No. 27 | 2d Cir. | Oct 23, 1925
(after stating tho facts as above).
Tho scope or legal content of the “pier end statute” has been fully set forth in The Amanda Moore, 257 F. 405" court="2d Cir." date_filed="1919-02-14" href="https://app.midpage.ai/document/the-new-york-central-no-18-8811574?utm_source=webapp" opinion_id="8811574">257 F. 405, 168 C. C. A. 445, and a little more recently in The Daniel B. Flannery (C. C. A.) 282 F. 545" court="2d Cir." date_filed="1922-06-05" href="https://app.midpage.ai/document/flannery-v-national-coal--ice-co-inc-8826572?utm_source=webapp" opinion_id="8826572">282 F. 545. So far as the meaning of the statute is concerned, we have nothing to add to these eases; but this litigation raises tho point (novel so far as wo know) whether the City Charter can regulate, or practical
We think it clear that when, as here, the United States determined to aid navigation by deepening the channel off the end of Pier 68, the City Charter was ineffectual to prevent or punish the necessary dredge occupying a place necessary for work. The dredge, therefore, non obstante the statute, was lawfully where it was. As the dredge was useless without a dumping scow, the scow was by necessary implication entitled to be .where she was. It is quite true that the scow was loaded and working hours had just ended. It was the duty of those in charge of the dredge to get the scow out of the way as soon as possible, but we think she was hit before the expiration of a reasonable time wherein to cause her removal.
If, as we now hold, the pier end statute did not, under the circumstances stated, apply to the dredge or scow, the sole question is whether those in charge of the Morristown were guilty of negligence. As we pointed out in The Eli B. Conine, 233 F. 987, 147 C. C. A. 661, negligence is .usually error of judgment. The Morristown’s master saw plainly what turned out to be a situation of danger; he thought there was no danger, so he went ahead. This is negligence.
Decree reversed, with costs, and cause remanded, with direction to assess libelant’s damages.