Opinion Number. 319



Key Legislation

CONSTITUTION, ss. 51 (i), (xxxix), 76.98


Assuming, as a possibility, that, on the true construction of section 98 of the Constitution, the power of the Parliament to make laws as to 'navigation and shipping' is limited by the words 'with other countries, and among the States' in section 51 (i).

Still, the legislative power is not confined to ships engaged in interstate and foreign commerce. It includes, at least, power to make laws in respect of navigation and shipping so far as interstate trade and commerce is affected. This includes much more than the ships engaged in interstate commerce. It includes those ships and their seamen; but it also includes the control of the navigable waters of the Commonwealth, and of all ships which use them, so far as it is necessary to control them for purposes of interstate and foreign commerce. And it includes everything incidental to the exercise of those powers.

Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Congress. (Gilmanw. Philadelphia 3 Wallace 713 at 724.)

The laws of the United States with regard to navigation, shipping, and seamen, are based on the assumption of a plenary power in Congress to legislate with respect to the whole subject so far as navigation on the high seas or the navigable waters of the United States is concerned.

. . the existing legislation of Congress, with regard to steam-vessels, proceeds upon the assumption that it possesses full power to regulate all vessels navigating public waters of the United States, whether they are engaged in commerce or not . . . And it also is apparent that Congress proceeds upon the theory that proper regulation requires that all vessels in those waters shall be subject to one uniform system. (The Oyster Police Steamers of Maryland 31 F.R. 763; U.S. v. Burlington & Henderson County Ferry Co. 21F.R. 331.)

There are a number of cases, in the Supreme Court and in inferior federal courts, in which the navigation laws have been held constitutional and applied to vessels engaged in the domestic commerce of a State. In many of these cases the decision is based solely upon the commerce power-though some of them are based also on the implied legislative power as to maritime law generally, deduced from the grant to federal courts of exclusive jurisdiction in admiralty and maritime matters.

While navigating the high seas between ports of the same State, a vessel of the United States is, together with the business in which she is engaged, subject to the regulating power of Congress

under the commerce power (Lord v. Steamship Co. 102 U.S. 541).

It is clear that the regulation of all ships which use interstate highways-whether themselves engaged in interstate trade or not-is a matter affecting interstate commerce, e.g. the laws relating to lights, signals, rules of the road, collisions, safety, competence and sufficiency of officers and seamen, safety appliances, salvage, overloading, seaworthiness, inspection of hull, machinery and boilers, etc. And the cases bear this out.

In The Oyster Police Steamers of Maryland, above, it was held that fishery patrol steamers belonging to the State Government, and not engaged in commerce, were liable to inspection under federal law.

In numerous cases it has been held that the federal law as to the limited liability of shipowners was applicable to ships engaged in the domestic trade of a State, e.g. Lord v. Steamship Co. above; In re Garnett 141 U.S. 1; Providence & New York SS. Co. v. Hill Manufacturing Co. 109 U.S. 578; The Garden City 26 F.R. 766; etc.

As regards overloading, see U.S. v. Burlington & Henderson County Ferry Co. 21 F.R. 331; U.S. v. The Frank Sylvia 37 F.R. 155; The City of Salem 37 F.R. 846; The City of Salem 38 F.R. 762.

As to federal law prohibiting plundering of vessels in distress-held constitutional, U.S. v. Coombs 12 Pet. 71.

As to wages of seamen-see Patterson v. Bark Eudora 190 U.S. 169 at 176, where the federal law prohibiting advances to seamen-without limitations-was held constitutional. The vessel in that case was engaged in foreign commerce, and the court left open the question as to the applicability of the section in case of a sailor serving wholly within a State; but in view of the decisions of the courts on analogous questions there can be little doubt that the section would, if the case arose, be held to apply.

Instances might be multiplied. It may be said generally that the United States navigation laws, which cover practically the same ground as the English Merchant Shipping Act, and are enacted in general terms, without being limited to interstate and foreign, commerce, have consistently been held to be constitutional whenever their validity has been challenged.

The reasoning by which it has been held that Congress has power to legislate as to maritime law generally-independently of trade and commerce-appears to be applicable in its entirety to this Constitution.

The judicial power of the United States extends to matters of admiralty and maritime jurisdiction, and that jurisdiction is held to be exclusive. It implies a power in Congress to prescribe uniform rules of maritime law: Butler v. Boston Steamship Co. 130 U.S. 527; The Lottawanna 21 Wall. 558.

. . . whilst the general maritime law, with slight modifications, is accepted as law in this country, it is subject to such amendments as Congress may see fit to adopt. One of the modifications of the maritime law, as received here, was a rejection of the law of limited liability. We have rectified that. Congress has restored that article to our maritime code. We cannot doubt its power to do this. As the Constitution extends the judicial power of the United States to 'all cases of admiralty and maritime jurisdiction', and as this jurisdiction is held to be exclusive, the power of legislation on the same subject must necessarily be in the national legislature, and not in the state legislatures. (Butler v. Boston Steamship Co., above.)

[Vol. 6, p. 467]