THE. CITY' OF, ']UCHMOWD;
fproper'manner in which the cables were laid, rendering navigation dan:gerous and unsafe. The evidence shows that each cable 'was about 1! inches in diameter, and" Iunning a mile in length from pier to pier, weighed about 8 tons; that at the exterior end of the Dutch pier the <:ables wert' raised several feet above the muddy bottom, but struck the mud about 20 feet outside of the pier, and thence sank deeper in the mud as they extended outward in thestream,going, so far as the evidence shows, about a foot and a half deep. The master and the pilot 'in charge of the City of Richmond testify that they had no notice of the "<:ables, or of their position, and thlittherewas no sign at the pier indicating, their presence. More or less of such cables had run to this pier since 1867. Trouble from anchors fouling was. not uncommon, but there were few instances of difficulty from vessels. The steamer at this time drew 24 feet of water. The tide was ebb, about half out. ,The steamer, after discharging her passengers, could Mt remain 'at the end of the dock, because she would ha.ve been strained by taking the uneven ground at low water.' She could not move ahead, and ",as therefore obliged 'to back. For that purpose her stern was swung out into the river by two powerful tugs,until she made an angle of about five points with the line of the shore. In doing this her stern was brought into the mud of the bank outside, above referred to , and two hawsers were parted in:bringing her stern round to that angle. This angle was th,ought sufficient by the pilot, and was probably as much as her stern could be swung ,to port. She was then backed, as above stated, reaching the middIe of the river without her officers at the time knowing that the fouling bad ocourred. Large steamers had long been accustomed to come to the docks in that vicinity. To run through more or less of such mud in doing so was and is an ordinary occurrence. The telegraph company contend that they had a right to the use of the bottom,of the river as a bed for their cablesj that when laid on the bot"tom, under the act of congress,the cables were lawfuUythere; that, if they aremain:tained there, the company discharges its full duty, and that parties interfering with them do so at their own peril; that the bottom of the stream is, in all cases, the limit of the rights of navigation; that cables laid upon the bottom are no obstruction to navigation; and that theprohibition of any "obstruction" in the act of conKI'essdoes not emb"race mere inconveniences to which vessels may be subjected by the cables, but refers only to those permanE'nt conditions which prevent navigation, and not merely incommode it. An elaborate brief has been filed, and numerous cases cited in support of these contentions. Most of the cases cited ,refer to highways and bridges, or other authorized structures, in which the acts authorizing such structures have been held not to regard the occasional or minor inconvenience that may incidentally arise. ,Only two cases have been referred to that deal with the fouling of cables by vessels, viz. , that of Stephfm8 & a. Transp. Co. v. Western U. Tel. Co., 8 Ben. 502, and Blancoord v. TelegmphOo., 60 N. Y. 510, in both of which the cables were found to be an obstruction to navigation, iheevidence inb<ith: showing that ,they r&D abovethe1;>edof the stream.
As applied to navigation, I cannot sustain the distinctio}J contended forbetweerian obstruction and an interference. The cables, whatever ,their exact position was, were in a .permanent position. If they interferedat all with the rightful or necessary use of steamers in that locality, the:illterference was also permanent. And a permanent interference, which prevents a vessel from going where she ordinarily has a right to go,and where in her maneuvers she may find it necessary to go, whether that necessity be constant or frequent, or only occasional, as emergencies may compel her, seems to me to constitute an "obstruction." The libel alleges that the cables as laid did not" interfere" with navigation. ALLEN, J., in theGhse of Blanchard, w-pra, citing People v. Vanderbilt, 26 N.Y. 287, says: "The Hudson river. at the point of injury, is a public navigable stream, and those navigating it for commercial purposes, and using it 88 a highway for vessels, have the primary and paramount right to it. and every interferencewith or obstruction of the navigation, or hindrance to the free o( ,vasselsupon it. is prima facie a nuisance, and unla,wful." . , Continuing, he observes that, while minor obstructions and temporary inconveniences are made lawful and tolerated, the necessary obstruction should "in every case be,reduced to its minimum," and that, "if there is an ullneceRsary interference with, navigation, the act: becomes unlawful by reason of the excess of the .limits within which obstructions are allowed, in the interests of the public. * * * From the evidence in this case," he continues, "it is quite evident that tlie wires and cables. in making continuous telegraph lines, can be so placed in the bed of the stream * * * as not in the least, or under any circumstances, to interfere with the unobstructed use of such streams for the purposes of navigation. * * * It can only be when improperly laid, or they have become displaced, that vessels adapted to the navigation can come in contact with, and either cause injury to, or receive injury from, them. * * * Telegraph cables so laid * * * as to * ,* * come in contact with vessels navigating the stream with such draught as the depth of water will permit, and whiCh, but for such cables, would pass without' difficulty or interruption, are improperly placed, and do ,injuriously interrupt navigation." . These principles seem applicable to this case, and to be sufficient for its determination. The soft, yielding, navigable mud, in which these cables were more or less immersed, is 110t to be confounded with the solid bed of the stream referred to in the above cases. Such mud constitutes no sharply-defined bottom. It changes from time to time, and is dredged out as occasion requires. It admits of navigation by ers through it, and forms a part of the available draught of water, and assuch it is counted on and constantly used. The line ofdivision between such navigable mud and the true bottom is distinguishable by no ,other test than. the practical ability of the ship to plow through it. So far as affects. the rights of navigation, whatever depth of mud of this variable consistency steamers are accustomed to pl?w through, and do and must plow through, in the course of their maneuvel'8inan<i
, THE CITY OF RICHMON])·.
about the docks, is to be treated as a part of the stream, and not as a part of the solid bottom. No doubt complaint cannot be lawfully made of inconveniences that arise necessarily from the laying of cables pursuant to the act of congreEs; but there is no evidence, nor can it be inferred, that this obstruction or interference with the backing of steamers through the soft mud was necessary. Not only were no pains taken to sink the cables below the depth of silt that vessels might use, but the cables were not allowed to sink the distance that their whole weight would carry them, since at the end of the wharf they were raised up so as to be several feet above the mud. The telegraph company's contention amounts to this: that it has.a right to the exclusive use of the silt or mud for its cables, without interference from vessels. Such, however, is not the language of the act of congress. That act permits the cables to go "under water," but "not so as to obstruct navigation." Nothing in the act gives any absolute right to lay cahles in all cases on the very top of even 'a solid bottom. A ca.bleso laid would not perfectly meet even the language of the stat,.. ute,for it would still be in the water, and not, as the statute says, "under the waters." Circumstances might exist where, if it were reasonably practicable, the cablps would be required to be laid below the surface of even a solid bottom; or, as Ar,LEN, J., says, "in the bed· of the stream," and not merely on the surface of the bed. The language of the act should, however, be construed in reference to the practical objects in view, viz., to facilitate communication by cable on the one hand, while not permitting the obstruction of navigation on the other. When cables can reasonably be laid so as not to interfere with navigation, plainly they. must be so laid. In mud of such varying consistency as lines the shores of the North river, there can be no practical difficulty in sinking cables so deeply as not possibly to interfere with the movements of vessels in any and all emergencies of navigation. The use by steamers in this harbor of the undefined margin of silt between the solid ground and clear water is necessary. Every inch that can be utilized is needed, and should be scrupulously preserved for the uses of navigationj as against all unnecessary interference. Any unnecessary interference with the free movements of vessels is, in my judgment, an "obstruction to navigation," within the meaning and intent of the act of congress. I must find that there was 110 necessity for these cables being where 'they were, and that the telegraph company, under the act of congress, "'as bound to lay them deep enough, as they easily could have done, not.to interfere with steamers, to whatever depth of navigable mud and water they might plow through. On this ground, without considering the question of notice, or lack of notice, of the existence of the obstructiOn, by a proper sign upon the adjacent dock, the libel of the telegraph -company is di.>missed, and that of the steam-ship company sustained, with costs..
ELDER SUGAR REFINING CO. TRANSATLANTICA. ESPANOLA.
(District Oourt, S. D. New York. March 28,1890.)
Under rule 28 in admiralty interrogatories annexed to the libel conflned to issuable matter, and only the defendant's oat4 is required in response thereto. Inspection or copies of letters or documentll ,not w issue cannot be obtaiJ;led by that means. Held. therefore, in a libel for damage to cargo, thatlnterrogatories calling for the production of letters between the defendants and their agents for tbe purpose of proving the fact of damage, and how it occurred, should be stricken out. :. ' (l51IZlabus l1y t'h.e OouTt.)
Exceptions to interrogatories.
lJufltl", Btilbnan & Hubbard and Mr. Mynde:rae, for libelant. Wing, Slwudy.& PUf1nam, for respondent.
.The interrogatories in the libel under ru}e23,cli:lling for the production of any letters, cablegrams, or correspondence between the respondents and their agents, or the master, relating to the damage to cargo,which forms the subject-matter of litigation. To these interrogatories the respondent objects as unauthorized. Rule 23 of the supreme court, in admiralty. provides that the libelant may require the defendant to answer all interrogatories "touching all and singula<r:the allegations in the libel." The interrogatories must be confined, therefore, to the allegations of the libel; that is, to those matters or partioulars that go to make up the item of damage, or that constitute alleged defects, or the particular acts of negligence, or specifications of negligenCe, that might properly be averred in the libel, and are covered by it iti at least general terms. Contracts. bills oflading, or other docin litigation, may be uments, when directly forming the the subject of int\mogatories,and perhaps be required to be produced. But letters passing between the defendants and their agents do not stand in any such relation to the subject-matter of this suit.- If the faot that eertaiu infortnation was:commllnicated to the defendants was material, that might authorize inquiry as to letters containing. such information. But that is not the present case; No averment as respects stich letters, oninyinformution they contain, could here be properly pleaded. The libelant has the right to interrogate the defendant aeto each and every material fact in issue; but the rUle requires the defendant's oath I and his oath 'only, in response thereto. It does not require him to produce documents, much of which would be hearsay, as mere evidence in the libelant's favor, or as a substitute for his own oath as regards the material facts in issue. .Ben, Adm. 670, form 220. That is not, I think, within the intent Qfthe rule. The inspection of documents isadifIerent mat;.. ter, and is obtained, when allowed, by a different procedure, or under different rules. The English practice, which provides for the production of documents in actions at law, equity, or in admiralty, is founded