The Mary Ethel

• Decision Date: 05 November 1923
• Docket Number: 63.
• Citation: 294 F. 525
• Parties: THE MARY ETHEL. [1] v. DIRECTOR GENERAL OF RAILROADS et al. DONOVAN
• Court: U.S. Court of Appeals — Second Circuit

294 F. 525

THE MARY ETHEL. ^[1]

DONOVAN v. DIRECTOR GENERAL OF RAILROADS et al.

No. 63.

United States Court of Appeals, Second Circuit.

November 5, 1923

William L. Barnett, of New York City (Edward R. Brumley, of New York City, of counsel), for appellant.

Foley &amp Martin, of New York City (William J. Martin and George V. A McCloskey, both of New York City, of counsel), for appellee Donovan.

Carter & Carter, of New York City (Peter S. Carter, of New York City, of counsel), for other appellee.

Before ROGERS, MANTON, and MAYER, Circuit Judges.

MAYER Circuit Judge.

The action was to recover for damage to the scow Mary Ethel owned by libelant, caused by collision on March 28, 1919, at Pier 2, Erie Basin. The facts are very simple, and were rightly decided below. It is unnecessary to recite the details.

For the purpose of this opinion, it is enough to state that the Mary Ethel was moored at Pier 2, Erie Basin. She was damaged by contact with the New York, New Haven & Hartford Railroad Company car float No. 46, which was negligently cast loose by a New York Central tug in removing a New York Central barge or car float to which the No. 46 had been made fast. We think the New York Central Railroad Company tug was sufficiently identified, and in view of the date of the occurrence-- i.e March 28, 1919-- we are of opinion that the District Court was justified in finding that the New York Central tug was being operated by the Director General.

1. The contention of appellant is that:

'Even though it be admitted that the New York Central tug was under the control and operation of the Director General of Railroads operating the New York Central Railroad, the Director General of Railroads operating the New Haven Railroad, being a separate and distinct person, is in no way responsible.'

Appellant seeks to avoid the decision of this court in Globe &amp Rutgers Fire Ins. Co. v. Hines, Agent, 273 F. 774, by the effect, as he contends, of Missouri Pacific Railroad Co. v. Ault, 256 U.S. 554, 41 Sup.Ct. 593, 65 L.Ed. 1087. In that case, a statute of Arkansas provided a certain penalty for the nonpayment of the wages of a discharged employee. The opinion dealt with two main questions. In respect of one of these questions, the Supreme Court held, in effect, that Congress had not given its consent that suits of this character be brought against the United States. The other part of the opinion dealt with causes of action which arose prior to government control, and also with those which arose during government control. In our view, the opinion of the Supreme Court fully sustains the Globe & Rutgers Fire Ins. Co. Case, supra. The court said, per Mr. Justice Brandeis: 'If the cause of action arose while the government was operating the system the 'carrier while under federal control' was nevertheless to be liable and suable. This means, as a matter of law, that the government or its agency for operation could be sued, for under the existing law the legal person in control of the carrier was responsible for its acts. See Gracie v. Palmer, 8 Wheat, 605, 632, 633. The title by which suit should be brought-- the person who should be named as defendant-- was not designated in the act. In the absence of explicit direction, it was perhaps natural that those wishing to sue the carrier should have named the company as defenda...