ANDEBSOli '0. SCULLY.
(District Oourt. S. D. Nriw York. May. 1887.)
NEGLIGENCE-WHARVES AND SLIPS-LICENSE TO
, Vessels necessarily mooring in the slips of this harbor. outside of other vessels next th,e wharf, have an implie(j UceJ;lse for their officers and men to cross the intervening boat for necessary purposes on shore; but such a license does not impose any duty upon the owner, as respects the licensee, to keep all possible modes of crossing safe,but, at most, only such passage-ways as are designed or known to be used as such. '
SAME-CASE STATED-QPEN-DECK BOAT-HATCH COVERS MISPLACED.
ascow lying outside of the
The canal-boat L. E. having properly moored within a slip, along-side of M., the libelant undertook to go across the scow to reach the Wharf. The scow was an open-deck boat. with a rOQf beginning two, and one-half feet above the deck, formed by numerous hatcl:!. covers. ' The libelant, instead of going around and passing along by the deck, clambered upon the roof of hatch COvers in order to go strl:light across. 'As he stepped upon the hatch covers beyond the peak, he fell through into the hold, through some insecurity of the covers, and soon after died. Held, that the SCOW was not answerable for damages, for the reason that crossing over- ' the hatch covers, though sometimes practiced, was not the mode of passage designed. ,nor a that owner was bound maintain as suc,h for the benefit of lIcensees, there bemg a safe passage by the deck; and that there was no invitation or inducement from the scow to the libelant to cross the hatches" nor anything in the nature of a trap or pitfall in the passage he would be naturally expect¢, to take.
Hyland for libelant. ' Edwd. D. Mc(Ja,rthy, for respondent.
BROWN, J. On the morning of June 8,1886, the canal-boat, LIzzie Eu.gene was brought froIn HOQoken to the pier at West Twepty-fourth street, North river, to take coal from the steamer Martello, which lay along-side the Wharf. Outside of the steamer lay Scow No.9, which was also engaged in the same workof discharging the Martello for the company. The canal-bollt had brought a large skid from Hoboken for the use of the scow, The captain of the on arrival, having moored along-l:!ide No.9, started to cross the latter boat to report to the stevedore in ret'erence to the skid: In crossing the scow, he fell down into the hold, and was so badly injured that he died within a few hours. This action is brought by the administratrix to recover for the negligence of the scow, under the law of the state, which gives an action for damages for death caused by negligence, not exceeding the sum of 85,000. The scow was what is known as an "open-deck boat," having a narrow deck passage-way along each side, and in front, and at the stern; while the center of the boat was divided into four compartments of hatches, which were supplied with large hatch covers, forming a roof with two sloping sides. The deceased, instead of going around by the deck passage to cross to the Martello, after reaching clambered about two and one-half feet upon the hatches, which were securely fastv.31F.no.3-1l
ened upon the port side, ascended the roof-shaped hatches to the central peak, and, as he stepped upon the hatch covers upon the opposite side of the peak, fell through, because, as alleged, the covers were not in proper place. The only witness of his fall was his son, who was a few feet behind him. There is considerable difference in the testimony as to the precise spot where he fell; the respondents claiming that it WRsat a point where the hatch covets had been taken off and piled several upon each other, so that the deceased must have stepped upon the pile, which slipped, and '\ caused his fall.. The son, however, who saw the fall, testified to the cc;m tra,ry;, , I do not think it necessary to detennine this question; for, uponthe other branch' of the case, I feel bound to hold that ,there was no such obligation .or duty owed by the, scow to persons crossing the hatches, in the. way the deceased attempted to cross, as to :constitute legal negligencetowatds him, even if the hatch covers were not in a secure position; and consequently thatnollctionunder the 'statute has accrued. In case of vessels :moored of necessity along-side of each other, in this harbor, tnere is, I think, an implied .license to those having business on the docks .to cross and re-Cross the vessels that lie between. But this license is not accompanied by any duty to keep all parts of the boat crossed over secure against possible accident'to strangers who may hurry across at any time, and in any without notice or inquiry. Belford v. Canada SMpp. 00.,35 Hun, 347. The deck furnished a safe and easy passage in this case. It 'ras the natural and proper passage. 'The roof formed by the hatch covers was not designed as a passage-way. TherewasuQthing reasonably calculated to lead persons wishing to cross the boat to suppose that the hatches .were designed for any such purpose, and'there was nothing that could be construed as an invitation or inducemeiit toatrangers to climb 'up two and and pass over them, instead of going round by the'deck. The p:eneral principles applicable to accidents to licensees are fully discussed by'lJIGELOW, C. J., in the case of Sweeny v. Old Colony R. 00.,10 Allen, ahd they do not sustain a recovery under circumstances like the present. There was nothing here in the nature of a trap or pitfall in the passage which persons g()ing to and from the dock would nat.:. urally be. expected to take. See Bolch v. Smith,7 Hurl. & N. 736, 744.. The evidence shows, indeed, that persons in haste might, and no doubt often did, run across the hatches, but I must regard this as done at their own risk. It would be' Unwarrantable extension of an implied duty to hold the boat bound to make all possible ways of crossing by strangers safe, and I cann()t regard the hatch covers as constitutIng such a) natural or usual passage-way as entitled strangers, upon a mere licenseufthis kind) to have them maintained safely for their benefit, attbe owner's peril. I feel eonstrained, therefore, to dismiss the libelj but it must be without costs.
(DiatrictOourt;S,.D. Nf/IJ) York. April 6, 1887.)
In Admiralty. Alexander « Ash, for libelants. Peter S. Carter. for Winslow and others.
BROWN, J. The Niagara is a domestic vessel, against which libels have been filed in the above causes to recover for supplies furnished, the libelants claiming a lien therefor under the state law of 1886, c. 88, § 2. The claimant contends that no. recovery can be had, because section 2 of that act provides that" in all cases such debt shall cease to bea lien upon such ship or vessel unless the person having such lien shall, within 30 days after said debt was contracted, cause to be filed in the county clerk's office a specification of the items of the debt," etc. The libel in the first cause above named was filed on the tenth of January, 1887; in the second case, on the twelfth of January, 1887. The vessel was arrested by the marshal on the tenth of January, and was sold on the thirty-first. 'l'he clause in the state law above qnoted is a substitute for the provisions of the act of 1862, c. 482, § 2, which declared that the debt should cease to be a lien upon the vessel's leaving port, unless the party having the lien should, "within 12 days after her departure," cause such specifications to be filed, etc. Under that act, it was held that the filing of specifications before the departure was not a compliance with the act; and, unless they were filed within 12 days after the departure, a subsequent arrest of the vessel could not be sustained. Squire8 v. Abbott, 61 N. Y. 530; King v. Greenway, 71 N. Y. 413. But it was also held that, where the vessel was arrested and gave bonds for herrelease within 12 days after such departure, the filing of specifications was not necessary, because the bond given superseded any further need ofspecifiations. Sheppard v. Steele,43 N. Y. 52; Onderdonk v. Voorhis, 2 Rob. (N. Y.) 24.
lReported by Edward G. Benedict, Esq., of the New York bar.