delivered the opinion of the court.

This is an appeal from a decree of the District Court of the United States for the Northern District of California, sitting in ■admiralty. The libel alleges that the appellee was a passenger on board the steamer on á voyage from Sacramento to San Francisco, in June, 1851, and that, while navigating within the ebb and flow of the tide, a boiler flue was exploded through neg*473ligence, and the appellee grievously scalded by the steam and hot water. •

The answer admits that an explosion occurred at the time and place alleged in the libel, and that the appellee was on board and was injured thereby, but denies that he was a passenger for hire, or that the explosion was the consequence of negligence.

The evidence shows that it is customary for the masters, of steamboats to permit persons whose usual employment is on board of such boats, to go from place to place free of charge; that the appellee had formerly been employed as a waiter on board this boat; and just before she sailed from Sacramento he applied to the master for a free passage to San Francisco, which was granted to him, and he came on board.

It has been urged that the master had no power to impose any obligation on the steamboat by receiving a passenger without compensation.

But it .cannot be necessary that the compensation should be. in money, or that it should accrue directly to the owners of the boat. If the master acted under an authority usually exercised by masters of steamboats, if such exercise of authority must be presumed to be known to and acquiesced in by the owners, and the practice is, e, bn indirectly, beneficial to them, it must be considered to have been a lawful exercise of an authority incident to his command.

It is proved that the custom thus to receive steamboat men is general. The owners must therefore be taken to have known it, and to have acquiesced in it, inasmuch as they did not forbid the master "to conform to it. And the fair presumption is, that the custom' is one beneficial to themselves. Any privilege generally accorded to persons in a particular employment, tends to' render that employment more desirable, and of course to enable the employer more easily and cheaply to obtain men to supply his wants.

It is true the master of a steamboat, like other agents, has . not an unlimited authority. He is the agent of the owner to do only what is usually done in the particular employment in which he is engaged. Such is the general result of the authorities. , Smith on-Mer. Law, 559; Grant v. Norway, 10 Com. B. 688, S. C. 2 Eng. L. and Eq. 337; Pope v. Nickerson, 3 Story, R. 475; Citizens Bank v. Nantucket Steamboat Co. 2 Story, R. 32. But different employments may and do have different usages, and qonsequently confer on the master different powers. And when, as in this case, a usage appears to be general, not unreasonable in itself, and indirectly beneficial to tfye owner, we *474are of opinion the master has power to act under it and bind the owner.

' The appellee must be deemed to have been lawfully on board under.this general custom.

Whether precisely the same obligations in all respects on the part, of thé-.master and owners and their boat, existed in his case, as in that of an ordinary passenger .paying fare, we do not find it.necessary to determine. In the Philadelphia and Reading Railroad Company v. Derby,. 14 Hbw. R. 486, which was a case of gratuitous carriage of a passenger on a railroad, this court said: “ When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and sáfety require that they should be held to the greatest possible care -and diligence. And whether the consideration for such transportation be pecuniary or otherwise, the personal safety of passengers should not be left to the sport of chance or the negligence of .careless agents- Any negligence, in such cases, may well deserve the epithet of gross.”

We desire to be understood to reaffirm, that doctrine, as resting, not only on public policy,'but on sound principles of’ law.

The theory that there are three degrees of negligence, described by the terms slight, ordinary, and gross, has beep introduced- into the common law from some of the- commentators on the Roman law. It may be doubted if these terms can be-.usefully applied in practice. Their meaning is not fixed, or, capable of being so. One degree, thus described, not only may be confounded with another, but it is quite impracticable exactly to distinguish them.' Their signification necessarily varies according to circumstances, to whose influence the courts have been forced’ to yield, until there are so many real exceptions that the rules -themselves can scarcely be said to have a general operation'. In Storer v. Gowen, 18 Maine R. 177, the Supreme Court of Maine say: How much care will, in a given case, relieve . a party from the imputation of gross negligence, or what omission will amount to the. charge, is necessarily a question of fact, depending on a great variety of circumstances which the law cannot exactly define.” Mr." Justice Story, (Bailments, § 11,) says:. “ Indeed,, what is common or ordinary diligence is more a . matter of-fact than of law.” If the law furnishes no definition of the terms gross negligence,' or ordinary negligence, which can be applied in practice, but leaves it to the jury to determine, in each case, what the duty was, and what omissions amount to a . breach of it, it would seem that imperfect and confessedly unsuccessful attempts to. define that duty, had better be abandoned.

Recently the judges of several courts have expressed their *475disapprobation of these attempts to fix the degrees of diligence by legal definitions, and have complained of the impracticability of applying them. Wilson v. Brett, 11 Meeson & Wels. 113; Wylde v. Pickford, 8 Ib. 443, 461, 462; Hinton v. Dibbin, 2. Q. B. 646, 651. It must be confessed that the difficulty in' defining gross negligence, which is apparent in perusing such cases as Tracy et al. v. Wood, 3 Mason, 132, and Foster v. The Essex Bank, 17 Mass. R. 479, would alone be sufficient to justify these complaints. It may be added that some of the ablest commentators on the Roman law, and on the civil code of France, have wholly 'repudiated this theory of three degrees of diligence, as unfounded in principles of natural justice, useless in practice, and presenting, inextricable embarrassments' and difficulties. See Toullier’s Droit Civil, 6th vol. p. 239, &c.; 11th vol; p. 203, &c. Makeldey, Man. Du Droit Romain, 191, &c.

But whether this term, gross negligence, be used or not, this particular case is one of gross negligence, according to the tests which have been applied to such a case.

In the first place, it is settled, that “ the bailee must proportion his care to the injury or loss which is likely to be sustained by any improvidence on his part.” Story on Bailments, § 15.

It is also settled that if the occupation or employment be one requiring skill, the failure to exert that needful skill, either because it is not possessed, or from inattention, is gross negligence. Thus Heath, J., in Shields v. Blackburne, 1 H. Bl. 161, says, “ If a man applies to a surgeon to attend him in a disorder for a reward, and the surgeon treats him improperly, there is gross negligence, and the surgeon is liable to an action; tlm surgeon would also be liable for such negligence if he undertook gratis to attend a sick person, because his situation implies skill in surgery.” And Lord Loughborough declares that an omission to use skill is gross negligence. Mr. Justice Story, although he controverts the doctrine of Pothier, that any negligence renders a gratuitous bailee responsible for the loss occasioned by his fault, and also the distinction made by Sir William Jones, between an undertaking to cany and an undertaking to do work, yet admits that the responsibility exists when there is a want of due skill, or an omission to exercise it. And the same may be said of Mr. Justice Porter, in Percy v. Millaudon, 20 Martin, 75. This qualification of the rule is also recognized in Stanton et al. v. Bell et al. 2 Hawks, 145.

That the proper management of the boilers and ma. hinery of a steamboat requires skill, must be admitted. Indeed, by the act of Congress of August 30,1852, great and unusual precautions are taken to exclude from this employment all persons who do not possess it. That an omission to exercise this skill *476vigilantly and faithfully, endangers, to. a frightful extent, the lives and limbs of great numbers of human beings, the awful destruction of life in our country by explosions of steam boilers but too painfully proves. We do not hesitate therefore to declare that negligence in the care or management of such boilers, . for which skill is necessary, the probable consequence of which negligence is injury and loss of the most disastrous kind, is to' be deemed culpable negligence, rendering the owners and the boat liable for damages., even in case of the gratuitous carriage of a passenger. Indeed, as to explosion of boilers and flues, or other dangerous escape of steam on board steamboats, Congress has, in clear terms, excluded all such cases from the operation of a rule requiring gross negligence to be proved to lay the foundation of an action for damages to person or property.

The thirteenth section of thé act of July 7, 1838, (5 Stat. at Large,' 306,) provides: “ That in all suits and actions against proprietors of steamboats for injury arising to persons or property' 'from the bursting of the boiler of any steamboat, or the collapse of a flue, or other dangerous escape of steam, the fact of such bursting, collapse, or injurious escape of steam shall be taken as full pri'md facie evidence sufficient to charge the defendant, . or those in his employment, with negligence, until he shall show that no negligence has- been committed by him or those in his employment.”

This case falls within this section; and it is therefore incum- . bent on thé'claimants to prove that no negligence has been committed by those in their employment.

' Have they proved this ? It appears that the disaster happened a short distance above Benicia; that another steamer called the Wilson G. Hunt, was then about a quarter of a mile astern of the New World, and .that the boat first arriving at ' Benicia got from twenty-five to fifty passengers. The pilot of the Hunt says he hardly knows whether- the boats were racing, .but both were doing their best, and this is confirmed by the assistant pilot, who says the boats were always supposed to comedown as fast .as possible; the first boat at Benicia gets from twenty-five to fifty passengers. And he adds that at a particular place called “ the slough ” the Hunt attempted to pass the New World. Fay, a passenger on board the New World, swears, that on two occasions, before reaching “ the slough ” the Hunt attempted to pass the New World, and failed; that to his knowledge these boats had been in the habit of contending for the mastery, and on this occasion both were doing their best. The fact that the Hunt attempted to pass the New World in .“the slough” is denied by two of the respondents’ witnesses, . but they do not meat the testimony of Fay, as to the two pre*477vieras attempts. Haskell, another passenger, says, “ about ten minute's before the explosion I was standing looking at the engine, we saw the engineer was evidently excited, by his running to a little window to look out at the boat behind. He repeated this ten or fifteen times in a very short time.' The master, clerk, engineer, assistant engineer, pilot, one fireman, and the steward of the New World, werd examined on behalf of the claimants. No one of them, save the pilot, denies the fact that the boats were racing. With the .exception of the pilot and the engineer, they are wholly silent on the subject. The pilot says they were not racing. The engineer says: “ We have had some little strife between us and the Hunt as to who should get to Benicia first. There was an agreement made that we should go first. I think it was a trip or two before.” Considering that the master says nothing of any such agreement, that it does not appear to have been known to any other person on board either boat, that this witness and the pilot were both directly connected with and responsible for the negHgence charged, and that the fact of racing is substantially sworn to by two passengers on board the New World, and by the pilot and assistant pilot of the Hunt, and is not denied by the master of the New World, we cannot avoid the conclusion that the fact is proved.- And certainly it greatly increases the burden which the act of Congress has thrown on the claimants. It is possible that those managing a steamboat engaged in a race may use all that care and adopt all those precautions which the dangerous power they employ renders necessary to safety. But it is highly improbable. The excitement engendered by strife for victory is not a fit temper of mind for men on whose judg ment, vigilance, coolness and skill the lives of passengers depend. And when a disastrous explosion has occurred in such a strife, this court cannot treat the evidence of those engaged in it, and primd facie responsible for its consequences, as sufficient to disprove their own negligence, which the law presumes.

We consider the testimony of the assistant engineer and fireman, who are the only witnesses who speak to the quantity of steam carried, as wholly unsatisfactory. They say the boiler -was allowed by the inspector to carry forty pounds to the inch, and that when the explosion occurred, they were carrying but twenty-three pounds. The principal engineer says he does not remember how much steam they had on. The master is silent on the subject and says nothing as to the speed of the boat. The clear-weight of the evidence is that the boat was, to use the language of some of the witnesses, doing its best. We are not convinced that, she was carrying only twenty-three pounds, little more than half her allowance.

*478This is the only evidence by which the claimants have endeavored to encounter the presumption of negligence. In our • opinion it does not disprove it; .and consequently the claimants ■ are liable to damages, and the decree of the District Court must be affirmed.

From the opinion of the majority of the judges in this case I dissent.

That the appellee in this case has sustained a serious injury cannot, consistently with the proofs adduced, be denied, and it is probable that the compensation which has been awarded him may not be more than commensurate with the wrong inflicted upon him, or greater than that for which the appellants were justly responsible. But the only question in my view which this court can properly determine, relates neither to the character nor extent of the injury complained of, nor to the adequacy of the redress which has been decreed. It is a question involving the power of this court to deal with the rights or duties of the parties to this controversy in the attitude in which they are presented to its notice.

This is a proceeding under the admiralty jurisdiction, as vested in. the courts of the United States by the Constitution. It is the case of an alleged marine tort. The libel omits to allege that the act constituting the gravamen of the complaint, did not occur either infra corpus comitatus, nor infra fauces terree. It will hardly be denied that the rule of the admiralty in England, at the time of the adoption of the Constitution, confined the jurisdiction of the admiralty within the limits above referred to, or that the admiralty never had in England general or concurrent jurisdiction with the courts of common law, but was restricted to controversies for the trial of which the pais, or local jury, could not be obtained. Having on a former occasion investigated extensively the origin and extent of the admiralty powers of the federal courts, (see New Jersey Steam Navigation Company v. Merchants Bank, 6 How. 344,) it is not now my purpose to do more than to refer to that examination, and to maintain my own consistency by the reassertion of my adherence to the constitutional principles therein propounded, principles by which I am constrained to deny the jurisdiction of this court and of the Circuit Court, in the ease before us.

It is true that the libel in this case alleges the injury to have been committed within the ebb and flow of the tide, but it is obvious that such an allegation does not satisfy the description *479of an -occurrence which to give jurisdiction'must be marine or nautical in its character and locality. Although all tides, are said to proceed from the action of the moon upon the ocean, it would be a non sequitur should the conclusion.be attempted that therefore every river subject to tides was an ocean.

It to my view seems manifest, that an extension of admiralty jurisdiction over all waters affected by the ebb and flow of the tide, would not merely be a violation of settled ^and venerable authority, but would necessarily result in the most mischievous interference with the common law and internal and police powers of every community. Take one illustration which may be drawn from subjects within our immediate view.

In the small estuary which traverses the avenue leading to this court room, the tides of the Potomac regularly ebb and flow, although upon the receding of the tide this watercourse can be stepped over. Upon the return' of the tide there may be seen on this water numerous boys bathing or angling, or passing in canoes. Should a conflict arise amongst these urchins, originating either in collision of canoes or an entangling of fishing lines, or from any similar cause, this would present a case of admiralty jurisdiction fully as legitimate as that which is made by the libel in the ease before bs. Yet the corporate authorities of Washington would think strangely no doubt of finding themselves, by the exertion of a great national power designed for national purposes, ousted of their power to keep the peace, and to inflict upon rioters within their notorious limits, the discipline of the workhouse. .

I am opposed to every assumption of authority by forced implications and constructions. I would construe the Constitution and the statutes by the received acceptation of words in use at the time of their creation, and in obedience to this rule, I feel bound to express my belief that, in the present ánd in all similar eases, this court has ' no jurisdiction under the Constitution of the United States.

Order.

This cause came on to be heard on the transcript of the record, from the District Court of the United States for the Northern District of California, and was argued by counsel. On consideration whereof, it is nowhere ordered, adjudged, and decreed by this court, that the decree of the said District Court in this cause, be, and the same is hereby affirmed, with costs and interest, at the same rate per annum that similar decrees bear in the courts of the State of California.