"The New Orleans & Red River Transportation Companysbsll have the privilege of appointing the captain, officers, and men of said steam-boat, and ahall have 'full and absolute control of said steam-boat as to time when and how !lhe shall be employed during the exiatence of this charter. . "At the expiration of this charter the said transportation company shall have the privilege of running it for one year, and of running it continuously at the expiration of each additional charler period,at its option."
The evidence shows that since the charter the transportation company has been running the boat on the terms in the charter,'and that every year there has been an. express or tacit renewal of the contract by the transportation company. On the very trip she was she was advertised, loaded, and sailed under and for account of the transportation company. That the owner, Scoville, actually appointed the officers is of no weight, as it was done by ,the consent of the charterers. There can be no doubt that at the time of the injuries inflicted on Posey the transportation company were the owners pro hac vice, and are responsible for their ',' " The decree of the distriat oourtwill be aJIirmtlu. by proper decree entered in this court .
and others ".VALLETTEDRY:DoOK.-
(District Oourt. E. D. Louisiana.. January 3, 1882, )
ADM:11tALT1' AND MARITIME JUR1SPICTION. This jurisdiction, 80 far as relate.s to sUbject-ma;tter,
meana that jnnedlctlon which had been and was being exercised in admiral,ty in this country prior to and' at the adoption of the constitution, and with reference to locality, comprises the navigable waters of the natiOn, as well aathe high seas.
1.' BAMEo-SALVAGE-DRY-DoCB:. A claim for the salvage of a dry-dock-a lioating dock capable of elevation or depression in ,the water by means of pumping water in or out, designed and used to be sunk'i:mder vessels, andthlm pumped out so as to become dry, leav. Ing the enclosed vessel in a position to be inspectell and repaired, and incapable of self- propulsion, not capable of being used for any purpose of navigation, and permanently moored in the Mississippi river by means of enormous chains -is not within the admiralty andmaritinie jurisdiction of the courts olthe United States, '
.Actipn ,ill rem, for .salvage. ,The. libel alleged that the Vallette drydock, lying in New Orleans, 0 11,the right, bank of the river,
*Reported by Joseph P. Hornor, Esq" of the New Orleans bar. See same case on appeal, 16 Fed, Rep, 924.
COPE V. VALLETTE DRY-DOCK.
was run into by a steam-ship that'was about leaving port, and Wits considerably damaged and left in great danger of sinking. The steamtugs of libellant and others came and rendered assistance by pumping, which saved the dry-dock, and were therefore entitled to salvage. Chas. S. Rice and J. R. Beckwith, for libellants and intervenors. M. M. Cohen, for claimants. BILLINGS, D. J. This case has been heard upon a plea to the jurisdiction. The question submitted is whether the thing libelled is of such a nature or character as to make it subject to a claim for salvage in the sense in which that word is used in admiralty. The subject of this libel is a dry-dock-a floating dock susceptible of elevation or depression in the water by means of pumping the water out or in. . Ita design and use is to be sunk under a vessel and then to be pumped out so as to become dry, leaving the vessel ina position to be inspented and repaired. It is incapable of self-propulsion, cannot be propelled except when towed, has no capacity to be used for any purpose of navigation, and was .penuanently moored in the Mississippi river:, by means of enormous chains, at a point oppo. site the city of New Orleans. The libel alleges the dock had been run into, was sinking, and was saved. The question turns entirely' upon the meaning of the expression "admiralty and maritime jurisdiction" in the provision of the constitution of the United States (article 2, § 3) which creates the judicial power, and in the ninth section of the judiciary act of 1789, which delegates that power to the district courts. It has been laid down by Chancellor Kent and Justice Story, and is affirmed by the supreme court in Ins. CQ.v. Dunham, 11 Wall. 1, and Ex parte Easton, 95 U. S. 68, that this jurisdiction means that jurisdiction which had been and was being exercised in admiralty in this country prior to and at the time of the adoption of the consti. tution, and not the jurisdiction of England nor that of 'continental Europe. So far as extent of locality is concerned, in the courts· of the United States, it comprises the navigable waters of the nation, as well as the high seas. As to what was included within this jurisdiction, my own opinion is that w.e can most safely look to the commissions of the judges in admiralty before and at the time of the revolution. A number of these commissions.are given in 'extel180 in Ban. Adm. c. 9. These. commissions show what contract8' a.re included in tht'Jt jurisdiction,
namely, charter-parties, .bills of lading, policies of insurance, etc. ; they show that locally it included the sea, public streams, etc.; what torts were included within it; and, lastly, what can be the subjectmatter of salvage; for, besides everything pertaining directly to a ship, or things nsed in navigation, they add, "and also of and concerning all casualties at sea, goods wrecked, flotsam, jetsam, lagon, shares, things cast overboard, and wreck of the sea, and all things taken or to be taken as derelict or by chance found or to be found." If one was most laboriously to prepare from all the admiralty cases which have been acquiesced in, an enumeration of the things which can be subjected to a claim for salvage, it could scarcely be more exact. It is to be seen that it includes the vessel or ship, wrecked goods, goods which float away or are cast away or which sink from the ship, and to this enumeration are added derelict things, and things found, i. e., abandoned. The Ieason of this precise discrimination is that with the exception of derelict and things found, and the ship, her cargo, and freight, there could be no basiB in reason for a lien which must exist in order to support a libel in rem. The ship and all things which pertain to it, are, in the law of admiralty, olothed with personalty, so far as responsibility goes. Those who repair or loan upon her, or equip or man her, and those who deal with her, and those who are injured by her, and those who save her, look to her. The reason of this is that she was often far distant from her home and owners, and commerce was vastly facilitated by the law thus endowing her with the attributes of a person. This is the origin of the doctrine of liens in the maritime law, and by this it is to be measured-so measured, in cases of sal. vage, it included the ship's apparel, tackle, money, cargo; and here it stopped, for the necessities of commerce did not require that anything else should be clothed with, so to speak, capacity to subject itself to pecuniary responsibility. The salvage allowed derelict and "found" property, from a different reason, namely, as an incentive to save property abandoned to destruction from the elements upon the broad ocean. I think the commissions of the colonial admiralty judges, a study of the cases which have arisen in our admiralty jurisprudence, and the fact that salvage is allowed only in connection with commerce, all lead to the recognition of this test as being the true one. Judged by it, the object here libelled, the dry-dock, is not the subject of admiralty or maritime jurisdiction for salvage.
WATTS V. CAMORS.
This manner of arriving at a solution of the question before the court renders it unnecessary to comment upon the cases which have been cited, further than to say that in all the cases decided by courts of the United States where salvage has been allowed, the property saved was either the ship, her cargo and freight, or derelict property, or property abandoned upon the navigable waters, and in all the cases where it has been disallowed the property saved was neither. I except the caSe of Four Cribs of Spars/Taney, 533, where the usages of the lumber business seem to have controlled the court. See The Hendrick Hudson, 3 Ben. 419; Salvor Wrecking Go. v.. Sectional Drg-dock Go. 3 Cent. Law J. 640; Thackeray v. The Farmer, Gilpin, 524; The Belfast, 7 Wall. 637; 1 Conkling, Adm. 8; 50,000 Feet of Lumber, 2 Low. 64; A Raft of Spars, 1 Abb. Adm. 485; 28 Bales of Gotton, 9 Ben. 48. The plea to the jurisdiction is maintained, and the libel dismissed.
J. B.CAMORB & Co.-
(Oircuit Oourt, E. D. Louisiana. June, 1881.)
The representation of the registered measurement of a vessel In a charterparty is to be taken as merely descriptive, when the evidence shows that it was known to neither of the parties at the time the contract was entered into, and neither party was entrapped or mislead thereby, and when the contract, taken as a whole, shows that the real consideration actuating the charterers was the actual carrying capacity of the vessel.
The court will not, at the instance of a party, construe a contract so that it would be necessarily void at the option of said party, if it dOt::s not appt::al' that both parties intended it should be so construed. 3.
SAME-MEASURE Oll' DAMAGES ll'OR THE VIOLATION Oll'.
The amount of damages to be awarded for the violation of a charter-party must be estimated by the rules of the commercial and admiralty law, and be the actual damages suffered, and not the amount of the stipulated penalty, although that might be the measure of damages under the law of the place where thl> charter-party was made.
In Admiralty. J. R. Beckwith, for libellant. Henry G. Miller and J. Ward Gurley, Jr., for defendants.
-Reported by Joseph P. Hornor, Esq., of the New Orleans bar.