
    McDonald v. Mallory.
    
      N. Y. Court of Appeals ;
    
    September, 1879.
    [Reversing 44 Super. Ct. (J. & S.) 80.]
    Negligence.—Lex Loci.—Conflict of Laws.—Federal and State Laws on the High Seas.—Peesumption.—Navigation.— Statute Giving Right of Action fob Causing Death.
    tinder the statute of this State (S B. S. 6 ed. p. 569, §§ 3, 4), which gives a right of action for causing death by wrongful act or neglect, an action can be maintained for thus causing a,death on the high seas, on board of a vessel hailing from and registered in a port within this State, and owned by citizens thereof, the person whose death was so caused being also a citizen qf this State, the vessel being at the time employed by the owners in their own business, and them negligence being alleged to have caused the death.
    
    The right of action for causing death by negligence exists only by virtue of the statute; and where the wrong is committed within a foreign State or country, no action thérefor can be maintained in this State, without proof of the existence of a statute therefor in the place where the wrong was committed.
    Actions for other injuries to the person, committed abroad, are sustained without proof in the first instance of the lex loci, upon the presumption that the right to compensation for such injuries is recognized by laws of all countries.
    But this presumption cannot apply -where the wrong complained of is not one of those thus universally recognized as a ground of action, but is one for which redress, is given only by the statute.
    . In respect to matters not committed by the constitution exclusively to the Federal government, nor legislated upon by Congress, but regulated entirely by State laws, the State to which the vessel belongs can be regarded as the sovereignty whose laws follow her until she comes within the jurisdiction of some other government.
    The statute (3 B. 8., 6 ed. p.- 560), which gives a right of action for causing death, is not to be restricted by implication in its operation to the actual territorial bounds of the State.
    Kelly v. Crapo, 45 N. Y. 86,—overruled.
    Appeal by plaintiff from a judgment of the New York superior court sustaining a demurrer to the complaint.
    This action was brought by Rose McDonald, as administratrix of Charles McDonald, her deceased husband, against Charles H. Mallory and others, to recover $5,000 damages for the death of her husband, alleged to have been caused by the wrongful acts of the defendants as owners of the steamer City of Waco.
    
    The complaint alleged the ownership of the steamer by the defendants, and its employment as a freight and passenger vessel, trading between the city of New York and the city of Galveston, in the State of Texas ; and that said Charles McDonald, plaintiff’s intestate, was employed on the steamer as fireman. That the steamer received on board, at New York, as freight, on October 30, 1875, to be carried to Galveston, or to be used as stores on the steamer, 300 cases of crude petroleum, in violation of section 4,472 of the Revised Statutes of the United States. That on November 9, 1875, while the steamer was lying at anchor on the high seas, outside the bar and harbor of Galveston, Texas, a fire started on board of her, and by reason of the presence of said petroleum, which was reached by the fire, the fire could not be extinguished; and the death of plaintiff’s intestate was caused by the violence of the fire, and by the culpable negligence of the defendants.
    The complaint then alleged that “said negligence and death occurred within the territory of the State of New York* to wit, at the city of New York, and on board said steamer belonging to the State of New York, and being at first at the city of New York, and thereafter on the high seas, as above stated.”
    Judgment was demanded for $5,000 damages, and costs.
    The defendants interposed a demurrer to the complaint, on the grounds that it appeared on the face thereof that the court had no jurisdiction of the action, and that the complaint did not state facts suffi•cient to constitute a cause of action.
    
    
      
      The Superior Qourt, sustaining the demurrer, held, that it was the intent of the legislature that the statute allowing an action for the 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 could not be maintained.
    The plaintiff appealed to the court of appeals.
    
      Benedict, Taft & Benedict, for plaintiff, appellant.
    The receiving of the petroleum on board defendant’s steamer, and carrying the same, were acts sufficient in themselves to constitute a wrongful act, neglect or default under the statute (4 Edm. Stat. at L. 526, 527 ; 7 Id. 591; U. S. Rev. Stats. § 4,472 ; Jetter v. New York & Harlem R. R. Co., 2 Abb. Ct. App. Dec. 458 ; Beisigel v. New York Central R. R. Co., 4 Abb. Pr. N. S. 29 ; Blanchard v. New Jersey R. R. Co., 59 N. Y. 296 ; Massoth v. Delaware & Hudson Canal Co., 64 Id. 531-535). The statute has operation beyond the jurisdiction of this State (Whitford v. Panama R. R. Co., 23 N. Y. 465 ; Crowley v. Same, 30 Barb. 99 ; Beach v. Bay State Steamboat Co., Id. 433; Vandeventer v. New York & New Haven R. R. Co., 27 Id. 244; Whitford v. Panama R. R. Co., 3 Bosw. 67; Mahler v. Norwich & New York Trans. Co., 45 Barb. 226; S. C., 35 N. Y. 352). The taking the petroleum from the port of New York was such an act of negligence as ex necessitate renders the defendants liable (Quinn v. Moore, 15 N. Y. 32, and cases cited, supra). The political jurisdiction of the State, so far as the subject matter of the statute is concerned, extended to the steamer Waco, not only while 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 (Crapo 
      v. Kelly, 45 N. Y. 86, and 16 Wall. 610; Steamboat Co. v. Chase, Id. 522; Sherlock v. Alling, 93 U. S. [3 Otto] 99). Jurisdiction of the State on the high seas, or outside of the boundaries laid down in the Revised Statutes, was exercised, for instance, in the pilotage laws before.the Revolution, and has been since (Act of March 24, 1758, Van Shaack's Laws, 368, 9 ; Act of Dec. 13, 1763, Id. 433; Act of April 14, 1784, 1 Jones & Varick, 124; Callagan v. Hallett, 1 Caines, 105). Such jurisdiction has been decided to exist as to taxation (Hoyt v. Commissioners of Taxes, 23 N. Y. 224). It has also been exercised as to wrecks (1 Rev. Stats. p. 644, § 2 ; Id. p. 647, § 25). A ship on the high seas carries its nationality and the law of its own .nation with it (Queen v. Keyn, 1 L. R. Exch. Div. 161).
    
      William Allen Butler (Butler, Stillman & Hubbard, attorneys), for defendants, respondents.
    The remedy given by the statute, L. 1847, c. 450, as amended by L. 1849, c. 256, and L. 1870, c. 78, 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 (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. New York & New Haven R. R. Co., 27 Id. 244; S. C., 6 Abb. Pr. 239; Mahler v. Transportation Co., 35 N. Y. 352, 353; Kelly v. Crapo, 48 Id. 86). The construction and effect of the New York statute in question given by our courts, limiting its operation to the territorial boundaries of the State, will be followed by the Federal courts (McKeon v. Delancy, 5 Cr. 22; Suydam v. Williamson, 24 How. 427 ; Hoyt v. Thompson, 5 N. Y. 320, 340; Steamboat Co. v. Chase, 16 Wall. 522 ; Sherlock v. Alling, 93 U. S. 99; Dougan v. Champlain Trans. Co., 56 N. Y. 1). The shipment of the petroleum cannot be made the ground of any claim in this statutory action, or relieve the case of the fatal defect of want of jurisdiction (Bradley v. Mutual Benefit 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, 3 ed. p. 5).
    
      
       Compare Stallknecht v. Pennsylvania R. R. Co., 13 Hun, 451; Armstrong v. Beadle, 8 Rep. 36.
    
    
      
       The following is the complaint in full, omitting the formal parts :
      . ■ “ First.—That at the time of the death of the above-named Charles McDonald, as hereinafter stated, and for a long time prior thereto, the said defendants were the owners of the steamer ‘City of Waco,’ to wit: at the port and city of New York, in the State of New York, of which said city and State said defendants were residents and citizens, and that said steamer was registered and belonged in the said port of New York, and was employed by said defendants in carrying passengers and freight up to the time of the burning thereof, as hereinafter mentioned, between said city of New York and the city of Galveston, in the State of Texas. .
      “ Second—That between and including the 30th day of October, 1875, and the 9th day of November, 1875, said steamer, by direction of said defendants, and while in said employment, proceeded on a voyage from the said city of New York to the said city of Galveston, and received on board at said city of New York, and carried on said voyage, a large number of passengers, and so far performed said voyage as to arrive near, but outside of the bar and harbor at Galveston, where she came to anchor at a place where she was still upon the high seas, and where she was burned, as hereinafter more particularly described.
      “ Third.—That during ail said voyage, so far as it was performed, as aforesaid, and at the time of the said burning of said steamer, said Charles McDonald was on board said steamer in the employment of said defendants in the capacity of fireman.
      “ Fourth.—That said Charles McDonald was engaged at the city and port of New York by said defendants, so to serve on said steamer as fireman, said steamer being then at said city and port, and owned and employed as above mentioned ; and said Charles McDonald entered into and performed the said service of fireman on board said steamer for said defendants, relying upon the understanding and agreement between him and said defendants, and on the representation made to him by said defendants, that said steamer was to be employed in the carrying of passengers, and would conform to all laws, regulations, and obligations affecting steamers carrying passengers; but notwithstanding said understanding, agreement, and representation, said defendants did ,knowingly receive on board said steamer, as freight, at the city of New York, to wit: on or about October 30th, 1875, to be carried from said city of New York to the said city of Galveston, or to be used as stores on said steamer, and did carry therein on said voyage, so far as the same was performed as aforesaid, among other things, three hundred cases of petroleum, all of which was crude petroleum, or if any of it was refined it was not such as would not ignite at a temperature off less than one hundred and ten degrees Fahrenheit thermometer, nor was it to be carried upon a route where there was no other practical mode of transporting it, nor was its carriage under, or sanctioned by any regulations prescribed by the board of supervising inspectors with the approval of the secretary of the treasury; and that the receiving and carrying of said petroleum on board said steamer, as aforesaid, was an act of culpable negligence on the part of said defendants, and in violation of section 4,473 of the Revised Statutes of the United States which said Charles McDonald, in serving upon said steamer, had a right to assume that said defendants would obey.
      “Fifth.—That on said 9th day of -November, 1875, while said steamer was lying at anchor at the place aforesaid, upon the high seas, with said passengers and said Charles McDonald, and her other crew on board, and said three hundred cases of petroleum also on board as aforesaid, a fire started on board said steamer, and by reason of the. presence of said petroleum on board said steamer, which was reached by said fire, said fire could not be extinguished or checked; and the same spread with such force and rapidity, by reason of the burning of said petroleum, that it was impossible for any person on board to escape alive, and the death of all on board, including said Charles McDonald, was caused by the violence of the fire arising from the presence of said petroleum, and the burning and explosion of said petroleum, and that the death of said Charles McDonald as aforesaid, was caused by the culpable negligence of said defendants as aforesaid.
      “ Sixth.—Said plaintiff further says, that said defendants so negligently and unskillfully conducted themselves in receiving and carrying dangerous and combustible freight on board said steamer on the voyage aforesaid, and in guarding against fire on board said steamer, and in the care and management of said steamer, and of the furnace and fire and other matter on board said steamer, that through the said negligence of the defendants said steamer and said combustible and dangerous freight and other-cargo onboard took fire, and burned with Such force and rapidity as to cause the death of all on board, including said Charles McDonald; said steamer being at the time of receiving such combustible matter at the city of New York, and at the time of the burning of said steamer, and at the time of the death of Charles McDonald, upon the high seas, outside the harbor and bar at.said Galveston.
      “Seventh.—That said negligence of said defendants, whereby the death of Charles McDonald was caused, as hereinbefore set forth, and also the said death, occurred within the territory of the State of New York, to wit: at the city of New York, and on board said steamer, belonging to the State of New York as aforesaid, and being at first at the city of New York, and thereafter upon the high seas as above described.
      “Eighth.—That said Charles McDonald was, at the time of his .engagement to serve on board said steamer, and during such service, and at the time of his death, a citizen of the State of New York and ,an inhabitant of the city of Brooklyn, and county of Kings, in said State.
      “ That he left him surviving a widow; Bose McDonald, the above-named plaintiff, and seven children, all of whom were under the age of twenty-one years, the oldest of whom was, at the time of the death of said Charles McDonald, of the age of fourteen years, which said widow and children were entirely dependent upon said deceased for their support, nurture and education, which they have lost by liis death, and have been otherwise injured thereby to their damage in the ■feum of five thousand dollars, which the plaintiff claims t.0 recover by -virtue of the statute of the State of New York in such case made and provided.
      “Ninth.—That on or about the ninth day of March, 1876, letters Of adminstration of the goods, chattels and credit of said Charles McDonald, deceased, were duly issued and granted to said plaintiff by the surrogate of the county of Kings, in said State of New York, appointing said plaintiff administratrix of all the goods, chattels and credits which were of said deceased, and that said plaintiff duly qualified as such administratrix, and entered upon the discharge of the duties of the said office.
      “Wherefore said plaintiff demands judgment against said defendants, for the sum of five thousand dollars, with interest thereon, from November 9th, 1875, and the costs of this action.”
    
   Rapallo, J.

For the purposes of this appeal the wrongful act or neglect causing the death of the plaintiff’s intestate must be treated as having been committed upon the high seas. The complaint does not specifically allege that the disaster was caused by the unlawful or negligent lading of the petroleum on board of the vessel in the port of New York, and consequently the question whether the fact, if alleged, would establish that the wrong complained of was committed within the territorial bounds of the State need not be considered.

We shall therefore come directly to the principal point argued, which is, whether, under the statute of this State, which gives a right of action for causing death by wrongful act or neglect, an action can be maintained for thus causing a death on the high seas, on board of a vessel hailing from and registered in a port within this State, and owned by citizens thereof, the person whose death was so caused being also a citizen of this State, the vessel being at the time employed by the owners in their own business, and their negligence being alleged to have caused the death.

It is settled by the adj udications of our own courts, that the right of action for causing death by negligence exists only by virtue of the statute, and that where the wrong is committed within a foreign State or country, no action therefor can be maintained here, at least without proof of the existence of a similar statute in the place where the wrong was committed (Whitford v. Panama R. R. Co., 23 N. Y. 465 ; Crowley v. Same, 30 Barb. 99; Beach v. Bay State Steamboat Co., 30 Id. 433; Vandeventer v. N. Y. & N. Haven R. R. Co., 27 Id. 244). These decisions rest upon the plain ground that our statute can have no operation within a foreign jurisdiction, and that with respect to positive statute law it cannot be presumed that the laws of other States or countries are similar to our own (Opinion of Denio, J., 23 N. Y. 467, 468, 471). The liability of a person for his acts depends, in general, upon the lawsJof the place where the acts were committed, and although a civil right of action acquired or liability incurred in one State or country for personal injury, may be enforced in another to which the parties may remove, or where they may be found, yet the right or liability must exist under the laws of the place where the act was done.

Actions for injuries to the person committed abroad are sustained without proof in the first instance of the lex loci, upon the presumption that the right to compensation for such injuries is recognized by laws of all countries. But this presumption cannot apply where the wrong complained of is not one of those thus universally recognized as a ground of action, but is one for which redress is given only by the statute.

Keeping these principles in view it is clear that in order to maintain this action it is necessary to establish that the statute law in question was operative on board of the vessel upon which the injury was committed. In all the cases which have been decided, the place óf the injury was actually within the limits of a foreign territory, subject to its own laws, and where there could be no claim that the laws of this State or country were operative. ■ In the present case the locus in quo was not within the actual territorial limits of any. State or nation, nor was it subject to the laws of any government, unless the rule which exists from necessity is applied, that every vessel on the high seas is constructively a part of the territory of the nation to which she belongs, and its laws are operative on board of her. In this respect the case is new.

There can be no question that if this case were one arising under the laws of the United States, the rule referred to w-ould apply, and acts done on board of her, while on the high seas, would be governed by those laws. The question now presented is whether, in respect to matters not committed by the constitution exclusively to the Federal government, nor legislated upon by Congress, but regulated entirely by State laws, the State to which the vessel belongs can be regarded as the sovereignty whose laws follow her until she comes within the jurisdiction of some other government.

This precise question arose in the case of Kelly v. Crapo (45 N. Y. 86, and 16 Wall. 610), though in a different form. The question there was whether a vessel upon the high seas was subject to the insolvent laws of the State of Massachusetts, to which State the vessel belonged—that is, where she was registered, and her owner resided—so that by operation of those laws, and without any act of the owner, the title to the vessel could be transferred while she was at sea by a proceeding in inmtvm, to an official assignee, and his title thus acquired would take precedence of an attachment levied upon her in the State a1 New York after she had come within this State.

It was conceded in that case in this court, as well as in the supreme court of the United States, that unless the vessel was actually or constructively within the jurisdiction of the State of Massachusetts, her insolvent law could not operate upon her so as to defeat a title acquired under the laws of the State within whose actual territorial jurisdiction she afterwards came (16 Wall. 622). But in support of the title of the assignee in insolvency; it was urged that the , rule before referred to applied to her, and that while at sea she was constructively a part of the territory of the State of Massachusetts, and subject to her laws.

This court held that the rule invoked was not applicable to a State, 'and State laws, but that the jurisdiction referred to was vested in the government of, the United States, and that the national territory and its laws only were extended by legal fiction to vessels at sea.

This decision was reversed - by the supreme court of the United States in Crapo v. Kelly (16 Wall. 610), and as we understand the prevailing opinion in that court, it holds that the relations of a State to the Union do not affect its statutes as a .sovereign, except with respect to those powers and attributes of sovereignty which have by the constitution been transferred to the government of the United States, and that in all other respects it stands as if it were an independent sovereign State, unconnected with the other States of the Union. Upon this principle it was held that the vessel while at sea was constructively part of the territory of the State of Massachusetts, and subject to its laws (16 Wall. 623, 624, 631, 632). It is difficult to conceive any other principle upon which that conclusion could have been reached.

In respect to crimes committed on the high seas, the power to provide for their punishment has been delegated to the Federal government, and for that reason State laws cannot be applicable to them ; but I . cannot escape the conclusion that under the principle of the case of Crapo v. Kelly, civil rights of action for matters occurring at sea on board of a vessel belonging to one of the States of the Union must depend upon the laws of that State, unless they arise out of some matter over which jurisdiction has been vested in and exercised by the government of the United States, or over which the State has transferred its right of sovereignty to the United States, and that to this extent the vessel must be regarded as part of the territory of the State; while, in respect to her relations with foreign governments, crimes committed on board of her, and all other matters over which jurisdiction is vested in the Federal government, she must be regarded as part of the territory of the United States and subject to the •laws thereof. The facts alleged in the complaint and admitted by the demurrer present a strong case for the application of the rule, that the laws of the State to which the vessel belongs follow her until she comes within some other jurisdiction. The defendants, by whom the wrong is alleged to have been committed, were at all times up to its final consummation by the death of the plaintiff’s intestate, citizens and residents of this State and subject to its laws, and the deceased was also a citizen of this State. The death was caused either by the illegal and negligent act done in this State of lading the dangerous and prohibited article on board the vessel, and sending the deceased to sea in her thus exposed, or by the negligence or wrongful acts pf the defendants, cemmitted at sea through their agents.

The complaint does not distinctly- specify which, but it must have been one or the other. If the latter, then, at the place where the injury was committed, there was no law by which to determine whether or not it rendered the defendants liable to an action, unless the laws of the State to which the vessel belonged followed her. In the present case the defendants were, at the time of the wrongful act or neglect, and of the injury, within this State and subject to its laws, .and none of the objections suggested in the various cases which have been cited, to subjecting them to liability under the statute for acts done out off the territory of the State, can apply. There can be no double liability, as suggested by Denio, J., in 23 N. Y. 467, 471, for the locus in quo was not subject to the laws of any other country, nor can it be said that the deceased or his representatives were under the protection of the laws of any other government, as is said in some of the other cases cited. It is a case where no confusion or injustice can result from the application of the principle declared by the supreme court, that the laws of the State, as well as of the United States, enacted within their respective spheres, follow the vessel' when on the high seas.

In the opinion of the court at general term in this case it is expressly conceded that both the laws of the State and the nation have dominion on a vessel on the high seas, but the demurrer was sustained on the ground that this right of jurisdiction has not been exercised by the State of New York, and its statutes are restricted in their operation to the actual territorial bounds of the State.

No such restriction is contained in the statute now" under consideration. Its language is broad and general, and by its terms it operates in all places. Its operation on cases arising in other States and countries has not been denied by reason of anything contained in the act itself or in any other legislative act, but on general principles of law.

But the court rests its conclusion upon the act of the' legislature of this State which defines its boundaries, and declares that the sovereignty and jurisdiction of this State extends to all the places within the boundaries so declared (1 R. S. 62, 65), and it construes that act as a renunciation or abrogation of any effect which might on general principles of law be given to its statutes on board of vessels on the high seas. We are unable to concur in this view. The act referred to was intended to. define simply the actual territorial bounds of the State; and the declaration that its sovereignty and jurisdiction should extend to all places within these bounds was not intended to, nor could it, operate as a restriction upon subsequent legislation, nor had it any reference to such a question as that now before us. Whatever operation our laws may have on board of vessels at sea depends upon general principles, and there is nothing in the legislation of our State which places it in this respect on a different footing from any other. It is not claimed that the sovereignty and jurisdiction of this State extend to its vessels when at sea, as they do to places within the boundaries, for all purposes, such as service of papers, the execution of judgments and the like ; but only that where acts done at sea become the subject of adjudication here, the rights and liabilities of parties may in some cases be determined with reference to our statutes. There is nothing inconsistent with this in the act referred to, or in the assertion of sovereignty and jurisdiction for all purposes over places within the bounds of the State.

The decision of this court in Kelly ®. Crapo is referred to as the highest evidence that this State never intended that its laws should extend to vessels on the high seas. That decision recognized the general principle that the law of a nation does so extend, but was based upon the theory that the relation of the State to the Union was such that this attribute of sovereignty had become merged in the powers granted to-the general government. But the judgment of the-supreme court of the United States having established, the contrary view, and that in matters not the subject of Federal legislation, the laws of the State follow the-vessel, thus making the laws of the State and of the United States, in their respective spheres, together constitute the law of the nation to which the vessel belongs, we adopt that decision as the judgment of the-tribunal to whom the ultimate determination-of questions of that nature properly belongs.

There is nothing in the nature of this action which renders it exclusively the subject of Federal cognizance. The jurisdiction*of the State and of the United States, in the matter of personal torts committed at sea, such as assaults by a master on his crew, and injuries to passengers and the like, are concurrent, though remedies by proceedings in revi can be administered only by the court of admiralty of the United States. The field of legislation, in respect to cases like the present one, has not been occupied by the general government, and is therefore open to the States. Indeed, the United States courts of admiralty would have no jurisdiction in such a case (Steamboat Co. v. Chase, 16 Wall. 522, 530, 533); and there is no greater objection to extending the operation of a statute of this description to a vessel at sea, than there was to giving similar operation to a State insolvent law.

' The judgment of the court below should be reversed, and judgment rendered for the plaintiff on the demurrer, with leave to the defendant to answer, on payment of costs within thirty days.

All the judges concurred, except Andrews, J., absent.  