date the libelallt rendered whatever for'wbich .the owner of the' boat ilt aoawerable; but\'iflht\ did., those were' not ofa maritime ftnd:arenot theisubject of a lien. ,,' ,;. i ' 'of! the libeldht'sdairilis of doubtful' merit at the best, but as a lien: it bas no standing.' Thiswasadornestic "essel,and at bome. Therefore, no maritime could arise. Andtben the PednsylvQIlia act of 20th April, 1858, (1 Purd. Dig. 126,)appliesexclusively to V'eiJsals navigating thi3':Allegheny, Monongahela;and Ohio rivers. whereas'ltlie'LittleAcme navigated the Beaver dver only . Moreover, this statute does ,'riot 'embrace st1dh' items as ate here in question. Dalzell v. The Daniel Kaine, 31 Fed. Rep. 746. Let a deoree·be' drawn disrp'iseing the libeltwith'Costs. , .,; ' -: ,.
THE Jos. NIXON.
Court, W. D.
The libelant, late mastel' of a toW-boat, at the end of a trip was hired to take e:folusive oUlltody ,and oare of the bi>8t While she remained moored at Pittsburgh, hl'!r , to put and keepaet in good order,and fit to prooeed on an 8nticipiloted vujage,whioh he did. ,He' ttecessarily remained' on .board the boat day!'nd It was neoessary to lDovethe boat into shore and out therefrom as the riVer rose and feU; and the ohie:t perils to whioh the boat was exposed. and from which she was to be' proteoted by the libelant, were perils of ,the river. that the contract 811dthe services actUally rendered by the libelant Were maritime, and that the lien for'his wages against the' boat, given by the state statute, was enfOrceable 1In rem in admiralty. . .'
VESSEL AT PIER-LIENS
In Admiralty. Goo. W. Acklin t for libelant. Goo. O. Wil80n and David 8. McCann, for respondent.
ACHESON,: ,1. Although the libelant's services On the Nixon were ren'dered at her home port, yet it is very clear that he has a lien against the boat for his wages by virtue of the Pennsylvania act of April 20, 1858, relating to vessels naVigating the rivers Allegheny, Monongahela, and Ohio. 1 Purd. Dig. 126. The debatable question is whether the libelant's services were performed under a maritime contract, or were of a maritime character, so as'to give him a right to sue in rem in admirl1ltyt agreeably to the practice sanctioned by the cases of Pe:yrfJ'UZ v. Howard t 7 Pet. 324, and The Lottawanna, 21 Wall. 558. The libelant was called, a "watchman," but he was much more; and indeed his services went far beyond those of an ordinary sbip-keeper. I find the matellial facts of the cMe to be these: The Nixon is a steam tow-boat. In November, 1889, tiponthe termination of a trip, the boat was moored in the Monongahela river, at the public wharf in the port awaiting anticipated employment. The libelant t who is
WISHART tl. THF. JOEl."NIXON. "
a river of many years' and had just made a tripon the Nixon as master, was employedpy her owner to take exclusive custody and care of the boatwhile she remained in port, to exercise general 8upervisionover her, putting and keeping herin good order, and in readIness to proceed on an expected trip, when the libelant was again to act as lier master. A boat lying where the Nixon was must be moved in against the shore and out therefrom as the river rises and falls; otherwise, in times of fres.hets she is liable, on the one hand, to be struck and damaged by floating objects, or, on the othe,r, to get aground' as the water recedes; and she is· also to be protected from the movements of other vessels coming in and going out. It is. therefore necessary to have a proper person on board a boat So situated to guard her against these dangers, arid to that end the libelant was kept on the Nixon, and he served the boat in the manner just indicated. In the performance of his duties itwas incumbent On the libelant to remain aboard the boat day and night,and this he di4during the time covered by his claim. There was a great dea:l()f high water during the period of the libelant's service, and much of the 'time he kept up steam in the nigger boiler to meet gencies,arid be used steam in sparring the boat. Moreover, the libelant overh'q,.Uled and repaired all the lines and rigging, mended chains, lowered and painted the chimneys, oiled the machinery, kept the pipes connected with the boilers drained, to prevent their bursting in freezing weather, had some other needed repairs about the boat made, and assisted in making them, and generally did whatever was necessary to get and keep the boat in good order,and in a fit c;:ondition to proceed upon a voyage when called on; and all this was within the scope of the contract of hiring. ,While the boat was in the custo4Y of the libelant, her license expired,'and, by direction of the owner, the libelant had her boilers officially inspected; he preparing the boat for the inspection, and personallygiving'the,requited aid when the tests were made by the local inspector, and in the new papers the libelant was named as master. Now,in view of the facts shown, it seems to me that the contract here was essentially maritime, and that the services actually rendered by the libelant were nautical.' The contract related to a 'vessel afloat and about to proceed on a voyage, and it concerned not only her preservation from marine dangers, but her reparation, and the fitting of her for navigation. The libelant's services directly promoted all those objects. The priJ'lCipal dangers to which the boat was exposed, and from which she was to be protected, were perils of the river. The services in that regard here rendered were not those of a landsman. They could be performed properly by a mariner only. It is settled that a ,claim for wharfage is cognizableinadmiralty. Ex parte Easton, 95.0. S. 68. But if the contract ofa wharfinger is maritime, why not such a contract as the one involved neI:e? Again, we find it decided in Leather8. v. J05 U. that a vessel had <completed her vQyage, and was securely moored to the wharfwhere her cargo was abouito be discharged, and had communication with the shore by a gang-plank, did not deprive her of the character of a water-borne vessel, or oust the jurisdiction in
admiralty over a tort there committed on her. Upon the question of jurisdiction, then, my judgment is with the libelant. This CoIlclusion by no means conflicts with the ruling oHhis court in McGinnis v. The Grand Turk, 2 Pitts. R. 326, or the decision of the district court of the eastern district of Pennsylvania in the case of The E. A. Barnard, 2 Fed. Rep. 712. The ruling in the latter case was that a watchman and ship-keeper had no lien, under the !leneral maritime law, for services rendered at the home port of the vessel; and this really was the point decided in the case of The Grand Turk. Moreover, there the boat was laid up for repairs at the marine railway, and the service of the watchman was but the 'Work Of a landsman. But here there is a statutory lien, and the special facts of the case distinguish it from the cases upon which the respondent relies. Touching the merits of the controversy, I deem it unnecessary to recite or discl1sS the proofs. It is sufficient to say that, upon a careful consideration of all the evidence, I am of the opinion that the. defenses based 011 the alleged negligence and misconduct of the libelant are not made out, and I think the libelant is justly entitled to recoverthe full amount of his claim. Let a decree be drawn in favor of the libelant for the amount of his claim, with interest from date ofsuit, and
MCCRJmBY t1. THE
C01Jrcuit Oourt. D. Nuw
COLLJSIO",-S'rBAM AND SAILJNG VESSllL.
September 25, 181lO.}
The lighter Barbara was coming down the North river, ber !lalls filled from the starboard side, intending to go as near the Battery 'as was safe; and into the East river. A tug and sloop were discovered pointing up the river, and towards the New York s\1ore. Just before the collision the sloop starboarded her helm to go about, and struck the tug, Which, to avoid damage, went ahead at full speed. and struck the li/l:hter in her starboard bow, sinking her. 'fhe lighter would have cleared the sloop. Held that. as aU thll had to do was to hold bel' course, the tug was liable for the collision. :A1IlrmlDg 88 Fed. Rep. 624. '
In Admiralty. On appeal from district court. 624. John Griffin, for claimant and appellant. Hyland Zabriskie, for libelant and appellee.
See 38 Fed. Rep.
BRADLEY, Justice. I am entirely satisfied with the decree made by the district court in this case, and adopt the findings of fact proposed by the libelant, appellee, and also the first, third, and fourth conclusions of law proposed by him. .Let a decree be entered against the steam tug Jessie Russell, in favor of the libelant, for the sum of 8663.84 with interest from the 24th day of December, 1889.
END 01' VOLt1MB