Bowers Hydraulic Dredging Co. v. Federal Contracting Co.

• Citation: 148 F. 290
• Parties: BOWERS HYDRAULIC DREDGING CO. v. FEDERAL CONTRACTING CO.
• Decision Date: 27 June 1906
• Court: U.S. District Court — Southern District of New York

148 F. 290

BOWERS HYDRAULIC DREDGING CO. v. FEDERAL CONTRACTING CO.

United States District Court, S.D. New York.

June 27, 1906

Horace L. Cheyney, for libellant.

Edward W. Norris, for respondent.

ADAMS District Judge.

This action was brought by the Bowers Hydraulic Dredging Company against the Federal Contracting Company to recover the hire of Dredge No. 2, under a written contract to pay $3,000 per month, from July 1st to July 24th, 1905, amounting to $2,322.48. The respondent defends, (1) on the ground that the dredge was not able to do the work which it was represented she could do, and (2) because the court has no jurisdiction of the cause of action.

1. It appears that the respondent paid the hire of the dredge for the months of April, May and June, 1905, and the testimony did not show any condition which differed materially in July. The dredge did all the work that the libellant undertook that she should do, or which could reasonably have been expected of her. The contract did not provide that she should be adapted to the pumping of the bricks and stones which were met with and had the effect of retarding her work in July, so that then she did not always work up to the guaranteed capacity. I found nothing in the testimony on the trial to warrant any deduction from the claim of the hire sued for.

2. The parties have entered into the following stipulation, which determines the facts necessary to be considered on the question of jurisdiction, viz.:

'The parties to this action, in order to avoid the transcribing of the minutes of trial, hereby stipulate and agree as follows:

On May 20th, 1905, the libellant and respondent entered into a contract (a true copy of which is attached to the libel) whereby the libellant let unto the respondent, its hydraulic dredge and appurtenances, including necessary pontoons discharge pipe including 2000 feet of shore pipe, derrick scow and two coal scows, for and during the working season of 1905. The respondent agreed to pay for the use of the dredge and its appurtenances the sum of Three thousand dollars per month.

The agreement above referred to contained, inter alia, the following provisions:

'Said dredge and appurtenances to be used as the charterer or its agents may direct in dredging material and putting same ashore on the property of the Hackensack Meadows Company, located on the Passaic and Hackensack Rivers, N.J., or at such other localities as said charterer may direct.'

'Notwithstanding anything hereinbefore contained the charterer shall have the option and privilege of cancelling this charter after said dredge has been in its service for three months if at the expiration of that period it is found unsuitable for its business, it being understood and agreed that said dredge shall be able to deposit on shore an average of 300 cubic yards of material, scow measurement, through 2000 feet of land pipe per hour.'

'The charterer during the term of this charter party shall have the sole and absolute possession, control and management of said dredge and its officers and crew and all the legal rights and privileges of owners.'

At the time the contract was entered into, the dredge and its appurtenances were lying in the Delaware River, at Camden, N.J. The dredge was towed from that place to the Passaic River by way of the Delaware Bay and the Atlantic Ocean.

The dredge was thoroughly equipped for ocean voyages and theretofore had made several voyages to different ports on the Atlantic coast. The dredge however had no motive power of her own and was towed upon these various voyages by tug boats.

The scows and pontoons were towed from Camden by way of the Delaware River, Delaware and Raritan Canal, etc. to the Passaic River.

The libellant's dredge was intended to operate afloat and contained machinery, consisting of rotary cutters for digging the mud beneath the water and centrifugal pumps by which the sand, mud and material loosened by the rotary cutters and drawn up in a state of solution were forced through lines of pipe to place of deposit, and certain engines for the operation of the machinery on the dredge.

While the libellant's dredge was employed under this contract her discharge pipe extended continuously from the dredge to a point about 1,200 feet on shore, and the dredge material was deposited at about that distance from the bank of the river. The pipe was carried from the dredge on pontoons to the shore and thence on the land to the place where the dredged material was discharged from the pipe and deposited.

Mr. Somers, the President of the Libellant Company, testified that at the time the contract was entered into, it was understood that the material to be dredged should be brought by scows from the vicinity of New York harbor. This was objected to by respondent's counsel and an exception taken.

Upon the arrival of the dredge in the Passaic River, the respondent commenced to use her in digging two or three basins for the reception of dredged material to be brought by scows from other points. The material dug or dredged out of these two or three basins was pumped ashore.

The dredge was occupied in digging these two or three basins until the latter part of June or the early part of July, 1905, when the respondent obtained permission to dump dredged material in the basins which had been dug out, and thereafter about 18 scows of dredged material were brought from the Bay Ridge District and certain other dredged material was brought by scows from other portions of the Passaic River, all of which was dumped into the basins above the referred to. The material so dumped into the basins was then dredged by the libellant's dredge and pumped ashore.

All of the material which was dredged by the libellant's dredge out of these basins was pumped ashore on lands of the Hackensack Meadow Company, and the dredge was not employed in deepening the channel.'

The libellant contends it is settled law that a court of admiralty has jurisdiction over dredges, citing The Alabama (C.C.) 22 F. 449; The Pioneer (C.C.) 30 F. 206; Aitcheson v. Endless Chain Dredge (C.C.) 40 F. 253; The Atlantic (D.C.) 53 F. 607; The Starbuck (D.C.) 61 F. 502; Saylor v. Taylor, 77 F. 476, 23 C.C.A. 343; The International (D.C.) 83 F. 841; McMaster v. One Dredge (D.C.) 95 F. 832. The distinction, however, between those cases and the one under consideration is in the method of disposing of the dredged material. In addition to the above authorities, there is cited McRae v. Bowers Dredging Company (C.C.) 86 F. 344. The latter was a case where it was sought to subject a dredge, in insolvency proceedings, to liens for wages. It was there determined that a dredge was subject to admiralty process, where she was used for cutting water ways and filling tide flats. Judge Hanford there said (page 346):

'The main question in the case is whether the dredgers are vessels subject to admiralty process, whether the work which they were doing was a maritime service, whether the contracts under which they were supplied and kept in repair are maritime and whether their crews have maritime liens for their wages. The writers and judges who have expounded maritime laws and the rules by which the jurisdiction of admiralty courts must be measured have not succeeded in making known any satisfactory test by which floating structures which are subjects of admiralty jurisdiction, and to which maritime liens may attach, may be distinguished from those which have no place in the realm of maritime jurisprudence. There are numerous decisions which tell that adaptability to float on the water, masts, sails, propelling machinery, steering apparatus, capacity for carrying merchandise or passengers, and mobility, are features by which a subject of admiralty jurisdiction may be recognized; but the decisions are not at all consistent with any guiding principle which makes admiralty jurisdiction depend upon the size or shape of a vessel, her

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