THE HIRAM· R. DIXON.
that the bar had not increased t and that the dock was safe and free from obstructions so far as it was the duty of the company to make it so. I am of opinion that the gas company is responsible for the damage to the Harris. Interlocutory decree for the libelants.
THE HIRAM LoRD
. . D. New York. December 15, 18&7.)
M.AR:J'Tnr1tLmNs-BupPLIEll-l3'EFoRE .VESSEL LAUNCHED.
is a maritime contract,though, at the time of making the vessel be not launched.
A contract to .furnish· necessaries for the use of a vessel during
a Toyage at
BAME":':'CoNnUCT-BupPLIEB· IN FOREIGN PORT.
When a contract contemplates the furnishing of supplies to a vessel at a foreign' part, it is to be presumed that a lien on·the.vellsel wae contempiMed bV the parties, unless. something to the contrary appears. '('.'
A ciontract to furnish nets to a t1shlngvessel is
maritime contract, In view ..of thes\1bject-matter. though the contract be made on land andnetll delivered on landl and if such nets ar,efurnlshed when the vessel i8 i.u. a foreign port. a lien for their price is created on the v e s s e l . '
BAliE-'-1tLuUTl)[E CONTRACT-To SUPPLY FISHING-NETS.
libelants. lJudlow Ogrkn, for claimant. Stern &: Myer8, for Kessler.
BENEDICT, J. This is a proceeding in rem to enforce agllinst the steamer Hiram R. Dixon a lien for the price of certain fishing-nets. The facts are 'riot in dispute. In 1883, the steamer proceeded against was Luilt at Mystic Bridge, in the state of Connecticut. In April Of that year, upon being launched, she 'was towed to New York to receive her boilers and engines. For that purpose she remained in New York until July 4,1883, andwhile there was enrolled, that being the residence of her owner; After her enrollment she proceeded to Bristol, in the state of Rhode Island, and there received her outfit for a fishing voyage. As part of her outfit for that voyage she received on board the nets in question, and thereafter proceeded to sea, and with them engaged in the husiness of catching menhaden. These nets the libelants made to order for this vessel, upon request of Hirllm R. Dixon, for whom the vessel was then being built at Mystic Bridge. .Pursuant to directions from Dixon, the nets when completed were sent to William M. Fish, thedeao
lReported by Edward G. Benedict, Esq., of the New York bar;
who. then at Btistol Fetry, where the vessel wasJQbe out. for a fishing voyage under bis directioll.Fish ,receiyEltd"tb,e,n,e:t!l in,May, 1883. At this time the vessel was in New York receiving her engines.,., From New already stated, she steamed to Bristol Ferry, and thence, after receiving these nets and other outfit for her intended voyage, she proceeded to sea. The nets not being paid for, the vessel, when ahearrived in this district, was seized in this proceeding. . There is no controversy as to the, of, the llets and the amount due therefor, but the claimants SllY the libelants have llO lien. And first they contend thij,t the contrapt sued on. was nota maritime contract, because when the neb! vierecontracted fot there was no vessel. The Hi,was not but wlitS, a hull, expected ram R. to become a. vessel inpi'ocess oftiine, but which nevertheless might never become one. Accordillg to my ,understanding,. the contract to ,furnish necessaries ,for the use 'Of a vessel during Ilivoyage at sea is a maritime oontract; whether at' thetirile ofimaking the the vessel be already launched or only abouttoJ>6 14u.pohed; a.nd}6rthe reason that in .one case asJn the other the contraofrelates to navigation, business, and oommerce'dD thes,6a:,' :10 this of the 'c?ntract sued on ,was to enable thIS, vessel to p'Ul.:lte,tl 1 fishlng . .The nets wereQ:lade,fp.rthis vessel, and, without these nets ··,the voyage then contemplated could not ,have ,They were an';essenti:a1 part 'of the such a voyage. These features are the elements of a maritime contract. A seaman, shipped for a particular vOJ'age on a new ship then ,on t};1e ways unlaullched, wIto her; ,when the voyage, surely would not be debarred from recovering his wages admiralty. But in that case it would be as truly saiqas in this contract is not maritime, because when it was made was ;no ship. .1t1any charter-parties have no doubt been signed when at the time the ship lay "in the deep. bosom of c9qJd it beEluccessfully tended insu9P l!' case tQat the charter vvasnobt qU\lEltiopis w4ether the ship, t()pursueher .on the sea:. If in the .cputemplatiQp. of the pawes to the contrac,t I!uch .is the obJect,:and if suchJ.>e its e:ffeet, ,the ,contract is a.PJaritime :Co&'IiVaott;.a1JIiough It ,theJaet th!j.t :at the time the is made. the ship IS unfit for sea, or eyenon ways, .unlaunched. . Ir .' It is pointed out by'the, the claimants that the .in question was !pade on land; to be performed on that to con.of time on land; and that the.deof tl;1e nets took on la;nd. True, but the nets were not conto qe used on land. They :weremadeto be used infishing t and .l;Jy ,this particular veE\sel, on the Attention is also Qalled to the fact that when the the .vessel hadllot ,o-rrived at Bristol Ferry", bu.t wll.stakhlgp;n ,bo&J;d her boilers and engines at New York. She was, however, expected to arrive at Bristol Ferry; and the master aitha v:.essel.. there r!'lceived the nets for the use of the
'.J:HE HIRAM ,R'.,DIXON.
vcssel,to which use they were applied ",ben she did 'arrive. The test of locality is now abandoned.. The true test is the subject-matter. The subject-matter of this contract is the outfit ofthevesselfor a voyage from Bristol Ferry, and the sole objectsought to beattaitled by the contract was the accomplishment of such a voyage. Such a contract relates directly to navigation, business, and. commerce on the sea, and is therefore maritime. The contract being maritime, and the nets being necessary for the vessel to enable her to perform an intended voyage; and being received oneoard .at Bristol Ferry, where she was a foreign vessel, by the maritime law a lien attached to the vessel enforceable in admiralty. So, also, in my opinion, an action in personam against the owner could have been maintained in admiralty upon the contract when performed· .Again, His contended that the contract was one for original equipment,' and therefore not maritime. The case of The Thomas Jefferson, (People'8 Ferry Co. v. Beers,) 20 How; 393, is cited as authority. In the case of: The '/!homt:J,a Jefferson, a contract for building the hull of a ship was held not to be a maritime conttact. The only reason given, is that the con.tract was made on land, to be performed on land, and had no reference to a voyage to be performed. Considering the time when it was made.1857,..-this··decision is to some extent explained by the statement'in the opinion'that "the question presented involves a contest between the state and federal government." In the subsequent case of The Capitol, (Roachv. Ohapman,) 22 How. 129, argued by Judah P. Benjamin, in 1859, a contract for building ,a ship, or Bupplyingengines,timber,or other materials for her constT'lliZion, was' held not maritime, upon the . grounds stated in ,the case of TM Thomas Je,fferson,that the contract was a contract for construction, made on land, and had no referenCe to a voyage to be performed. These decisions are still law in cases f6r'constructing,Rship, made without reference to a voyage to be performed. "The effect of these. decisions is not to be extended by implication to other cases."]nsurance 00. v. Dunham, 11 Wall. 28; 'rhey do not control this 'case, because the contract !orthese nets did have reference to a voyage to be performed, and besideSiwas not a construction contract. The nets were to be used ona then contemplated voyage, and the sole object of the contract sued on was to enable that voyage robe performed:.. When they wel'ereceived by,the vessel she was already conBtructed,andhad made a voyage from New York to Bristol Ferry. As the decisions of the supre,me court now stand, wages of shipwrigMs, earned in the building of a steamel', engines and boilers entering into her construction when she is built, if contracted for without reference toa voyage to be performed, are not maritime contracts. The supreme court has yet to hold that contracts to make nets for a contemplated fishing voyage of a fishing vessel are not maritime because made on land, and without reference to a voyage to be performed. Since the decision in the case of The Thomas Jefferson, other courts have held that a contract for sails made for and fitted to a ship when being built, and even a contract for anchors and chains furnished a ship when being built, are not
maritime contr.acts. As to which cases it may perhaps be justly said that without the articles in question the vessel could make no voyage at all. But not everything furnished a ship while being built goes into her construction. Does coal furnished a steamer before she is launched go towards her construction? Are the furnishers of harpoons and lines to a whaler before she is launched builders of the ship? No more are these net-makers. That fishing instruments are notto be deemed part of the ship itself appeared as long ago as the laws of Oleron. See Godo!.. London, 1661, App., containing an extract from the ancient laws of Oleron, No. 25. And so, as I conceive, has the law remained until this day. My finding, therefore, is that these nets are constructed for this vessel, in pursuance of a maritime contract, and that they were recei.ved by the rn;aster at Bristol Ferry for the use of the vessel, and that they were necessary for, and actually used by,the vessel in catching menhaden,' Fl'ODl these findings it follows that the vessel became bound for the price of the nets, because at Bristol Ferry the vessel was a foreign vessel. She was neither built nor enrolled nor owned in the state of Rhode Island. It is again said that the nets were furnished upon the personal credit, of Dixon, and therefore there is no lien. The contract contemplated the furnishing of the nets to. the vessel at the foreign port of Bristol Ferry, and itis to. be presumed that a lien upon the vessel was contemplated by the parties theulselves, unless something to the contrary appears. It matters nothing that the nets arrived at Bristol Ferry before the yessel did, They were sent there in anticipation of the vessel's arrival, in order to be put on board her ,there, and they were there received by her. Nothing in the contract or correspondence is sufficient to show the absence of an intention to sell the nets upon the credit of the vessel. It is indeed true that the libelant's order-book contains no charge against the vessel, but neither the absence nor the presence on the books of a charge against the vessel is conclusive. The omission to mention the vessel in this instance is explained by the fact that the vessel was then unnamed. Here the burden is upon the claimants to show facts from which an.intention to rely solely upon the credit of the owner can be inferred, and such facts have not been made to appear. So as to the defense oflaches. No. laches is shown. Indeed this defense has not been urged in argument. My conclusion therefore is that the libelants are entitled to recover in this action against the vessel proceeded against the amount due accord.; ing to the Schedules A and B, attached to the libel,the other items having been waived. For the amount of these two bills Schedules A and B, with interest and costs, let a decree be entered·
THE GAZELLE. L\NKLATERV. THE GA7.ELLE.
(Di8t'l'ict OOU'I"t, N. D. lilinoia. November28,1887.)
COLLISION-FAILURE TO MAKE LIGHT.
The J., a sailing yacht of ,about seven tons.· sloop-rigged" was coming through the south-east passage of the outer breakwater, at Chicago, at a speed of two and three-fourths miles, with a light south-west wind, when the pro· peller G.. bound for South Chi'cago, left her landing at the foot of Harrison street, and laid her course, at a speed of four and one-fourth miles, for the same passage. The J. carried but one light, a bright white one; but that was placed on her pawl-post, jUl:1t forward of her mast. whereit could,beplainly seen by any vessel approaching her from or.Jorw:ardnfeither quarter, The course of the two vessels was such as to Muse them each other sublltllDtially bows on;' When 600 feet apart, the light'wlLs plainly seen by passengers of the G.. which vessel was abouMhat time hailed by tlle J. ,The G. kept on with t!:le full vie'Y until bQt 200 feet lay beHveen her and the J. Her lookout then made the hght for the first time, andtlle wheel was at' once put to', port and the bell rung to stop and back.. -The J. was struck on the starboard quar·ter, and sun1¥'jbecom;ng a total wreck,,: Ileld, that the G. was altogether at fault in not havmg made the ligb,t of the J., until th'e collision was unavoidable. ',:
SAME:",-PLEASUltE YACHT--CuSTOMARY' LWHTS'7'""'REGULA'l'fONLIGlttt'i!.
The sunken vessel, which was a total loss. was nine years old" having been in the possession of the libelant about five years. She cost him $250, and he put $350 worth of repairs upon her. In addition. she, had $100 in personal property aboard when she was sunk. It was in evidence that a new yacht of the same size and rig could be built for $700. Held, damages should be awarded.
In Admiralty. Libel for damages. Schuyler Kremer, for libelant. R. Rae, for respondent.
, BWDGETT, J. The libelant in this case seeks to recover the damages sustained by him as owner of the sailing yacht Josie, by reason of a collisionbetween the propellerGazelle and said yacht in ihe watersdf the Chicago outer harbor. The facts, as they appear in the case from ,the proof, are that the Gazelle was, during the summer season of 1886, employed as an excursion steamer in the Chicago harbor and vicinity, and hlld,been so engaged under the command of the same master for the two preceding seasons. 'The Josie was a sailing yacht of about seven tons measure. ment, and used by her owner in giving excursions; and taking out sailing parties upon the waters of the harbor and vicinity. The proof shows that a nUinber of sniling yachts similar to the