OF THE JURISDICTION OF ADMIRALTY OVER CONTRACTS OF MARINE INSURANCE.

MARINE insurance concerns vessels, their ownership and navigation; cargoes, charter-parties, contracts of affreightment, profits and commissions on goods transported by water; carriage of passengers, damage by the perils of the seas, fire. and collision; hypothecations, salvage, wages, and provisions; average, contributions, and jettisons; questions of prize, and all other maritime matters: and exclusively so, unless in some exceptional case, as the protection of cargo landed at a port of necessity, when the policy covers it, though on land.

All these are maritime matters, within the jurisdiction of a maritime court, and it would seem to be a corollary, that a contract, relating to them exclusively, should be maritime, and governed by the same laws, and subject to the same jurisdiction.

On the Continent of Europe, the jurisdiction of maritime courts, over contracts of marine insurance, has never been questioned, and is constantly exercised. In Scotland, suits on policies are frequently, if not usually, brought before the Court of Admiralty, and in the appeals to the House of Lords, taken in many cases, no question has been raised as to the jurisdiction. In England, the cognizance of policies of insurance was formerly claimed by the Court of Admiralty, and it may be considered as an open question, so far as the written law shows, whether that court would not now entertain a suit on a policy. There is no case reported in which the question has been decided or discussed; though it seems to have been taken for granted that the English Admiralty would not entertain the jurisdiction.

So far as foreign practice and authorities are entitled to respect, there can be no doubt that marine insurance is considered to be a maritime contract, and a proper subject for the cognizance of a court vested with jurisdiction over maritime causes. It might, therefore, have been anticipated, that when the question came before the admiralty courts of the United States, vested with juris

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diction over all maritime cases, the decision would be in favor of the jurisdiction.

This does not seem to have happened for more than twenty years after the adoption of the Constitution. As the courts of common law also exercise jurisdiction over contracts of insurance, and as the plaintiffs in suits thereon would naturally prefer not to waive the benefit of a trial by jury, and of a trial in their own courts, and as the lawyers of that day were brought up according to and by the common law, this is not surprising. No case is found, in the reports of any of the courts of the United States, of an action in the Admiralty, on a policy of insurance, until the year 1815, nor on a charter-party, nor for freight, till much later.1

At the October term of the Circuit Court for the District of Massachusetts, in the year 1815, the question was first presented by a libel on a policy of insurance. A plea to the jurisdiction was interposed, and the result was the opinion of Judge Story, in the case of De Lovio v. Boit.2

This celebrated opinion amounts as nearly to a demonstration of the positions sought to be maintained as the nature of the case would admit. It never has been answered, or attempted to be, though, occasionally, doubts have been expressed, and intimations made, that it might not be followed to its full extent.

It rests on a few simple propositions:

First. That the English Court of Admiralty, as well as all other maritime courts, has exercised jurisdiction over maritime contracts.

Second. That marine insurance is, and has always been held to be, a maritime contract.

Third. That the Constitution of the United States authorizes the establishment of courts to exercise jurisdiction over all admiralty and maritime cases.

Fourth. That Congress has established courts to exercise such jurisdiction, concurrently with courts of common law, and that consequently these courts have jurisdiction over contracts of marine insurance.

The argument, drawn from the practical jurisdiction of the English Admiralty at the time of the Revolution, was fully considered

1 See The Spartan, Ware, 149, decided in 1829; The Volunteer, 1 Sumn. 580, in 1834, and 6 How. 344, in 1848.

2 2 Gall. 398.

and answered, and the conclusion arrived at, which has been so many times subsequently affirmed by the Supreme Court, that it must be considered an axiom, that the jurisdiction exercised by the English court at that time, affords no rule or precedent for the exercise of the admiralty jurisdiction vested in the courts of the United States.

After the plea to the jurisdiction was overruled, in De Lovio v. Boit, no appeal was claimed, and the parties proceeded to take evidence. The libellant appears not to have succeeded in proving his case, as in May, 1817, the libel was dismissed with costs for the respondent.

How this decision was received at the time is not now known. As the Supreme Court was then constituted, it is probable that the jurisdiction would have been maintained on appeal. Mr. Chief Justice Marshall affirmed, in the case of The Little Charles,1 in 1819, that "The courts of the United States have never doubted their right to proceed under their general powers as courts of admiralty, where they are not restrained from the use of these powers by statute," and such appears to have been the opinion of the court at the time, according to Judge Story. The occurrence of differences of opinion as to the extent of the admiralty jurisdiction is of much later date. It first appears pre-eminently in Ramsay v. Allegre, in 1827, in the dissenting opinion of Mr. Justice Johnson, with whom have concurred, at different times, Mr. Justice Baldwin and Mr. Justice Daniel, and others to a less extent; but the majority of the court have uniformly held that the practical jurisdiction of the English Admiralty affords no rule for the jurisdiction vested in the courts of the United States by the Constitution and by Congress.

In 1822, another libel on a policy of insurance came before the Circuit Court for the Massachusetts District, Peele v. Merchants' Insurance Company. The respondents appeared under protest to the jurisdiction, but did not argue the question, intending to do so on appeal.

A decision on the merits was in favor of the libellants, and the respondents claimed an appeal to the Supreme Court. The usual bond was given for prosecuting the appeal, and the cause disappeared from the docket, and does not again appear in the Reports. It was not argued before the Supreme Court.

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In 1842, a libel on a policy of insurance was brought in the same district. Hale v. Washington Ins. Co.1 Mr. B. R. Curtis, subsequently a Justice of the Supreme Court, appeared for the respondents. No exception was taken to the jurisdiction, and the cause was argued and decided on the merits. Mr. Justice Story repeated his deliberate adherence to the doctrine of De Lovio v. Boit. He also stated that Peele v. Merchants' Ins. Co. went off without any decision in the Supreme Court; his belief that Mr. Chief Justice Marshall and Mr. Justice Washington would have sustained the jurisdiction; and that he had no reason to believe that a majority of the court were opposed to it.

No libel on a policy of insurance came before the court while Mr. Justice Woodbury, the immediate successor of Mr. Justice Story, was on the bench; but it is evident that he was prepared to sustain the jurisdiction. In Dean v. Bates,2 speaking of the admiralty jurisdiction, he said, "If that matter had been

for the recovery on some contract of admitted admiralty jurisdiction, such as to pay a ransom or an insurance, the District Court, by having jurisdiction in all civil cases of an admiralty character under the Act of 1789, could clearly sustain this libel."

In the case of Younger v. Gloucester Ins. Co., Judge Sprague held, "The jurisdiction of the admiralty over policies of insurance to be the settled law and practice of this court." In the same case, on appeal, Mr. Justice Curtis, declined to consider the question as open in the first circuit. It will be remembered that he was counsel for the insurers in Hale v. Washington Ins. Co., and that no question was raised as to the jurisdiction, and also that he declined to argue against the jurisdiction in Rae v. Cutler.

In the case of The Spartan, the learned Judge, speaking of the decision in De Lovio v. Boit, says, "I concur most fully in the doctrine maintained in that very learned and masterly opinion."

In the text-books on admiralty practice and jurisdiction, the jurisdiction of the court over contracts of insurance is generally asserted. See Dunlap's Adm. Pr. 43; Benedict, 8, 50, 147. On page 166, he says, "The contract of insurance against the perils

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of the seas is one that was suggested by and sprang from the hazards peculiar to ships and vessels in the pursuit of maritime commerce. In like manner the rights, duties, and liabilities, which are its characteristics, have always been regulated by the maritime law. It has always and everywhere been considered a maritime contract, and nowhere out of England has it ever been excluded from the admiralty jurisdiction. And in all the grants of jurisdiction, even in England, it is specially mentioned as a matter of admiralty jurisdiction."

Judge Conkling remarks (vol. 1, page 13): "The precise question, whether it (the jurisdiction) extends to contracts of marine insurance, remains yet to be definitively settled by the Supreme Court. But these contracts, relating as they do purely to maritime pursuits, and being eminently conducive, if indeed they are not to be regarded as indispensable, to the successful prosecution of navigation and commerce, it is not easy to perceive upon what ground they can consistently be excepted from the principles already established by that court." 1

In the decisions of the Supreme Court, and of the other courts of the United States, no other reference has been found to the contract of insurance as a matter of admiralty jurisdiction, except in Taylor v. Carryl,2 where Mr. Chief Justice Taney expressed doubt upon the subject which had not been presented, or referred to in the argument, and which he had evidently not examined.

Considering the authorities apart from the repeated decisions of the Supreme Court, that the admiralty jurisdiction of the District Court extends over all maritime contracts, and the universal admission that marine insurance is a maritime contract, we have this express authority in favor of the jurisdiction:

Three deliberate decisions of Mr. Justice Story, in point, from one of which an appeal was taken to the Supreme Court. The opinion of Mr. Justice Woodbury, that insurance is clearly a contract within the admiralty jurisdiction. The fact that Mr. Justice Curtis sustained the jurisdiction as a settled practice in the first circuit, and, as counsel, took no exception to it. The statement by Mr. Justice Story, of his belief that if the appeal before mentioned

1 See also note 1 Kent's Com. 370, in which "insurance" is mentioned as a matter of admiralty jurisdiction.

2 20 How. 585.