Campbell v. Pennsylvania R.

85 F. 462 | 2d Cir. | 1898

PER CURIAM.

The two canal boats, with others, were lying moored in the slip on the south side of the Erie dock or pier, North river, Jersey City. Next below to the southward is the Abbatoir dock, and on its north side the car float, not being needed for use, was laid up. It was secured with three lines, had been thus laid up some two or three weeks, and on the fall of the tide would take bottom, and, the bottom being uneven would list towards the Erie dock. At about 1 p. m. of February 11, 1896, at low water, the float swung across the slip, owing to the rendering of her head line from the bow cleat, which caused her amidship line to part, the float at that time having a list from the dock, and the bottom where she lay being soft, muddy, and greasy. The low tide on which this happened was lower than any that occurred in the year 1895 or in the year 1896 down to the time of the trial, being 3-1* feet below mean low water,- — due to continuous heavy wind from the north and west. The district judge held that defendants were responsible, and we are inclined to concur in that conclusion. The defendants are not liable, as insurers, against all contingencies except the “act of God,” as that phrase is generally understood. They would certainly not be liable for the malicious act of a stranger casting the boat adrift, if they -had exercised proper care in attending to her fastenings. They were bound, however, to exercise such care and prudence in securing her as the circumstances required. And the cimitnshmces in tins case required a very high degree of care. Inasmuch as she had repeatedly grounded at low tide, they were chargeable with knowledge of the condition of the bottom, and, if they chose to leave her in that particular place without a watchman were hound to secure her so that the list she might he expected to take, should there be an unusual fall of the tide, would successfully be overcome. It would seem from the evidence that the lines were strong enough to hold her even on this day. had none of them rendered. To that extent they fulfilled their obligations. The lines were examined every morning by some one of defendant’s servants, and there is evidence that on two prior occasions it was found that the fastenings had been tampered with, and the lines slackened. The employe of defendant! who was there on the morning of the accident testified that lie found the bowline slackened too much, that he took in the slack, and fastened it to the cleat with a jamb-hitch. He described with great exactness the precise way in which he made this hitch, and the evidence is conclusive — libelant’s witness concurring with defendant’s — that, if thus fastened, the line could not render. On the other side, there is the testimony of a boy of 15 on one of the canal boats that he noticed the fastening the day before the accident, and again after defendant’s employd had left, and that it was not a jamb-hitch but simply ihree or four turns on the cleat. We have not had the opportunity of hearing these conflicting witnesses, and do not feel inclined to disturb the conclusion of the district court. The decree is affirmed, with interest and costs.