Tort Jurisdiction in American Admiralty

Connotations for the wording of the Constitution have been established largely by decisions of the federal rather than of the state courts. 4 On the whole their definitions have tended to expand the meaning of "admiralty and maritime".Whether one is to regard the extension of federal power as a mere by-product of the primary operation of establishing, by definition of the few bare words of the Constitution, the content of that body of law which the new nation at its founding had adopted or vice versa, is a speculation of no immediate interest here.The dual aspect of the courts' labors in the admiralty field, however, has no doubt affected the consistency of their decisions.The similar dual aspect of the judicial labors in giving content to "interstate commerce" is a more familiar illustration of the difficult role in our constitutional scheme which the courts assumed to be theirs and which they have staggered under ever since they first took up the burden.Much of what appears to be mere metaphysics or worse, in such matters, for instance as deciding "admiralty jurisdiction" by "localizing" a personal injury, on ship or dock, can be ascribed to the delicacy of the borderline between state and federal domestic authority.GENERAL PRINCIPLES OF TORT JURISDICTION In defining the constitutional language the courts have treated admiralty and maritime in two grand divisions: "torts" and "contracts".Neither division is quite accurate if one understands by "tort" a liability arising out of fault and by "contract" a liability formally assumed by offer, acceptance and haggling over terms.For to the tort side the Longshoremen's and Harborworkers' Compensation Act has been ascribed, 5 while salvage and general average, both arising out of imposed liability, have been assigned to the contract jurisdiction. 6 Both tort and contract are dealt with, however, in special connection with admiralty and maritime waters and with what might be called admiralty and maritime objects.A word must be given to explaining the new phrases.Roughly, the admiralty waters are nowadays waters which are navigable in fact, whether fresh or salt, tidal or non-tidal, which are open to interstate passage though the commerce need not be interstate nor foreign.This formula describes our own territorial waters.Other waters, whether high seas or foreign territorial, are likewise within the admiralty jurisdiction in the court-competency sense of the word.Questions 4. The original Judiciary Act [I STAT. 76 (1789), 28U. S. C. A. § 41 (3) (1927)] saved to suitors a "common law remedy when the common law is competent to give it".This may be sought in the state courts.See Robinson, Legal Adjiushnents of Personal.