Armstrong v. Morrill, 81 U.S. (14 Wall.) 120

I, Thomas Willing, of the city of Philadelphia, do hereby p. 122declare and make known unto all whom it doth or may concern, that immediately on my receiving notice that Robert Morris had conveyed certain estates of land to John Nixon, John Barclay, and myself, in trust for the North American Land Company, I did positively refuse to accept or to act under the trust so intended to be created, and that I have at no time since accepted the said trust, or acted in anywise as trustee in relation thereto.

So far as to the plaintiff’s title; as to which it will be observed that if any title passed to Mr. Willing by the deed of Mi. Morris to him, Nixon, and Barclay, and had not passed p. 124from him by his disclaimer of 1806, therj his estate, whatever it was, had not been conveyed to any one.

The defendants below—who had objected to the reception p. 126in evidence of what was called the disclaimer of Mr. Will- I ing (the paper printed supra, pp. 121-2), and had excepted I to its admission—maintained:

« Second. That the patent covered all lands lying within the p. 127exterior boundary of the survey, for which patents had issued previous to Hopkins’s entry, survey, and patent, and became a junior grant to that issued to Gallatin.

“The grant to Hopkins, embracing within its exterior boundaries 227,460 acres of land, which is reserved and excepted to prior claimants, does not operate to divest them of their title, unless they fail to show themselves entitled to the land under said reservation; nor does the grant pass any legal title to the grantee of the lands so reserved and excepted by it, where the same have been previously appropriated and granted by the Commonwealth, inasmuch as it appears that the patentee gets p. 128all the lands he paid for, or for which he is chargeable with I taxes.

'<-' ’ -------------------- - ------ - ---------------------- -- - p. 131has run, it is valid. After the redemption, the time run is also valid. Is it not just then to unite them? By the instruction asked for by us the plaintiff gained the time of the forfeiture; but that gain, obtained by sheltering himself under the State, has no such merit as to avoid the valid time which preceded the forfeiture.

Absolute title and the right of possession are claimed by the plaintiff to the tract of land in controversy, and the ¡actual possession of the same being in the four defendants named in the declaration, he brought an action of ejectment ' against them to recover possession of the tract. He alleges in the first count of the original declaration that on the day therein named he was possessed in fee simple of the tract; |that on tlje eighth of October following the defendants entered into the premises, and that they unlawfully withhold from him the described tract. Quite unlike that, the second count alleges that the primary possession of the tract was in tone James Dundas and one Benjamin Kugler, and that the ¡defendants unlawfully withhold the possession from those [parties. Process was served and the defendants appeared p. 132■------------------------------------------------------- ----------- —--------------------------------------------------------------------------------------------------------------------------------- - and demurred to the declaration, and the court sustained the I demurrer as to the second count but overruled it as to the I first. Leave to amend was granted, and an amended declaration was filed, containing three counts, of which the first is in the name of the plaintiff and the other two persons named in the second count of the original declaration. All three sue in that count as joint plaintiffs, but the second count corresponds in all respects with the first count in the original declaration, which renders it unnecessary to describe the third, except to -say that the other two persons are alleged to have been the primary possessors of the tract, and that the claim to recover possession is made in their names as well as the claim for damages. Both parties acquiesce^ in the decision of the court overruling the demurrer to the first count and sustaining it as to the second of the original declaration, and the defendants pleaded to the merits that they "were not guilty of withholding the premises as alleged in the new counts filed by leave of court. Issue was tendered and joined, but the plaintiffs, before trial, obtained leave to file a fourth count, in which it is alleged that-one William M. Tilghman was the primary possessor of the tract, and the charge, in that count, is that the defendants unlawfully withhold from him the actual possession of the same described tract of land. Subsequently the parties went to trial and the verdict was for the plaintiff, as described in the first count of the original declaration, and also in the second count of the amended declaration.

Evidence was also introduced by the plaintiffs showing that the land in controversy, on the 1st day of November, 1836, became forfeited to the State by virtue of the second section of the statute of the State passed on the 27th of Febiuaiy, 1835, as construed by the Supreme Court, or Court of Appeals, of that State.* Forfeiture in such a case became p. 134absolute and complete by the failure to enter and pay the taxes on the land and the damages, in the manner therein prescribed, and no inquisition or judicial proceeding or inquest or finding of any kind was required to consummate such a forfeiture.* Owners or proprietors of any tract of land lying west of the Alleghany Mountains, granted by the State before the first day ot April, 1831, were required by the act of the twenty-seventh of February, 1835, to enter or cause to be entered, on^or before the first day of July of the succeeding year, on the books of the Commissioners of the Revenue for the county wherein any such tract or parcel of land may lie, all such lands as he or they7 owned or claimed, through title derived, mediately or immediately, from the State, and have the same charged with all taxes and damages in arrear or properly chargeable thereon. They were also required to pay and satisfy all such taxes and damages which would not have been relinquished and exonerated by the second section of the act of the tenth of March, 1832, had they been returned for their delinquency prior to the passage of that act, and the provision was that if they failed to comply with those requirements “ all such lands or parcels thereof not then in the actual possession of such owner or proprietor, by himself or his tenant in possession, shall become forfeited to the Commonwealth after the first day of July, eighteen hundred and thirty-six, except only as hereinafter excepted.”

Provision is also made by the third section of the act that all right, title, and interest vested in the State by the preceding section of the act shall be transferred and absolutely vested in any and every person or persons, other than those for whose default the same have been forfeited, their heirs, or devisees, now in actual possession of said lands, or any part or parcel of the same, for so much thereof as such person or persons have just title or claim to, legal or equitable, bond fide claimed, held, or derived from or under any grant of the State bearing date previous to the period of time p. 135mentioned in the preamble to the second section, who shall have discharged all taxes duly assessed and charged against him.or them upon such lands, and all taxes that ought to have been assessed and charged thereon from the time he or they acquired title thereto, whether legal or equitable. Appended to that section, however, is a proviso that nothing therein contained shall be so construed as to impair the right or title of any person or persons who have obtained grants from the State for the same land and have regularly paid the taxes thereon.

Sessions Acts, 1835, pp. 12, 13. f Sessions Acts, 1843-4, p. 108. p. 136June” of the succeeding year, “ the amount of the taxes so I assessed, together with six per centum per annum damages I thereon.” They complied with those conditions, and the! second section of the act provided, “ that upon the payment I of the taxes and damages aforesaid, all the right, title, and I interest which may have vested in the president and direc-1 tors of the Literary Fund, by the said forfeiture, to such | part or parts of the said lands as may be redeemed as afore-1 said, shall be and the same are hereby released unto the said I James Dundas and Benjamin Kugler, . . . for the use and I benefit of the shareholders of the said North American Land Company.” Annexed to that, however, is a proviso that nothing herein contained shall be construed to deprive any person or persons having a legal or equitable title to any of these lands by virtue of a subsequent grant from the State or otherwise, of his or their right, title, or interest, but the rights of such claimants shall remain the same as if this act had never been passed.

■ inal. declaration and to the second count in the amended p. 138declaration. Ko motion in arrest of judgment was made, and as no such question was raised in the court below, and as the finding is fully justified by two of the counts and by the evidence reported, the objection is overruled.

Authorities are hardly necessary to show that the mere making of a trust deed, like the one in question, without any acceptance, express or implied, by the trustee, is not p. 139sufficient to vest in the trustee the title to the land mentioned in the deed, and that parol proof is admissible in such a case to show that the trust was never accepted. On the other hand, it is equally clear that if the trust is accepted, though but for a moment, parol proof to show a release of the title to the trust estate cannot be admitted.* Offered as the paper-writing was, not as the release of a vested right, but merely as evidence tending to prove that the signer never accepted the trust created by the deed, no doubt is entertained that the evidence was properly admitted, as it is well-settled law that every conveyance which depends upon the act of the parties is imperfect for vesting the title without the assent of the parties to the same, either express or implied.f Two of the trustees accepted the trust and proceeded to execute it, but it does not appear that the signer of the certificate ever joined with them in any act, either in managing or disposing of the estate. Obviously the weight of the evidence was for the jury, nor does it appear that other testimony to the same point was not introduced, as only so much is reported in the bill of exceptions as was necessary to raise the question of law. Admitted as it was, as a verbal act tending to show that the trust was not accepted, no doubt is entertained that the ruling was correct.

Exceptions were also taken by the defendants to the refusal ot the court to instruct the jury as requested, and also to the instructions given in respect to the merits of the controversy. Very great doubts-are entertained whether the evidence introduced by the defendants was such that the court would have been warranted in giving the first, second, or third instructions as requested, but the judgment of the court will not be placed upon that ground, as it is clear that the instructions given, if correct, were in all respects p. 140sufficient to dispose of the controversy, and as the verdict was for the plaintiff the only material inquiry remaining is whether the law was correctly given to the jury in those instructions.

■ p. 142under tho act of the Assembly was conveyed to the plaintiff’s grantors, to make.the required term of fourteen years to bar the title. .

Surveys had been made in different parts of the State, subsequent to the treaty of peace, that included smaller p. 143tracts of prior claimants within their exterior boundaries, [ and which were reserved to such claimants in the certificates ' granted by the surveyors. Doubts arose as to the authority I of the governor to grant patents in such cases, and to re! move those doubts the General Assembly, June 2d, 1778, enacted that it shall and may be lawful for the governor to issue grants with reservation of claims to lands included in I such surveys, anything in any law to the contrary notwithstanding.* Prior to the passage of that law the authority to issue such grants was at least doubtful, even if the power existed at all, and it is clear that the Assembly never intended that any such grant should cover any prior title, whether complete or incomplete, Within the exterior boundaries of the survey.f Supported as the proposition is by icpeated decisions of the State court it is adopted without hesitation, as any other rule would work very great injustice.! Where the exterior boundaries of a survey under that law upon which a patent is founded includes tracts belonging to prior claimants, the patentee cannot in such a. case recover in -ejectment without showing that the tract claimed by the defendant is not within the bounds of the excluded claims, which is a direct authority that the reserved lands in a case like the present did not pass to the patentee.§ Even more decisive also is the case of Nichols et al. v. Covey,\\ iu which it is determined that where a patent is issued in pursuance of the act of the second of June, 1788, which includes in its general courses a prior claim, it does not pass to the patentee the title of the State to the lands covered by such prior claim. On the contrary, the title of the patentee in respect to such a tract is not only subject to the title of

The plaintiff in the court below claimed title to the land p. 147in controversy under a patent of the State of Virginia, granted to Albert Gallatin on the 10th day of February, 1786. It does not appear that any possession was ever taken under this patent, but on the 1st of November, 1836, the lands were forfeited to the State for failure by the owners to make entry thereof upon the commissioners’ books, for taxation. On the 12th of February, 1844, however, an act of the legislature was passed for the relief of Dundas and Kugler, who had become the grantees of the Gallatin right, by which they were allowed to redeem the lands, on the payment of all taxes and damages due thereon, and on the 8tli day of May, 1845, the redemption was made. The plaintiff has no other title.

“ The consuls, vice-consuls, and commercial agents shall have the right as such to sit as judges and arbitrators in such differences as may arise between the Captains and crews of the vessels belonging to the nation whose interests are committed to their charge, without the interference of the local authorities, unless the conduct of the crews, or of the captain, should disturb the order or tranquillity of the country; or the said consuls, vice-consuls, oi' commercial agents, should require their assistance to cause their decisions to be carried into effect or supported. B is, however, understood that this species of judgment or p. 153arbitration shall not deprive the contending parties of the rights they have to resort on their return to the judicial authority of their country.”

“ The master is the representative in this port of the vessel and of all the interests concerned therein. He is plainly so regarded in the treaty. The matter in difference in this cause is the claim for wages. That arises between the crew and the master, either as master or as the representative here of vessel and owners. The lien and the proceeding in rem against the vessel appertain only to the remedy. The very first step in this cause is to settle the matter in dispute. If the claim be p. 155established, then, as incident to the right to the wages, the lien and its enforcements against the vessel follow. The District Court can have no jurisdiction of the lien, nor jurisdiction to enforce it if it has no jurisdiction of the difference or dispute touching the claim for wages. To hold that the jurisdiction of the consul is confined to cases in which there is no maritime lien, and in which no libel of the vessel could, apart from the treaty, be maintained, is to take from the treaty much of its substance.”

Third. Upon the proofs the court found and decided, that p. 159the Prussian consul had adjudicated the matter in difference involved in the litigation, and that the libellants were bound by that adjudication.

Reply: The law will leave no one remediless, and the ¡amount in controversy not being $2000, and no appeal ex-listing, and there being no other remedy, the remedy in the »remises must be by mandamus. The writ is issued to iniferior courts to enforce the due exercise of these judicial Ipowers; “and this not only by restraining their excesses, rbut also by quickening their negligence and obviating their ¡denial of justice.’'-}- While this court will not restrain nor p. 160direct by mandamus in what manner the discretion of the inferior tribunal should be exercised, it will, in proper cases, require the court to hear and decide. The “principles and usages of law,” give the right to a mandamus where a party has a legal right, and no other remedy to enforce it.*

Authorities are clear on the right of a superior tribunal to compel an inferior tribunal to hear a cause and decide it p. 161even after the latter has declined to entertain the cause because of an alleged want of jurisdiction.*

VOL. XIV. 11 p. 162obedient to his lawful commands. On the contrary, lie alleges that they, on the day they were discharged, were guilty of gross insubordination and mutinous conduct, that they resisted the lawful commands of the master, and refused to obey the same, and interfered with him in the performance of his duty, and with force and threats prevented him from performing the Same, and thereafter, on the same day, deserted from the vessel.

His refusal to entertain jurisdiction and to hear and p. 164decide the merits of the case was placed, as they allege, upon the ground that the matter in difference, under the tenth article of the treaty, was within the exclusive cognizance of the consul, vice-consul, or commercial agent therein described, and in consequence thereof that the District Court was without any jurisdiction, which they contend is an error for the following reasons :

Hearing was had on the day the petition was presented, and this court granted a rule requiring the Circuit judge to show cause on the day therein named why a peremptory writ of mandamus should not issue to him directing him to hear the appeal of the petitioners and decide the same on the merits. Due service of that rule was made, and the case now comes before the court upon the return of the judge to that rule. He returns, among other things not necessary to be reproduced, as follows: That the cause of the libellants proceeded to a decree in their favor in the District Court; that an appeal from that decree was taken indue form to the Circuit Court for that district; that the Circuit Court did not refuse to entertain the appeal nor did the Cir’ cuit Court refuse to decide the case on the appeal nor hold or decide that the Circuit Court had no jurisdiction to hear or decide the same, as required by the proofs or by the law-On the contrary, the Circuit Court did entertain the appea'> p. 165did hear the counsel of the parties fully on all the questions raised in the case, and did decide the same. But in making such decision the said court did hold and decide that the matter in controversy was within the jurisdiction of the consul, under the treaty, and that the consul, in the exercise-of that jurisdiction, after hearing the parties, had decided the matter. Pursuant to those views the Circuit Court, as the return shows, did thereupon direct that the decree of the District Court be reversed, and that the libel of the petitioners be dismissed.

* 1 Stat, at Large, 81. t Marbury v. Madison, 1 Cranch, 175; Ex parte Hoyt, 13 Peters, 290. p. 166supervisory court will never prescribe what the decision of the subordinate court shall be, nor will the supervisory court interfere in any way to control the judgment or discretion of the subordinate court in disposing.of the controversy.* Where a rule is laid, as in this case, on the judge of a subordinate court, he is ordered to show cause why the pereraptory writ of mandamus shall not issue to him, commanding him to do some act which it is alleged he has power to do, and which it is his duty to do, and which he has improperly neglected and refused to do, as required by law. Due service of the rule being made the judge is required to make return to the charge contained iff the rule, which he may do by denying the matters charged or by setting up new matter as an answer to the accusations of the relator, or he may elect to submit a motion to quash the rule or to demur to the accusative allegations. Matters charged in the rule and denied by the respondent must be proved by the relator, and matters alleged in avoidance of the charge made, if denied by the relator, must be proved by the respondent.f Motions to quash in such cases are addressed to the discretion of the court, but if the respondent demurs .to the rule, or if the relator demurs to the return, the party demurring admits everything in the rule or the return, as the case may be, which is well pleaded, and if the relator elects to proceed to hearing on the return, without pleading to the same in any way, the matters alleged in the return must be taken to be true to the same extent as if the relator had demurred to the return.^ Subordinate judicial tribunals, when the writ is p. 167Dec. 1871.] Ex parte Newman. *'**

Admiralty courts, it is said, will not take jurisdiction in such a case except where it is manifestly necessary to do so to prevent a failure of justice, but the better opinion is that, independent of treaty stipulation, there is no constitutional p. 169or legal impediment to the exercise of jurisdiction in such a case. Such courts may, if they see fit, take jurisdiction in such a case, but they will not do so as a general rule without the consent of the representative of the country to which the vessel belongs, where it is practicable that the representative should be consulted. His consent, however, is not a condition of jurisdiction, but is regarded as a material fact to aid the court in determining the question of discretion, whether jurisdiction in the case ought or ought not to be exercised.*

(б) On the starboard side a green light, &c., visible on a dark p. 172night, with a clear atmosphere, at a distance of at least two miles.

Sailing at the same hour, equally about mid-ocean, the Berkshire, a sailing ship belonging to the American marine, was on her voyage from New Orleans to Havre, and with a wind free, blowing from about south-southwest, was pursuing a course southeast by east one-half east, as indicated by the p. 174following diagram. The courses of the two vessels thus intersected at an angle of exactly one point.

Immediately on her sighting the steamer, which was at most from fifteen to twenty minutes before the collision, her mate gave an order to luff, and she did luff, so as to head more into the wind. The effect of this was to make her go further to the south and thus diverge farther from the course of the steamer. She continued in this new direction ten or fifteen minutes, when, moving at. the rate at which it was proved that the vessels were moving, she could not have been more than one or two miles from the Scotia. Her helm was then suddenly put to starboard, then steadied for a brief period, then put hard a-starboard and kept there, thus pointing her directly across the bow of the approaching vessel. By keeping her helm hard a-starboard she was made to p. 175change her course constantly. The diagram on the preceding page may perhaps assist the reader’s comprehension. The dotted lines represent the Berkshire’s movements.

The Scotia saw the white light on the Berkshire in due time, and first saw it off her port bow, from one to two points. Seeing a white light, the deck officer of the Scotia took the vessel for a steamer, and from the proximity of the light to the water inferred that she was far off; coming in fact just above the horizon, and accounting for the non-appearance of the usual colored lights because he supposed that they had not come up to view.* He thus not only supposed the Berkshire to be a steamer, but judged that the supposed steamer was at a much greater distance than it was in fact. As already signified, the location of the light warranted the supposition, and its color gave no indication that it was on a sailing vessel. After its discovery the ship’s light opened on the steamer’s port bow; how much it opened was a matter somewhat agitated by the witnesses and the counsel, though this court considered that matter immaterial, because if it receded at all it indicated fhat there was’then no danger of collision without some change of course, and consequently- no necessity to take measures to avoid one. The weight of the evidence was that the ship had not then turned her course northward, but if she had it was still proved that her light opened on the Scotia’s port side, after it was first seen, and before the steamer’s course was changed. Soon after, and because of the ship’s change of course, her light began to close in on the steamer’s bow, and then for the first time was there any apparent danger of collision. Then the Scotia’s helm was immediately ported, then hard ported, and observing that the ship’s light still closed in, orders were given, in quick succession, to half-speed, slow, reverse, and p. 176back, but notwithstanding these orders, which were all promptly obeyed, the vessels came together in the position indicated on the diagram, and the Berkshire with her cargo went right down in mid-ocean.

VOL. xiv. 12 p. 178water at night, ought to have, somewhat changed her course or slowed up, so soon as she saw how nearly the courses met.

Nor is the position tenable, that inasmuch as the obligations resting on the Scotia by a British statute relating to lights were the same with those resting upon the Berkshire, the rule should be enforced in this suit on some, principle of reciprocity. That question is strikingly concluded by authority. It happened to the principal libellant (Mr. Sears), to invoke in his own behalf, in a British tribunal, on this p. 179--------------------------- w--------------------------------------------- -------- --- -------- ----- - very notion of reciprocity, in a collision cause, in which his ship was libelled by British citizens, the protection of a British statute; and he supported his claim by proof that the United States had made a like enactment. The question was most elaborately considered by Dr.. Lushington, and determined against him.* In the face of this decision, it would be a singular exhibition of reciprocity, to yield to the claim of the Scotia.

The municipal ordinances relied on by the District Court p. 180do not constitute a body of statutes enacted by the nations collectively, nor do they constitute anything in the nature of a convention or treaty; at all events, not so far as the United States are concerned, and the other powers, save Great Britain. They are municipal statutes, and nothing mope. Great Britain, indeed, by her act, seems to indicate that in her view, as soon as other nations pass acts similar to her own, she will deem this to be an assent to a proposition made by her, and will then regard a convention as agreed upon, which her courts are to respect: and, it may be very proper for her courts to act accordingly. But the United States have never done anything of the kind.

Mr. Justice STRONG delivered the opinion of the court It is plain that had the ship continued on her course after she first saw the steamer’s bright light, there could have been no collision. And, still more, had she not afterwards and when near the steamer put her helm to starboard she would have been out of all danger. Even when she first sighted the Scotia she had passed the point at which her course and that of the steamer intersected. This is a necessary sequence from the facts that the angle between the courses of the two vessels was exactly one point, and that the light of the steamer, when first seen, bore from a point to a point and a half off her port bow. Besides, when the p. 181ship was first seen from the steamer, her bearing, it is clearly proved, was from a point to two points off the steamer’s port bow. Such a bearing was impossible unless the ship had already crossed the line of the Scotia’s course, and passed the point at which the vessels could have come together unless one or the other had taken a new direction. They must have passed with a wide berth between had the ship made no change of her helm, or had she kept her luff in obedience to the mate’s order. But by putting her helm hard a-starboard she was made to change her course constantly till the collision occurred. Even before she bore away the red light of the steamer was seen by her wheelsman, and probably by her lookout, if not indeed by her master, doubtless in time even then to escape harm. Had it not been then for the unfortunate order of the master to starboard her helm, and bear away before the wind, this case could not have arisen.

Was, then, the Scotia in fault ? If she was, the fault must have been either that she did not change her helm sooner, or that she ported, or that she was unjustifiably late in slackening her speed and reversing her engines. No other fault is imputed to her. We have already said that she was not bound to take any steps to avoid a collision until danger of collision should have been apprehended, and we think p. 182there was no reason for apprehension until the ship’s light was seen closing in upon her. Assuming for the present that she had no right to conclude that the light was on a steamer and to manœuvre accordingly, and, therefore, that it was her duty to keep out of the way, it is still true that all her duty at first was to watch the light in order to discover certainly what it was, and to observe its course and notice whether it crossed her own course. It is not the law that a steamer must change her course, or must slacken her speed the instant she comes in sight of another vessel’s light, no matter,in what direction it may be. With such a rule navigation cannot be conducted. Nor is such a rule necessary to safety. It is, therefore, no fault that, seeing the ship’s light off her port bow, apparently at a distance of several miles, the Scotia continued on her course without slackening her speed, until that light began to close in upon her. Then she ported her helm, the obvious effect of which was to take her farther away from the approaching vessel. Then she slowed her engines, stopped and backed, until, at the-time when the collision took place, she had almost, if not entirely, ceased to move through the water. Had she starboarded, instead of porting, the movement would have turned her toward the Berkshire, and apparently would have rendered collision more probable. Of the propriety of her slowing her engines, stopping, and backing, there can be no doubt. If, now, it be considered that she had been misled by the nature and location of the light on the Berkshire, which indicated that the ship was at a much greater distance than she was in fact; that consequently the peril came upon her suddenly, leaving short time for deliberation, and if it be considered that she had been brought into this I extremity, first, by the ill-judged and causeless change of the ship’s course, and, second, by the persistent effort of the ship’s master to cross her bow after he had seen her red light, and discovered certainly that she was a steamer, it would be unjust to impute to her as a fault that she did what she ought, to have done, had the approaching vessel been in fact a steamer, and that which at all events seemed p. 183most likely to avoid a collision. Certainly it was not her fault that she did not know the Berkshire to be a sailing vessel. And in all human probability the measures taken by her to avoid a collision would have been successful if they had not been counteracted by the constant veering of the Berkshire, with her helm kept hard a-starboard.

But we think the Scotia had a right to conclude that the Berkshire was a steamer rather than a sailing vessel, and that, when first seen, she was at the distance of four or five miles, instead of being near at hand. Such was the information given her by the ship’s white light, fastened as it was to the anchor-stock on deck, and no watchfulness could have enabled her to detect the misrepresentation until it was too late. Both vessels were moving under similar regulations. The Berkshire was an American ship, belonging to the mercantile marine, and she was required by the act of Congress of April 29th, 1864, to carry green and red lights, which she did not carry, and she was forbidden to carry the white light, which she did carry. By exhibiting a white light, she, therefore, held herself forth as a steamer, and by exhibiting it from her deck, instead of from her masthead, she misrepresented her distance from approaching vessels. It is clear the Scotia would have been justified in taking her for a steamer had she been known to be an American ship. But it is insisted on behalf of the appellants that, inasmuch as the act of Congress is a mere municipal regulation, obligatory as a statute only upon American vessels, the Scotia, a British steamer, cannot avail herself of it to fault an American ship, or to justify her own conduct. Waiving for the moment consideration of the question whether this position is well taken, it is yet true that the Berkshire was under the statute, though on the high seas, and that the Scotia was subject to and sailing under similar regulations (the British orders in council of January 9th, 1863); that the collision p. 184happened in the known path of vessels navigating between the United States and Great Britain, and that there was a reasonable probability that vessels in that path would be either American or British, and would, therefore, carry the lights prescribed by the laws of those countries. The steamer might well, therefore, in the absence of knowledge, act upon that probability, and in the emergency into which she had been brought, might, without fault, apply the rule of navigation common to the ships of both countries.

But, to return to the question, we think that independently of the act of Congress, considered as a mere municipal regulation, the Berkshire was bound to show a green light on her starboard, and a red light on her port side, without exhibiting any white light; and that the Scotia may set up in defence her failure to carry such green and red lights, as also the fact that she did improperly show a white light. And we think that her breach of duty in these respects misled the officers of the steamer, and caused them to act on the assumption that she was a steamer, and therefore under obligation to pass on the port side. If so, the collision was solely due to the fault of the ship. We rest this conclusion not solely, or mainly, upon the ground that the navigation laws of the United States control the conduct of foreign vessels, or that they have, as such, any extra-territorial authority, except over American shipping. Doubtless they are municipal regulations, yet binding upon American vessels, either in American waters or on the high’seas. Nor can the British orders in council control our vessels, though they may their own. We concede also that whether an act is tortious or not must generally be determined by the laws of the place -where the act was committed. But every American vessel, outside of the jurisdiction of a foreign power, is, for some purposes at least, a part of the American territory, and our laws are the rules for its guidance. Equally true is it that a British vessel is controlled by British rules of navigation. If it were that the rules of the two nations conflicted, which would the British vessel, and which would the American, be bound to obey? Undoubtedly the rule p. 185prescribed by the government to which it belonged. And if, in consequence, collision should ensue between an American and a British vessel, shall the latter be condemned in an American court of admiralty? If so, then our law is given an extra-territorial effect, and is held obligatory upon British ships not within our jurisdiction. Or might an American vessel be faulted in a British court of admiralty for having done what our statute required? Then Britain is truly not only mistress of the seas, but of all who traverse the great waters. It is difficult to see how a ship can be condemned for doing that which by the laws of its origin, or ownership, it was required to do, or how, on the other hand, it can secure an advantage by violation of those laws, unless it is beyond their domain when upon the high seas. But our navigation laws were intended to secure the safety of life and property, as well as the convenience of commerce. They are not in terms confined to the regulation of shipping in our own waters. They attempt to govern a business that is conducted on every sea. If they do not reach the conduct of mariners in its relation to the ships and people of other nations, they are at least designed for the security of the lives and property of our own people. For that purpose they are as useful and as necessary on the ocean as they are upon inland waters. How, then, can our courts ignore them in any case ? Why should it ever be held that what is a wrong when done to an American citizen, is right if the injured party be an Englishman?

But we need not affirm that the Berkshire was under obligation to show colored lights, or to refrain from showing a white light, merely because of an act of Congress, nor need we affirm that the Scotia can protect herself by setting up the ship’s violation of that act. Nor is it necessary to our conclusions that the British rules in regard to lights are the same as ours, though that is an important consideration. We are not unmindful that the English courts of admiralty have ruled that a foreigner cannot set up against a British vessel, with which his ship has collided, that the British vessel violated the British mercantile marine act, on the p. 186high seas, for the reason, as given, that the foreigner was not bound by it, inasrhuch as it is beyond the power of Parliament to make rules applicable to foreign vessels outside of British waters. This decision was made in 1856, in the case of The Zollverein.* A similar rule was asserted also in The Dumfries,^ decided the same year; in The Saxonia,^ decided in the High Court of Admiralty in 1858, and by the Privy Council in 1862. The same doctrine was laid down in 1858, in the case of Cope v. Doherty^ and in The Chancellor, || decided in 1861. All these decisions were made before the passage of the Merchant Shipping Amendment Act, which took effect on the 1st day of June, 1863. By that act the same rules in regard to lights and movements of steamers and sailing vessels on the high seas were adopted as those which were prescribed by the act of Congress of 1864, and by the same act it was provided that the government of any foreign state might assent to the regulations, and consent to their application to the ships of such state, and that thereupon the Queen, by order in council, might direct that such regulations should apply to ships of such foreign state when within or without British jurisdiction. The act further provided that whenever an order in council should be issued applying any regulation made under it to the ships of any foreign country, such ships should in all cases arising in British courts be deemed to be subject to such regulations, and for the purpose thereof be treated as British ships. Historically, we know that before the close of the year 1864, nearly all the commercial nations of the world had adopted the same regulations respecting lights, and that they were recognized as having adopted them. These nations were the following: Austria, the Argentine Republic, Belgium, Brazil, Bremen, Chili, Denmark, Ecuador, France, Great Britain, Greece, Hamburg, Hanover, Hawaii, Hayti, Italy, Lubeck, Mecklenburg-Schwerin, Morocco,

It must bo conceded, however, that the rights and merits of a case may be governed by a different law from that which controls a court in which a remedy may be sought. The question still remains, what "was the law of the place where the collision occurred, and at the time when it occurred. Conceding that it was not the law of the United States, nor that of Great Britain, nor the concurrent regulations of the two governments, but that it was the law of the sea, was it the ancient maritime law, that which existed before the commercial nations of the world adopted the regulations of 1863 and 1864, or the law changed after those regulations were adopted? Undoubtedly, no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nations, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which liave the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which when generally accepted became of universal obligation. The Rhodian law7 is supposed to have been the earliest system of marine rules. p. 188It was a code for Rhodians only, but it soon became of general authority because accepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Amalphitan table, of the ordinances of the Hanseatic League, and of parts of the marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. And it is evident that unless general assent is efficacious to give sanction to international law, there never can be that growth and development of maritime rules which the constant changes in the instruments and necessities of navigation require. Changes in nautical rules have taken place. How have they been accomplished, if not by the concurrent assent, express or understood, of maritime nations? When, therefore, we find such rules of navigation as are mentioned in the British orders in council of January 9tb, 1863, and in our act of Congress of 1864, accepted as obligatory rules by more than thirty of the principal commercial states of the world, including almost all which have any shipping on the Atlantic Ocean, we are constrained to regard them as in part at least, and so far as relates to these vessels, the laws of the sea, and as having been the law at the time when the collision of which the libellants complain took place.

The consequences of this ruling are decisive of the case before us. The violation of maritime law by the Berkshire in carrying a white light (to say nothing of her neglect to carry colored lights), and her carrying it on deck instead of at her masthead, were false representations to the Scotia. They proclaimed that the Berkshire was a steamer, and p. 189such, she was manifestly taken to be. The movements of the Scotia were therefore entirely proper, and she was without fault.

On the 7th of November, 1866, the Cunard steamer Java, a screw-steamship of large size, drawing nineteen feet water, and about 360 feet long (more than usual length), entered Boston harbor (a diagram of part of which is on a page following), about noon, in fine, clear weather, the tide being about one hour’s ebb, and the wind blowing a three or four knot breeze from the west.. Her berth and point of destination was a wharf at East Boston, about 2000 feet east of the Boston Commercial Wharves. Her proper course in coming up from what is called the Upper Middle until she arrived within about a mile of the Commercial Wharves, and p. 190eeven-eighths of a mile from her own dock, was about northwest by west. At this point, a direct course to her dock would require her to change her course about two points more to the north. But almost directly in her path, a little to the right of it, lay at anchor a large school-ship for the instruction of boys, nearly two-thirds of the distance between her and her dock, and about 17 feet out of water. In getting into her berth she could go either to the right or to the left of this school-ship. The main expanse of water (2000 feet wide) was to the left of the school-ship, but there was a sufficient channel, and one recognized on charts as such, of about 500 feet in Width, at that period of tide, to the right of it. Her most direct course would have been to the left, and this was the one by which the Cunard steamships more usually went in; but they had, more than once, it was testified, gone in on the right, as other steamships not unfrequently did, and on this occasion the pilot chose the right, for the reason, as alleged, that several vessels were lying at anchor to the left or west of the school-ship, along in front of the East Boston docks; and he judged that he could get the Java more easily into her berth by going to the right than on the other side. His idea was that owing to her length, if going on the left side the vessel could not have turned herself round without aid. He had scanned the channel about a mile below the school-ship, and saw nothing opposing.

It is a well-settled rule of admiralty law, one enforced by p. 193statute,* that if a steamer approach a sailing vessel, the steamer is required to take the necessary measures to avoid collision; and if collision occurs, and it is not shown to have been inevitable, the steamer is, primd, facie, in fault.f Inevitable accident is not simply when it is too late, but it. must appear that its being too late was not the fault of either side. It must be understood to mean “a collision which occurs when both parties have endeavored, by every means in their power, with due care and caution, and a proper display of nautical skill, to prevent its occurrence.’’^ It is an equally settled rule that a steamer, in entering a harbor, is bound to great caution. The vigilance is thrown on her. Ordinary care will not excuse her. Steamers, in such instances, have been held in fault for not using precaution, although they may have done their utmost at the time.§ If the night is too dark to distinguish a small vessel in season, a large steamer should not attempt to go down the harbor. || This court indeed always holds a steamer responsible for the selection of her course. If she takes an unusual course, or one that involves more risk than another, when she has an election, or voluntarily puts herself in a position where, if a sailing vessel shall happen to come in the way, she cannot avoid her, or cannot do so without extreme measures on her part, she is responsible for the damage. And, in such cases, it is not an excuse to show, that but for some mere error, not a fault, in the other vessel, or some accident to her, the collision might not have occurred; it not being made clear that the collision was occasioned by a fault of the other vessel to which the course taken by the steamer did not contribute.^ Now, to apply these principles to this case, the Java had the usual broad channel, and deliberately elected to go through a narrow passage, very seldom used by screw-steamers of her p. 194length and draft, for her own convenience solely. In doing this, she took upon herself the risk, if ill consequences ensued. Such a vessel as she was—a steamer of great length and draft, for which the passage inside was hazardous, in case any craft should be in her way there—ought not to have gone through that passage unless she knew that the passage was clear.

The facts show due care on the part of the Java. Neither vessel was seen by the other till the collision was inevitable. p. 196The school-ship concealed each vessel from the other. This fact also determines the course of the two vessels.

The Circuit judge assumes that the Java might reasonably have expected to meet the schooner where, and as she in fact met her. This was an error arising from neglect to observe the proved fact, that the pilot, only ten minutes before, p. 197had scanned tlie whole passage and found it clear. There was an extreme improbability that any vessel could come into the passage unobserved. Any vessel under sail must have been seen, and any vessel, except upon the exact line taken by the schooner, would have been seen. The collision was impossible, except by exactly such a combination of circumstances as occurred. Such a combination, so improbable, that the Java was not bound to govern her course by anticipating it.

It is contended that the Java ought to have anticipated p. 199the possibility of a small vessel lying behind the school-ship. The answer is, that she took every reasonable precaution which the circumstances required. She proceeded very slowly, only two knots an hour; she had lookouts posted in every proper place; as soon as the schooner was seen, she took every means in her power to stop and back and avoid the collision. How could she anticipate the possibility of a vessel lying behind the school-ship, without sails hoisted, incapable of being seen in a bright, clear day, drifting along helplessly with the tide/ready to drop under the Java at her approach ? Is it not applying too severe a rule to the Java, to require her to anticipate all this, and to require the schooner to anticipate nothing?

Damages were claimed in the libel in this case, which wag filed in the District Court by the owners of the steamtug Gladiator, to recover compensation for injuries the tugboat received on the eleventh of January, 1867, by a collision which occurred on that day in the Mississippi River at the Southwest Pass, between the Gladiator and the steamship Merrimac, of the burden of two thousand tons, in tow of two tugboats, to wit, the Calhoun, of five hundred tons, lashed to her starboard side, and the Harry Wright, of the same tonnage, lashed to her port side. They instituted the suit in rem against the steamship and the two tugs which had her in tow, and they charged in the libel that the damage to the Gladiator was done by the three steamers made respondents in the libel. Service was made by seizing the three respondent steamers, and the respective owners of the same appeared and filed separate answers. By leave of court a bond for value was given in each case, and each of the respondent steamers was released when the bond for value was filed. Testimony was taken on both sides and the parties went to hearing, and the District Court entered a decree dismissing the libel, and the libellants appealed to the Circuit Court, where the parties were again heard, and the Circuit Court affirmed so much of the decree as dismissed the libel as to the two steamtugs, but reversed the decree as to p. 201the steamship, and pronounced for damages as against her in favor of the libellants.

By the pleadings and evidence it appears that the steamtueo of the libellants was made fast to the larboard side of the ship Celuta, bound to the port of New Orleans, and which, in endeavoring.to pass up the river, had grounded some twelve hours before on the bar of the Southwest Pass. Her master had employed the Gladiator and the steamtug Switzerland, which was lashed to the starboard side of the Celuta, to assist the crew of the ship in getting her over the bar, and at the time of the collision these three vessels, lashed together in the manner described, were lying on the bar, the port side of the Gladiator being at the distance of seventy to seventy-five feet from a certain buoy indicating the place on the bar where was a certain “ wreck ” which entirely obstructed navigation. Under these circumstances the Gladiator was unable to move, as she was lashed to the ship Celuta and the ship was aground on the bar, and it was while the Celuta and her two steamtugs were in that situation that the steamship Merrimac and the two steamtugs which had in her tow, also bound to New Orleans, came up and attempted to pass between the Gladiator and the buoy which indicated the location of the wreck, and the pleadings and evidence show that the steamtug Calhoun was lashed to p. 202the port side of the steamship, and having a considerable list to port her starboard guard was elevated and passed over the rail of the Gladiator, striking the latter vessel with great violence, raking her from stem to stern, and carrying away all herupper works. By the collision the cabin, cook-house, pilot-house, and engine-room of the Gladiator were entirely smashed and carried from the port side over to the starboard side of the steamtug. Iler boiler was knocked out of place, her steam-drum broken to pieces, her lever and exhaust-pipe broken, and much other damage was done to the engine and other parts of the steamtug, as more fully set forth in the record.

* 7 Wallace. 58. f Revised Statutes of Louisiana, 1856, pp. 403, 404. p. 203State pilot laws which compel the owners of vessels to pay half-pilotage in cases where the pilot offers his services and they are refused, where the law is not enforced by any penalty, are not regarded as compulsory, and therefore the fact that the vessel was in charge of a pilot under such a law at the time of the collision is no defence to a libel for damages, if it appears that the collision was occasioned by negligence or unskilful navigation.* Port regulations are supposed to be known to the shipowner before he sends his vessel on the voyage, and the general rule is that in sending her to any particular port he elects to submit to the lawful regulations established at that port, and that the vessel, in case she unlawfully collides with another vessel engaged in lawful commerce, shall be responsible.f Where the law is not enforced by any penalty it is not regarded as compulsory, and if not compulsory the defence that the ship was in charge of a pilot is not a valid defence, which is all that need be said upon the subject.^

The ship Helen Cooper, lying at her dock in the East River, at Brooklyn, near the gas-works there, on Saturday the 17th of February, 1866, with her stern towards the river but ready for sea, applied to the captain of the steamtug Mabey to tow her out. Immediately opposite, at pier 45, on the New York City side, was lying at the same time and well in her dock, another ship, the Isaac Chapman. The wind on that day was somewhat high, the East River on the Long Island side of it was filled more or less with ice, and the day generally was not favorable for a sailing vessel’s getting out of that part of the East River for sea. The Isaac Chapman, at least, like the Helen Cooper, was on that day and at that hour ready for sea, but was afraid to go out, and remained waiting till the river by slack water should be made less dangerous from ice. Other sailing vessels, however, in other parts of the East River and at a different hour sailed, on the 17th, and many from the North River. The captain of the Mabey when desired to tow out the Helen Cooper, remarked upon the state of the tide and unpropitious character of the day generally, and advised her owners to wait till the tide changed and the river got more free of ice. The owners seeing no danger, and wanting the Mabey to get off, resolved to go, and ordered the tug to proceed. “We wdll take,” said their agent, “ the risk of all accidents.” Accordingly the Mabey attached her hawser and pulled the Helen Cooper out, stern foremost, into the middle of the stream; cutting the hawser there and attaching it in a new way. p. 206From this point and before the operation of getting her under the intended way was completed, she shot straight into the Isaac Chapman, near the main rigging, cutting her down to the water’s edge, carrying away her back-stays and mizzen-stay, mashing her boats, starting her deck, and disabling her generally.

“ That they had a Sandy Hook pilot on board; that by his direction the tug took the ship in tow by hawser; that at this time the ship was lying at the wharf with her bows up and her stern out; that the hawser was made fast to her bows on the port side of the ship, and passed along aft, and there made fast by stops, and that the ship was towed stern foremost into the stream; that, as she passed out into the stream, the stop at the p. 207stern was cut, so as to allow her bow to turn around and head down the river; that while in the act of turning, both the ship and tug were unexpectedly caught in an immense field of floating ice, which, in spite of the tug, set both the ship and tug towards the Now York shore; that, finding that the field of ice was too powerful for the tug to control, both anchors of the ship were let go, with a large amount of chain, notwithstanding which, the ice carried the ship and tug across and down the river, so that the head of the ship having finally got pointed down the river, was carried by the ice so that her bows were carried inside pier 45, and into the side of the Chapman ; thus causing any damage that was done. That the field of ice in which the ship became entangled was too powerful to bo controlled; and that all which she could do, was to drop her anchors with a view to stop her headway; which, however, being done, failed to bring her up; that the collision was thus the result of inevitable accident; or if not of inevitable accident, then certainly that it arose from no fault of the ship, or her officers, or crew.”

It is plain from the general aspect of the case that the ship p. 211desired as soon as possible to get out of the ice into the clear water, which led them to go over to the New York side, and then the tug had not sufficient power in that narrow space to keep the ship off from the docks.

Different views, however, were entertained by those in charge of the ship Helen Cooper, which was also loaded and ready to sail for a Southern port. By the answer as originally filed it appears that she was lying at the wharf of the gas-works, on the Brooklyn side of the river, with her head towards the shore and her stern towards the stream; that while in that situation those in charge of the steamtug R. L-Mabey made fast to her bows on the port side by a hawser p. 213which was passed aft and there fastened by stops, and by that means she was towed into the stream stern foremost, the tide having just commenced to ebb, and the statement of the answer is that as the ship passed out into the stream the stop at the stern was cut so as to allow the ship to turn and head down the river, and that both the ship and the steamtug, while the ship was in the act of turning, were unexpectedly caught in an immense field of floating ice, which, in spite of the power of the steamtug, set both vessels towards the opposite shore and carried them down and across the river so that the bows of the ship passed inside of pier forty-five and struck the side of the ship of the libellants and caused whatever damage the libellants’ ship received by the collision. Proof of the collision, therefore, is unnecessary, as the allegation is admitted, but the respondents allege that the ship is not liable, as the collision was the result of inevitable accident.

Prompt appearance was also entered by the claimant of the steamtug, and he filed a separate answer, in which he alleges that the master of the steamtug when applied to on that day to tow the ship of the respondents to sea informed the owners that it was not safe to proceed to sea in the then condition of the weather and tide. Had he himself been governed by that opinion the case of the steamtug would be quite different, but the proofs show that he yielded to the importunity of the owners or agent of the ship and took her in tow, the owners of the ship agreeing to assume the risk of all accidents and dangers. Apart from that he also charges that the collision was occasioned by disobedience of the orders of the pilot and faulty navigation of the ship; that the order of the pilot was not to cast off the hawser by which the ship was moored but only to slacken it until the head of the ship was swung round; that the order was dis-' obeyed, and that the hawser was cast off before the ship came round, which had the effect to set the ship over to the opposite shore towards the ship of the libellants; and he also charges that those in command of the respondents’ ship, when she had reached the middle of the stream “ and p. 214was headed down stream,” put her helm hard aport so that the ship took a sudden sheer to starboard, which caused her to run into the ship of the libellants.

Objection is made that the owners of the steamtug could not properly appeal to this court, as they did not formally appeal from the District Court to the Circuit Court, but it is not necessary to decide that question, as it is quite clear that the decree must be affirmed against the tug as well as the tow. Nor is the court prepared to admit the validity of the objection, as the record shows that the owners of the tow p. 215signed a written stipulation before the decretal order was entered in the District Court, that they, as the owners of the ship, would assume the entire conduct of the defence and that they would answer and pay whatever sum the libellants should recover in the case against both vessels. Undoubtedly the general rule is that a party who does not appeal cannot be heard in opposition to the decree. Still it appears in this case that an appeal from the District Court to the Circuit Court was taken from the entire decree, and by a party who represented the entire interest of the losing party in the suit. Well-founded doubt may, perhaps, arise as to the regularity of the proceeding, but it is not necessary to solve that doubt in the present case.