Joseph P. Bradley

“ The weight of authority is in favor of the jurisdiction. Indeed, there is an absence of authority against it, even in England. There is no case on record known, in which the Court of Admiralty has refused to entertain jurisdiction over the subject, or in which the courts of common law have prohibited it. In admiralty commissions, insurance is usually mentioned as a matter over which jurisdiction is to be exercised; and in Scotland, the Court of Admiralty, under similar commissions, constantly entertains such jurisdiction. ”

“ If, on the other hand, the jurisdiction of the admiralty over insurance should be established, the great advantage of its process, the celerity of its proceedings, and its other advantages, will cause it to be largely resorted to, and the thirty-seven District Courts, and all the Circuit Courts, being subject to one rule, uniformity of principle and decision will be established through all the States, the advantages of which in a nation of such commerce as this, and were contracts of insurance are made, a thousand or more every day, cannot be overstated. ”

“ And then the contract of insurance, and the rights of the parties arising therefrom, are affected by and mixed up with all the questions that can arise in maritime commerce,-jettison, abandonment, average, salvage, capture, prize, bottomry, &c.
Perhaps the best criterion of the maritime character of a contract is the system of law from which it arises and by which it is governed. And it is well known that the contract of insurance sprang from the law maritime, and derives all its material rules and incidents therefrom. ”

“ That they vary in different places is a source of much confusion and embarrassment, and has been greatly lamented by jurists. This court cannot, of course, influence courts of other countries directly, but it can do much towards establishing uniformity of law and practice in the construction and administration of the law of insurance in this country by exercising jurisdiction over the subject. It can, by so doing, establish rules and principles for the regulation of this contract, which will bind all the other courts of the United States. ”

“ A policy of marine insurance is not a maritime contract within the meaning of that clause of the Constitution which delegates to the judicial power of the United States cognizance of 'all cases of admiralty and maritime jurisdiction.'
1. Because this clause is to be construed with reference to the restricted jurisdiction of the admiralty as recognized both in this country and England at the time when the Constitution was adopted. And admiralty has never claimed jurisdiction over insurance in England. ”

“ If the jurisdiction, known to have been exercised by the admiralty courts before the Revolution, is to be taken as the rule, it must be admitted that every case which can properly be defined as maritime, is a proper subject for the jurisdiction of the United States District Court ”

“ In all other countries bordering on the Mediterranean or the Atlantic the marine courts, whether under the name of admiralty courts or otherwise, are generally invested with jurisdiction of all matters arising in marine commerce, as well as other marine matters of public concern, such as crimes committed on the sea, captures, and even naval affairs. ”

“ It is said that a cargo insured might be destroyed while ashore; and it is asked if the Admiralty Court would then exercise jurisdiction. The answer is, that undoubtedly it would, if insurance is a maritime contract. The accident of the loss happening on land, does not alter the nature of the contract, if the cargo is covered by the policy.
It is said that the doctrine of De Lovio v. Boit is unsound, has not been approved of by the profession generally, and that it has been overruled by this court. ”

“ But the Supreme Court held that it could not have been so intended, and that the true construction was, that the jurisdiction embraced all suits of a maritime nature not properly cognizable at common law, and, consequently, all those relating to maritime matters over which the common law had usurped or otherwise obtained jurisdiction; thus extending the jurisdiction to the largest limit ever claimed for it. ”

“ The next step in the system was that of insurance upon premium. Capitalists, familiar with the risks of navigation, were found willing to guaranty against them for a small consideration or premium paid. This, the final form of the contract, was in use as early as the beginning of the fourteenth century, [67] and the tradition is, that it was introduced into England in that century by the Lombard merchants who settled in London and brought with them the maritime usages of Venice and other Italian cities. ”

“ That difficulty arose from the fact that the court was constituted of two judges, between whom a difference of opinion would be likely often to occur, and thus block the wheels of justice. Other things being equal, a division of opinion is far more probable between two persons than is an equal division between any other even number persons. This renders it desirable, when a court consists of the former number, to have some method provided for overcoming the intrinsic difficulty. ”

“ The case, as thus brought before us, presents the question, whether the District Court for the District of Massachusetts, sitting in admiralty, has jurisdiction to entertain a libel in personam on a policy of marine insurance to recover for a loss. ”

“ So in The Two Friends, [25] per Bee, J. (A. D. 1786) , it was held that admiralty extended only to maritime causes, and did not embrace 'any transactions or contracts which arise on land.' So again in 1784, it was held in Pennsylvania that admiralty jurisdiction was confined to 'things done upon the seas.' [26] A shipwright cannot sue in the admiralty. [27] Material-men could not sue there either. [28] Nor could contracts for necessaries be sued, if furnished before the voyage was begun. Nor ransom bills. Nor charter-parties. ”

“ Such questions are, by consent, as matter of course, and from conviction of counsel that justice cannot be attained in any other way, referred to private examination; but a law can hardly be considered as perfect which is not possessed of adequate powers within itself to complete its purpose, and which requires the extrinsic aid of personal consent.' [65] The contrivances to which Lord Mansfield resorted to remedy in a measure these difficulties are stated by Mr. Justice Parke in the introduction to his work on insurance. ”

“ Is it said that the distinction is in the fact, that, in one case the vessel is water-borne or afloat, and in the other not? Suppose a policy upon a cargo temporarily landed by reason of a disaster to the ship, and, while on shore, is destroyed by fire, or plundered. ”

“ Justice Wayne, 5 Howard, 454.↑ 1 Dallas, 95.↑ Benedict, Admiralty Practice, 88, note, contains a memorandum of a commission to Roger Mompesson, dated April, 1703, appointing him judge of admiralty in these colonies. Maine and Nova Scotia then were parts of the Province of Massachusetts Bay.↑ See Elliot's Debates.↑ Bee, 200.↑ Bee, 375, 376.↑ Ib. 435.↑ Talbot v. The Commanders, 1 Dallas, 98.↑ Clinton v. The Brig Hannah and Ship General Knox, Bee, 419, per Hopkinson, J. (A. D. 1781) .↑ O'Hara v. Ship Mary, Bee, 100, per Bee, J. (A. D. 1798) .↑ Ib. ”