Savannah & N.Y. Transp. Co. v. Klaren Bridge Co.

• Decision Date: 03 July 1918
• Docket Number: 1593.
• Citation: 252 F. 499
• Parties: SAVANNAH & N.Y. TRANSP. CO. v. KLAREN BRIDGE CO.
• Court: U.S. Court of Appeals — Fourth Circuit

252 F. 499

SAVANNAH & N.Y. TRANSP. CO. v. KLAREN BRIDGE CO.

No. 1593.

United States Court of Appeals, Fourth Circuit.

July 3, 1918

J. P K. Bryan, of Charleston, S.C., for plaintiff in error.

H. L Erckmann, of Charleston, S.C. (H. H. Ficken, of Charleston S.C., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

This case comes here on a writ of error to the District Court of the United States for the Eastern District of South Carolina. The facts may be epitomized as follows:

Wappoo cut, or creek, is a narrow navigable stream in the state of South Carolina, running westwardly from the western bank of the Ashley river opposite the city of Charleston. In January 1897, Wappoo Bridge Company received a charter from the state authorizing it to operate a toll bridge. The General Assembly of South Carolina then passed an act, approved the 11th of February, 1898, authorizing the bridge company to erect a toll bridge across the stream above mentioned. 22 St.at Large, p. 952. Act Cong. July 13, 1892 (27 Stat. 110, c. 158), required the location and plans of the bridge to be submitted to the Secretary of War and approved by him. This was done. The plans, among other things, required the draw span opening to be 66 feet in the clear, and also called for batter piling behind certain parts of the fenders. This was done, and the bridge was built according to the plans and specifications duly approved.

The bridge was thrown open to the public on January 10, 1899. The Klaren Bridge Company, defendant in error (chartered in 1906), became the owner of such bridge and proved title thereto. It seems that in the course of repairs during the years many of the batter piles called for by the plans rotted away and were not replaced. Further, owing to had measurement or due to action of the tides, the opening had slightly sagged and bulged in some parts, so that, instead of being 66 feet, the eastern half ran from 66 feet to 67 and 68 feet (more than required by law) in the clear, and portions of the western half ran from 66 feet to as low as 64 3/10 feet.

The Secretary of War, under Act March 3, 1899, c. 425, Sec. 18, 30 Stat. 1153 (Comp. St. 1916, Sec. 9970), when he has reason to believe that a bridge is an obstruction on account of its draw span, is required to make the owner alter same so as to render navigation free. It appears that this bridge was inspected on a number of occasions by the United States engineer, representing the Secretary of War, and on January 10, 1917 (the time of the accident), there was no demand on the part of the War Department remaining uncomplied with, but all work had been done to the satisfaction of the engineer in charge. The middle fender (the one injured) was only two years old, and the government had required certain changes since 1906. Testimony was introduced to show that the middle fender (the one alleged to be injured) was strong and substantial.

From 50 to 100 vessels were accustomed to pass through the draw-bridge daily; this including all kinds of vessels with the exception of large sea-going barges. On January 10, 1917, the Savannah & New York Transportation Company, plaintiff in error, attempted by its tug Passport to tow a large sea-going barge from the Ashley river in a westerly direction through this bridge, going to Wiggins, S.C. The testimony shows that the barge was 180 feet long, 40 feet wide, and stood out of the water 14 to 18 feet, and drew 7 feet of water. It appears that Capt. Nelson had been advised by an experienced local pilot not to attempt to take the barge through by this route. Capt. Nelson had no sea-going license. The barge captain testified that it was almost impossible to go through the bridge with that barge without coming in contact with the fenders.

For some reason, the tug or barge, on entering, struck the northeast fender. The Klaren Bridge Company alleges that the tug did it; that both were painted green. The barge had fenders, and green paint was found on the northeast fender after the accident, which was never there before. Witness testified that the northeast fender was hit, but did not give way; that the tow became unmanageable, and the barge crossed over to the southern fender and crashed into it with a 'powerful noise.' L. B. Sauls, the bridge keeper, living about 80 or 90 feet from the bridge, testified to hearing the scrape on the northeast fender, and that he came out to the foot of the bridge, saw the barge strike the draw fender east of the cylinder; that it broke the fender, struck the draw, and kept striking, going right on down; and that after it had cleared the bridge there was considerable noise and confusion, and cries, repeated three or four times, from the tug, 'I told you to pull hard over. ' The record shows that the southern fender was broken, and the iron drawbridge injured and damaged.

The evidence shows that bill for actual repairs amounted to $2,129.43; the bridge was put out of commission for nearly three months, with loss of tolls, estimated on basis of previous year, $514.17; extra lumber cost $17.25; use of wagon, $105; or total of $2,832.94. The case went to trial before a jury during the June, 1917, term of the District Court, at Charleston. At the conclusion of the testimony plaintiff in error moved for a directed verdict, which was refused. The jury found a verdict of $2,832.94, which was reduced by the presiding judge to $2,732.94, and judgment duly entered accordingly. The defendant in error will hereinafter be referred to as the plaintiff, and the plaintiff in error will be referred to as the defendant; such being the relative positions the parties occupied in the trial at the court below.

The defendant insists that the plaintiff is not entitled to recover in this action by virtue of section 7 of River and Harbor Act Sept. 19, 1890, c. 907, 26 Stat. 454, as amended by 27 Stat. 110, Sec. 3, which is in the following language:

'It shall not be lawful hereafter to commence the construction of any bridge, bridge draw, bridge piers and abutments * * * over or in any * * * navigable river or navigable waters of the United States under any act of the legislative assembly of any state until the location and plan of such bridge * * * have been submitted to and approved by the Secretary of War. * * * '

At the trial in the court below witness Dawson, who states that bridge was built according to plans and specifications, testified as follows:

'I was the engineer who made the plans of the bridge, as is shown upon the plan. According to these plans the bridge was adopted and accepted by the company and accepted by the government. I superintended the construction, and at the time the bridge was so constructed it did conform to the plan in 1898, when it was built.'

According to this witness the bridge was erected in accordance with plans that had been approved by the War Department. The important question involved herein is as to whether a bridge built in accordance with the law becomes, on account of wear, tear, and incidental repairs, with unsubstantial variations from the original plans, an unlawful structure, which may be injured by a passing vessel, without such vessel incurring liability to the owner of the bridge, regardless of the fact as to whether such variations or defects were approximate cause of the injury or not.

We do not think that the section first above quoted applies to the case at bar, but relates solely to the construction of bridges in the first instance. However, we are of the opinion that 30 Stat. 1153, Sec. 18, is intended to apply to a case like the one at bar. This section is in the following language:

'That whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable waterways of the United States is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, it shall be the duty of the said Secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes recommended by the chief of engineers that are required to be made, and shall prescribe in each case a reasonable time in which to make them.'

This act also prescribes a penalty or fine not to exceed $5,000 for noncompliance with the act. It also vests the Secretary of War with the power to require changes.

Maj. Youngberg, a witness introduced on behalf of the defendant, among other things testified as follows:

'The records of my office show that the bridge has been inspected on number of occasions from the date of erection or date of beginning work up to the present time. I don't recollect any repairs remaining not complied with on the 10th of January, 1917.'

According to the testimony of this witness the bridge had been inspected from time to time by the United States engineers, and there had been no demand which had not been complied with at the time of the accident.

The defendant's contention is tantamount to saying that inasmuch as the bridge company, in repairing the bridge, made variations of a few inches in the width of the same at one point, such action on the part of the bridge company conferred upon the navigator the right to strike the bridge at another point, where there was no variation...