139 F. 855 | D.N.H. | 1905
This is a libel in personam by the owner of the barge Elmwood for injuries sustained by the barge in lying at the dock of the respondent. The libel alleges, and the answer admits, that a certain cargo of 1,248 tons of coal was shipped to the respondent upon the said barge, and, by the terms of the bill of lading, wa§ to be delivered to him at his wharf, known as “Walker’s Wharf,” at Portsmouth, to be there discharged by him. The libel alleges that the barge grounded in the dock by reason of its uneven bottom, and particularly because of the existence of a ridge or bar running across it; the. existence of both the uneven bottom and of the ridge being unknown to her master. The Elmwood was a wooden barge, 186 feet long, 35 feet beam, drawing 14J4 feet forward and 15J4 feet aft. On February 1, 1899, she left Philadelphia with her cargo in tow of the tug Argus. On February 10th she arrived at the wharf of the ^respondent at Portsmouth. The next morning she was taken in tow by a river tug, and brought up to the dock of the respondent, where she proceeded to discharge from her forward hatch. After the discharge of the forward hatch, it was determined to move the barge forward in the dock so as to locate the fourth hatch under the coal hoist, but whether this was at the instance of the respondent or of the captain of the barge is in dispute. The respondent, however, admits that he said to the captain that the berth was clear; that the captain said that he “thought the proper thing to do would be to take the stern hatch, the after hatch.” The respondent testifies: “I told him it was all right; there was plenty of water. * * * He says, T will move her ahead, and take the stern hatch out, the fourth hatch next.’ * * * I didn’t say anything to him any more after that. * * * He never asked me for a guaranty until he was fastening, and then he says, ‘It is all right?’ and I says to
“The master, being ignorant of the channel, had the right to rely on the judgment of the respondent, who was present, and, receiving no warning of the danger from him, to assume that the water was sufficient for his vessel. The silence of the respondent under the circumstances was equivalent to an assurance that the depth of the water was sufficient, and amounted to an express invitation to enter.”
See, also, opinion of Judge Webb in Stevens v. Donnell, unfiled memorandum decision.
In the case at bar the dock owner, not merely by his silence, but by express language, assured the captain of the barge that there was plenty of water. In addition to the representation which the law implies from the owner of the dock inviting vessels to enter, there was therefore in this case an express representation of safety. Although a dock owner does not guaranty the safety of vessels coming to his wharf/he is under the duty of exercising reasonable .diligence.in ascertaining the condition of the berths, and, if there is any dangerous obstruction, to remove it, or give due notice of
It now becomes necessary to inquire whether or not the libelant was in fault. The captain of the barge relied upon the assurance of the respondent as to the condition of the dock. He took no soundings. He was prevented from taking such soundings for at least a part of the time by the ice in the dock; and he relied upon the assurance of the respondent as to the amount of water and the condition of the bottom. Under the circumstances of this case the testimony forces me to the conclusion that the master was justified in relying upon the statement of the respondent, and was under no duty to take soundings. The case presents a different state of facts from those in the Union Ice Co. v. Crowell, 55 Fed. 87, 5 C. C. A. 49. In that case Judge Webb held that the circumstances placed upon the captain the duty of making personal inspection, the master of the Weybosset having been told that his vessel was larger than others that had loaded there, and he having full opportunity to make personal investigation. Smith v. Burnett, 173 U. S. 430, 19 Sup. Ct. 442, 43 L. Ed. 756; Garfield, etc., Co. v. Rockland-Rockport, etc., Co., 184 Mass. 60, 67 N. E. 863, 61 L. R. A. 946, 100 Am. St. Rep. 543; The Calvin P. Harris (D. C.) 33 Fed. 295; The John A. Berkman (D. C.) 6 Fed. 535.
It is insisted also by the respondent that the barge was unseaworthy and improperly manned and equipped at the time of the injury. Without discussing the testimony bearing upon these issues of fact, the court is of the opinion that the barge appears by the evidence to have been in a reasonable condition of seaworthiness, arid to have been properly manned and equipped at the time of the injury. I am therefore of the opinion that the libelant was not in fault.
The libelant is therefore entitled to a decree in its favor. Reference may be had to a master for an assessment of damages.