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it is to perceive that our harmony may be interrupted, and our strength impaired, if each state may adopt and enforce on its half of a river, its section of a lake-its short stretch of coast-in its own ports and harbors, and local waters, to which all the States have a common right of use-a system of commercial and maritime law, repealing or conflicting with that great system of commercial law which is known as the Admiralty and Maritime Law, and which alone can secure those equal State rights which it was one great object of the constitution to protect.(a)

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CHAPTER XIV.

The Maritime Law-Maritime Contracts.

209. The maritime law, as has been before remarked, is not the law of any particular country, but a law common to all nations which are engaged in maritime commerce, and does not rest for its character or authority on the peculiar institutions and local customs of any particular country, but consists of certain principles of equity, and usages of trade, which general convenience, and a common sense of justice, have established, to regulate the dealing and intercourse of merchants and mariners, in matters relating to the sea, in all the commercial countries of the world.(a)

210. The general maritime law is found, in its perfection of reason, broadly and fully laid down and discussed in the works of the celebrated and learned commentators upon the maritime codes, and of other elementary writers on maritime law, such as Selden, Grotius Stracha, Bynkershoek, Valin, Stypmanus, Loccenius, Casa Regis, Emerigon, Kuricke, Pothier, Roccus, Malynes, Cleirac, Boucher, Boulay Paty, Pardessus, Vinnius, Lubeck, Targa, and many others, whose works have been the universally known, and everywhere conceded evidence of the Admiralty and maritime law. (b)

211. It would swell this treatise far beyond the limits which I intend to give it, were I to attempt an analysis or synopsis of those various codes and commentaries. It will be sufficient, here, to remark, that none of them adopt any rule at all analo. gous to the modern English rule, as narrowed down by the prohibitions of the King's Bench. The question, whether at cause of action arose within the limits of a county or in a har

(a) Ante, § 41. Ware, 315. 3 Kent's Com. 3d edit. 1. (b) I Boulay Paty, 96. 3 Kent's Com. 3d edit. 1 to 21.

bor-or was founded on an instrument sealed or unsealed-or made on shore or on ship board-in a usual or unusual form— appears never to have entered the minds of those legislators and jurists. They have always looked solely to the maritime nature and character of the transactions, which cannot depend upon any such considerations, and they treat of all cases of service, contract, tort, or accident relating to ships, shipping and maritime commerce.(a)

212. While, however, the maritime law regulates and enforces all maritime contracts, it does not take cognizance of agreements not in themselves maritime, although they may be preliminary to maritime contracts, and have a direct reference to them. Thus, a marine policy of insurance is a maritime contract; but an agreement to make a particular policy, has been held to be not a maritime contract; so that if the agreement should be violated, and the policy should not be made, or being made, should differ in important particulars from that agreed upon, the Admiralty would not have jurisdiction of a suit for that violation, although it would entertain a suit on the policy actually made. So, too, the building of a ship is a maritime service, and the building contract is one within the cognizance of the Admiralty; but a mere undertaking to make a building contract for a ship, or to procure a person to build a ship, is not within the jurisdiction of the Admiralty. It is not a maritime contract. It is not subject to the regulation of the maritime law. The distinction in many cases will, undoubtedly, seem shadowy and unreal, still, in a large class of cases, it will be readily perceived, and its importance fully appreciated.(b)

213. It is not always easy to determine, what is a maritime contract. The dividing line between causes maritime and not maritime, is not always strongly marked. It is believed that a sure guide in matters of contract, is to be found in the relation which the cause of action has to a ship, the great agent

(a) 3 Pard. Loix. Mar. 451.

(b) 2 Gall. 468. 3 Mason, 16. Dunlap Prac. 43. 4 Mas. 380.

of maritime enterprize, and to these a highway of commerce. The languages of those nations in which the Admiralty and maritime jurisdiction has been longest acknowledged, and where the system of law which regulates maritime commerce has been most studied, furnish a brief illustration of the proper compass of the maritime law, in the significant descriptive names which they give to it in the vernacular tongue. Sea Laws-Maritime Law-Law of Ships and Shipping-Laws of Naval Trade and Commerce-Droit Maritime-Waterrechte-Scip rechte-Scip rechts-Skip roet-Zee rechtenGius Nautico-Leggi Maritimi-Jus Maritimi.(a) Much of which is briefly expressed in the title of the "Consulate Agreements, statutes, and good ordinances, which the ancients established for the cases of merchants and mariners and masters of vessels."(b)

We find no allusion to tides as affecting the law-no exceptions of ports or harbors, or narrow seas-or bodies of countiesor contracts in unusual form-or sealed or unsealed, with or without a penalty-made on land or on ship board. The only question is, whether the transaction relate to ships and vessels, masters and mariners, as the agents of commerce, on great navigable waters. "Toutes les affaires relative à la navigation et aux navigateurs appatient au droit maritime."(c)

§ 214. At the hazard of unnecessary repetition, I shall here bring together further evidence, consisting of extracts from documents which have been already referred to, and which will show the uniformity or similarity of language which has been used on this subject in different ages and countries.

"To hold conusance of pleas, debts, bills of exchange, policies of assurance, accounts, charter parties, contractions, bills of lading, and all other contracts, which may any ways concern

(a) Mare.-The Sea; sometimes a great river. Maritimus.-Of or belonging to the Sea. Nauta.-A Sailor. Nauticus.-Belonging to ships or mariners. Navis-A ship or bark; any vessel of the sea or rivers. Navalis.-Belonging to ships. AINSWORTH.

(b) 5 Pard. 11. Ante, § 184.

(c) 3 Pard. Loix. Mar. 451. 1 Boulay Paty, 99.

moneys due for freight of ships hired and let to hire, moneys lent to be paid beyond the seas at the hazard of the lender, and also of any cause, business, or injury whatsoever, had or done in or upon or through the seas, or public rivers, or fresh water, streams, havens, and places subject to overflowing whatsoever within the ebbing and flowing of the sea."(a)

"Also, touching all and singular other matters which concern merchants, owners and proprietors of ships, masters, shipmen, mariners, and shipwrights."(b)

"Agreements, statutes, and ordinances, established by the ancients for the cases of merchants and mariners and masters of vessels."(c)

"Laws of ships and navigators."(d)

"Judgments of the sea, of masters, of mariners, and merchants, and all their doings.”(e)

"Ordinances that masters and merchants observe among themselves in subjects of maritime law.”(ƒ)

"Water-law, as established by the merchants and masters."(g)

"Directions for those who pursue commerce and put to sea."(h)

"All business, civil and maritime, whatsoever, commenced, or to be commenced, between merchants, or between owners and proprietors of ships and other vessels, and merchants or others. whomsoever, with such owners and proprietors of ships, and all other vessels whatsoever."(i)

"To take cognizance of, and proceed in all causes, civil and maritime, and in complaints, contracts, debts, exchanges, policies of assurance, accounts, charter parties, agreements, bills of lading of ships, and all matters and contracts which in any manner whatsoever, relate to freight due for ships hired and let out, transport money, bottomry, or which are affairs between merchants, or between owners and proprietors of ships or other

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