or frequent, or only occasional, as emergencies may compel her, seems to me to constitute an obstruction.'" 28

§ 77. Post Roads Act - Cables - Burden of proof as to obstructions to navigation. We have seen in a prior section when a cable under waters is a prima facie nuisance or obstruction to navigation.29 It is also true that where a vessel is properly navigating at a particular place, where it has lawful right to navigate, and is injured by contact with submarine cables, proper care being exercised, and those in charge of the vessel having no knowledge or notice of the location or position of the cables, the burden of proof is upon the cable company to show that said cables do not, as laid, constitute an obstruction to navigation.30

$78. Post Roads Act-Vessel proceeding by her own power is navigating. A vessel proceeding by her own power is navigating, even though she has reversed her screws and is going stern first through navigable mud, and maneuvering so as to anchor at her pier.31

§ 79. Notice or knowledge of cable crossing-Statutes.There are certain Code provisions by which the owner of a vessel is liable for damages for breaking, injuring or destroying a subaqueous cable by dragging the vessel's anchor, if notices of cable-crossings are put up, indicating such place of crossing, and the telegraph or cable company may recover in case of injury.32

§ 80. Commerce - Navigation-Notice or knowledge of cable crossing. In an English case, a Swedish vessel, in the ordinary course of navigation, dropped anchor where it had a right to drop it, and in getting it up it became entangled with

28 (The City of Richmond) Western Un. Teleg. Co. v. Inman & I. SS. Co., Lim., 43 Fed. 85, 3 Am. Elec. Cas. 556, 560, per Brown, J. 29 See §§ 73, 74, herein.

30 Western Un. Teleg. Co. v. Inman & I. SS. Co., 59 Fed. 365, 4 Am. Elec. Cas. 641, 644, affg. S.

C., 43 Fed. 85, 3 Am. Elec. Cas. 556. See §§ 73, 74, herein.

31 Western Un. Teleg. Co. v. Inman & I. SS. Co., 59 Fed. 365, 4 Am. Elec. Cas. 641, 644.

32 Cal. Civ. Code, §§ 537, 539; Wash. Hill's Ann. Codes, §§ 1562, 1566; Ballinger's Annot. Codes & Stat., §§ 4370, 4374.

a telegraphic cable at the bottom of the high seas, lawfully placed there, and said cable was damaged, or as set forth in the declaration, "dragged, injured, and broke." In discussing the effect of the pleadings, the court said that a foreigner was not bound, before casting anchor on the high seas, to inquire whether there was a telegraphic cable at the bottom which might be injured by the exercise of his natural right. The case, however, was narrowed down to one of negligence. It was also declared that the knowledge of the vessel's navigator as to the position of the cable was one for the jury.33 Under a Federal decision, where there is no notice or sign put up at a cable-crossing, and neither the pilot nor a ship's navigating officers have knowledge of the position or presence of submarine cables, and there is no evidence of any malicious disregard of property rights, and the vessel is navigating in a proper manner at a place where she has a right to be, she cannot be held responsible for injury to cables caused by collision of her keel and screw therewith, and even if the officers have knowledge that submarine cables are at the place, they have a right to assume that they are so constructed, laid and maintained as not to interfere with navigation.34 Nor does the knowledge. of the fact that other vessels on other occasions have felt submarine cables, and received no injury therefrom, impose upon navigators the duty of changing the structure of their vessels or of navigating them at their own peril, or of feeling the way over the cables to avoid a collision. The rule differs from that which would govern in the case where a vessel is knowingly or carelessly run into a known or foreseen danger.35 So the

33 Submarine Teleg. Co. v. Dickson, 15 Com. B. (N. S.) 759, 10 Jur. (N. S.) 211, Allen's Teleg. Cas. 229.

34 Western Un. Teleg. Co. v. Inman & I. SS. Co., 59 Fed. 365, 4 Am. Elec. Cas. 641, 646. In this same case in the District Court, the question of notice or lack of notice of the existence of the obstruction was raised, but the decision was placed on another ground; (The City of Richmond)

fact that there is no notice or warning, showing the location of a submarine cable, does not excuse a vessel from liability for damages to said cable, occasioned by anchoring in a prohibited portion of a river.36

§ 81. Contact with submarine cable or telegraph - Degree of care of vessel. Where a vessel has come into contact with a submarine cable or telegraph, the navigators and officers are bound to exercise their rights so as not to injure the same, or if some degree of injury is unavoidable, this will not justify negligence in freeing the cable. And judgment will be rendered for the cable company where its cable is lawfully placed under navigable waters, if there is negligence or carelessness or want of due and proper care in disentangling or freeing a cable from an anchor or other part of the ship or its equip ments.37 So it is held that "The law requires that each party should exercise his right so as if possible to avoid a conflict. with the right of the other. It was the duty, therefore, of the ship to disentangle, if possible, her anchor from the cable without injuring it. She was bound to apply ordinary skill, and to take the time necessary for this purpose, unless she thereby exposed herself to present or imminent peril." In this case the ship was not in present or imminent danger, the cable might, by ordinary care, skill and proper management, have been freed from the anchor without damage to either, but it was cut in two by the mate, acting under the master's orders. The ship was condemned in damages and costs.38 The above rule is based upon the fact of actual knowledge of the contact. But in a Federal case, an ocean steamer was near her pier

Hun (N. Y.), 84, a case of liability of a municipality for accident caused by obstruction in the highway. Also cited upon the point that a violation of the implied restraint created by statute creates a legal subject of redress, and applied to the erection and maintenance of telegraph poles beyond the size and height authorized by statute; People V. Metropolitan

Teleph. & Teleg. Co., 31 Hun (N.
Y.), 602.

36 Bell Teleph. Co. v. The Rapid, 5 Can. Exch. 413; Rapports Judiciaries De Quebec, 12 C. S. 37.

37 Submarine Teleg. Co. v. Dickson, 15 Com. B. (N. S.) 759, 10 Jur. (N. S.) 211, Allen's Teleg. Cas. 229.

38 The Clara Killam, 3 Adm. & Eccl. 161, Allen's Teleg. Cas. 557, 3 Maritime L. Cas. 463.

and was being propelled stern first in a place where the vessel had a right to be. "None of the officers, who were at their respective posts, and attentive to their duties, were conscious of her touching, striking, or fouling anything. The second officer, who was stationed at the stern, noticed a water-logged pile in motion near the stern-post, which he surmised had been started up from the bottom by the action of the propeller. Reporting this circumstance the next day to the first officer, a diver was sent down and found fragments of seven or eight submarine cables entangled in the screw," and twelve out of twenty-one cables were broken and the steamer had to be docked to clear them. There was no evidence of malicious. disregard of another's property rights, and these facts were considered in the final disposition of the case, and it clearly appeared that had there been such disregard of another's rights, it would have been considered an important factor in the determination of the case.39 The rule, however, requiring ordinary care would not apply in favor of a telegraph company whose submarine cables are located without lawful authority. This is not only so held, but is decidedly implied in other cases where the premise is that the cables injured were or were not lawfully placed where they were. 40

§ 81a. Same subject. In another Federal case, where an ocean cable was not improperly laid, but was lawfully laid and maintained by virtue of the company's charter, the laws of the State of New York 41 and the treaty between the United States, Great Britain, and other nations, 42 the officers of a schooner cut the cable in order to release the vessel's anchor which had become entangled and the vessel was held liable. 43 The court, per Townsend, Dist. J., in determining whether or not the vessel was liable, said: is that the night was calm and

39 Western Un. Teleg. Co. v. Inman & I. SS. Co., 59 Fed. 365, 4 Am. Elec. Cas. 641. Examine Doboy & Union Island Teleg. Co. v. De Magathias, 25 Fed. 697.

40 Doboy & Union Island Teleg. Co. v. De Magathias, 25 Fed. 697,

"The evidence on this point. clear, that the vessel was only

and the other cases cited in this
section.

41 Laws 1890, c. 566, § 102.
42 24 Stat. 989.

43 The William H. Bailey, 100 Fed. 115, 103 Fed. 799, 111 Fed. (Mem.) 1106.

about a mile off shore, and that the tugboat had agreed to come back for it in the morning. If, as is contended by counsel for claimants, the vessel anchored within the anchorage grounds, they were not guilty of negligence in becoming entangled, but, becoming entangled, I think they should be held guilty either of wilful injury or culpable negligence, for the following reasons: First, the statute 44 provides that a cable shall be cut only when it becomes necessary in order to save life or limb of a vessel. Second, there would have been no difficulty in waiting, anchored as they were, until morning, and then cutting away the anchor when the tug came to take them on their course. Third, it appears from the testimony of the master that they had another anchor on board. Fourth, Article 7 of the treaty of 1844 45 provides that owners of such cables shall remunerate vessel owners who can prove that they have sacrificed an anchor in order to avoid injuring such cables. It was the custom of libelant to remunerate all vessel owners who lost anchors in such circumstances. In the Clara Killam 46 Sir Robert Phillimore held in such a case that it was the duty of the ship to disentangle,

44 25 Stat. v. 17, § 3.

45 Convention for protection of Submarine Cables. Concluded March 14, 1884; ratification advised by the Senate June 12, 1884; ratified by the President January 26, 1885; ratifications exchanged April 16, 1885; proclaimed May 22, 1885 (Treaties and Conventions, 1889, p. 1176). (Compilations of Treaties in force. Prepared under Senate resolution Feby. 11, 1904.) Articles: I. Application of convention. II. Punishment for injuries to cables. III. Requirements for cable laying. IV. Payment for repairs. V. Rules for ships laying cables. VI. Vessels to avoid cables. VII. Losses from cables. VIII. Jurisdiction of courts. IX. Prosecutions for infractions. X. Evidence of violations. XI. Trials. XII. Laws to be enacted. XIII.

Communication of legislation. XIV. Adhesion of other States. XV. Belligerent action not affected. XVI. Ratification. XVII. Operation; duration; additional article; British colonies. See, also: 1887. Final protocol of agreement between the United States of America and other Powers fixing May 1, 1888, as the date of effect of the convention concluded at Paris, March 14, 1884, for the protection of submarine cables. Signed at Paris, July 7, 1887; ratification advised by the Senate February 20, 1888; ratified by the President March 1, 1888; proclaimed May 1, 1888. (Treaties and Conventions, 1889, p. 1184.) (Compilations of Treaties in force. Prepared under Senate resolution Feby. 11, 1904.)

46 L. R. 3, Adm. & Ecc. 165. See § 81, herein.