Colby v. Todd Packing Co.

• Decision Date: 01 June 1948
• Docket Number: No. 5885-A.,5885-A.
• Parties: COLBY et al. v. TODD PACKING CO.
• Court: U.S. District Court — District of Alaska

77 F. Supp. 956

COLBY et al. v. TODD PACKING CO.

No. 5885-A.

District Court, Alaska, First Div., Juneau

June 1, 1948.

Joseph A. McLean, of Juneau, Alaska, for libellants.

R. E. Robertson, of Robertson & Monagle, all of Juneau, Alaska, for respondents.

FOLTA, District Judge.

Libellants seek to recover salvage for rescuing five fish trap frames found adrift in the navigable channel of Peril Straits, Alaska, on March, 1948, under conditions constituting a marine peril. Respondent has excepted to the libel on the grounds that a fish trap is not a subject of salvage because it is neither vessel nor cargo within the doctrine of Cope v. Vallette Dry-Dock Company, 119 U.S. 625, 7 S.Ct. 336, 30 L.Ed. 501. Libellants reply to this contention is that the scope of that decision is limited to the facts of that case. They rely principally on Maltby v. Steam Derrick Boat, 16 Fed.Cas. page 564, No.9,000.

The court will take judicial notice of the fact that a floating fish trap frame is constructed of large logs lashed and bolted into an oblong structure that gives both buoyancy and shape to the trap; that it is towed to the fishing site, anchored to the seaward and moored to the shore by a cable, after which it is transformed into a trap by the addition of gear which is suspended from the framework for the requisite depth in the customary manner to intercept and trap salmon. The frame lies flat on the water and is rather inconspicuous, except for the small building which is usually erected upon it to house the watchmen. Afloat, it would, therefore, closely resemble a raft of logs from a distance. Upon the close of the fishing season, the gear is removed, the trap frame is towed to some sheltered bay or cove and moored to the shore above low water. The court will also judicially notice that the date upon which the frames were found adrift antedated the opening of the fishing season by several months.

The structure involved in Cope v. Vallette Dry-Dock Co., supra, was a drydock which had been moored to the shore for twenty years at the time salvage services were rendered to prevent its sinking in consequence of a collision. Concerning it, the court said, 119 U.S. page 627, 7 S.Ct. page 337: "A fixed structure, such as this drydock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a wharf or a warehouse when projecting into or upon the water. The fact that it floats on the water does not make it a ship or vessel, and no structure that is not a ship or vessel is a subject of salvage."

At the time this decision was rendered, several cases existed in which rafts of logs and lumber had been recognized as proper subjects of salvage. Indeed, the court took note of them, 119 U.S. page 630, 7 S.Ct. page 338, but distinguished them from Cope v. Vallette Dry-Dock Co. on the ground that the drydock was a fixed structure in the sense that it was permanently moored, from which it follows that the scope of that decision must be deemed to have been limited accordingly. Further support for this view may be found in The Robert W. Parsons, 191 U.S. 17, page 34, 24 S.Ct. 8, page 13, 48 L.Ed. 73, in which the court declared, that its decision in Cope v. Vallette Dry-Dock Co. was on the express grounds that a drydock was like a ferry bridge or a sailors' floating meeting home and was no more used for purposes of navigation than a wharf or warehouse projecting into or upon the water; and in The Ark, D.C., 17 F.2d 446, in which it was held that the house boat there involved, although moored to the shore and not capable of being moved except by towing, was, nevertheless, not permanently moored to the shore so as to bring it within the doctrine of Cope v. Vallette Dry-Dock Co., but more nearly approached the position of a ship temporarily withdrawn from commerce and moored to a dock. Tebo v. Mayor of City of New York, D.C., 61 F. 692, is likewise in harmony with this view as to the scope of the decision under discussion.

While the instant case is, therefore, readily distinguishable from those cases in which the property salved was fixed or permanently attached to the shore, there yet remains the respondent's objection that a fish trap frame is not a subject of salvage because it is neither vessel nor cargo. This argument was adversely disposed of in The Cheeseman v. Two Ferry Boats, 5 Fed. Cas. page...