
    Roche v. McCaldin.
    (New York Common Pleas — General Term,
    November, 1892.)
    By statute a District Court cannot take cognizance of an action “brought by any seaman or mariner, or other person belonging to any ship or vessel, against the owner, master, or 'commander of such ship or vessel, for, or by reason of the nonperformance or breach of any agreement or contract * . * * for services, or compensation for services on board of any ship or vessel, during any voyage performed or in part performed, by such ship or vessel.”
    Plaintiff, the master of a steam tug, sued defendant, the owner, on a special agreement, for a balance of wages claimed to be due for services rendered while towing a ship to sea from the port of New York. Held, that the term voyage, used in the statute, should not be restricted to navigation from one port to another, but should include tugs plying about a port.
    Appeal from judgment of a District Court.
    
      Lamb, Osborne & Petty, for plaintiff (respondent).
    
      Hyland & Zabniskie, for defendant (appellant).
   Pryor, J.

The plaintiff, as master of the steam tug W. J. McCaldin, sues the defendant, as owner, for a balance of wages claimed to be due by virtue of a special agreement.

By motion to dismiss, the appellant presented the point on the trial, that the action was not within the jurisdiction of a District Court.

By express prohibition of statute, such a court cannot take cognizance of an action “ brought by any seaman or mariner, or other person belonging to any ship or vessel, against the owner, master or commander of such ship or vessel, for, or by reason of the nonperformance or breach of any agreement or contract * * for services, or compensation for services, on board of any ship or vessel, during any voyage performed, or in part performed by such ship or vessel.” This provision is still in force. Collins v. Underwood, 1 E. D. Smith, 318.

That the steam tug was a vessel, that the plaintiff, as master, belonged to it, that the money in litigation is claimed as compensation for service, are self-evident propositions; and the only question, therefore, upon the construction of the statute, is, whether that compensation was for service “ during any voyage performed, or in part performed,” by such vessel. The evidence discloses that the service sued for was rendered while the tug was going to tow a ship to sea from the port of New York. But, respondent contends that “the term voyage imports navigation from one port to another, is applied only to foreign and interstate commerce, and is not used of a tug-making short trips from one body of water to another. This may be the technical sense of the word in maritime law; but ’ in the construction of the statute in question, it admits of no such restricted signification. Obviously, the intent and pohey of the provision is to withhold from the cognizance of courts not supposed to be of very enlarged erudition, cases Avithin the jurisdiction of the admiralty, and iiiA-olving the difficult problems peculiar to maritime causes. But, precisely such questions arise in suits for seamen’s wages, Avhether the vessel be a tug plying about tbe port, or a ship destined for the antipodes. In reason, therefore, the case is Avithin the purA-iew of the statute, and so was beyond the jurisdiction of the court below.

The fact that no instance is adduced of the exercise of the disputed jurisdiction, affords a strong argument against the existence of the jurisdiction.

Without reference to the controversy whether the contract between the par-ties embraced a commission upon salvage earnings, it results that the judgment must be reversed.

Judgment reversed, judgment for defendant, dismissing the complaint, with costs in this court and in the court below.

Bischoff, J., concurs.

Judgment accordingly.  