Norton v. The Richard Winslow

71 F. 426 | 7th Cir. | 1896

JENKINS, Circuit Judge,

after stating the facts, delivered the opinion of tlie court.

The contract here was dual in character. It contemplated a carriage by sea from the port of Chicago to the port of Buffalo, and thereafter storage of the cargo in the vessel at the port of Buffalo until the opening of navigation. Such contracts have become frequent upon the Great Lakes with respect to the forwarding of the crops; the ship being thereby assured of a cargo just before the close of navigation, and the shipper obtaining cheap or free,storage during the closed season of-navigation, and being also thereby enabled to reach the seaboard immediately upon the opening of navigation. The question presented is whether this contract with respect to the storage of the.corn at the harbor of Buffalo during the closed season of navigation can be deemed a maritime contract, and so within the ■admiralty jurisdiction. Long ago Judgé Story took issue with the common-law courts of England, which sought to restrict the admiralty jurisdiction to causes of action arising “from things done upon the sea,” and asserted the true limitation of that jurisdiction to be “to things pertaining to the sea.” De Lovio v. Boit, 2 Gall. 398, Fed. Cas. No. 3,770. For many years his position was vigorously assailed, even by the justices of the supreme court; Mr. Justice Campbell in The Magnolia, 20 How. 335, decided in 1857, speaking of it as a “broad pretension for the admiralty, under which the legal profession and this court staggered for thirty years before being able to maintain it.” Finally, in 1870, in Insurance Co. v. Dunham, 11 Wall. 1, by the unanimous concurrence of the judges, the position of Judge Story was fully sustained, and the court declared the true criterion of admiralty jurisdiction with respect to contracts “is the nature and subject-matter of the contract as whether it was a maritime contract having reference to maritime service or maritime transactions.” A maritime contract must therefore concern transportation by sea. It must relate to navigation, and to maritime employment. It must be one of navigation and commerce on navigable waters. Unquestionably there was here a contract for carriage by sea, and that contract was maritime in its nature. But there was joined with it a contract with respect to the'cargo after the completion of the voyage that was in no respect maritime in its nature. If as Judge, now Mr. Justice, Brown observes in The Pulaski, 33 Fed. 383, the storage were a mere incident to the transportation, the entire contract would be held to be maritime, and within the admiralty jurisdiction. But here the contract for holding the corn in storage did not concern navigation. It could not take effect until after completion of the voyage, and had no relation to further transportation of the cargo by the vessel. It was to be performed at a time when the vessel was not engaged in commerce or navigation, or in preparation therefor. It was merely a contract for winter storage, and was no more maritime in its nature than the nonmaritime contracts for winter wharfage (The Murphy Tugs, 28 Fed. 429); for the employment of a dismantled hull (The Hendrick Hudson, 3 Ben. 419, Fed. Cas. No. 6,355); for the storage of a vessel’s outfit during winter (Gilbert Hubbard & Co. v. Boach, 2 Fed. 393); or for the service of a shipkeeper during winter (The Sirius, 65 Fed. 226). The reason is that such service does not pertain to the navigation of a ship, nor assist a vessel in the discharge of a maritime obligation.

It is alleged that at the time of the injury in question the maritime contract of affreightment was not ended, and could only be completed by a delivery of the cargo, which here remained in the possession of the vessel; but we think that under the terms of the bill of lading in question the contract of storage was to take effect upon the arrival of the vessel'in the harbor at Buffalo, and that there was constructive delivery which would terminate the liability of the carrier as such. Here the cargo was not to he delivered to the consignee in pursuance of the contract of carriage, but was to be held by the carrier upon storage as warehouseman only, upon the completion of the voyage. The character in which the cargo was held by the vessel changed from that of carrier to that of warehouseman. The maritime service had been performed fully and completely within the letter and spirit of the contract. Thereafter the cargo was held by the vessel as warehouseman under the liability attached to that relation. Because the ship was afloat when used as a warehouse does not render the contract for storage a maritime contract, any more than in the case of a floating warehouse, a floating saloon, or a floating church. Such employment does not pertain to navigation, with which alone the admiralty is concerned. The force of lie position was felt by the learned counsel for the appellant, who urged upon us at the argument, with earnestness and with a zeal horn of his liking for the admiralty jurisdiction, that because such transactions as this have become fro quent upon the Lakes and the courts of admiralty can, as was asserted, more efficiently pass upon such cases, it will be detrimental to the interests of commerce and to the commercial community to deny a remedy upon such contracts in the courts of admiralty. Without criticising the suggestion, we can only say that, however convenient it might be to do so, we do not think it our duty to extend the admiralty jurisdiction beyond its well-established limitations and to, a subject-matter that does not pertain to navigation. The decree of ’ the district court will be affirmed.