To the petition of T. B. & J. B. Cochran, in behalf of appellant, for a rehearing—
JUDGE HARDINdelivered the following response of the court:
We are very earnestly asked by the counsel for the appellant, in the petition for a rehearing, to review the grounds of the opinion delivered in this case, and particularly with reference to two points, on which it is insisted that our conclusion, as to the jurisdiction of the lower court, is incorrect.
The principles of the opinion on this subject are of such importance that we deem it proper to respond to the objections of the counsel on the points referred to—
*4461st. As the Constitution of the United States confers on Congress the power “ to regulate commerce with foreign nations and among the several States,” it is contended that “ a State cannot exercise any such power, although Congress shall not have exercised the power conferred on it.” This would be true, we have no doubt, if restricted to a case in which a State may have attempted to exercise powers which are prohibited to it by the Federal Constitution; but the objection goes much further, and assumes that the mere grant of commercial power to Congress, although -never exercised, per sé operates, to deprive the Slates of all power which might be exercised by Congress on the same subject.
A re-examination of the authorities tending to elucidate the subject has confirmed the opinion already indicated by us in the decision of this case, that the grant of power to Congress “to regulate commerce among the several States” does not, of itself, in all cases, exclude the States from exercising authority over its subject-matter, and that it is not the mere existence of such a power, but its exercise by Congress, which may be incompatible with the exercise of the same power by the States; and, therefore, the States may legislate on the subject, in the absence of congressional regulations. (Cooley vs. Board of Wardens of Port of Philadelphia, 12 Howard, 299; Wilson vs. Black Bird Creek Co., 2 Peters, 251; 12 Alabama, 197.)
2d. The counsel, referring to the act of Congress of 1789, suggest “that the court has either misconceived the meaning and effect of the act, or has been very inaccurate and misleading in the statement of the proposition ;” and insists that the clause of that act which reserves to suitors a common law remedy, relates only to such remedies as the common law is competent to give, *447without- being modified or improved by statute, and argues that the right given by statute to have an apportionment of the damages sustained by a collision, where both boats were mutually in. fault, is not a common law remedy, but an incident of the jurisdiction of a court of admiralty, and can only be enforced by the Federal judiciary.
As the legislative enactment enlarges the power of the court, by enabling it to give redress in a state of case and in a mode not provided for by the common law unaided by statute, it may be said to‘ confer on the court additional jurisdiction. But, as the exclusive cognizance conferred on the Federal court by the act of Congress of 1789 relates only to “ civil causes of admiralty and maritime jurisdiction,” it is obvious that a statute of a State regulating the proceedings in a personal action like this, which, as shown in the opinion, is not within the definition of a suit in admiralty, is not repugnant to the act of Congress of 1789, although the statute, as it relates to the subject of commerce, may be such as Congress might have constitutionally prohibited by giving to the Federal courts a more comprehensive jurisdiction than that conferred by the act of 1789.
And if it were true, therefore, as contended, that the recovery in this case being in accordance with a statutory provision, rather than a common law rule unaided by statute, the plaintiff’s remedy, as adjudged, was not a common law remedy within the meaning of the reservation of the act of Congress; still, it does not result that there is any incompatibility between the law as administered in this case and the act of Congress; but, ■ as is sufficiently expressed in the opinion, we regard the statute of this State, so far, at least, as it applies to this *448case, as simply modifying the common law remedy, which is expressly reserved to suitors in the act of 1789.
It is contended, however, that, as the statute referred to, in literal phraseology provides, in cases of collision by mutual fault, for the apportionment of losses “between the two boats,” that it is alone applicable to proceedings in rem, and did not authorize an apportionment of losses in this personal action between the owners of the two boats; but it does not seem to us that the statute is liable to this restricted construction, or that the Legislature, in its adoption, could have intended that it should be so limited in its application.
Without further elaborating this response, which we have been led to make by the suggestions of the petition, it may suffice to say, that, after a careful review of the grounds of our opinion delivered in this case, none of the conclusions expressed in it have undergone any change.
The petition is therefore overruled.