Dailey v. City of New York

• Decision Date: 02 March 1904
• Citation: 128 F. 796
• Parties: DAILEY v. CITY OF NEW YORK et al.
• Court: U.S. District Court — Southern District of New York

128 F. 796

DAILEY v. CITY OF NEW YORK et al.

United States District Court, S.D. New York.

March 2, 1904

Alexander & Ash, for libellant.

John J Delany and E. Crosby Kindleberger, for city of New York.

Hyland & Zabriskie, for Joseph Borro.

ADAMS District Judge.

The libellant, Margaret Dailey, in December, 1902, was the owner of the scow Bill, which she chartered to the city, for use in the department of Street Cleaning, for the purpose of transporting and removing ashes, street sweepings and refuse material. The charter was a verbal one, not for any specific period, and liable to be terminated at any time by either party. The scow's crew consisted of one man, whose duty it was to look after the owner's interest.

The city at the time was engaged in filling up Riker's Island, in the East River, and was delivering street sweepings etc. to the contractors employed in that work. The scow was loaded at a dump in the East River and towed to Riker's Island. On the 13th of December, she was towed in connection with several other scows, through a gap left for the purpose, in the embankments and crib work, forming the outside of the island, by the tug Rescue, which was in the employ of the Moran Towing Line, and not in the employ of either of the respondents, so far as the evidence satisfactorily discloses. She was taken in at about high water. Upon the recession of the tide, she took the ground and lying upon a hump, which permitted her to sag at each end, she was twisted and injured. The action was brought to recover the resulting damage, amounting, it is said, to $368.

On the trial, a question of jurisdiction was raised by the respondent Borro and joined in by the city, it being urged that admiralty could not take cognizance of the injury because the accident did not happen on navigable waters. Since the trial, the city has withdrawn any objection as to the jurisdiction, on the ground that the hiring of the scow was maritime in its character and would justify the exercise of the court's jurisdiction without regard to the question of the navigability of the waters. The point, however, is still insisted upon by the respondent Borro, who cites The Arkansas (D.C.) 17 F. 384, and Leovy v. United States, 177 U.S. 621, 20 Sup.Ct. 797, 44 L.Ed. 914. These authorities, however, do not sustain the contention that there was an absence of jurisdiction here.

The Arkansas was a case of collision, which happened during an extraordinary flood, between the respondents' steamer and a depot building, erected upon the bank of the Mississippi River. It was held, that there was no jurisdiction to compel the steamer to pay the damages, because the injury complained of was done to a land structure, though the vessel was floated there by the water. This is in conformity with the general principle that where an injury is done upon land, though it originated upon the water, the damage is not a subject of admiralty jurisdiction. The Plymouth, 3 Wall. 20, 18 L.Ed. 125; Homer Ramsdell Co. v. Comp. Gen. Trans., 182 U.S. 406, 411, 21 Sup.Ct. 831, 45 L.Ed. 1155.

Leovy v. United States, was a criminal prosecution for building a dam across an alleged navigable stream of the United States, under the Act of September 13, 1890, making it unlawful to build such structure upon any navigable waters of the United States, without the permission of the Secretary of War, which had not been obtained. Certain evidence as to the navigability of the waters in question, was submitted to the jury, which found that the waters were navigable.

The court said (page 627, 177 U.S., and page 799, 20 Sup.Ct., 44 L.Ed. 914):

'As respects navigation through Red Pass, there was some evidence, on the part of the government, that small luggers or yawls, chiefly used by fishermen to carry oysters to and from their beds, sometimes went through this pass; but it was not shown that passengers were ever carried through it, or that freight destined to any other State than Louisiana, or, indeed, destined for any market in Louisiana, was ever, much less habitually, carried through it.

'The evidence on the part of the defendants showed that for many years these crevasses or passes have been steadily growing shallower and narrower, and that at the time of closing Red Pass few of the smallest craft attempted to pass through it, and that the so-called mouth, or end of Red Pass next the Gulf, had closed up and become a mere marsh. The trifling use that was made of that pass was restricted to the river end of the crevasse.'

It was held that the finding of the jury was not binding upon the court, as the evidence was inadequate to sustain it, and that the defendant should have been acquitted.

It is obvious that this authority does not touch the question under consideration, which involves one of jurisdiction in case of a marine tort.

The waters in this case, were the waters of the East River, and at the time of the accident were still subject to the ebb and flow of the tide. They were navigable in fact, at the time of this injury, although the work in progress tended to create...