
    Petition of HIGHLANDS NAV. CORPORATION. THE NASSAU. THE GRAND REPUBLIC.
    Circuit Court of Appeals, Second Circuit.
    November 12, 1928.
    No. 36.
    George P. Nicholson, Corp. Counsel, of New York City (Charles J. Carroll, of Brooklyn, N. Y., and William A. Walling and John T. Condon, both of New York City, of counsel), for appellant.
    Barry, Wainwright, Thacher & Symmers, of New York City (James K. Symmers and John C. Crawley, both of New York City, of counsel), for appellee.
    Before MANTON, L. HAND, and SWAN, Circuit Judges.
   MANTON, Circuit Judge.

The Highlands Navigation Corporation, owner of the steamships Nassau and Grand Republic, filed a petition for limitation of its liability in respect to claims arising out of the burning and sinking of these vessels on April 26, 1924, while lying at the pier of the city of New York at the foot of 155th street, North River. Permission was granted to tie up the steamers at this pier on payment of rental for such berth. The vessels were passenger excursion boats and had been laid up for the winter. They were being prepared for active service at the time of the fire. One had passed and the other was in the course of inspection by the local inspectors. The Nassau was supplying steam for boiler tests. Fires were banked in tbe evening, and there was no steam on her boilers during the nigbt. About 11 o’clock on tbe evening of April 25th tbe chief engineer and bis assistant returned, looked at tbe banked fire, put on some coal, and then went on board an adjacent vessel for tbe nigbt. One nigbt watchman cared for these vessels and made bis rounds of tbe Nassau about midnight. Later, while on board tbe Grand Republic, be discovered a fire on tbe Nassau, which spread rapidly, burning tbe moorings, and caused tbe vessels to pass out of the slip by the falling tide and to drift down stream toward tbe New Jersey shore, a considerable distance. Tbe Nassau was picked up by tbe city fireboat and towed back to 155th street, where she remained, and, although efforts were made to put out tbe fire, she sank on tbe southerly side of tbe 155th street pier. Tbe Grand Republic burned to tbe water line and sank in tbe slip on tbe north side of the pier, some distance from where she bad been moored.

Both vessels were a total loss, and tbe ap-pellee abandoned them, giving notification of such abandonment to tbe Secretary of War and tbe city commissioner of docks. Tbe wrecks lay inside tbe pier fine, and tbe Secretary of War declined to exercise bis discretionary authority to remove them. Tbe commissioner of docks of tbe city demanded that tbe petitioner comply with section 120, art. 8, c. 8 of tbe Ordinances of tbe City of New York, which reads as follows:

“In case * * * a vessel shall be stranded, sunken or wrecked and be abandoned for 10 days, tbe commissioner shall notify tbe owner of such abandoned property or vessel, if known to him, to remove tbe same forthwith, and if tbe owner be not known to tbe commissioner, or is not within tbe city, or shall fail to comply with tbe notice, tbe commissioner shall cause such obstruction or vessel to be removed, and tbe expense of such removal shall be recoverable by action from tbe owner and shall be a lien on tbe property or vessel so removed until paid. If such property or vessel be not claimed within 30 days after tbe removal, tbe commissioner shall advertise tbe same for sale, at public auction, to the highest bidder in tbe City Record for six days. * * *”

Tbe appellant’s claim is for tbe estimated cost of removing tbe wrecks from tbe submerged land owned by tbe city where tbe wrecks lay, and tbe loss occasioned by tbe city through the obstruction of tbe slips on each side of the 155th street pier. Tbe permit issued for tbe berth of these vessels did not, by express terms, require tbe petitioner to raise tbe wrecks in tbe event of sinking from any cause, nor did it incorporate therein any obligation under tbe ordinance to which we have referred.

It is contended by the appellant that tbe fire was caused by negligence on tbe part of those in charge of tbe vessels in not keeping a man on board in tbe fire room while tbe fires were on. There is no evidence that tbe fire started in tbe Nassau’s fire room, or that tbe banked fire in her fire box bad any connection with tbe disaster. Nor is there evidence of a general eustom of keeping a man in tbe engine room. Tbe fact that tbe city alone may have followed such practice on its vessels does not establish a general eustom, which, if not followed, would be evidence of negligence on tbe part of tbe owner. District of Columbia v. Moulton, 182 U. S. 576, 21 S. Ct. 840, 45 L. Ed. 1237.

The Rivers and Harbors Act of March 3, 1899 (U. S. Code, title 33 [33 USCA] §§ 409, 414, 415), recognized tbe right of abandonment given by tbe general maritime law, and points out tbe intention of Congress to preserve that right. Tbe appellee, as tbe owner of tbe vessels, not intending to raise them, but to abandon them, after notice as required by this act, would not be responsible for damages caused by other vessels running into such wrecks. Thames Towboat Co. v. Fields (D. C.) 287 F. 155. And this statute applies to vessels in navigable waters, even though outside deep channels. Red Star Towing & Transp. Co. v. Woodbum (C. C. A.) 18 F.(2d) 77. Nor can tbe appellee be held for the cost of raising after abandonment. Hagan v. City of Richmond, 104 Va. 723, 52 S. E. 385, 3 L. R. A. (N. S.) 1120. In tbe absence of an agreement to pay, tbe city ordinance may not impose such a liability, where Congress grants exemption. Such imposed liability by tbe municipality would be taking away tbe exemption thus granted. So. Pac. Co. v. Jensen, 244 U. S. 205, 37 S. Ct. 524, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900; Union Fish Co. v. Erickson, 248 U. S. 308, 39 S. Ct. 112, 63 L. Ed. 261; The Thielbek (C. C. A.) 241 F. 209; Rodgers & Hagerty v. City of New York (C. C. A.) 285 F. 362.

Liability may not be imposed upon tbe theory that tbe relation of landlord and tenant existed between tbe parties, and it was the duty of tbe appellee to restore tbe premises in good condition, reasonable wear and tear excepted. In tbe absence of negligence or intentional destruction of property, a tenant could not be held on the theory of an implied agreement to repair damage to property. United States v. Bostwick, 94 U. S. 53, 24 L. Ed. 65. We have held that, under such circumstances, the appellee is a licensee and not a tenant. Old Dominion S. S. Co. v. City of New York (C. C. A.) 286 F. 157.

A waiver of a right of abandonment of a vessel under the federal statute may not be implied merely because the vessels were berthed while out of service during the winter lay-up under the permit granted to the appellee. The liability of the appellee is not determined by the question of whether the vessel was in service or out of service. Brown v. Mallett, 5 C. B. 599; Taylor v. Atlantic Mutual Ins. Co., 37 N. Y. 275. The limitation was properly granted.

Order affirmed.  