95 FEDERAL REPORTER.
sault upon the captain with a deadly weapon. The captain's ill usage was sufficient to provoke him to anger, but the circumstances were not such as to justify him in resorting to the use of a dangerous weapon in self·defense, because he had no reason to believe that he was in imminent danger of suffering great bodily harm, and he had not retreated to the wall. Considering all the circumstances shown by the evidence, it is my opinion that justice will be done by awarding to the .libelant wages at the rate of $45 per month for a period of three months, and damages for neglect to treat him properly after his injuries, in the sum of $200 and costs. A decree will be entered in accordance with this opinion.
al. v. ONE DREDGE.
(District Court, D. Oregon. July 8, 1899.)
MARll'IME Ll"ENs-VESSELS SUBJECT To-DREDGE.
A dredge capable of being moved from place to place on navigable waters, and of the transportation of machinery and sand and gravel taken from the bottom of dvers, is a vessel, and subject to maritime liens.
2. ADMIRALTy-JURISDICTION TO ENFORCE STATUTORY LIENS-CONTRACTS NOT
A conrt of admiralty is without jurisdiction of a suit to enforce a lien unlesB it arises from a maritime contract, and a contract to build a vessel is not maritime, nor is it made so by a state statute gi,ving a lien on the vessel for the labor done and materials furnished in its construction. 1
SAME-'"CONTRACT FOR CONVERSION OF A
A contract for converting Ii scow into a dredge is one for the building of the dredge, and is not maritime; hence a court of admiralty is without jurisdiCtion of a suit to enforce a lien on the vessel given the builder by statute.
INTO A DREDGE.
This is a suit in rem in admiralty to enforce a lien upon a dredge. A. King Wilson, for libelants. A. C. Emmons and Williams, Wood & Linthicum, for defendant. BELLINGER, District Judge. This is a libel in rem against a dredge owned by the Portland Sand & Contract Company, and grows out of a contract entered into, in July last, between that c()mpany and the libelants, which contract, omitting the formal parts, is as foliows:
"This, agreement, made and entered into by and between Christenson-McMaster Machinery Company, of Portland, Oregon, as party of the first part, and the Portland Sand Company, of the same place, as party of the second part, wituesseth, that the party of the first part, for and in consideration of the Bum of six hundred forty and nO/100 dollars, U. S. gold coin, to be paid as hereinafter specified, agrees to fit up the old dredging machinery belongIng to the party of the second part, and put in working order, as follows: We to furnish all necessa,ry WOOdwork; furnish one 60-ft. ladder, wtth carrying wheels, and new foot sheave, with large flanges; repair all old links for chain; put in two spuds 10"XlO"x36 ft. long, using old points on same; fit up old hand derrick,. and furnish for sallle; do, all piping; install all machinery, except such as may be furnished by other parties; party of the second part to 1 For jurisdiction of admiralty to enforce maritime liens created by state laws, see lioteto The Election, 21 C. C. .A.. 21.
M'MASTER V. ONE DREDGE.
deliver all their old machinery at the shops of the party of the first part; party of the first part to paint all machinery furnished or repaired by them, and to do all work in first-class, workmanlike manner, and all materials furnished by them to be of good quality; the said party of the first part agreeing to turn over the dredge to the party of the second part in good working order, party of the second part to furnish all buckets and bolts for same, top driving sheave, and necessary chain; the work to be completed by the party of the first part within three weeks from date. The party of the second part agrees to pay to the party of the first part six hundred forty and nohoo dollars ($640.00) U. S. gold coin as soon as the above work has been completed and tested and accepted."
It is claimed that the parties in good faith performed this contract, and that they are entitled to a lien upon the dredge for the contract price, together with some further repairs to the dredge in the sum of above $50. The testimony shows that, at the time this contract was made, the sand company owned a scow, and that the purpose of the contract was to convert this scow into a dredge. The scow had never been used as a dredge, but was merely a wood scow or barge. The machinery upon which the repairs mentioned were made and the furnishings provided had never been on the scow, but were a necessary part of the equipment and appliances required for her conversion into a dredge. It is claimed in behalf of the claimant that the dredge, when completed, is not a vessel, so as to give to a court of admiralty jurisdiction of a claim for materials or other supplies. It is conceded that in numerous cases steam dredges have been held to be vessels, but the point is made that in all these cases the dredges were employed in deepening the channels of navigable waters as an incident to navigation, and that upon this theory the courts in those cases held them to be vessels, and subject to liens. An examination of the cases cited leads to a different conclusion. In the case of The Pioneer, 30 Fed. 206, a steam dredge is held to be a vessel, and as such subject to a maritime lien for supplies, because she is constructed so as to move from place to place upon navigable water, and transport a steam shovel and engine, etc. It is true that the court in this, as in some of the other, cases, says that it is to be observed that the shovel, engine, etc., are to be devoted to deepening the channels of navigable waters, an occupation in itself incident to navigation. But the inference is that this last consideration, if it influenced, was not decisive of, the ruling made. The reason given, as already stated, for the holding that the dredge was a vessel, and subject to a lien, is because she was constructed so as to move from place to place upon navigable waters. In the case of The Alabama, 22 Fed. 449, a dredge used in the business of digging earth out under the water to deepen channels of navigation, and in depositing such earth in scows, which are then towed to the dumping grounds, unloaded, and then towed back, is held within the admiralty jurisdiction, upon the ground that the scows and dredge are in law one vessel, whose business is largely navigation and water transportation. In the case of Saylor v. Taylor, 23 C. C. A. 343, 77 Fed. 476, it is held that a steam dredge engaged in deepening navigable waters is
:S11bjeettoa lien. It does not that the decision is based upon th:e fact :thatthe dredge was used in an occupation incident to navigatfon, :but rattier, as I tl/.ke it" ton the fact that, while engaged in, and as apart of, this business, she was "capable of being towed from place to place." , So, in the case of The Public Bath No. 13, 61 ,Fed. 692, a bath house built on boats, and designed for navigation and transportation, is held to be within the admiralty jurisdiction. In the case of The International, 83 Fed. 840, it is held that dredges and scows, used, or capable of being used, as a means of transportation, are I'lubject to the admiralty 'jurisdiction. So, too, in v. Dredging Co., 86 Fed. 344, the same general doctrine is applied. In this ca.se 'the court says:
"A. dredging vessel, designed to facilitate navigation, by going from place to place,: to be used in deepellingharbors, and channels, and,removing obstructions from, navigable rivers, and to :bear afloat heavY machinery and appliances for use, ,In that class of work, may commit, or be injured, by, a marine tort, and slie become subject to a maritime lien for salvage. She has mobility, and her element is the water. She can be used afloat, and not otherwise. She 'has carrying capacitY,and her employment, has direct reference to commerc/l,' ll;nd nlLvigation."
In this case, while the fact that the employment of 'the dredge has,direct reference to commercl;i and navigation is' referred to, yet, as alrea.dy stated with refererrceto one of'tM 't?ases 'cited, the decision 01 the court does not appear to'have been based upon that consideration. IconcIude,therefore, that a.' dredge capaNe'of being moved frQll ,place to place on tlavigable waters,and of the transportation of machinery, or sand and gravel taltenfromthe bottQmof rivers, is a vessel/and may " The 'case of In:' reHydraulicStearri Dredge Co. No; 1, 25 C. C. A. 628,80 Fed. 5<15, is not an against this: 'conclusion.'fhat isa case where a used in sucking 1,l.pinaterial from the bottoms of rivers by means· of'a .piptl· and pump' and discharging the same upon the shore,is, iIi effect, held not to be a subject of 'jurisdiction. But in this case the dredgew3.s not used for the purposes of navigation. Its position was a stationary one while it was at work. The court says: "Here tnt'! floating structure was not6peratedfor the maritime transportation of· ,the material excavated .by .scows or barges, but it discharged upon adjacent a line of adjustable pipes, the earth sucked up . from the bed pf the lake." " . '
In this case the dredge is adapted to navigation, and was designed for use in the transJXIrtation of sand and gravel as articles of commerce. It is wholly immaterial that this sand and gravel so transported is dredged from the bottom of the river. It may as well be taken from the adjacent uplands. It can make no difference, as to the occupation of the dredge in the transportation of this material, where it was obtained. The fact that gives to the dredge the character of a vessel is its' use in the transportation of the material which it was designed to carry. The second objection to the claim of libelants is a more serious one; that is, that the contract in question was one for the original
v. ONE DREDGE.
of the vessel, and is therefore not a maritime contract, of which a court of admiralty can take cognizance. The lien given by state statutes can 'only be enforced in admiralty when the contract out of which the lien arises is maritime in its nature. A court of admiralty, has no jurisdiction of a suit in rem against a ship for work, labor, and materials done and furnished towards the building of a ship, even though the law of the state gives a lien upon the ship therefor. The Norway, 18 Fed. Cas. 435 (No. 10,359). The contract for building is not a maritime contract, and does not involve rights and duties pertaining to commerce and navigation, in the sense of the lawgiving jurisdiction to the admiralty; and so, where a hull, completed at the place of launching, was towed with her spars on deck to another port, where her masts were stepped, and the vessel put in condition for navigation, it was held that the work was done' in building the vessel, and that admiralty had no jurisdiction. The Iosco, 13 Fed. Cas. 89 (No. 7,060). A state statute is only effective to attach a lien to a contract originally maritime in its nature. It cannot make a contract maritime which is not so originally. The Pacific, 9 Fed. 120. The case of The Count De Lesseps, 17 Fed. 460, is a case where a floating scow had been constructed in New Jersey, and towed to Pennsylvania, where machinery and material were furnished upon contract with the building contractors, who had undertaken to construct the scow with such machinery. It was held that the machinery and material were furnished in the original construction of the vessel, and that the admiralty was without jurisdiction to enforce a lien therefor. The case of The Paradox, 61 Fed. 860, is similar to the case last cited. Here it is held that a contract for the machinery of a vessel is not enforceable in admiralty, where such machinery was supplied for the completion of the construction of the vessel, and such vessel was not then completed for the purpose for which she was intended. The court says:
"When the vessel Is completed for the purpose Intended, then the vessel Is 'built,' and not till then, whether it be a steamer, a sailing vessel, a barge, a scow, or a mere float designed to support and transport a bath house; and whatever is supplied to such a vessel for the purpose of making it what it was intended to be, and to enable it to enter upon the kind of business or navigation intended, is a part of the 'building' of the vessel."
Tried by this criterion, the work and labor and materials furnished in this case were for the building of the vessel. It can make no difference whether the scow was already built, and had theretofore been used for another purpose, or whether it wag newly constructed for the purposes of a dredge. The purpose of this contract was to build this scow into a dredge. As a mere wood barge, the things done were not required. It. was only for the purposes of a dredge/which, in its relation with the scow, was a :hew thing, that the work and labor in this case were performed, and the materials furnished, and this is a building of the dredge, within the rule adopted in the cases cited. What was done and supplied in this case was for the purpose of making the vessel what it was intended to be, and what it had
theretofore Dot dredge, a thing with which the wood scow, as had no relation. This contract, therefore, IS not a maritime contract. ,It was a contract to convert the wood scow into a dredge, which is' precisely the s,ame as one to build a dredge. The remedy of the libelants to enforl!e the lien given by the state statute is in the state courts. This court is, without jurisdiction. Ordered that the libel be dismissed. '
(District Court, E. D. Pennsylvania. July 13, 1899.)
SHIPPING--'DELAY IN FULFILLING CHARTER-DEMURRAGE.
The ,fact that the owner of a ship objected to the terms of a charter made'by his agent, and attempted to have them changed through correspondence, before the vessel was sent to the charterer, where she did not arrive uiltll after the cancellation date, but was theq, accepted and used by the charterer, is not alone sufficient to show that the owner was responsible for the delay, so as to render him liable to the charterer for damages caused thereby.
In Admiralty. Libel against the steamship Ekliptika to recover damages for delay in fulfilling charter. Dismissed. Henry n.!Edmunds, for libelants. Oheyney and John F. Lewis, for respondent. Horace McPHERSON, District Judge. On October 5, 1898, the libelants chartered the Danish' steamship Ekliptika from the Philadelphia agents of the owner, who resided in Copenhagen. The vessel was then in the Baltic" and the charter provided that she was to proceed with all convenient speed to Philadelphia or Baltimore, as the libelants might order, and fixed November 30th as the canceling date. The charterers are grain brokers, and had sold a cargo of wheat for November shipment, intending to re-Iet the vessel to the buyers of the cargo. After the owner of the ship was notified of the charter,but how soon afterwards does not appear with exactness,-he exwith one or two of its provisions, and some cor· pressed respondence followed, at first by cable and afterwards by letter, with his Philadelphia agents. The cable correspondence was not offered in evidence, and I am therefore unable to determine exactly what the owner's attitude then was towards the transaction. On October 19th his agents notified the libelants that the owner was dissatisfied, and from that date until some time in November cablegrams and letters were exchanged between libelants, the owner, and the agents. Only a part of this correspondence was offered in evidence, and I have therefore found it impossible to be sure of what the facts really are. There was delay, undoubtedly, caused in part by the vessel's running aground on the Russian coast, and probably caused also in part by the owner's efforts to have the charter modified in such particulars-whatever they may have been-as did not meet with his approval. Meanwhile freights were advancing, and, as it became clear that the vessel could not arrive by the end of November, the