The Judicial Power—Admiralty Clause

The judicial Power shall extend . . . to all Cases of admiralty and maritime Jurisdiction . . . .

—Thomas H. Lee

Introduction

Admiralty and maritime jurisdiction, though a backwater today, was the most vital of the Article III judicial powers at the framing. First, uniform rules and neutral adjudication of admiralty and maritime cases were critical to the economy of the new coastal nation that depended on maritime trade. Second, state courts had adjudicated maritime captures, known as “prize” cases, that were contrary to the law of nations during the War of Independence. These decisions had created considerable friction both among the states and with foreign states and led to the establishment of the first national court of appeals under the Articles of Confederation. Third, because customs duties were the most important source of revenue for the early federal government, a system of federal courts located at key ports was critical for the effective enforcement of federal revenue laws to fund the new national government.

Historical Antecedents

The origins of Article III admiralty and maritime jurisdiction lay in England. Admiralty courts were formed in the fourteenth century to handle matters incidental to naval commands to the west, east, and south of England. In 1463, these courts were consolidated into one High Court of Admiralty. Because the disputes and issues the admiralty court decided necessarily occurred at sea, that court did not apply the domestic law of the land, English common law. Instead, it applied the law of the sea, which was part of the law of nations. This maritime law was anchored in Roman law and developed by jurists from the seafaring civil-law countries of continental Europe. For this reason, admiralty judges in England were called “civilians.” The “law of nations” at the time encompassed general principles of law shared by civilized nations that applied both “internally” as “the public law of the state” and “externally” as to the “rights, intercourse, and obligations of nations” and among “their respective subjects.”¹

The High Court of Admiralty also employed procedures prevalent in the continental European civil-law countries that differed from the procedures in the common-law courts. Given the distances and diverse nationalities of parties often involved, admiralty courts relied on documentary evidence as opposed to live testimony at trial. Most significantly, there was no right to a jury trial in admiralty courts as there was in the English common-law courts. As the common-law courts grew in prestige and power, their judges expanded their jurisdiction by issuing writs of prohibition against the admiralty court’s exercise of jurisdiction over any maritime contract made on land, as most were.² Moreover, the admiralty court was stripped of its jurisdiction to try crimes given the absence of a right to trial by jury. The result was a dramatic diminution in the judicial power of the English admiralty court.

The common-law courts’ writs of prohibition, however, did not extend to the colonies. Consequently, admiralty courts established by royal governors ex officio as Vice-Admirals came to exercise jurisdiction not only over maritime disputes, but also over controversial cases ostensibly linked to maritime commerce including prosecutions to enforce revenue and navigation laws. Like the High Court of Admiralty, vice-admiralty courts operated without juries, enraging colonial Americans. An infamous example of the vice-admiralty courts’ perceived overreach was their enforcement of the Stamp Act of 1765. This law levied taxes on paper products, which grounded the Declaration of Independence’s charge that the British Crown had “depriv[ed] us in many cases of the benefits of Trial by Jury.”³

Admiralty and Maritime Jurisdiction

The historical distinction between admiralty and maritime jurisdiction was geographic. Admiralty jurisdiction referred to criminal and civil cases arising upon or related to domestic internal navigable or territorial waters—what sailors call “brown water.” Examples include suits seeking damages for loss of carried goods or persons, injuries, or collisions in navigable rivers or territorial seas as well as suits to enforce territorial fishing restrictions, trade and navigation laws, and duties on imports at ports of entry. In England, admiralty jurisdiction did not extend to internal waters outside the “ebb and flow” of ocean tides; admiralty jurisdiction in continental Europe generally covered rivers and other internal waters used by cargo-carrying or passenger-carrying vessels.

Maritime jurisdiction pertained to criminal and civil cases occurring on the high seas or international waters—what sailors call “blue water.” Examples include civil actions related to the carriage of goods and persons on the high seas; prosecutions for crimes committed in international waters such as piracy; and adjudication of captures of foreign ships and cargoes during wars or armed encounters. Captures could occur in domestic or international waters, but the law of nations prescribed rules for condemnation of seized ships or cargoes, which were called “prizes” (from the French “prise” for “taken”). (See Essay No. 58.) The “law of prize” was thus viewed as falling within the maritime jurisdiction of admiralty courts and included captures by privately owned vessels known as privateers that a sovereign commissioned by issuing letters of marque.⁴ The word “marine” was often used as an adjective to encompass both domestic and international waters.

The historical provenance of English admiralty and maritime jurisdiction thus indicates that Article III’s expansive reference to “all Cases” of admiralty and maritime jurisdiction meant “all” criminal and civil “cases” in brown (domestic) or blue (international) waters. This jurisdiction included cases arising from or related to contracts for the carriage of goods or persons on the seas or navigable waters; cases arising out of collisions or other non-contract injuries to persons or property (torts) occurring upon the seas and navigable waters; criminal prosecutions for piracy or other crimes on the seas; cases adjudicating captures of foreign ships and cargoes at sea; and cases enforcing trade, navigation, fisheries, and revenue laws and import duties on ships and cargoes.

The Articles of Confederation

During the War of Independence, some American states had set up admiralty courts with juries that awarded prizes to American captors without regard to the law of nations, thereby causing considerable friction with foreign neutral states. Article IX of the Articles of Confederation gave the “United States in Congress assembled” the “sole and exclusive power” of “appointing courts for the trials of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures.”⁵ Congress sought to “giv[e] satisfaction to foreign nations complaining of a violation of neutralities, of treaties or other breaches of the law of nations. . . .”⁶

In January 1780, Congress established the first national court “for the trial of all appeals from the courts of admiralty in these United States, in cases of capture, to consist of three judges, appointed and commissioned by Congress” and “the trial therein [to] be according to the usages of the nations and not by jury.”⁷ Congress thus gave a national court the supreme power to review adjudications by state admiralty courts regarding when foreign ships and cargoes were lawfully seized by Americans—a lucrative and vital sphere of operations during the War of Independence. More than a year later, in April 1781, Congress vested trial of maritime crimes in “any two or more” state judges or justices with juries “as if the piracy or felony were committed upon the land.”⁸ These two models—creating new federal courts and vesting admiralty and maritime jurisdiction in existing state courts—would endure in discussions of Article III admiralty and maritime jurisdiction with some Anti-Federalists favoring the latter option.

The Constitutional Convention

The Virginia Plan—the sketch of a national government that framed debate during the opening weeks of the Constitutional Convention—enumerated four items that appeared to fall within the admiralty and maritime jurisdiction: “all piracies & felonies on the high seas,” “captures from an enemy,” “cases . . . which respect the collection of the National revenue [including import duties],” and “questions which may involve the national peace and harmony.”⁹ The Committee of Detail provided “that the jurisdiction shall extend to all cases arising under the Natl. laws; And to such other questions as may involve the Natl. peace & harmony.”¹⁰

The Committee of Style produced a version of Article III, Section 2 enumerating several categories of federal judicial power including “all cases of admiralty and maritime jurisdiction.”¹¹ The admiralty and maritime jurisdiction occasioned no debate during the Convention’s final deliberations. Admiralty and maritime jurisdiction is the only category among the “Cases” and “Controversies” listed in Article III, Section 2 that the Continental Congress had vested in courts under the Articles of Confederation.¹²

The Ratification Debates

During state ratification conventions, two points of contention implicating Article III admiralty and maritime jurisdiction were raised, and both echoed innovations in Article IX of the Articles of Confederation. First, given the alternative of using state courts as the Continental Congress did for maritime crimes in implementing Article IX, there was pushback against setting up any new lower federal courts. However, even leading Anti-Federalists acknowledged that admiralty and maritime jurisdiction was the strongest case for having an independent system of federal courts to ensure uniform rules for maritime trade, crimes, and armed encounters. Brutus, for example, acknowledged that “cases affecting . . . admiralty and maritime jurisdiction . . . should be under the cognizance of the courts of the union, because none but the general government, can, or ought to pass laws on their subjects.”¹³ As Alexander Hamilton observed in Federalist No. 80, even the “most bigotted idolizers of state authority have not thus far shewn a disposition to deny the national judiciary the cognizance of maritime causes.”

Second, there was much criticism of Article III’s provision that the U.S. Supreme Court should have appellate jurisdiction “both as to law and fact.”¹⁴ That provision, reflecting the Articles of Confederation concern about runaway juries in maritime capture cases, seemed to authorize Supreme Court review of jury factfinding. For example, at the Virginia ratification convention, Patrick Henry stated that the Supreme Court’s appellate jurisdiction would “in operation destroy the trial by jury.”¹⁵

The First Congress

In 1789, when the First Congress passed the original Judiciary Act and the Bill of Rights, it demonstrated sensitivity to concerns about preserving both state court jurisdiction and protecting the right to jury. The Judiciary Act of 1789 established lower district and circuit federal courts and vested in them a substantial portion of Article III admiralty and maritime jurisdiction.¹⁶ Section 9 provided that:

[T]he district courts shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy where the common law is competent to give it.⁰

The “saving to suitors” exception was enacted to preserve the overlapping jurisdiction of state courts to give common-law remedies in certain suits traditionally entertained in common-law courts (e.g., injuries to maritime workers) that also fell within the admiralty and maritime jurisdiction. Although the Seventh Amendment right to jury applies only “[i]n Suits at common law”¹⁷ and therefore not to “civil cause of admiralty and maritime jurisdiction,” it would necessarily be available in common-law suits that fall within the saving-to-suitors exception.

The Judiciary Act bifurcated admiralty and maritime jurisdiction with respect to “all crimes and offenses that shall be cognizable under the authority of the United States, committed . . . upon the high seas.”¹⁸— Lesser crimes could be tried in the district courts and the circuit courts could try both lesser crimes and more serious crimes on the high seas. The Sixth Amendment preserves the right to a jury “[i]n all criminal prosecutions” without exception, including admiralty and maritime cases.¹⁹

Judicial Precedent

Federal courts addressed some of the foundational questions left open regarding the meaning of the Article III grant of judicial power as to “all Cases of admiralty and maritime jurisdiction.”

First, was the scope of the constitutional admiralty and maritime jurisdiction the same as it was in England at the time of the War of Independence? In DeLovio v. Boit, Justice Joseph Story, while riding circuit, answered that the Article III jurisdiction as implemented by Section 9 of the Judiciary Act was not limited to English law but rather was to be measured by the much larger scope recognized by continental European nations.²⁰ Federal courts were therefore not limited to the narrow definition of “maritime contracts” that prevailed in England because of the dominance of common lawyers over civilians there. The full Supreme Court affirmed Story’s interpretation three decades later in Waring v. Clarke (1847).²¹ Story had accepted the restrictive English rule confining admiralty jurisdiction to riverine “waters within the ebb and flow of the tide” of the oceans. But the Supreme Court overruled that doctrine in upholding a statute extending admiralty jurisdiction to the Great Lakes and connecting navigable waters.²² This holding was later extended to all internal waters navigable in fact, including manmade canals.²³

Second, could Congress make substantive rules of decision and watershed procedural changes for admiralty and maritime cases that departed from the maritime law of nations at the time the Constitution was adopted? The general answer was that it could. In The Lottawanna (1875), the Supreme Court held that “[i]t cannot be supposed that the framers of the Constitution contemplated that the law should forever remain unalterable.”²⁴ The Court added that “Congress undoubtedly has authority under the commercial power, if no other, to introduce such changes as are likely to be needed.” Later decisions identified the source of congressional power to change maritime law as the Article III grant of judicial power itself in conjunction with the Necessary and Proper Clause, not the Commerce Clause.²⁵

Modern Commerce Clause precedents would surely support Congress’s power to modify the maritime law of nations in admiralty and maritime cases. The Supreme Court has consistently held, however, that the federal courts have power to make federal common-law rules in admiralty and maritime civil cases in the absence of congressional legislation.²⁶ With respect to fundamental procedural rules, the Court has held that admiralty and maritime jurisdiction can be exercised in personam—a suit seeking personal liability against, for example, a vessel owner.²⁷ However, traditional admiralty suits were typically in rem—based on the court’s having impounded the vessel (and cargoes) that are the subject of suit. The Court has also affirmed that Congress may require a jury for admiralty claims even though jury trials were not authorized in admiralty and maritime cases when the Constitution was adopted.²⁸

Third, do the state courts have any residual role in admiralty and maritime cases given the breadth of Article III judicial power in “all Cases of admiralty and maritime Jurisdiction”? The answer is that they do and they don’t. As a threshold matter, Congress generally cannot encroach upon state sovereign police powers. It could not, for instance, vest jurisdiction in federal courts for skating accidents on Walden Pond by invoking the judicial power in “all Cases of admiralty and maritime jurisdiction.” Furthermore, states have concurrent power to regulate crimes on their navigable and territorial waters in the absence of congressional legislation.²⁹ The saving-to-suitors clause in the First Judiciary Act preserves common-law remedies, presumably under state laws. The Supreme Court has held that although Congress has the power to vest exclusive in rem admiralty jurisdiction over a vessel and its cargo in federal court,³⁰ a state court can entertain concurrent jurisdiction over an in personam cause of action arising from the same transaction or occurrence against the vessel’s owners.³¹ However, the Court has also clarified that the Constitution was not designed “to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed.”³²

There is a frequent collision between these two impulses: concurrent state power and “the uniformity and consistency at which the Constitution aimed” in the Article III admiralty and maritime jurisdiction. This tension was manifest in Southern Pacific Co. v. Jensen (1917), which held that New York could not apply its workers’ compensation scheme to an employee killed on navigable waters. 34 The Supreme Court has not overruled Jensen, but it stands in tension with the holding in Erie Railroad Co. v. Tompkins (1938) that state law should prevail over “general” law in suits between citizens of different states in federal court.³³

Open Questions

• To what extent does the robust federal judicial power to apply rules of decisions from the law of nations in cases of admiralty and maritime jurisdiction inform judicial power in other Article III cases and controversies?
• From an originalist perspective, how much does Article III admiralty and maritime jurisdiction borrow from English practice (e.g., “ebb and tide” of the oceans as its riverine limit) or reject it (e.g., the overreaching of the colonial vice-admiralty courts)?

1. Law of Nations, in 9 Encyclopedia Americana 141–49 (Joseph Story; Francis Lieber ed., 1838); Thomas H. Lee, The Law of Nations and the Judicial Branch, 106 Geo. L.J. 1707, 1715–26 (2018). ↩︎
2. I Charles M. Gray, The Writ of Prohibition: Jurisdiction in Early Modern English Law xlvii–liii (1994). ↩︎
3. Declaration of Independence, ¶ 20. ↩︎
4. Henry Wheaton, A Digest of the Law of Maritime Captures and Prizes, ch. I (1815). ↩︎
5. Articles of Confederation, art. IX, § 1 (emphasis added). ↩︎
6. 13 J. Cont. Cong. 284 (Mar. 6, 1779). ↩︎
7. 16 J. Cont. Cong. 61 (Jan. 15, 1780). ↩︎
8. 19 J. Cont. Cong. 354–55 (Apr. 5, 1781). ↩︎
9. 1 Farrand’s 22. ↩︎
10. 2 Farrand’s 46. ↩︎
11. Id. at 600. ↩︎
12. Thomas H. Lee, Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787–1892, 89 Fordham L. Rev. 1895, 1901–07 (2021). ↩︎
13. Storing 9.160. ↩︎
14. Art. III, § 2, cl. 2. ↩︎
15. 10 DHRC 1420. ↩︎
16. Judiciary Act of 1789, ch. 20, 1 Stat. 73. ↩︎
17. Amend. VII. ↩︎
18. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. at 76–77; § 11, 1 Stat. at 78–79. ↩︎
19. Amend. VI. ↩︎
20. 7 Fed. Cas. 418 (No. 3776) (C.C.D. Mass. 1815). ↩︎
21. 46 U.S. (5 How.) 441 (1847). ↩︎
22. Gennessee Chief v. Fitzhugh, 53 U.S. (12 How.) 443 (1851). ↩︎
23. Ex parte Boyer, 109 U.S. 629 (1884). ↩︎
24. 88 U.S. (21 Wall.) 558, 577 (1875). ↩︎
25. Butler v. Boston & S. S.S. Co., 130 U.S. 527, 557 (1889). ↩︎
26. Moragne v. States Marine Lines, 398 U.S. 375 (1970). ↩︎
27. Leon v. Galceron, 78 U.S. (11 Wall.) 185, 187–188 (1870). ↩︎
28. Gennessee Chief, supra. ↩︎
29. United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818). ↩︎
30. The Moses Taylor, 71 U.S. (4 Wall.) 411 (1866). ↩︎
31. Madruga v. Superior Court, 346 U.S. 556 (1954). ↩︎
32. The Lottawanna, 88 U.S. (21 Wall.) 558, 574–75. (1874) ↩︎
33. 304 U.S. 64 (1938). ↩︎