[H. Rept. No. 114, 75th Cong., 1st sess.] STATEMENT OF FACTS This claim for $300 is based upon damages caused to an oyster bed in Oyster Pond River at Chatham, Mass., in the fall of 1931. A boat belonging to the United States Coast and Geodetic Survey landed in Oyster Pond River and the Government employees in charge of the boat make the contention that the water is uncharted and the Department claims that there was no carelessness or negligence in this operation. It is also stated by the Director of the United States Coast and Geodetic Survey that the waters in which the boat was operating were not familiar to the crew, and that the grounding was a reasonable hazard of navigation under such conditions. On the other hand, it is clearly shown that the oyster bed was properly staked out. On the basis of the information before us, we are of the opinion that the claimant, Mr. Nathan A. Buck, is entitled to compensation, and accordingly recommend that the sum of $300, asked for, be allowed. There is attached hereto to be made a part of this report, a letter from the United States Coast and Geodetic Survey, and several relevant affidavits. DEPARTMENT OF COMMERCE, UNITED STATES COAST AND GEODETIC SURVEY, Hon. LORING M. BLACK, MY DEAR MR. CONGRESSMAN: In compliance with the request contained in your letter dated December 9, 1932 (H. R. 13410), there are enclosed copies of all papers in the files of this Bureau relating to the claim of Mr. Nathan A. Buck of Chatham, Mass., on account of alleged damage to his oyster bed by a motor launch of the United States Coast and Geodetic Survey ship Natoma while engaged in surveying operations in Oyster Creek. Your attention is especially called to the copy of Bureau letter to Hon. Charles L. Gifford dated May 11, 1932, page 45 of the attached papers, and to the copy of the proceedings and findings of the inquiry conducted by Commander H. A. Seran of this Bureau, who was ordered to the Natoma in April 1932 for the express purpose of conducting this inquiry, pages 60 to 84. After a thorough and impartial investigation, it has been established that a motor launch of the Natoma did ground in Oyster Creek for a brief period, and that the possibility, therefore, does exist that some damage may have accrued to the oyster bed in question. The extent of such damage, however, cannot be established by this Bureau. The Coast and Geodetic Survey has no desire to evade any responsibility in matters of this kind when the damage is the result of carelessness or negligence on the part of the employees of the Government. No carelessness or negligence occurred in this instance. The launch personnel were operating in unsurveyed and unchartered waters of which they had no personal knowledge and the grounding was a reasonable hazard of navigation under such conditions. In this connection, your attention is invited to the fact that the area in question comprises navigable waters of the United States open to general maritime traffic. The question, therefore, arises for legal determination as to the validity of a claim against the Government for damages to private property in the bed of such navigable waters occurring as an incident to a legitimate exercise of the right to navigate such waters. Respectfully yours, AFFIDAVIT OF NATHAN A. BUCK COMMONWEALTH OF MASSACHUSETTS, Barnstable, ss: Nathan A. Buck, of Chatham, Mass., on oath makes affidavit as follows: On January 1, 1919, the selectmen of Chatham, Mass., granted me a license to plant, grow, and dig oysters in the waters of Oyster Pond River at said Chatham in the location therein described, for 15 years thereafter. This grant has been in full force ever since. The location thereof was duly marked out in accordance with law, and in the summer and fall of 1931 I had oysters planted thereon. In particular, I had one bed of 300 bushels planted, the planting being marked further by saplings planted at each of its corners, a mark understood by all users of inland waters to indicate a planting such as was here. In late August or early September of 1931 a party from the United States Coast and Geodetic Survey boat Natoma, disregarding the shape of the shore and the color of the water, which should have told one accustomed thereto that the channel lay much farther over to the right, came down the middle of this river where it was much shallower than in the channel and directly across this planting of mine, getting ashore at the place where the planting was on a falling tide, a little before low water. Instead of shutting off the power and letting the stern of the boat rise, when it might have been worked off easily without much damage, they kept the engine running and flopped around over a large area, digging up the sand and burying the oysters, causing the death of at least 100 bushels I did not discover this damage until late September or early October when I went down to my grant to work thereon. I then took this matter up with Congressman Gifford and with the United States Coast and Geodetic Survey and finally filed with the United States Coast and Geodetic Survey the affidavits of Ernest S. Eldredge, of Marcus N. Smith, of Cyrus A. Eldredge, and of George F. Simpson, fishermen who saw this damage committed. Copies of such affidavits were sent to Congressman Gifford. I at first stated the damage to be $200. In the light of after events I think this damage was understated. The oysters lost were as good as 30 barrels of shipping oysters, the value of which would be $300. NATHAN A. BUCK. Subscribed and sworn to this 31st day of August 1932, before me. My commission expires January 4, 1934. AFFIDAVIT OF GEORGE F. SIMPSON, OF CHATHAM, MASS. COMMONWEALTH OF MASSACHUSETTS, Barnstable, s8: George F. Simpson, of Chatham, on oath says: In the late summer or fall of 1931, I saw a launch from the survey boat Natoma come up Oyster Pond River twice, the first time coming to the shanty of Benjamin D. Gould to ask where the survey mark was, and said Gould went up the hill and showed them the location of the survey mark, when they dropped their boat down to the bulkhead of Marcus N. Smith and there unloaded their lumber, it being then nearly high water. The last time I saw them they came up river and anchored off said Smith's bulkhead about half ebb or a little more. They had to take their skiff to go ashore. I was working on a scow nearby when Ernest S. Eldredge; Mark Smith was on his scow a little farther south. Four men, one with white-top cap, khaki suit, and brass buttons went up the hill with two or three pieces of 2 by 4 lumber. They came back between 11 and 12, hauled down their skiff then dry, went aboard, got their anchor and started, headed upstream with the ebb tide, turned and went downstream on the east of the channel, well to the eastward and near the middle of the river. They got ashore on Nathan A. Buck's grant, and kept their engine going until we left some 20 or more minutes later. The boat swung clear around in a circle. Two men got on the bow with oars or boathooks pushing. Then two men took the skiff, pushed around and picked up some oysters, one getting overboard. When we went out of sight she had stopped moving, though her engine was still running. I don't know whether this was in late August when I started oystering or in September. GEORGE F. SIMPSON. Subscribed and sworn to this 16th day of May 1932 before me. My commission expires January 4, 1934. AFFIDAVIT OF ERNEST S. ELDREDGE COMMONWEALTH OF MASSACHUSETTS, Barnstable, ss: Ernest S. Eldredge, of Chatham, Mass., on oath makes affidavit as follows: In the late summer or early fall of 1931 I saw the launch from the survey boat Natoma up Oyster Pond River near the grant of Nathan A. Buck twice. On the first visit they were unloading lumber at the bulkhead dock of Marcus N. Smith; the other time I saw them was later, but I have no idea of the date, except that it was after the oyster season started. This last time I had gone to my shanty, which is perhaps 100 yards northeast of that of Marcus N. Smith, early in the morning, worked around the shanty a short time and then went on my oyster scow with George Simpson to a point near the southerly boundary of the oyster grant in which I am interested, which is close to the bulkhead on which Marcus N. Smith's shanty stands. The launch from the survey boat Natoma came up the river with 2 officers and 2 sailors, anchored in the river near Marcus N. Smith's shanty, put ashore a few pieces of lumber and all went up over the hill. It was then ebb tide. When they came down off the hill they hauled down their skiff which was then dry, as it was pretty nearly low water, though the tide was still ebbing a little, went off in their skiff to the boat which was tailing down river before the tide, started up toward us and turned and went down the river, proceeding to the eastward of the channel and got ashore on the grant of Nathan A. Buck. I did not then know that he had oysters planted in that particular part. We saw them some 20 minutes until on our way to our shanty the point cut them off from our view. All these 20 minutes we saw them they were somewhere 200 feet or so from us, kept their engine going all the time; at first after they gotlashore they had all of their men on the bow to dip her head down and make her draw less water aft, then they had two men out in the skiff shoving around and sounding and one of them got overboard and picked up something which I thought was oysters. The boat flopped all around out of control. Mark Smith had been there tonging oysters but left before we did and went up the hill toward his house. I have no idea of the date, except that it was after the oyster season started. It was along toward noon and the tide was still ebbing a little when they got their anchor and started. Cyrus A. Eldredge, of Chatham, Mass., on oath makes affidavit as follows: Late last summer, in the early morning, I saw the launch from the survey boat Natoma with some lumber near the shanty of Mark N. Smith, but not at his bulkhead. They were using a skiff to pass to and from the shore. Later on, when I was returning northward up river, I saw them out of the channel on the east side thereof on the oyster grant of Nathan A. Buck and hollered to them and pointed out where the channel was over to my left and to the southwest of where they were. They paid no attention, and I hollered, "You won't make it!" They would not have done so much damage if they had come straight ahead, but the launch had his men forward, and his propeller was out of water about 8 inches, just churning the water up, his bow veering back and forth, now almost headed to the easterly shore, now almost headed to the westerly shore. They were there about one-half hour and during that time did not shut off the engine.. When I first saw them I was rowing up the channel way southwest of them in a skiff; later I cut across between them and the eastern shore. The tide was then down and just about the first of the flood. The water was clear, and they should have been able to see the oysters. I could see the oysters in the channel where I was. I am unable to place the date and do not know which of their trips up the river this was. Subscribed and sworn to May 16, 1932, before me. CYRUS A. ELDREDGE. HEMAN A. HARDING, Justice of the Peace. My commission expires January 4, 1934. AFFIDAVIT OF MARCUS N. SMITH COMMONWEALTH OF MASSACHUSETTS, Barnstable, ss: Marcus N. Smith of Chatham, Mass., on oath makes affidavit as follows: I saw the launch from the survey boat Natoma in Oyster Pond River late August or early September three times. The first time at high water, when they came to and lay alongside my bulkhead at my shanty, and landed lumber which they took up the hill for the survey mark. The second time they came at high water and lay at that bulkhead and lay with some more lumber. The third and last time the tide was not high enough for them to get to my bulkhead so they lay at anchor in the stream, while the crew went up to the survey station and back. I do not know why. I first saw the boat this last time at anchor when I went down to the shore in the morning. There nearby I tonged oysters until almost low water and then started uphill to my house nearby to get my dinner. While I was at the shore, and just about leaving it, 2 officers and 2 sailors put their instruments in the skiff, went off to the launch, got their anchor and started downstream. When I had got part way uphill they were ashore on Nathan A. Buck's grant east of the channel. I watched them 20 or 30 minutes and they were still there when I left and went in to get my dinner. At that time Cyrus A. Eldredge was coming up the river toward them. While I watched them they kept their engine going all the time. After a short time they had two men out in the skiff sounding all around the boat for deep water. The boat was swinging all the way around the circle. I do not know what date this was but it was the third time that I saw them and it was after I began to tong oysters which was August 27. Subscribed and sworn to May 16, 1932, before me, MARCUS N. SMITH. HEMAN A. HARDING, Justice of the Peace. My commission expires January 4, 1934. |