ELWELL V. TH:&GEORGIA.
'tDi8trict Court, E. D. Ne1J)York. October 6; 1887.).
ROTT<JMRy,..".VEBSEL IN DISTliESS-FAILURE TO NOTIFY'OWNER-WHENJU&TIFIABLE,
Where no speedy means of communication, exist between the place ;where a vessel is in distress and the place of residence of the owner, it is permissi· ble for the master to raise money on bottomrywitllout first notifying tlle owner.
SAME-TAKING CHARGE OF DISTRESSED VESSEL.
A sum of money was paid to a bottomry lender. who was master of anotller vessel. for allowing his mate to take cllarge of the vessel borrowingQn bottomry. On suit brought on the bond, held, while allowing, the bond, that it should be reduced by the amount 80 paid.
In Admiralty. The brig Georgia was in di/Jh::ess in the harbor of OldProvidenoo, her naed master and some of her crew having died, and the ve13sel being of supplies and without money. Money was advanced to her by libelant's assign of on request of the consul, and a new master was appointed, who executed a bottomry bond for the money so advanced. .No notice was giventlle owner 'If any intention to raise money on bottomry. The .from Nassau, N.P., being under the, English flag. All vessel the proof a/Jto ther,esidence of her nominal owner was that agent in New York had heard more than a year before tha.t he was in Matanzas, isno telegraphic communication between Old Providence and New York, where the owner's agent resided, anda letter seI,lt betweeI,l the two places' arrives in from nine to sixteen days. One hundred doBars was paid to the bottomry who was master of another for to take charge of the Georgia as master. allowing his Benedict, Taft &- Ben,edict, for libelant. Sidney Chubb, for claimant.
BENEDIC:J,',J. I am of the opinion that the objection taken .to the validity of the bottomry bond sued on, based on ,the failure to notify the owner of the intention to raise money on bottomry, is not well The circumstances proved are sufficient, in my opinion, to excuse the failure to notify the owner. I am also of the opin}on that the bond, should be reduced by the sum of $100, being the amount charged as paid to the bottomry lender for his permission to allow his mate to take charge ofthebrig as master. For the remainder of the bond,with the maritime interest, the libelant may have a decree.
G. Benedict, Esq., of the New York bar.
(DiBtricf (Jourt, 8. D. New York. November 18,1887.)
WHARVES-UNUSUAL CONDITION-DAMAGE ARISING THEREFROM-LACK OIl' CARE AND EXAMINATION-LIABILITY OF OCCUPANT.
The lessee and occupant ofa wharf is liable for damage arising from its un· usual and dangerous condition, unless he can show reasonable care and ex· JLtIlinationin regard to the condition of the wharf and slip.
SAME-DAMAGE TO VESSEL-STATEMENT OF CASE.
Respondents' wharf, instead of being perpendicular below the water line, extended considerably, into the slip. From one of the beams a spike projected, which injured the bottom of libelant's vessel when she went there to discharge. Beld, in the· absence of evidence of reasonable care and examina· tioq of the condition of the wharf by respondents, they were liable for the damage. .
Goodrich, Deady &: Goodrich, for libelants. John E. Parsons, for claimants.
BROWN, J. While the bark Formosa was lying along-side the dock that for many years had been occupied by the defendants for discharging cargo. she got upon a projection from the pier below the water-line, and \received some injury. Subsequently examiuation by a diver showed that the l;lide of the pier where the Forunsa lay, instead of being perpendicular below the water, projected considerably into the slip, the successive layers of crib forming a kind of stairs. A spike projected from one of the beams about six feet above the bottom, and tore off some of the copper of the vessel. There is no direct evidence to show whetheJ.' the side of the wharf was originally built in the manner above stated, or whether it had subsequently got into this condition accidentally. There is but a single statement in evidence that has any bearing on the question. viz., that similar vessels had previously been accustomed to lie there without injury. The libelant, in the course of the trial, propounded a question to a witness which, have thrown some light upon the cause of the condition of the pieri but, upon objection by the respondent, the question was withdrawn. It was proved, however, that such a shape of the side of the wharf was improper and unusual, and it was clearly dangerous; Such a wharf was plainly nota proper one, or in a proper conditibn below the water-line to receive vessels for the discharge of cargo. The defendant, as the lessee and occupant of the wharf, is, therefore, prima facie chargeable with negligence. To exonerate himself, it was incumbent upon him to show reasonable care and examination in regllrd to the condition of the wharf and the slip. No proofotithissubject'being adduced, the prima facie liability must stand, and the respondents held to answer for the damages. A reference may be takeQ to compute the amount.
IReported by Edward G. Benedict, Esq., olthe New York bar.