(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thrown some light upon the cause of the condition of the pieri but, upon objection by the respondent, the question was withdrawn.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.
THE AMERICA. 1 MILLS
(Dlatriet Oourt, 8. D. New York.
COLLISION-TUGs-RULE OF THE STARBOARD lIAND-RIGHT OF WAy-RISK OF COLLISION.
The tug Tflisman, on her way from Weehawken to pier 5, New York, saw on her starboard bow the red light of the tulS America, bound from Jersey City to Thirty-fifth street, New York. The TalIsman attempted to cross the bows of the America, but was struck on her starboard quarter. The America 'slowed as the vessels approached,giving one whistle twice, and when the tugs were 50 to 100 feet apart gave an alarm si$nal, and reversed. She did not alter her helm. Held, that the Talisman was 1D fault fc;>r not avoiding the America, having the latter on her starboard hand; that the America was in fault, though she had the right of way, for not taking more effectual measures to avoid a collision as soon as she saw by the movemllnt of the Talisman's lights that there was risk of collisioll; and that the damages should be divided.
Goodrich, Deady &: Goodrich, for libelant. Biddle &: ,Ward. for claimant.
BROWN, J. The collision between the libelant's tug Talisman and the tug America occurred opposite Hoboken, between 11 and 12 o'clock at night, about one-third of the way across the river from the New Jersey shore. Considering that the America was on her way from Jersey City to the foot of Thirty-fifth street, New York, and the Talisman bound from Weehawken to pier 5, North river, I have no doubt that it was the that was first seen by the America's red light, and not the green pilot of the Talisman on the latter's starboard bow. The Talisman was, therefore, the one that was bound to keep out of the 'way of the America, 'Vhile the latter had the right of way. The Talisman must be held in fault, because there was plenty of room for her to have kept out of the way by porting; and because she undertook to cross the America's bows to starboard, instead of passing port to port; and because the America did nothing to mislead the Talisman, or to thwart her in her duty of keeping out of the way. As respects the America, the question of fault is less easy to determine. Some of the contradictions in the testimony cannot be recOIlciled. The greater fault is evidimtlyon the part ofthe Talisman, fot the reasons above stated. The America, according to the account of her captain, gave a signal of one whistle when the boats were, as he estimates, some 300 or 400 yards apart. Both of the Talisman's colored lights were then seen one or two points off the America's port bow. Getting no answer, the pilot ordered the engines slowed, and then repeated the same signal while seeing both of the America's colored lights. Directlyafter the last signal, he observed the Talisman's red light shut in, leaving her green light visible, which indicated that she was heading to-
lReported by Edward G. Benedict, Esq., oithe New York bar.