199 F. 964 | S.D.N.Y. | 1912
(after stating the facts as above). The Kingswood came to the mooring place complained of on October 31, 1911. During the preceding summer the Bonsalls had at their own expense established two buoys in front of their place of business at Bergen Point and on Newark Bay, a short distance below the railway bridge of the New Jersey Central Load. It is shown that the buoys were located under the direction of the supervisor of anchorages, and on June 23, 1911, mariners were officially notified that two “first-class can white” mooring buoys had been established “in about 19 feet of water,” and were to be “maintained continuously by the S. W. Bonsall Timber Properties, Limited, of New York City and Bergen, New Jersey.”
According to the charts in evidence, the buoys were actually situated in about the depth of water given (and perhaps a little more) at mean low tide, but very near much shoaler water. The buoys lay in a line approximately north and south, with the channel to the west
The Kingswood is a vessel of 1,205 tons net, and the only craft of her size which down to the time of trial ever moored to these buoys. Pursuant to orders given by the subcharterers (Bonsalls) the Kingswood moored head and stern, pointing northerly, on October 31st. The first mate declares that:
“As soon as we tied up, we dropped the lead over, and found it was 10 feet just inside of the ship on the shore (i. e., easterly) side of the vessel.”
It is alleged in the libel that, on—
“November 1st, while the vessel was moored to these buoys, they dragged, and the vessel took the ground, doing certain damage to her hull, shaft, and machinery.”
The depositions of the master and mate of the Kingswood satisfy me that the first dragging did occur on November 1st, although the witnesses sometimes say that it happened on the day of their arrival, and at other times on the day alleged in the libel. The matter is only important in ascertaining when the officers of the Kingswood took their first additional measure of precaution. It is believed that they did nothing until November 1st, when, having observed that the “buoys began dragging home” when we “commenced wheeling on the head mooring,” they dropped the port anchor. Any investigation would have shown that the danger to be anticipated (if any) was a soft mud bank very near the vessel’s starboard side, and the anchor on a short cable dropped perpendicularly from her hawse pipe was useless to prevent stranding under the combined influence of a northerly or westerly wind and the ebb tide.
As matter of fact, the wind shifted (according to the record) to northwest about midnight of October 31st, and blew mostly from the north and northwest during all of November 1st. On that day the Kingswood’s master notified his charterers, not that he was aground, but that he had been informed that his “steamer is lying on a line of pipes communicating with” certain oil works on the adjacent shore. The captain testifies that his vessel got aground on the morning of November 1st, but that did not prevent his leaving the ship and staying away most of the day, and he admits that she was “lightly on ground.” The weather record shows no wind on November 1st above 34 miles per hour, and that only for a brief period. From all the testimony hitherto considered, I am not persuaded that any damage resulted from the grounding of the Kingswood on November 1st, if such grounding occurred.
For the succeeding six days the wind was prevailingly from west to north, and on November 7th it blew all afternoon and evening quite .strongly from those - directions, rising as high as 64 miles per hour. It is testified that this wind blew the vessel “further ashore,” and, while no physical injuries were discovered at the time, it is asserted
When the master was examined (by deposition), he was shown what purported to be “a copy of letter dated November 8, 1911, addressed to” Bonsalls. He identified the copy letter, and it was marked “Exhibit No. 10.” But this exhibit, when shown to the court, bears date November 1st, and contains a notification that the steamer “is lying aground, and I am informed resting on a line of pipes from the oil works.” During all this time the Kingswood was being rap‘idly unloaded, the representatives of Bonsalls were on board daily, and they all depose that no oral complaint was made to them, or any of them, by the master or mate.
That these mooring buoys were capable of being moved by the action of the elements alone appears from what occurred during the last winter, when they were admittedly shifted from their position by the action of ice. Considering, therefore, the high wind of November 7th, and the size of the Kingswood, and the subsequent history of the buoys, I am satisfied that she did on that day take the ground. That under such circumstances contact with the bottom would cause injury is probable, but the only definite piece of damage sworn to at this hearing is given by the engineer; but this is enough to warrant an interlocutory decree, without expressing any final opinion as to whether such grounding as occurred caused any substantial injury. Obviously, for whatever damages the Kingswood sustained by reason of an unsafe place to discharge the subcharterer (Bonsalls) is responsible.
“does not guarantee the safety of vessels coining to his wharf, but is bound to exercise reasonable diligence in ascertaining the conditions of the berths thereat, and if there is any dangerous obstruction to remove it, or give due notice of its existence to vessels about to use the berths.” Smith v. Burnett, 173 U. S. 430, 19 Sup. Ct. 442, 43 L. Ed. 756.
See, to the same effect, Smith v. Havemeyer (C. C.) 36 Fed. 927; Heissenbuttel v. Mayor, etc. (D. C.) 30 Fed. 456.
The charterer’s liability does not rest on an implied contract, as does that of the wharfinger, but on'the express terms of his charter party, which is to furnish, not only a place which he believes to be safe, but a place where the chartered vessel can discharge “always afloat.” It is, I think, proven that with a wind of 64 miles and an ebb tide these mooring buoys could not sustain the Kingswood any more than they did the next winter’s ice. In this harbor and in the month of November such winds are to be expected, and it follows that the charter obligation was not fulfilled by tendering a berth where the steamer could not lie afloat under conditions reasonably to be anticipated.
■ The libelant is entitled on this branch of the case to recover but half damages, for which a decree will pass against both the respondent and the Bonsall Timber Properties, Limited; execution to proceed in the first instance against the Bonsall Properties, and any unrecovcred balance to be paid by respondent. No disposition is made of the question of costs at present, until it shall appear whether libelant is able to prove any substantial damage proximately caused by the grounding of November 7th.
