Doubtless a single claim less than the value of the vessel would be insufficient to sustain the proceeding. For in that case no purpose would be subserved by the special proceeding that would not be equally available by way of defense in an ordinary suit; and it is not to be presumed that congress intended in such a case to take away trial by jury. But when the loss or accident is one that by its nature, as in this case, involves injury to many persons, and the amount that each may claim is unknown and unascertainable, and several actions at law are already commenced, the case is in my opinion within the general intent of the act and of the supreme court rules to obtain in a single proceeding a binding and final adjudication both as to the fact of any liability at all, and, if any, the extent of that liability, and a speedy distribution to those entitled to a recovery.

4. A further objection to the jurisdiction is that the Garden City is excluded from the benefits of the act by the exception contained in section 4289, which provides that the act "shall not apply to the owners of any canal-boat, barge, or lighter, or to any vessel of any description whatsoever used in rivers or inland navigation." This exception is construed as meaning "used only in rivers or inland navigation." Moore v. American Transp. Co., 24 How. 1, 36. As the Garden City is not a canal-boat, barge, or lighter, the case is not within the exception, unless it falls within the further provision of the statute as a vessel "used in rivers or inland navigation." The word "river" is thus defined: "A large stream of water flowing in a channel on land towards the ocean, a lake, or another river; a stream larger than a rivulet or a brook." Webst. Dict. "A large inland stream of water flowing into the sea, a lake, or another river; a stream larger than a brook." Worces. "A stream flowing in a channel into another river, into the ocean, or into a lake or sea." Stormonth. "A large stream of water flowing through a certain portion of the earth's surface, and discharging itself into the sea, a lake, marsh, or other river." Imperial Dict.

From the language of these definitions, as well as from the universal understanding, a river means a considerable stream of water that has a current of its own, flowing from a higher level, that constitutes its source, to its mouth, where it debouches. The "East River," so called, has none of these three essential elements. It has no source distinguishable from its mouth, nor has it any current of its own. It is a mere strait or gut, connecting the Atlantic ocean, through Long Island sound on the east, with the Atlantic ocean, through the Upper and Lower bays of New York on the south. It is swept by the tides, and has no current except such as the tides give it. Its whole length from Throg's neck to Governor's island is about 17 miles. See Laws N. Y., Act April 17, 1857, c. 763; Devato v. 823 Barrels, etc., 20 Fed. Rep. 514, 515. At different parts it varies from a quarter of a mile to several miles in width. Having none of the essential characters of a river, it cannot be held to be within the exception of

the statute, merely because it happens to be called the "East River." I am also of opinion that the Garden City was not employed in "inland navigation," within the meaning of this exception. The act was passed with reference to the whole country. The immediate connection of the words "inland navigation" with the word "rivers," in the statute, indicates, I think, the sense in which these words were intended; namely, navigation within the body of the country, as distinguished alike from navigation in the coast waters, or in the open ocean. It means navigation in the rivers, canals, and the minor lakes and streams, not lying upon the border of the country. The case of Moore v. American Transp. Co., 24 How. 1, 36, 37, sustains, I think, this construction. The contention that the term "inland navigation" was used in contradistinction from "ocean navigation," merely, and embraced "all vessels navigating waters within headlands, and after they had passed the ocean," was in that case distinctly rejected, and the words "inland navigation" held to embrace "all internal waters."

Besides internal waters, that is, the waters within the body of the country, we have the external waters of the open sea, and the coast waters, which are intermediate between the two. The latter are most nearly allied to ocean navigation, because used, and necessarily used, by all ocean-bound vessels. In the recent act revising the international regulations for prevening collisions at sea,-March 3, 1885, c. 354, (23 St. at Large, 438,)-it is provided that the international regulations shall apply to navigation "upon the high seas, and in all coast waters of the United States," etc.; while in section 2 of the same act (page 442) the repealing clause is not to apply to the navigation of vessels within the "harbors, lakes, and inland waters of the United States." This act presents the contrast between the "coast waters," which are associated with the high seas and subject to the same rules of navigation as the high seas, and the "inland waters," which are excluded from these rules. "Inland navigation" in the act of 1851 refers, I think, to the same waters as the "inland waters" of the new rules. The "coast waters" manifestly embrace, not merely the waters that face the open sea, but the bays, the passages, the inlets, and the sounds formed by the islands that skirt the coast. Long Island sound is formed by the island of Long Island stretching to the south of Connecticut; the gut or passage called the "East River," is formed by the westward end of the same island. The one is no more "inland" than the other. The East river widens insensibly into the sound. No one would claim that Long Island sound belonged to the "inland waters" of the country, or that navigation there was "inland navigation." It was, indeed, the burning of the steamer Lexington upon Long Island sound on the thirteenth of January, 1840, that led to the enactment of the law of 1851. The leading case of Norwich Co. v. Wright, 13 Wall. 104, arose from a loss upon Long Island sound.

If, in the different cases that may arise, the language of the statute be departed from, and it be sought to decide, according to some supposed analogy, or some reason of the law, aside from its terms, what cases are within the exception and what without it, it will be found. impossible to draw any rational or satisfactory dividing line. The gut or passage called the "East River" widens insensibly, as I have said, into Long Island sound. At every point from Hunter's point, where the Garden City stopped, to Fall river, near the eastern end of the sound, vessels make their regular trips from this port. There is no point at which any attempt to make a division or separation among these various lines, so as to hold those on one side within, and those beyond without, the statute, that would not be arbitrary, and fail of any rational or satisfactory distinction. The same must be said of the numerous steamers of various lines running down the upper and the lower bay for the carriage of goods and passengers, such as those running to various parts of Staten island, to Sandy Hook, to Perth Amboy, and other places. In these cases, as it seems to me, the only course is to adhere strictly to the language of the statute itself, and to let the dividing line, arbitrary as it is, and arbitrary as in any event it must be, remain precisely where the language of the statute has placed it. Wherever the navigation is wholly inland, or upon rivers, i. e., rivers only and strictly, the exception applies. All other cases fall within the general provisions of the statute. The cases of The War Eagle, 6 Biss. 364; The Sears, 8 Fed. Rep. 365; and The Mamie, 5 Fed. Rep. 813,—are all manifestly different. The Garden City, in the present case, I hold to be not within the exception.

5. The remaining questions in the case relate to the legal liability of the petitioners for the loss of the horses and trucks in question. In the case of Wyckoff v. Queens, etc., 52 N. Y. 32, 35, the rule of law as regards the liability of ferry-boats for goods and merchandise is stated by ALLEN, J., as follows:

"A ferry-man does not undertake absolutely for the safety of goods carried with and under the control of the owner; but he does undertake for their safety as against the defects and insufficiencies of his boat and other appliances for the performance of the services, and for the neglect or want of skill of himself and his servants."

The same rule, in substance, was applied in the case of White v. Winnisimmet Co., 7 Cush. 155, and in Clark v. Union Ferry Co., 35 N. Y. 485.

carry.

As regards the degree of care required for the safety of passengers, the duty imposed by law upon the carrier is "to carry safely, so far as human skill and foresight can go, the persons it undertakes to The law raises the duty out of regard for human life, and for the purpose of securing the utmost vigilance by carriers in protecting those who have committed themselves to their hands." Carroll v. Staten Island R. Co., 58 N. Y. 126, 133. In Caldwell v. New Jersey S. B. Co., 47 N. Y. 282, 288, it is said to be established

"that the carrier of passengers, especially in vehicles and conveyances propelled by steam, where the consequences of an accident from defective machinery are almost certainly fatal to human life, is bound to use every precaution which human skill, care, and foresight can provide, and to exercise similar care and foresight in ascertaining and adopting new improvements to secure additional protection. In Stokes v. Saltonstall, 13 Pet. 181, the supreme court say that the undertaking and liability of a carrier of passengers "go to the extent that he or his agents, where he acts by agents, shall possess competent skill, and, as far as human care and foresight can go, he will transport them safely;" and this has been repeatedly affirmed. Pennsylvania Co. v. Roy, 102 U. S. 451, 456.

As respects the origin of this fire, there is no evidence of any specific acts of negligence attributable to the owners or their servants in charge of the boat. The fire broke out in the center-house near the smoke-stack. Nothing more is ascertained. There is no proof of any want of care immediately connected with the origin of the fire; and the proof shows that the construction of the center-house was in conformity with section 4470, so far as pertains to shielding the wood-work from the "boilers, chimneys, and stove-pipes."

Title 52 of the Revised Statutes contains numerous provisions for guarding against fire, applicable to "passenger steamers," and gives very broad powers to the inspectors for the purpose of carrying out those provisions. A compliance with the statutes and the requirements of the inspectors must be deemed, at least prima facie, a discharge of the legal obligations of the owners as respects the specific subjects covered by the statute. Upon a careful consideration of sections 4463 to 4500, which compose the second chapter of title 52, I am inclined to the opinion that many of those sections are not applicable to ferry-boats. By section 4464 all steamers carrying passengers, "other than ferry-boats," must have a certificate stating the number of passengers they may carry. Ferry-boats are not limited. The context in some of the sections shows that, by the phrase "passenger steamer," ferry-boats are not intended. In other sections, as in section 4481, applicable to steam vessels generally, only ferryboats of less than 50 tons are excepted. See original of that section. in act of February 28, 1871, (16 St. at Large, 442, § 7.) Section 4471 relates only to steamers permitted by certificate to carry a definite number of passengers, and is therefore not by its own terms applicable to ferry-boats. By section 4426 in the previous chapter, the hull and boilers of every ferry-boat must be inspected under the provisions of title 52; and that section further declares that "such other provisions of law, for the better security of life, as may be applicable to such vessels, shall, by the regulations of the board of supervising inspectors, also be required to be complied with, before a certificate of inspection shall be granted." Section 4470 requires every steamer carrying freight or passengers to be provided with suit

able pipes, etc., to extinguish fire, and that "all woodwork or ignitable substances about the boilers, chimneys, cook-houses, and stovepipes exposed to ignition, shall be thoroughly shielded," etc.; and before granting a certificate of inspection "the inspector shall require all other necessary provisions to be made throughout such vessels to guard against loss or danger from fire."

The section last referred to is, I think, undoubtedly applicable to ferry-boats. By this section, and section 4426, it is evidently competent to the inspectors to require ferry-boats to be provided with the same precautions against fire, so far as applicable, that are expressly provided in reference to other steam vessels carrying pas sengers. It appears, however, that no general regulations covering this subject have ever been adopted by the board of inspectors; so that it is far from clear to what extent the general provisions of title 2, c. 52, are applicable to ferry-boats as strict statutory obligations. By section 4493 the master and owners of any vessel are made liable for any damage sustained by any passenger, or his baggage, from fire or other cause, "to the full amount of damage, if it happens through any neglect or failure to comply with the provisions of this title, or through known defects or imperfections of the steaming apparatus, or of the hull."

The Garden City was inspected from time to time, and was approved, by the inspectors. Her general structure, equipment, and provisions against fire were, for the most part at least, in conformity with the various express provisions of chapter 2. Quite a number of specific objections were taken by the claimants relating to the number of fire buckets, life preservers, etc., to which I shall make no further reference, since they are plainly in no way connected with the origin of the fire, the failure to extinguish it at once, or the loss occasioned by it.

The objection made in reference to the hose is, however, material. Section 4471 provides that "every steamer permitted by her certificate to carry as many as fifty passengers or upwards shall be provided with a good, double-acting steam fire-pump, or other equivalent apparatus for throwing water, to be kept at all times in good order and ready for immediate use, having at least two pipes of suitable dimensions to convey the water to the upper decks,

to which pipes there shall be attached good and suitable hose, properly provided with nozzles, and kept in good order and ready for immediate service." The provisions of this section, as I have said, are not, ex vi terminorum, applicable to ferry-boats; but they may be made legally applicable to ferry-boats under the powers conferred upon inspectors by sections 4426 and 4470. A steam-pump and the standing pipes, hose, and nozzle, such as are required by section 4471, were provided in the construction of the Garden City, and were examined and approved by the inspectors. The evidence leaves no doubt that the inspection and the permit issued by the inspectors