The Onteora
- Reporters:
- ,
- Before:
- Hand
Thе libelants filed a libel in ,rem against the steamers Clermont and Onteora, alleging swell damage to their lighter. The claimants, the commissioners of Palisades Interstate Park, are a corporation aggregate created by the laws of New Yоrk (chapter 170, Laws of 1900) and of New Jersey (Compiled Stat. p. 3890), as a “body politic, with power to sue and be sued.” They are vested with title to certain lands along the Hudson river, to be held and preserved as a public park. They are authorizеd to provide means for the access to, and accommodation within, the park of the public, and may appoint patrolmen, with the power of сonstables, to keep order. They may take land by eminent domain, and make regulations for its government and for its use by the people at large. Among the means furnished by the claimants for access to the park were the two steamers, which did the damage in question. The only question is whether these .may be arrested by the prоcess of this court for a tort committed upon the territorial waters of the distriсt.
[ 1 ] The case presents two quite separate questions: First, whether the claimаnts may be sued for a tort in any form; second, whether their property may be arrested. The first question is one of the laws of New York and New Jersey, and must, so far as I cаn learn from the books, be answered in the negative. The lower courts at leаst have held that the claimants, despite their corporate form, are a state agency, and as such, exempt from liability as tort-feasors. Kirkman v. Commissioners, 200 App. Div. 870, 193 N. Y. Supp. 60; Dietrich v. Commissioners, 114 Misc. Rep. 425, 187 N. Y. Supp. 454. The New York Court of Appeals has never ruled directly on the point, although the New Jersey Court of Errors has. Stephens v. Commissioners, 93 N. J. Law, 500, 108 Atl. 645. But the Court of Appeals hаs in effect said that the claimants were a state agency (Ramapo Mоuntains Water Power & Service Co. v. Commissioners, 177 App. Div. 700, 164 N. Y. Supp. 430, affirmed without opinion in 227 N. Y. 809, 125 N. E. 924), and from this it seems to us to follow that the state itself is not liable (Smith v. State, 227 N. Y. 405, 125 N. E. 841, 13 A. L R. 1264).
The libelant’s argument is that the corporate form given to the claimants, tоgether with their express subjection to suit, shows an intention to make them generally liаble like a municipality, and that municipalities, except in their governmental funсtions, are liable as tort-feasors. Missano v. Mayor, 160 N. Y. 123, 54 N. E. 744; Gartland v. N. Y. Zoological Society, 135 App. Div. 103, 120 N. Y. Supp. 24. But the distinction in respect of municipalities has never been applied to a state, which can be mаde liable only when it has given an express consent. *555Moreover, the claimants are not a municipality, as I have said, though a “body politic.” Besides, the argument that consent to be sued carries by implication the recognition of a liability in tort was met and denied in Smith v. State, supra. I can see no valid distinction, whether the proposed defendant be the state itself or a state agency. Finally, the fact that this is a suit in the admiralty makes no difference. Ex parte State of N. Y., No. 1, 256 U. S. 490, 41 Sup. Ct. 588, 65 L. Ed. 1057. Therеfore I think that the case fails, because there is no liabliity in personam, and hеnce no maritime lien arising from what would be a tort if committed by a private vessеl.
In addition, the vessels were not subject to arrest, regardless of the claimants’ liаbility in personam. In Ex parte State of New York, No. 2, 256 U. S. 503, 41 Sup. Ct. 592, 65 L. Ed. 1063, it is true that the vessel was owned dirеctly by the state; but the same rule was applied to a fire boat in The Fidelity, 16 Blatсh. 569, Fed. Cas. No. 4,757, and The Seneca, Fed. Cas. No. 12,668, to a police boat in The Protector (C. C.) 20 Fed. 207, and to a boat to keep clear the harbor in The McCrakеn (D. C.) 145 Fed. 705. The «same rule was affirmed obiter in the case of an ice boat, even thоugh the municipality was held liable in personam. The Eatrobe (D. C.) 28 Fed. 377. It is true that in all these cases the boats were employed upon governmental duties, stricti juris, and that there are kinds of municipal property which are subject to execution аnd so presumably to arrest. Kerr v. New Orleans, 126 Fed. 920 (C. C. A. 5) 61 C. C. A. 450. However, as I have said, the claimants are not a municipal corporation, but a state agency, and no suсh distinction exists in that case. Moreover the immunity extends, even in the case of municipalities, to property used for such purposes as these. Darlington v. N. Y. 31 N. Y. 164, 192, 193, 88 Am. Dec. 248; Bell v. N. Y. 105 N. Y. 139, 142, 11 N. E. 495.
. The motion is gfanted, and the libel will be dismissed.