“ If a restricted admiralty jurisdiction, though ever so impotent for good or prolific of inconvenience, has been imposed by the Constitution, either or both those evils must be of far less magnitude than would be attempts to remedy them by means subversive of the Constitution itself, by unwarranted legislative assumption, or by violent judicial constructions. The pressure of any great national necessity for amendments of that instrument will always insure their adoption. ”

“ Every nation must and will abide by its own municipal laws, which various accidents conspire to render different in almost every country in Europe. We permit some kinds of suits to be of ecclesiastical cognizance which other nations have referred entirely to the temporal courts, as concerning wills and successions to intestates' chattels; and perhaps we may, in our turn, prohibit them from interfering in some controversies which, on the Continent, may be looked upon as merely spiritual. In short, the common law of England is the one uniform rule to determine the jurisdiction of our courts ”

“ The words of the grant in the Constitution are, 'to all cases of admiralty and maritime jurisdiction.' They are words of the most comprehensive import; and from the language used, as well as from the reasonableness of the thing, we say that the people must be presumed to have intended a jurisdiction which was needful and proper to carry out, or to aid in carrying out, the great commercial purposes of the Constitution. In adopting the Constitution, the people intended to confer upon the federal government all the powers needful to accomplish the purposes for which it was formed. ”

“ It is altogether a mistake, as some seem to argue, that force and a direct injury are necessary to sustain proceedings in tort, either at law or in admiralty, for damages by common carriers. So little does the law regard, in some cases, the distinction between nonfeasance and misfeasance, in creating a tort and giving any peculiar form of action for it, that in some instances a nonfeasance is considered as becoming misfeasance ”

“ There is no jury trial in his court, except at his discretion; and he never orders an issue to be tried before a jury, except when the evidence is so doubtful that he can come to no satisfactory conclusion, and he then puts upon a jury the responsibility of guessing. The United States courts are invested by the Constitution with this power, and they exercise it, sitting as circuit courts in the different States. ”

“ State courts are governed by the common law, and not the law maritime. The decisions of one State, moreover, are not binding on another, and thus there would be no uniformity. Whilst the regulation of the commerce of the country was in the hands of the federal government, if its courts had no jurisdiction over commercial questions which might arise out of that commerce, there would be one law in New York, another in Massachusetts, and a third in some other State. ”

“ It is a mistake, likewise, to suppose, as some have, that the rule of damage is thus higher in admiralty than at common law, or when counting on the tort rather than contract. The only difference is, that in admiralty, if counting on the contract, doubts exist whether a recovery can be had on the precedents, while, if counting on the tort, no doubt exists, the place of the tort being clearly on the sea, and within admiralty jurisdiction. ”

“ Power can never be delegated which the authority said to delegate itself never possessed, nor can such power be indirectly exercised under a pretext of controlling or supervising those to whom it could not be legitimately delegated. The colonial vice-admiralty courts, as regular parts of the English admiralty, created by its authority, could by their constitution, therefore, be invested only with the known and restricted jurisdiction of the former. ”

“ The word 'jurisdiction' is necessarily used in direct reference to some court, and the reading of the clause, therefore, is, 'all cases of which admiralty and maritime courts have been accustomed to exercise jurisdiction'; the words 'admiralty' and 'maritime' being synonymous,-the one describing the jurisdiction by the name of the court, the other by the nature of the causes tried in it.
The jurisdiction of courts is necessarily a matter of artificial law, dependent upon convenience, circumstances, policy; and is usually parcelled out by positive regulations. ”

“ The rule which makes him an insurer against every thing but the act of God or the public enemy makes him an insurer as to performances only which are consistent with his undertaking as carrier. A common carrier of travellers is bound to the preservation of the accustomed baggage of the traveller, because of the known custom that travellers carry with them articles for their comfort and accommodation, and the price for which the transportation is undertaken is graduated on that presumption ”

“ Whilst I am impressed with the strong necessity that exists for guarding against fraud or neglect in those who, by holding themselves forth as fitted to take charge of the lives, the health, or the property of the community, thereby invite the public trust and reliance, I am not prepared to say that there can be no limit or qualification to the responsibility of those who embark in these or similar undertakings,-limits which may be implied from the inherent nature of those undertakings themselves, or which may result from express stipulation. ”

“ And if case lies at common law on such a state of facts, there seems to be no reason why a libel in admiralty may not lie for the wrong, whenever, as here, it was committed on the sea, and clearly within admiralty jurisdiction over torts. For the admiralty is governed by like principles and facts, as to what constitutes a tort, as prevail in an action at law for damages, and its ingredients are the same, whether happening on land or water. ”

“ And we agree with the court in the case of Hollister v. Nowlen, that, if any implication is to be indulged from the delivery of the goods under the general notice, it is as strong that the owner intended to insist upon his rights, and the duties of the carrier, as it is that he assented to their qualification.
The burden of proof lies on the carrier, and nothing short of an express stipulation by parol or in writing should be permitted to discharge him from duties which the law has annexed to his employment. ”

“ And thus the common law and the statutes of 13 Richard II., cap. 15, and of 15 Richard II., cap. 3, confine and limit their jurisdiction to matters maritime, and such only as are done upon the high sea.'
In this cursory view of Lord Hale of the admiralty jurisdiction, there is one feature which cannot escape the most superficial observation; and that is, the extraordinary care of this learned judge to avoid every implication from uncertainty or obscurity of terms, which might be wrested as a pretext for the assumption of power not clear, well founded, and legitimate. ”

“ If it is competent at all for the carrier to stipulate for the gross negligence of himself, and his servants or agents, in the transportation of the goods, it should be required to be done, at least, in terms that would leave no doubt as to the meaning of the parties.
The respondents having succeeded in restricting their liability as carriers by the special agreement, the burden of proving that the loss was occasioned by the want of due care, or by gross negligence, lies on the libellants, which would be otherwise in the absence of any such restriction. ”

“ Arthur Browne, Professor of Civil Law in the University of Dublin, in whose learned book scarcely any assertion of power ever made by the admiralty courts, however reprobated and denied by the common law tribunals, is not commended, if not justified, and scarcely one retrenchment or denial of power to the former is not as zealously disapproved. Let us hear what this witness is compelled, though multo cum gemitu, to admit, with respect to the jurisdiction of the instance court in cases civil and maritime,-cases identical in their character with that now under consideration. ”

“ So principle, no less than precedent, requires it now, in admiralty as well as common law, when the master is usually not a part-owner, but a mere agent of the owners, and doing damage, as here, by unskilfulness or neglect, and not by wilful misconduct. ”

“ Because here the liability is not that of an insurer against many accidents and many injuries by third persons of the property carried, and which it may be right to limit to such values as were known and acted upon in agreeing to carry. But it is for the wrong of the carrier himself, or his agents; their own misfeasance or nonfeasance, and hence gross neglect, renders them responsible for the whole consequential damages, however valuable the property thus injured or lost. ”

“ There is not, and never has been, a question connected with either, in which we do not find every Englishman appealing to the common law, or to the charters and statutes of England, as defining the nature and as furnishing the best protection of his rights. ”

“ This election of the proceeding in tort arising ex contractu, if permitted to the admiralty, would leave the subject of jurisdiction just where it would stand independently of such election. In the exercise of such election, you are necessarily driven to the contract to ascertain the existence, the nature, and extent of the assumed tort, in other words, the infraction of fulfilment of the contract, and the investigation develops inevitably an agreement, of which, with respect to parties, to locality, or subject-matter, or to all these, the admiralty can have no cognizance. ”

“ But even if it be admitted that a power in the admiralty such as would permit encroachments upon the venerable precincts of the common law would be ever so beneficial, the reality of such advantage, and the right or power to authorize it, are essentially different concerns. An argument in favor of power founded upon calculations of advantage, in a government of strictly delegated powers, is scarcely legitimate when addressed to the legislature ”

“ II. The next question is as to the duties and liabilities of the respondents, as carriers, upon their contract with Harnden. As the libellants claim through it, they must affirm its provisions, so far as they may be consistent with law.
The general liability of the carrier, independently of any special agreement, is familiar. He is chargeable as an insurer of the goods, and accountable for any damage or loss that may happen to them in the course of the conveyance, unless arising from inevitable accident,-in other words, the act of God or the public enemy. ”

“ It seems to me undeniable, that a carrier may select the particular line or description of business in which he engages, and that, so long as he with good faith adheres to that description, he cannot be responsible for any thing beyond or inconsistent with it. ”

“ He was not our agent, but did business for himself. They employed him, and not us, and were bound to know in what character he acted; the presumption being, that he who is employed is alone responsible for his acts and contracts.
The burden is upon the libellants to show that Harnden's acts and contracts bind us, he doing business as a carrier, on his own account, in fact and appearance.
We are not bound, therefore, to bring home to the libellants knowledge of the terms of his contract with us ”

“ All admiralty causes must, therefore, be causes arising wholly upon the sea, and not within the precincts of any county.' Here, then, is the explicit declaration, that it is the theatre, the place of their origin and performance, exclusively, not their relation to maritime subjects, which determines their forum; for they are causes, says he, which in their nature may be of common law cognizance. ”

“ Wolff, then, is assuredly no direct authority, if authority at all, to sustain the theory or the partialities of Professor Browne. Indeed, the utmost that can be drawn from this case in favor of those theories is an expression of belief, by Justice Buller, that my Lord Coke entertained not only a jealousy of, but an enmity against, the admiralty; a belief which, whether well or ill founded, must be equally unimportant,-equally impotent to impugn an inveterate, a confirmed, nay, an admitted course and body of jurisprudence. ”

“ It would seem, then, reconcilable neither with reason nor probability, that the men who made these solemn protests,-that a community still warm from the contest induced by them,-should, upon their emancipation from evils considered intolerable, immediately, by a species of political suicide, rivet those same evils indissolubly upon themselves. ”

“ The amount of damages which can be awarded in admiralty, in a case like this, has been agitated by some of the court, but was not argued at the bar. It is not without difficulty, but can in a minute or two be set right. By the ancient practice in admiralty, in case of contracts of freight made by the master, it is true that the owners were liable, whether ex contractu or ex delicto, and whether in personam or in rem, for only the value of the vessel or the capital used in that business. Dunlap, Adm. 31. And if the vessel was lost, the remedy against the owners was entirely lost in admiralty. ”

“ In the next place, I am by no means prepared to concede that the interests of commerce, and certainly other great interests in society, are to be benefited by incursions upon the common law jurisprudence of the country. ”

“ Another class of cases in which jurisdiction has always been exercised by the admiralty courts in this country, but which is denied in England, are suits by ship-carpenters and material men, for repairs and necessaries, made and furnished to ships, whether foreign or in the port of a State to which they do not belong, or in the home port, if the municipal laws of the State give a lien for the work and materials. ”