The Enterprise

U.S. Circuit Court for the District of Western Pennsylvania

The Enterprise

181 F. 746, 1910 U.S. Dist. LEXIS 202

CourtU.S. Circuit Court for the District of Western Pennsylvania

DecidedSeptember 23, 1910

DocketNo. 8

StatusPublished

This text of 181 F. 746 (The Enterprise) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Western Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

The Enterprise, 181 F. 746, 1910 U.S. Dist. LEXIS 202 (circtwdpa 1910).

Pincite

Opinion

ORR, District Judge.

This in a libel in rem to recover for towing and for services and expenses in respect to diving, for the benefit of the respondent. The home port of the dredgeboat, if any she has, is where the services were rendered.

The facts with respect to the employment of the libelant, and with respect to the occasion for diving, appear in an opinion this day filed dismissing a libel by the Enterprise Contracting Company, the owners of the dredgeboat, against the steamer Deader, owned by said Carpenter. 181 Fed. 743.

The claim of Carpenter for towing was in the sum of $504, for 12% days. The time expected to be used in towing, at the time of undertaking the same, according to the testimony, was from 2 to 3 days. The additional days were due to standing by the dredgeboat after she had sunk as. the result of an accident, until she was put in shape for navigation, and also because of insufficient water to proceed with the tow.

The evidence is clear that the libelant is not entitled to receive over $150 from the respondent for said services. The secretary of the Enterprise Construction Company told Capt. Carpenter that his company wanted the dredgeboat and two scows to be taken from Scwickley to lock No. 11 in the Ohio river, and asked him what he wanted for the service. Capt. Carpenter replied that the Monongahela & Western Company paid him $150 for a similar service. The secretary then asked him if that was what he wanted, and Capt. Carpenter replied, “That is what we get.” On notice from another officer of the Enterprise Construction Company, Capt. Carpenter took the dredgeboat and the two scows in tow, without saying anything else as to the price he would demand for the service. The respondent properly had a right to rely upon the figures given him by the libelant, and to suppose that no more would be asked of it than was asked of others for a like service. The additional bill for diving, etc., to the amount of $111.82, is not disputed by the answer, except as to the right of the libelant to a lien therefor. - ¡

[748]*748Respondent also raises the question as to the fight of a lien for the several services. The right to lien is dependent upon the Acts of Assembly of Pennsylvania. It is insisted by the respondent that there is no act of Pennsylvania which gives a lien for services rendered in a diving and towing contract, and, even if any of the Pennsylvania acts did give a lien for such service, these acts do not apply to dredge-boats. This is true, according to the construction of these acts given in the Court of Appeals for the Third Circuit in The Northern, 135 Fed. 730, 68 C. C. A. 368. It follows, therefore, that the libel must be dismissed, not on its merits, but because otherwise it cannot be maintained.

The libel is dismissed, at the cost of the libelant. Let a decree be drawn accordingly.

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ORR, District Judge.

This in a libel in rem to recover for towing and for services and expenses in respect to diving, for the benefit of the respondent. The home port of the dredgeboat, if any she has, is where the services were rendered.

The facts with respect to the employment of the libelant, and with respect to the occasion for diving, appear in an opinion this day filed dismissing a libel by the Enterprise Contracting Company, the owners of the dredgeboat, against the steamer Deader, owned by said Carpenter. 181 Fed. 743.

The claim of Carpenter for towing was in the sum of $504, for 12% days. The time expected to be used in towing, at the time of undertaking the same, according to the testimony, was from 2 to 3 days. The additional days were due to standing by the dredgeboat after she had sunk as. the result of an accident, until she was put in shape for navigation, and also because of insufficient water to proceed with the tow.

The evidence is clear that the libelant is not entitled to receive over $150 from the respondent for said services. The secretary of the Enterprise Construction Company told Capt. Carpenter that his company wanted the dredgeboat and two scows to be taken from Scwickley to lock No. 11 in the Ohio river, and asked him what he wanted for the service. Capt. Carpenter replied that the Monongahela & Western Company paid him $150 for a similar service. The secretary then asked him if that was what he wanted, and Capt. Carpenter replied, “That is what we get.” On notice from another officer of the Enterprise Construction Company, Capt. Carpenter took the dredgeboat and the two scows in tow, without saying anything else as to the price he would demand for the service. The respondent properly had a right to rely upon the figures given him by the libelant, and to suppose that no more would be asked of it than was asked of others for a like service. The additional bill for diving, etc., to the amount of $111.82, is not disputed by the answer, except as to the right of the libelant to a lien therefor. - ¡

[748]*748Respondent also raises the question as to the fight of a lien for the several services. The right to lien is dependent upon the Acts of Assembly of Pennsylvania. It is insisted by the respondent that there is no act of Pennsylvania which gives a lien for services rendered in a diving and towing contract, and, even if any of the Pennsylvania acts did give a lien for such service, these acts do not apply to dredge-boats. This is true, according to the construction of these acts given in the Court of Appeals for the Third Circuit in The Northern, 135 Fed. 730, 68 C. C. A. 368. It follows, therefore, that the libel must be dismissed, not on its merits, but because otherwise it cannot be maintained.

The libel is dismissed, at the cost of the libelant. Let a decree be drawn accordingly.

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Bluebook (online)

181 F. 746, 1910 U.S. Dist. LEXIS 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-enterprise-circtwdpa-1910.

Opinion

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