Malony v. City of Milwaukee

• Decision Date: 03 April 1880
• Parties: MALONY v. CITY OF MILWAUKEE, etc.
• Court: U.S. District Court — Southern District of New York

1 F. 611

MALONY v. CITY OF MILWAUKEE, etc.

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

April 3, 1880

E. D McCarthy, for libellant.

F. A Wilcox, for claimants.

CHOATE J.

This is a libel to recover damages caused by a collision between the libellant's canal boat Oliver C. Gibson and the steam canal boat City of Syracuse, while the latter was in tow of the steam canal boat City of Milwaukee, which was proceeding under steam and towing the City of Syracuse on a hawser of about 100 feet in length. The collision happened on the evening of November 2, 1877. The place of the collision was in the Erie canal, about 100 miles east of Buffalo, in the county of Munroe, and state of New York. The canal boats City of Milwaukee and City of Syracuse were attached by the marshal of this district, on the process issued in this case in a place called the New Jersey central basin, within the limits of Jersey City. This basin communicates with the bay of New York through the Morris canal basin, and the place of seizure was about half a mile from what is now the open bay and at a point about 500 feet southerly of the original shore line at high-water mark, and about 150 feet westerly from the westerly side of Henderson street, which is at that place an artificial structure built out into the bay upon the flats. Thirty years ago this basin in which the boats were seized was part of the bay of New York, and admitted to be below the ordinary high-water line on the Jersey shore.

Two defences are made by way of exception, as well as by answer, which it is necessary to dispose of before considering the merits of the case: (1) that the subject-matter of the suit is not within the admiralty jurisdiction of the United States, the place of collision being upon a canal or artificial water-way over which that jurisdiction does not extend; and (2) that the place where the canal boats were seized by the marshal is without the limits of the southern district of New York.

1. The first question is one of very great importance to the commercial interest of the country. It has never been expressly decided by the supreme court of the United States, but the weight of authority is in favor of the jurisdiction. In the case of the The Monitor the district court for the eastern district of New York entertained jurisdiction of a case of collision upon the Delaware & Raritan canal, which, like the Erie canal, is an artificial water-way over the land, but communicating between what are admitted to be navigable waters of the United States.

Upon an application to the supreme court for a writ of prohibition that court refused the writ. It is understood, however, that the eight justices who heard the case were equally divided in opinion, and no written opinions were delivered. The point arose, and was expressly ruled in favor of the jurisdiction by Judge Emmons, in the case of The Avon, 1 Brown's Adm.Rep. 170. It is also understood that the jurisdiction is entertained by several of the district courts. The point is somewhat discussed in the case of the E. D. McChesney, 8 Ben. 150, by Judge Blatchford, but the case before him did not call for a determination of the question. Without going at large into a discussion of the reasons for and against the jurisdiction, it is enough for the disposition of the point in this case to say that, upon a careful perusal of the opinions delivered by the supreme court which touch upon the question, it seems to me that the test established for determining the jurisdiction in admiralty, in a case of alleged maritime tort not on tide-water, is whether the place in which it was committed is upon the 'navigable waters of the United States,' and that an artificial water-way or canal opened by a state to public use, for purposes of commerce, and while in fact used as a highway of commerce between the states of the Union, and between foreign countries and the United States, is 'navigable water of the United States' within the meaning of that term as used to define and limit the jurisdiction of the admiralty courts. Nor, as it seems to me, is there any force in the suggestion that this proposition trenches upon the rightful power and jurisdiction of the state through whose territory and by whose law, in force for the time being, the canal is so opened and used, because the exercise of this jurisdiction does not in any way in itself impair or affect the right of the state (whatever that right may be) to withdraw or terminate that dedication of its property to the public uses of commerce.

At any rate, considering the present state of authority and practice in the courts inferior to the supreme court, I do not feel at liberty to decline the jurisdiction. The question is one of national importance, and must, doubtless, soon receive full consideration and a final determination in the supreme court. The Genessee Chief, 12 How. 443; The Hine, 4 Wall. 555; The Eagle, 8 Wall. 15; The Daniel Ball, 10 Was. 557; Ins. Co. v. Dunham, 11 Wall. 1; The Montello, 11 Wall. 411; The Lottawanna, 21 Wall. 558.

2. In respect to the second objection it is claimed, on the part of the libellant, that the convention between the states of New York and New Jersey, in the year 1833, which was consented to by the United States, with some qualifications, (Revised Statutes, Sec. 541,) has enlarged the limits of this district, so that it now extends to high water mark on the New Jersey shore, instead of being limited to the low water mark, as it is admitted to have been prior to 1833.

This claim, however, was very fully considered and determined in the negative by Judge Blatchford, in the case of The L. W. Eaton, in this court, (decision January 26, 1878, unreported.)

The only question, therefore, is whether, at the time of their seizure by the marshal, these canal boats were above or below low water mark. The evidence on that point is somewhat conflicting, and there is no doubt that in exceptionally low tides, and particularly when a strong north-west wind has kept the tides down, the water all runs out of this basin and leaves the flats bare where these boats lay; but the preponderance of the proof is that ordinary low water mark is within less than 150 feet from the westerly side of Henderson street, at the part of the basin where the boats lay, and that they were below low water mark at time they were seized. This exception must therefore be overruled.

3. The merits are clearly with the libellant. The libellant's boat was coming each; the two steam canal boats were going west. The night was dark and rainy. The wind was blowing a violent gale; so violent that shortly before this collision the two steam canal boats were windbound on the berme bank of the canal, towards which side the wind blew. Before that they had been proceeding with the City of Syracuse ahead, pushed by the City of Milwaukee. The wind was so strong that this method of proceeding was abandoned as impracticable, and the...