Page:Federal Reporter, 1st Series, Volume 5.djvu/632

 620 FEDERAL REPORTER. �been assumed, in some cases of great authority, that this stat- ute was passed under the power given to congress to regulate interstate and foreign commerce. Moore v. Trans. Co. 24 How. 1; Lord v. Steam-ship Co. 4 Sawy. 292. But in both the cases laat referred to the vessel in question was engagea in interstate commerce, and as to such vessels it is undoubt- edly true that this legislation can be defended as a regulation of commerce. The question, whether it can be defended as a declaration of the maritime law of the United States, was not properly involved in the decision, and does not seem to have been discussed by counsel, and the point is expressly saved by the supreme court in affirming the case last cited. Lord V. Steam-ship Co. ut supra. In the case of The British America, 9 Ben. 516, it was held that the statute could not be resorted to for the purpose of limiting the liability of a for- eigner for a collision betweçn an American and a foreign vessel occurring on the high seas and beyond the territorial limits of the United States ; yet that the owners of such for- eign vessel were entitled to the benefit of the rule of the gen- eral maritime law limiting their liabUity to the value of ship and freight upon the surrender of the same. That decision proceeds, as it seems to me, on the theory that by the statute the general rule of the maritime law has become and been recognized as part of the maritime law to be administered in the admiralty courts of the United States. It will certainly be a very singular resuit to reach that the owner of the ves- sels of any foreign nation will have the benefit of the rule, and the vessels engaged in commerce in our own waters will not have the benefit of it. See, also, Thomassen v. Whitwell, 9 Ben. 403. The case of The Epsilon, ut supra, does not seem to have been the case of a vessel engaged in interstate or for- eign commerce; but this point does not appear to bave been taken or considered. �If, however, the views of the power of congress above ex- pressed are mistaken, and congress has no legislative power in that respect, so that, as positive enactment and proprio vigore, the statute must be oonstrued simply as a regulation of commerce, still the question arises whether it has not indi- ����