ASSANTE fl.

00.

AssANTE 'V. CHARLESTON BRIDGE CO.

et ale

(DiBtrfct Cowrt, D. South Oa'1'o1tlma. January 25, 1890.)
NAVIGAIlLE WATERS-BRlDGllS-WIDTH OF DRAW.

A bridge companywaslncorporated by the legislature of South CaroUnawith authority to build a bridge across Ashley river, "and there shall be a draw in said bridge in the channel of the river in such place as the same is deepest and most easily navigable, not less than 80 feet wi,de, for the passage of vessels through said bridge." Held, that if the bridge be not built directly across the current, perpendicular to it, then it must leave a clear width of 30 feet open across the channel, estimating with reference to its curve and the obliquity of the bridge.

In Admiralty. Petition for rehearing decree. J. P. K. Bryan, for libelant. MUchell & Smith and John F. F'ickin, for. respondents.
::)IMON'l'ON, J. This was a libel in personam against the bridge com pany and the owner of the tug. The latter was engaged in towing the brig through a draw of the bridge, when the brig collided with the fenders of the bridge. The decree filed 10th December, 1889, (40 Fed. Rep. 765,) stated that it was impossible to decide, from the conflicting evidenceof unimpeached witnesses, whether the collision was not due to a sheer made by the brig, sudden, unexpected, and not accountedfQr; that, if it were due 1.0 this sheer, the tug was not responsible; that for the same reason no de{)ree could be made as to the lawful character ofthe bridge. The libel {)harged that the draw of the bridge was made obliquely across the current; that this Was unlawful, and contributed to the collision. The decree proceeded upon the idea that, if the collision was due to the sheer, the brig alone was in fault. The accident, therefore, would not have been caused by the conduct of the tug, nor by any obliquity the bridge. The jpdge not being able to say from the evidence that it was not due to the sheer, the libel WjlS dismissed. The libelant files his petition for a rehearing ofso much of the case as relates to the bridge. It proceeds.on this ground: If the bridge is not lawfully constructed, it had no right to be where it was in the channel of a navigable stream; that had it not been there the brig would' have escaped collision with it, even if it did sheer. Thus, being there, It contributed to the injury, and, if, unlawfully there,must bear its share of the damages. Atlee v. Packet Co'" 21 Wall. 394; Jolly v. Draw-Bridge 00.,6 McLean, 246. I feel the force of this argument, and have heard counsel on the point suggested. Is this ,bridge lawfully constructed? It is across a navigable stream of the United States, but, in the absence of legislation by congress, states may authorize bridges across navigable streams by statutes 80 well guarded as to pro. tect the substautial rights of navigation. Gilmuin v. Philadelphia,.3 Wall. 713. Or, as it has been put,no state can permit an the navigable waters of the United States. But. although every bridgehav;. ing piers ex neeeB8'itate is more or less an obstruction, still it may be built

if a is resetlved of sufficient width for the purposes of foreign and domestic .passage the draw affords. See, also, Jolly v. Dmw-Bridge Co., 6 McLean, 242. In Transportation Co. v. Chicago, 107 U. S. 687,2 Sup. Ct. Rep. 185, this discussed. The distinction between navigable streams lying between or passing through several states and such streams lying wholly within a:single state is clearly drawn. :As to this latter class,among which is the the rule is laid down that the legislature of a state can impose such regulations and limitatiOllsllJ>on the of obstructions in navigable streams wholly within its limits as might best accommodate the interests of all concerned, until congress shall ,,* * * Bridges over navigable streams which are entirely within the limits of a state are of this class. The 10- . cal authority can better "appreciate 'their necessity, andean better direct the manner in which they shall be .usedand regulated, than a government at a distance." We look; then, to the legislature of the state, and especially to its provisions as to the draw. these being the means adopted by the state to prevent an unla,vfulobstruction to navigation. The Charleston Bridge. Company.wasincorporated by an act of bly of South Carolina in December, 1808, with authority to build acro$S Ashley river a bridge at least :25 feet wide," and there shall be a draw on said bridge in the channeLof the river in such place as the same is deepest and most easily navigable. not less than 35. feet wide, for the passage of vessels through said bridge." 9' St. at Large S. C. 434. In 1810 the act was amended making the draw 30 feet. Id. 449. The word "across,'l used in an act" like this, has received construction. Used.alone, it means "straight across,"-neither obliquely nor diugonally. Hannihal. Jc St. J. R. Co. v·. i8sO'WTi River Packet 07., 125 U. S. 260,8 M Sup. Ct. Rep. 874. If this bridge built directly across this ri ver, the draw must be in the clear, between the pivotal pier and the other piers,at the feet. ld., 125 U. S. 267, 8 Sup. Ct. Rep. 878. 'If, however, the bridge be notbtliltdirectly across the current, dicular to it, then itm uat leave a. clear width of 30 feet open l1cross the Jlhannel, estiulating with reference toitsourve and the obliquity of the bridge. ColumbUs Insurance Bridge Aas'n, 6 McLean, 72; Jl1a1llliibal & St. R. Co. v. Mi&9ouri River Packet Co., 125 U. S. 269, 8 Sup. Qt. Rep. 879. Thedraw-eachdraw-of this bridge is 76 feet. In ordetitoascertain whether there isa clear width of 30 feet open across the channel, estimating with reference to its. curve and the obliquity of the bridge, "we must know the angle, if any, made by the current with the pier of the bridge," especially aUhree.quarters flood. But one witness speaks to this point on the part of. libelant. Most of them say that the cul'tlmt l'UDS under the bridge at an angle, without giving its size. One of thePl' puts the angle at 40 degrees, but does not state the time or character dHh6itide., The ona witness who speaks to the point directly is Capt. Brown" of the light;.bouse steamer Wisteria. He formed his conclusion from an· experimenl made with,a chip on the morning on which he gave liiSitestim"ony;: ,He visited the bridge forthe purpose, gotthereatthree.-

THiI: CASSIUS.

fq'tiarters and threw a chip overboard. He conclude(t that the' current passed under the bridge at that stage of ·the tide \vitb a velocity of '2to 3 knots an hour, and at an angle 0[·20 to 22; H to 2points of the compass. Reis an excellent witness, and worthy,of all credit. On the 'other hand, Mr. James Allen,assistant engineer in the coast survey', made a careful experiment with all appliances, at this bridge, at various . stages of the tide, including· three-quarters flood. He found little or no current at that stage ofthe flood-tide, and its direction'was,as fa-r-as he 'could observe, parallel to the pivot pier. He also, is a: man of character and ability. It is manifest that the current vanes attimes, depending on the Winds, and perhaps the' character, ofthe tides, n¢8.p-tides, ordinary tides, The bridge itself is in evidence, and has been exarrtioed. I' prefer,however, further evidence on tb6lle two 'points: What ie' the angle, if any, that is made by the current of AShley river with this bridge at three-quarters flood-tide? Allowing for this angle, what is the clear width open across the channel, estimating with referEl!1ce totheobliquity,ofthe bridge? Letthe:caae be referred to Mr· .Seabrook ,fQrthis purpose. :
,

'

. THE CASSIUS.

CHARNOQK

(Cf,rcuitCO'Urt,

,

111. D. Louiltlana.January 24; 1890.) -.

.;

".

·1. iAnMIltALTY--A:l'pBAL-EmrnQT.. . .."" , , .. : , ' 'By frOID,;the a libelant opens ,thEl,w);lole c&se,alld be allowed to cIaim,tha bimeJlt of the decree beloW', and also try hill fortunes J.1l the circll,it court.-; FollQwing ·The Hesper, 18 Fed. Repl61l6.· . .', ;, 9. B.um-CoBTs. .' . : . .. ; . ' . ' ' . . .' .. . Rev. St. U. S. S. 008, providing that where "a libelant, upon b.fS own appeal, recovers less than three hunC1reddollars, exclusive pf costll, he shall not be allowed, but at the discre.tionQUheC9llrt may De adjudged to plly,.costll." relates to wi the costs dected by the

In Admiralty. Ap'peal from district court. Miller cfcJi!inruw, for libelant. HOT'M1' &: Lee; for claimant.
PARDEE, J. . The case sho.wsthat the libelant had '8 consignment cif 8,800 bundles of cotton ties ,by the steaml.shipCassius.Ator:about time of arrival, he sold the entire consignment to four different pallties, to-wit:. Te:>'-Richardson& May, 500 bundles; to Bryan &Mi1e&, 300 .bundles William Dillon, 4, 900 bundles; and to Messrs. H. & O. Newman, 2,900 bundles. These purchasers gave orders for these oottonties in 10tstodiffel'ent persons, some to be delivered· for shipment by·rail. road,others to various merchants in the city, and some to their respootive wa:rehouseit :Thepraeticeoheceiving and: delwenng,the dottontles was to send orders through draymen, to whom, on presentation ofth&mders,