Page:Harvard Law Review Volume 32.djvu/751

NOTES 715 law courts, and since the judicature acts of 1873 and 1875, by which the Admiralty Court became a branch of the High Court, it is possible to institute such a suit in the Admiralty Court. Such an action, however, is not an admiralty suit, and is governed by common-law rules as to contributory negligence and damages.^ The death statutes in this country do not differ greatly in scope from Lord Campbell's Act.^* The United States Supreme Court has held that such statutes do cover death by wrongful act committed on board ships domiciled in the state although at sea or in the territorial waters of some other state, and that the admiralty courts will enforce such a claim. The leading case is The Hamilton,^^ in which Mr. Justice Holmes said of the Delaware statute: "We should add . . . that we construe the statute as intending to govern all cases which it is competent to govern, or at least not to be confined to deaths occasioned on land." Unless the death statute provides for a lien such an action must be in personam,^^ against the owner of the ship, but if it does provide for a lien the action may be in rem, a libel against the vessel.^^ Thus it appears that the domicile state has jurisdiction over deaths on ships at sea, and that the death statutes allow recovery for such wrongs. It often happens, as in the case of The Middlesex cited above, that the death in question is the result of a collision between two ships from different jurisdictions, in which the death statutes differ, so that it becomes important to determine which law is to be applied. A distinc- tion between substantive and procedural law must be made here. A court will apply the procedural law of the forum, irrespective of the nationality of the vessels or the parties before it. Thus the Supreme Court permitted the owners of the British ship Titanic to limit their liability under American law so far as claims presented in this country were concerned.^ As regards the substantive law, however, it is the law of the domicile of the vessel rather than the law of the forum which is applied. It was so held by the Supreme Court in the case of La Bour- gogne^ where a British and a French ship collided, and a claim was made against the owners of the latter for the death of a person aboard the French ship. The court applied the French rule of recovery for wrongful death. It is significant to note that the court applied this rule, not as the law of the jurisdiction of the offending vessel but as the law of the place where the injury occurred.^^ That is the usual common-law ^^ The Bernina, supra, note 15. " See the analytical table of these statutes in Tiffany, Death by Wrongful Act, XX, et seq. The usual provision is for an action whenever death is caused by the wrong- ful act, neglect, or default of another, such as would have entitled the party injured to maintain an action had he not been killed. 1* 207 U. S. 398 (1907). See The Corsair, 145 U. S. 335, 347 (1891). The same conclusion was reached by the New York Court of Appeals in McDonald v. Mallory, 77 N. Y. 546 (1879). 2° The Corsair, supra, note 19. ^^ The Oregon, 45 Fed. 62 (1892). ^ 233 U. S. ', 18 (1913). See Dicey, Law of Domicile, 153. » 210U. S. 95 (1908). ^ The court, speaking through Mr. Justice White, said (page 138): "But in The Hamilton it was also settled that where the law of the State to which the vessel belongs gives a right of action for wrongful death if such death occurred on the high seas on board of the vessel, the right of action . . . will be enforced. . . ." (In The Hamil- ton the two colliding ships were from the same jurisdiction.)