Patton-Tully Transp. Co. v. Memphis Power Boat Club

DENISON, Circuit Judge (after stating the facts as above). [1] 1. The alleged injuries to the pontoons were by a ship to a floating structure. They constitute maritime torts, and admiralty has jurisdiction. The Blackheath, 195 U. S. 361, 25 Sup. Ct. 46, 49 L. Ed. 236; Atlantic Co. v. Imbrovek, 234 U. S. 52, 34 Sup. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157; The Mackinaw (D. C.) 165 Fed. 351. [2] 2. The boat club did not appeal from the decree finding in fault; but that question must be met and passed before we can decide that it was solely in fault- — which proposition is the basis of the transportation company’s appeal. The place in question was plainly upon the navigable waters of the United States and was also within the limits of Tennessee; the applicable rules would therefore be determined by the state laws in so far as they were not displaced by federal statutes and the admiralty-law. It was claimed that certain Tennessee statutes and decisions forbade a private wharf along the edge of a navigable river, and that therefore the boat club was without foundation of right in maintaining this structure. Whatever might have been thought about this, the Supreme Court of Tennessee, by an opinion filed in May, 1918, in an action as to this very location and between these parties, has expressly adopted the federal rule on the subject, and has distinguished the earlier Tennessee cases relied upon by the transportation company. It therefore becomes necessary to decide whether the boat club’s acts were within the limits which the nature of the stream and the character of its navigation prescidbed for the rights of a riparian owner. The principles involved are too. familiar and well settled to justify discussion. Illustrations may be found in 29 Cyc. 341. [3] We entertain no doubt that the boat club had the right to have a landing stage or floating wharf at and along this.bank for the use of the small boats of its members. A riparian owner’s wharf may extend out to the edge of navigability; but this is a relative term. It does not follow that, because there is a 35-foot channel in a harbor, every riparian owner may wharf out to that channel, regardless of his interest in reaching it, or of the obstruction to general navigation 'which he thereby causes. Particularly must this be true when, as here, the deep-water channel is upon the opposite side of the river, and the building of the wharf to that extreme limit is bound to interfere with the reasonable use of that channel by the boats which must use it. The draft of the tugboats was 4 feet; the draft of the barges, loaded as customary in low water and as actually loaded at this time, was 3y2 feet. The draft of the launches belonging to the members of the club does not appear; but it is shown that they could'be and were drawn up close alongsi4e and some of them even partly upon the bank, and it must be assumed that their draft was much less than 3% feet. It is therefore a reasonably certain inference that the ordinary pur [859] poses of a landing stage or wharf for these boats could have been served, as well as ought to be demanded in this 100-foot stream, by pushing out from the bank not more than one-quarter or one-third across — 25 to 33 feet. This would have left room for the tugboats and barges to go up on tlie west side, occupying 50 feet, or one-half the channel from bank to bank (that being the width of the barge plus 10 feet on each side), and would have left a fair clearance space between this zone of barge navigation and the pontoons. Under these conditions, and making reasonable adjustment of the relative rights of the parties, we are clear that the boat club could not fix its pontoons out any farther into the channel, except at its own risk of injury by the ordinary and reasonably necessary operation of the tugboats and barges passing along. Further, a mere wharf or landing stage is not the thing here involved. Not satisfied with that, the boat club put out a second line of pontoons, extending more than 20 feet further out, making a harbor between the two, and occupying half the river. We therefore must agree with the court below that the boat club was at fault. [4] 3. It only remains to consider whether the tug and barge were operated with due and ordinary care, for, of course, the tug might not recklessly or wantonly injure the pontoons, even if they were occupying water that the relative rights of the parlies did not justify. We find nothing to indicate recklessness or want of ordinary care and skill under the circumstances. It was certainly customary at this locality, as it is said to be generally customary in this class of navigation (see Western Co. v. Inman Co. [C. C. A. 2] 59 Fed. 365, 367, 8 C. C. A. 152), to force a. boat through or over a foot of soft mud on the bottom. The bar in question existed, and it must be crossed, or this traffic must cease — until higher water. There is no claim in the pleadings or in the testimony that: revolving the stern wheel at full speed for a few minutes in an effort to overcome an obstacle is not a common and ordinary incident of such navigation. Whether the barge ahead of the tugboat: actually struck this bar, or whether one corner grounded on the channel bank, is not important. There is nothing to support the. inference of recklessness, except the fact that the injury happened; and when we observe that the boat club had so placed its pontoons that injury was certain, if the tug deviated 20 feet from its ideal line of uavigatixni, the happening of the injury lends no support to the inference. Especially is this true when wc also observe that the injury happened because the pontoon fastenings gave way, 4. The October incident is controlled by similar considerations. Indeed, the relative right of the boat club was rather better in December, after the digging of the channel had thrown the barge navigation zone to the extreme west. 5. There is nothing in the recent decree of the Supreme Court of Tennessee inconsistent with our conclusions; nor is it important that the transportation company al a nearby point maintained a dry dock extending further out than these pontoons. The stream was there much wider. [860] We conclude that the boat club was solely at fault, and the decree below should be modified accordingly. For that purpose it is reversed, and the case remanded.