THE aTY OF RICHMOND. '
85
against the ship alone, or against the master alone, or the owne1'8 alone. Though under this rule contemporaneous or successive different Buits may be brought against the different defendants named, so far as may be necessary to procure satisfaction of a legal demand, (The Normandie, 40 Fed. Rep. 590, and cases there cited,) in my judgment it was not the intent of this rule to admit of any such successive suits against the different defendants named after an adjudication in rem, upon a full and impartial hearing, that there was no such collision liS alleged; but the opposite intent should rather be inferred. On these several grounds the exceptions to the plea of res adjudicata are therefore overruled.
THE CITY
OF RICHMOND.)
UNION TEL. CO. v. INMAN & 1. S. S. CO., Limited. INMAN &
r. S. S.Co., Limited, V.WESTERN UNION TEL. Co. (District Oourt, B. D. New York. June 24, 1890.)
OBSTRUCTION TO NAVIGATION-TBLEGRAPH COMPANy-SUBMARINE CABLBB-NAVIGABLJI MUD.
A telegraph company, wb,ose submarine cables are laid in the soft mud or sUt at the bottom of a navigable river, in such 8 manner as to interfere with vessels, Which' are accustomed 'to plow through the mud in'their movements about the docks, thereby obstructs navigation, contrary to the provisions of Rev. St. U. S. § 5263, which authorizes any telegraph company to lay telegraph lines "over, under, or'across the navigable streams and waters of the United States,." 'provided they are "so constructed and maintained as not to obstruct the navigation of such streams or waters, II and is answerable for damages thereby caused to vessels.
In Admiralty. Action by the Western Union Telegraph Company to recover for dam'fl.ges to its submarine cable8. Cross-action by the owner of the City of Richmond to recover for injury to the propeller of that steam-ship, damaged by cont,act with the submarine cables of the telegraph company. Dlllon Swayne, for respondents. Biddle Ward, for libelants. BROWN, J. The above cross-libels were filed to recover the damages sustained by the respective parties through the fouling of the propeller blades of the steamer City of Richmond with the submerged telegraph .cables of the Western Union Telegraph Company a little outside of the end' of the pier of the Dutch Steam-Ship Company at Jersey City, in the North river, on the 19th of August, 1887. The telegraph company had 21 cables running under the North river at Cortlandt street, New York. connecting with the wires at Jersey City. The cables were run under the stringers .of the pier. and made fast to several spiles under the pier at about l(Jw1Reported by Edward G.Benedict, Esq., ofthe New York bar.
feet insida:ofthe exterior' end 'of' the: pier" t1,l;e New York.' end" being· reeled, off ,from; a' drum towards the Jersey side. Whenbroughtto the spill¥lundlOir they were p\11h:d in as tightly as fiveor8ix men couJd pull them,: and then made fast. , '. The North river are constantly depositing more or less of, a fine sediment. The deposits are n108t copious on the Jersey side, whElre; "slight bank of mud is thereby formed in fropt of the piers in qlJestion, and at alittIe ,dista;nce' from them. The deposits are of ev-ery degree QCco.nsistency, frOm ,muddy water down to the. solid be<;l oUha river. It is the ordinary practice for vessels of deep dr,aught, in going in and out of the slips in that vicinity, to plow more or less through this navigable mud. On the 19th of August, 1887, the City of Richmond, having just arrived from Liverpool, that her slip, which was immediately below the Dutch pier above referred to, was full, so that she could not then get a berth, rounded to in the flood-tide, and landed her cabin passenglm, at end bfth4 pier below, and then pioceeded to ,back away from the end of the pier, in order to come to an anchorage for the purpose of transferring her steerage pasSengers, bound. foreasde Garden. While backing through this mud, her keel and propeller blades caught the cables,running through the. mud,' and ,became badly entangled in them. of the were ,prok;en. Some bepame so firmly, woundaroun<1 the propeller and shaft that it was necessary to dock the steamer in Qr<;ier, herdllrilage"as aHeged, of $2,000. The cost, of repairing the· cables' is alleged to be $10,789; and the telegrapQ company Glainis$50;OOO hi addition for the loss of the use of the same during 16 days. ' 'The act 24, 1866, (Rev. U. S. § 5263,) authorizes ariytelegrapJi compiuiy to "construct, maintain, and operate lines of telegraph over, under, or across the navigable streams or waters .of.the tInitedStates," provid.edthey; and, maintained as not te)pbstruct the nllvigatiQt,l such streapls o!'waters." The libel of the .company ,the, cables.were "laid, and maintained bed of .nottointerfere with the navigation. of said stream;" that the location ang tlSeof the cables thus laid were well known to the owners of.the steamer,tpeir agentsaijd serv/'\utsj and that their loss and damage were caused by the steamer's wrongful and na;v·jg{lte-iu the of said cable!> when the tide there was to float her w1tlloutcoming in· cqntnet .the bed; J)f the streaJIl. The libelaud 8!W\v,er ;of the steam-,ehipcompanylj.1,l,ege ,that the place, Wllere the cables · w:ere, i1a,1.d is, used; engaged in comtperce and navigation '!),D,tpe Hu.dson riYCr; aud that, Qrlar,ge size and deep draught, the saldca,bles. werl}, and wHh. ,npthi,Dg. to, Jay; that the steamerwaa managed with all proper care, and tbat the loss was caused by the wrongand bythe;earel!3ss and im'ful obstruction of .fl;<)ID 0 ,. · ',,' ·
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.