Tebo v. Mayor of New York

61 F. 692 | S.D.N.Y. | 1894

BROWN, District Judge.

This bath house, unlike the bath houses built for permanent mooring, was built upon several boats as a substructure; the boats were designed to boat, to uphold, and to transport the Bath, wherever and whenever desired. The design included both navigation and transportation. The bath house was in effect the permanent cargo of the boats. It was not permanently moored, as in Cope v. Dry-Dock Co., 119 U. S. 625, 7 Sup. Ct. 336; but on the contrary was designed for navigation and transportation; and that is why boats were used as the substructure. It is, therefore, within the jurisdiction of this court. See The Hezekiah Baldwin, 8 Ben. 556, Fed Cas. No. 6,449; The Pioneer, 30 Fed. 206. The grounds of the decisions in those cases are applicable here. Use in trade and commerce is not essential to salvage; if that were material, there could be no salvage allowed upon yachts, or other water craft used for pleasure, which is absurd.

2. The structure was in the possession of the defendant company for repair. It had been made fast under the direction of an expert in the city’s employ, in a manner found sufficient to weather the winter storms, which equal, and often exceed, this storm in severity. The company’s employes had been warned not to loosen those lines; but they cast them off after the lighter Success came alongside the Bath, and ran lines to spiles from the Success alone, without any side lines from the Bath to prevent her from swaying. The Johannes, 10 Blatchf. 178, Fed. Cas. No. 7,332. In disobeying directions, and in adding more weight and exposure, and in substituting new lines and new ways of fastening, the company took the risk of going adrift. They would, therefore, be bound to indemnify the city for any responsibility for the salvage claim, in rem or in personam.

3. The company, as bailee, if present when the Bath went adrift, would have been bound to request the Tebo, or any other tug at hand, to endeavor to rescue the bath house, for a reasonable compensation, and prevent injury to herself or other vessels. The bath house was a valuable structure. It is a bailee’s duty to protect the property in Ms charge, and he is answerable to the owner for the performance of that duty. It was, therefore, equally of the high-' est interest to the company as bailee, and to the city as owner, to have the Bath rescued and secured as soon as possible. In fact, the watchman.on duty for the night had actually gone ashore to seek assistance only shortly before, and after the structure had got adrift. Under such circumstances, where there is no one present to represent the owners, general or special, at the time of need, and the watchman is in quest of aid, and where the right to proceed in rem is doubtful, the “request” provided for by S. Ct. admiralty rule 19 may, I think, be properly implied by law as respects both personal defendants; while the “benefit” both to the company and to the city from the service is manifest. I have much doubt, moreover, whether any part of S. Ot. admiralty rule 19 is applicable to a case in which the res is exempt from arrest, as public property; though I do not undertake to determine this latter question now. The rule ought to be applied consistently as a whole. The first,part of the rule authorizes proceedings in rem; and if an exceptional exemption from arrest for a salvage service should be held to exclude the first clause of the rule, it would seem that such a case should be deemed altogether outside of the intent of the rule, so that the whole rule should be deemed inapplicable. Uo construction of the rule should be adopted, if it can be avoided, which would leave the salvor remediless; it would be the worst policy possible to discourage any salvage help to city property in time of need, by denying any legal right, or any mode of remedy, to recover salvage compensation.

4. Under all the circumstances, $350 will, I think, be a reasonable compensation for this service, which I think the company is legally bound to pay. For that sum, with costs, a decree may be taken against the company. As against the other defendants, the proceedings are suspended, until a return of execution against the company. The Alert, 44 Fed. 685.