
    Frederick Zorn, Appellant, v. The State of New York, Respondent.
    
      Damage to a canal boat moored on the outside of another boat lying atadack, in consequence of the breaking of the Troy State dam — when it results from a “ navigation of the canals.”
    
    A canal boat which had arrived at her destination in Lansingburgh, N. .Y., on the evening of Friday, June 9, 1893, was moored on the outside of another canal boat lying at the wharf of the coal yard to which her cargo was consigned. In the early morning of June 12, 1893, a break occurred in the Troy State dam, which is a portion of the Champlain canal system located between Lansingburgh and Troy, and in consequence of the lowering of the water caused thereby, the boat was injured by contact with the rock bottom.
    Upon appeal from a judgment dismissing the claim of the owner of the boat against the State, rendered by the-Gourt of Claims which, by virtue of chapter 205 of the Laws of 1883, succeeded to the jurisdiction conferred by section 1 of chapter 321 of the Laws of 1870 upon the Canal Appraisers to determine all canal claims against the State, it was
    
      Held, that the voyage was not. ended, and that the case fell within the exception to the last-mentioned statute declaring that its provisions “shall not extend to claims arising' from damages resulting from the navigation of the canals.”
    Appeal by the claimant, Frederick Zorn, from a judgment and order of the Court of Claims, bearing date the lHh day of March, 1898, and entered in the office of thé clerk of said court, dismissing his claim. '
    
      George R. Donman, James J. Macklin and La Roy S. Gove, for the appellant.
    
      John C. Davies, Attorney-General, for the respondent.
   Merwin, J.:

In June, 1893, the claimant was engaged in the transportation business and owned a canal boat, which was loaded with a cargo of coal at Fewburgh on the Hudson river, consigned to A. D. Judson’s coal yard at Lansingburgh, F. Y. The boat proceeded to her destination, arriving there on the evening of Friday, June ninth, and was tied up on the outside of a canal boat which was alongside the wharf of the Judson coal yard. In the early morning of June twelfth there was a break in the Troy State dam, which is located between Lansingburgh and Troy. This break operated to lower the water in the basin where the boat was to such an extent that the, boat rested on the rock bottom. The claimant, who was then on the boat, testifies : There was some rocks there; there was a large rock about three feet high and four or five feet in circumference worked itself through the bottotia of the boat and she filled up with water.” The cargo was removed some days afterwards and the boat became a total loss. The claimant seeks to recover from the State the value of the boat. - -

The Troy State da'in, so called, was built and is maintained by the State as a portion of the Champlain canal system, for the purpose of making slack water navigation to enable boats to get up to Waterford and Lansingburgh, the object being to keep water enough for p the boats to make that passage.

The claimant alleges that the accident to his boat was caused by the negligence of the State, its agents or servants, in failing to keep the dam in proper repair, and that the action is. maintainable under the provisions of chapter 321 of the Laws of 1870, which was in force at the time of the accident and at the time of filing the claim on February 2, 1894.

At the close of the evidence the defendant made a motion to dismiss the claim on the ground that it was a claim arising from damages resulting from the navigation of the canals and, therefore, created no liability under the act of 1870, and also on the ground that negligence on the part of the State officers was not established. Judgment of dismissal was granted.

By section 1 of the act of 1870 jurisdiction was granted to the ■Canal Appraisers to hear and determine all claims against the State for damages alleged to have been sustained from the canals, of the State, or from their use or management, or resulting or arising from the negligence or conduct of any officer of the State having charge thereof, or resulting or arising from any accident or other matter or thing connected with the canals, provided that the facts proved shall make out a case which would create a.legal liability against the State were the same established in evidence in a court of justice •against an individual or corporation, and provided also that the provisions of this act shall not extend to claims arising from damages' resulting from the navigation of the canals.” The jurisdiction conferred upon the Canal Appraisers was afterwards transferred to the Court of Claims (Chap. 205 of the Laws of 1883).

The statute in effect provided that claims for damages resulting from the navigation of the canals, though such damages were caused by the negligence of the-officers of the State, could not be enforced against- the State. In Rexford v. State (105 N. Y. 229) the State was held to be liable because the party injured was not at the time engaged in navigation of the canals. It was said that he had for the time abandoned his boat and somebody else was navigating it. In Locke v. State (140 N. Y. 480) the State was held not to be liable, although the sole cause of the injury was the negligence of its servants in operating the lift bridge under which the boat was passing and the injury was in no way attributable to or the result of the navigation of the canals, except that the act of navigation furnished the" opportunity for the happening of the injury. If the boat had not been there, if the party had not been engaged in using the canal for the purposes of navigation, the injury would not have happened. Evidently, according to the logic of the Locke case, the intention of the statute was to provide that parties while using the canal for their own benefit should take the risks of navigation without reference to whether they were caused or affected by the negligence of the State officers.

The question then in this case is, whether or not at the time of the accident the claimant was engaged in the navigation of the canals. Was the navigation at an end ? Did the accident occur in the course of the navigation of the canals ?

The voyage or trip' of the claimant was not ended; ■ he had not delivered his cargo. His boat was in the canal or in the waters deemed to be a part of the canal, and was tied up to another boat, and it may be inferred that the claimant was waiting for an opportunity to discharge his cargo in the ordinary course of business at that place.

The fact that the boat was not in motion is not conclusive on the question. It has been held that the word “navigation” for some purposes includes a period when a ship is .not in motion, as for instance when she is at anchor. (Hayn v. Culliford, L. R. [3 Com. Pl. Div.] 417.) If an accident of the kind in controversy occurred while a boat, as it was making its trip along the canal, was tied up for the night, it would hardly be claimed that it did not occur in the course of the navigation.

Laurie v. Douglas (15 M. & W. 746) was a case where a vessel laden with goods arrived in the port of London and was taken into the commercial dock to discharge her cargo. For this purpose she was fastened by tackle, on the one side to a loaded lighter lying outside her, and on the other to a barge lying between her and the wharf. The crew were discharged, except the mate, and lumpers were being employed in unloading her, when the tackle on one side broke and in consequence she canted over, water got in through her ports and the goods still on board were damaged; it was held that the naviga-. tion was not at an end at the time of the loss and that the loss was within the exception in the bill of lading of all damages and accidents of the seas and navigation. That case seems to be quite in point.

The navigation in which the plaintiff was engaged was not, I think, at an end, and, therefore, the damages sought here to- be recovered resulted from the navigation of the canals within the meaning of the statute, and the State is not liable therefor.

In view of this conclusion, it is not necessary to consider the further question, whether a case of negligence on the part of the officers or agents of the State was made out, or rather whether a dismissal upon that ground was against the evidence.

All concurred.

Judgment affirmed, with costs.  