18 F.2d 775 | 2d Cir. | 1927
The city owned and maintained a public wharf for hire at the foot of North Hudson street, Brooklyn. At the north side of the pier lay the wreck of a sunken boat bows in, whose deck house projected above the water at all stages of the tide. The evidence does not show the character of the boat or of the visible house, except that it was variously described as a hay barge; a hospital boat and an excursion boat. Beneath the water the fore-deck of this boat ran towards the bulkhead about thirty feet
The wreck was not marked, nor did the city’s dock masters give any warning to the bolster's bargee that it extended so far beneath the water as it did. The District Judge held the city liable for this failure to give any warning and it appealed.
The duty of a wharfinger for hire to use reasonable care to furnish a safe berth is beyond dispute (Smith v. Burnett, 173 U. S. 430, 19 S. Ct. 442, 43 L. Ed. 756), and has been settled in many eases. But it is a sufficient discharge of his duty, if he warns vessels who use it (Schoonmaker v. N. Y., 167 F. 975 [C. C. A. 2]; The Imp [D. C.] 225 F. 668), though the burden is on him to show that this was done. The question here is whether the warning was as broad as the danger, and turns on how much the deck house disclosed. That it warned all Vessels of the existence of a submerged bow is beyond question, but it did not tell how far the deck ran forward.. That depended upon the construction of the sunken boat, which was unknown beyond the fact that it was apparently of substantial size and not an ordinary seov?.
It appears to us that the duty to ascertain this lay rather on the vessels mooring nearby than on the wharfinger. It was very easy to find out. All the bargee had to do was to stand at the stem of his hoister and with a pole find whether the bow of the wreck came so far. The general warning conveyed by the deck house seems to us as adequate as in The Hendrick Hudson (C. C. A.) 203 P. 694, which, though apparently not the case of a wharf for hire, turned on similar considerations. See too Peterson v. Great Neck Dock Co. (D. C.) 75 F. 683. In such cases it is indeed always a matter of degree how far the party primarily charged may safely rely upon the prudence of those who come upon the situation. There can be no general rule, and there will be no certain agreement. In laying down the relative duties in this situation we can do no more than attribute them as seems most reasonable, given the habits of ordinarily cautious people.
Similar situations though not involving Wharves were similarly dealt with in The H. S. Nichols (D. C.) 53 P. 665, 666, and McWilliams v. Penn. R. R. Co. (D. C.) 300 F. 687.
Decree reversed and libel dismissed.
