The Senator , 54 F.2d 420 ( 1931 )

NIELDS, District Judge.

The Eendle Corporation filed its libel in rem against the steamship Senator for damages to a certain structure or dike being built by libelant under contract with the United, States government in the Delaware river, running in a northwesterly direction from Pea Patch Island. The claimant has filed, exceptions to the libel, as amended, raising the question of the jurisdiction of the court. The exceptions admit, for the purpose of present consideration, the facts well pleaded. The Schuylkill (D. C.) 249 F. 781; The Augustine (D. C.) 8 F.(2d) 287.

The libel, among other things, alleges: “ * * * The said steamship ran on to and collided with the, said dike or structure which the said libellant was erecting for the United States, to serve solely as a Government aid to the navigation of the said Delaware River. * * * That upon completion of the said dike or structure, it was to be used solely as a Government aid to navigation as aforesaid, and had no other purpose or function. * * * That the said dike or structure had no connection with commerce on land, either actual or anticipated, and was not at any time joined to the land of either of the shores of the states of Delaware or New Jersey, but on the contrary, was completely surrounded by the navigable waters of the said Delaware River, although the piles comprising said dike were driven into the bottom or bed of said river and in that way only attached to land.”

These allegations bring the ease fairly within the doctrine laid down by the Supreme Court in The Blackheath, 195 U. S. 361, 25 S. Ct. 46, 49 L. Ed. 236; The Raithmoor, 241 U. S. 166, 36 S. Ct. 514, 60 L. Ed. 937; Doullut & Williams Co. v. United States, 268 U. S. 33, 45 S. Ct. 411, 69 L. Ed. 832.

The claimant relies on The Panoil, 266 U. S. 433, 45 S. Ct. 164, 69 L. Ed. 366. The determining factor of admiralty jurisdiction in cases of this kind is the locality of the tort, the nature of the structure, and its use. Whether the principle of law applied by the Supreme Court to the facts in The Panoil Case is applicable to, and controlling in, the decision of the case at bar, can be determined only after full hearing.

The exceptions will be overruled.