#### THE COMMERCIAL PACIFIC CABLE COMPANY v. THE UNITED STATES.

[Congressional 15381.

Decided June 2, 1913.]

*On the Proofs.*

The Senate refers to this court a bill for the payment of $35,894 to reimburse the claimant for the cost of repairing a certain submarine cable for injuries done to it under the authority of naval officers. The cause was the negligent dropping of a heavy anchor upon the cable when its exact position could have been located with little trouble and expense.

I. The license granted by the Government to lay a cable in the harbor of San Luis d’Apra contained the provision “ *that the Government shall m no manner whatsoever suffer any loss or he placed, at any expense on, account of this license; ”*but it was not contemplated that this should give the Government or its agents the right to destroy the cable.

II. Negligence consists in conduct which common experience or the knowledge of the actor shows to be likely to produce the *462result complained, of, and for which he should be held answerable, although it was not certain, intended, or foreseen.

III. The present case is a clear case of negligence, for which the court would render judgment against the Government if its jurisdiction were not limited to actions *ex contractu.*It is nevertheless a case where it would be right and proper for Congress, in the exercise of their legislative discretion, to indemnify the claimant for the losses suffered.

IV. Where the owners of a submarine cable were obliged to summon their repair ship from its regular headquarters, the cost and expenses of the ship, including the coming and going of the vessel, may properly be included in the measure of damages.

*The*Reporters’ statement of the case:

On the 21st day of February, 1911, the United States Senate, by resolution, referred to the court, under the act of March 3, 188T, a bill, of which the following is a copy:

“A bill for the relief of the Commercial Pacific Cable Company.

“ *Be it enacted by the Senate and Mouse of Representa> Uves of the United States of America in Congress assembled,*That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay to the Commercial Pacific Cable Company the sum of thirty-five thousand eight hundred and ninety-four dollars and forty-seven cents, to reimburse said company for the cost of repairing certain damages done by the United States naval authorities to one of said company’s cables in the harbor at San Luis d’Apra, island of Guam, in September, nineteen hundred and eight.”

The claimant appeared and filed its petition in this court April 28, 1911, in which’it makes the following allegations:

The claimant is a corporation organized and existing under the laws of the State of New York.

That the President of the United States, by virtue of the powers vested in him, and upon formal application made by the claimant on September 24, 1901, granted to the claimant the privilege of laying, constructing, maintaining, and operating telegraphic lines of cables on the Pacific coast of the United States and in the various Territorial waters of *463the United States, and to extend from the city of San Francisco, in the State of California, by way of the city of Honolulu, in. the Hawaiian Islands and the islands of Midway, Guam, Luzon, and the Philippines, and to a point on the coast of the Empire of China.

That upon formal application by the claimant, the Secretary of the Navy, on March 14,1903, authorized the claimant to land said submarine telegraphic cable on the United States’ naval reservation, island of Guam.

That thereafter claimant duly constructed and laid said cable and landed the same on the island of Guam, as authorized.

That thereafter claimant prepared certain charts showing the course of said cable under the waters in the said harbor at San Luis d’Apra, as it approached the said station on the island of Guam, and informed the Secretary of the Navy of its intention to distribute said charts to the various vessels and craft that might have occasion to go into said harbor, and suggested the advisability of the Navy Department publishing said charts for distribution to all United States vessels and craft which might have occasion to go into the said waters, in order that the danger of said cable being injured by such vessels and craft might be lessened. The Secretary of the Navy objected to any publication of the position of said cable at its approach to said station, on the ground that this would be adverse to the public interests, but upon request of claimant the Navy Department issued instructions to the United States naval authorities at Guam directing them to take the necessary steps to protect said cable from injury.

That’thereafter, on or about September 21,1907, one Huxford, a boatswain of the United States Navy, under proper authority, went out into the harbor to replace a certain buoy which had marked the northern side of the harbor but which had been broken from its moorings. The anchor of said buoy was very heavy, weighing several thousand pounds, and the said Huxford took the same out into the harbor, and, although he knew claimant’s telegraphic cable passed under the waters of the said harbor in the vicinity of the place *464where the said buoy had been originally located, yet he, without using ordinary care and without taking the precaution to ascertain the exact location of said telegraphic cable, negligently threw said heavy anchor overboard and allowed it to fall upon said telegraphic cable, thereby crushing said cable.against the hard rock bottom of the harbor, and in consequence said cable was injured and rendered wholly unfit for use and making it necessary for claimant to repair the same at an actual cost to claimant of $35,894.47.

That no assignment or transfer of the claim has been made and the claimant is the owner thereof.

The court, upon the evidence and after considering the briefs and arguments of counsel on both sides, made the following findings of fact:

I. The claimant is a corporation organized and existing under the laws of the State of New York, and on September 21, 1907, and for some time prior thereto, was the owner of a line of submarine cable extending from the city of San Francisco, Cal., by way of the city of Honolulu, Hawaiian Islands, the Midway Islands, the island of Guam, the island of Luzon, Philippine Islands, to the city of Shanghai, China.

II. The island of Guam, in the Ladrones, and the waters thereof were acquired by cession of Spain after the late Spanish-American War, and by Executive order of December 23, 1898, the same were placed under the absolute control and sole jurisdiction of the Navy Department, the Secretary of said department being directed by said Executive order to “ take such steps as may be necessary to establish the authority of the United States and to give it the necessary protection and government.”

III. On January 9, 1903, claimant company, by its vice president, addressed a communication to the Navy Department asking permission to lay and land a submarine cable and to establish a station upon said island, and for that purpose to occupy so much of the Government reservation on Oróte Peninsula, between San Luis Point and Soumaye Point, as may be necessary.

IY. On March 14, 1903, the Secretary of the Navy, pursuant to the authority vested in him by said Executive order, *465issued a license wherein claimant company was granted the right to lay a submarine cable in the harbor of San puis d’Apra of said, island, and to land the same at San Luis Point or Oróte Peninsula, and to use It acres of Government land on said peninsula upon which to erect a cable station and other necessary buildings. Said license was granted upon the following restrictions and conditions, viz:

“This licensees granted .with the express understanding that the following conditions shall be agreed to by the Commercial Pacific Cable Co.:

*“(a)*That the Navy Department reserves the right to terminate the aforesaid license at any time upon formal notice thereof. .....

*..“(h)*That the Commercial Pacific Cable Co. and,its representatives and. employees on the.island of Guam shall abide by all laws, regulations, and orders issued by the authorities, both civil and military, which may noiv or hereafter be in forcé.

“ *(c)*That the Government shall in no maiinér whatsoever suffer any loss or be placed at any expense on account of this license. . t . .. , ,.

“ *(d)*That the Commercial Pacific Cable Co., for the privileges hereby granted, shall pay into the Treasury of the United States the sum of $1 per annum.”

On April 6, 1903, claimant company accepted said restrictions and conditions in the following letter of acc'eptance to the Acting Secretary of the Navy Department:

Sir: We beg hereby to certify that at a regular meeting of the hoard of directors of this company, held, át New York on April 2, 1903, *k*quorum being present, a resolution was adopted authorizing the officers of the company to accept, under its corporate seal, the conditions of the Navy Department for landing the cables of the company at Midway and Guam, as contained, respectively, in the two letters of the Navy Department of March 14, 1903, marked 4 E. T- Equipment,’ and in accordance with said resolution wé hereby accept on behalf of the company, under its corporate seal, said conditions.

“ Yours, respectfully,

, “ The Commercial Pacific Cable Co.,

“ By Geo. G. Ward, . . ...

*“Vice President and General Mañagér.*

“Att’ést:

“Albert Beck, */Secretary.”*

*466Y. In laying said line of cable claimant established and has at all times mentioned herein maintained a cable station on the island of Guam, and the cable approaches to said station are laid under the waters in the harbor of San Luis d’Apra, island of Guam.

VI. When said cables had been laid in said harbor of San Luis d’Apra claimant supplied the Navy Department with charts showing the locations of said cables, and requested that the information contained therein be published. The Navy Department objected to the publication of the information as being decidedly adverse to the public interests, but at the request of the claimant the Navy Department agreed to and did furnish the information to the governor of Guam, and directed that he take the necessary steps to prevent, as far as possible, the injury of said cables from anchors.

VIL The entrance to the harbor of San Luis d’Apra, as shown by Hydrographic Office Chart No. 1850, has a width of about 450 yards from the shoals on the south to the edge of the shallow water or coral reef on the north. The depth of the water at the entrance ranges from 18 to 150 feet.

On September 21, 1907, there were four submarine cables passing through the entrance. Hydrographic Office Chart No. 1850 shows the position of two buoys at the entrance to the harbor — a black buoy marking the northern side and a red buoy marking the southern side of safe passageway for vessels. The purpose of these is to serve as guides to vessels entering or leaving the harbor, and at all the times herein mentioned it was the duty of the naval authorities at the station to keep these buoys in place.

The Guam-Midway section of claimant’s cable as it enters the harbor, of San Luis d’Apra is shown by Hydrographic Office Chart No. 1850, which is the chart by which the naval authorities were working in replacing the buoy, as having been laid about 25 yards south of the old position of the black buoy marking the northern side of the entrance to said harbor. The position of said cable as it enters the harbor was indicated upon said chart by dotted lines from a tracing furnished the Navy Department by claimant company.

*467VIII. During heavy weather on August 18, 1907, said black buoy broke from its moorings and drifted into the inner harbor. It was recovered by the naval authorities, repaired, and made ready to be put back in place. On September 20,1907, Lieut. G. P. Brown, United States Navy, planted a marking buoy near the old position of the black buoy. ' Angles were taken where marking buoy was placed and the position of the marking buoy was plotted by the executive officer of the U. S. S. Supply, then in the harbor, on chart on the dotted lines marking the Guam-Midway section of claimant’s cable. The water at this point, as shown by Hydrographic Office Chart No. 1850, is about 122 feet deep. No angles to check this position could be taken as there were no objects available to angle on. Said executive officer considered the plotted position of the marking buoy a good mark, as by dropping anchor for permanent black buoy well clear of marking buoy and to the northward it was supposed there would be no danger of fouling the cable.

The next morning, September 21, 1907, Boatswain Huxford, United States Navy, was sent out to replace the black buoy with permanent anchor and with instructions to drop the buoy well to the northward of the marking buoy. The permanent anchor was an old evaporator filled with cement and same was dropped at three minutes to 8 o’clock that morning at a distance estimated by Boatswain Huxford as 15 yards northward from the marking buoy. The naval authorities deemed it necessary to replace the black buoy as near as possible to its-old position, as they had determined that the reef known as Calalan bank was making to the southward. A small difference in the angles would have materially changed the plotted position of the marking buoy. By the use of grapnels in placing the marking buoy, the exact position of the cable could have been located with very little trouble and expense, and by this method the buoy could have been replaced with practically no danger to the cable.

IX. Service was interrupted on claimant’s Guam-Midway section of cable practically simultaneously with the dropping of the black buoy mooring as aforesaid.

*468X. On September 22, 1907; claimant’s superintendent of the cable station, with the assistance of officers, men, boats, lighter, windlass, etc., furnished by the naval authorities of the island, made every possible effort to raise the cable so as to repair it, and on that dáy had underrun about 1,000 yards of cable. The underrunning was continued the next day, but slight progress was made, and this method was abandoned, and the working party went out to the entrance to make an effort to pick up the cable by grappling. The bight of the cable was soon caught, but it could not be pulled up by the sailing launch, and the large lighter, with hand windlass and sheer legs, was taken out to shift the buoy, as it was then supposed that the buoy anchor might be on top of the cable. When the buoy anchor was weighed and dropped well to the northward it was found that the raising of the anchor made no difference, and there was no jumping or slacking of the cable when the anchor was weighed.

XI. Upon the failure of the station superintendent to recover the cable and repair the fault, claimant’s cable repair ship Restorer, then stationed at Honolulu, Hawaii, its regular headquarters, was ordered by claimant company to proceed to Guam and make the necessary repairs. Said vessel left Honolulu September 28, Í907, and arrived at Guam October 12; 1907, and immediately commenced the work of making repairs. The master of said repair ship proceeded to drag the harbor for the Guam-Midway section, but through mistake grappled, raised, and cut the shore end of a cable belonging to another company. The repair of this cable occupied two days, and that, with the approach of a typhoon; delayed the actual work on the Guam-Midway cable until October 16, on which date the cable was grappled, and with the assistance of men and equipment loaned by the naval authorities of the island it was subsequently raised to the surface and repaired. When the cable was recovered and raised it was found that the sheathing wires were crushed and flattened and the core exposed at the point where the permanent buoy anchor had been dropped, and it presented the appearance of having been crushed *469between two solid objects, while the balance of the recovered portion was in good condition. The repairs to the cable were completed on October 22, 1907, and 1.94 nautical miles of new cable were used in making said repairs. The cost of said new cable so used in making the repairs was $1,812.50.

XII. At the suggestion of the governor of Guam the cable after being repaired was relaid 100 feet south of its former position.

XIII. Claimant’s repair ship Restorer left Guam November 10 and arrived at Honolulu November 24, 1907. Between October 22 and November 10, 1907, the ship was engaged in taking on coal, which was furnished by the naval authorities at Guam and paid for by the claimant company. Said coal was loaded as fast as the facilities and men at hand at the time permitted.

No other work for the claimant company was done on this trip by said repair ship after repairing said cable.

XIV. The total necessary cost of repairing the injury to saicl Guam-Midway section of claimant’s cable was thirty five thousand eight hundred and ninety-four dollars and forty-seven cents ($35,894.47), including the cost of the new cable used in making the repairs. Said amount does not include anything on account of depreciation in the value of the repair ship while engaged in making said repairs.

If no allowance should be made for the 14 days occupied by said repair ship in returning to Honolulu after the completion of said repairs the cost of said repairs would amount to twenty-six thousand nine hundred and twenty dollars and eighty-nine cents ($26,920.89).

*Mr. B. E. Hinton*for the claimant. *Pack, Hinton c& Pack*were on the brief.

*Mr. Percy M. Oox*(with whom was *Mr. Assistant Attorney General John Q. Thompson)*for the defendants.

Howry, J.,

delivered the opinion of the court:

The gravamen of this complaint is negligence. It is well proven.

The findings establish that the Secretary of the Navy on March 14, 1903, authorized petitioner to land a submarine *470telegraphic cable on our naval reservation after laying the cable under the waters in the harbor of San Luis d’Apra, island of Guam. That during heavy weather in 1907 one of the black buoys at the entrance to the harbor broke from its moorings and drifted into the inner harbor. The purpose in placing buoys at the entrance was to guide vessels entering or leaving the harbor, and it was the duty of the naval authorities at the station to keep them in place. This drifting buoy was made ready by the Navy people to put back in place. The executive officer in charge, by dropping anchor for the permanent buoy, supposed that there would be no danger of fouling the cable. A boatswain undertook to drop the repaired buoy well to the northward of the marking buoy; but a small difference in the angles would have materially changed the plotted position of the marking buoy. By the use of grapnels in placing the marking buoy the exact position of the cable could hare been located with very little trouble and at small expense, and by this method the buoy as repaired could have been replaced with practically no danger to the cable. Service was interrupted on petitioner’s section of cable practically simultaneously with the dropping of the new or repaired buojc When the cable was recovered and raised it was found that the sheathing wires were crushed and flattened and presented the appearance of having been crushed between two solid objects. Petitioner undertook to repair the cable upon the failure of the station superintendent to recover the same, and did so at a cost of $35,894.47, which included $1,812.50 for some new cable. But petitioner was obliged to summon from the Hawaiian Islands one of its vessels to do the work of raising the cable and making the necessary repairs. The repair ship left Honolulu September 28, 1907, arriving at Guam 14 days thereafter. There was some delay in repairing the cable because of the approach of a typhoon. Between October 22 and November 10, 1907, the repair ship was engaged in tak- . ing on coal, which was furnished by our naval authorities and paid for by petitioner. The ship left Guam November 10,1907, and arrived at Honolulu two weeks thereafter.

The license granted by this Government contained the re*471striction tliat the United States should in no manner whatsoever suffer any loss or be placed to any expense on account of the license; but it was not contemplated that the restriction contained in the license should give to the Government or its agents the right to destroy the cable when the petitioner availed itself of the privilege to lay the same on the Government’s reservation, or in the waters leading to the reservation, under the terms of the license.

The court is of opinion that the fouling of petitioner’s cable presents a clear case for relief by Congress. Negligence consists in conduct which common experience or the special knowledge of the actor shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. *Schlemmer*v. Buffalo, Rochester, Ry., 205 U. S., 12. Tested by this rule, and which we think is applicable to the facts found, judgment might be rendered against the Government if the court had jurisdiction to enter judgment of any kind. It is right and proper for the legislative bodies to indemnify petitioner for the amount of moneys expended in recovering the cable, in its repair, and in supplying the necessary new cable.

But one question is left to consider. Upon the failure of the station superintendent to recover the cable and repair the fault petitioner had to summon its cable-repair ship, then stationed at Honolulu, Hawaiian Islands, its regular headquarters, to proceed to Guam and make the necessary repairs. The vessel left its regular station, and on arriving at Guam immediately commenced the work of repairing. The harbor was dragged, and when the cable was recovered and raised it was found to have been crushed. It took 14 days for the repair ship to travel from Honolulu to Guam. Two days were lost in cutting the wrong cable and two days likewise delayed the ship in waiting for a typhoon. Seven days were actually taken for the repair of the cable. Nineteen days were taken in loading coal, in order to return to the repair station. The total number of days required to make the repairs aggregate 56, as follows: 14 days in going from *472Honolulu to Guam, 2 days on account of an approaching typhoon, 7 days occupied in actual repairing of cable, *Í9*days in waiting for and loading coal for return trip, 14 days returning from Guam to Honolulu, at á cost of $35,894.4?. Though it has been suggested that there should not be an estimate made for the time taken for the repair ship to return to its regular station, the court is unable to see why petitioner should not be put in exactly the same position as if the agents of the United State had not caused the round-trip journey.