The question' presented in this case, is one of jurisdiction, and arises on a motion made to set aside a default regularly obtained three months before, and for leave now to file an answer. The libel was brought to recover damages, which resulted from a collision between the-Young America, and the schooner Constitution. of which the libelant was the proprietor. It states, “that the schooner started from the-port of Erie, in the state of Pennsylvania, on the 20th of August last, with a cargo of coal bound for Toronto on Lake Ontario; and that while she was lying windbound on the heel path side of the Welland canal, and against its bank, she was carelessly run into by the-propeller,” and greatly damaged. The proposed answer shows, that the “alleged collision occurred within the Welland canal,” an artificial water communication, connecting Lakes Erie and Ontario, “and that the said canal is situated wholly within one of the counties of the province of Canada West,” a jurisdiction foreign to that of the United States.
This court derives its jurisdiction from the constitution of the United States, and the acts of congress made in pursuance thereof. The second section of article 3 of the constitution of the United States, in defining the judicial power of the courts of the United States, declares that it “shall extend to all cases of admiralty and maritime jurisdiction:” which, manifestly embraces those subjects; whether-of contract or tort, which were then, under the general maritime law, the appropriate subjects of the jurisdiction of courts of admiralty. There were cases upon, and contracts pertaining to the navigation of the high. *853seas, in contradistinction to contracts made, or to be executed on land, or to torts of the same character as to locality, comprehending navigable rivers in which the tide ebbed and flowed. The act of congress of the 26th of February, 1845, did not, as has been held by the supreme court in the case of The Genesee Chief [supra] enlarge the jurisdiction of the national courts as to questions of admiralty, but merely conferred a .new jurisdiction on the district court. It declares that these courts shall “have the same jurisdiction in matters of contract and tort, arising in or upon vessels of certain character, which at the time were employed in business of commerce and navigation between ports and places in different states and territories, as was then exercised by the district courts as to vessels employed in navigation and commerce on the high seas.”
[The motion was renewed upon affidavits, but was denied. Case No. 12,550.]It is contended by the respondent, that the tort complained of was not committed on any waters naturally connecting Lakes Erie and Ontario, but on an artificial communication, and without the jurisdiction of the United States. The force of this objection rests upon the construction of the declaratory words of the statute. Jurisdiction is given over contracts and torts pertaining to vessels navigating between “different ports in different states and territories, upon the lakes and the navigable waters connecting said lakes.” A natural stream properly signifies a river flowing from its source to the ocean, or an outlet between one interior sea or lake and another, such as the rivers Mississippi, St. Clair and the Detroit. The statutory language is more comprehensive, and when we take into consideration the date of the statute, and the history of the Welland canal, with which great internal improvement and commercial facility we must suppose the legislature to have been acquainted, the phrase “navigable waters” connecting said lakes, cannot otherwise be construed than as embracing the Welland canal. the only “navigable waters” connecting Lakes Erie and Ontario, known at the time the act was passed.
It is conceded in the argument, that at the time the collision occurred, the schooner was engaged in navigating between a port on Lake Erie, and another port on Lake Ontario. These ports were in different states and territories. It is also conceded, that the Welland canal was the only water communication between the lakes. If this canal, then, is held not to be “navigable waters.” within the meaning of the act, it would operate to exclude a large portion of the commerce of the lower lakes. Shall there then be no remedy for breach of contracts and torts, arising in the navigation and commerce between these lakes? For many years before the law of 1845 was enacted, a great and growing commerce was carried on between the different states bordering on both of them. In legislating, then, upon the subject, with the view of conferring jurisdiction, was it the intention to exclude this commerce, from the protection afforded by the law, to the commerce of the upper lakes, connected by rivers or natural waters. If such was the intention, wherefore the language employed, navigable waters, and not navigable rivers? But the act does not make the jurisdiction of the court to depend upon the locality or place where the tort was committed. That rests upon the character and the employment of the vessel. And if this vessel was of that character, and was engaged at the time of the collision, in this description of commerce, we think the jurisdiction attaches. The court, therefore, refuses to open the default, and denies the leave to answer.