R & H Development Co. v. Diesel Tanker, J. A. Martin, Inc.

• Decision Date: 10 June 1964
• Docket Number: No. CV,CV
• Citation: 2 Conn.Cir.Ct. 622,203 A.2d 766
• Court: Circuit Court of Connecticut. Connecticut Circuit Court, Appellate Division
• Parties: R & H DEVELOPMENT COMPANY v. DIESEL TANKER, J. A. MARTIN, INC. 1-6211-3030.

Page 766

203 A.2d 766

2 Conn.Cir.Ct. 622

R & H DEVELOPMENT COMPANY v. DIESEL TANKER, J. A. MARTIN, INC.

No. CV 1-6211-3030.

Circuit Court of Connecticut, Appellate Division.

Argued Feb. 3, 1964.

Decided June 10, 1964.

John F. Clancy, Bridgeport, for appellant (defendant).

John F. Lambert, Greenwich, for appellee (plaintiff).

JACOBS, Judge.

This is an appeal from a judgment rendered against the defendant, the owner of the oil tanker 'A. H. Dumont,' for damages which the tanker is alleged to have caused to pilings belonging to the plaintiff. The findings, which are not subject to any correction, disclose that on February 13, 1962, the tanker was engaged in the performance of a maritime task upon the navigable waters of Greenwich harbor, within this state. ¹ The tanker had entered the harbor for the purpose of unloading and delivering her cargo of home fuel oil and kerosene on the docks of the Fairfield Home Oil Company. At about 4:45 p.m. on the date in question, the tanker passed buoy No. 9 in the harbor, a distance of some 1000 feet south of her destination, and there encountered a field of packed ice, varying from four to five inches in thickness and extending from shore to shore. Little or no progress could be made through the icebound conditions of the harbor. A time came when the tanker was unable to make any headway at all through the solid ice. The master cut through the ice field by maneuvering the tanker forward and backward until he finally broke through the solid ice. The operation lasted about forty-five minutes. The pressure exerted by the tanker on the solid ice by the maneuverings bent and ultimately snapped nine of the pilings located on the plaintiff's shore development. The court found that the damage was attributable to the negligence of the tanker in laboring in and through the packed ice and awarded the plaintiff damages in the sum of $845.

Our initial inquiry, which we determine on our own motion, is whether the court had jurisdiction to try this case. 'The Judiciary Act of 1789, * * * while bestowing 'exclusive' admiralty jurisdiction on the District Courts, saved 'to suitors, in all cases, the right of a common law remedy where the common law is competent to give it." Gilmore & Black, Admiralty § 1-13, p. 33; see Romero v. International Terminal Operating Co., 358 U.S. 354, 361, 79 S.Ct. 468, 3 L.Ed.2d 368. This provision has been carried over, in somewhat altered language, to 28 U.S.C. § 1333 and remains unchanged in substance to the present day. 'This provision, which created a 'duality of maritime jurisdiction,' has been amended in phraseology, but not in substance, and has remained a feature of the federal legislation. As it reads now, the provision that the District Courts shall have original jurisdiction, exclusive of the courts of the states, of any civil case of admiralty or maritime jurisdiction, is qualified by the clause, 'saving to suitors in all cases all other remedies to which they are otherwise entitled." 2 Am.Jur.2d, Admiralty, § 105; Jansson v. Swedish American Line, 185 F.2d 212, 216, 30 A.L.R.2d 1385 (1st Cir.); Robinson, Admiralty, p. 23 (1939).

'The traditional rule that tort jurisdiction in admiralty does not extend to damage caused on land was altered by a statute adopted by the 80th Congress providing that admiralty jurisdiction shall extend to all cases of damage or injury, to person or property, caused by a vessel on navigable water 'notwithstanding that such damage or injury be done or consummated on land." 1 Benedict, American Admiralty § 128 (Sup.1963); see 62 Stat. 496, 46 U.S.C. § 740; United States v. Matson Navigation Co., 201 F.2d 610 (9th Cir.); 2 C.J.S. Admiralty § 64 (Ann.Cum.Sup.); Gilmore & Black, op. cit., p. 433; Farnum, 'Admiralty Jurisdiction and Amphibious Torts,' 43 Yale L.J. 34; notes, 17 Geo.Wash.L.Rev. 353, 37 Geo.L.J. 252. The type of action involved in this case, initiated on navigable waters and consummated on land, is within the civil admiralty jurisdiction of the statute and therefore falls within the scope of the saving clause. See Salaky v. Atlas Tank Processing Co., 120 F.Supp. 225 (E.D.N.Y.) (small craft damaged from oil sludge); Chicago, B. & Q. R. Co. v. The W. C. Harms, 134 F.Supp. 636 (S.D.Tex.) (collision between a train and a vessel protruding on shore); Petition of New Jersey Barging Corp., 168 F.Supp. 925 (S.D.N.Y.) (damage to shore waterfront and beaches); Petition of New York Trap Rock Corporation, 172 F.Supp. 638 (S.D.N.Y.) (damage to pier); Fematt v. Los Angeles, 196 F.Supp. 89 (S.D.Cal.) (ship-to-shore tort resulting in personal injury); United States v. Matson Navigation Co., supra (damage to dike attached to the shore); Diamond State Telephone Co. v. Atlantic Refining Co., 205 F.2d 402 (3d Cir.) (damage to submarine cable). We hold that this action was properly brought in a state court. See C. F. Rule Construction Co. v. Cumberland River Sand Co., 204 Tenn. 378, 321 S.W.2d 791 (damage to bridge pier struck by a barge tow).

Where, as here, a maritime cause of action is sued upon in a state court under the 'saving to suitors' clause, 'the substantive law to be applied is that which would have been applicable had the action been brought in the admiralty court. * * * In other words, it is only the privilege to prosecute for a maritime cause in the common-law courts that is saved to a state court by the clause involved, not the right of election to determine that the defendant's liability is to be measured by the common law.' 2 Am.Jur.2d, Admiralty, § 113; Jansson v. Swedish American Line, supra, and long list of cases there cited. 'Specifically, the general maritime law, where applicable, must rule, even though suit is brought in state court.' Gilmore & Black, op. cit., p. 45; see 4 Benedict, American Admiralty (6th Ed.) § 612. Local statutes and local customs may be considered if, and only if, they do not conflict with federal law. '[The United States Supreme Court] has said that a state, 'having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit' so long as it does not attempt to make changes in the 'substantive maritime law.' Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 124, 44 S.Ct. 274, 277, 68 L.Ed. 582.' Madruga v. Superior Court, 346 U.S. 556, 561, 74 S.Ct. 298, 301, 98 L.Ed. 290; see Lloyd v. Victory Carriers, Inc., 402 Pa. 484, 167 A.2d 689. State courts are bound, moreover, to take judicial notice of and to enforce federal statutes regulating navigation without any formal proof, even though not raised by the pleadings. '[T]he courts of the state * * * are required to take judicial notice and enforce general statutes of Congress without any formal proof * * * even if the point be not urged by counsel and is originated by the court.' Carlin v. New York, N. H. & H. R. Co., 71 Misc. 521, 524, 130 N.Y.S. 828, 830. The rules governing navigation must be given the same construction by a state court as they are given by a federal court sitting in admiralty. 'There can be no doubt that the statutory regulations enacted by congress to prevent collisions are to be interpreted in the same way in the common-law courts of a state as they are in the courts of the United States, if the action is for a maritime tort committed upon navigable waters within the admiralty jurisdiction of the United States, and that the judgment of the state court may be revised by the Supreme Court of the United States.' Chesley v. Nantasket Beach Steamboat Co., 179 Mass. 469, 471, 61 N.E. 50, 51.

The trial court having expressly found that the tanker was sailing through a navigable harbor at the time of the occurrence, the federal Navigation Rules for Harbors, Rivers and Inland Waters Generally (33 U.S.C. §§ 151-232) are applicable. The acts and omissions of the vessel and crew alleged by the plaintiff to constitute negligence must be examined in the light of chapter 4, § 1, article 29, of the act of June 7, 1897 (30 Stat. 102, 33 U.S.C. § 221), which provides: 'Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.' 'This Rule * * * makes it clear that the Rules are not a complete and comprehensive code of navigation, compliance with which is sufficient to avoid liability, but that, on the contrary the ordinary precautions of good seamanship, as defined by custom and case law, are still required.' Gilmore & Black, op. cit., p. 420.

The unchallenged findings show that the pilings and other shore installations were authorized by the federal government through standard procedures; they do not, therefore, fall within any of the federal proscriptions of unlawful obstructions on navigable waters. We are, of course, cognizant of the fact that to be weighed against the plaintiff's private property rights in its shore installations is the public right of navigation. Petition of Martin, 102 F.Supp. 43, 50 (E.D.Pa.); cf. Silver Springs Paradise Co. v. Ray, 50 F.2d 356, 359 (5th Cir.). The shore itself and the structures thereon are subject to the dangers incident to the paramount right of navigation, such as the wash from the reasonable propelling of vessels in the stream and damage to shore installations, by reason of their location, from accidents resulting from moving craft along the waterway. Adams v. Carey, 72 Md. 173, 181, 190 A. 815; Field v. Apple River Log Driving Co., 67 Wis. 569, 576, 31 N.W. 17.

But the right of navigation, while paramount, is not exclusive. Thus, a vessel may not wilfully proceed so as to cause damage to shore installations. See People's Ice Co. v. The Excelsior, 44 Mich. 229, 234, 6 N.W. 636 (gross negligence). Private property owners in or near navigable...