istration. In a given country there will or will not be a right of action for death in the admiralty according as the municipal law does or does not give the right.

Chief Justice Waite, delivering the opinion of the court in The Harrisburg,1 said:

"We know of no country that has adopted a different rule on this subject for the sea from that which it maintains on the land, and the maritime law, as accepted and received by maritime nations generally, leaves the matter untouched. . . . The argument everywhere in support of such suits in admiralty has been, not that the maritime law, as actually administered in common law countries, is different from the common law in this particular, but that the common law is not founded on good reason, and is contrary to 'natural equity and the general principles of law.' Since, however, it is now established that in the courts of the United States no action at law can be maintained for such a wrong in the absence of a statute giving the right, and it has not been shown that the maritime law, as accepted and received by maritime nations generally, has established a different rule for the government of courts of admiralty from those which govern courts of law in matters of this kind, we are forced to the conclusion that no such action will lie in the courts of the United States under the general maritime law. The rights of persons in this particular under the maritime law of this country are not different from those under the common law." 2

In The City of Norwalk Judge Brown, delivering the opinion of the District Court for the Southern District of New York, said: 4

"It was upon the recognition of this principle alone, as I understand, that in the case of The Harrisburg, 119 U. S. 199, 213, 7 Sup. Ct. Rep. 140, it was decided that no action could be maintained in a court of admiralty of this country for loss of life, aside from statutory authority; namely, because there is no rule on this subject belonging specially to the maritime law as such. It [the maritime law] leaves the matter untouched.' . . . And since the maritime courts in each country follow their own municipal law as regards giving damages for death, and inasmuch as by the common law of this country such a cause of action does not survive, the latter rule must, therefore, obtain in our courts of admiralty. In other words, it is the municipal law that on such a point determines the law applicable in a court of admiralty."

It is clear that there is a large class of questions, including the question as to whether there is a right of action for death, which,

while they form a part of the general maritime law of a nation and frequently are to be decided by its courts of admiralty, nevertheless are solved by reference to the municipal law thereof. In other words, a large part of that law is necessarily a part of the maritime law. In the field of rights that is common to both the municipal and maritime law there can be no modification or amendment, unless expressly confined to one, that does not affect both systems. All civilized maritime states must and do recognize that, in matters where there is no peculiar or special rule of the maritime law, the maritime law of a nation cannot be expected to adopt, in respect of the ordinary fundamental rights of person and property, any different rules than are prescribed by its municipal law. The concession that any portion of the admiralty law is identical with the municipal law involves the admission of the fullest right of change and modification, at least within the common ground. The municipal law, of course, may be altered at the will of the nation. To hold that the maritime law cannot, would be to create, at the first change in the municipal law within the common ground, a difference between the two systems. The truth is that within this field it is expected, and generally conceded, as observed by Judge Brown,1 that "the administration of the law in the maritime courts of different countries, therefore, though it might be the same in all that is peculiar to the maritime law, might in other respects differ widely, through the differences in the municipal law which in part enters into the adjudication of maritime causes."

As the question as to the right of action for death in the admiralty courts must be determined by reference to the municipal law, it follows that all the maritime states must recognize the right of each to give or withhold a remedy, according to the dictates of its municipal law, in respect of deaths occurring on the high seas, when its jurisdiction is invoked, whatever may be the nationality of the parties litigant.

If, therefore, there is any merit in the argument that as the admiralty jurisdiction rests on consent there is a limit to the changes which any one nation may make in its maritime law, at any rate, as far as foreigners are concerned, it has no applicability to the question under discussion.

It follows that according to the fundamental principles of the admiralty jurisdiction it is competent for France, by statutes and

1 The City of Norwalk, supra.

decisions, not only to confer a right of action for death on the high seas upon a foreigner against a French citizen, but also on a French citizen against a foreigner, and it is the duty of the admiralty courts of all countries, the United States included, to recognize the competency of the French courts so to do.

The enforcement of the libellant's right under French law would not be contrary to the policy of the laws of the United States. The mere fact that the general maritime law, as understood and practiced in the United States, affords no remedy for death does not warrant the inference that such an action is contrary to the policy of the laws of the United States.1 If it did, a right accruing under foreign law could never be enforced if the law of the forum did not give a similar right, whereas in fact, as has been seen, the law is clear, at least in the federal courts, that it is immaterial whether the law of the forum gives a similar right or not.

If the enforcement of the right acquired by the libellant under the French law conflicted with any right conferred on the defendant by the law of the United States, an American admiralty court, it is conceded, ought not to enforce the libellant's right and thereby abrogate or nullify the rights acquired by the defendant, though a foreigner, under the law of the United States.

Thus, navigation regulations were long ago enacted by Congress the effect of which was to give immunity from liability in case of collision to all United States citizens who conformed to those rules, and a right of action against those who violated the rules. As said by Mr. Justice Strong in The Scotia: 2

"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 prescribed by the government to which it belonged. And if, in consequence, collisions 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 on 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."

So, where a suit was brought in an American admiralty court for damage received during the voyage by cargo shipped by an Amer

1 Evey v. Mexican Cent. Ry. Co., 81 Fed. 294, 304.

2 14 Wall. (U. S.) 170. See also The Belgenland, 114 U. S. 355, 370; The State of Alabama, 17 Fed. 847, 855.

ican citizen on a British ship for transportation from a port of the United States to a British port under a British bill of lading signed by a British master, it was held that the provision in the bill of lading exempting the carrier in case of negligence of his servants would be no defense, irrespective of the question of public policy. The court held that although there was a good defense under the general maritime law of Great Britain, there was none under the general maritime law of the United States, and that the latter, viewing the transaction in its character of a tort upon the high seas, must prevail.1

Obviously there the court could not extend to the defendant the immunity granted him by the British maritime law, because the American law had given the plaintiff a right of action of at least an equally high nature. Therefore, if the fact that the maritime law of the United States gave no right of action for death on the high seas was equivalent to an express right of immunity from liability to suit, there is no reason to doubt that it gave such right to every one, citizen or foreigner alike, and admiralty courts of the United States should not, by enforcing a right of action for death on the high seas given by the law of France, violate the right conferred by the law of the United States on the defendant. But it would be monstrous to hold that because no law binding on the admiralty courts of the United States has provided a civil remedy for death, therefore a right was conferred wrongfully or negligently to cause death, especially when the very acts which caused the death would, if followed by injuries merely, give rise to a right to recover damages.2

Because the law in providing a remedy for injuries caused by the negligence of another has failed to provide a remedy for the greatest of all injuries, death, it can hardly be contended that a general right is conferred on every one to be as negligent as he pleases, providing his victim is killed and not merely injured.

The result must be the same whether the statutory action for death proceeds upon the theory of a right accruing at the moment of death and passing by succession to the personal representative, or upon the theory of a new and independent right of action created for the benefit of those who suffer pecuniary loss by reason of the death. As against the deceased, it is clear that no one has any right to do what is liable to cause injury, whether attended with

1 The Brantford City, 29 Fed. 373, 382.

2 Stewart v. B. & O. R. R. Co., 168 U. S. 445.

death or not. It would seem preposterous to hold that as against those suffering pecuniary loss from the death there is a right to do such an act because the law does not give them a remedy for their loss. What the law denounces as wrongful because of its effect on A to the extent of clothing A with a right of action cannot be considered rightful as to B who has no right of action, so that the person committing the act wrongful as to A must be regarded as possessing an absolute and positive right to do the act as against B. It cannot upon any sound principle of public policy be held that the law gives any one the right under any circumstances wrongfully to cause death. The discussion, of course, assumes that the right sought to be enforced is not in the nature of a penalty, such a right on familiar principles not being enforceable in a foreign jurisdiction.

That the mere absence of remedy is by no means equivalent to clothing the offender with positive immunity is aptly illustrated by the well-considered case of The Avon.1 A ship belonging in the Province of Ontario and owned there, having collided with an American ship in the Welland Canal, was, on subsequently coming into an American port, libelled by the owners of the American ship in a court of admiralty of the United States. It was objected by the claimants that as the canal was exclusively in British territory and was exclusively British property, and as there were no admiralty courts in the Province of Ontario where the canal was located, and no admiralty jurisdiction in force there, the ship was not liable to seizure, at least as against a citizen of Ontario who had bought her after the collision and before the libel was filed. The court, however, sustained the libel, holding that although the lex locus delicti was exclusively within British territory, it was nevertheless within the jurisdiction of an American admiralty court, and that had the "collision occurred between two American ships, and no transfer had been made within the Dominion of Canada," there would have been no question of the right of the libellant to hold the vessel. The court conceded that if from the absence of the admiralty jurisdiction in Ontario it was to be inferred "that the principle of maritime law now sought to be enforced, is excluded by that of Canada, the remedy in rem should be denied." But it was held to be "not enough per se that a collision happens where there is municipal power to exclude the

1 Brown Adm. (U. S.) 170.