The opinion of the court was delivered by: GALSTON
This criminal action is based on an information, filed February 16, 1951, which reads as follows:
'That on or about the 26th day of July, 1948, in the vicinity of Steinway Creek, which outlets into the tidal waters of the East River, within the Eastern District of New York, and within the jurisdiction of this Court, the defendant, Michael N. Cavalliotis, did unlawfully permit and cause to be sunk the trawler Gloucester on the south side of said Steinway Creek at 38th Street near 18th Avenue, Astoria, in such a manner as to obstruct and impede navigation in the harbor of New York and its adjacent tributary waters, and failed to commence the immediate removal of same and prosecute such removal diligently, in violation of Title 33, United States Code, Section 409 and 411.'
By stipulation, the parties agreed to a trial by the court without a jury.
The defendant is the owner of the trawler Gloucester, which is tied up near the offshore end of the mooring rack of the Tri-Boro Ship Yard, Inc., in Steinway Creek. Steinway Creek empties into the East River. On the opposite side of the creek is the dock of the Consolidated Edison Company in Long Island City. The Gloucester is approximately 167 feet long by 22 feet wide, with a draft of 8 feet. It is steam propelled and has a wood hull.
The vessel was towed to its present mooring from Baltimore, Maryland. Due to faulty mooring the hull sprang a leak, causing the stern to sink, and it is resting in the mud alongside the mooring rack. The forward portion and bow, as well as the smoke stack, is visible above the tidal waters of the creek. The vessel is fastened to the rack by three 3-inch lines forward and three 3/4 -inch cables amidship. It is not marked by any bouy, beacon or other lights.
The width of Steinway Creek between the rack at which The Gloucester is tied up and the dock of the Consolidated Edison Company opposite, is from 250 feet to 270 feet. The end of the rack extends about 50 feet beyond the sunken stern of the vessel, according to Government witnesses, but defendant testified that the rack extends about 100 feet beyond the vessel.
Section 409 of Title 33, U.S.C.A., states:
'It shall no be lawful to tie up or anchor vessels or other craft to navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; or to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels; * * *. And whenever a vessel, raft, or a navigable channel, accidently or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, * * * and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States as hereinafter provided for.'
Section 411 of Title 33, U.S.C.A., sets forth the penalty for obstruction of navigable waters.
Section 409 is concerned with 'navigable channels'. The generally accepted definition of navigability, approved in recent decision of the Supreme Court, see United States v. Appalachian Electric Power Co., 311 U.S. 377, 406, 61 S. Ct. 291, 298, 85 L. Ed. 243, is that given in The Daniel Ball, 10 Wall. 557, 563, 19 L. Ed. 999, as follows:
'Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, * * * when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by waters."
The judicial standards to be applied in determining whether a particular waterway is navigable within the meaning of the statute, 'involve questions of law inseparable from the particular facts to which they are applied'. United States v. Appalachian Electric Power Co., supra, 311 U.S. at page 404, 61 S. Ct. 291, 85 L. Ed. 243. In the case at bar, the only evidence of any navigable use in fact of Steinway Creek is testimony that coal colliers delivered coal to the Consolidated Edison Company dock. It was testified that these colliers draw from 27 feet to 29 feet of water. Exhibit 3, a map of the United States Coast & Geodetic Survey, published in July 1947 (with lights, beacons, buoys and dangers corrected for information received to November 26, 1951) indicates that on the side where the Consolidated Edison Company dock is Steinway Creed is from 29 feet to 31 feet deep at the mean low water. This part of Steinway Creek, which is the deep channel, is indicated on Exhibit 3 in white shading. Exhibit 3 shows the depth on the opposite side of Steinway Creek where The Gloucester is tied up as 7 feet at mean low water. This part of the channel, varying in depth from 11 feet at the mouth of the Creek to a high of 12 feet and a low of 3 feet, is in blue shading on Exhibit 3.
Though the Government offered no proof that Steinway Creek is actually navigated by vessels of smaller draft in areas of the waterway only 12 feet to 3 feet depth, it would appear that it is navigable by such vessels. Certainly any craft of proper draft could maneuver through this part of the channel.
The government contends that Steinway Creek is a navigable channel within the meaning of the statute from pierhead line to pierhead line. The navigability of Steinway Creek, unlike such adjacent large waterways as the East River and the North River, is not a matter of common knowledge of which judicial notice may be taken. Evidence of extensive and continued use is not necessarily controlling; susceptibility of use for transportation and commerce being the true criterion of navigability. United States v. State of Utah, 283 U.S. 64, 82-83, 51 S. Ct. 438, 75 L. Ed. 844. However, in the entire absence of evidence of any actual use or potential use, even of a limited or infrequent nature, there is very little in the instant case in the way of a factual peg upon ...