714 HARVARD LAW REVIEW All ships which have the right to sail under the maritime flag of a state ^ are under the protection and jurisdiction of that state. ^ This extraterritorial power of a sovereign over ships at sea is sometimes based on the fiction that the ships are portions of the sovereign's territory.^ But the better explanation seems to be that the ships partake of the state's nationality, and that the sovereign's jurisdiction is personal rather than territorial.^" It therefore lies within the power of the sove- reign to protect the ships and persons aboard them against torts on the high sea and to give remedies for such torts which its courts will enforce, and which, under proper conditions, will be recognized by courts of other states." Thus the maritime law of Continental countries gives a remedy for death by wrongful act at sea. Recognizing this, the United States Supreme Court, where such an act was committed on board a French ship, enforced the right in a proceeding to limit the liability of the French vessel.^^ The question in the United States and England there- fore is whether in each death statute the sovereign has intended to give a remedy for death at sea. It is to be noted, in considering the American cases, that the fact that the United States Constitution has given Congress power to legislate on this subject ^^ does not, in the absence of such legislation, deprive the state death statutes of effect on the high seas. The general principle is well settled that the mere grant of power to Congress to legislate on cer- tain subjects, without its exercise, does not wipe out state laws on those subjects.^^ There is no question in England but that Lord Campbell's Act does apply to deaths on the high sea.^* The House of Lords, however, has decided that no action in rem can be maintained in admiralty under Lord Campbell's Act because the jurisdiction of that court is limited by the Admiralty Court Act of 1861 to "damage done by a ship," which was held not to cover the injury dealt with in the death statute, and because the latter statute did not provide for a lien.^^ But it is settled that an action in personam for death at sea can be brought in common- ^ "Private vessels belonging to a state are those which, belonging to private owners, satisfy such conditions of nationality as may be imposed by the state laws with refer- ence to ownership, to place of construction, the nationaUty of the captain, or the composition of the crew." Hall, Private International Law, 6 ed., 163. 8 Crapo V. Kelly, 16 Wall. 610 (1872); The Hamilton, 207 U. S. 398 (1907). See Hall, 244. ' For an exposition and criticism of this view, see Hall, 244-49. ^" Hershey, Essentials of International Public Law, § 208, note; Hall, 249; I Beale, Conflict of Laws, Part I, § 106. " See The Hamilton, 207 U. S. 398, 403 (1907). ^ La Bourgogne, 210 U. S. 95 (1908). " This power is derived from the power to regulate interstate and foreign commerce (U. S. Const., Art. I, § 8) and from the extension of the judicial power of the federal courts to "all cases of admiralty and maritime jurisdiction" (Art. Ill, § 2). " American Steamboat Co. v. Chase, 16 Wall. (U. S.) 522 (1872); The Hamilton, 207 U. S. 398 (1907); McDonald v. Mallory, 77 N. Y. 546 (1879); Western Union Tel. Co. ». Call Publishing Co., 181 U. S. 92 (1901). 1* The Bernina, L. R. 12 P. D. 58 (1887), affirmed in 13 A. C. i (1888); The OrweU, L. R. 13 P. D. 80 (1888). See Seward v. The Vera Cruz, 10 A. C. 59, 71 (1884). " Seward v. The Vera Cruz, supra, note 15. Cockbum, C. J., in Smith v. Brown, 6 Q. B. 729 (1871), put the lack of jurisdiction of the Admiralty Court on the ground that "damage" meant injury to property only.
