Red Star Towing & Transportation Co. v. Snare & Triest Co.

NOYES, Circuit Judge (after stating the facts as above). We may assume at the outset that the grant of authority to obstruct permanently the navigation of the stream by the building of the bridge was broad enough to permit its temporary obstruction by the storage of necessary materials. We may take it for granted that the respondent is right in contending that it was authorized to place the piles at the location in question. But authority to obstruct a navigable stream by building the abutments of a bridge which can be seen and! avoided, is not authority to leave such abutments when unfinished and below the surface of the water without any mark or warning. Authority to obstruct navigable [673] waters by building a breakwater is not authority to leave the new construction without a light. Harrison v. Hughes, 125 Fed. 860, 60 C. C. A. 442. Authority to store piles at the side of a creek or river is not authority to allow them to remain submerged at high water without any buoy or other mark. In other words, it does not follow from the fact that the respondent was authorized to place the piles where it did that it owed no obligation with respect to them. On the contrary, it was bound to so mark them that vessels navigating the creek would not run upon them without warning; and, in our opinion, this duty was not affected in the slightest degree by the fact that the piles were placed between high and low watermark. They constituted an obstruction to vessels navigating the creek at high water and such vessels were entitled to protection. In our opinion also the respondent failed in the performance of its duty to mark the piles. No buoys were placed over them and we are not satisfied that there was anything at high tide to indicate their presence. If there were any floating piles, they were insufficient to serve as a warning. They would not show that others were hidden and, in themselves, were not especially dangerous. The respondent was guilty of negligence. With respect to the claim of negligence on the part of the vessel: There is no proof that the master of the tug had any actual knowledge of the submerged piles, and we do not think that he was charged with notice of them. He testified that he had navigated at that place only at high water. He was hardly bound to know of a temporary obstruction of this nature. The decree of the District Court is affirmed with interest and costs.