The Endless Chain Dredge
| Decision Date | 17 October 1889 |
| Citation | 40 F. 253 |
| Parties | AITCHESON et al. v. THE ENDLESS CHAIN DREDGE et al. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Francis L. Smith and Edmund Burke, for libelants.
Samuel G. Brent, for respondents.
This is a libel in rem and in personam against a dredge called 'The Endless Chain Dredge,' now lying in the Potomac river, above the long bridge which crosses the Potomac from Washington city; and against 'The River & Harbor Dredging Company,' which built the dredge at the city of Alexandria, and was its owner, and as such entered into the contract which is the subject of this libel. 'The River & Harbor Dredging Company' is a corporation of the state of Virginia. The libelants are citizens of Alexandria. The libel is for materials and repairs furnished and contracted to be furnished by the libelants to the Endless Chain Dredge. Some of the materials were actually furnished, and paid for in chief part. But most of the materials were of form and character peculiarly suitable to the endless chain dredge, and of no value to any other vessel. The manufacture of these materials had been well-nigh completed, and would have soon been ready for delivery; but work on them was suspended, and delivery of them not made, in consequence of a sale of the dredge, without any provision for the acceptance of the materials mentioned, or for paying for their manufacture, having been made, either by the purchasers of the dredge, or by its first owners, 'The River & Harbor Dredging Company. ' The purchasers of the dredge had previous notice of the claim of the libelants. Such is the state of affairs out of which this libel has grown.
The respondents resist the claim of the libelants on three grounds, viz.: (1) That a dredge is not a vessel liable to admiralty process; (2) that the materials libeled for were never delivered to the dredge, and that in consequence no lien attached in favor of the libelants upon the vessel for them; (3) that the Potomac river, in which the dredge lies is wholly within the jurisdiction of the District of Columbia by cession from Maryland, the proprietary right of Maryland having always embraced the river to low-water mark on its southern bank.
1. As to the question whether a steam-dredge, which is a floating scow fitted with steam appliances, buckets, and scoop, for deepening channels of navigation and like purposes, is a subject of admiralty jurisdiction, there have been repeated decisions in the United States and Great Britain in the affirmative. See The Hezekiah Baldwin, 8 Ben. 556; The Alabama, 19 F. 544; affirmed on appeal, 22 F. 449; The Pioneer, 30 F. 206; Woodruff v. A Scow, Id. 269; and The Mac, L.R. 7 Prop.Div. 126. This court has also held likewise, incidentally, in Maltby v. A Steam Derrick, 3 Hughes, 477; and Coasting Co. v. The Commodore, post, 258, (which was a dredge case, decided by me at Norfolk.)
2. As to the question whether what is improperly called a 'lien' in admiralty attaches to a vessel on a contract for materials and repairs which have not actually been delivered on board of her, there can be no doubt on principle that the liability exists. In admiralty the vessel is regarded as the contracting party. She is treated as a sentient being. She is sued in her own name, and process is awarded against her as the defendant who has made the contract on which the libel is brought. True, that the owner may also, on the same contract, be sued in personam in the same libel in which the vessel is sued in rem; but this remedy is only cumulative. The suit in chief is the libel against the vessel in rem, and the other proceeding is incidental. The vessel being the contractor, when she orders machinery, materials, and repairs, she puts it out of her power to refuse to accept, or by a subsequent sale to obstruct the delivery of, the things contracted for. It is her contract for the materials which binds her, without any reference to the delivery or non-delivery of the articles bargained for. The right of a libelant to sue and arrest the ship herself is the privilegium which admiralty law (which is a law of the world) gives to the person with whom she has contracted; and the privilegium exists whether the conditions of an ordinary lien, under the local common or statute law, obtain or not. This privilegium to sue and arrest a vessel arises on her contracts whether the claim be ex contractu or ex delicto, whether it arises on contract or in tort. In the case against the dredge, the Commodore, last above cited, that dredge had been engaged in opening a channel to a basin of water at Cape Charles city, Va. She had used an anchor, which she had planted at the mouth of the channel while engaged in her work, and, after its completion, had negligently left the anchor at the bottom of the mouth of the channel and had gone away to some other locality. The steamer Jane Moseley, in afterwards entering that channel, had been badly snagged and damaged by the anchor, and libeled the dredge for the tort. In that case I held that a dredge was subject to the admiralty jurisdiction, and was liable to arrest and decree for the tort. She would have been just as liable for a contract as for a tort.
3. As to the question whether admiralty process from the eastern district of Virginia may be validly and effectively served on the waters of the Potomac below Georgetown, this right exists by cession from Maryland, and indirectly, for the purposes of the case at bar, by implied cession from the District of Columbia. I avail myself largely of the learned note of counsel for libelant in what I shall say on this subject. The claimants, in their answer, as matter of defense deny the jurisdiction of the court, because the vessel arrested was seized upon that part of the Potomac river lying between the District of Columbia and the portion of Virginia contained within the boundaries of Alexandria county. This territory was ceded by Virginia to the United States, and formed a part of the District of Columbia. On July 9, 1846, the congress of the United States retroceded this territory to Virginia, by an act, of the first section of which the following is a copy:
'Be it enacted by the senate and house of representatives of the United States of America, in congress assembled, that, with the assent of the people of the country and town of Alexandria, to be ascertained as hereinafter prescribed, all of that portion of the District of Columbia ceded to the United States by the state of Virginia, and all the rights and jurisdiction therewith ceded over the same, be,...
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