The act is limited by the intention of congress in enacting it, which was to encourage commerce and to enable American vessels to compete with those of other maritime nations whose laws extended a like protection to ship-owners. This is again limited by the constitutional provision that the power of congress shall extend only to commerce between states or with foreign countries. Hence, it seems to me that, if the vessel be not engaged in what is ordinarily understood as maritime commerce, she is not entitled to the benefit of the act, though she may be an enrolled and licensed vessel, and subject to the navigation laws of the United States. It is true that in some sense navigation is commerce, yet I can readily conceive there may be a class of vessels navigating between states which are not within the act. Sail-boats carrying passengers for hire between places in different states, as between watering places upon the Atlantic coast, as well as skiffs, canoes, and small craft, are examples of this kind. The exceptions in the act itself indicate the intention of congress to restrict its benefits to what is generally known as maritime commerce, though it may also happen to be commerce between the states. They are:

First. "Canal-boats." These are ordinarily, though not always, used upon artificial waters, within the limits of a single state.

Second. "Barges" were defined by Webster, in his Dictionary of 1851, the year the act was passed, (1) as "pleasure boats, or boats of state, furnished with elegant apartments, canopies, and cushions, equipped with a band of rowers, and decked with flags and streamers, used by officers or magistrates;" and (2) "a flat-bottomed vessel of burden for the loading and unloading of ships." In the latter sense it was undoubtedly used by congress, and in that sense barges are synonymous with lighters, and are used wholly in local navigation. In later years the word has been used to designate a class of large vessels, sometimes costing from $15,000 to $50,000, carrying large cargoes, and depending for their motive power wholly or in part upon steamers, to which they

are attached by tow-lines, and employed to a very large extent in interstate commerce upon the lakes. Whether the owners of such barges would not be entitled to the benefit of the limited liability act, is an open question. Undoubtedly they are within the letter of the exception, but as they are a class of vessels which was unknown at the time the act was passed, it would seem they are not within its spirit. I see no reason in principle why they are not as much within the act as the propellers which furnish them their motive power.

It is possible, however, that the use of the word "barges,' in the Revised Statutes of 1873, may indicate an intention. on the part of congress to extend the exemption to this class of vessels.

Third. "Lighters"-a well-known class of vessels, used in assisting to load and unload other vessels.

Fourth. "Vessels, of whatever description, used in rivers or inland navigation." Under this exemption it was held by Judge Drummond, in The War Eagle, 6 Biss. 264, that vessels used in navigating the waters of the upper Mississippi were not within the limited liability act, though engaged in interstate commerce.

Now it seems to me clear, from the above exceptions, that congress did not intend the act should apply to vessels engaged in purely local trade, and a fortiori to a vessel not built for the purpose of trade, but of pleasure; not run upon any regular route, not engaged in the business of carrying freight or passengers. I do not undertake to say that pleasure yachts, making long voyages upon the lakes or ocean, may not be within the act, but I think pleasure boats, whether propelled by steam or sail, engaged in purely local navigation, running in and out of the same port, though sometimes carrying passengers for hire, fall within the exception. I have not overlooked the case of The Daniel Ball, 10 Wall. 557, or The Ventura, just decided, but for reasons already given they have no application. In the case of The Ventura, a steam-ship navigating the Pacific Ocean between San Francisco and the lower ports of California, carrying merchandise

between those ports designed for other countries, was held entitled to the benefit of the limited liability act. Neither do the facts that a court of admiralty would have jurisdiction over the vessel, nor that she is subject to the navigation and inspection laws of the United States, and bound to carry the ordinary lights of a steamer, have any material bearing upon this question.

There is also strong reason for holding that the Mamie falls within the exception of vessels "used in rivers." She was principally employed upon the Detroit river. I do not consider the fact of her annual trip to the Ohio islands in Lake Erie as material: it was wholly exceptional. She was not fitted for the lake trade, had not the requisite complement of men, and would be powerless against the storms which sweep over these waters. Whether her excursions to the St. Clair flats can be considered as taking her out of the catagory of river steamers, would depend upon the fact whether Lake St. Clair can be considered as one of the great lakes, within the case of Moore v. The American Transp. Co. 24 How. 1. My own impression is that it ought to be treated rather as an expansion of the river, whose source is Lake Huron, and whose mouth is at Lake Erie-an expansion practically of the same nature as Lake St. Peter in the St. Lawrence, and the Tappan Zee in the Hudson; but as this question is not unlikely to arise in the future, I express no decided opinion upon the point.

Upon the best consideration I have been able to give this case, I have come to the conclusion that the owners of the Mamie are not entitled to the benefit of the limited liability act, and the petition is therefore dismissed.

NOTE. See In re Long Island N. S. P. & F. T. Co. ante, 599.

THE HOPE AND FREDDIE L. PORTER.*

(District Court, D. Maine. December, 1880.)

1. COLLISION-DAMAGES-UNEARNED FREIGHT.

A vessel, chartered for a fixed term of time, was totally lost by collision, while in the performance of her employment, and before the contract had expired. Held, that the owners were entitled to recover, as damages, the net profits which they would have realized under the agreement, for the whole period, if the vessel had not been lost.—[Ed.

Fox, D. J. The Freddie L. Porter having been held accountable for the loss of the Hope, the case is now presented on exceptions to the report of the assessor in the matter of damages.

The report finds that "at the time of her loss the Hope was employed in carrying stone for the season, by a verbal contract, and that at the close of the season her owners would have received $450 for their proportion of the net earnings from the date of the loss." The value of the Hope is fixed at $950, and these two sums, amounting to $1,400, are allowed by the assessor as damages sustained by her owners from the collision, with interest from such date as the court may deem equitable.

The assessor has also filed with his report the testimony, as taken from his minutes, which he admits are not full and complete. As reported, the evidence does not warrant the finding of the assessor "that the Hope was hired for the season," and the parties have agreed that, instead of recommitting the report, the witness should be recalled and examined before me upon this point. It is sufficient to remark that his testimony now given, fully sustains this finding "that the Hope was sailing, at the time of the loss, under a legal contract for her employment during the entire season, the net profits from which, to her owners, would have amounted to $450."

Exception is made as to the allowance of $450 for the owners' share of her earnings from the date of the loss to the

*See 3 FED. REP. 89.

close of the season, under the contract for her employment during that time. In cases of a partial loss of the vessel by collision, the authorities, both in England and this country, at the present day, agree in allowing as damages against the wrong-doer the profits which would have accrued from a beneficial charter. One of the latest is The Consett, 5 Probate Div. 229, decided in June last by Sir Robert Phillimore. She was in ballast, on a voyage from Antwerp to Montreal, to load a cargo of grain. The collision occurred the tenth of October, and she was compelled to put into Queenstown for repairs. The charter was a profitable one, and the owners of the ship did not abandon it until it became apparent the ship could not be repaired in season to resume her voyage and perform her charter. The court decided that the abandonment of the charter was justifiable, and that the profit of the charter being thereby lost was damage for which the appellants were liable. At the time of the collision the ship was not earning any freight, but she was bound, in ballast, to a port where she was to receive a cargo on board and transport the same to Europe, and by so doing would have made a profitable voyage. There was the contingency in the first place of her ever reaching Montreal; and, secondly, of her charterers being ready to furnish her with a cargo in accordance with their agreement; and, lastly, whether she would accomplish the homeward voyage and earn her freight; but the court of admiralty held that, notwithstanding such contingencies, the loss of the profit from the charter, by reason of the collision, was so direct and certain that the guilty party was chargeable for the loss thus sustained from his negligence.

Where the vessel was sunk, and became a total loss, this principle has not always received the approval of the English admiralty court. In 1849, in 3 W. Rob. 164, (The Columbus,) Dr. Lushington said: "Suppose, for instance, that this vessel had been an East Indiaman, bound on her outward voyage to the East Indies, with a valuable cargo on board, for the transportation of which not only would the owners be