
    David Roche, Resp’t, v. James McCaldin, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed November 7, 1892.)
    
    1. District courts—Jurisdiction—Services on vessel.
    By express prohibition of statute a district court of the city of New York cannot take cognizance of an action “ brought by any seaman or marine, or other person belonging to any ship or vessel, against the owner * * * of such ship or vessel, for or by reason of the non-performance or breach of any agreement or contract for services, or compensation for services on board any ship or vessel, during any voyage performed, or in par: performed, by such ship or vessel.” Held, that an action for services rendered on a tug while going to tow a ship to sea from the port of New York comes within the prohibition of the statute.
    
      2. Same.
    The fact that no instance is adduced of the exercise of disputed jurisdiction affords a strong argument against the existence of the jurisdiction.
    
      Appeal from judgment of a district court.
    Lamb, Osborne & Petty, for resp’t; Hyland & Zabriskie, for app’lt.
   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 non-performance or breach of anyyagreement 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 inter-state 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 policy of the provision is to withhold from the cognizance of courts not supposed to be of very enlarged erudition, cases within the jurisdiction of the admiralty and involving the difficult problems peculiar to maritime causes. But, precisely such questions arise in suits for seaman’s wages, whether the vessel be a tug plying about the port or a ship destined for the antipodes. In reason, therefore, the case is within the purview 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 parties 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.  