
    THE F. & M. SCHAEFER BREWING COMPANY v. THE UNITED STATES
    [Cong. No. 15-55.
    Decided July 15, 1959]
    
      
      Mr. Henry C. Eidenbach for the plaintiff.
    
      Messrs. Louis E. Greco and J. Frank Staley with whom was Mr. Assistant Attorney General George 0. Doub, for the defendant.
   Danaher, Oircuit Judge,

sitting by designation, delivered the opinion of the court:

This case is before the court pursuant to House Resolution 287, July 19, 1955, 84th Cong., 1st Sess., referring a bill, H.R. 6982 as authorized by 28 U.S.C. § 1492 and § 2509. At issue are the plaintiff’s claims to damages resulting from the collapse of the plaintiff’s bulkhead, allegedly because of excessive dredging conducted in behalf of the Navy Department. Pursuant to 28 U.S.C. § 2509, the court is charged with the duty of reporting “conclusions sufficient to inform Congress whether the demand is a legal or equitable claim or a gratuity, and the amount, if any, legally or equitably due from the United States to the claimant.”

Plaintiff argues in support of its “equitable” claim that when the Commissioner concluded that the bulkhead was in “deteriorated” condition at the time of its collapse on June 28, 1946, he failed to take into consideration that the bulkhead and the upland property had been used by the United States Navy during the period from June 10,1943, to August 2,1945.

Plaintiff argues in support of its “legal” claim that the dredging operations and the deepening of Wallabout Channel were the efficient cause of the collapse of the bulkhead and that the plaintiff had not been given any notice of the nature and extent of the dredging operations.

Plaintiff, a New York corporation with an office and place of business in Brooklyn, is the owner of a certain bulkhead and dock fronting on the east side of Wallabout Bay and Channel in the harbor of New York. On March 28, 1945, the District Engineer for the New York District issued a War Department permit authorizing dredging to a depth of some 38 feet below mean low water in Wallabout Channel at the United States Navy Yard in Brooklyn. The permit was issued pursuant to section 10 of the Act of Congress approved March 3, 1899, 30 Stat. 1151, 33 U.S.C. § 403. The Navy Department negotiated a contract for the authorized dredging with an independent contractor. Plaintiff alleged that the dredging was excessive and that the deepening of Wall-about Channel undercut the subsurface fill of the bulkhead of plaintiff’s property so that the piling was undermined. As a result, plaintiff alleged, a section of plaintiff’s bulkhead, approximately 310 feet in length, collapsed on June 28,1946. Plaintiff accordingly claimed damages of $157,699.

It is clear we do not here have a taking for which compensation might be provided, indeed no taking is alleged.

Bather, the record comes down to this: the Navy Department pursuant to approved plans contracted for dredging navigable waters adjacent to the Navy Yard piers some 280 feet across the channel from plaintiff’s bulkhead. The work was necessary to permit a depth of about 38 feet to facilitate the berthing of naval vessels, including the large carrier, Franklin D. Roosevelt. Dredging operations were conducted between March 29, 1945, and April 21, 1945, when dredging terminated. Fourteen months later a section of the plaintiff’s bulkhead, about 50 years old, collapsed. The bulkhead was inherently weak. There were no transverse or bracing pilings. The bulkhead was not anchored by tiebacks to the mainland to guard against lateral thrust. On the outer edge of the bulkhead there had been erected a concrete seawall exerting a weight pressure of about 950 pounds per square foot. New York authorities in issuing a repair permit in 1940 had provided there was to be no commercial ■use and no surcharge. Yet after the dredging, it was undisputed, plaintiff, in violation of the permit, had stored beer trucks, beams, concrete forms and other construction materials on the upland adjacent to and abreast of the later collapsed section, and had otherwise utilized the bulkhead for commercial purposes, including water transportation activities.

Meanwhile, in January 1946, some six months before the collapse, plaintiff commenced construction of a steel frame bottling shop, about 110 feet distant from the bulkhead at the southerly end and 200 feet at the northern end. Excavations for the basement were made by power shovel. Then no less than 1,126 concrete pilings were installed by a steam hammer. Casings were driven down to a depth df 11% feet, concrete was poured, and the casings were capped with concrete. While experts differed as to the extent such operations caused vibration in the subsoil back of and under the bulkhead, it cannot be controverted that the plaintiff wholly failed to show that the conduct of the defendant was, as plaintiff had alleged, the “efficient” cause of the bulkhead’s collapse, at 12:55 a.m. on June 28,1946.

It is not unreasonable to infer that the collapse was occasioned by a combination of factors, including the inherent weakness of the old structure, its inevitable deterioration at the water edge, and its misuse by the addition of surcharge burdens it was not constructed to bear. At what point or to what extent the steam hammer installation of 1,126 concrete pilings played a part, we can but speculate. It is not suggested that any other waterside structure suffered in any manner. The dredging had simply increased the depth by some twelve to fifteen feet.

There is no evidence that the Navy’s use of the plaintiff’s property, which terminated on August 2, 1945, contributed to the collapse of the bulkhead on June 28, 1946. Nor were we shown whether or not plaintiff took a tax loss for the year 1946 in the amount of $70,635, the low bid for the repair of the bulkhead, including an allowance of 10% of that amount for improvements. Instead, the plaintiff reconstructed the bulkhead with the substitution of steel sheet piling at an actual cost of $138,738.09. Other items of engineering and comparable charges made up the difference to the total of plaintiff’s claim.

The court concludes that the planitiff has failed to sustain its burden of showing either equitable or legal ground for relief.

We have considered the exceptions submitted by the respective parties, but perceive no occasion to differ from the findings which will follow, to be certified to the Congress pursuant to the House Eesolution 287, supra.

Laramore, Judge; MaddeN, Judge; Whitaker, Judge, and JoNes, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Currell Yance, and the briefs and arguments of counsel, makes findings of fact as follows:

1. Plaintiff, The F. & M. Schaefer Brewing Co., is a corporation organized and existing under and by virtue of the laws of the State of New York, and is a citizen of the United States.

2. Plaintiff is the owner of real property situated in the Borough of Brooklyn, County of Kings, City and State of New York, fronting on the east side of Wallabout Bay and Channel. This property is known as the Kent Street property and extends from the north side of Division Avenue to the south side of South Eighth Street.

3. That portion of the plaintiff’s property extending from the west side of Kent Avenue to the East Eiver and from the northerly side of Division Avenue to the southerly side of South Eleventh Street, was leased by the plaintiff to the United States, acting through the Navy Department, for the period from June 10, 1943, until August 2, 1945, to be used for the storage of Naval material, at the agreed rent of $12 per annum.

4. On the easterly side of Wallabout Bay and Channel, that portion of plaintiff’s property extending from the northerly side of Division Avenue to the southerly side of South Eleventh Street, includes a bulkhead approximately 320 feet in length.

5. The exact age of this bulkhead is unknown, but it is shown on surveys made by the United States Army Engineers beginning in 1908.

6. In 1940 Geo. W. Kogers Construction Corp. reconstructed the bulkhead by cutting off the upper section of the bulkhead and replacing it with a low-water relieving platform installed with a concrete retaining wall and deck. The existing underwater piles were utilized and capped and additional bearing piles were installed. No cross-bracing or tiebacks were provided, and the plans were approved for no commercial use or surcharge.

7. In 1942 Contractors for Dry Docks installed a fender system in the area contiguous to that portion of plaintiff’s property, which extended from a point on the northerly side of Division Avenue to a point beyond the northerly side of South Eleventh Street. The length of this fender system so installed was 313 feet 4 inches, with the fender piles driven on 10-foot centers. The area of the fender system included the area which subsequently collapsed. Neither the purpose nor the result of the installation of these fender piles was the improvement of the stability of the bulkhead.

8. The original depth of water in Wallabout Channel in the area between plaintiff’s property and the Navy Yard, as shown by the soundings made by the United States Army Engineers in 1909, ranged from 15 feet to 21 feet.

9. This channel was deepened by subsequent dredging, so that in 1939 the depth of water between plaintiff’s property and the Navy Yard ranged from 17 feet to 25.8 feet.

10. On March 15, 1945, the Commandant of the United States Navy Yard, Brooklyn, New York, requested the United State Corps of Engineers for the New York District to issue a permit to dredge Wallabout Channel to a depth of 38 feet below mean low water.

11. On March 28, 1945, the District Engineer for the New York District issued a War Department permit, authorizing dredging to a depth of 38 feet below mean low water in Wallabout Channel at the United States Navy Yard Brooklyn, New York, by authority of the provisions of Section 10 of the Act of Congress approved March 3, 1899 (30 Stat. 1151; 33 U. S. Code 403).

12. No investigation into the merits and feasibility of the project for dredging Wallabout Channel is shown to have been conducted by the United States Engineer Office for the New York District.

13. On March 26,1945, the Navy Department entered into a negotiated contract No. NOy-12029 with Morris & Cum-ings Dredging Co.,' Inc., for the dredging of Wallabout Channel to a depth of 37 feet below mean low water at berths 20 and 20a on the northerly side of Pier K, Navy Yard.

14. The reason for dredging Wallabout Channel was to provide sufficient depth to berth the aircraft carrier USS Coral Sea (CVB42), later christened USS Franklin D. Roosevelt.

15. The plaintiff did not receive any notice, either in writing or orally, of the contemplated dredging operations prior to the time that the dredging operations commenced.

16. No inspection of the adjacent upland areas by the Navy Department before the dredging operations began has been shown.

17. Dredging of Wallabout Channel by Morris & Cumings Dredging Co., Inc. began on March 29, 1945, and was completed on April 21,1945.

18. The material dredged consisted of river silt, clay, running sand, stones, and occasionally small to medium-size boulders.

19. Free running sand was encountered in the area being dredged on April 9 and 10,1945. Soundings taken indicated that the dredged area was refilling and that the bank slope angle of 2 to 1 could not be maintained.

20. Soundings taken' on April 10 and 11, 1945, in the area where running sand was encountered, showed that the bank slope angle was approximately 3 to 1 at a point approximately 15 feet from the seawall of plaintiff’s property.

21. Notification of the shoaling was given by the Chief Engineer of Morris & Cumings Dredging Co., Inc., to the Navy Inspector and the Public Works Division of the Navy Yard.

22. A check center line on plaintiff’s bulkhead was established on April 11, 1945, but dredging operations were not discontinued.

The check line was set up to test for lateral movement only and not for any settling of plaintiff’s bulkhead and seawall.

23. Soundings made by the Public Works Division of the Navy Yard in April 1945, after dredging had been completed, indicate that Wallabout Channel had been dredged to depths of 37 feet, and more in isolated sections distant from plaintiff’s bulkhead, below mean low water in the area between plaintiff’s bulkhead and Pier K.

24. During the period from April 21,1945 to June 28,1946, the area in Wallabout Channel adjacent to plaintiff’s property was used for the berthing of numerous Naval units, including the carrier USS Franklin D. Roosevelt, attack transports, cargo ships, tankers, and similar craft. The aircraft carrier USS Franklin D. Roosevelt was approximately 900 feet in length, and would require 6 to 8 tugs for docking. The aircraft carriers USS Reprisal and USS Oriskany, approximately 800 feet in length, were also berthed at Pier K on various occasions. The docking of Naval units, such as attack cargo ships and aircraft carriers in Wallabout Channel on the north side of Pier K, would require the services of 3 to 6 tugs.

The width of Wallabout Channel from Pier K to plaintiff’s bulkhead was 280 feet.

25. In the spring of 1946, the bulkhead on plaintiff’s property began to show an outward movement in the area between the northerly side of Division Avenue and the southerly side of South Eleventh Street. Allen N. Spooner & Son, Inc., was employed to make an inspection of plaintiff’s bulkhead and completed a survey on June 21, 1946. This survey showed that the bulkhead had moved outshore 18 inches at its center in the area between the northerly side of Division Avenne and the southerly side of South Eleventh Street. The bulkhead in the area between the northerly side of Division Avenue and the southerly side of South Eleventh Street collapsed at 12: 55 a. m. EDST, on June 28,1946.

26. Survey of the collapsed bulkhead was held on August 7, 1946, and attended by representatives of the Navy Department.

27. Bestoration of the bulkhead in accordance with survey specifications was not effected, but an improved type of bulkhead, with sheet piling, was subsequently installed by plaintiff.

28. Plaintiff on June 3,1947, brought an action, under authority of the Federal Tort Claims Act, in the Eastern District of New York against the United States to recover for these same losses. The case was at issue August 25, 1947, and except for interrogatories and answers filed during 1952, no testimony was taken nor hearings held until a motion to dismiss upon jurisdictional grounds was sustained, and the action dismissed March 3,1954.

29. By House Besolution 287, Private Calendar No. 574, dated July 19, 1955, there was referred to this Court H. B. 6982 for the relief of the F. and M. Schaefer Brewing Company.

Pursuant thereto petition was filed by plaintiff on December 16, 1955, claiming that the excessive dredging and deepening of Wallabout Channel undercut the subsurface fill of the bulkhead on plaintiff’s property so that the piling was undermined to such extent that, as a result, a section of plaintiff’s bulkhead approximately 310. feet in length collapsed on June 28, 1946, to plaintiff’s damage in the sum of $157,699.

30. It is defendant’s claim that the collapse of plaintiff’s bulkhead was not the result of defendant’s dredging operations above outlined, but was in fact due to the unstable construction of plaintiff’s bulkhead, to its deterioration over a long period of time, to the placing and storing of trucks and other materials on the bulkhead, not constructed for such purpose, and to construction operations by plaintiff in the erection behind the bulkhead on plaintiff’s property of a bottling plant, during the construction of which numerous piles for the support of the structure were driven into the ground.

31. Structurally, there was an inherent weakness in plaintiff’s bulkhead. There were no transverse or bracing piles, and no tiebacks to the mainland, to guard against a lateral thrust of the bulkhead. When it was reconstructed in 1940, as above set out, no steps were taken to remedy this inherent weakness, as no bracing piles or tiebacks were added. As a matter of fact though the plans for such reconstruction were approved with no surcharge, and no commercial use, there was installed a concrete retaining wall on the outer edge of the bulkhead. The weight of said concrete seawall is stated at about 950 pounds per square foot. It would seem that the placing pf such weight on the outer or seaward edge of the bulkhead would have the effect of accelerating the collapse of the bulkhead, should the supporting piers, from any reason, lose their vertical position outward.

32. The installation of the fender piles in 1942, as shown above, had no function of adding to the stability of the bulkhead.

33. Plaintiff, in violation of the limitations respecting use under the permit issued for the 1940 repairs, thereafter used the bulkheads and adjacent uplands for commercial purposes, including water transportation activities, and permitted surcharge. It is undisputed that after dredging operations plaintiff parked, on the uplands adjacent to and abreast of the subsequently collapsed bulkhead section, its beer trucks and other materials.

Surcharge is any additional load placed on the ground level. This load may take the form of building materials, trucks, people, buildings, shanties, loading materials, etc.

34. In January 1946, plaintiff began the construction of a steel frame bottling shop approximately 110 feet distant at its southerly end and about 200 feet at its northerly point from the bulkhead. Required excavations for the basement were made by power shovel, and 1126 concrete pilings for a depth of liy2 feet were installed by steam hammer. Casings were driven down liy2 feet by a mandrel, concrete poured and later capped with concrete.

The parties’ expert witnesses disagreed as to whether vibration of the ground, caused by driving the piles, could be transmitted the distance shown to the bulkhead so as to impair its stability.

It is impossible at this time to measure the extent of the effect of such vibration upon the bulkhead, but it is undeniable that some vibration must have been felt at the distances indicated.

35. Plaintiff further violated the conditions of the 1940 city permit by erection on the uplands adjacent to the collapsed bulkhead of shanties used for the storage of construction materials, including beams and concrete forms, brick, tile and other construction materials. This increased the lateral and horizontal pressures both on the collapsed section of the bulkhead and the ad jacent uplands.

36. Both parties offered opinion testimony as to whether or not the dredging caused the collapse of the bulkhead. Such opinions substantially cancel each other, but it seems doubtful if this issue can properly be resolved by opinion evidence.

37. Defendant took soundings in Wallabout Channel adjacent to plaintiff’s bulkhead upon the completion of the dredging operations, and again after the collapse of the bulkhead. Such soundings showed that at the later date, there had been considerable filling in or silting of the dredged area, but while not conclusive, tended to show that the filling in was not from material supporting plaintiff’s bulkhead.

The plaintiff’s case, on the other hand, is based in reality on a post hoc ergo propter hoe argument that since the collapse of the bulkhead occurred after the dredging, it was caused thereby.

38. It is more probable that plaintiff’s bulkhead collapsed because of its inherent weakness, its deterioration over a long period of years, its misuse by the placing thereon of weights it was not constructed to bear, possibly aggravated by the vibration of the ground caused by driving piles for the bottling works.

39. The low bid for repairing the bulkhead, in accordance with the joint survey conducted by the representatives of the plaintiff and the Navy Department, was tendered by Allen N. Spooner & Son, Inc., in the sum of $70,635. Ten percent of this amount included improvements.

40. The actual cost for reconstructing the collapsed bulkhead, with the substitution of steel sheet piling, was in the sum of $138,738.09.

41. It is conceded that plaintiff has paid the following amounts:

42.Plaintiff has not been reimbursed for the foregoing sums in any maimer whatever. 
      
      
         “Equitable” is here used not in a strict technical sense. United States v. Realty Co., 163 U.S. 427, 440 (1896) ; Burkhardt v. United States, 113 Ct. Cl. 658 (1949).
     
      
       An earlier action brought under the Federal Tort Claims Act in the united States District Court for the Eastern District of New York seeking recovery for the loss here asserted was dismissed on jurisdictional grounds on March 3, 1954. No testimony had been taken and no hearings were held. Cf. Dalehite v. United States, 346 U.S. 15, 35, 36, notes 31 and 32 (1953) ; Coates v. United States, 181 F. 2d 816 (8 Cir. 1950),
     
      
      
        Gibson v. United States, 166 U.S. 269, 274, 275 (1897) ; cf. Burkhardt v. United States, supra note 1.
     
      
       “Surcharge” was shown to mean any additional load on the ground level whether of building materials, trucks, buildings, shanties or other materials, or people.
     
      
       Some are simply not sustained by tbe record. Others are immaterial to our view, or not in accord with tbe salient facts or tbe inferences reasonably to be drawn therefrom. To illustrate, the Commissioner reported, and we concur, that plaintiff received no advance notice of the contemplated dredging. The defendant asks us to find constructive notice based upon newspaper advertisement. No officers or employees of the plaintiff took the stand to say they failed to perceive dredging operations under way for more than three weeks. We make no correction in or supplement to the findings,
     