The Mackinaw

• Decision Date: 23 November 1908
• Docket Number: 4,976.
• Citation: 165 F. 351
• Parties: THE MACKINAW.
• Court: U.S. District Court — District of Oregon

165 F. 351

THE MACKINAW.

No. 4,976.

United States District Court, D. Oregon.

November 23, 1908

Oglesby Young and Bauer & Greene, for libelant.

Williams Wood & Linthicum, for respondents.

WOLVERTON District Judge.

On November 17, 1907, the steamer Mackinaw was lying at anchor at the Irving dock, a short distance south of the landing of the steam ferry W. S. Mason, operated by the city of Portland and Multnomah county between the east and west banks of the Willamette river. While the libelant was standing upon one of the pontoons of the approaches used by the ferry, the Mackinaw changed her berth by backing downstream, and the libel alleges that she negligently allowed her anchor to drag along the bottom of the river, resulting in the anchor fouling the ferry cable, whereby the cable was torn loose from its fastenings. This resulted in its suddenly sweeping across the pontoon upon which the libelant was standing, striking and severely injuring him.

He has libeled the ship, and respondents except to the jurisdiction of this court upon the ground that, the pontoon being secured in place by fastenings to the shore, the injury occured on land. The locus in quo is thus described by the amended libel:

'That the slips or approaches to said ferry landings, and the pontoons at which said W. S. Mason lands for the purpose of discharging and receiving freight, passengers, and vehicles, are constructed and placed between highwater mark and low-water mark on said Willamette river, and said pontoon hereinafter referred to was not and is not a part of the land, but is a movable and floatable structure attached to land by cables at one end and below highwater mark and extending into the navigable waters of said river and at the time of the injury to libelant hereinafter described was within and upon the navigable waters of said river, and was and is raised and lowered with the tide and current thereof; and said pontoon, together with said cable, are used in the operation of said public ferryboat, and constitute, and on the date hereinafter mentioned were, state governmental instruments and aids to navigation in the port of Portland, and to the transportation of freight, passengers, and vehicles on and across the navigable waters of the United States in said port.'

A pontoon is nautically described by the Century Dictionary as 'a lighter; a low, flat vessel resembling a barge,' etc. On the facts alleged, then, it seems reasonably clear that this court has jurisdiction, unless the fastenings described are sufficient to impress upon the pontoon the character of land, and to divest it of nautical significance. That this is the result of the situation taken as a whole is the theory of the exceptants. There certainly is plenty of authority to sustain them in asserting the basic principle that a maritime tort can never occur upon the land; that the damage must be inflicted upon the water; and, although the instrument or cause of an injury, as a vessel, may be upon the water, if the result of the tortious act is impressed against an object upon the land, the admiralty is without jurisdiction to grant relief. The leading case having relevance to this claim is The Plymouth, 3 Wall. 20, 18 L.Ed. 125, where the cause of the injury was a fire aboard ship, resulting from the carelessness of the crew, while the injury itself was the result of the flames spreading to and consuming adjacent wharves or buildings. The causative negligence was clearly upon the water, but the injury was as clearly on land. That case has directed the current of opinion and decision for almost half a century. The Mary Stewart (D.C.) 10 F. 137; The Professor Morse (D.C.) 23 F. 803 (marine railway case); City of Milwaukee v. The Curtis (D.C.) 37 F. 705 (swing bridge); The Mary Garrett (D.C.) 63 F. 1009 (wharf); The Belle of the Coast (D.C.) 66 F. 62; The Albion (D.C.) 123 F. 189; Johnson v. Elevator Co., 119 U.S. 388, 7 Sup.Ct. 254, 30 L.Ed. 447.

If these cases indubitably settled the point that the pontoon in question is realty, as understood at common law, and their authority were insurmountable, further comment on the case made by the libel would be inapposite. But further inquiry is fitting and pertinent: First, because The Plymouth, supra, as regards this situation, is somewhat overshadowed by the later case of the Blackheath, 195 U.S. 361, 25 Sup.Ct. 46, 49 L.Ed. 236; and, second, because other cases, not classified with The Plymouth and its offshoots, have a decided influence here.

As to the first observation, a superficial analysis of the language of the Supreme Court in the Blackheath Case sets the mind running irresistibly toward an enlarged jurisdiction of the admiralty as respects the shore. The court begins its discussion by conceding outright that the beacon, the subject of the injury in that case, 'was attached to the realty, and that it was a part of it by the ordinary criteria of the common law. ' If one thing can be attached to the realty by some projection to the land or shore and still be the subject of a maritime tort, where or how is the line to be drawn against the next thing so attached that is injured by a craft? The manner of connection ought not to be inclusive or exclusive; for an object that is attached by piles certainly is not to be preferred over one that is attached by a cable, or a rope, or other like means of binding to the shore. The eminent jurist who wrote the opinion in The Blackheath Case seems to have had in mind just such incongruities, for, as if emphasizing as an absurdity the deprivation of the admiralty of jurisdiction over things floatable merely because they are in some manner attached or anchored to the shore, we have the following significant expression:

'It would be simple, if simplicity were the only thing to be considered, to confine the admiralty jurisdiction, in respect of damage to property, to damage done to property afloat. That distinction sounds like a logical consequence of the rule determining the admiralty cognizance of torts by place.'

And, further:

'But as has been suggested, there seems to be no reason why the fact that the injured property was afloat should have more weight in determining the jurisdiction...