O'Keefe v. Staples Coal Co.

• Decision Date: 01 December 1910
• Docket Number: 261.
• Citation: 201 F. 131
• Parties: O'KEEFE et al. v. STAPLES COAL CO.
• Court: U.S. District Court — District of Massachusetts

201 F. 131

O'KEEFE et al. v. STAPLES COAL CO.

No. 261.

United States District Court, D. Massachusetts.

December 1, 1910

D Gardner O'Keefe, of Taunton, Mass., and Fitz Henry Smith Jr., of Boston, Mass., for libelants.

Richard P. Borden, of Fall River, Mass., for Staples Coal Co.

Frederick S. Hall, of Taunton, Mass., and Albert P. Worthen, of Boston Mass., for County of Bristol and county commissioners.

DODGE District Judge.

The libelants seek to recover damages for injuries to their schooner Sarah L. Thompson caused by alleged negligence on the part of the respondent's tug Cohannet in towing the schooner. The negligence complained of is in bringing the schooner into collision with the 'new county bridge, which spans the Taunton river at Fall River.'

The respondent has filed a petition in the case, which alleges that the owners of the bridge referred to (otherwise called 'Brightman Street bridge'), are wholly responsible for the collision and ought to be sued for the resulting damages. Allegations follow of due care on the respondent's part in performing the towage service, and of negligent failure on the part of those in charge of the draw in said bridge to open it promptly in response to the tug's signals, or to give any signal or warning that the draw would not be so opened. It is further alleged that the county of Bristol, acting by its commissioners, was in control of the bridge under certain Massachusetts statutes referred to, and operated the draw through its or their servants, agents, or employes. The petition asks for process under admiralty rule 59 (29 S.Ct. xlvi) against the county, against certain persons named, as they were commissioners when the county first assumed control of the bridge, and against certain persons named as they were county commissioners in control thereof at the time of the collision. It asks also that said county and said persons may be made parties to the suit, and may be summoned to appear and answer in accordance with the rule.

A summons, issued according to the prayer of this petition, has been duly served upon the county and upon the persons named as county commissioners. Exceptions have been filed by the county to the libel upon the following grounds:

'1. Because there are no allegations in the libel against or concerning the county.

'2. Because the allegations contained in the libel are not sufficient in law to constitute a cause of action against the county.

'3. Because the libel does not allege or specify what acts or neglects of the county the libelants rely upon as constituting the cause of action.'

The county has also filed exceptions, similar to those numbered 2 and 3 above, to the petition of the respondent.

The persons summoned as county commissioners at the time the county assumed control of the bridge are John I. Bryant, Frank M. Chase, and William R. Black. The persons summoned as commissioners at the time of the collision are John I. Bryant, Frank M. Chase, and Richard E. Warner. Exceptions to the libel have been filed on behalf of all of the above upon grounds similar to those set up in the exceptions filed by the county to the libel. Exceptions to the petition have also been filed on behalf of all of said persons upon grounds similar to those numbered 2 and 3 in the exceptions filed by the county to the libel. Upon all the above exceptions there has now been a hearing.

The exception numbered 2 in the exceptions to the libel and 1 in the exceptions to the petition is the only exception which need be discussed. If either the libel or the petition alleges a sufficient cause of action in admiralty against these respondents, the petition is sufficiently specific as to their acts or neglects which are relied on. The acts and neglects relied on are those of whoever may have been responsible at the time for the proper operation of the draw. That the libel does not charge either the county or the commissioners with the responsibility for the management of the draw or for the collision, and does not name or refer to them, or either of them, and does not, indeed, ascribe the collision to any negligence whatever in the operation of the draw, cannot excuse them from answering it, now that the petition has been filed. In the petition are found allegations, such as rule 59 describes, of fault or negligence on the part of those in charge of the draw, contributing to the collision for which the libel claims damages. In the petition are also found allegations that the county or the commissioners were charged with the duty of properly operating the draw. They have been duly summoned under the rule, and the suit is now required to proceed as if they had been originally made defendants in the libel. They are to answer the libel, as the rule requires, as if it had originally contained the charges now made against them in the petition. By answering the petition, as well as the libel, as they have done (though without waiving their exceptions), it would seem that they have fully complied with the rule. The other libelants, as 'the other parties in the suit,' have answered the petition, and the pleadings required by the rule are thus complete.

No 'fault of negligence in any other vessel,' contributing to the collision, is alleged in the petition and in this respect (though no such objection is raised by the exceptions) the case is not brought within the terms of the rule. But the rule is to apply in all suits for damage by collision, and this is none the less such a suit because the collision was with a drawbridge, and not with another vessel. Suits for damage done to vessels on navigable waters, by permanent structures in or over such waters, are of admiralty jurisdiction. Atlee v. Union Packet Co., 21 Wall. 389, 22 L.Ed. 619. Such suits occur not infrequently in admiralty courts, and it has been usual to call them suits for collision, whether or not, strictly speaking, the...