Abоut a year ago I recall that I held that a man was a seaman where the circumstances showed that the ship on which he was employed was liable any moment to be broken out and to be used in navigation. No appeal was taken from this decision for the reason, I am informed, that the verdict was for the defendant, a faсt that I have no recollection of. I am unable, therefore, to find whether such *169 decision was a correct view of the law or not.
A few days ago a somewhat similar case came before me, and I followed without further examination my previous decision.
However, it now appears that a number of eases are coming before me, necessitating in my opinion a re-examination of this important question, with the additional fact that this so-called “laid-up fleet” is still apparently out of commission and withdrawn from navigation, and is fast becoming really a huge amount of expensive marine junk, peacefully facing its end in the sheltered waters of tbo Hudson river.
This particular fleet is about 130 ships, and is divided into sectiоns, with a mother ship and about 25 on an average dead ships clustered around her, and on the ships of each section there is no steam or other evidence of possible navigation, except the steam which is piped over from the mother ship, from one boiler, for purposes apparently other than navigation, to wit, heat аnd light, and even on the mother ship the machinery, engines, boilers, and so forth are not in condition for present navigation without a considerable amount of delay and extra work in assembling the same, and then only after the necessary inspection. One witness says several months’ work would be necessary.
Not only this, but it also appears in these cases that the work in which the alleged accident occurs usually is not on the mother ship where the crew lives. In this case it is on the Plow City, one of the dead ships, and the claim is frequently made that not only was the employer negligent, but that a par-, ticular dead ship so used was unseaworthy.
Seaworthiness implies use in navigation, and there are no facts here which indicate that these boats are anything but dead ships, and are not reasonably capable of any navigation. Not only this, but we have in fact in these cases, aside from mere names, a gang of workmen living on board and spending their time working on these dead ships, and in fact the mother ship is just as dead, so far as actual navigation goes, as the others. In a sense, if a bridge was built from one of the ships to the nearby land, it would simply be an island composed of wood and rusted iron on which these men work, so far as any real navigation goes. No articles are signed, the pay is often different from that of regular seamen, the hours are diffеrent, and I fail to see how any maritime lien could exist. The men can leave employment when desired.
But against this is the view I formerly took, as follows: Compiled Statutes, § 8392 defines “a seaman” as any “person who shall be employed or engaged to serve in any capacity on board” of any vessel.
These men live on board a bоat and work on other boats. Tbo statutes also say that this relationship shall commence when either work on board starts or articles are signed, whichever is first, indicating that it is not necessarily the articles that make the relationship. The mere fact that the boat is at anchor is not controlling. In addition, they are members of a so-called crew; they are carried on the pay roll as “seamen”; the head of this “crew” is called a boatswain; the mother ship keeps a log; the work they do is similar in most respects to that which they do at sea.
All of these separate facts appeared to me, on a somewhat hasty examination compared with the one I have made to-day, to indicate that they were “seamen,” and in addition the controversy arises largely over the right of such workman to claim the advantages of the so-called “Jones Aet” (Comp. St. Ann. Supp. 1923, § 8337a), which gives rights enjoyed by landsmen, to wit, railroad employees, to seamen, and therefore the claim оf defendant that these various plaintiffs were simply landsmen, and should not enjoy such privileges, seemed to me to make an unnecessary distinction on that ground.
It now appears that the government is attempting to provide a fair remedy in eases of accident in the shape of compensation, which is open to all workmen, is uniform, and seems to me likely to be far more beneficial to a workman than the vagaries and uncertainties of suits, with various verdicts and various amounts actually received by plaintiffs.
Therefore, I have more carefully re-examined the contention, and believe that it is error to hold that such plaintiffs are “seamen” for the reason that while the above-mentioned facts are quite persuasive, yet they do not go far enough.
The same section of the statutes above referred to, section 8392 of the Compiled Statutes, that definas a “seaman” defines the term “vessel.” As wo have seen, a “seaman” is one employed on a “vessel.” And this section says: A “ ‘vessеl’ shall be under- sfood to comprehend .every description of vessel navigating on any sea or channel, lake or river.” The Standard Dictionary defines a “seaman” as: “One not an officer who takes part in the practical navigation of a *170 vessel — a sailor.” It defines a “sailor” as “one whose occupation is to aid in navigаting vessels, especially one of the crew.”
While the statute has, as is seen, broadened the definition of what is “aiding in navigation” and defined it as “service in any capacity on board,” and while the work of these various plaintiffs would seem to come within these definitions, there is lacking any proof that the boat or boats are “vessеls”; that is, that they are in navigation.
It seems to me, therefore, that the real test is different than the one heretofore applied by me, and which I failed to apply. It is the test of “navigation,”-and lacking this important element these employees áre not seamen, but are workmen employed by the government, and entitled to any and аll rights of compensation covered by the said Compensation Act (Comp. St. §§ 8932a to 8932mm), and, in the absence of fraud or mutual mistake, are bound by mutual settlement knowingly entered into, and, further, that, the boats of the “laid-up fleet,” on the facts before me, are not “vessels” within the definition of the Revised Statutes, but are property of the United Stаtes, capable of being used as vessels to be sure; but until navigation takes place they are not within said' definition.
What does “navigation” mean, and when is a vessel navigated? It has been said a ship is navigating when she is able to proceed under her own power. Western Union Co. v. Inman
&
I. S. S. Co.,
It might often be a question of fact for the jury where a disputed series of facts appeared. Here, however, I find no disputed facts as to the “laid-up fleet.” It therefore becomes a question for the court.
The Merchant Marine Act of 1920, 41 Stat. 1007, known as the Jones Shipping Act, contains section 33, which is- section 20 of the Act of March 4, 1915, amended (Comp. St. Ann. Supp. 1923, § 8337a). It is under this amendment that plaintiff, and those similarly situated, claim the exceptional rights asserted. , Section 37 (section 8146*4sss) under the title “words and terms in act defined” is the following: “When used in this act, unless the coniext otherwise requires, the terms * * * vessel * * * shall have the meaning assigned * * * by sections 1 and 2 of the Shipping Act, 1916, as amended by this Act.”
Referring to this Shipping Act of 1916 as amended in 1918 (Comp. St. Ann. Supp. 1919, § 8146a), we find under section 1 the following: “The term 'vessel’ ineludés all water craft and other artificial cоntrivances of whatever description and at whatever stage of construction, whether on the stocks or launched, which are used or are capable of being or are intended to be used as a means of transportation on water.”
- Long before this, section 3 of the Revised Statutes (Comp. St. § 3) defined a “vessel” in about thе same terms. Accordingly, the definition of “vessel” in the act known as the “Jones Act,” and under which this plaintiff is proceeding, is the above, taken from the Shipping Act.
It is apparent if this was all, the question would be even more doubtful, in view of this definition of “vessel.” It might, however, be urged then that on the facts in this case, and in similar cases of this “laid-up fleet,” it would appear that these “dead ships” are in fact not being used nor capable of being, nor intended to be used as a means of transportation. They apparently are simply useless hulks eventually to be sold as junk. One witness testified, as I have stated, several months would be needed to put them in shape.
However, the context of the Jones Act and the Shipping Act would seem to relate solely to ships, and there is no attempt to define in any of these acts “a seaman.” Unless, therefore, directly or by implication the definition in the Revised Statutes, § 4612, as amended Act of December 21, 1898, chapter 28, § 23, Compiled Statutes, § 8392 (merchant seamen), was repeаled, we there have a definition of “a seaman” as one who is employed or engaged to serve in any capacity on board a “vessel,” and a “vessel” is defined to be every description of vessel “navigating on any- sea or channel, lake or river.”
Therefore, so far as defining a “seaman” is concerned, a vessel may be actually employed in navigation, although temporarily *171 at anchor, or in dock, but not one which is entirely out of commission and laid up for any considerable period of time, and which could not be reasonably said to be employed in navigation, one which, in other words, is plainly withdrawn from navigation.
I am not unmindful of the variоus decisions which extend the definition of being engaged in navigation to all sorts of crafts, some having no motive power of their own, such as dredges, but oven as to these there is a conflict as to the right of a maritime lien for wages, although they seem to be in accord as to the definition of a seaman. For instance, in Saylor v. Taylоr,
The similarity here has already been commented on, and it defines persons employed on her, in such work,' as “seamen” within the meaning of Revised Statutes, § 4612, above quoted. An examination of that case shows that the court held that the dredge was actually engaged in a work incidental to navigation. And while the court refers to the said Revised Statutes, § 3, for the definition of a “vessel,” it also refers to the said Revised Statutes, § 4612, for the definition of a “seaman,” indicating that it is the latter section that defines a “seaman.”
Four years later we have the ease of Breakwater Co. v. U. S.,
Five years later, in 1915, we have the case of the J. P. Schuh (D. C.)
It seems to me, therefore, that the true test of whether or not an employee is a “seaman” depends on whether or .not he comes under the definition of this section 4612, Revised Statutes of the United States, Compiled Statutes, § 8392, which makes it necessary that the “vessel” bo then engaged in navigation.
That this collection of dead ships, some partially dismantled, all of them in no shape to be used for months, and with the assertion of defendants, fairly based on facts and the reasonable inferences therefrom that they are not used or intended to be used for navigation, makes them simply property of the United States, because it is plainly indicated that these ships are withdrawn from navigation, and that these gangs of workmen on such ships, living on the mother ship, traveling from ship to ship over the bridges, are simply employees and not seamen.
As has been said in this ease, it seems that this so-called “laid-up fleet” consists of about 130 ships, all tied together; 125 of them absolutely dead, without steam, while 5 have steam up in one boiler. These 5 are called mother ships, and the whole fleet is divided into five sections of an average of 25 ships clustered about this mother ship, which has this little steam for general purposes ' only. The gang, or so-сalled “crew,” live on this mother ship, which is heated, and work anywhere they are told to on the other 25 dead ships. Where the statute defines and creates a relationship, parties cannot by assertions or names create such relationship unless they comply with the statute.
Assuming that plaintiff’s services tendered to the preservation of these dead ships, the comment on a similar state of facts in the ease of The Sirius (D. C.)
In re Hoof v. Pacific Fisheries (D. C.)
,
It would appear, however, that this decision was reversed (see Hoof v. Fisheries Co. [C. C. A.]
i In addition to these two eases above cited by plaintiff, a third case, of Adams v. U. S. (D. C.)
These and other facts set forth in that opinion clearly indicate such a doubtful state of facts as not to be useful in this case of the “lai'd-up fleet.” Accordingly, in the absence of any specific authority on this “fleet” brought to my attention, I have to fall back on the ordinary definition of “seaman” in the Standard Dictionary above mentioned, and the legal definition of the Revised Statutes, § 4612, which latter seems to be still controlling in the decisions I have read. I do not believe, therefore, that the plaintiff was here a “seaman,” but that he was a workman, and shall charge the jury accordingly.
I do not grant the motion to dismiss. I will charge the jury he was a workman and not a seaman.