196 F. 843 | D. Me. | 1912
For convenience these two cases are heard together. No. 150, the libel of Joseph T. Davidson v. Charles A. Plummer, is for labor and materials furnished for repair and launching of respondent’s steam yacht, Navis; for the storage of her boats;
“There can be no contract without the mutual assent of the parties. This is vital to its existence. There can be none where it is wanting. * * * Where there is a misunderstanding as to anything material, the requisite mutuality of assent as to such thing is wanting; consequently, the supposed contract does not exist.”
And the court cites many interesting and suggestive cases. Upon the same point there is a valuable suggestion in Fire Insurance Association v. Wickam, 141 U. S. 564, 579, 12 Sup. Ct. 84, 35 L. Ed. 860; Philpot v. Gruninger, 14 Wall. 570, 577, 20 L. Ed. 743. After studying the testimony in the light of the decisions of the courts, I come to the conclusion that the contract was as asserted by the libel-ant.
The respondent goes further and says, not only that the libelant did not carry out his contract of making the yacht seaworthy -when he launched her, but that he carelessly and negligently left open the sea cock on the intake pipe in her engine room, and also her water-closet connection; so that, by reason of this careless and negligent omission, the yacht, when launched, was not in a seaworthy condition, but took water through the intake pipe and was greatly damaged; and that thereby the respondent was put to loss. Upon a careful review of the case, I find that the weight of the evidence is against the respondent upon this point. The testimony leads me to believe that Davidson expected Plununer to have some one familiar with the engine and the machinery to look after them, and that he thought, and had reason to think, that this had been attended to when the yacht was put overboard in the spring; that, while Davidson knew there were inlets and outlets to a marine boiler, he did not know whether they were left open or closed, and he did not regard that as any part of his business. The testimony shows an interview between Plummer and Capt. James E. Perkins in which Plummer said, substantially, that he had a man go over to the Navis to connect up the condenser, and that the man must have neglected to close the sea cock. Without going into the details of the testimony, I find that the conduct of the parties and all circumstances of the case are inconsistent with the position of the respondent touching this matter. The testimony leads me to conclude that Davidson was not at fault in leaving the sea cock open.
By agreement of the parties, I am requested to pass upon the question of damages, as well as liability. There is to be a decree for the libelant upon the first item, namely, $25 for launching; also for labor performed from June 11 to June 16, 1909, inclusive, amounting in all to $65.77.
“Of the same nature (maritime) is the charge for storing the sails, or other furniture, in a storehouse on shore, and that hind of rent or storage is also the subject of a maritime action.”
It is true that in Hubbard v. Roach (C. C.) 2 Fed. 393, in the Northern District of Illinois, Judge Dyer held:
“The storage of sails, when stripped from the vessel, is not a service pertaining to her navigation, and a claim for such storage is not a subject of admiralty jurisdiction.”
But in The Gilbert Knapp (D. C.) 37 Fed. 209, 211, in the same district, Judge Jenkins said:
“Hubbard v. Roach, and The Ole Oleson [(C. C.) 20 Fed. 384], were ruled by my learned predecessor contrary to his own convictions, as he declares in the last-named case, and in obedience to supposed weight of authority.”
In Roberts v. Bark Windermere (D. C.) 2 Fed. 722, 730, in the Southern District of New York, Judge Choate said:
“My attention has been called to a decision of Judge Dyer that the storage of the sails of a vessel on the land is not a maritime service, for which a suit in the admiralty will lie. He comments on, and disapproves of, the opinion of Mr. Benedict, cited above from his work on Admiralty, to the effect that the stevedore’s service is maritime; and also his opinion that the storage of the sails is a maritime service.
"The authorities, however, which were cited in Hubbard v. Roach, and on which the decision is expressly put, very imperfectly represent the present state of this question; and for the reasons given above I am unable to concur in the reasoning of the learned judge so far as it affects the question now before this court.”
In The George T. Kemp, Fed. Cas. No. 5,341, to which case I have briefly adverted, Judge Towell referred to the case of The Amstel, Fed. Cas. No. 339, The Joseph Cunard, Fed. Cas. No. 7,535, and Weaver v. The S. G. Owens, Fed. Cas. No. 17,310. Judge' Towell cited also certain decisions touching this subject “after Judge Story’s death, when the Supreme Court seemed bent upon narrowing the jurisdiction in all possible directions, by decisions, some of which have now been overruled and others explained to mean much less than they appeared to intend.” In discussing this class of claims, Judge Towell s.aid:
“The. notion that the maritime character of a contract for either labor: or materials or of the remedy for furnishing them independently of contraes*847 depends upon tlie situation of tlie vessel as being upon tlie high seas or in a dock reached its climax when it was held that a laborer who scraped the bottom of a foreign vessel preparatory to her being coppered had no lien; * * * and that the shipkoeper of a domestic vessel could not sue even in personam, in the admiralty. * * *
“If the services or contract properly concern the ship and her owners, they are clearly maritime, and can be sued, against the owner of a domestic ship personally, or against the foreign ship in rem in this court. The cases in the Supreme Court are so recent that I do not cite them.”
As early as 1833 Judge Ware passed upon this question in The Phebe, Fed. Cas. No. 11,065. The substance of his ruling remains law to-day. Upon tlie whole current of principle and authority, I must hold that the storing of tackle, apparel, and furniture of a yacht is as distinctly a maritime claim as the care of the yacht itself. 1 think the sum of $10 may be reasonably allowed for the storage of the yacht’s boats in this case; and 1 include, same in the decree. The decree may be for services under tlie contract and for labor performed, $65.77; for services as watchman, $24; storage of boats, $10; total, $99.77, to which may be added interest from April 5, 1910, the date of the filing of the libel, $13. A decree may be drawn for the libelant, >-herefore, for the sum of $112.77, with costs.
No. 149.
In case No. 150 I have already referred to the launching of the yacht Navis on the evening of June 16, 1909, when she was towed to her mooring on the South Portland side of Portland Harbor, about one-eighth of a mile above the Portland Ship Building Company’s wharf, and abreast Davidson’s yard. At the location of the mooring there were 30 feet of water at low water. After her launching, the testimony shows that she was under the care of the janitor of the Portland Yacht Club. On June 18th, about 5 o’clock in the afternoon, Davidson saw the Navis tying low in the water. The next morning, June 19th, at 5 o’clock, he saw that she had settled lower in the water. He then went to the house of Capt. Perkins of the Startle, and asked him to go to the relief of the yacht with his steam tug. Capt. Perkins immediately crossed the harbor, went aboard his steam tug, and proceeded at once to the yacht, in the meantime getting his suction hose and syphon ready. He began pumping, and got the water pumped out about noon, when his engineer went down into the engine room of the yacht and found an open sea cock which he closed with a wrench. The fireman went ashore and procured wood and built a fire, in order to blow out the yacht’s boiler, which in the meantime had been filled with fresh water, in order to prevent injury from salt water.
The master and engineer of the steam tug Wawenoc, tying on the morning of June 19th at the South Portland Railway Company’s
“Steam vessels are always considered as entitled to a liberal reward, not only because the service is usually rendered by a costly instrumentality, but because the service is in general rendered with greater promptitude and is of a more effectual character.”
In the case before me, the service rendered by the salving vessel was not accompanied by danger; but the other elements in it rendered it a salvage service of a deserving character. Clearly the element of promptness in it should be recognized. Other vessels were in the vicinity, and did not proceed to the assistance of the yacht. The Startle did proceed promptly, and rendered efficient service, by which, I am satisfied, the yacht was saved from sinking, and the owner from great expense. The value of the yacht appears to have been about $2,600. A bill for salvage was sent by Capt. Perkins to Mr. Plummer amounting to the sum of $300. Upon the whole, I think this is a little higher than I am inclined to regard the value of the salvage services. I do, however, fix the award at $250.
For the reasons given in commenting upon the former case, No. 150, I am satisfied that Joseph T. Davidson was not in fault, and should not have been joined as a respondent; and as to him the libel should be dismissed, with costs.
A decree may be entered for the libelant for the sum of $250. It may be distributed as follows: To the tug, $125; to- the captain, James F. Perkins, $75; to George B. Perkins, the engineer, $35; to Charles J. McIntyre, the fireman, $15.
The libelant recovers his costs.