130 F. 213 | E.D. Pa. | 1904
Libelants brought this action to recover damages caused to their barge Nellie while lying at the wharf of respondent, located in front of his Club House, along the Cohansey creek, in the state of New Jersey. She was loaded with 175 tons of coal, consigned to the respondent, and arrived there on May 31, 1903, at 4 o’clock p. m. The Nellie is a steam barge, of regular canal boat build, flat bottom and round bilge, 96 feet long, 22feet beam, and on this date was drawing 8 feet 4 inches aft and 7 feet 6 inches at the bow. The barge was moored with bow up stream and starboard side to the wharf. Capt. Campbell had been to this wharf, with the same barge, not long before, with a car load of dirt, and at the time was aivare of the fact that he would soon be required to revisit the place for the purpose of delivering the boat load of coal, at the request of re
It appears that Mr. Gandy informed the captain the boat had listed. It was found that the bow line running to the tree was taut, and the two spring lines were in the same condition. These, however, were put out for the purpose of preventing the barge from moving fore or aft; and, as explained by Mr. Gandy, the bow line to the tree would naturally be tight, owing to the ebb of the tide sweeping down against the bow. As to the bow line off to the wharf, there was some dispute as to its being taut or slack, but upon the whole evidence the court is led to the conclusion that it was as slack as the conditions reasonably suggested to a careful master.
The respondent was negligent in inviting the libelants to his wharf without providing a safe berth thereat, and his indifference as to the condition of the wharf and the reason for which the fenders were placed there by his manager will not exempt him from liability for any damage done in this case. The rule of law in cases of this kind is very plain, and established by a long line of decisions. In Moorcock, R. R. 13 Prob. Div. 157, defendants, who were wharfingers, agreed with plaintiff for a consideration to allow him to discharge his vessel at their jetty, which extended in the River Thames, where the vessel would necessarily ground at the ebb of the tide. The vessel sustained injury from the uneven condition of the bed of the river adjoining the jetty. Defendants had no control over the bed, and had taken no steps to ascertain whether it was or was not a safe place for the vessel to lie upon. It was held that, though there was no warranty, and no express representation, that there was an implied undertaking by defendants that they had taken reasonable care to ascertain that the bottom of the river at the jetty was not in a condition to cause danger to a vessel, and that they were liable. This case was quoted and approved by Chief Justice Fuller in delivering the opinion of the Supreme Court of the United States in Charles G. Smith et al. v. Charles Burnett et al., 173 U. S. 430, 19 Sup. Ct. 442, 43 L. Ed. 756.
Respondent had the ready means of obtaining information as to the condition of the bottom, but he took so little interest in the unusual fact of the existence of the fenders at his own wharf that he never inquired of his own manager, who knew all about it.
The defense of contributory negligence on the part of the libelants, when relied upon, must be affirmatively proven by a preponderance of evidence. Railroad Company v. Gladmon, 15 Wall. 401, 21 L. Ed. 114; Railroad Company v. Horst, 93 U. S. 291, 23 L. Ed. 898. It was not necessary for the 'libelants to show that the respondent was aware of the existence of the submerged piling which occasioned the injury of the barge. It suffices to charge the respondent with negligence that he could have discovered if he had exercised proper care to inform himself of the condition of the bottom. Smith v. Havemeyer (C. C.) 36 Fed. 927.
In the absence of warning as to the real reason of their existence, boatmen lawfully using the wharf cannot be considered negligent because they make an erroneous guess as to why the fenders were placed there.
The evidence that vessels and the yacht of the respondent has used this wharf for some time with safety was valuable only to show that under certain circumstances it could be used without occasioning injury to vessels using it, but was quite unimportant when it appeared beyond doubt that there were defects capable of producing mischief, which could have been readily discovered and remedied by a proper examination and inquiry by the owner. Smith v. Havemeyer (C. C.) 36 Fed. 927.
A decree is entered for the libelants, with an order of reference to assess damages.