181 F. 983 | D. Mass. | 1909
In this case there has been a reference to a master to ascertain the value of the C. H. Northam and her pending freight, in order that the court may fix the amount of stipulation to be given therefor. The present motion to dismiss is based partly upon the allegations in the petition and partly upon facts found by the master in his report.
It is contended that upon these allegations and findings the C. H. Northam cannot properly be considered a “vessel,” within the.meaning of the limited liability schedules. When the damage was done which is set forth in the petition, the C. H. Northam was adrift without any one on board. Her owners had left her on shore at Wood Island. In a storm she floated and went adrift without their knowledge.
Her owners had taken her to Wood Island to dismantle her, and were engaged in doing so at the time. Her masts had been removed, also her engines, and she was entirely without motive power of her own. Part of her machinery still remained on board the hull, with a derrick and dummy engine, belonging to her owner, which were being used in the dismantling process. Under these conditions, she drifted all the way across from Wood Island to Harbor View, and was afterwards towed back to Wood Island. She was, therefore, whatever her deficiencies for use as a barge, capable of floating, of carrying cargo, and of being towed from place to place. Since canal boats, barges, and lighters are vessels for the purposes of the limited liability statutes, by the express terms of Rev. St. U. S. § 4289, as amended in-1886 (Act June 19,1886, c. 421, § 4, 24 Stat. 80 [U. S. Comp. St. 1901, p. 2945]), it is difficult to see why, so far as capacity for use in navigation is concerned, she is not to be regarded as a vessel within the meaning of those statutes. In Re Eastern Dredging Co., 138 Fed. 942, a dumping scow was held to be a vessel in that sense. That a wreck, kept afloat only by steam pumps, and capable of navigation only by being towed, may be a vessel, in the sense referred to, is settled in Craig v. Continental Ins. Co., 141 U. S. 638, 12 Sup. Ct. 97, 35 L. Ed. 886.
It is urged that the question is one to be determined according to-the intention or absence of intention óf her owners to use her as a vessel, and that in this case the owners had given up all intention of so doing, and were proceeding to dismantle her as rapidly as possible, in order to get at the metal which sjie contained by burning her. Admitting these to be the facts, I am unable to believe that she ceased to-be a vessel, for the purposes of the statutes referred to, until the dismantling process had gone so far as to render her .wholly incapable of navigation. However high up on the beach she may have been placed, and whether or not holes had been bored in her bottom to let out water which she contained, that stage of the process had not been reached, and the owners might still have changed their plans without having to make a new vessel out of a mere wreck. If negligence in her management, without the owners’ privity and knowledge, did in fact cause:
The motion to dismiss is denied.