National Forwarding Co. v. Payne

• Decision Date: 13 July 1923
• Citation: 297 F. 663
• Parties: NATIONAL FORWARDING CO. v. PAYNE, Director General of Railroads, et al.
• Court: U.S. District Court — Southern District of New York

297 F. 663

NATIONAL FORWARDING CO. v. PAYNE, Director General of Railroads, et al.

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

July 13, 1923

Bigham Englar & Jones, of New York City (Andrew J. McElhinney, of New York City, of counsel), for libelant.

Burlingham Veeder, Masten & Feary, of New York City (Chauncey I. Clark of New York City, of counsel), for respondent Director General of Railroads.

Macklin Brown & Van Wyck, of New York City (Horace L. Cheyney, of New York City, of counsel), for respondent Keeler Transp. Co.

GODDARD District Judge.

In admiralty. Suit to recover for damages to steam lighter. This is an action for damages to the lighter Transit while under charter to the Director General of Railroads. The answer of the respondent alleges that the damage was sustained by the lighter, which was entering a slip between the New York, Ontario & Western Railroad pier at Guttenberg, N.J., and the Fairbanks Company pier, on January 30, 1918, and that the damages were sustained as a result of a collision with the wreck of the coal boat Irwin, which was lying sunk and submerged. A petition was also filed by the Director General of Railroads against Elmer A. Keeler, doing business under the name and style of the Keeler Transportation Line, as the owner of the Irwin, charging him with fault to properly mark the wreck.

The respondent Keeler appeared and filed an answer on the ground that the wreck had been properly marked. By his answer to the petition, respondent Keeler alleged that the boat Irwin was not sunk in a navigable channel, but was sunk within the pier head lines, and, owing to the presence of heavy ice, it was impossible to maintain a buoy over the wreck, and that all other precautions necessary were giver, to the owners of vessels of the presence of the sunken boat. He further alleged that the Transit did not collide with the Irwin. The Irwin sank on January 16, 1918, having been struck by a heavy floe of ice. She was lying outside of one other boat, which was moored on the northerly side of the Ontario & Western pier. At the time of the alleged accident the Transit was bound up the river from Pier 64 to the Fairbanks Pier, which lies immediately north of the Ontario & Western pier.

The wreck was not properly marked as required under the provisions of section 15 of the Act of 1899, 30 Stat. 1152 (9 F. Stat. (2d Ed.) p. 60 (Comp. St. Sec. 9920)), reading as follows:

'Sec. 15 (Obstruction of Navigation by Anchored or Sunken Vessels, Floating Logs, etc.-- Sunken Vessels to be Marked and Removed). That it shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; or to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels; or to float loose timber and logs, or to float what is known as sack rafts of timber and logs in streams or channels actually navigated by steamboats in such manner as to obstruct, impede, or endanger navigation. And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as hereinafter provided for.'

The respondent Keeler contends that this statute does not apply to vessels sunk within a slip, for the reason that such waters are not a part 'of the navigable channel,' and further that the floes of ice in the slip made it impossible to place or maintain a buoy upon the wreck, and that a red flag about two feet square had been nailed on one of the upright stanchions of the coal pier by some of the employees of the Ontario & Western Railroad Company, about the height a man could reach-- seven feet above the pier. The crew of the Transit deny its existence, but it may well be that such a flag had been put up, for it would hardly be observable, for there are a number of stanchions similar to the one on which it was claimed to have been fastened for supporting the railroad tracks overhead, and, unless there was enough wind from the right direction, it would not be noticeable. It also appears that the respondent Keeler caused to be placed in the New York Herald, on or about January 17, 1918, the following notice:

'Notice to Mariners.

'Coal barge Irwin sunk at end of

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