
    ROSE McDONALD, Administratrix, &c., Plaintiff and Appellant, v. CHARLES H. MALLORY, et al., Defendants and Respondents.
    POLITICAL JURISDICTION OF A STATE.
    Extent of, bight and exebcise of.—Statute giving adminis-
    TBATOB, &C., ACTION FOB DEATH CAUSED BY NEGLIGENCE.
    A State has a right of jurisdiction, through its law, over a vessel belonging to it, that is on the high seas (Crapo ®. Kelly, 16 Wall. 610, and authorities there cited; and also Thuhler ®. Trans. Co., 35 IK T. 353). But where the exercise of the right of jurisdiction is committed by the State to its legislators or officials, that exercise is limited, 1 st, by the powers given to them by the State, 3nd, by their intent as expressed or manifested by statute or action; that is, in the present case, whether or not the statute extends to vessels on the high seas, depends upon the intent of the legislature in that respect in enacting •the statute. Held, in this case, that the intent of the legislature was that this statute,—i. e., allowing action for benefit of next of kin, &c., for death caused by negligence, —should operate only within the territorial boundaries of the State, and the cause of action having arisen beyond the same, the action cannot be maintained.
    Before Cubtis, Ch. J., and Sedgwick, J.
    
      Decided May 6, 1878.
    Appeal from order sustaining demurrer to complaint.
    The complaint averred that at the times referred to, the defendants were residents and citizens of the State of New York, and owners of the steamer Waco, which belonged to and was registered in the port of New York, that the defendants loaded her,' among other things, with 300 cases of crude petroleum, in violation of section 4,472 of the Revised Statutes of the United States ; that when she sailed from the port of New York, and down to the time of his death, the deceased was a fireman belonging to her ; that when she was on the high seas in the G-ulf of Mexico, a fire started on the steamer which would not have endangered the life of the deceased, if it had not reached and ignited the petroleum ; but the fire did ignite the petroleum and thereupon it -was unextinguishable, and caused the death of all on the steamer, and among them, the deceased. The complaint in various charged the death to have been caused by the negligence of the defendants.
    The action ivas brought under the statute of 1847, as amended, found in 4 Edm. pp. 526, 527, and 7 Edm. p. 591.
    
      The defendants demurred that no cause of action was stated.
    The demurrer was sustained.
    Benedict, Taft & Benedict, attorneys, and E. M. Taft, of counsel, for appellents, urged :
    I. The statute upon which this action is based and the amendments thereto will be found in Edm. Ed. of Gen. Stat. vol. 4, pages 526 and 527, and vol. 7, p. 591.
    II. The death of Charles McDonald, under the circumstances stated in the complaint, was caused by such wrongful act, neglect or default on the part of the defendant as would, if death had not ensued, have entitled him to maintain an action and recover damages in respect thereof, (a) The receiving the petroleum mentioned in the complaint, on board the defendants’ steamer, and carrying the same, were acts sufficient in themselves to constitute such wrongful act, neglect, or default (Rev. Stat. of the U. S. § 4,472; Jetter v. New York and Harlem R. R. Co., 2 Abb. Ct. App. Dec. 458 ; Beisigel v. N. Y. Central R. R. Co., 14 Abb. Pr. N. S. 29 ; Blanchard v. New Jersey R. R. Co., 59 N. Y. 296 ; Massoth v. Delaware and Hudson Canal Co., 64 Id. 531-535 ; Quinn v. Moore, 15 Id. 32). (b) But in addition to the specific acts mentioned, there are ample allegations of negligence on the part of the defendants, which, upon the hearing of this demurrer, must be taken as true, sufficient to maintain an action by the party injured, had he survived the injury.
    III. The next question then is, does the statute extend to this case so as to give a right of action to the administratrix ?—and this we suppose to be the substantial question in the case, (a) It will be contended by-defendants’ counsel, that this case cannot be distinguished from the many cases which, with entire uniformity, hold that this statute has no extra-territorial force ; but they are all cases in which there could ha\e been no recovery, without giving the statute an operation beyond any possible jurisdiction of this State (Whitford v. Panama R. R. Co., 23 N. Y. 465 ; Crowley v. Same, 30 Barb. 99 ; Beach v. Bay Steamboat Co., 30 Id. 433 ; Vanderventer v. N. Y. & New Haven R. R. Co., 27 Id. 244; Whitford v. Panama R. R. Co., 3 Bosw. 67; Mahler v. Norwich & N. Y. Trans. Co., 45 Barb. 226; S. C., 35 N. Y. 352). (b) That there may be no mistake as to our understanding of the operation of the statute in question, we quote here a statement of the rule by which we are willing to stand or fall, contained in the case of Whitford v. Panama R. R. Co. (23 N. Y. 471), as follows: £ 1 Prima facia, all laws are co-extensive, and only co-extensive with the political jurisdiction of the law-making power.” Our contention is that the case at bar, as stated in the complaint, occurred within the political jurisdiction of the State of New York, and is therefore covered by the law in question ; and this upon two grounds: First. That the complaint states such a wrongful act committed at the city and port of New York, and within the strict and exclusive territorial boundaries of the State as will support this action. Second. The political jurisdiction of the State of New York, so far as the subject-matter of the statute in question is concerned, extended to the steamer Waco, not only while it was in the port of New York, but after it left that port, and until its burning and the death of McDonald upon the high seas, as alleged in the complaint (Crapo v. Kelly, 16 Wall. 610; Steamboat Co. v. Chase, 16 Wall. 522; Sherlock v. Allen, 93 U. S. [3 Otto] 99).
    
      Butler, Stillman é Hubbard, attorneys, and William Allen Butler, of counsel, for respondents, urged :
    —I. This statute gives a remedy unknown to the common law, and its operation is limited to the sovereignty and dominion of this State, and can only apply when the cause of action arose within the State. It does not give a right of action in thi-s State to recover for injuries committed without the State and resulting in death (Whitford v. Panama R. R. Co., 23 N. Y. 465 ; S. C., 3 Bosw. 67; Crowley v. Panama R. R. Co., 30 Barb. 99 ; Beach v. Bay State S. Co., Id. 433 ; Vandeventer v. N. Y. and New Haven R. R. Co., 27 Id. 244; S. C., 6 Abb. Pr. 239).
    II. It was conceded on the argument of the demurrer at special term, by the plaintiff’s counsel, that the statute could have no extra-territorial force, but it was insisted that the steamer being owned by citizens of Mew York, and belonging to the port of Mew York, it was, although on the high seas at the time of the disaster which caused the death of the plaintiff’s intestate, constructively within or a part of the territory of Mew York, so as to be under the operation of the statute. In support of this proposition, the case of Crapo v. Kelly, 16 Wall. 610, was cited and relied upon. This case was carefully considered by the court at special term, and the learned justice who sustained the demurrer rightly held that it had no application to this action, and did not contravene the rule as laid down by the court of appeals in Mahler v. Nor. & W. Trans. Co., 35 N. Y. 352. In the opinion of Mr. Justice Hunt (Crapo v. Kelly), the ground was taken that for the purposes of the suit, which related only to the validity of the title of the assignee in the Massachusetts insolvent proceedings as against an attaching creditor in Mew York, the vessel, although on the high seas, was a portion of the territory of Massachusetts so far as to pass the title, in the same manner as if she had been within the territory of Massachusetts. But this point was not necessary to the decision, and even if Judge Hunt’s view is correct, it was expressly limited to the case under discussion, and it goes only to. the extent that for the purpose of giving validity to a title to property on the high seas, a transfer under the law of a State made within the State, equally with a transfer made by private deed, would be upheld, and the judge expressly excepts the case of marine torts as well as marine crimes (see p. 623, at foot) where he says in reference to such exceptions, that in respect to jurisdiction as regards them “no rule of property is thereby established.” The case is thus confined to the question of title to property, and in no wise asserts extra-territorial force to a statute which relates not to property rights, but to the operation of a quasi-penal statute which, under all the authorities, can have no extra-territorial force. “It is a conceded principle that the laws of a State have no force, proprio vigore, beyond its territorial limits” (Hoyt v. Thompson, 5 N. Y. 320, 340).
    III. It appears on the face of the complaint that the steamer was at the time of the disaster on the high seas, near the harbor of Galveston, Texas, and therefore out of the territory of the State of Hew York, and it also appears that the sole cause of action is for a tort there committed. The law having been settled by the court of appeals that the right to enforce such a cause of action depends upon the question whether the alleged tort was committed in a locality actually within the territory of this State, it is impossible for the plaintiff, on the facts alleged in the complaint, to maintain this action in this court, and the order for judgment for the defendant on the demurrer should therefore be affirmed.
    IV. The averments in the complaint respecting the shipment of 300 cases of petroleum in Hew York, contrary to the provisions of section 4,472, U. S. Revised Statutes, do not aid the plaintiff’s case. The sole alleged ground of imputing blame to defendants, as respects the petroleum, is, that it was a contraband article of freight. But its contraband quality did not set it on fire, and its shipment did not naturally or legitimately lead to its conflagration ; so that the connection between the shipment and the death of plaintiff’s intestate is not direct, but remote, and according to well-settled rules of law it cannot be made the ground of any claim in this statutory action, or relieve the case of the fatal defect of w7ant of jurisdiction (See Bradley v. Mutual Ben. Life Ins. Co., 45 N. Y. 422; Butler v. Kent, 19 Johns. 228 ; Hoey v. Felton, 11 C. B. [N. S.] 142; Cox v. Burbridge, 13 Id. 430; Clarke v. Brown, 18 Wend. 213, 229 ; Addison on Torts, 3rd Ed. 5).
   By the Court.—Sedgwick, J.

The demurrer was sustained on the ground that the statute had no operation on a vessel on the high seas.

The case of Crapo v. Kelly (16 Wall. 610), and the authorities cited by Judge Hunt, show that a State or nation has a right of jurisdiction through its law, written and unwritten, over a vessel belonging to it, that is on the high seas. This was held to be true of a vessel of a State of the Union. It was deemed that such State had the right of jurisdiction that she held before she became part of the Union. This proposition is sustained by Mahler v. Transportation Co. (35 N. Y. 352).

These positions are not founded upon the fiction of the territory being extended to the vessel. But the fiction is an illustration of, and is founded upon the necessary principles in relation to the power and prevalence of municipal law. A vessel, or the people upon it, would be without law or law-less, unless the obligations of the law of the place from which they had come followed and controlled. Therefore, both the laws of the State and the nation have dominion on a vessel on the high seas.

But this right of jurisdiction may never be exercised. However imperative may be the duty of the State to exercise it, or however much it may be for the interest, yet the fact may be that it never meant to exercise it. In case the only evidence as to this exercise of jurisdiction is the existence of the right of sovereignty, without any self-imposed limitations upon it, created by the State, there can be no doubt that there has been an exercise of the jurisdiction. The unwritten law, therefore, controls, in full power, wherever the right of jurisdiction extends.

But where the exercise of jurisdiction is committed by the State, that is, the people of the State, to legislators, or to men in other official relations, that exercise is limited by the intent of the legislators or officers in acting within the powers given by the people. That is, in the present case, whether or not the statute extends to vessels on the high seas, depends upon the intent of the legislature in passing the statute.

On first impression, it might seem that the intent must be, that the law was meant to operate in all places where the sovereignty of the State extended, and that, as to a general law, it is not necessary to suppose that the legislature had in conscious view the particular places where the law was to operate, and where it was not to operate.

This, however, is to be modified in the present instance. The State, through its officers or legislature, had never claimed that the sovereignty of the law of the State included its ships on the high seas. No legislative or executive or judicial act had recognized the right to jurisdiction.

At the last revision of the statutes, the first section begins(p. 120, vol. 1, Banks 6 Ed.): “It being deemed useful for the information of the citizens and officers of this State, that its boundaries, so far as its jurisdiction is now asserted, should be declared, it is therefore declared that the State of New York is bounded as follows,” &c., and the first section of the next title (p. 127, Id.), is : “ The sovereignty and jurisdiction of this State extends to all the places within the boundaries thereof as declared in the preceding title,” &c.

And the highest evidence that this State never intended to extend its law to its vessels on the high seas, is contained in the opinion of the court of appeals in Kelly v. Crapo (45 N. Y. 86). For of course that court would not have denied to Massachusetts the kind of jurisdiction it recognized as existing for this State.

Although the reversal of this case stated a rule which leads to a recognition of the right of jurisdiction of our State, it did not, of course, touch the fact of our State having exercised it.

As the legislature, when passing this statute under consideration, did it in view of the State having, as a fact, abstained from the exercise of the jurisdiction, and the State never having recognized the right of jurisdiction, it must be that the intent was that the law should operate only within the territorial boundaries of the State. The particular circumstances take it out of the general rule that the sphere of the operation of statute is co-extensive with the sovereignty of the State.

I therefore think that the statute does not support this action, and further, that the cause of action did not arise within the territory of New York. The nature of the cause of action, as a marine test, does not make the prosecution of this common law remedy inconsistent with the admiralty and maritime jurisdiction of the United States (Dougan v. Champlain Transportation Company, 56 N. Y. 4).

Order affirmed, with costs.

Curtis, Ch. J., concurred.  