The Pile Driver No. 2. , 239 F. 489 ( 1916 )

COXE, Circuit Judge.

The act in question provides, in section 13, as follows:

“It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, * * * any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States.”

The facts are fairly stated in the opinion of the District Judge and need not be repeated here. The testimony and admissions of the-claimant clearly established the following propositions: First. On the day in question the pile driver was engaged in repairing tire ferry rack on the south side, at the foot of West Forty-Second street, New York. Second. Lying alongside the pile driver was a raft containing piles which were too long for use and a man was engaged there in cutting them off and shoving the discarded ends into the river. Third. This was done in three instances. He was then hailed by an inspection boat and the third piece was hauled back on the raft. Fourth. The two pieces first thrown overboard were picked up by the patrol boat, one piece being about 50 feet and the other about 150 feet distant from the raft. These discarded pieces were, respectively, about 20 feet and 13 feet long and 7 inches in diameter. Clearly these timbers were or might become a serious menace to navigation. Floating about in the crowded waters of the harbor of New York, in the night as well as during the day, they might easily be caught by the propeller wheels of vessels, thus endangering life as well as property. Unquestionably they were deposited in'the water of the harbor by the agents and servants of the appellant. The catamaran on which the piles lay and the pile driver were both engaged in the same business of repairing the ferry rack. They were so near that a person could step from one to the other. It also appears that the man who threw overboard the obstructions complained of was a member of the pile driver’s crew and was acting undef orders from the foreman in charge of the work. The construction urged by the appellant that the raft or catamaran and not the pile driver is liable, would emasculate the statute and make the enforcement thereof difficult if not impossible. It would only be necessary to carry the discarded pieces to a floating platform moored to the pile driver, and cast .them overboard from there, in order to escape liability. The case is clearly distinguishable from U. S. v. Emperor (D. C.) 49 Fed. 751, where Judge Brown says:

“The dumping before reaching the proper place was by no act, omission, or privity of the tug; hut by the willful and criminal, act of the men on the scows, wholly independent'of the tug, and against the express orders of the captain. It seems to me very clear that neither the captain nor any person on board of the tug, was the ‘person offending.’ ”

In the present case the entire enterprise was under the direction of those in charge of the pile driver. The raft was merely an auxiliary platform; so to speak, because there was no place for the piles on the driver. The man who threw them overboard was a member of the crew of the pile driver, the catamaran had no crew and could not act independently of the pile driver. We think the doctrine of The Bombay (D. C.) 46 Fed. 665, is applicable to the present situation.

The decree is affirmed with costs.

•<§s^>For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests <& Indexes