207
there is no foundation for any such olaim as the libellant has BOUght to establish. The proper course, under snch circ'umstances, is to dismiss the and condemn the ill costs.
THlllVIDAL SALA.
(Diatrict (lou'ri, J3!.D. Geurgia. April 24, 1882.) ADMmALTY-JURISDICTION-DOCKING CONTRACT.
A contract which stipulates with the libellants that" their charge for attending to carrying out of docking, with crew's assistance, raising steamer, clearing and keeping dock clear to an extent necessary for working at the shaft while she is undergoing repairs, covering, releasing, rent, and all other expenses which may be incurred in carrying out of such repairs, to be $2,000/' to be paid on the satisfactory termination of is purely maritime; - " 8 contract concerning the sea," over whiCh admiralty has
In Admiralty. Libel in "em for use of dry-dock. Chulwlmet Erwin, for libellants. Mercer, for respondent. ERSKINE, D. J. The libel is based upon a written contract mitde in the city of Savannah, between S. Fatman, as agent of the Spanish steamer Vidal Sala, then lying in the port of Charleston, South lina,disabled, having her propeller shaft broken, and James' K. Clarke & Co., libellants. The" following is a copy of the contract: ' "SAVANNAH, December 31, <IJames K. Clarke & Co., City-Dear Sirs: In confirmation bf our verbal agreement, I hereby repeat that it is mutually understood and agreed between your good as owners of the dry-dock, and myself, as agent' of the Spanish steamer Vidal Sala, that the Iilaid steamer will enter your dry-dock upon per anival here, for the purpose of attending to certain repairs to her,machinery, and that you will have the dry-dock in readiness to receive her on Tuesday next, the second prox., unless prevented by some unforeseen acci. , dents or impediments. " Your charge' for attending to and cari'yhlg out of docking, with crew's assistance, raising steamer, clearing and keeping dock clear of water' to an extent necessary for the at -the shaft while the steamer is repairs, covering, releasing, rent, and all other expenses which may be in the carrying out of such repairs, be $2,500, say hundred dollars, such Bum to be paid to you (libellants) by me, {1<'atman,)foraccouri(Qf whom it may concern,' upon the satisfactory termInation of the contract: .' tt isunderstodd that the dry-dock and its owners are not to be-beld liabl6 for any accident tbat may happen through the giving way, breaking; or other
.208
FEDERAL BEPORTER.
accidents t,bat may occur, over which they have no control. It Is furthet understood and agreed that should the said Vidal Bala be lost before entering your dock, this contract shall be considered null and void. Please acknowl. S. F edge the above and oblige, dear sirs, yours truly, "Received just now following telegram: 'Weather permitting, Vidal Sala leaves here Monday, arriving Tuesday, to enter dry-dock, of which please take note.' ..
As the question now presented for determination arises on exceptions to the jurisdiction of the cOljrt,because, as is alleged, this contract for the use or rent of libellants'dry-dock is not a contract maritime in its nature, and consequently not cognizable in the admiralty, therefore nothing more than an outline of the libel and its amend. ment need be given. The libellants say that they are engaged in the business of docking vessels needing repairs; that they are the owpers of said dry-doyk, and that it is located'on HutchinsonlB, island,opposite the city of Savannah, and within theebb,and flow of the tide; that, assisted by the crew of the said steamer VidalSala, they placed her in their dry-dock, and fixed her there preparatory to to be made. on her, and when made they, rethe repairs which moved her from the dock; that their. suit is founde4 upon a civil and maritime; that the stipulated sum of $2,500 is but a just and reasonable compensation for their labor, skill, and use of their dry-dock, its apparatus and appliances; that, having fully and faith" fully performed the contract, in all respects, according to. its they demanded the $2,500, no part of which has yet been paid; that the said dockage was furnished on the credit of the said foreign steamer, her tackle, etc., and that the premises are true, and within the jurisdiction of this court. Where ,a party seeks the aid of a court of admiralty to enforce a special contract, the entire contract must be essentially maritime in its qualities and attributes. It is not sufficient ground for admiralty jurisdiction that the contract involves some elements of a maritime nature: the substance of the whole contract must be maritime. And a maritime privilege or lien, imparting, as it does, a tacit hypothecation of the subject of it, is a strict right, and cannot be extended by construction, analogy, or inference. 4 Mas. 330, 19 How. 22. The learned proctor for the claimant argued to show that the contract, in its totality, did not contain those ingredients which are necessary to constitute ita maritime contract, and that none of the acts dorie by the libellants were maritime services and gave them n9,lien on the vessel. In support of his views he cited and collated numerous cases. Those most prominently relied on are Bradley v. Bolles,
TBlll 'VIDAL S1LA.
209
Abb. Adm. 569, and Ransom v. Mayo, 3 Blatchf. 70. In the first case it was ruled that work done upon a vessel in a dry-dock, in scraping the mud and barnacles from her bottom, preparatory to coppering her, is not of a marltime character, the court remarking that the services were mere shore work and menial, requiring no mechanical skill, and did not relate to repairs, or any bette1'lnBDt atta.ched to hedn promoting her safety or navigation, but were only preliminary to the reparation intended to be put upon her. In the other case a libel in per80namwas brought against a ship-builder to recover for damage done to a vessel in consequence of her having broken her fastenings upon the ways, as sbe was being hauled up to be repaired in the ship-yard. The district court dismissed the libel, 01'1 the ground that the duty of the respondent did not arise out of a maritimecontraot ; that the contract was made upon land/ and related to service to be performed upon land; and that, therefore,the case did not fall within the admiralty jurisdiction. On 'appeal to the circuit court, Mr. Justice Nels,on concurred with the distric,t court. Three years later the case of Wertman v. Griffith, ld. 560, came also, on appeal, before the same eminent judge. It was a libel in personam to recover compensation for services rendered by libellant, who was the owner of a ship-yard, together with certain apparatus, consisting of a railway cradle, etc., used fQr hauling up vessels out of the water and sustaining .them while they were being repaired. Objections were raised to the jurisdiction, upon the ground that the agreement for the service rendered must be regarded simply as a hiring of the 'yard and apparatus. But the court upheld the jurisdiction, and decided that the owner of the railway cradle could sue in the admiralty, although the repairs were made by other parties. Said the and court: "The service requires skill and experience in the is essentail to the process of repair. I do not go into the question whether this is a contract made or service rendered on land or on watel. It nndoubtedly partakes of both characters. But I am free to confess I have not much respect for this and other like distinctions that haye sometimes been resorted to for the purpose of ascertaining when the admiralty has and when it has not jurisdiction. The nature and charatlter of the contract and the service have always appeared to me to be the sounder guide for determining the question. Although a distinction may be made between this case, in the aspect presented, and the case where the Ship-master is employed to make the repairs, I am inclined to think that it is not a substantial one, and that to v.12,no.2-U:
,910 'adoptit would be yielding to a reluctant to incorporate into judicial prooeedings. AdistinctiQn, be practical, should be one of substance, and one which strikes t,he CCIDmon sense as founded in reason and justice." I do not see clearly how these. cases are to be reconciled. In the case of The BQ/1'k Alexander McNeil, Savannah News, ber 26, 1874, this court held .that wharfage is a maritime and may be enforced in the admiralty, the court observing that ."the owner and master of the ship, or the ship herself, or the proceeds arising from her sale, may be proceeded against in the admiralty to ·enforce the payment of wharfage, dockage, or pierage." Whatever doubt arose in regard to the correctness of this ruling is now-put at rest by the supreme court of the Unitl'ld States in the case .Ex parte Easton, 95 U. S. 68, ",here it is expressly decided that claims for wharfage are cognizable in the admiraltYi&nd Mr. Justice Clifford, in giving the opinion of the court, said:
are well-nigh as essential to commerce as Ships and vessels, and are abundantly
.. These remarks are sufficient to show that wharves, piers, or landmg places
sufficient to demonstrate that. the contraettor wharfage is a ttll;l.ritime tract, for which, if the vessel or water-craft is a foreign ope, or. tQ, a part of a state. other than that where the wharf is situated, a maritime lien arises against the ship or vessel in. favor of the proprietor of the wharf. WateHrafts of all kinds necessarily lie at a wharf 'when loading and unloadirig;'andMr. Benedict says that the pecuniary charge for the use of the doCk or wharf is called Wharfage or dockage, and that it is the subject of admirlllty jurisdiction. * * *. Such erections (Wharves) are indispensably nec6llsary for the safety and convenience of commerce and navigation, wbo take berth along-side of them, to secure those objects, del;ive great benefit froIn their use." ' . If wharves are essential to commerce, navigation, and for the ervation of ships and other:vessels, then it must follow, by parity of principle, that quaye, marine piers,and docks, whether it be the com· mon or ldip-dock, or the wet-dock, where vesseis are protected from the influence of the tide by closing the dock gates, not during the flowing but during the ebbing of the tide, thus keeping the vessel afloat at low water, are equally indispensable for like purposes and uses. and entitled to like maritime privileges or liens. , Opposite the city of Savannah, forming the left, bank, of, the Savannah river, lies' Hutchinson island, and there, the,libellants allege their dock is located. No description of it having 'been pre.· .the court, I shall ·endeavor to. give a sketch ofa :dry,or sented graving dock, presuming that these docks are similar toeaoh ('ther.
TaB VIDAL SALA.'
It is a. water-tight chamber, fitted with timber or iron gates, which areshl1t against the tide after a vessel has entered for the purpose of being inspected or repaired. When admitted she is placed on certain blocks in the center of the dock, and as the tide recedes the water is let out until it is le'Vel with low water. And if it becomes necessary for the examination or repairing, the water below low tide is generally pumped out by steam, and the vessel must be continually shored up, as the process of emptying is carried on, that she may be kept on an even keel and prevented from straining or careening. Thus it may be seen that the work of the dock master necessitates expend. iture of money (exclusive of that invested in the dry-dpck proper) for apparatus and implements, and also requires mechanical skill and great care in conducting the business of docking. A.nd notwithstanding a vessel, during inspection or repairment, may rest high and dry on the bottom of the dock, and indeed ships and other watercraft are frequently thus left alongside a wharf on the recession of the tide; yet, when a vessel enters a dry or graving dock she floats in, and when she leaves it she floats out. Recurring to the case of Bra.dley v. BoUes, 'supra, where, as already observed, it was held that a person hired to scrape the bottom of a foreign vessel in a dry-dock before coppering, could not sue in the admiralty, the service being menial and mere shore work, requiring no mechanical skill, this decision, to my mind, divaricates from those rules and principles which govern the jurisdiction of the admiralty. But, be that as it may, the point ruled there is but approximati'Ve to the question for determination in the case at bar. Choate, J., in the recent case of The Windermere, 2 FED. REP. 722, held that the libel- ' lant had a maritime lien for services in removing ballast from a foreign vessel, in the port of New York, for the purpose of putting her in condition to receive cargo. As to the case of Ransom v. Mayo, supra, cited by respondent, it was virtually overruled by' Wertman v. Griffith, :mpra. Whether a contract is maritime or not mariti.me depends, not on the place where it was made, btlt on the of the contract. Some maritime contracts-those of marine insurance, bottomry, respondentia, and affreightment-are not :onlymade on the land, but are performed on the land; the first three by payment of the money, the last by delivery of tIre goods and payment of the freight., Ins. Co. v. ,Dunham, 11 Wall. 1. Fairly interpreting the entire contract, is it maritime in its nature? Ex tota materia emergat resolutio. It stipulates with the libellants
BEPORTER.
that "charge for attending to carrying out of docking, with crew's assistance, raising steamer, clearing and keeping dock clear of water to an extent necessary for working at the shaft while sbe is undergoing repairs, covering, releasing, rent, and all other which may be incurred in carrying o.ut of such repairs, to be $2,500," to be paid on the satisfactory termination of the contract. The meaning of the term "docking," as employed here, and as it is ordinarily understood by mariners and dockmen, would not be satisfied by the mere entrance of the steamer into, and her departure from; the dock; many and various additional acts would be necessary to supply its well·established signification. From the general scope of the language ,used in the contraot in hand, it will be seen that its special and implied conditiona make it, for example,' the duty of the libellants when the steamer gets within the dock.to place her in position; and as water flows out during the reflux of the tide, or is expelled by pumping" to keep her .constaJ;ltly shored, up, bloekf)d and braced, dock as free from as may be necessary for examining and repairing her, and to guard her from becoming hogged, strained, blown over by the wind, or in anywise injured. And, when the reparation is completed, to safely move her from the dock. No authority has been presented, nor case referred to, neither has any valid ,reason been given why the various acts alleged to have been done in the premises by the libellants under the terms of the contract, or by reasonable. intendment of it, should not fall within the category of maritime service. The employment cast upon the libellants by the contract required, inter alia, care and mechanical and nautical skill in' its performance, and the work· done, must be regarded as a betterment of the steamer herself, and as a.ppertaining to marine commerce and navigation,. andttbsolutely essentia-Ito repder her seaworthy and enable, her to prosecute her voyage. .I thiJ;lk the whole contract is purely maritime-CIa contract concerning .the sea." So, far· Balnyreseatches and information this is the iQr first time tha1;,this precise question has ,comeibefore this decision; therefore. it is to, me primtB impressionis. The maxim oi· the law iato amplify its and,without usurping jurisdi(}tion" to apply Hs rules t'othe advanoement of substantial justice; and out doubt or ,hesitancy I pronounce for ,the jurisdiction and .overrule the exceptions.
TBB F4VOBIlfL
213
THE FA.VORITE. (District Oowrt, N. D. lllitwis. 'May 13,1882.) CoLLtBION-DAMAGES-LIMITED LIABILITy-IN'rEREsT.
Where, in an action for damages. arising from a collision, the owners of the rules for a limitation colliding steamer applied under the liability as such owners, and by stipulation with approved sureties agreed to make payment of the assessed value of the steamer, and thereby procured her release from arrest, held, that the owners were liable, in addition to such assessed value of their steamer, for the interest thereon from the date of the stipulation, with costs of the litigation.
Schuyler If, Kremer, for libellants. Richberg If Kniep and A. McOoy, for respondents. BLODGETT, D. J. On the second of AUgUst, 1877, a collision oc-
curred upon the waters of Lake Michigan between the steam-propeller Favorite; and the schooner Grace A. Channon, by which the sch'ooner and her'cargo of coal \vere sunk, and became a total loss. oh teenth of the same month a libel was filed in this court of the Channon against the Favorite, charging the collision 'to occurred through the negligence of those iIi charge of atelimer,i and claiming to recover as damages the value of the schooner and her freight. A furtber libel was subsequently filed by - ' - Graham to recover damages for·the death of a child who WitS a pass'enger on the schooner and was drowned by reason Of the cOllision, and the Providence Washington Insurance Company, who had insured the cargo of the schooner, and paid the loss which accrued' under 'their policy, also filed a libel for the amount so paid. After the filing of the libel by the owners of the schooner, and the arrest of the steamer, "O'wner ot the Kirby Carpenter Lumber Company, who was the; the steamer at the time collision, tdthisCQutt, under admiralty rules 54, 55, 56, and 57, fora limitation ofits liability as such owner for damagesoc(;!a,sioned by such collision' to of the stea:mer ap.d her freight then pending, andsuch' steps were. taken' that the value of the steamer, machhiery, boats; and furniture, (there no freight pending,) w.as ILPPJ.:aised and fixed at $12,397.80, and her owners, by stipulation, with approved sureties, agreed to make payment of that sum into court whenever ordered, and the steamer w,as thereupon' ri:\!eased from artt'!st arid .and proQfs of delivered to her owners. Upon hearing court found th steamer in· and the libels for damages, , · . . . . , . ,I