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J.W. PETERSEN COAL & OIL CO. v. UNITED STATES

April 8, 1970

J.W. PETERSEN COAL & OIL CO., AN ILLINOIS CORPORATION, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT AND CROSS-CLAIMANT, AND DUNBAR & SULLIVAN DREDGING CO., A NEW YORK CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Austin, District Judge.

  MEMORANDUM

J.W. Petersen Coal & Oil Co. (hereinafter referred to as Petersen) is and has been, since prior to June 1966, the owner of certain real estate situated along and under the North Branch Canal of the Chicago River. For many years this land has been used by Petersen as a coal storage yard in connection with its business of selling and transporting coal to various consumers in the Chicago area. Petersen constructed and has maintained a wooden dock for receiving coal transported on the Canal to be unloaded in Petersen's coal storage yard. In June 1966, the United States Army Corps of Engineers awarded a contract to Dunbar & Sullivan Dredging Co. (hereinafter referred to as Dunbar) for dredging the Chicago River and the North Branch Canal for the purpose of increasing the navigability of the North Branch Canal. The performance of this dredging operation, Petersen contends, caused a general movement of the soil supporting its dock which eventually resulted in damage to the entire dock.

Petersen filed this suit against Dunbar and the United States predicating its claim against the United States on the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The United States has moved to dismiss for lack of jurisdiction of the subject matter. It contends that jurisdiction over the subject matter is in admiralty as conferred by the Admiralty Jurisdiction Extension Act, 46 U.S.C. § 740. The United States has consented to be sued under the Suits in Admiralty Act, 46 U.S.C. § 741-752, and therefore jurisdiction against the United States under the Federal Tort Claims Act is specifically excluded under 28 U.S.C. § 2680(d). The case must now be dismissed, the Government contends, because Petersen has presented no claim in writing to the federal agency involved six months before instituting suit as 46 U.S.C. § 740 requires. The point is an important one because if the Government is right then Petersen will be foreclosed from any further remedy against it because the statute of limitations under 46 U.S.C. § 745 has run.

The court concludes that some of the alleged activities of the Government may well give rise to admiralty jurisdiction under 46 U.S.C. § 740 but that under the present record the Government involvement in the actual operation of the vessel is too uncertain to conclude that a remedy is provided under the Suits in Admiralty Act. The motion will therefore be denied and the court will add its views on the issues involved in order to guide the parties in further proceedings in the case.

I. Pleadings on United States Activities and Involvement in
    Connection with the Dredging Operation.

The pleadings and briefs on this motion are in conflict as to the part the United States played in the actual dredging operation and the parties themselves take inconsistent positions on the issue. The complaint alleges that "according to the contract terms the United States had the right to control Dunbar during the dredging operation and that inspectors and agents of the United States were physically present on Dunbar's vessel during dredging operations."*fn1 The Government in its answer denied this statement but did say that it provided maps giving the approximate locations of certain submarine cables in the river. The Government in its amended answer containing a cross-claim against Dunbar alleged that the dredging operations were all under the immediate custody, control, direction and supervision of Dunbar. In its answer to the cross-claim, Dunbar admitted the dredges, gear, and equipment were under its control but further stated that the supervision of the dredging operations was carried on by the United States pursuant to the terms of the contract. Petersen, in its memorandum of law in opposition to this motion stated that on further discovery it had learned that Dunbar actually operated the dredge but that the Government had prepared plans and specifications and had a government inspector aboard to assure compliance.*fn2

II. Admiralty Jurisdiction under 46 U.S.C. § 740.

If the Government did at least supply Dunbar with maps and information as to the depths of the river or specifications as to where the dredging was to be done then admiralty jurisdiction under the Admiralty Jurisdiction Extension Act would be proper.

It is not contended that a dredge such as the one involved here is not a vessel, see Ellis v. United States, 206 U.S. 246, 27 S.Ct. 600, 51 L.Ed. 1047 (1907); 1 Benedict, Admiralty 112-113 (6th Ed. 1940) and cases cited therein, or that the Chicago River is not navigable water. Petersen's main contention for denying the application of admiralty jurisdiction is that the alleged tortious conduct of the Government took place on land and the injury occurred on land.

1. Occurrence of tortious conduct on land.

Traditionally admiralty jurisdiction over torts has depended on whether the injury was inflicted upon navigable waters, irrespective of where the wrongful acts or omissions occurred. And there must be some relationship between the wrong and some maritime service, navigation, or commerce on navigable waters. 1 Benedict, Admiralty 351 (6th Ed. 1940); Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967); O'Connor & Company v. City of Pascagoula, Mississippi, 304 F. Supp. 681 (S.D.Miss. 1969).

  In Dunn v. Wheeler Shipbuilding Corporation, 86 F. Supp. 659
(E.D.N.Y. 1949) a crewman of a vessel was killed when it capsized
and sank. His administrator sued the manufacturer of the vessel
and the marine architect who designed and prepared the plans and
specifications for the building and construction of the vessel
alleging negligence in

their respective functions. The court said "that which the libels
portray is clearly a maritime tort, i.e., the alleged error in
design, although originating on land, became manifest, if at all,
upon the high seas." In Hess, Inc. v. The Arizona, 149 F. Supp. 733
 (S.D.N.Y. 1955), aff'd 242 F.2d 706 (2nd Cir. 1957) a vessel
attempting to dock ran aground and collided with the dock doing
damage to both vessel and dock. In his libel in admiralty the
vessel owner recovered from the dock owner solely on the ground
that the dock owner had supplied him with an erroneous sounding
chart which had caused the vessel to ground.

In both of the above cases admiralty jurisdiction was proper even though the wrong, supplying some incorrect information or design, occurred on land. The injury, however, was inflicted at a spot otherwise within admiralty jurisdiction and the tort was maritime in nature. See also Patel Cotton Co. v. The Steel Traveler, 111 F. Supp. 821 (S.D.N.Y. 1953); Todd Shipyards Corporation v. ...


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