delivered the opinion op the court:
The appellee, as the owner of the steamboat S. P. Hibberd, which was sunk by a collision with the boat called the Chancellor, in the Ohio river, on the 26th day of July, 1860, prosecuted this action against the appellant as one of the owners and managers of the Chancellor, to recover damages, as partial compensation for the loss of his boat, to be estimated on the basis that the collision was the result of mutual and equal fault on the part of the managers of the two boats, according to the provisions of the 16th section of chapter 7 of the Revised Statutes, which declares that:
“If the collision between.two boats be the result of mutual and equal fault, or, if it cannot be ascertained which was in fault, the loss or damage ensuing from *442the collision shall be apportioned between the two boats, according to their relative values, exclusive of cargo.”
The defense controverted the averments imputing any fault to the managers of the Chancellor, and a trial of this issue resulted in a verdict and judgment for the plaintiff for four thousand two hundred and ten dollars and fifty-two cents; and the court having refused to grant the defendant a new trial, he has appealed to this court.
The appellant now seeks a reversal of the judgment on three grounds:
1. That the court, being a State tribunal, had no jurisdiction of the subject of the action.
2. That the court erred in giving and in refusing instructions to the jury asked on the trial.
3. That the verdict was not sustained by the evidence.
The first of these objections to the judgment involves the constitutionality of said IQth section of chapter 7 of the Revised Statutes, and rests upon the assumption that that provision, and all laws of this State intended to confer upon the State courts jurisdiction in cases like this, are in conflict with the act of Congress passed in pursuance of that clause in the Federal Constitution which confers on Congress the power “ to regulate commerce with foreign nations and among the several States,” and are therefore void.
The act of Congress referred to (1 Brightley's Digest, 230) is the act of September 24th, 1789, known as the judiciary act, and provides that the district courts of the United States “shall have exclusive original cognizance of all. civil causes, of admiralty and maritime jurisdiction, including all seizures under the laws of impost, navigation, or trade, of the United States, where the seizures *443ave made on waters which are navigable from the sea by vessels of ten or more tons burden* * * saving to suitors, in all cases, the right of a common law remedy, xohcre the common law is competent to give it.”
The effect of this enactment upon State laws in conflict with it, or which purport to confer upon State courts the jurisdiction which it exclusively vests in the Federal judiciary, has been the subject of repeated adjudications, .some of them of recent date, and by the Supreme Court of the United States; and we regard the principle as authoritatively settled, that all such State laws are unconstitutional and void? to the extent that they infringe the provisions of the congressional enactment, and only to that extent. (The Hine vs. Trevor, 4 Wallace, 555; The Moses Taylor, Ibid, 411; 22 Howard, 243.)
Whether, therefore, the court had jurisdiction in this case or not seems to depend on the nature of the action and the kind of remedy sought by the plaintiff.
If the proceeding was according to the common law, as modified or improved by statute, and the remedy was such as the law of the State was competent to give, then, in our opinion, the court had jurisdiction, according to the express reservation in the act of Congress.
In the case of The Moses Taylor (4 Wallace, 427), the supreme court, in commenting on the nature and incidents of a suit in admiralty, as distinguishing it from a common law proceeding, said: “The distinguishing and characteristic feature of such suit is, that the vessel or thing proceeded against is itself seized and impleaded as the defendant, and is judged and sentenced accordingly. It is this dominion of the suit in admiralty over the vessel or thing itself which gives to the title made under its decrees validity against all the world. By the common law process, whether of mesne attachment or execution, *444property is reached only through a personal defendant, and then only to the extent of his title.”
The distinction thus clearly drawn between a suit in admiralty and a proceeding at common law is not different from that which was taken by this court in Broadwell vs. Swigert et al. (7 B. Monroe, 39); and if we adopt it, as we think we may, as a judicial test for determining whether this is a suit in admiralty.or a common law proceeding, the conclusion that it is not a case in admiralty is inevitable. It is not a proceeding in rem against the steamboat Chancellor, but a personal action against the appellant, resulting in a personal judgment against him as a partial compensation for the loss of his boat, estimated according to a law of the State, just and equitable in its provisions, and applicable to common law proceedings.
We perceive no valid objection to any of the instructions given by the court. They seem to us to fairly present the questions to be determined by the jury from the evidence, according to the principles of law applicable thereto.
Nor do we think the court erred, as insisted for the appellant, in refusing to give the last instruction asked, by which' the court was, in effect, asked to tell the jury that, although the accident, which oc.cured on board the Hibberd, was not' the consequence of negligence or misconduct, such unavoidable misfortune was, nevertheless, a fault on the part of that boat. In one of the instructions, which were given at the instance of the appellant, the jury were properly informed, that if the accident caused or contributed to the collision, and was the consequence of neglect or a failure to provide sufficient tackle on the Hibberd, such neglect or failure was a fault on the part of the Hibberd, although the engi*445neer of that boat, who,procured the line attached 1o the safety-valve, the parting of which seems to have caused the accident, “ may have thought the line a good one.” And thus, it seems to us, the court correctly explained to the jury the effect which should be given by them to the accident and its probable causes; and to have gone further, and treated the accident, however produced, as culpable misconduct on the part of the managers of the Ilibberd, would, in our opinion, have been an error to the prejudice of the appellee.
With regard to the remaining question, whether the evidence sustained the verdict of the jury, it seems to us, upon a careful examination of the evidence, not only that there is no such preponderance of the evidence against the verdict as would have authorized the granting of a new trial on that ground, but that the verdict is in accordance with the weight of evidence, and such as should have been rendered in the case.
Wherefore, the motion for a new trial having been properly overruled, the judgment is affirmed.