33 F. 511 (E.D.Wis. 1888), The F. & P.M. No. 2

Citation:33 F. 511
Party Name:THE F. & P.M. NO. 2. v. THE F. & P.M. NO. 2. CARTIER
Case Date:January 17, 1888
Court:United States District Courts, 7th Circuit, Eastern District of Wisconsin

Page 511

33 F. 511 (E.D.Wis. 1888)

THE F. & P.M. NO. 2.



THE F. & P.M. NO. 2.

United States District Court, E.D. Wisconsin.

January 17, 1888

Markham, Williams & Bright, for libelant.

E. Mariner and F. M. Hoyt, for respondent.


This is a suit in admiralty, brought by the libelant, a citizen of Michigan, against the steam-vessel R. & P.M. No. 2, owned and employed in navigation by the Flint & Pere Marquette Railroad Company, to recover the value of a raft of logs, which, on the eighteenth day of September, 1886, were being towed by a tug from a point on the east shore of Lake Michigan to Ludington. The libel alleges that the raft or boom of logs was being towed into the harbor of Ludington; that the steamer, in entering the same port, negligently ran into the raft, striking it with such force as to break the boom, and scatter the logs; and that, in consequence of the collision, many of the logs floated out into the lake, and were lost. The libel further alleges, and the answer admits, that the steamer was duly enrolled and licensed for the coasting trade, and employed in navigation and commerce upon the lakes within the admiralty jurisdiction of the United States. The defense made by the answer is that the collision occurred through the negligence of the tug which had the logs in tow. A motion is now made by the respondent to dismiss the libel for want of jurisdiction. As the place where the collision happened was upon public navigable waters, no issue arises concerning the question of locality as a ground of jurisdiction. The point presented is whether the raft of logs in question is the subject-matter of maritime jurisdiction, so as to enable the owner to maintain a suit in admiralty against the steamer, to recover for the injury and loss sustained.

In the case of The W. H. Clark, 5 Biss. 308, Judge HOPKINS expressed a serious doubt whether 'admiralty jurisdiction could be sustained against a raft of lumber,' in a case of collision; and cited Tome v. Lumber, Taney, 547, quoting Chief Justice TANEY'S remarks in that case, that cribs of lumber 'are not vehicles intended for the navigation of the sea. They are not recognized as instruments of commerce or navigation by any act

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of congress; they are piles of lumber, and nothing more, fastened together and placed upon the water. ' But in the case of the W. H. Clark, it was not necessary for Judge HOPKINS to decide, and he did not decide, the question whether, in a case of collision, a remedy in admiralty could be enforced either in favor of or against a raft of lumber, for the reason that the steamer having the raft in tow was found in fault, and therefore liable for the injury done to the boat collided with. What he said, therefore, on the subject of jurisdiction, so far as it related to the raft of lumber, was obiter. In Tome v. Lumber, supra, an attempt was made to maintain a suit in admiralty, for an alleged salvage service in rescuing certain rafts of lumber which had been driven from their anchorage in the Susquehanna river, and were found floating down the stream. It was there held that rafts anchored in a stream are not the subjects of admiralty jurisdiction, where the right of property or possession is alone concerned; that they are piles of lumber, and nothing more, placed upon the water until suitable vehicles are ready to receive and transport them to their destined port; and that any assistance rendered to them, even when in danger of being broken up and swept down the stream, is not a salvage service, in the sense in which that word is used in courts of admiralty. As will be observed, the action was a possessory one, instituted in a court of admiralty by the owners of the lumber, to recover it from a party who was seeking to hold it for salvage service; and it was held that the remedy of the owners to regain possession was an ordinary action of replevin. Clearly, the case can have no greater application to the question under consideration, than its particular facts and the character of the action warrant.

In the case of A Raft of Cypress Logs, 1 Flip. 543, it was held that a libel in rem cannot be maintained for services in navigating a raft of logs. That was a case of contract, and it was held that 'in actions of contract the agreement sued on must be maritime in its character; it must pertain in some way to the navigation of a vessel, having carrying capacity and employed as an instrument of travel, trade, or commerce, though its form, size, and means...

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