Court, 8. D. Alabama. 1884.)
ADMIRALTy-MARITIME LIEN-VESSELS-DREDGE AND . Scows.
Dredp;es and scows, though never used in the transfer of passengers or freight, and furnished with no motive power of .their own, are vessels, and suhject aa such to maritime liens for services rendered and supplies furnished.
In Admiralty. Lyman H. Faith, for Fobes & Co. and Michael Merrigan. Overall et Bestor and F. G. Bromberg, for August Kling and Cavanagh, Barney & Brown. Pillans, Torrey et Hanaw, for Hyer & Co. and HorsIer and others. J. L. et G. L. Smith and R. H. Clark, for claimants. BRUCE, J. A number of libels have been filed in this court against the dredge Alabama and two scows. One of them is founded upon a claim for towage of the dredge and scows from Mobile bay, Alabama, to Tampa, in the state of Florida. Another is for services of the operator of the dredge while engaged in her operation of dredging, and others are for materials and supplies furnished to the dredge. To these libels exceptions are filed, and one of the exceptions is common to all the libels, and excepts to the jurisdiction of the court on the ground that the claims or contracts sued on are not maritime contracts, and that no lien exists which can be enforced in the district courts of the United States as courts of admiralty. The question raised is whether the things libeled (the dredge and scow) are of such a nature as to make them the subjects of a maritime contract and lien. Evidence has been introduced to show the character of the dredge and scows, the manner in which they are built and constructed, the purpose for which they are constrncted and used, and the mode by which they carryon the business of drodging. The evi· dence shows that the hull of the dredge is built like the hull of other boats or vessels intended for navigation. That she is strongly built to support heavy machinery placed upon her, including a steam-engine which furnishes the power necessary to operate the machinery used in dredging and deepening channels in the water-ways of commerce. The scows are constructed like other decked. scows, except they have in them what are called wells, which are inclosed cpaces open in ·the deck and closed at the bottom of the scows with doors, which wells or spaces receive the earth which is brought from the bottom of the channel by the dredging process, and when filled the barge is towed to some place where the earth is to be dumped, when, b:r opening the doors in the bottom of the wells the earth passes out, and the scow, relieved of its burden, rises up. Neither the dredge nor the scows have rudder or masts, though it is in proof that some dredges similady constructed do have masts and sails. The dredge and scows
THE . ALABAMA.
have no means of propulsion of their own except that the dredge, by the use of anchors, windlass, and rope,is moved for short distances, as required in carrying on the business of dredging. Both the dredge and the scows are moved from place to place where they may be employed by being towed, and Bome of the tows have been for long distances and upon the high seas. The dredge and scows are not made for or adapted to the carriage of freight or passengers, and the evidence does not show that, in point of fact, this dredge and scows had ever been so used and employed. It is insisted that structures of the kind described are not vessels, and are not the subjects of admiralty and maritime jurisdiction; that contracts for the service or supply of such structures are not maritime contracts; that, in order to be so, they must pertain in some way to the navigation of a vessel having a carrying capacity and employed as an instrument of trade and commerce, and that the dredge have no relation to commerce or navigation, and scows in and in no proper sense can be considered instruments of commerce. The function of a dredge and scows, such as we have been considering, is to clean out and deepen channels in the water-ways of commerce so as to aid and facilitate ships in their passage to and from, and while a service of this kind in aid of commerce is a very different thing from commerce itself, yet it could hardly be said to have no relation to commerce or navigation. The relation may not be the most direct, and the authority relied on is not so definite and clear as necessarily to exclude water-craft which may not be engaged or adapted to the carriage of freight and passengers. In the case of Thackarey v. The Farmer, Gilp. 524, the rul,e is thus stated: "It (the service) must be a maritime service. It must have some relation to commerce or navigation, some oonnection with a vessel employed in trade. · · ." In the case cited and relied on by the claimants, reported in Flippen, 543, where Judge BROWN, in the Western district of Tennessee, had laid down the rule that the contract must pertain in some way to the navigation of a vessel having carrying capacity, it should be borne in mind that it was a case of a raft of logs that was before him, quite unlike the case at bar here. He says the contract must pertain in some way to the navigation of a vessel having carrying capacity; · · · and in the case of The Farmer, supra, it isaaid it must have some relation to commerce or navigation, which is certainly no very definite and exact statement of the rwe, though };erhaps as much so as the question admits, for it is often difficult and even impossible to formulate a general proposition in words that will unerringly suit every case. To say that the dredge in question has some relation to commerce or navigation is perhaps no stretch of the rule at all, but upon i·his subject we are to bear in mind not only the idea of commerce in the sense of the carriage of freight and passengers, but the idea of naviv.19,no.7-35
gation !lOllles intQ,the q1,l.6stion as well. Th dredge and scow are 90nstructed to float inand.upon .the waters, they ltJ::e made to sail, and for navig!.l.tion; and oaD beiused only in andup<)D the waters. They have no motive power of their own, and be moved only by power applied externally, still theyhav:e the oapacity to be navigated in and upon the waters, \lond they are water-craft ma4tl for navigation, and the dredge. in question has actually made voyages on the high seas. case of Cope v. Vallette pry-dock Co., in the Eastern district of Louisiana, reported in 10 FED. REP. 142, and decided on appeal to the circuit court, Justice WOODS delivering the opinion, and the circuit judge (P!RDEE) cOIl;curring, reported in 16 FED. REP. 924,ilJ olaimed to be in opposition to this view, but 1 think it is not really so. ':L'hat was a case of a claim for salvage services, and in the opinion the, court says: "The structure (1\ dry-dock) to. wh!.(lh they (the'services) were rendered; was not designed for navigation,and, being practically incapable of naviga. tion, it had no more connection with trade or commerce than a wharf, a shipyard,or a fixed dry-docl\:, into which water-orafts· are introduced by being drawn up on ways.. As shown by the. findings, it had remained securely and permanently moored to the bank fora period of more than 14 years; it partook mOl'e of the nature of a fixtnre attached to the realty than of a boat or ship. " . !" ' To say that the dredge Alab.ama, in the light of the testimony ad. duced in thiS' case, partook more of the. nature of a fixture attached to the realty than of a boat or ship, is out of the question. It is essentially in its nature ahoat or vessel; and the fact that to operate the dredge it is not necessary to have licens.ed officers.or skilled seamen is not important, ·for that does not furnish the test or criterion by which the question is to be determined. The doctrine or rule upon this subject is more satisfactorily and more authoritatively stated by the supreme court. of the United States, inthe case of The Rock Island 13ridge.6'Wall. 21t;l,whflxe the courb,speaking by Justice FIELD, say: lOA maritime lien can only exist upon movable things engaged in navigation, .or upon·things which are thesubjeets of commerce on the high seas or navigable waterS:' The cOllrt goes on speaking more particularly to the case there under conflideration, and says: "But it [a maritime lien] cannot arise upon anything which is fixed and immovable, like a wharf, a. bridge. or real estate of any kind." Though bridges and wharves may aid. commeroe by facilitating course on land, or the discharge of cargoes, they are not in any sense the subjflcts ofa maratime lien. The court here .distinctly recognizes mobility and capacity to. navigate as a,prime element, in determining what things are the subjects of maritime lien. Testefi·,b·y this rule, the scows and dredge in question m.ust be held to be the subjects oLa maritime lien. It will not do to SQ,y that every .water-craftwhich ,is not used in the carrying of freight and gers is therElfore not epgagedin and haa no relation to commerce and
riavigatiOJi. That is too narrow,' is not' . by the nor can it be sustained by right reason.' , . . In support of these views, in additi0J? to the cases cited and Mm· mentedupon, the case of theflolliting elevator, Hezekiah Baldwin.·s ' Ben. 556, and Endner v. Greco, 3 FED. REP. 411, may be cited. The result is that- the exceptiontJ the jurisdiction of the court is overruled. .
(District Court, 8. D. NefJ1·Yqrk. February 6, 1884.)
CoLLISION-VALUB OF VESSEL-How AsClllRTAINED·.
In ascertaining the market value ,of a v/3SBel sunk in a cOllision. the commissioner or court is not restricted to the evidence of competent persons who knew the vessel and testified as to her market value, though that is in general the best single class of evidence.; , Whcre the period of collision is one of great stagnation in the market, and there are no actual sales to furnish a criterion of market value, the cost of the vessel, witb deductions for deterioration, especially when the vessel was cently built, may be properly resorted to determining the value. ' Though the rescue and care of the crew of a ship sunk in a c6111si0I1 is not, in the absence of statutory provisions, a legal obligation in the sense; Of entail· ing penalties or pecuniary damages for neglect of it, it is a maritime obligation recognized in the admiralty; and any aetual expenses incurred by the surviv· ing ship in cases of collision in the rescue, support, and return to land o! the crew of the vessel sunk, should be beld a part of the pecuniary damage arising from the collision, and divided between the two vessels, where both 81'". in fault. '
SAME-COST OF CONSTRUCTION.
SAME-CARE Aim RETURN OF CREW.
Where the British steamer A., which, after a collision with a schooner olf Long Island, took on board the captain and crew of the schootter which was sunk, and put back towards New York with them, and on pilot-boat paid £25 for the conveyance of the captain and .crew to 'New York, and then' put about on her voyage for Europe, being detained thereby one day, and having consumed £11 worth of coal extra, hela, that under the maritime law, well as under the St. 25 and 26 Vict., the steamer should be allowed to bring into the account, Be part of her damages arising from the collisioJiJ £20 demurrage for one day's detention, together with the £11 for coal, ana £25 for the money paid fQr conveying the captain and crew to New York. .
Ii. BAME-VALUE OF FURNITURE AND PERSONAL EFFEOTS.
In estimates of the value of furniture or personal effects lost, a deduction may be made from the market value of, similar articles new, according to the' period and time of use, notwithstanding the owner's testimony thILt to him they; were as good as new.
Exceptions to Commissioner's Report. Scudder'tt Garter and Geo. A. Black, for libelants. Foster & Thomson and R. D. Benedict, for respondents. . . ' " BROWN, schooner Job M: Leonard having been sunk in the through a col· Atlantic ocean, off Long Island, on April 18, lisionwiththe steamship Arragon, owned by respondent,thhl