Page:Federal Reporter, 1st Series, Volume 5.djvu/616

 604 PEDEBAIi EEPORTER. �with foreign coiintries and the Indian tribes, the defect is clearly cured by the amendment, and the amended. petition statea a case of Interstate commerce such as has been author- itatively held to be within the power of commercial regula- tion of the United States. The Daniel Bail, 10 Wall. 565; The Thomas Swan, 6 Ben. 42; The Sunswich, Id. 112. The case of The BrightStar, 1 Woolw. 266, is not inconsistent with this conclusion, upon the very distinct and positive averments of the amended petition in respect to the business in which this steam-boat was engaged. This amendment, however, does not relieve the court from the necessity of determining the question as to the jurisdiction of the court upon the case made by the original petition, since, if that petition did not siate a case within the admiralty and maritime jurisdiction of the court, it would be proper, if not necessary, in view of the decree which the court may make, being operative upon parties who have not appeared, that an alias monition should be issued upOn the amended petition; and it is, perliaps, questionable whether the transfer of the wreck already made, which was sold before the amendment of the petition, would be available to the petitioners in this proceeding, if the court had not then jurisdiction of the case made by the petition. The question, therefore, whether the original petition stated a case within the jurisdiction of the court must be considered. The question thus raised is one of the greatest importance, involving questions of the respective rights and powers of the United States and of the states. The questions are— First, whether congress has the constitutional power to pass an act limiting the Uability of the ownera of vessels engaged only in commerce between ports of the state of New York, but carried on upon the high seas or navigable waters of the United States ; and, secondly, whether, if congress has this power, it has exercised it in the act known as the limited liability act, (St. 1851, c. 43, now Eev. St. 4282 et seq. ;) and, thirdly, if congress has not that legislative power, or has not exercised it, whether in this case, by the maritime law of the United States as it now is, the petitioner is entitled to a decree lim- iting its liability in a case not within the terms of the statute ����