(289 F.)

In my opinion, there has been a complete failure of proof that the steamer Glenshee sustained any damage on the occasion in question, inasmuch as the proof showed that there was at least a foot more water over the shoal spot than the Glenshee was drawing on the night when the alleged injury occurred.

[2] But, even had the libelant made out a case of damage to its vessel on the occasion alleged, I would dismiss the libel in this case, because of the unreasonable delay on the part of the libelant in making claim against the respondent. This damage is alleged to have occurred in May, 1918, nearly four years before the libel herein was filed and libelant admits that no notice whatever was given to the officials of the respondent until March, 1920. The evidence showed further that the matter was not placed in the hands of counsel until March, 1920, and that the notice which was given the respondent was given by such counsel. This failure of notice on the part of the libelant practically bars the respondent tug from having any proof either as to the cause of the injury or the extent of the damage. If the tug or its owner had received notice, or had been advised of this claim within a usual or reasonable time, there would have been opportunity for the tug owner to have the bottom of the Glenshee inspected, and the tug would be in a position to either admit or deny that the Glenshee had been damaged prior to such inspection. The nature of the damage, if any, might have been valuable evidence for the tug, and suggestive of the cause of the injury. It is plainly unfair that the tug and her owners should receive no intimation of the claimed damage to the steamer, or of the purpose to bring suit, until after the lapse of such a period of time.

[3] As to the maneuvers of the tug and steamer on the night of May 4, 1918, the tug has no opportunity to offer proof for the master and crew of the tug could not remember, and had no occasion for remembering, the occurrences of that night. Shipowners and captains should understand that they are not likely to recover claimed damages in an admiralty court, unless they make known the claim and injury with sufficient promptness to afford the opposite party a reasonable opportunity to investigate and defend. Admiralty courts are not bound, at present, by any statute of limitation, but refuse to enforce stale claims, where there has been such an unreasonable delay in the assertion thereof that the resultant belated enforcement of such a claim would be unjust and inequitable. Pacific Coast S. S. Co. v. Bancroft-Whitney Co. (C. C. A. 9) 94 Fed. 180, 36 C. C. A. 135; Elder Dempster & Co., Ltd. v. Talge Mahogany Co. (C. C. A. 5) 256 Fed. 65, 167 C. C. A. 307; 1 C. J. 1328. It is the equitable doctrine of laches, applied in admiralty, and is, in my opinion, applicable to the present case.

A final decree may be drawn, dismissing the libel, at the costs of libelant.

THE QUODDY.

(District Court, D. Massachusetts. March 31, 1923.)

No. 2137.

Salvage 34-$175 awarded for towing disabled fishing vessel to port. Where a fishing vessel, which, with her cargo and nets, was valued at about $4,400, was disabled by the breaking of her shaft and unable to reach port under sail at the time because of unfavorable winds, but was not in danger of sinking, service rendered by another fishing vessel in towing her into port, which occupied about 10 hours' time, involved no danger, and was not shown to have caused loss by delay in getting the cargo of the other vessel to market, or by delay in a subsequent voyage, is salvage service of a low order, for which $175 is sufficient award.

In Admiralty. Libel by George Hill and others against the steam screw Quoddy for salvage. Decree rendered for libelants.

John J. Burke, of Boston, Mass., for libelant.

Albert T. Gould and Blodgett, Jones, Burnham & Bingham, all of Boston, Mass., for respondent.

PETERS, District Judge. This is a claim of salvage. It appears that the steam screw Quoddy, on the afternoon of October 20, 1921, was returning to Gloucester with a trip of fresh fish from the fishing grounds southeast of the Isles of Shoals, when her tail shaft broke and the engine became useless.

The master of the Quoddy made an attempt to set sail and make his way back to Isles of Shoals, but without success, as the wind was unfavorable. About this time the vessel sprang a leak, which was kept under control with the pumps. This occurred about 18 miles northeast of Annisquam.

The steam screw Robert and Edward, owned by Henry E. Pinkham Company, George Hill, master, also bound for Gloucester with a trip of fish, being in the vicinity, at about 2 o'clock p. m., came to the assistance of the Quoddy, and at the request of her master made fast to her with hawsers and took her in tow for Gloucester, where they arrived that night a little after midnight.

The engineer was not able to repair the damage to the machinery of the Quoddy before arrival in port. She could not have made port that day or night under such sail as she had. Probably she would have been blown off shore until the wind changed or other assistance arrived, had not the Robert and Edward come to her rescue. She was not in any particular danger of sinking, however, nor was there apprehension of such a catastrophe.

It is agreed that, for the purposes of this case, the value of the Quoddy was $4,000, the value of her catch of fish on board $184, and her nets about $250. No claim was made for loss of market or depreciation in value of the fish on board the Robert and Edward, resulting from delay in reaching port on account of the salvage service, and no claim was made that she was consequently delayed in going out on her next

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(289 F.)

trip. The captain testifies that he and his crew were considerably exhausted by the labor in getting the Quoddy into port.

This is a salvage service of a rather low order. The risk, labor, and time involved were inconsiderable, but, on the other hand, the disabled vessel might have been blown off to sea, and subjected to the danger of further disaster, if she had not been taken in tow by the libelants. Taking into consideration all the elements of the case, I make an award of $175 of which $100 is to go to the vessel, and $75 to the master and crew, to be divided in proportion to their monthly wages.

PITTSBURGH & SHAWMUT COAL CO. et al. v. DELAWARE & N. R. CO. (District Court, N. D. New York. May 17, 1923.)

1. Railroads ☺-214-Owners may abandon entire road, if unprofitable.

The owners of a railroad may abandon the entire road, if it cannot be operated without continuous loss, and there is no reasonable prospect of future profitable operation.

2 Railroads -214-Right to abandon entire line, if unprofitable, cannot be impaired by statute.

The constitutional right of a railroad to abandon its entire line, if operation without loss is impossible, cannot be impaired by subsequent legislative enactment, either federal or state.

3. Railroads 210-Receiver appointed by federal court bound by state laws. Under Comp. St. § 1047, a receiver appointed by a federal court to operate a railroad within a state must operate such railroad according to the valid laws of that state, in the same manner that the owner would be bound to do, if in possession thereof.

4. Railroads 210-Federal court may not authorize abandonment of unprofitable branch, contrary to state law.

While a federal court may permit its receiver to abandon an entire railroad enterprise, the further operation of which will result only in the loss of the owner's invested capital, in the absence of any interstate commerce questions the court cannot permit the receiver to abandon an unprofitable branch of its road, where such partial abandonment is forbidden by the laws of the state from which the railroad received its franchise and in which it operates.

Proceeding by the Pittsburgh & Shawmut Coal Company and others against Delaware & Northern Railroad Company, in which the receivers of the Railroad Company made application for an order authorizing the abandonment of a branch of the railroad, which application was resisted by the Town of Andes and certain of its residents. Application denied.

Elkus, Gleason, Vogel & Proskauer, of New York City (Donald C. Strachan, of New York City, of counsel), for receivers.

Raymond Ballantine, of New York City, for Town of Andes. M. Linn Bruce, of New York City (Andrew C. Fenton, of Margaretville, N. Y., of counsel), for certain residents of Town of Andes.

COOPER, District Judge. Application is made by the receivers of the defendant, Delaware & Northern Railroad Company, for an order

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authorizing the abandonment of the Andes branch of said railroad, extending from Andes Junction, near Union Grove, to the village of Andes, in the county of Delaware, a distance of 8 miles, and the disposal of the property used in the operation of said branch, including its real estate and right of way.

This railroad company was incorporated under the railroad laws of the state of New York and its railroad is situated entirely in the county of Delaware, in the state of New York, and is about 46 miles in length, including this Andes branch. It has been operated by the receivers since March 16, 1921. During the latter part of the receivership the road has, as a whole, been operated at a profit.

The opponents of this application sharply contest the claim of the receivers that the Andes branch is being operated at a loss of about $7,000 per year, that the traffic is all upgrade from Union Grove to the terminus at Andes, and that the physical conditions are such that the expenses of maintenance are excessive. It will, however, be assumed for the purpose of the argument that the allegations of the receivers are correct, that the branch is operated at a substantial annual loss, that the maintenance charge is excessive, and that the traffic is largely one way.

[1] At the threshold of this application, the contention is made that this court has no power to authorize the abandonment of a part of a railroad operated under a franchise from the state of New York. If this be so, it disposes of this application. Little question is raised but that the owners of a railroad may abandon the entire road, if it cannot be operated without continuous loss, and there is no reasonable prospect of profitable operation in the future. Brooks-Scanlon Co. v. Railroad Com., 251 U. S. 396, 40 Sup. Ct. 183, 64 L. Ed. 323; Bullock v. State of Florida, 254 U. S. 513, 41 Sup. Ct. 193, 65 L. Ed. 380.

[2] This right of abandonment, being constitutional in its nature, cannot be impaired by subsequent legislative enactment, either federal or state. The abandonment of a part of a railroad, without the consent of the state, because the operation of such part entails a loss, while the profitable part of the road is continued in operation, is quite another question.

The courts of the state of New York seem to have held that a railroad company may not abandon a part of its railroad, and operate the remainder, without the consent of the state. In People v. Albany & Vermont Railroad Co., 24 N. Y. 261, 82 Am. Dec. 295, it appeared that defendant's predecessor was organized for the purpose of operating a railroad between Albany and Eagle Bridge. Soon after acquiring the property at foreclosure, the defendant railroad abandoned a portion of the road running from Waterford Junction to Eagle Bridge, but continued to operate the remainder. The court held that the abandonment was illegal, and that the franchise could only be legally exercised by a corporation operating its entire road, and that it had no privilege or right to abandon part thereof and operate the remainder. In Paige v. Schenectady Railroad Co., 178 N. Y. 102, 70 N. E. 213, the doctrine that a public railroad corporation cannot abandon a por

(289 F.)

tion of its road at its mere pleasure, is re-asserted. The rule thus applied has been consistently accepted as the doctrine in this state. See Public Service Commission v. New York R. Co., 77 Misc. Rep. 487, 136 N. Y. Supp. 720, and cases therein cited.

Outside of the state of New York, the great preponderance of authorities supports the same rule. See State of Nebraska v. S. C. & P. R. R. Co., 7 Neb. 359; Colorado & Southern R. Co. v. State Railroad Commission, 54 Colo. 64, 129 Pac. 506; State ex rel. Naylor v. Dodge City M. & T. R. R. Co., 53 Kan. 377, 36 Pac. 747, 42 Am. St. Rep. 295; Attorney General v. West Wisconsin Ry. Co., 36 Wis. 466; Brownell v. Old Colony R. Co., 164 Mass. 29, 41 N. E. 107, 29 L. R. A. 169, 49 Am. St. Rep. 442. The courts of the United States have also held that, where a railroad franchise has been accepted by a railroad corporation, it must fulfill all its charter obligations and may not elect to carry out the profitable part and abandon the unprofitable part.

In Missouri Pacific R. Co. v. Kansas, 216 U. S. 262, 30 Sup. Ct. 330, 54 L. Ed. 472, the Supreme Court of Kansas granted a mandamus to enforce an order of the Kansas Railroad Commission ordering the defendant company to operate a passenger train over a branch upon which it had discontinued regular passenger service. The Supreme Court of the United States, in affirming the judgment of the state court, said:

"The fact that the performance of the duty commanded by the order which is here in question may, as we have conceded for the purpose of the argument, entail a pecuniary loss, is, of course, as declared in the Atlantic Coast Line Case as a general rule, a circumstance to be considered in determining its reasonableness, as are the other criteria indicated in the opinion in that case. But where a duty which a corporation is obliged to render is a necessary consequence of the acceptance and continued enjoyment of its corporate rights, those rights not having been surrendered by the corporation, other considerations are in the nature of things paramount, since it cannot be said that an order compelling the performance of such duty at a pecuniary loss is unreasonable. To conclude to the contrary would be but to declare that a corporate charter was purely unilateral, that is, was binding in favor of the corporation as to all rights conferred upon it and was devoid of obligation as to duties imposed, even although such duties were the absolute correlative of the rights conferred."

In Brooks-Scanlon & Co. v. Railroad Commission, 251 U. S. 396, 40 Sup. Ct. 183, 64 L. Ed. 323, the court while deciding that the entire railroad enterprise should be abandoned because incapable of operation without loss, also said:

"It is true that if a railroad continues to exercise the powers conferred upon it by a charter from a state, the state may require it to fulfill an obligation imposed by the charter, even though a fulfillment in that particular may cause a loss."

The ground upon which these decisions are based is that a railroad franchise or corporate charter granted by a state may not be altered or modified, or the railroad released from any of its corporate obligations, without the consent of the state. For this court to permit its receiver to abandon this Andes branch, while the remainder of the railroad continues to be operated by the receiver, would be for the