Morey v. City of New Rochelle

254 F. 425 | 2d Cir. | 1918

HOUGH, Circuit Judge

(after stating the facts as above).

[1] Admittedly the city’s responsibility is that of a wharfinger. One occupying this position is bound to “ordinary care and diligence,” and no more. Toxaway, etc., Co. v. Sulzberger, 242 Fed. 888, 155 C. C. A. 476.

[2-4] The mere fact that a wharf is so built, or that the berths alongside it are so obstructed, that special care is necessary on the part of any vessel using the wharf, is not per se evidence of that lack of care and diligence which is negligence. The existence of danger only increases the quantum of the wharfinger’s duty, and he must inform those in charge of vessels patronizing his wharf of just what they must expect to encounter. A vessel is justified in assuming that the wharfinger has better information than any one else in regard to the condition of his own premises. The Stroma, 50 Fed. 557, 1 C. C. A. 576. In this case proper information was given and means tested by time supplied for guarding against the known and recognized danger. Libelant’s master, who was his agent, chose to pursue methods of his own, and no reason appears why the principal should not be bound by his agent’s act. No legal difference exists between this case and that of Leo v. McCollum (D. C.) 107 Fed. 742, which in our opinion was well decided.

Finding, therefore, no negligence or lack of diligence on the part of the city as wharfinger, it is ordered that the decree appealed from be reversed, with costs of this court, and the cause remanded, with directions to dismiss the libel, with costs below.