DILLON, Circuit Judge.
The respondents make the question in this court that the case, as stated in the libel and made by the proofs, is not one of admiralty or maritime cognizance, and this, whether the libel be regarded as one for salvage or to recover as upon a maritime contract. The libel and monition show that the pleader intended a case for salvage compensation; but the facts are stated, and if the ease is not one for salvage compensation, but is one upon a maritime contract to recover for maritime services, the liberal practice of the court of admiralty would probably allow it to be viewed in the latter aspect — more particularly as the objection was not taken until the hearing, if indeed at any time before the case reached the appellate court. The proctors in the cause have referred me to the decisions bearing up[283]*283on the jurisdiction of the admiralty in cases supposed to be more or less analogous to this one, but it is conceded that none of them are exactly in point; and some of them are conflicting. The law of salvage grows out of navigation, and is intended to promote the interests of those engaged in navigating vessels which are the instruments of commerce and trade, and of those whose property is exposed to the perils of the sea, by awarding liberal compensation to the persons by whose assistance such property is rescued from impending peril or saved after actual loss. Abb. Sliipp. 554. And because such services are connected with navigation and commerce or trade, the court of admiralty has jurisdiction to fix the amount of compensation and to enforce a maritime lien therefor; and such jurisdiction and lien are necessary because the owners of the property saved may be unknown or distant or irresponsible. No such reason or necessity exists in respect to fixed structures, such as these docks. In denying salvage compensation for taking up and securing rafts afloat in public navigable waters, Chief Justice Taney uses language which applies here. He says rafts “are not vehicles intended for the navigation of the sea, or the arms of the sea; they are not recognized as instruments of commerce or navigation by any act of congress; they are piles of lumber and nothing more, fastened together and placed upon the water until suitable vehicles are ready to receive and to support them to their destined port. And any assistance rendered to these rafts, even when in danger of being broken rip or swept down the river, is not a salvage service, in the sense in which that word is used in the courts of admiralty.” Tome v. Four Cribs of Lumber [Case No. 14,083].
NOTE. By the general admiralty law, maritime contracts include maritime services in building, repairing, supplying and navigating ships, and the admiralty jurisdiction in the United States extends to all maritime contracts, i. e., contracts which relate to the navigation, business or commerce of the sea. De Lovio v. Boit [Case No. 3,776], The settled doctrine in this country is, that the admiralty jurisdiction extends to all maritime contracts, and “whether a contract be maritime or not depends not on the place where the contract was made, but on the subject-matter of the contract; * * * the true criterion is the nature and subject-matter of the contract, as to whether it is a maritime contract, having reference to maritime service or maritime transactions.” Insurance Go. v. Dunham, 11 Wall. [78 U. SJ 26, 29. A Contract for building a vessel was held to be not j a maritime contract, because made on land and to be performed on land. Ferry Oo. v. Beers, 20 How. [61 U. S.] 393, 401. But this decision is not to be extended by implication. Insurance Co. v. Dunham, 11 Wall. [78 U. S.] 28. Locality of the place where made, as a test of the maritime nature of contracts, is rejected in this country. A ferry boat on the Ohio river may be the subject of a salvage service. The ; Clieeseman v. Two Ferry Boats [Case No. 2.-j 633J. The learned Judge Leavitt in that case expressed the opinion that salvage service could not be restricted to a service rendered to a vessel or the cargo of a vessel, but extended to all cases where valuable property is adrift or afloat, and is rescued from peril on any water over which the admiralty jurisdiction extends. Id. This view he considered to find support in : the decisions in which steamboats have been i libelled in admiralty for injuries to flat-boats I and their cargoes, of which Fritz v. Bull, 12 ! How. [53 Ü. S.] 466, Culbertson v. Shaw. 18 ■ How. [59 U. S.] 5S5. and Nelson v. Leland. 22 I How. [63 U. S.j 4S, are mentioned as examples. ¡ And he adds: “If. in collision cases, jurisdic-i tion in admiralty can be maintained, when the injury is not to a vessel or the cargo of a vessel (not required to be enrolled or licensed), it results inevitably that it may be maintained for a salvage service in saving property not within either of those categories.” And he supports his conclusions by pointing out the inadequacy of the drift laws of the states. Judge Nelson was inclined to regard a- canal boat as not being a boat or vessel, though upon navigable waters, in such a sense as to subject it to a maritime lien for breath of a contract of af-freightment. The Ann Arbor [Case No. 408]. 185S. See similar view, Buckléy V. Brown, 3 Walk [70 Ü. fit] 199, 1856. per Grier. J.; Jones v. Coal Barges [Case No. 7.458]. But a lighter was held to be subject to the admiralty jurisdiction. The General Cass [Case No. 5,-307]. So ferry boat. The Cheeseman v. Two Ferry Boats [supra].
The claim of the owner of a ship-yard in hauling up a vessel on his ways, and for the use of the ways, is a claim of a maritime nature. enforceable in admiralty. Wortman v. Griffith [Case No. 18,057], 1856, Nelson J. But see previous case of Ransom v. Mayo rid. 11,-571]. 1S53, where the admiralty was held not to have jurisdiction of a claim by the owner of the vessel -against the owner of the ways, for the negligence of the latter in hauling the vessel up on the ways. A dismantled steamboat fitted up for a saloon, not subject of admiralty jurisdiction. The Hendrick Hudson [Id. 6,355], Barge adrift is subject of salvage service. Seven Coal Barges [Id. 12.677], So of a box of bullion. IVilliams v. Box of Bullion [Id. 17.-717]. A maritime lien can not exist upon a bridge; and the opinion was expressed in a libel in rem against a bridge for a maritime tort, that a lien “could only exist upon movable things engaged in navigation, or upon things which are the subject of commerce on the high seas or navigable waters,” such as vessels, steamers and rafts, and upon goods and merchandise carried by them, but not upon anything fixed and immovable, like a wharf, a bridge, or real estate of any kind. The Rock Island Bridge, 6 Wall. [73 U. S.] 213. But a vessel injured by any obstruction in navigable waters may sue in personam in the admiralty,— locality giving the jurisdiction in cases of maritime torts. Atlee v. Northwestern Union Packet Co., 21 Wall. [88 U. S.] 38». In Tome v. Four Cribs of Lumber [supra] it was held by Oh. J. Taney that taking up and securing rafts afloat in public navigable waters was not a salvage service, but rather in the nature of a mere finding, citing Nicholson v. Chapman. 2 H. Bl. 254, relating to a quantity of lumber, and in which salvage was denied, and The Up-nor (a fiat boat) 2 Hagg. Adm. 3. One ground of the decision of Ch. J. Taney was, that rafts “are not vehicles intended for the navigation of the sea, or the arms of the sea; they are not recognized as instruments of commerce or navigation by any act of congress; they are piles of lumber, and nothing more, fastened together and placed upon the water until suitable vehicles are ready to receive and transport it to its destined port. Free access — add to your briefcase to read the full text and ask questions with AI
DILLON, Circuit Judge.
The respondents make the question in this court that the case, as stated in the libel and made by the proofs, is not one of admiralty or maritime cognizance, and this, whether the libel be regarded as one for salvage or to recover as upon a maritime contract. The libel and monition show that the pleader intended a case for salvage compensation; but the facts are stated, and if the ease is not one for salvage compensation, but is one upon a maritime contract to recover for maritime services, the liberal practice of the court of admiralty would probably allow it to be viewed in the latter aspect — more particularly as the objection was not taken until the hearing, if indeed at any time before the case reached the appellate court. The proctors in the cause have referred me to the decisions bearing up[283]*283on the jurisdiction of the admiralty in cases supposed to be more or less analogous to this one, but it is conceded that none of them are exactly in point; and some of them are conflicting. The law of salvage grows out of navigation, and is intended to promote the interests of those engaged in navigating vessels which are the instruments of commerce and trade, and of those whose property is exposed to the perils of the sea, by awarding liberal compensation to the persons by whose assistance such property is rescued from impending peril or saved after actual loss. Abb. Sliipp. 554. And because such services are connected with navigation and commerce or trade, the court of admiralty has jurisdiction to fix the amount of compensation and to enforce a maritime lien therefor; and such jurisdiction and lien are necessary because the owners of the property saved may be unknown or distant or irresponsible. No such reason or necessity exists in respect to fixed structures, such as these docks. In denying salvage compensation for taking up and securing rafts afloat in public navigable waters, Chief Justice Taney uses language which applies here. He says rafts “are not vehicles intended for the navigation of the sea, or the arms of the sea; they are not recognized as instruments of commerce or navigation by any act of congress; they are piles of lumber and nothing more, fastened together and placed upon the water until suitable vehicles are ready to receive and to support them to their destined port. And any assistance rendered to these rafts, even when in danger of being broken rip or swept down the river, is not a salvage service, in the sense in which that word is used in the courts of admiralty.” Tome v. Four Cribs of Lumber [Case No. 14,083].
NOTE. By the general admiralty law, maritime contracts include maritime services in building, repairing, supplying and navigating ships, and the admiralty jurisdiction in the United States extends to all maritime contracts, i. e., contracts which relate to the navigation, business or commerce of the sea. De Lovio v. Boit [Case No. 3,776], The settled doctrine in this country is, that the admiralty jurisdiction extends to all maritime contracts, and “whether a contract be maritime or not depends not on the place where the contract was made, but on the subject-matter of the contract; * * * the true criterion is the nature and subject-matter of the contract, as to whether it is a maritime contract, having reference to maritime service or maritime transactions.” Insurance Go. v. Dunham, 11 Wall. [78 U. SJ 26, 29. A Contract for building a vessel was held to be not j a maritime contract, because made on land and to be performed on land. Ferry Oo. v. Beers, 20 How. [61 U. S.] 393, 401. But this decision is not to be extended by implication. Insurance Co. v. Dunham, 11 Wall. [78 U. S.] 28. Locality of the place where made, as a test of the maritime nature of contracts, is rejected in this country. A ferry boat on the Ohio river may be the subject of a salvage service. The ; Clieeseman v. Two Ferry Boats [Case No. 2.-j 633J. The learned Judge Leavitt in that case expressed the opinion that salvage service could not be restricted to a service rendered to a vessel or the cargo of a vessel, but extended to all cases where valuable property is adrift or afloat, and is rescued from peril on any water over which the admiralty jurisdiction extends. Id. This view he considered to find support in : the decisions in which steamboats have been i libelled in admiralty for injuries to flat-boats I and their cargoes, of which Fritz v. Bull, 12 ! How. [53 Ü. S.] 466, Culbertson v. Shaw. 18 ■ How. [59 U. S.] 5S5. and Nelson v. Leland. 22 I How. [63 U. S.j 4S, are mentioned as examples. ¡ And he adds: “If. in collision cases, jurisdic-i tion in admiralty can be maintained, when the injury is not to a vessel or the cargo of a vessel (not required to be enrolled or licensed), it results inevitably that it may be maintained for a salvage service in saving property not within either of those categories.” And he supports his conclusions by pointing out the inadequacy of the drift laws of the states. Judge Nelson was inclined to regard a- canal boat as not being a boat or vessel, though upon navigable waters, in such a sense as to subject it to a maritime lien for breath of a contract of af-freightment. The Ann Arbor [Case No. 408]. 185S. See similar view, Buckléy V. Brown, 3 Walk [70 Ü. fit] 199, 1856. per Grier. J.; Jones v. Coal Barges [Case No. 7.458]. But a lighter was held to be subject to the admiralty jurisdiction. The General Cass [Case No. 5,-307]. So ferry boat. The Cheeseman v. Two Ferry Boats [supra].
The claim of the owner of a ship-yard in hauling up a vessel on his ways, and for the use of the ways, is a claim of a maritime nature. enforceable in admiralty. Wortman v. Griffith [Case No. 18,057], 1856, Nelson J. But see previous case of Ransom v. Mayo rid. 11,-571]. 1S53, where the admiralty was held not to have jurisdiction of a claim by the owner of the vessel -against the owner of the ways, for the negligence of the latter in hauling the vessel up on the ways. A dismantled steamboat fitted up for a saloon, not subject of admiralty jurisdiction. The Hendrick Hudson [Id. 6,355], Barge adrift is subject of salvage service. Seven Coal Barges [Id. 12.677], So of a box of bullion. IVilliams v. Box of Bullion [Id. 17.-717]. A maritime lien can not exist upon a bridge; and the opinion was expressed in a libel in rem against a bridge for a maritime tort, that a lien “could only exist upon movable things engaged in navigation, or upon things which are the subject of commerce on the high seas or navigable waters,” such as vessels, steamers and rafts, and upon goods and merchandise carried by them, but not upon anything fixed and immovable, like a wharf, a bridge, or real estate of any kind. The Rock Island Bridge, 6 Wall. [73 U. S.] 213. But a vessel injured by any obstruction in navigable waters may sue in personam in the admiralty,— locality giving the jurisdiction in cases of maritime torts. Atlee v. Northwestern Union Packet Co., 21 Wall. [88 U. S.] 38». In Tome v. Four Cribs of Lumber [supra] it was held by Oh. J. Taney that taking up and securing rafts afloat in public navigable waters was not a salvage service, but rather in the nature of a mere finding, citing Nicholson v. Chapman. 2 H. Bl. 254, relating to a quantity of lumber, and in which salvage was denied, and The Up-nor (a fiat boat) 2 Hagg. Adm. 3. One ground of the decision of Ch. J. Taney was, that rafts “are not vehicles intended for the navigation of the sea, or the arms of the sea; they are not recognized as instruments of commerce or navigation by any act of congress; they are piles of lumber, and nothing more, fastened together and placed upon the water until suitable vehicles are ready to receive and transport it to its destined port. And any assistance rendered to these rafts, even when in danger of being broken up or swept down the river, is not a salvage service, in the sense in which that word is used in the courts of admiralty.” As to rafts, see A Raft of Spars [Case No. 11,529); 2 W. Rob. Adm. 251.
[283]*283Assuming that the allegations of the libel are broad enough to justify the court in treating the libel as one to enforce a contract, or to recover compensation upon general principles for the services rendered in raising the docks, I am of opinion that the contract or services do not relate to the navigation, business or commerce of the sea or public navigable waters, in such a sense as to make the contract or services maritime. The admiralty jurisdiction and the peculiar liens, rights and remedies which the admiralty recognizes and enforces, spring out of the movable character of the vessels and vehicles which are the instruments of navigation, commerce and trade. None of the x'easons upon which this jurisdiction is founded, and these rights and remedies are given, apply to the stationary docks here in question; and my best judgment is that the controversy between these parties belongs to the courts of common law, and not to the court of admiralty.
The decree below against the dock company is reversed, and the libel dismissed as to all the respondents; but as the question of jurisdiction was not raised until after the proofs were taken, each party must bear the costs he has incurred, except that the costs in this court must be paid by the libellants. Decree accordingly.
The jurisdiction of the district court over a case of salvage service on the Mississippi river is not questioned by counsel, and does not admit of question. Seven Coal Barges Lsupraj, citing The Genesee Chief, 12 How. [53 U. S.) 443; Tile Hiñe v. Trevor. 4 Wall. r71 U. S.) 555; The Tug Eagle, 8 Wall. [75 U. S.) 15. Coal barges adrift on the Ohio may be the subject of salvage service. Seven Coal Barges [supra], Drummond, J. (Davis J., concurring). “The object of the law of salvage is to promote commerce and trade, and the general interests of the country, by preventing the destruction of property, and to accomplish this by appealing to the personal interest of the individual as a motive of action, with the assurance that he will not depend upon the owner of the property he saves for the measure of his compensation, but to a court of admiralty, governed by principles of equity.” Per Drummond, J., Seven Coal Barges [supra].