States had in the depot at Slough. There was no finding that delivery of that quantity was refused or that he was willing to accept it. He cannot recover. Lipshitz and Cohen v. United States, 269 U. S. 90; Brawley v. United States, 96 U. S. 168, 171. Cf. Hummel, Trustee, v. United States, 58 Ct. Cls. 489, 494.

Judgment affirmed.

EVANSVILLE AND BOWLING GREEN PACKET COMPANY v. CHERO COLA BOTTLING COMPANY ET AL.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF INDIANA.

No. 127. Argued January 13, 1926.-Decided April 12, 1926.

A wharfboat, in a river, used as an office, warehouse, and wharf, but not used or capable of use as a means of transportation, held not a "" vessel within the law allowing limitation of liability. Stats. § 4283; Act of June 19, 1886, 24 Stat. 79. P. 22. Affirmed.

Rev.

APPEAL from a decree of the District Court dismissing, for want of jurisdiction, a petition in admiralty for limitation of liability.

Mr. Chauncey I. Clark, with whom Mr. Phelps F. Darby was on the brief, for appellant.

Messrs. James T. Cutler and Paul H. Schmidt, with whom Messrs. Joseph H. Iglehart and Isidor Kahn were on the brief, for appellees.

MR. JUSTICE BUTLER delivered the opinion of the Court.

Appellant owned a wharfboat in the Ohio River at Evansville, Indiana. May 14, 1922, it sank, causing dam

Opinion of the Court.

271 U.S.

age to appellees' merchandise thereon. Appellant filed a petition in admiralty for limitation of liability. Appellees answered; and, after a trial at which much evidence as to the character of the structure was given, the District Court found that it was not a vessel within the meaning of the statutes sought to be invoked; held that the court was without jurisdiction, and dismissed the cause. The appeal is under § 238, Judicial Code, and the question of jurisdiction alone is certified.

Section 4283, Revised Statutes, provides: "The liability of the owner of any vessel, for any embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, lost [loss], damage, or forfeiture, done, occasioned, or incurred, without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending." Section 3, Revised Statutes, provides: "The word 'vessel' includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water." The Act of June 19, 1886, § 4, c. 421, 24 Stat. 79, 80, makes the provisions relating to limitation of liability apply to "all vessels used on lakes or rivers or in inland navigation, including canal-boats, barges, and lighters."

Appellant was engaged in operating steamboats between Evansville and places on the Green River in Kentucky. The wharfboat in question was built in 1884 and was used at Hopefield, Arkansas, on the Mississippi River. In 1901 it was towed to Madison, Indiana, where it was overhauled, and then to Louisville, Kentucky, where it was used. In 1910, after more repairs at Madison, it was taken to Evansville. Appellant acquired it in 1915. Each winter it was towed to Green River harbor to protect it

19

Opinion of the Court.

from ice. While in use at Evansville it was secured to the shore by four or five cables and remained at the same point except when moved to conform to the stage of the river. The lower part of the structure was rectangular, 243 feet long, 48 feet wide and six feet deep. It was built of wood and, to strengthen it and keep the water out, was lined around the sides and ends, extending 18 or 20 inches from the bottom, with concrete eight inches thick. It had no machinery or power for propulsion and was not subject to government inspection as are vessels operated on navigable waters. There was plumbing in the structure, and it was connected with the city water system; it obtained current for electric light from the city plant, and had telephone connections. Appellant's office and quarters for the men in charge were located in one end of the structure. There were floats and an apron making a driveway between the land and a door near each end. The wharfboat was used to transfer freight between steamboats and land and from one steamboat to another. Some shippers paid fixed monthly charges for storage of their goods on the structure and for services in transferring them to and from steamboats. Charges made for services performed by its use were for storage and handling and not for transportation.

The rule of limited liability of owners of vessels is an ancient one. It has been administered in the courts of admiralty in Europe from time immemorial and by statute applied in England for nearly two centuries. See Providence & New York S. S. Co. v. Hill Mfg. Co., 109 U. S. 578, 593; The Main v. Williams, 152 U. S. 122, 127. Our statutes establishing the rule were enacted to promote the building of ships, to encourage the business of navigation, and in that respect to put this country on the same footing with other countries. See Moore v. American Transportation Co., 24 How. 1, 39; Norwich Company v. Wright, 13 Wall. 104, 121. The rule should be

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271 U.S.

applied having regard to the purposes it is intended to subserve and the reasons on which it rests.

The only question presented is whether appellant's wharfboat was a "vessel" at the time it sank. It was an aid to river traffic, but it was not used to carry freight from one place to another. It was not practically capable of being used as a means of transportation. It served at Evansville as an office, warehouse and wharf, and was not taken from place to place. The connections with the water, electric light and telephone systems of the city evidence a permanent location. It performed no function that might not have been performed as well by an appropriate structure on the land and by a floating stage or platform permanently attached to the land. It did not encounter perils of navigation to which craft used for transportation are exposed. There appears to be no reason for the application of the rule of limited liability. Many cases, involving a determination of what consti-. tutes a vessel within the purview of the statute have been before the courts; but no decision has been cited, and we have found none, that supports the contention that this wharfboat was a vessel. Cf. Cope v. Valette Dry Dock Co., 119 U. S. 625, 629; The Robert W. Parsons, 191 U. S. 17, 30; Ruddiman v. A Scow Platform, 38 Fed. 158; Patton-Tully Transportation Co. v. Turner, 269 Fed. 334, 337.

Decree affirmed.

Argument for Appellants.

BOARD OF PUBLIC UTILITY COMMISSIONERS ET AL. v. NEW YORK TELEPHONE COMPANY.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.

No. 567. Argued January 18, 19, 1926.-Decided April 12, 1926. 1. The just compensation safeguarded to a public utility by the Fourteenth Amendment is a reasonable return on the value of the property used, at the time that it is being used, for the public service. And rates not sufficient to yield that return are confiscatory. P. 31.

2. Constitutional protection against confiscation does not depend on the source of the money used to purchase property; it is enough that the property is used to render the service. Id.

3. The relation between a public utility and its customers is not that of partners, or agent and principal, or trustee and beneficiary. The amount of money remaining after paying taxes and operating expenses including the expense of depreciation is the company's compensation for the use of its property. Id.

4. The law does not require the company to give up for the benefit of future subscribers any part of its accumulations from past operations. P. 32.

5. Assets of a public utility represented by a credit balance in the reserve for depreciation can not be used to make up the deficiency in current rates which are not sufficient to yield a just return after paying taxes and operating expenses including a proper allowance for current depreciation. Id.

Affirmed.

APPEAL from a decree of the District Court granting a temporary injunction, in a suit by the Telephone Company to restrain the Board of Public Utility Commissioners, of New Jersey, from enforcing confiscatory rates.

Mr. Thomas Brown for appellants.

Depreciation expense is a charge made against earnings periodically to care for depreciation of the utility's property not covered by current repairs. Depreciation reserve is the fund accumulated from such depreciation charges. Knoxville v. Water Co., 212 U. S. 1, makes it clear that