Engineers, for the construction, completion, repair, and preservation of the public works hereinafter named: * * * Improving Delaware River, Pennsylvania, New Jersey, and Delaware: Continuing improvement and for maintenance from Fishers Point to Delaware Bay, eight hundred thousand dollars: Provided, That of this amount so much as may not be required for maintenance of improvement in accordance with the existing project shall be expended for widening the channel at the bends below the city of Philadelphia with a view to securing, so far as practicable, a channel of equal safety and efficiency in all its parts, and with a further view to securing an ultimate depth thirty-five feet, in accordance with the project submitted in House Document Numbered Seven hundred and thirty-three, Sixty-first Congress, second session."
House Document 733, to which the act refers, which was a letter from the Secretary of War transmitting to Congress reports from the Chief of Engineers and division and district engineers with estimates setting forth a general project of improvement of the Delaware river from Philadelphia to the sea. It is true that this document, referring to the section of the channel here involved at Pea Patch Island, says, "No new works are proposed in this section," but it also states, "Any project adopted for this improvement should be subject to such minor modification as may be further desirable in the execution of the work." An entire section of the document deals with the maintenance of dikes and points out that the construction of dikes is a necessary supplement to the work of dredging in maintaining a deep channel.But, apart from the precise language of various parts of the report, it is perfectly obvious from a reading of the whole that what Congress had before it and what is approved as a general project for the opening and maintenance of a channel from Philadelphia to the sea. It is equally clear that it was the intent to commit the Secretary of War a considerable discretion as to the details.
A reference to subsequent House Documents which were before the Congress when it made subsequent appropriations bears this out very strongly. Thus in 1924 the Rivers and Harbors Committee by resolution requested the Board of Engineers to re-examine and review the whole project set forth in House Document 733. Five years later on July 27, 1929, the report so requested was filed in a letter from the Chief of Engineers to the chairman of the Rivers and Harbors Committee, transmitting reports of the Board of Engineers and division and district engineers. In it the Pea Patch Island dike was included in the "program of training works recommended to reduce the cost of maintenance of the Delaware River between Philadelphia and the sea and to shorten the time in which the maintenance will reach a satisfactory status" and an estimate of $1,080,000 was given as the cost of this work. The view was expressed by both the Chief of Engineers and the Board as well as the district and division engineers that an extension of the system of dikes originally proposed did not require the further affirmative authorization by Congress, all of which was set out in the report.
With this document before it, Congress appropriated sufficient money to cover the work in the General Appropriation Act of 1930. Of course this was a lump sum amount and did not specify the purposes, but it was based on the estimates of the Chief of Engineers which went to Congress and which included money for this particular item.
Thereafter annual reports of the Chief of Engineers showed the progress of the work and were followed by annual appropriations under similar conditions. These appropriations were, inferentially at least, a legislative interpretation of the scope of the original act and the extent of the discretion delegated to the Secretary of War.
I can add nothing to the discussion of the principles of law involved which appears in the opinion of the Circuit Court of Appeals for the Seventh Circuit in Ryan v. Chicago, Burlington & Quincey Railroad Company, 59 F.2d 137, with particular reference to the decision of the Supreme Court in South Carolina v. Georgia, 93 U.S. 4, 23 L. Ed. 782.
IV. When the Gansfjord Case, 25 F.2d 736, 737, came to be heard on the merits, the District Court found that the allegations of negligence in the libel were sustained, but went on to say that those allegations were immaterial, that the plain meaning "does not make the vessel's liability for damages for defacing, destroying, or injuring such property depend upon proof of willful or malicious intent, or negligence or want of skill, nor does it permit of a defense that the collision with the shore resulted from a mere mariner's error of judgment." In view of the nature of the action and the terms of the statute, I am inclined to agree with this view, but, since there was plainly negligence in this case, I shall deal with it in the same way that the District Court in the Gansfjord Case did, and hold that, if the question of negligence is material under the statute, the damage was entirely due to fault on the part of the Barbara Cates.
Findings of Fact.
Pea Patch Island lies to the west of the channel of the Delaware river. The dike extends northwardly from its northern end, a distance of over two and one-half miles curving from west to east generally in the arc of a large circle and conforming to the bend in the river at that point. Vessels going up the river pass Pea Patch Island on the Newcastle Range. About a mile above the northern end of Pea Patch Island Newcastle Range turns into Bulkhead Bar Range, a short reach of about half a mile and a turn of about eighteen degrees. The next turn is into Deepwater Point Range thirty-three degrees toward the east.
The Barbara Cates, having reached the upper end of Bulkhead Bar Range, failed to turn on Deepwater Point Range, but continued on, changing its course about one point to starboard, and, not observing the dike until too late, ran into it.
I cannot accept the pilot's statement that the Bulkhead Bar Range lights were so blinding that he was wholly unable to see ahead of him. He said: "They flashed right down on the deck of the ship. They mesmerized you. It was impossible to see two feet ahead of the ship. The lights were too powerful." No doubt the lights were powerful, but this statement is clearly an exaggeration, as the Bulkhead Bar's forward range light would be over a mile and a half away. I believe the lights on the dike were visible. In addition, there were other aids to navigation which were not availed of. The entire reach of the Bulkhead Bar Range in the navigable channel is covered by an occulting red sector fixed light. As soon as the ship gets out of the red sector light, the pilot must known that he is at the intersection of the two ranges and that a change of course of some thirty-two degrees is necessary in order to get upon the Newcastle Range.
Even accepting as competent the evidence that after the accident the government reduced the power of the Bulkhead Bar Range lights and increased that of the lights on the jetty, it by no means follows that the pilot could not have seen the jetty lights had he been observant.
It may be that the cause of the accident was, as the pilot testified, his mistake in taking a flashing white buoy at the northerly end of Deepwater Point Range and on the west side of the channel for the forward Deepwater Point Range light, and that the reason he failed to make the turn was that he was expecting to pick up the rear range light. But I do not believe that the haze on the Jersey side entirely obscured the Deepwater Range lights, and I think that the pilot's mistake was simply an error of observation on his part.
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