48 F. 566 | D. Maryland | 1880
The libelant, Wood, made a contract for the use of the canal-boat Wilmington, which is as follows:
“ CHARTER-PA RTF.
“.I, John Wood, on this 19th day of July, 1880, charter from Dominick Ma-grudy the boat known and called the Wilmington, (of which the said Magrudy is master and owner,) for the term of sixty days from date. The said John Wood agrees to pay the said Magrudy the sum of two hundred and fifty dollars for the above-named sixty days. The said John Wood agrees to pay for the first calking of the said boat, after which the said Magrudy agrees to keep said boat in thorough repair, and to man and furnish her with- all appurtenances. ”
The testimony shows that the libelante well-known business was to furnish to the grain elevators in the port of Baltimore barges suitable for carrying grain, which they needed when the elevators were full, and which they used principally for storage, and incidentally to cany the grain to ships which they desired to load in different parts of the harbor. This was the purpose for which the barge was to be used in the present case, and was well understood by both parties. The owner of the barge lived in Philadelphia; but the master of the barge, who had brought her to Baltimore, had authority to make the contract. Under this contract her deck was recalked at the libelant’s expense, which the master said was all the repairs she required. She then was twice loaded with
After the grain was taken out ol' her, the master bad her hauled on the dry-dock for repairs, when it was found that the oakum was out of her seams in half a dozen places, and he was obliged to have her entirely recalked and repaired. By the contract it ivas agreed by the master that the boat should be kept in thorough repair; and, from all the testimony, I have no difficulty in finding that the damage resulted from a breach of this agreement. Although the contract recites that Dominick .Magrudy was master and owner, lie was in truth master only, and Mrs: Ann Magrudy, of Philadelphia, was the owner. She makes claim to the boat; and, besides defenses to the merits and facts of libelant/s claim, she denies the jurisdiction of this court to take cognizance of the case, and denies the libelant’s right to maintain a proceeding- in rem. It is now, however, I think, quite well settled that canal-boats, lighters, barges, floating elevators, and similar floating contrivances, used in harbors as instruments of commerce, are, in like manner as seargoing vessels, subjects of admiralty jurisdiction, and that contracts with regard to their employment and repair are maritime contracts, and. matters of admiralty cognizance. The Kale Tremaine, 5 Ben. 60; The W. J. Walsh, Id. 72; The E. M. McChesney, 8 Ben. 150; The Floating Elevator Hezekiah Baldwin, Id. 556; The Northern Belle, 9 Wall. 526; Edner v. Greco, 3 Fed. Rep. 411. Under the contract in this case, the canal-boat could have been used for any of the purposes for which such a vessel is suitable; and she was in fact used in two instances to carry grain across the harbor. The fact that the principal use to which it was expected she would be put, and for which she actually was used, was to hold grain on storage until the elevators were relieved, does not, in my judgment, alter the rights of the parties. In Reppert v. Robinson, Taney, 498, it is said:
‘•The manner in which the vessel is actually employed cannot affect the question of jurisdiction. It depends upon her character. If the repairs fitted her for navigation of the sea, the contract was maritime; and it docs not rest with the owner to confer or take away admiralty jurisdiction at his pleasure by the mode or trade in which he afterwards employed her.”
The objection to the libel most strongly urged is to its character as a libel in rem. It is urged that a contract such as the present one makes the libelant the owner of the boat-during the term of the contract; that
In this case the master knew better than any one the age and condition of his boat, and her fitness to carry grain without injuring it. He undertook to have the repairing done to make her fit after she had once sprung a leak. He was to remain on board of her, to watch her and her cargo, and keep her wells free of water. He had expressly stipulated with the libelant to keep her in thorough repair, and I fail to see why the boat should not be held liable in rem to the libelant for damages to a cargo resulting from a breach of this stipulation, which cargo the libel-ant, rélying on this stipulation, had procured for her, and which damage he was answerable for, and has paid.
Upon the theory that this was an absolute demise of the boat, and that the master was in the employment of the charterer, and not of the owurer, it is contended that the owner is not responsible for the neglect and defaults of the master in allowing the leak to get such headway as to injure the grain. But the master, who was offered as a witness by the respondents^ and not by the libelant, denies that he was negligent, and declares that he was constantly on board, diligently attentive, morning and evening, to pumping the boat, and states that, when the leak started, it gained so rapidly that no exertions could stop its gaining. Therefore, even though he is regarded as the servant of the libelant, the respond-
I pronounce in favor of the libelant; but, as the testimony with regard to the loss on the wet grain was not entirely satisfactory, unless the parties can agree on the amount, 1 will send the case to a master to compute the damages. I think it should bo shown, with more accuracy than was done at the hearing, how much the grain which was wet was depreciated in value.