HAGAN V. BROCKIE.
The position of the canal-boat was known; while lying in the saDie place the Tiger Lily had passed her on the same day without doing any damage. The narrowness of the channel made it incumbent on the Tiger Lily, at low ebb-tide, to use all possible precaution to avoid. doing damage to a vessel moored where the canal-boat was. The pilot of the Tiger Lily, who is the only witness called ill her behalf, and who is contradicted by the libellant, says that his boatwasillowed down as much as possible before she reached the bridge. But lie also says that her wheels are small, and when going at half speed she cteates no swell. On this occasion she did create a sitCtion strong enough to part six. of the canal-boat's lines,some three and some Mut inch lines, and to break up the combings and start tHede'ck. Tnes13 facts compeltheinferenM that the wheels of the this' occa'sion kept mo'Ving with' more powert4'an wa's necessarY' to enable her to pass tile bridge and reach her lartdfng.' Because of fault,· I hold het responsible for the damage to the lipella:nt'sb'Oat. ' ...... , . r
v. BROOKI:1Il and another.-
(District Uourt, E. D. PennsylfJania. February 17,1882.)
1. OF BARGE- OWNER OF WHARF-INJURY FROM OBSTRUCTION IN DOCK-LIABILITY.
Neither the charterer of a barge, nor the owner or tenant of a dock into which the charterer orders her, is liable for injury to the barge causen by the previous displacement of piles in dredging, if they had no knowledge or notice of the displacement, or any reason to anticipate It.
2. SAME-NEWLy-DREDGED DOCKS. The evidence in this case held not to sustain libellant's allegation that newly-
dredged docks were usually considerl'ld unsafe for barg-es, on account of the tendency of the dredging-machine to pull up or uncover old logs 01' spiles.
In Admiralty. Libel by Peter Hagan, owner of thE' barge William, against William Brockie and the American Steam-ship Company, to recover damages for the sinking of the barge. The testimony disclosed the following facts: The barge was chartered by William Broe-kie, who was shipping grain to Europe. It was to be used for the purpose of receiving grain from small vessels and unloading it into ocean steamers of the American Steam-ship Company. The master was ordered
.Reported by Frank P. Prichard, Esq., of the Philadelphia bar..
byMr. Brockie to take the barge to a dock adjoining a private whad . owned by the Pennsylvania Railroad Company, but used with the permission by the American Steam-ship Company. After lying there a short' time, a dredger arrived to dredge the dock, and the barge, by Mr. Brockie's orders, proceeded to another dock. After the dredging was completed, the barge, still acting under Mr. Brockie's orders, returned to the railroad company's dock, and while there was sunk by reason of two spiles which projected from the wharf, under the surface of the water, and which at low tide were forced through the bottom of the barge. Libellant produced testimony to the effect that newly-dredged docks are usually cousidered dangerous to barges because of the tendency of the. dredging-machine to pull up or .uncover old logs or spiles; that the master objected to enteringthe dock on that account;; and that he only his upon the positive ordersof)\Ir. Brockie's agent,and a promise of· indemnityagainst damage. Respondent introduced testimony to contradict both the danger and the promise. The evidence showed that respondents had no actual knowledge or notice of the existence of the spiles. George P. Rich, for libellant. Williams Carter and P. Henry, forre.spondent Brockie. Henry G. Ward, for respondent the American Steam-ship Company. BUTLER, D. J .. case rests on his a1legation of negligence. The respondents were not insurers; but were bound to the observanee of proper care.. Does the evidence sh(l)w that they failed in this?' The dock was dredged immediately before the barge entered. This is not only the usual, but the 'universal, method of removing obstructions and rendering the channel safe. :How, then can the respondents justly be charged with negligence? As libelhmt has. undertaken to show actual respects Mr.. knowledge of danger. But even if the testimony appealed to is credited, it falls short. It shows notice simply that the master believed It newly.dredged dock unsafe" for such vessels. This was of no importance,and thema.sterwas justified in disregarding it, unleSS the 'belief corresponds with common experience. The libellant has, however, produced testimony to show that it does correspond with Buchexptlrience-that freshly-dred3ed dOQks are frequently found to be unsafe for 'the entrance of barges, amlthat this ,is ,80 well understood that they al1ecommonly subjElctedto inspection before Buch vessels enter. The testimony, when all considered, in my judgment,
H'CANN V. CONERY.
does not'sustain the position. Its weight, I think, is clearly the other way. A number of witnesses, of very large experience, testify that they never heard of such danger, and that docks are never inspected after dredging, except to ascertain the depth of channel. It is probably true, as stated by one of the libellant's witnesses, (Patrick Powderly,) that bargemen entering such docks use their poles to feel for obstructions. This is the kind of precaution, says this witness, that is taken, and that it is the only precaution he has known. It was resorted to by the barge in this instance; but unfortunately the disarranged pile was not discovered. Under the cIrcumstances shown, and in view of common usage and experience respecting the cleansing of docks, it would be unreasonable to hold the respondents guilty of negligence. They had no reason to apprehend the displace. ment of the pile; it was a very extraordinary circumstanM,-not to be anticipated,-and the injury resulting from it was; therefore, one To hold the respondagainst which pl'oper care ',,,"ould e"!lts liable under such circumstances would be to make them in· surers. This view of the' case renders an examination of other questions discussed unimp0rtant·. The libel must be dismissed.
Assignee, etc., v.
lIMtrict Oourt, E. D. Louisiana. March, 1882.)
CHARTER-PARTy-OBLIGATIONS OF PAnTIES TO.
The law places upon owner of a vessel theobliga:tion of a warrantor that the vessel is seaworthy. The charter-party declaring that the was in good order and condition, the presumption is in favor of seaworthiness. The. charterer, therefore, assumes the obligation that the vesSel will continue to bl; capable proceed on.her voyage, so f&r as relates to all defects which could be ascertained by inspection, and the owner assume4. th\!o obligation that the vessel would continue to be able to proceed, so far as to latent defects; that if the jury found that the accident which interrupted the boat, namely, the breaking of the Ahaft, was the result of a defect which W&s ascertainable by inspection, then the owner could recover; but if of a defect which was latent, then the verdict must be for the defendants.
J08eph P. Hornor,dor plaintiff.
Okarks B. Rickard H. Browne, Jtjh"" H. Kennard, W. W.· Howe, S. K Prentiss, and H. H. Walsh, foridefendants.
-Reported by JOBeph P. Hornor, Esq., 'of the New Orleans bar.