45 F. 507 | S.D.N.Y. | 1891
In actions brought against wharfingers for damages caused to vessels by obstructions in the slips and along the docks, it is a good defense, wholly or in part, that the vessel bad notice of the obstruction, and did not exercise reasonable care and diligence in .avoiding it. The Stroma, 42 Fed. Rep. 922; Christian v. Van Tassel, 12 Fed. Rep. 884. And see Crossan v. Wood, 44 Fed. Rep. 94; The Calliope, L. R. 16 App. Cas. 11. From this it follows that when the master of the Ives, which drew 15 feet, ascertained that at the berth where the ship was directed to go there were stones in the mud within a less depth than her draught of water at low tide, he was justified in refusing to go to the berth until it was made safe. He was not bound to take the risk of running upon the stones, or of settling down upon them, and of thus testing whether the mud would yield so much and so easily as to do his vessel no harm. Mr. Olds was the agent of the defendant railroad company, the consignee of the coal, and also of the New England Terminal Company, w’hich was the lessee of the wharf, and had the sole control of discharging vessels there. It was no doubt the duty of the latter to keep the slip free from injurious obstructions. The bill of lading shows that the cargo of coal was received by the defendant through Mr. Olds as their agent under this bill of lading, and that Mr. Olds acted in their behalf in noting the time of arrival and of discharge by his indorsements thereon. The terminal company discharged the coal into the defendant’s bin, and the evidence shows a detention of the vessel 10 days beyond the time provided in the bill of lading. The cause of this delay was in part the removal of the obstructions from the slip, which the captain demanded, and in part the slow rate of discharge afterwards, said to have arisen from the fact that the vessel was not brought close up to the wharf, where
It is set up in the answer, but not proved, that by the contract between the consignor and the consignee the former was to make delivery into the respondent’s bin on the wharf without charge to the defendant. But the bill of lading was plainly inconsistent with this agreement, as it imposed the payment of freight, as well as of demurrage, upon the consignee. It appears that the captain had no knowledge of the agreement alleged, and relied, as he was entitled to rely, upon the provisions of the bill of lading; and, as I have said, no objection to its provisions - was made. I must hold the claim for demurrage against the defendant, therefore, legally established, whatever may be the latter’s right, if any, to look to others for indemnity. Decree for libelants for $544.20, and costs.