236 F. 289 | D.N.J. | 1916
During the year 1910, or thereabouts, the city of South Amboy laid a sewer pipe, about two feet in diameter, from the foot of Henry street in that city out into the Rari-tan Bay, one of the navigable waters of the United States. For almost its entire length the pipe was laid parallel to and about 3J4 feet distant from a pier or dock, which had been theretofore erected by the city. The pipe was not buried in the bed of the bay, but merely rested on the bottom, and consequently protruded up into the water a distance practically equal to its diameter. At high tide nearly all of the pipe was submerged, but the amount under water at low tide depended, very largely, upon the direction of the wind and the condition of the weather. It had been the custom for many years for owners of small boats and vessels to anchor them in and about the bay near where the pier and pipe were located. The libelant owned a small power boat, and had for some time so moored it to a buoy, which was fastened to. an anchor imbedded io the bay, at a point distant about 500 feet southeasterly from the pipe and dock. There is no question but that the boat was properly and securely anchored,
The pipe, therefore, by reason of its location in ,navigable waters constituted an unlawful obstruction to navigation, and undoubtedly the respondent would have been liable for any damages sustained by one whose boat, while being properly navigated, came in contact with it, provided that due and proper warning had not been given of its existence and location. The Steam Dredge No. 6 (D. C.) 222 Fed. 576, 579; North American Dredging Co. v. Pacific Mail S. S. Co., 185 Red. 698, 107 C. C. A. 620 (C. C. A. 9th Cir.); Omslaer v. Philadelphia Co. (D. C.) 31 Red. 354; Blanchard v. Western Union Telegraph Co., 60 N. Y. 510.
It is necessary, therefore, to determine whether the proximate cause of the injury was the respondent’s act in laying the pipe as it did. It was certainly the efficient cause, because without it the injury would not have happened; and I think the injury was one which, in the light of attending circumstances, ought reasonably to have been foreseen as likely to occur. The respondent was charged with knowledge that it was the custom to moor boats roundabout where libelant moored his, and that it was entirely lawful to do so; that storms frequently occur of such violence as to tear any boat, situated as they were and had been for years, from its moorings; that certain winds and tides would necessarily cause a boat, so torn loose, to drift towards the pipe and the pier; that, if the water were of the proper depth to carry the boat over the pipe, its progress would be arrested and the boat held, as by a vise, between the dock and the pipe; and that in a storm of sufficient violence a boat thus caught would be injured, by pounding against a protruding joint of an iron pipe, to such an extent that in all likelihood she would sink. The injury was, therefore, the proximate cause of the respondent’s act, and one which ought reasonably to have been foreseen as likely to occur.
As respondent, under the decision of the Supreme Court in Workman v. New York City, 179 U. S. 552, 21 Sup. Ct. 212, 45 L. Ed. 314, is unable in admiralty to avail itself of the immunity granted by the laws of New Jersey to municipal corporations from responding for injuries caused to others in the performance of governmental duties (if the act of building this sewer comes within such exemption, which I do not attempt to decide), it follows that the respondent
The libelant is therefore entitled t.o a decree for $500, with costs.