Page:Harvard Law Review Volume 32.djvu/749

713 NOTES 713 observed, "it seems hardly just or right that a verdict which never should have been found should be allowed to stand simply because the judge was not asked to prevent its being found." " Recovery for Death in Collision at Sea. — In 1808 Lord Ellen- borough laid down the rule which has become so firmly fixed in the com- mon law, that " in a civil court the death of a human being could not be complained of as an injury." ^ Although Lord Campbell's Act,^ passed in 1846, and similar acts in most American jurisdictions, provide for recovery for death by wrongful act, the effect of Lord Ellenborough's decision is by no means destroyed. Situations not covered by these statutes, where consequently an injury goes remediless, are constantly arising. The principle of Lord Campbell's Act has never been adopted as part of the common law.^ The doctrine of the common law has been applied by courts of ad- miralty to actions for wrongfully causing death on the sea. Before 1886, a number of lower federal courts held that the common-law rule should not be applied in admiralty, and allowed recovery for death at sea.^ These cases, however, were overruled, and the question was finally settled by the Supreme Court in The Harrishurg ^ on the ground that the maritime law, as received by maritime nations generally did not differ on such questions from the law as administered by the civil courts. Neither in England nor by the federal legislature in this country has a statute been passed in terms allowing for recovery for death at sea, so that any claim in admiralty must be based on Lord Campbell's Act and similar statutes in this country. The question whether these statutes give such a right was raised in a recently published case, The Middlesex,^ in which it was held by the District Court for the District of Massachu- setts that no recovery could be had against the owners of a Massachusetts ship by the personal representatives of three sailors on a Maine ship for their death in a collision with the former ship in which it was at fault. " Banbury v. Bank of Montreal, [1918] A. C. 626, page 675. ' Baker v. Bolton, i Campb. 493. No reason was given by Lord Ellenborough for the decision. An early case, Higgins v. Butcher, Yelverton, 89 (1606), had held that a husband could not recover for the death of his wife on a declaration which alleged damage to the wife. ^ 9 & 10 Vict., c. 93. One of the earliest statutes of this type was enacted in Massa- chusetts in 1648. See Tiffany, Death by Wrongful Act, § 4, note 5. ' See the dissent of Bramwell, B., in Osborn v. Gillett, L. R. 8 Ex. 88 (1873), iri which he proclaimed the fallacy of the rule in Baker v. Bolton, supra. There are some early American cases contra to Baker v. Bolton: Cross v. Guthery, 2 Root (Conn.) 90 (1794); Ford v. Monroe, 20 Wend. (N. Y.) 210 (1838); SuUivan v. Railroad Co., 3 Dill. (Circ. Ct.) 334 (1874). These cases were subsequently overruled. < The Sea Gull, Chase, 145 (1867); The Towanda, 34 Leg. Int. 394 (1877); The Charles Morgan, 2 Flip. 274 (1878); The E. B. Ward, Jr., 17 Fed. -456 (1883), 23 Fed. 900 (1885); The Columbia, 27 Fed. 704 (1886). For dicta to the same effect see cases cited in Tiffany, Death by Wrongful Act, § 204, note 6. For a review of these decisions, see The Harrisburg, infra, note 5. miralty differs from the rule at common law. See Seward v. The Vera Cruz, 10 A. C. 59, 66, 70 (1884). ' 253 Fed. 142 (1916).
 * 119 U. S. 199 (1886). There are no English cases holding that the rule in ad-