110 Ill. App. 366 | Ill. App. Ct. | 1903
delivered the opinion of the court.
It is urged in behalf of plaintiff in error that no right of action exists in this case, because it is said the collision occurred on the high seas; and in the absence of an act of congress or statute of a state giving a right of action for personal injuries causing death through negligence on the high seas, no civil action can be maintained at the common law. If, however, the negligent act occurred within the jurisdiction of a state, the laws of that state governing such action are applicable. Bigelow v. Nickerson, 70 Fed. Rep. 113, 116, and cases there cited. The collision in the case before us, in which Campbell lost his life, is said to have occurred on Lake Huron at a point about eight miles from the Michigan shore. It is sought to recover here under the provisions of the statute of Michigan, and it is contended in behalf of the defendant in error that the place where the collision occurred, although beyond the three-mile.limit, is nevertheless within the jurisdiction of that state, and that the law of that state giving a right of action for death caused by an alleged wrongful act was in force and applicable at that time and place.
The Constitution of Michigan (Art. 1, Boundaries) provides that the state “consists of and has jurisdiction over the territory embraced within the following boundaries,” describing them, one of which is the “ boundary line between the United States and Canada to the Detroit river, Lake Huron and Lake Superior to a point where the said line last touches Lake Superior.” The act of congress admitting the state into the Union provides “ that the said state shall consist of and have jurisdiction over all the territory included within the following boundaries and over none other, to wit,” giving the same boundaries as described in the state constitution. It is urged by counsel for plaintiff in error that the word “ territory ” as thus used refers only to the land, but does not include the waters within the prescribed boundaries. One of the definitions of “ territory” as given by the Century Dictionary is, “ the extent or compass of land and the waters thereof within the bounds of or belonging to the jurisdiction of any sovereign state, city or other body.” By the treaty between Great Britain and the United States, the boundary line in Lake Huron between the two countries was declared to lie- “ through the middle of said lake.” It is said by the United States Supreme Court to be the “ settled law of this country that the ownership of and dominion and sovereignty over lands covered by tide waters within the limits of the several states belong to the respective states within which they are found,” subject always to. the paramount right of congress to control their navigation so far as necessary for regulation of commerce with foreign nations and among the states. 66 We hold,” says the court, “ that the same doctrine as to the dominion and sovereignty over and ownership of lands under.the navigable waters of the Great Lakes applies which obtains at the common law as to the dominion and sovereignty over and ownership of lands under tide waters on the borders of the sea, and that the lands are held by the same right in the one case as in the other and subject to the same trusts and limitations.” Ill. Cent. R. R. Co. v. Illinois, 146 U. S. 387, 435, 437. As between nations, the minimum limit of the territorial jurisdiction of a nation over tide waters is a marine league from the coast, and within these limits a state of the Union can define its boundaries on the sea and extend its sovereignty and jurisdiction to all places within such territorial limit, including in this territorial" jurisdiction the right of control over fisheries. Manchester v. Massachusetts, 139 U. S. 240-258, and cases there cited. As, therefore, by the treaty with Great Britain, the boundary line between the two countries is through the middle of Lake Huron, and the boundary line of the State of Michigan coincides thei’ewith, the laws of that state, so far as applicable, extend over the whole of the waters of that lake within the state boundaries in the same manner and to the same extent as if they were tide waters extending only a marine league from its shores. The collision and death in this case occurred upon Lake Huron at a point within the territorial limits of Michigan as above defined, over, which the sovereignty and jurisdiction of that state extended,' and which was subject to the operation of its laws, limited and controlled only by the paramount law of the nation. We do not understand United States v. Rodgers, 150 U. S. 949, as sustaining any different view.
Objection is made to the sufficiency of the averments of the declaration, but in our opinion the objection is not well taken. The rules governing navigation on the great lakes, as established by act of congress, require a steam vessel to keep out of the way of a sailing vessel when such vessels are proceeding in such direction as to involve risk of collision. The declaration states" that it was the duty of /plaintiff in error to so control the steamer as to prevent a collision with the schooner, but that, not regarding this duty, the steamer was so negligently managed that through the fault and negligence of the plaintiff in error the collision occurred, causing the injury and death complained of, the deceased being in the exercise of due care and diligence, for his own safety.
It is argued that as the defendant in error was not appointed administratrix in Illinois, but only in Michigan, the action can not be maintained. We think, however, that the ruling in Union Transit Company v. Shacklet, 119 Ill. 232, and Wabash, St. Louis & P. Ry. Co. v. Shacklet, Administratrix, 105 Ill. 364, must be deemed conclusive against this objection.
The first instruction given in behalf of defendant in error is as follows:
“ If the jury believe from all the evidence in this case that the steamer 1W. P. Ketcham,’ on the morning, of October 14, 1899, on Lake .Huron, collided with the schooner 1 Typo,’ as charged in that behalf in the declaration herein, and that the deceased, John Campbell, lost his life in consequence thereof, then the burden is upon the said steamer to show a sufficient reason for such collision.”
It is urged that this instruction is misleading and erroneous, especially as the court refused to give for plaintiff in error an instruction as,follows:
“ The jury are instructed that the burden of the proof is upon the plaintiff to establish her case by a preponderance of the evidence, and that if the jury believe that a preponderance of the evidence is with the defendant, or if the jury find that the evidence is equally balanced, so that they can not determine whether the preponderance lies with the plaintiff or with the defendant, then they must find the issues for the defendant.”
It is contended, in behalf of defendant in error, that the mere fact of a collision between a steam and sailing vessel upon an open sea raises a presumption of negligence and constitutes a prima facie case against the steamer and devolves upon it the necessity of explaining the collision. Bule 19 of the rules of navigation enacted by congress require the steamer to “ keep out of the way of the sailing vessel;” but there is nothing in that rule or any of the others which would justify or support the broad and sweeping proposition contended for. Under the rule and the authorities the presumption of negligence on the part of the steamer arises, not from the mere collision; it must also appear that it did not keep out of the way of the sailing vessel. The instruction given for defendant in error was erroneous in not bein'g conditioned upon such a finding of fact by the jury. The Oregon v. Rocca, 18 How. 570; The Carroll, 8 Wall. 302; The Java, 14 Blatchf. 527; The Pennland, 23 Fed. 551. In the case of The Carroll, supra, the Supreme Court say (the italics are ours): aAs the steamer did not keep out of her way, and as the collision did occur, the steamer is prima facie liable, and can only relieve herself by showing,” etc. In The Oregon case, supra, the language of the same court is: “ The rule of this court is. when a steamer approaches a sailing vessel, the steamer is required to exercise the necessary precautions to' avoid a collision; and if this be not done, prima facie the steamer is chargeable with fault.” In the case of The Java, supra, the court say: “The Java, being a steamer, was bound to keep out of the way of the sailing vessel, and the burden is upon her to show a sufficient reason for not doing so.” This language presupposes a finding that the steamer “ had not done so,” i. <?., that the steamer had not kept out of the way. The same idea is conveyed by the ruling in the ease of The Pennland, supra: “ The steamer was bound to keep out of the way of the brig. She must be held answerable for not having done so, unless,” etc.
In some of the cases, it is true, language can be found apparently indicating that the mere collision of a steamer with a sailing vessel makes the steamer presumptively liable. Admiralty cases are tried without a jury. Ho instructions are given. The reviewing court also passes upon the facts, and absolute precision of language is not always to be expected. In view of the wording of the rule it can not be that the collision in and of itself makes a prima facie case against the steamer. The rule does not so say; it only requires the steamer to keep out of the way; after it has been shown that it did not do so, then and only then, the presumption of negligence follows.
As appears from the statement preceding this opinion, there is evidence tending to show that upon discovering the schooner, which was then about half or three-quarters of a mile away, the steamer immediately changed its course and would thus have passed behind the schooner’s stern and avoided a collision with it, if the schooner had not afterward changed its course, and thereby rendered a collision unavoidable. Upon such a state of the proof it was imperative that the instruction complained of should have submitted to the jury the question whether the steamer did or did not keep out of the way.
The trial court also committed material error in refusing the instruction asked by plaintiff in error regarding the burden of proof. Before the presumption of negligence could arise, it was for the plaintiff to prove by a preponderance of the evidence that the steamer did not keep out of the way of the schooner.
As regards the second instruction given for defendant in error we are of opinion that for reasons stated in C. & A. R. R. Co. v. Harrington, 192 Ill. 9, 29, and in other cases, the doctrine of fellow-servants has no application to this case.
In view of the conclusions reached it is unnecessary to review other points presented in'the brief. The judgment of the Superior Gourt must be reversed and the cause remanded.
