erie, Ontario and Michigan; one system for the rivers and lakes, and another system for the ocean navigation.' 'The reasons which lead to the necessity for this bill are applicable to the inland navigation, and not to ocean navigation alone.'

Mr. Clayton, of Delaware, said: 'I suppose the amendment will apply to lake navigation as well as inland navigation.'

Mr. Walker, of Wisconsin, favored the amendment, for the reason 'that the great producing interests of the country require it.'

Mr. Shields, of Illinois, said: 'I also hope the amendment will be adopted. I do not think we have too many guaranties upon our Western waters for the safety of either passengers or freight.'

Looking, then, at the history of British legislation upon this subject, and the greater liabilities that rested upon our ship owners, which had been so clearly brought to light by the decisions growing out of the loss of the Lexington, it seems very clear that the purpose of the act was in relation to ocean navigation, to place our vessels upon an equality with those of Great Britain, and enable them to compete successfully with British and other foreign shipping for the commerce of the seas. It seems equally clear, that the provisions of the clause in question were intended to be extended as well to commerce upon the lakes as on rivers.

The British statutes exempting ships from liabilities were not in force in Canada and upon the great lakes, nor was there upon those lakes any real competition between British and American shipping. It already stood upon an equality in relation to legal liability, and, practically, American shipping had the entire monopoly of the commerce.

Is there anything in this exception itself that requires a different construction? We think not.

In the first place, the exception excludes from the operation of the act certain vessels, irrespective of the character of the navigation in which they are engaged, canal boats, barges, and lighters. These, from their very nature, cannot be used in ocean navigation, nor be exposed to its hazards.

Then there is excluded from the operation of the act, 'vessels of any description whatsoever used in rivers or inland navigation;' the phrase is sufficiently comprehensive to include everything that floats upon water, if used in the specified way.

Webster's Dict., 'Vessel.'

The phrase 'used in rivers' is too unambiguous to require explanation or construction.

The remaining question, and which is the question in this case, is, what construction is to be given to the phrase 'inland navigation;' shall it be held to embrace navigation upon Lake Erie and our great lakes? That this is the obvious, natural, and popular meaning of the phrase, we think there can be no doubt. This is admitted by Judge Conklin, who suggests, however, a different construction.

Conklin Ad., 209.

It is now clearly settled, that in the construction of statutes the courts will give to the language used its ordinary and obvious meaning, unless from the statute itself it is clearly apparent that some other meaning was intended.

Sedwick on Stat. Law, 243, 260, 310, 382.

Tisdale v. Comb, 7 Ad. and E., 788.

Lakes are from their very nature inland, and must be so, and the navigation upon them must therefore be inland navigation.

5 Am. Encyc., art. 'Lake.'

4 Nat. Cyc., art. 'Canada.'

5 Ed. Encyc., art. 'Canada.'

7 Nat. Cyc., art. 'Lake.'

Maunder's Scientific Treas., art. 'Lake.'

Webster's Dict., arts. 'Lake' and 'Sea.'

Thus the Caspian, though sometimes called a sea, is strictly a lake, being a large collection of water in an inland place.

15 Ed. Encyc., art. 'Physical Geo.,' 608.

5 Amer. Cyc., art. 'Lake.'

7 Nat. Encyc., art. 'Lake.'

Webster's Dict., art. 'Sea.'

The word 'inland,' as applied to navigation or bodies of water, is used as the correlative of ocean or tide water.

Webster's Dict., 'Inland.'

We refer to a few only of the many instances in which the terms 'inland seas,' 'inland waters,' and 'inland navigation,' have been used by jurists and by other writers in relation to, or so as necessarily to include, the great lakes.

'Inland Seas,' Woodbury, J., 5 How., 495.

'Interior Lakes,' Webster Arguendo, 6 How., 378.

'Inland Seas,' Taney, Ch. J., 12 How., 453.

'Interior Waters,' Daniel, J., 20 How., 314.

'Inland Waters,' Catron, J., 20 How., 401.

'Inland Waters,' Clifford, J., 21 How., 22.

'Inland Navigation,' Shaw, Ch. J., 11 Pick., 42.

'Inland Navigation,' 1 Newberry, Pref. VIII.

'Inland Seas,' Arguendo, 1 Newberry, 545.

'Inland Seas,' Pratt, J., 3 Mich., 275.

'Inland Navigation,' 1 Conk. Adm., 5, 8, 17.

'Inland Waters,' 1 Conk. Adm., Pref. VIII.

'Inland Seas,' Ed. Cyc., art. 'Phys. Geo.,' 608.

'Inland Seas,' 1 Murray's Hist. of Canada, 22.

'Inland Navigation,' Summerville's Phys. Geo., 266.

'Inland Seas,' 3 Murray's Encyc. of Geo., 350.

'Inland Seas,' Webster in his Buffalo speech, 1833; and in his 1st speech in reply to Hayne.

'Interior Trade,' 3 Bancroft's Hist. of U. S., 111.

Indeed, it may well be said, that the great lakes are but expansions of the rivers connecting them, and this is the position taken by eminent geographers, some of whom give the length of the St. Lawrence as commencing at the head of Lake Superior.

4 Nat. Cyc., art. 'Canada.'

5 Ed. Encyc., art. 'Canada.'

9 Amer. Encyc., art. 'Lake.'

The term, therefore, 'inland navigation,' obviously and naturally includes lake navigation.

It is, too, clearly apparent, that the great lakes were to be included within the exception, from the fact that all rivers–as well those connecting the great lakes as others–are expressly within it, and there could be no reason why the navigation upon the St. Clair, the Detroit, and the St. Lawrence, should be governed by a different rule from that of the connecting lakes; the commerce is intimately, nay, indissolubly, connected together, carried on by the same vessels, in same voyages, subject to similar perils and similar competition.

Nor can it be said that these rivers are but straits connecting lakes, and therefore not embraced under the title 'rivers.'

Straits only connect ocean waters.

Maunder's Scientific Treas., art. 'Straits.'

Webster's Dict., art. 'Straits.'

17 Am. Encyc., art. 'Straits.'

Rees's Encyc., art. 'Straits.'While these connecting waters are strictly rivers, answering in every respect the description of rivers, as given by lexicographers and geographers: 'A river is a large stream of water flowing in a ...


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