dissenting.
The Southern Pacific Company has been held liable under the statutes of New York for an accidental injury happening upon a gang-plank between a pier and the company’s vessel and causing the death of one of its employees. The company not having insured as permitted, the statute may be taken as if it simply imposed .a limited but absolute liability in such a case. The short question is whether the power of the State to regulate the. liability in that place and to enforce it in the State’s own courts is taken away by the conferring of exclusive jurisdiction *219of all civil causes of admiralty and maritime jurisdiction upon the courts of the United States.
There is no doubt that the saving to suitors of the right of a common-law remedy leaves open the common-law jurisdiction of the state courts, and leaves some power of legislation at least, to the States. For the latter I need do no more than refer to state pilotage statutes, and to liens created by state laws in aid of maritime contracts. Nearer to the point, it is decided that a statutory remedy for causing death may be enforced by the state courts, although the death was due to a collision upon the high seas. Steamboat Co. v. Chase, 16 Wall. 522. Sherlock v. Alling, 93 U. S. 99, 104. Knapp, Stout & Co. v. McCaffrey, 177 U. S. 638, 646. Minnesota Rate Cases, 230 U. S. 352, 409. The misgivings of Mr. Justice Bradley were adverted to in The Hamilton, 207 U. S. 398, and held at least insufficient to prevent the admiralty from recognizing such a state-created right in a proper case, if indeed they went to any such extent. La Bourgogne, 210 U. S. 95, 138.
The statute having been upheld in other respects, New York Central R. R. Co. v. White, 243 U. S. 188, I should have thought these authorities conclusive. The liability created by the New York act ends in a money judgment, and the mode in which the amount is ascertained, or is to be paid, being one that the State constitutionally might adopt, cannot matter to the question before us if any liability can be imposed that was not known to the maritime law. And as such a liability can be imposed where it was unknown not only to the maritime but to the common law, I can see no difference between one otherwise constitutionally created for death caused by accident and one for death due to fault. Neither can the statutes limiting the liability of owners affect the case. Those statutes extend to non-maritime torts, which of course are the creation of state law. Richardson v. Harmon, 222 U. S. *22096, 104. They are paramount to but not inconsistent with the new cause of action. However, as my opinion stands on grounds that equally would support a judgment for a maritime tort not ending in death, with which admiralty courts have begun to deal, I will state the reasons that satisfy my mind.
No doubt there sometimes has been an air of benevolent gratuity in the admiralty’s attitude about enforcing state laws. But of course there is no gratuity about it. Courts cannot give or withhold at pleasure. If the claim is enforced or recognized it is because the claim is a right, and if a claim depending upon a state statute is enforced it is because the State had constitutional power to pass the law. Taking it as established that a State has constitutional power to pass laws giving rights and imposing liabilities for acts done upon the high seas when there were no such rights or liabilities before, what is there to hinder its doing so in the case of a maritime tort? Not the existence of an inconsistent law emanating from a superior source, that is, from the United States. There is no such law. The maritime law is not a corpus juris — it is a very limited body of customs and ordinances of the sea. The nearest to anything of the sort in question was the rule that a seaman was entitled to recover the expenses necessary for his cure when the master’s negligence caused his hurt. The maritime law gave him no more. The Osceola, 189 U. S. 158, 175. One may affirm with the sanction of-that case that it is an innovation to allqw suits in the admiralty by seamen to recover damages for personal injuries caused by the negligence of the master and to apply the common-law principles of tort.
Now, howéver, common-law principles have been applied to sustain a libel by ■ a stevedore in personam against the master for' personal injuries suffered while loading a ship, Atlantic Transport Co. v. Imbrovek, 234 U. S. 52; and The Osceola recognizes that in some cases at *221least seamen may have similar relief. From what source do these new rights come? The earliest case relies upon “the analogies of the municipal law,” The Edith Godden, 23 Fed. Rep. 43, 46,—sufficient evidence of the obvious pattern, but inadequate for the specific origin. I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say I think well of the common-law rules of master and servant and propose to introduce them here en bloc. Certainly he could not in that way enlarge the exclusive jurisdiction of the District Courts and cut down the power of the States. If admiralty adopts common-law rules without an act of Congress it cannot extend the maritime law as understood by the Constitution. It must take the rights of the parties from a different authority, just as it does when it enforces a lien created by a State. The only authority available is the common law or statutes of a State. For from the often repeated statement that there is no common law of the United States, Wheaton v. Peters, 8 Pet. 591, 658; Western Union Telegraph Co. v. Call Publishing Co., 181 U. S. 92, 101, and from the principles recognized in Atlantic Transport Co. v. Imbrovek having been unknown to the maritime law, the natural inference is that in the silence of Congress this court has believed the very limited law of the sea to be supplemented here as in England by the common law, and that here that means, by the common law of the State. Sherlock v. Alling, 93 U. S. 99, 104. Taylor v. Carryl, 20 How. 583, 598. So far as I know, the state courts have made this assumption without criticism or attempt at revision from the beginning to this day; e. g. Wilson v. MacKenzie, 7 Hill (N. Y.), 95. Gabrielson v. Waydell, 135 N. Y. 1, 11. *222Kalleck v. Deering, 161 Massachusetts, 469. See Ogle v. Barnes, 8 T. R. 188. Nicholson v. Mounsey, 15 East, 384. Even where the admiralty has unquestioned jurisdiction the common law may have concurrent authority and the state courts concurrent power. Schoonmaker v. Gilmore, 102 U. S. 118. The invalidity of state attempts to create a remedy for maritime contracts or torts, parallel to that in the admiralty, that was established in such cases as The Moses Taylor, 4 Wall. 411, and The Hine v. Trevor, 4 Wall. 555, is immaterial to the present point.
The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi-sovereign that can be identified; although some decisions with which I have disagreed seem to me to have forgotten the fact. It always is the law of some State, and if the District Courts adopt the common law of torts, as they have shown a tendency to do, they thereby assume that a law not of maritime origin and deriving its authority in that territory only from some particular State of this Union also governs'maritime torts in that territory — and if the common law, the statute law has at least equal force, as the discussion in The Osceola assumes. On the other hand the refusal of the District Courts to give remedies coextensive with the common law would prove no more than that they regarded their jurisdiction as limited by the ancient lines — not that they doubted that the common law might and would be enforced in the Courts of the States as it always has been. This court has recognized that in some cases different principles of liability would be applied as the suit should happen to be brought in a common-law or admiralty court. Compare The Max Morris, 137 U. S. 1, with Belden v. Chase, 150 U. S. 674, 691. But hitherto it has not been doubted authoritatively, so far as I know, that even when the admiralty had a rule of its own to which it adhered, as in Workman v. New York City, 179 U. S. 552, the state law, common or statute, *223would prevail in the courts of the State. Happily such conflicts are few.
It might be asked why, if the grant of jurisdiction to the courts of the United'States imports a power in Congress to legislate, the saving of a common-law remedy, i. e., in the state courts, did not import a like if subordinate power in the States.. But leaving that question on one side, such cases as Steamboat Co. v. Chase, 16 Wall. 522, The Hamilton, 207 U. S. 398, and Atlantic Transport Co. v. Imbrovek, 234 U. S. 52, show thát it is too late to say that the mere silence of Congress excludes the statute or common law of a State from supplementing the wholly inadequate maritime law of the time of the Constitution, in the regulation of persorial rights, and I venture to say that it never has been supposed to do so, or had any such effect..
As to the spectre of a lack of.uniformity I content myself with referring to The Hamilton, 207 U. S. 398, 406. The difficulty really is not so great as in the case of interstate carriers by land, which “in the absence of Federal statute providing a different, rule are answerable according to the law of the State for nonfeasance or misfeasance within its limits.” The Minnesota Rate Cases, 230 U. S. 352, 408, and cases cited. The conclusion that I reach accords with the considered cases of Lindstrom v. Mutual Steamship Co., 132 Minnesota, 328; Kennerson v. Thames Towboat Co., 89 Connecticut, 367; and North Pacific S. S. Co. v. Industrial Accident Commission of California, 163 Pac. Rep. 199, as well as with the New York decision in this case. 215 N. Y. 514.