the seven strikings of the bridge fender system during the same period only one has involved a tow consisting of a single scow while six, or 85.9%, have involved tows of two or more scows. Thus, while the operation of two or more scows with a single tug was involved in only 26.1% of the tows passing through the draw they have occasioned 71.4% of the total strikings during the period stated.
There was no evidence presented on the trial of this case, other than that hereinabove reviewed, which disclosed the details or extent of the damage resulting from the strikings of the fender system of which the plaintiff complains, nor was there any disclosure respecting the nature and extent of plaintiff's claims for damages resulting from those strikings or that, if such claims were made, they have not been or are not in the process of being satisfied.
Jurisdiction in this case is predicated upon the plaintiff's contention that its claim is maritime in character and therefore within the admiralty jurisdiction of this Court. The relief prayed for by the plaintiff is twofold, i.e., a judgment for damages and for an injunction "to restrain the mode and method of operation presently used by the * * * defendants in the operation of its tugs and scows to prevent any further negligent interference with the conduct of the business of the plaintiff."
When the verified complaint in this action was filed the plaintiff sought and obtained an order to show cause why a preliminary injunction should not be issued "restraining the * * * defendants in the present mode of operation of their tugs and scows * * *". Upon the return of the order to show cause evidence was adduced in behalf of all parties and the hearing upon the return was treated as a final hearing in the cause.
I conclude that the plaintiff is not entitled to the injunctive relief prayed for in the complaint.
Assuming that the admiralty jurisdiction of this Court includes the power to grant equitable relief by way of injunction, such relief is nevertheless an extraordinary remedy and will not be granted unless the evidence satisfies the Court that the criteria for the granting of injunctive relief have been clearly disclosed by the proofs. It is elementary that injunctive relief will not be granted where the plaintiff has an adequate remedy at law, and the absence of such a remedy must be clearly disclosed by the evidence. No such situation is presented in this case. Indeed the complaint itself, in seeking damages for the succession of alleged torts created by the strikings, suggests the existence of an adequate remedy at law. Such a remedy, dependent of course upon the presentation of appropriate evidence, would be available in the form of money damages to compensate the plaintiff for all losses, including the cost of repairs, which may be shown to have resulted from the strikings of the fender system, assuming of course, that those strikings resulted from negligence on the part of the defendants.
Another principle which must be kept in mind upon an application for an injunction is to be found in the general rule that a Court of Equity will not grant injunctive relief unless it is shown that, if an injunction is granted the Court may enforce the mandate of the injunction. In effect the plaintiff here is asking this Court to direct the manner in which the defendants shall conduct their operations in availing themselves of their right to use the Hackensack River, a navigable water course of the United States, Clement v. Metropolitan West Side El. Ry. Co., 123 F. 271 (7 Cir. 1903) for the purpose of navigation in transporting in interstate commerce the cargoes of construction fill required for defendants' performance of its contract for the widening of the New Jersey Turnpike. The defendants have a right, subject to the regulations of the United States Coast Guard, to navigate the inland waterway of the United States in the pursuit of interstate commerce and to use vessels appropriate to such operation to have such waterways unobstructed for navigation purposes; subject only to such rights to erect, maintain and operate a bridge as may have been granted to the plaintiff and its predecessors by the War Department or other appropriate agency of the United States. In exercising their right of navigation the defendants, of course, are required to exercise reasonable care, to avoid damaging the lawful installations of the plaintiff. The evidence fails to show that, although the majority of the strikings that occurred during the limited period stated involved two-scow tows, the occurrence of strikings inflicted by one-scow tows or by vessels operated by others than the defendants is not negated. The prayer for injunctive relief in this case is tantamount to a request by the plaintiff that this Court participate in the regulation of the manner in which the defendants may exercise their navigation rights in the Hackensack River through the plaintiff's draw. In effect the Court is being asked to monitor the defendants' operations, and, in forbidding defendants' use of two-scow tows, to determine, as a matter of law, in the light of the evidence presented, that only one-scow tows can negotiate the bridge channels without inflicting damage upon the plaintiff's structure. The evidence is inadequate to impel the Court to such a conclusion. While it discloses a succession of strikings of the fender system by vessels of the defendants, and while the majority of those strikings were inflicted by two-scow tows, it is insufficient to support the conclusion that two-scow tows cannot be employed by the defendants in negotiating the bridge draw without infliction of any damage upon the bridge structure or its appurtenances.
Plaintiff's reliance upon Harris Stanley Coal & Land Co. v. Chesapeake & O. Ry. Co., 154 F.2d 450 (6 Cir. 1946) cert. den. 329 U.S. 761, 67 S. Ct. 111, 91 L. Ed. 656 (1946) for support of its claim for injunctive relief is misplaced. The facts in that case are in no respects similar to those disclosed by the evidence in the present action. In Harris Stanley a railroad sought to restrain certain mining operations by a coal company adjacent to the railroad's right-of-way. The ground urged for injunctive relief against the coal company was predicated upon the contention that its operation threatened injury to the operation of the railroad and constituted a hazard to the freight and passenger traffic moving over its line. In the previous operation of the mine a tunnel was driven into the mountainside which lay immediately west of the railroad's right-of-way and between 50 and 100 feet above it. Pillars of coal were left in the entry to the mine to support the surface of the land and a barrier was left along the base of the cliff between the ends of the coal seams and the outcropping of the coal on the surface. A lessee of the mine owner contemplated a resumption of previous operations which had been suspended for several years. In order to recover all the coal within the mine, the lessee proposed to remove the pillars which had been left after the previous operation and also 50% of the barrier. This contemplated procedure was locally known as "pulling the pillars", a practice well recognized in the vicinity. The railroad sought to enjoin this operation upon the ground that "it would destroy the only support for the land surface above the left entry, causing slips and slides down the mountainside to the injury of its right-of-way and of the freight and passengers moving on its line." Pointing out that the primary test of equitable jurisdiction to grant a permanent injunction is whether there exists an adequate legal remedy for injuries sought to be prevented, the Court nevertheless found, upon the evidence presented, that the activity contemplated by the mining lessee would endanger human life and therefore should be enjoined upon the ground that a Court of Equity will not gamble with human life at whatever odds and also on the ground that for loss of life there is no remedy that is, in an equitable sense, adequate. The Court moreover found that the "balance of convenience" test when applied to the evidence favored its injunctive interposition between the parties.
While it is true that the evidence in the case at bar discloses that the plaintiff's bridge was used to carry much commuter traffic during certain hours between New York and points west, and that damage to the drawbridge, which held up the passage of plaintiff's trains during commuting hours might inconvenience some or all of its passengers, the risk of irreparable damage which was present in the Harris Stanley case is completely absent in the case at bar, and the evidence therein failed to disclose that the life or property of any particular commuter on the railroad would be endangered if a striking of the bridge structure by a two-scow tow were to occur.
The defendants may present an Order denying the injunctive relief prayed for in the complaint.
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