Southern Pacific Co. v. Jensen

Holmes' dissent

Holmes contended that the state law prescribed absolute liability and that the issue to be decided was the effect of federal jurisdiction:

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 of all civil causes of admiralty and maritime jurisdiction upon the courts of the United States.

There was no question, Holmes said, that the saving-to-suitors clause allowed for state courts to exercise common law jurisdiction, and left to the state some power of legislation. This could be observed in state statutes dealing with pilotage and liens in aid of maritime contracts. Moreover, the Court had previously held that a statutory remedy for causing death could be enforced by the state courts, when the death was due to a collision upon the high seas. There could be no constitutional difference, Holmes said, in imposing liability for accident instead of fault. Both rules were unprecedented in maritime or common law.

Holmes further asserted that maritime torts would be equally valid in cases not due to death. Maritime law did not constitute an exhaustive body of law, but was amenable to state action:

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.

Holmes noted that a common law remedy for a stevedore injured while loading a ship had been sustained by the Court in a prior decision. That ruling, Holmes said, was the result of incremental adjudication that could be traced to either statutes or common law of the state. This exemplified the states' relationship to the maritime law:

For from the often-repeated statement that there is no common law of the United States, 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 (...) Even where the admiralty has unquestioned jurisdiction the common law may have concurrent authority and the state courts concurrent power.

In Holmes' view, the repository of law for the district court originated in state power, and the common law applied was on equal footing with state statutes:

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 (...) 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 (...)

Holmes observed that jurisdiction over maritime matters had not been explicitly granted to the states as it had to Congress. But a previous line of cases, all of which had sustained adjudication in accordance with state law, was sufficient demonstration of federal acclimation to state influence:

(...) show that 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 personal rights, and I venture to say that it never has been supposed to do so, or had any such effect.

Pitney's dissent

In a long dissent, Pitney decried what he said was a decision "entirely unsupported by precedent" that would have "novel and farreaching consequences". The grant of federal admiralty jurisdiction was not intended to limit the states from establishing separate and independent systems of law in maritime matters. In the absence of congressional legislation, the states were free to set their own rules, and civil suits in admiralty did not have to be confined to federal courts. The Court's decision, Pitney said, was an undue encroachment upon state power, and effectively invalidated the saving-to-suitors clause:

(...) it is not necessary, in order to give full effect to the grant of admiralty and maritime jurisdiction, to imply that the rules of decision prevailing in admiralty must be binding upon common-law courts exercising concurrent jurisdiction in civil causes of maritime origin, and to give such a construction to the Constitution is to render unconstitutional the saving clause in § 9 of the Judiciary Act, and also to trench upon the proper powers of the states by interfering with their control over their water-borne internal commerce.