Grothgar v. Lewis

100 F. 326, 40 C.C.A. 382, 1900 U.S. App. LEXIS 4255

Opinion

PARDEE, Circuit Judge

(after stating the facts as above). The evidence submitted by the plaintiff on the trial tended to prove the truth of every material allegation in the declaration, and this evidence on many facts was practically undisputed. The question to which the evidence of the defendant was mainly directed was whether the schooner Fair-wind, as she lay at Frentz’s Shipyard, was worth repairing, and could have been repaired, or had practically ceased to be a ship, and was a mere hulk, good for nothing but to break up. A ship engaged in navigation is an entirety, and usually-described as consisting of the ship, her tackle, apparel, and furniture; and this includes the hull and spars, which constitute the ship, the rigging, which constitutes the tackle, the sails, which are her apparel, and the anchors and numerous utensils for the ship’s use, which are the ship’s furniture. See Ben. Adm. § 222; Bouv. Law Diet. verb. “Ship”; 1 Pars. Shipp. & Adm. 78; 22 Am. & Eng. Enc. Law, 741. If, as there was evidence tending to show, the Fairwind while proceeding on her voyage had met with disaster, had unloaded her cargo for the purpose of repairing, and was in a condition to be repaired, then she was still a ship, and, with her. hull, tackle, apparel, and furniture, constituted an entirety; and to enter upon a ship, and cut off her spars and tear down her rigging, for the purpose of levying an execution on the result as property separate from the ship, was as serious violation of duty as it would he for a constable to tear down the chimney of a dwelling’ house in order to levy an execution upon the bricks, or to cut off the axles of a locomotive, so as to make the wheels separate property, subject to a levy. The court erred in not submitting the questions involved to the jury. The judgment of the circuit court is reversed, and the cause is remanded, with instructions io grant a new trial, and thereafter proceed in conformity with the views herein expressed, and according to law.