Jolivet v. City of Seattle

• Decision Date: 17 September 1915
• Docket Number: 3075.
• Court: U.S. District Court — Western District of Washington
• Parties: JOLIVET v. CITY OF SEATTLE.

226 F. 963

JOLIVET v. CITY OF SEATTLE.

No. 3075.

United States District Court, W.D. Washington, Northern Division.

September 17, 1915

James Kiefer, of Seattle, Wash., for libelant.

James E. Bradford, Corp. Counsel, and Howard M. Findley, Asst Corp. Counsel, both of Seattle, Wash., for respondent.

NETERER District Judge.

Libelant seeks to recover the value of 250 tons of coal alleged to have been lost by the explosion of a scow of dynamite through the negligence of the defendant city, through its agent, the port warden, in removing, without the consent or knowledge of libelant, the scow containing the coal from buoy No. 2 of the Puget Sound Harbor at Seattle, where it was moored with the port warden's permission, to buoy No. 5 in said harbor, in close proximity to a barge containing about 15 tons of highly explosive dynamite. Libelant pleads Ordinance No. 34,379 of the city of Seattle, entitled:

'An ordinance establishing rules and regulations for the government and control of the navigable waters under the jurisdiction and control of the city of Seattle, establishing and prescribing the powers and duties of the port warden and other officials and employes of the city relating thereto, providing penalties for violation of the provisions hereof. * * * '

And he quotes from sections 337, 43, and 39 of said ordinance, as follows:

'Sec. 337. No master, or other person in charge of any vessel or obstruction, shall attach the same to any city buoy until he shall have obtained permission so to do from the port warden: Provided, that during the night or in bad weather such vessel or obstruction may be attached to any vacant city buoy, but the master, owner or person in charge thereof shall notify the port warden not later than eight (8) o'clock a.m. of the next legal day of such act, stating the name and character of such vessel or obstruction and the probable length of time it is desired to remain at said buoy. Should more than one vessel or obstruction apply for the use of any particular buoy, the port warden shall be the sole judge as to which shall occupy the same, and his decision shall be final and conclusive.'

'Sec. 43. The master, owner, or other person in charge of any vessel made fast to any pier, or other structure owned by or under the authority and control of the city of Seattle, and any vessel lying at anchor in Seattle harbor, or any vessel lying at any pier, obstructing any slip, fairway, or other vessel, shall, when requested by the port warden to change position, immediately proceed as requested or directed. Any failure, neglect or refusal to comply with such request or order shall make it the duty of the port warden to move such vessel, or cause the same to be moved, and the expense of such removal shall be paid by the master, owner, or other person in charge thereof, or by said vessel.'

'Sec. 39. The Harrison Street municipal pier is hereby designated for use temporarily as a powder dock, and for use exclusively for the handling of powder, dynamite and other like explosives, and as a place for vessels carrying as cargo, or part cargo, such explosives. Any vessel shall be allowed to lie at said pier only after a written permit shall have been issued by the port warden.'

Respondent has excepted to the libel upon the grounds:

'(1) That it appears from the libel that the cause of action therein set forth is not an admiralty and maritime cause of action and is not within the jurisdiction of this honorable court.

'(2) That the allegations contained in the libel are not sufficient in law to constitute a cause of action against the respondent, the city of Seattle.

'(3) That the allegations of negligence set forth in said libel are insufficient and not specific.

'(4) That the libel does not allege or specify what acts or neglect of the respondent, the city of Seattle, the libelant relies upon as constituting the cause of action.'

I do not think that it can be seriously contended that the issue sought to be tendered is not one of admiralty cognizance. The provisions of Ordinance 34,379 clearly extend the jurisdiction of the city over the navigable waters upon which it is alleged the act complained of transpired, and if such be the fact, then maritime jurisdiction obtains. Smith v. Havemeyer (C.C.) 36 F. 927; Manhattan Transp.

Co. v. Mayor, etc., of N.Y. (D.C.) 37 F. 160; Chicago v. Mullen, 116 F. 292, 54 C.C.A. 94; Roney v. New York S. & W. Ry. Co. (D.C.) 132 F. 321; O'Rourke v. N.Y.D. & C. Co. (D.C.) 55 F. 81. Where the municipality has control of the waters and of the buoys, and maintains supervision of the anchorage grounds, and issues permits for harbor privileges, and makes a charge therefor, it is liable for damage caused by negligence in the discharge of the assumed duties. Philadelphia Rd. Co. v. Mayor of N.Y. (D.C.) 38 F. 159. The cases cited in support of the exceptions I do not think are of assistance. United States v. Transp. Co., 184 U.S. 247, 22 Sup.Ct. 350, 46 L.Ed. 520, Compagnie de Nav. Francaise v. Burley (D.C.) 183 F. 166, and The Margaret J. Sanford (D.C.) 203 F. 331, merely decide that local laws and harbor regulations are enforceable in admiralty as well as local courts. Exception 1 is therefore without merit.

The other grounds of the exceptions can be disposed of together. The statement in the libel sets forth with sufficient particularity facts to advise respondent of the nature of the charge,...