100 F. 866 | 2d Cir. | 1900
The location of the accident was a little southwest of red buoy No. 6, main channel; and the first point raised by appellant is that the statute of the state of New Jersey giving to the administrator a right of action for damages sustained by the widow and next of kin in the case of death negligently caused was of no authority at the place where such accident happened. It appears that such point was not presented to, nor argued before, the district court. Certainly there is no reference to it in the opinion of the district judge. Nevertheless it may fairly he raised upon the pleadings, and, when raised, may he briefly disposed of.
It was settled in the case of The Harrisburg, 119 U. S. 199, 7 Sup. Ct. 140, 30 L. Ed. 358, that there can be no recovery in a court .of admiralty, under the general maritime law, for loss of life. Therefore, in order to maintain this suit, it must be shown -that the accident happened at a place within the legislative jurisdiction of some state whose law permits such recovery. Although red buoy No. 0
“The boundary line between the two states oí New York and New Jersey from a point in the middle of the Hudson river * * ~ as heretofore ascertained and marked, to the main sea, shall be the middle of the said river, of the Bay of New York, of the water between Staten Island and New Jersey, and of Itaritan Bay, to the main sea, except as hereinafter otherwise particularly mentioned.”
The exceptions do not affect the locality in question. In 1834, therefore, we may take it as definitely settled that the locality in ques-iion, which is far on the Jersey side of the middle line of Raritan Bay continued to the main sea, was within the limits of the state of New Jersey, and subject to the operation of the public laws of that state. In 1848 that state passed the statute giving damages to widow and next of kin, and it only remains to inquire whether anything had meanwhile occurred to withdraw the locality from the operation of such statute.
“Section 1. Be it enacted by the senate and general assembly of the state of New Jersey, that the jurisdiction in and oyer all that portion of Sandy Hook, in the county of Monmouth, owned by the United States, lying north of an east and west line through the mouth of Young’s creek at low water, and ex-' tending across the island or cape of Sandy Hook from shore to shore, bounded on all other sides by the sea and Sandy Hook Bay, be and the same is hereby ceded to the said United States, for military purposes; and the said United States shall retain such jurisdiction so long as the said tract shall be applied to the military or public purposes of said United States, and no longer.
“Sec. 2. And be it enacted, that the jurisdiction ceded in the first section of this act, shall not prevent the execution on the said tract of land of any process, civil or criminal, under the authority of this state, except so far as such process may affect any of the real or personal property of the United States of America within the said tract; nor shall it prevent the operation of the public laws of this state within the bounds of said tract, so far as the same may not be incompatible with the free use and enjoyment of the said premises by the United States for the purposes above specified.”
The constitution of the United States provides that:
“Congress shall have power to exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular states and the acceptance of congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, arsenals, dock-yards and other needful building's.” Article 1, § 8.
It has been held that whenever a state statute purporting to give consent to such purchase and to convey jurisdiction can be so construed as to leave the sole and exclusive jurisdiction in the United States, except so far as to admit of the service of state process, it must be so construed in harmony with the above-cited provision of the constitution, and that, if it cannot be so harmonized, “it may well be doubted if such consent be not utterly void,” in which case the United States would seem not “to have purchased with the consent of the state.” Railroad Co. v. Love, 114 U. S. 525, 5 Sup. Ct. 995, 29 L. Ed. 264. The same authority, moreover, holds that the provision of the constitution applies only to property purchased with the consent of the state, and that where lands are acquired in any other way, as by cession, the legislative power of the state over them will be as full and complete as over any other places, except that it shall not be so used as to destroy or impair the effective use of the forts, arsenals, or other public buildings which may be erected upon them. In view of this last proposition, it might be sufficient to dispose of this case to call attention to the circumstance that it nowhere appears in the record that the United States purchased Sandy Hook. Certainly this court does not know whether or not they did. so. But, assuming that they did purchase what the act defines, viz. “that portion” of Sandy Hook “* * * lying north * * * of Young’s creek * * * and extending across the island or cape of Sandy Hook from shore to shore, bounded on all other sides by the sea and Sandy Hook Bay,” they certainly did
Upon the other questions in the case we are inclined to concur in the findings of the district judge, who saw and heard the witnesses, viz. that the small boat was not within the mine channel; that La Touraine did come into actual con (act with her after the latter had passed the engine room; that by that iime the lashing of the taut cable had been severed, but that in rubbing along against the boat the steamer brought her propeller blade against one of the other cables, and thus jerked the boat over. There is no dispute that the boat was at anchor, nor that La Touraine saw her in ample time to avoid her, and was expressly warned by the government patrol boat to keep away from her to the southward; and we concur in the conclusion of the district judge that La Touraine either failed to enter the mine channel sufficiently far to the southward, or failed to head sufficiently to starboard to overcome the cross set of the tide, or, we may add, entered the channel too close after the Ems, in view of the necessity of entire freedom to maneuver so large a boat in so narrow a channel. One or other of these maneuvers brought La, Touraine nearer to an anchored boat, properly located, than was necessary or prudent; and, since actual collision resulted, she must take the consequences.
In view of the testimony as to the age, health, and business history of the deceased, the amount of damages awarded was not excessive. The decree of the district court is affirmed, with costs.