to make the maritime law for the whole world, so far as the courts of other countries are concerned. It can only make laws to be operative within its own territory and jurisdiction. It may undoubtedly make laws to bind its own subjects while abroad, if they should ever return, to be adjudged in the courts of their own country, but this right is not one that will always be respected by the courts of other countries. Story, Confl. Laws, §§ 21, 22; The Apollon, 9 Wheat. 362, 6 L. Ed. 111; The Scotland, 105 U. S. 24, 26 L. Ed. 1001; The E. B. Ward (C. C.) 16 Fed. 255; Carlson v. Association (D. C.) 93 Fed. 468; Armstrong v. Beadle, 5 Sawy. 484, Fed. Cas. No. 541. Mr. Justice Story, in his Conflict of Laws (section 22), says: * * * * "Without entering upon this subject (which properly belongs to a general treatise upon public law), it may be truly said that no nation is bound to respect the laws of another nation made in regard to the subjects of the latter which are nonresidents. The obligatory force of such laws of any nation cannot extend beyond its own territories. * * Whatever may be the intrinsic or obligatory force of such laws upon such persons, if they should return to their native country, they can have none in other nations wherein they reside. Such laws may give rise to personal relations between the sovereign and subjects, to be enforced in his own domains; but they do not rightfully extend to other nations. A state has just as much intrinsic right, and no more, to give to its own laws an extraterritorial force as to the property of its subjects situated abroad as it has in relation to the persons of its subjects domiciled abroad. That is, as sovereign laws, they have no obligation on either the person or the property. When, therefore, we speak of the right of a state to bind its own native subjects everywhere, we speak only of its own claim and exercise of sovereignty over them when they return within its own territorial jurisdiction, and not of its right to compel or require obedience to such laws on the part of other nations within their own territorial sovereignty." The supreme court in The Scotland, 105 U. S. 24, 26 L. Ed. 1001, say: "So far as they stand on general grounds of argument (certain English cases), the most important consideration seems to be this: That the British legislature cannot be supposed to have intended to prescribe regulations to bind the subjects of foreign states, or to make for them a law of the high sea, and, if it had so intended, could not have done it. This is very true. No nation has any such right. Each nation, however, may declare what it will accept, and by its courts enforce, as the law of the sea, when parties choose to resort to its forum for redress. And no persons subject to its jurisdiction or seeking justice in its courts can complain of the determination of their rights by that law, unless they can propound some other law by which they ought to be judged; and this they cannot do, except where both parties belong to the same foreign nation, in which case it is true they may well claim to have their controversy settled by their own law. But where they belong to the country in whose forum the litigation is instituted, or to different countries having different systems of law, the court will administer the maritime law as accepted and used by its own sovereignty." * Armstrong v. Beadle, 5 Sawy. 484, Fed. Cas. No. 541, was an action at law under the California statute to recover for death upon the high seas of a passenger on board an Oregon vessel. Circuit Judge Sawyer, deciding upon the liability, in his opinion uses this language: "The first point presented is that the statute has no extraterritorial operation, and is limited to accidents occurring within the territorial jurisdiction of the state, and as the death occurred upon the high seas, beyond the legislative jurisdiction of the state, the statute is inapplicable. There was no liability at common law for the death of a party resulting under circumstances like those set out in the complaint, and, unless the statute in question gives the right of action, the plaintiff cannot recover. The statute, undoubtedly, creates a new right of action, and does not merely give a remedy for a right already existing. If it operates beyond the territorial jurisdiction of the state, then it becomes a universal law, applicable to all countries, and the legislature of California would be adopting a code of laws affecting the rights of parties arising out of acts done wholly in foreign countries as well as upon the high seas. If California can pass laws of the kind, operating extraterritorially, then other states and countries can pass laws upon the same subject, operating upon the high seas, and these laws may be in conflict; but there is nothing in the statute to indicate that it was intended to operate beyond the limits of the state." We think, also, that the evident tendency of the decisions and weight of authority is that cases of tort arising upon the high seas between parties of different nationalities will in the admiralty courts of the United States be governed by the law of the forum, which is the general maritime law as understood and administered in these courts. The Scotland, 105 U. S. 24, 26 L. Ed. 1001; The Belgenland, 114 U. S. 355, 5 Sup. Ct. 860, 29 L. Ed. 152; The Brantford City (D. C.) 29 Fed. 373. In the case of The Scotland the supreme court decided that the courts of every country will administer justice according to its laws, unless a different law be shown to apply, and this rule applies to transactions taking place on the high seas. If a collision occur on the high seas between two vessels, controversies arising therefrom will be governed in the courts of this country by our laws, unless the two colliding ships belong to the same foreign country, or perhaps to different countries using the same law, when they will be governed by the laws of the country to which they belong. And in the opinion by Mr. Justice Bradley the following language, which seems quite applicable in principle to this case, is used: "In administering justice between parties, it is essential to know by what law, or code, or system of laws their mutual rights are to be determined. When they arise in a particular country or state, they are generally to be determined by the laws of that state. Those laws pervade all transactions which take place where they prevail, and give them their color and legal effect. Hence, if a collision should occur in British waters, at least between British ships, and the injured party should seek relief in our courts, we would administer justice according to the British law, so far as the rights and liabilities of the parties were concerned, provided it were shown what that law was. If not shown, we would apply our own law to the case. In the French or Dutch tribunals they would do the same. But if a collision occurs on the high seas, where the law of no particular state has exclusive force, but all are equal, any forum called upon to settle the rights of the parties would prima facie determine them by its own law as presumptively expressing the rules of justice; but, if the contesting vessels belonged to the same foreign nation, the court would assume that they were subject to the law of their nation carried under their common flag, and would determine the controversy accordingly. If they belonged to different nations, having different laws, since it would be unjust to apply the laws of either to the exclusion of the other. the law of the forum-that is, the maritime law as received and practiced therein-would properly furnish the rule of decision. In all other cases, each nation will also administer justice according to its own laws. And it will do this without respect of persons, to the stranger as well as to the citizen." In The Belgenland, supra, the supreme court affirmed a similar doctrine, and held that in a proceeding in admiralty against one foreign vessel for collision with another foreign vessel on the high seas, the general maritime law, as understood and administered in the courts of the country in which the litigation is prosecuted, is, in general, the law governing the case. We think upon principle these cases, though the facts are not the same, should determine the one at bar, and that the position taken by appellant's counsel as to the application of the local law of France to the case is quite irreconcilable with these decisions of our supreme court. If these decisions do not determine the case at bar, they indicate pretty clearly what the decision should be. We find no case where such a rule has ever been applied to an action arising in tort. In The Brantford City (D. C.) 29 Fed. 373, where the subject was ably treated by Mr. Justice Brown, of the Southern district of New York, in an opinion afterwards referred to with approval by the supreme court in Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788, the court states the rule very comprehensively in the following language: "But inasmuch as the high seas are the common ground of all nations, and not governed by merely the municipal laws of either, the quality of acts committed on the high seas, as between persons or ships belonging to different nations whose laws are different, is determined by the maritime law as accepted and administered in the forum where the suit is prosecuted. The fact that in most of the cases cited the injury arose from collision is immaterial. The gravamen of the action is negligence. On that alone the action depends. It is negligence only that constitutes the tort. It is so in this case in its aspect as a tort, and as this negligence, resulting in damage to libelants, occurred partly within our jurisdiction and partly upon the high seas, the law applicable to the case, as one of tortious negligence, would seem, upon the above authorities, to be our own law, as the law of the forum." Any other rule would be likely to lead to much conflict and uncertainty. Nor can the fiction in regard to the law of the flag, now mainly exploded, have any force to extend the effect of the laws of any country upon the high seas or beyond that country's own territory, as will be seen by the cases following. It is merely a phrase to denote a simple fact, namely, the law of the country to which the ship belongs, and has no effect to extend the jurisdiction or add to the force of those laws in cases of tort. Johnson v. Twenty-One Bales, 2 Paine, 601, Fed. Cas. No. 7,417; Thomassen v. Whitwell, 9 Ben. 403, 23 Fed. Cas. 1006. The decree of the district court is affirmed. (100 Fed. 663.) THE CENTURION. PEREUE et al. v. HOPKINS S. S. CO. (Circuit Court of Appeals, Sixth Circuit. March 15, 1900.) No. 731. COLLISION-SUIT FOR DAMAGES-FAILURE OF EVIDENCE TO SHOW FAULT. The steamship Marshall, having, with her load, a displacement of about 1,234 tons, was passing down the St. Clair river, when she was met by the Centurion, having a displacement of about 7,500 tons, which was passing up. When the stems of the two vessels were about opposite, and they were apparently passing in safety, the Marshall suddenly sheered, and her stem struck the Centurion on the port side, near the stern. The channel was from 1,200 to 1,500 feet wide, and the water from 4 to 5 fathoms deep, at the place of collision; and the Marshall was as near the American shore as it was deemed safe to go. Each vessel was moving at a speed of 7 or 8 miles an hour. There was no proof of the mismanagement of either vessel which could have caused the collision. Held that, while it was possible that the suction of the larger vessel caused the sheer of the smaller, it was not clear that such was the fact or that such effect was reasonably to be apprehended, so as to render the Centurion negligent in passing so close to the Marshall, and that the latter could not be charged with fault, in view of the uncontradicted testimony of proper management, but that the case was one in which the evidence failed to establish the negligence charged by either party against the other, or to show the cause of the accident. Appeal from the District Court of the United States for the Eastern District of Michigan. This case presents cross appeals from a decree in admiralty of the district court for the Eastern district of Michigan. On the early morning of August 25, 1898, between 2 and 3 o'clock, a collision occurred in the St. Clair river between the steamers J. D. Marshall and Centurion. The collision occurred at a point near a place called "East China," some distance above Ricord's Dock, between Marine City and St. Clair. The night was dark, but, at the time of the collision, clear, with little wind. The Marshall was bound down. She was a vessel of about the length of 169 feet over all, 331⁄2 feet beam and 12 feet deep, of a gross tonnage and approximate weight of 534 tons. She was laden at the time with about 600.000 feet of lumber. She drew 11 feet forward and 12 feet aft. The cargo is said to have weighed 700 tons, and the total displacement of the Marshall to have been 1,234 tons of water, or 39,800 cubic feet. The Centurion was of the length of 378 feet over all; beam, about 45 feet; depth, 22 feet. She was laden with coal at the time. Her gross tonnage and approximate weight are said to have been 3,402 tons; her cargo, 4,100 tons; and her total displacement, 7,502 tons of water, or 242,000 cubic feet. She drew 16 feet 2 inches aft, and 16 feet forward. When the vessels were probably three-quarters of a mile apart the Marshall blew a signal of one blast, which was answered by a like signal from the Centurion. The channel at this point of the river is from 1,200 to 1,500 feet wide, and the water at the place of collision from 4 to 5 fathoms deep. The Marshall was coming down pretty near the American shore. Owing to the darkness of the night, just how near is not readily ascertained. When the vessels sighted each other the Centurion was on a course which would have probably carried her considerably further towards the Canadian shore than she was in fact at the time of the collision. After the signals were interchanged the Marshall drew a little closer in towards the American shore, and as close as the master deemed it prudent to go. About as the stems of the vessels were lapping, the Marshall suddenly sheered, and with her stem and port bow struck the Centurion at a point on her port side 90 feet from her stern. When the Marshall commenced to sheer, the Centurion's wheel was put a trifle to port, and when the collision became certain her wheel was put hard a-starboard. From the testimony it is probable that the Marshall was going just before the collision at about the rate of 7 or 8 miles an hour; the Centurion, at half speed, which would be a little slower than the Marshall was going. No danger signals were sounded, and neither officer in charge apprehended any danger until the sudden sheer of the Marshall. The district judge dismissed both the libel and cross libel, holding that the proof failed to make out a case for either party against the other; that neither party was shown to be in fault by that degree of testimony which would be necessary to affirmatively establish the claim of the one against the other. The learned judge observed that the case was as near one of inevitable accident as could well be imagined. Both parties appealed. On behalf of the Marshall the assignments of error are summed up as follows: "First, the collision was not due to inevitable accident; second, the collision was primarily due to the Centurion, with her large displacement, being wrongfully placed by her officer in charge in such a situation that her suction swung the Marshall from her course; third, the Centurion was in fault for porting instead of starboarding her wheel when the sheer came." On the part of the Centurion it is claimed that the case is one in which the Marshall should have been held, for she left her course and ran into the Centurion. It is also claimed that the Marshall has not been exonerated by proof excusing the sheer, and that the testimony shows that proper skill and seamanship by those in charge of the Marshall would have avoided the accident. It being further claimed that the Centurion performed her full duty, a decree is asked in favor of the cross libelant. John C. Shaw, for appellants. Before TAFT, LURTON, and DAY, Circuit Judges. DAY, Circuit Judge (after stating the facts as above). The theory upon which the owners of the Marshall seek to hold the Centurion liable for the collision and its resulting damage is that the Marshall, observing all the requirements of good seamanship on her part, was drawn from her course by reason of the suction of the Centurion passing at a high rate of speed so near to the Marshall as to cause the latter to be strongly deflected from her course, and, by a sudden sheer, which the Marshall could neither prevent nor check, caused to collide with the Centurion. The nature and power of the somewhat undefined force known as "suction" is not very well settled among navigators, nor its limitations defined with exactness by the courts. That such a force exists is well established, and to it have been ascribed marine disasters in a number of instances. In other cases it has been held insufficient to warrant a court in attributing to it the power required to seriously deflect vessels from their course. The authorities seem agreed that much depends upon the character of the place of meeting. This force is most potent in narrow channels and shallow waters. It is much more likely to produce injury to vessels passing in the same direction than to those meeting on opposite courses. A large vessel may affect a small one by this means, when those of equal dimensions would pass in safety. In the case of The City of Cleveland (D. C.) 56 Fed. 729, the nature and power of suction were under consideration by Mr. Justice Brown, then district judge. The case was heard before Judge Brown |