Before CHASE, Chief Judge, and HINCKS and HARLAN, Circuit Judges.
The trial court found as follows. On August 8, 1953 the Batory, a Polish transatlantic liner with 500 passengers aboard, was proceeding eastward to Europe, Southampton, England, being its first port of call. When about twelve miles south of Fire Island and some fifty miles from New York, at 4:50 p.m., a seaplane was first sighted which proceeded to circle the ship from five to twenty times, "landed" on the water once briefly, took off, and again circled the ship. The pilot of the plane while in the air shouted that he was lost and without gas or compass. On direction of the master of the Batory by megaphone he landed again. The Batory's engines were stopped at 5:05 p.m.; the pilot was received on board at 5:35 and forthwith informed the ship's purser, who had been deputed to interview him, that the plane was one hired from Lambros, the appellee, and further, when asked what to do with the seaplane, replied, succinctly, "to hell with the plane." Thereupon, without further consulting the pilot of the plane, the Master proceeded to hoist the plane on board. This task was accomplished by 5:45 p.m. and a few minutes thereafter the ship resumed its eastward course. While this was going on the sea was smooth, the wind (at least in New York) was no more than ten miles per hour and the sun was shining. The findings import that notwithstanding the Master's testimony the Judge found that the visibility was at least 15 miles, as the Weather Bureau records at Battery Park showed. On that date the sun set at 8:03 p.m.
The rescued pilot of the seaplane in question had rented it from the libelant Lambros, a corporation engaged in the business of renting such craft with a base at Ridgefield Park, New Jersey, on the waters of the Hackensack River, and had left libelant's base in the seaplane at 12:45 p.m. on that day. When first interviewed aboard, he had given a Mexican name and represented his citizenship as Mexican: it was not until the Batory had resumed its eastward course that he gave his name as "Newton" and disclosed an American passport purportedly issued by the American Embassy in Mexico City.
Slightly after 6:00 p.m. the Master sent a wireless to the Batory's agents in New York, whose office, as he knew, was not open at night, informing them of the rescue and that "hydroplane hired from Lambros Seaplanes Hackensack New Jersey taken aboard" and that the pilot was grateful for his life and "glad to join Batory's cruise to Southampton." The message also stated that the pilot "ran out of gas and oil without compass too far to reach shore." When this message was sent the Master had only the pilot's say-so for these facts (which later turned out not to be true,*fn1 and had as yet caused no verification thereof to be made. An hour later a similar wireless message was sent to the New York Times motivated, according to the testimony, by a desire for good public relations. These were the only messages about the incident sent by the Master on August 8th, although he knew of the U.S. Coast Guard (which had a station on Fire Island) and of its activities in bringing assistance to ships in distress.
Before the Batory reached Southampton, Lambros by wireless demanded the return of the plane. Gdynia, the owner of the Batory, refused to return the plane unless transportation charges were prepaid. Lambros did not pay or offer to pay transportation. On arrival at Southampton the seaplane was delivered to the British Receiver of Wrecks with whom it was stored. It was eventually sold at public auction for a price insufficient to defray storage. It was implicit in the findings that neither Batory nor its owner, Gdynia, took steps to libel the vessel for salvage in any British court.
The trial court ruled that the ship was "grossly negligent in failing * * * to return the plane to shore" and hence liable in damages; and that Gdynia's cross-libel for salvage be dismissed on the merits. We proceed first to consider the claim for salvage.
The appellee, Lambros, predicates error on an interlocutory ruling below which overruled its exception to the cross-libel based on a contention that a seaplane is not a vessel which is susceptible of salvage under the maritime law. That contention it also advanced as valid support for the decree below dismissing the cross-libel. As to this, in The Robert W. Parsons, 191 U.S. 17, 24 S. Ct. 8, 48 L. Ed. 73, it was held that canal boats drawn by horses in the Erie Canal were subject to maritime lien for repairs, the Court saying, 191 U.S. at pages 30 and 31, 24 S. Ct. at page 12: "In fact, neither size, form, equipment, nor means of propulsion are determinative factors upon the question of jurisdiction, which regards only the purpose for which the craft was constructed, and the business in which it is engaged. * * * So long as the vessel is engaged in commerce and navigation it is difficult to see how the jurisdiction of admiralty is affected by its means of propulsion, which may vary in the course of the same voyage, or with discoveries made in the art of navigation." And in Cope v. Vallette Dry Dock Co., 119 U.S. 625, 629, 7 S. Ct. 336, 338, 30 L. Ed. 501, in which it was held that a floating drydock permanently moored to the bank of the Mississippi and not designed or used for navigation was not a subject-matter of salvage merely because it floated, it was said that "ships" and "vessels," as terms to describe objects susceptible of salvage are terms "used in a very broad sense, to include all navigable structures intended for transportation."
These judicial tests as announced by the Supreme Court are plainly broad enough to permit inclusion of a seaplane amongst the vessels which are subject to salvage. There is an express dictum to that effect by Judge Cardozo in Reinhardt v. Newport Flying Service Corp., 232 N.Y. 115, 133 N.E. 371, 18 A.L.R. 1324. It has been held that when on land a seaplane is not subject to a maritime lien for repairs, with a judicial reservation that it might have status as a marine object "while afloat on navigable waters". United States v. Northwest Air Service, Inc., 9 Cir., 80 F.2d 804, 805.
In Noakes v. Imperial Airways, Ltd., D.C.S.D.N.Y., 1939, 29 F.Supp. 412, it was held that a New York-Bermuda passenger plane so constructed that it could alight and take off from the water, which had crashed when in mid-flight, was not a "vessel" within the Limitation of Liability Statutes, 46 U.S.C.A. § 183 et seq. To the same effect was the holding in Dollins v. Pan-American Grace Airways, Inc., D.C.S.D.N.Y., 1939, 27 F.Supp. 487. And in United States v. Peoples, D.C.N.D.Cal., 1943, 50 F.Supp. 462, it was held that a seaplane was not a vessel within the purview of a criminal statute, 54 Stat. 306, formerly 18 U.S.C.A. § 469, directed against stowaways.*fn2 The foregoing seem to be the only American federal cases which closely touch the problem here involved.
The only case called to our attention which has held that a seaplane was not a marine object which under the maritime law is subject to salvage is Watson v. R.C.A. Victor Co., Inc., 1935 A.M.C. 1251. This was a British decision. As Professor Robinson, in his treatise on Admiralty (page 715) noted, the holding of that case was severely criticised and promptly overruled by the British Air Navigation Act of 1920, 10 and 11 Geo.V.Ch. 80, which expressly extended the law of salvage to "aircraft on or over the sea or tidal waters." In Benedict on Admiralty (6th Ed.) Vol. I, Sec. 58, it is noted that Ireland in 1936 adopted similar legislation.
To a parallel development of the maritime law through judicial decisions of the United States Courts of Admiralty, Congress has interposed no obstacles. In 1866, long before the advent of aircraft, Congress had passed an Act for the prevention of smuggling in which a "vessel" was defined as including "every description of water-craft * * * and contrivance used or capable of being used as a means * * * of transportation on or by water". 14 Stat. 178. The definition, without substantial change, appears as Sec. 3 of the Revised Statutes. It was re-enacted verbatim as Sec. 3 of the Act of July 30, 1947, which constituted Title 1 of the United States Code. 61 Stat. 633, 1 U.S.C.A. § 3. In Title 1 of the Code it is a part of "Chapter 1. - Rules of Construction" thus indicating that it was enacted as a rule for the construction of federal statutes generally. Obviously the language of the definition is broad enough to cover seaplanes, but we find no basis for taking this general rule of statutory construction as indication of legislative intent to state or restate the general maritime law which is still, except for minor statutory modifications not relevant to the problem here, the source of the law which governs salvage at sea. The Impoco, D.C., 287 F. 400. Robinson on Admiralty (1939), p. 716; Benedict on Admiralty (6th Ed.), Vol. I, Sec. 58.
Even less determinative of the maritime law are statutory definitions adopted for application to particular statutes, such for example the definition both of "vehicle" and of "vessel" as exclusive of aircraft for purposes of the customs laws. 19 U.S.C.A. § 1401(a) and (b). In this category belongs the Air Commerce Act of 1926, 44 Stat. 572, 49 U.S.C.A. § 177(a), upon which the appellee chiefly relies, which for purposes of that act provided: "The navigation and shipping laws of the United States, including any definition of 'vessel' or 'vehicle' found therein and including the rules for the prevention of collisions, shall not be construed to apply to seaplanes or other aircraft or to the navigation of vessels in relation to seaplanes or other aircraft."*fn3 This provision also did not purport to touch the law of salvage.
However, we think it worth noting that the above quoted extract from the Air Commerce Act, in conformity with the London Convention of 1948, was amended in 1951, 65 Stat. 407, 49 U.S.C.A. § 177(a) to read as follows: "Except as specifically provided in sections 143-147(d) of Title 33, the navigation and shipping laws of the United States * * * shall not be construed to apply to seaplanes or other aircraft". And this amendment of the Air Commerce Act was included in a sweeping amendment of the navigation laws, 65 Stat. 406, whereby Congress gave the President power to promulgate navigation regulations for the prevention of "collisions involving waterborne craft upon the high seas" which regulations were stated to apply to "all aircraft of United States registry to the extent therein made applicable", 33 U.S.C.A. § 143, and to "all vessels and seaplanes upon the high seas", 33 U.S.C.A. § 144(a); which defined a seaplane as a "flying boat and any other aircraft designed to manoeuvre on the water", 33 U.S.C.A. § 144(c); and which also provided for a specified code of signals for use "When a vessel or seaplane on the water is in distress and requires assistance from other vessels or from the shore". 33 U.S.C.A. 147c. Although the amendatory Act of 1951, like all other federal statutes, was not intented nor effective either to state or to modify the maritime law of salvage, we think the Congressional recognition of the need to assimilate into the navigation laws the regulation of seaplanes, is a cogent ...