Argument for Appellant. "Secondly. More especially because in matters of evidence I must look to the practice of my predecessors and the great distinction which prevails between the description of causes which come under the cognizance of the Court of Admiralty and those in other courts. The cases over which the Court of Admiralty exercises jurisdiction occur in all parts of the world, on the high seas and in remote places. It is a well-known principle confirmed by authority that Courts of Admiralty are to proceed levato velo, that is with the utmost expedition. In order to carry this principle into effect this court has, both in foreign matters and civil suits, been accustomed to receive evidence which would not have been admitted in other courts." He subsequently adds: "I think the court may be safely trusted to weigh evidence that might not be so safe to leave to a jury." In the case of The J. F. Spencer, 3 Ben. 337, copies of official surveys, estimates of repairs and report of sale were received in evidence, although in a proceeding at law they would not have been received for any purpose, because "courts of Admiralty are not bound by all the rules of evidence which are applied in the courts of common law, and they may, where justice requires it, take notice of inatters not strictly proved." Also, in The Boskenna Bay, 22 Fed. Rep. 662, the terms of a charter-party were allowed to be given in evidence, although it could not have been read in evidence without more formal proof in a court of law. Also, in accordance with this view the foreign law has been recognized as governing transactions without strict proof, and upon such proofs as are found in the reports of English decisions. In the case of The Maud Carter, 29 Fed. Rep. 156, claims for premiums of insurance and spars used in the construction of a vessel were allowed as a lien upon a British vessel, although according to the decisions in the same circuit the lien would not have been allowed by the law of the United States. The court says: "This is a British vessel and subpoct to British law. Under the circumstances it is the duty of the Argument for Appellant. court to administer and apply the British law exactly as it would be applied if the vessel were in an English court. The court, under the decision in The Riga, L. R. 3 Ad. & Ec. 516, must hold that insurance expressly authorized by the owners is a 'necessary,' within the English act defining the jurisdiction of the Admiralty Court, and that under that act it created a maritime lien upon the vessel." In The Velox, 21 Fed. Rep. 479, the admiralty enforced the priority of lien against a Dutch vessel according to the Code of the Netherlands: it does not appear that expert testimony was produced. In Covert v. Brig Wexford, 3 Fed. Rep. 577, the court construed the British Merchant Shipping Act, and gave the master of a British vessel a lien on the vessel under that Act of Parliament, which was not given by the law of the forum. In The Adolph, 7 Fed. Rep. 501, the Code of Sweden was applied, giving the crew three months' wages on abandonment of the voyage. These cases, although not in courts of the last resort, show that the Courts of Admiralty have relaxed the rules of evidence as to the proof of the foreign law, as well as of other facts. If stricter proof were required they would be hampered in the exercise of their jurisdiction. In this court the following judgments show a relaxation of the rule as to the proof of the foreign law. In the case of Smith v. Condry, 1 How. 28, a suit was brought for a col lision between two American ships in the river Mersey. The defence was that The Tasso, the injuring vessel, was in charge of a licensed pilot of the port of Liverpool, whom the master was compelled to take or incur a penalty, or be liable for full pilotage, and the defendants gave in evidence the British statutes, and the court decided it under the construction of the British Pilotage Act in Carruthers v. Sydebotham, 4 M. & S. 77, that the master was not responsible for the default of the pilot. The court accepted the construction of the Liverpool Pilotage Act without the aid of expert testimony. In The Julia Blake, 107 U. S. 418, the question was as to the validity of a bottomry bond on cargo given by the master of a British vessel at St. Thomas for want of communication Argument for Appellant. with the owners. The court says, at p. 426, "Whether, since The Julia Blake was a British vessel, the authority of her master in a Danish port is to be determined by the English law instead of by the general maritime law or the law of Denmark, are questions we deemed unnecessary to consider; for in our opinion even under the most liberal construction of any recognized rule which can be invoked for the authority of the master over the cargo, this bond cannot be sustained." This case is authority because the court did not refuse to ascertain the law of England if applicable to an English vessel, because it was not proved as a fact. In The Maggie Hammond, 9 Wall. 435, this court enforced a lien against an English vessel for breach of a contract of affreightment made in Scotland without proof of the law of England or of Scotland. Mr. William G. Choate and Mr. William D. Shipman, by leave of court, filed a brief for appellant on behalf of the North German Lloyd Steamship Company. The following are extracts from that brief: The case now presented to this court is not a question of the common law liability of the common carrier, but a question of the maritime law of the United States. It is unnecessary to point out to the court that the same rule of liability which governs the question by the common law does not necessarily obtain in the maritime law on a particular point. The maritime law of the United States is the maritime law of the world, or the law of the whole commercial world in relation to maritime contracts and maritime torts, so far as it has been adopted by or is applicable to the United States. The common law is the law of England and the United States and the British Colonies. Its rules have no authority or sanction beyond the limits of the countries in which it belongs, except so far as the judicial or legislative powers of other States may have enacted or declared similar provisions; and in determining what is the maritime law in a point not yet settled it is incumbent upon the court to consider what view of the question is taken by the courts or the commercial codes of all other maritime nations. Argument for Appellant. It is believed that the foreign law, generally, agrees on this point with that of Great Britain and the State of New York, and differs from the rule of the common law as declared by this court. If this be so, then it would seem to follow, that this court, sitting as a Court of Admiralty, and having regard to the views which obtain among maritime nations on this point, will be bound to hold, that whatever may be the rule of the common law on this subject, the rule of the maritime law permits such a contract as a valid contract between ship and shipper. It is respectfully submitted, that the dictum of Mr. Justice Gray in Phoenix Ins. Co. v. Erie and Western Transportation Co., 117 U. S. 312, overlooks the important consideration, that permitting the insurance removes the sanction for diligence just as certainly and as completely as the stipulation in the bill of lading exempting the ship from liability, and the consideration of public policy which permits the insurance cannot forbid the stipulation. In fact, it is obvi ous that if the common law rule obtains between the ship and the shipper by the maritime law, and the maritime law permits insurance by the ship-owner against the peril in question, then the ship-owner is allowed to insure against this peril with all the world as underwriters, excepting only the owner of the goods. He alone is forbidden to insure the ship-owner against this peril, by entering into the stipulation in question. This, then, is a public policy which allows itself to be outwitted, which introduces into a system of law a merely arbitrary prohibition between two particular parties without reason to make a certain contract, when it can be made by one of them with all the rest of the world. From this admitted rule of the maritime law, therefore, allowing the ship-owner to insure, it is a logical and proper inference that the maritime law does not forbid the stipulation between the ship and shipper, for this is merely an insurance by the shipper taking upon himself the risk of this peril for a consideration. We do not for a moment assume that this court will be deterred from declaring its own view of the law by any array VOL. CXXIX-28 Argument for Appellant. of the consequences which may follow its decision. Nevertheless, the consequences of a new rule of law, or of extending the operation of an old rule to a new and different field of commerce, are proper to be considered on the question whether the new departure is just and reasonable. In conclusion, we cannot do better than to refer to the elaborate and luminous opinion of this court in the case of The Lottawanna, 21 Wall. 558, delivered by Mr. Justice Bradley, in which, while recognizing the fact, that some modifications have been introduced into the Maritime Code by different nations, he enforces with great vigor the doctrine, that "the convenience of the commercial world, bound together as it is by mutual relations of trade and intercourse, demands, that in all essential things wherein those relations bring them in contact, there should be a uniform law, founded on natural reason and justice" (p. 572). And, again, "This view of the subject does not, in the slightest degree, detract from the proper authority and respect due to that venerable law of the sea, which has been the subject of such high encomiums from the ablest jurists of all countries; it merely places it upon the just and logical grounds upon which it is accepted, and, with proper qualifications, received with the binding force of law in all countries" (p. 574). Mr. Everett P. Wheeler, by leave of court, filed a brief for appellant on behalf of the Oceanic Steam Navigating Company, citing, Miller v. Tiffany, 1 Wall. 298; Junction Rail road Co. v. Bank of Ashland, 12 Wall. 226; Bell v. Bruen, 1 How. 169; Cox v. United States, 6 Pet. 172; Le Breton v. Miles, 8 Paige, 261; Burckle v. Eckhart, 3 N. Y. 132; 1 Voet ad Pand. (Paris) 315, lib. 4, tit. 1, § 29; Dig. 44, 7, 21; Andrews v. Pond, 13 Pet. 65; Robinson v. Bland, 2 Burrow, 1077; Hibernia Bank v. Lacombe, 84 N. Y. 367; Everett v. Vendryjes 19 N. Y. 436; Rothschild v. Currie, 1 Q. B. 43; Cooper v. Waldegrave, 2 Beavan, 282; Boyce v. Edwards, 4 Pet. 111; Pope v. Nickerson, 3 Story, 465; Barter v. Wheeler, 49 N. H. 9; Pomeroy v. Ainsworth, 22 Barb. 118; Penobscot &c. Railroad v. Bartlett, 12 Gray, 244; Curtis v. Delaware |