1874. Same; alteration or removal where constituting an obstruction to navigation.

By 2113a, post, the provisons of the first paragraph of this section are made applicable to navigable waters in the Virgin Islands.

NOTES OF DECISIONS

1875. Same; limit of time for commencement and completion.

obstruction. U.S.
v. Norfolk-Berkley
Bridge Corporation (C.C.A. 1928) 29 F.
(2d) 115.

Owner of drawbridge giving no notice that sides of abutment were not straight below water level was liable to owner of scow damaged by abutment. The Dauntless (D.C.N.Y. 1930) 41 F. (2d) 747.

Owner of drawbridge, whose employees chopped off temporary cabin on scow stuck in draw, in order to close bridge, held liable. Id.

Repairs.-Owner must maintain required distance between fenders. U.S. v. NorfolkBerkley Bridge Corporation (C.C.A. 1928) 29 F. (2d) 115.

Liability of owner.-Owner of bridge having unauthorized projections above fenders is liable to vessel injured thereby. U.S. v. Norfolk-Berkley Bridge Corporation (C.C.A. 1928) 29 F. (2d) 115.

Damage to tanker by collision with bascule drawbridge held caused solely by failure to construct bridge and dolphins with clearance of 100 feet, as required. Wilmington Transp. Co. v. Standard Oil Co. (C.C.A. 1931) 53 F. (2d) 787.

Affirmative case of negligence must be made out for recovery against owner of swinging bridge for damage to tow coming in contact therewith. Newtown Creek Towing Co. v. City of New York (D.C.N.Y. 1930) 40 F. (2d) 883.

City maintaining drawbridge held not negligent by reason of breaking of key in hoisting gear, and not liable for ensuing delay. Newtown Creek Towing Co. v. City of New York (D.C.N.Y. 1931) 49 F. (2d) 475.

Where owner of bridge was obliged by reason of petition for limitation of liability to file his claim for damage to bridge, in admiralty proceedings, it was entitled to application of admiralty rule of divided damages, notwithstanding that injuries to bridge gave rise only to actions for negligence at common law, which would require proof that there was no contributory negorder ligence in to authorize recovery. U.S. v. Norfolk-Berkley Bridge Corporation (C.C.A. 1928) 29 F. (2d) 115.

Bridge tender at fault.-Owner of drawbridge, failing to open bridge when scow stuck in draw was raised by tide, held liable. The Dauntless (D.C.N.Y. 1930) 41 F. (2d) 747.

Recission of signal to proceed, given after drawbridge was raised, followed by lowering of bridge, to permit fire apparatus to pass, rendered city liable for collision of barge in tow with bridge, abutment, regardless of bridge tender's "good faith." The No. 1 of New York (D.C.N.Y. 1932) 56 F. (2d) 612.

Draw tenders held negligent in swinging drawbridge out so as to strike tug, under

conflicting evidence whether such movement was necessary to avoid damage from another vessel. Richards v. City of Boston (D.C.Mass. 1930) 43 F. (2d) 448.

Damages to steamer passing through twoleaved bascule bridge spanning river held caused solely by lowering of leaf while steamer was passing through. The George H. Ingalls (C.C.A. 1931) 47 F. (2d) 1017.

Collision of barge with drawbridge held fault of operator in turning bridge toward tug. Newtown Creek Towing Co. v. City of New York (C.C.A. 1931) 47 F. (2d) 883, reversing (D.C. 1930) 40 F. (2d) 649.

Raising drawspan on railroad bridge over navigable river on tug's statutory signal was invitation for tug to come through. The Kard (D.C.Pa. 1930) 38 F. (2d) 844.

Railroad company maintaining drawbridge over navigable river whose bridge tender, on signal from tug, raised draw only partially, with result that derrick barge in tow struck bridge, held solely liable for damage. Id.

Collision of barge with drawbridge held fault of operator in turning bridge toward tug. Newtown Creek Towing Co. v. City of New York (C.C.A. 1931) 47 F. (2d) 883, reversing (D.C. 1930) 40 F. (2d) 649.

Vessel at fault.-Evidence sustained finding that tug attempting to go through open drawbridge without giving usual signals, was solely at fault for damage to scow after tug's collision with descending draw. Reichert Towing Line, Inc. v. City of New York (C.C.A. 1932) 58 F. (2d) 238.

That vessel was in charge of unlicensed man was not in itself negligence in collision with drawbridge. Richards v. City of Boston (D.C.Mass. 1930) 43 F. (2d) 448.

One operating tug which collided with drawbridge held not negligent in failing to stop when bridge swung out unexpectedly. Richards v. City of Boston (D.C.Mass. 1930) 43 F. (2d) 448.

Vessel and bridge tender both at fault.Tug and bridge owner held both at fault for injury to tow from unlawful projection of bridge structure. U.S. v. Norfolk-Berkley Bridge Corporation (C.C.A. 1928) 29 F. (2d) 115.

Presumptions and burden of proof.Burden is on bridge owner to prove that bridge conforms to permits where vessel is injured by striking it. U.S. v. NorfolkBerkley Bridge Corporation (C.C.A. 1928) 29 F. (2d) 115.

Where bridge is lawfully constructed vessel colliding therewith is presumed to be negligent. Id.

Presumption of fault is on bridge ownerwhere vessel is injured by unauthorized projection on bridge. Id.

1879a. Same; toll rates.

*

In the case of bridges heretofore authorized by Acts of Congress specifically reserving to Congress the right to subsequently regulate tolls on such bridges, such bridges shall, in respect of the regulation of all tolls, be subject to the provisions of the Act entitled "An Act to regulate the construction of bridges over navigable waters," approved March 23, 1906. Sec. 17, act of June 10, 1930 (46 Stat. 552); U.S.C. 33: 498a.

That any bridge authorized, prior to March 23, 1906, by Act of Congress specifically reserving to Congress the right to alter, amend, or repeal such Act, shall, in respect of the regulation of all tolls, be subject to the provisions of the Act entitled "An Act to regulate the construction of bridges over navigable waters," approved March 23, 1906. Sec. 1, act of June 27, 1930 (46 Stat. 821); U.S.C. 33: 4986.

For act of March 23, 1906, referred to in text, see 1874, ante.

1881. Federal Power Commission; composition and organization.-That a commission is hereby created and established, to be known as the Federal Power Commission (hereinafter referred to as the "commission ") which shall be composed of five commissioners who shall be appointed by the President, by and with the advice and consent of the Senate, one of whom shall be designated by the President as chairman and shall be the principal executive officer of the commission: Provided, That after the expiration of the original term of the commissioner so designated as chairman by the President, chairmen shall be elected by the commission itself, each chairman when so elected to act as such until the expiration of his term of office.

The commissioners first appointed under this section, as amended, shall continue in office for terms of one, two, three, four, and five years, respectively, from the date this section, as amended, takes effect, the term of each to be designated by the President at the time of nomination. Their successors shall be appointed each for a term of five years from the date of the expiration of the term for which his predecessor was appointed, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed shall be appointed only for the unexpired term of such predecessor. Not more than three of the commissioners shall be appointed from the same political party. No person in the employ of or holding any official relation to any licensee or to any person, firm, association, or corporation engaged in the generation, transmission, distribution, or sale of power, or owning stock or bonds thereof, or who is in any manner pecuniarily interested therein, shall enter upon the duties of or hold the office of commissioner. Said commissioners shall not engage in any other business, vocation, or employment. No vacancy in the commission shall impair the right of the remaining commissioners to exercise all the powers of the commission. Three members of the commission shall constitute a quorum for the transaction of business, and the commission shall have an official seal of which judicial notice shall be taken. The commission shall annually elect a vice chairman to act in case of the absence or disability of the chairman or in case of a vacancy in the office of chairman.

Each commissioner shall receive an annual salary of $10,000, together with necessary traveling and subsistence expenses, or per diem allowance in lieu thereof, within the limitations prescribed by law, while away from the seat of government upon official business.

The principal office of the commission shall be in the District of Columbia, where its general sessions shall be held; but whenever the convenience of the public or of the parties may be promoted or delay or expense prevented thereby, the commission may hold special sessons in any part of the United States. Sec. 1, act of June 10, 1920 (41 Stat. 1063), as amended by sec. 1, act of June 23, 1930 (46 Stat. 797); U.S.C. 16: 792.

The commission shall have authority to appoint, prescribe the duties, and fix the salaries of, a secretary, a chief engineer, a general counsel, a solicitor, and a chief accountant; and may, subject to the civil service laws, appoint such other officers and employees as are necessary in the execution of its functions and fix their salaries in accordance with the Classification Act of 1923, as amended. The commission may request the President to detail an officer or officers from the Corps of Engineers, or other branches of the United States Army, to serve the commission as engineer officer or officers, or in any other capacity, in field work outside the seat of government, their duties to be prescribed by the commission; and such detail is hereby authorized. The President may also, at the request of the commission, detail, assign, or transfer to the commission engineers in or under the Departments of the Interior or Agriculture for field work outside the seat of government under the direction of the commission. Sec. 2, act of June 10, 1920 (41 Stat. 1063), as amended by sec. 1, act of June 23, 1930 (46 Stat. 797); U.S.C. 16: 793.

The original text of this section was amended to read as above.

1882. Same; powers in general.

This Act shall be held to reorganize the Federal Power Commission created by the Federal Water Power Act, and said Federal Water Power Act shall remain in full force and effect, as herein amended, and no regulations, actions, investigations, or other proceedings under the Federal Water Power Act existing or pending at the time of the approval of this Act shall abate or otherwise be affected by reasons of the provisions of this Act. Sec. 4, act of June 23, 1930 (46 Stat. 798).

The above provision is added as a new paragraph of this section.

Lands set aside as national parks or national forests were exempted from the provisions of the Federal water power act by acts of April 19, 1930 (46 Stat. 222), May 9, 1930 (46 Stat. 265), May 14, 1930 (46 Stat. 279) June 13, 1930 (46 Stat. 583), July 3, 1930 (46 Stat. 853), and Mar. 3, 1931 (46 Stat. 1514).

NOTES OF

In general. This section does not attempt to invest Commission with all authority of Government to do things that may be done in control and improvement of navigable streams but is definite and restrictive. Law of State controls as to rights of use in waters within its border. U.S. v. Central Stockholders' Corporation of Vallejo (D.C.Cal. 1930) 43 F. (2d) 977, affirmed without reference to this point (C.C.A. 1931) 52 F. (2d) 322.

United States has no differ nt or superior right as riparian proprietor to that assigned to private ownership and United States claiming right to have determined by Federal courts its right, through licensees, to store for power purposes waters tributary to river, in manner in which courts of State conclusively determined no ripa

DECISIONS

rian owner could do, held not entitled to relief prayed for. Id.

The delegation of power contained in this section is valid. State of Missouri ex rel. and to use of Camden County v. Union Electric Light & Power Co. (D.C.Mo. 1930) 42 F. (2d) 692.

Scenic, recreational or like consideration as justifying refusal of license.-In entertaining applications for licenses the Federal Power Commission should look only to the effect of the proposed project upon interstate and foreign commerce, and it should not refuse a license because of scenic, recre. ational, or like considerations. The granting of a license by the Federal Power Commission to the Cumberland Hydro-Electric Power Company to construct a dam on the Cumberland River near Cumberland Falls

would not operate to interfere in any way with the power of the State of Kentucky to acquire, under the power of eminent domain, the site of the proposed dam and the adjacent lands for recreational or park purposes. (1930) 36 Op. Atty. Gen. 314.

Navigability of waters as affecting granting of license.-In dealing with applications for license the Federal Power Commission is required to determine the fact of navigability of any given stream. (1930) 36 Op. Atty. Gen. 314, holding further that the Federal Power Commission has juricdiction to entertain an application of a power company for a license to construct a dam on the Cumberland River, in Kentucky, and that the Commission should grant such license unless the effect of the dam would be to impair substantially the navigable capacity of the lower reaches of the river.

Findings. A finding of the Federal Water Power Commission that projected work is in aid of navigation is not conclusive on the courts in the absence of evidence to support it, even though the license is in form within the delegated powers of the Commission. Little Falls Fibre Co. v. Henry Ford & Son Inc. (N.Y. 1928) 164 N.E. 558 affirming (1928) 229 N.Y.Supp.

445, 223 App. Div. 559 which in turn had modified and affirmed (1926) 217 N.Y.Supp. 534, 127 Misc. Rep. 134; affirmed on other grounds (1930) 280 U.S. 369.

Review of determination of Commission.Courts have no power to interfere by injunction to control the exercise of the discretion committed to the Commission. State of Missouri ex rel, and to use of Camden County v. Union Electric Light & Power Co. (D.C.Mo. 1930) 42 F. (2d) 692.

The jurisdiction of the Federal Water Power Commission to issue a license for the use of the waters of the Hudson river for power purposes and the effect of such a license are to be determined by the courts. When some right asserted under a license becomes the subject of actual controversy, excess of jurisdiction is a necessary ground for judicial review to maintain the supremacy of law and keep administrative boards to the exercise of their delegated powers. Little Falls Fibre Co. v. Henry Ford & Son Inc., (1928) 164 N.E. 558, affirming (1928) 229 N.Y.Supp. 445, 223 App. Div. 559, which in turn had modified and affirmed (1926) 217 N.Y.S. 534, 127 Misc. Rep. 134; affirmed on other grounds (1930) 280 U.S. 369.

1886. Flood control; adoption of project.

NOTES OF DECISIONS

In general. The legal project to be executed under the provisions of this section is the project set forth in House Document No. 90, Seventieth Congress, first session;

and this project is fixed and not subject to review or change by the administration. (1929) 36 Op. Atty Gen. 80.

1889. Inland waterways transportation; development by Secretary of War.

The Chief of Engineers is hereby authorized to have printed a further edition of the report entitled "Transportation in the Mississippi and Ohio Valleys," prepared by the Board of Engineers for Rivers and Harbors in cooperation with the United States Shipping Board under authority of section 500 of the Transportation Act approved February 28, 1920 (to be brought down as nearly as possible to date), to be paid for from appropriations heretofore or hereafter made by Congress for the improvement of rivers and harbors; and the cost of printing such other reports and data as are prepared in compliance with that law and with section 8 of the Merchant Marine Act, approved June 5, 1920 (not exceeding $35,000 in any one year), may be paid from similar appropriations. Sec. 6, act of July 3, 1330 (46 Stat. 948), authorizing improvements on rivers and harbors.

The above provision is added as a new paragraph of this section.

1890a. Same; acquisition of Erie and Oswego Canals.-The Secretary of War is authorized and empowered to accept from the State of New York the Stateowned canals known as the Erie and Oswego Canal and to operate and maintain them at their present depth, at an annual estimated cost of $2,500,000, as barge canals only, and not as or with any intention to make them ship canals or to hinder or delay the improvement of the Saint Lawrence Waterway as the

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