NEsBIT ". THE AMBOY.
continue further on the voyage. The testimony iii clearly insufficient to justify the court in disregarding the written articles. That libelant deserted the bark at San Diego without any valid excuse, and was not discharged as sworn in the libel, abundantly appears from his own testimany. There should be a decree dismissing the libel at libelant's cost; and it is so ordered.
'II. THE AMBOY AND THE TRA.NSFER
No. 2. 1
(Di8trict Court. S. D. New York.
November 27, 1888.)
LIMITATION OF ACTIONs-CaMMON-LAW PunoD-ADMIRALTy-DISCRETION OF -COURT.
The period of limitation fixed by statute in common·law actions should not be extended by discretion in admiralty cases, except for some cause of practical inability to sue, or for some peculiarity of a maritime nature that demands recognitio\n in a court of admiralty, and makes it plainly a matter of justice that this aiscretion should be applied.
SAME-VOLUNTARY DELAY-SIX AND A HALF YEARS.
Libelant, owner of cargo on a vessel lost by collision, did not bring suit for six and a half years after his loss. waiting, by advice of counsel, until the litigation as to the fault of the vessels had been decided in a suit by the owner of the lost vessel; but nothing prevented him or his assigns from suing at any time during that period. Ee,d, that the claim was barred.
In Admiralty. Action for damages through loss of cargo in collision. Hyland & Zabriskie, for libelants. Biddle & Ward, for the Amboy. Page & Taft, for the Transfer No.2.
BROWN, J. The above libelants were the owners of a cargo of brick on board the canal-boat Idle Hope, which was sunk on the 23d November, 1881,'while in tow of the Amboy, by a collision with the Transfer No.2, in going up the East river, to the westward of Blackwell's island. Upon a previous action against the defendant vessels, brought by the owner of the Idle Hope, both tugs were found in fault, and a decree entered against both in December, 1884, which, upon appeal, was affirmed in the circuit on July 14, 1886. The Amboy, 22 Fed. Rep. 555. The libel in the present case was filed July 6, 1888. The claimants- plead the statute of limitations; and, under the recent decision in the case of Southard v. Brady, ante, 560, I feel bound to sustain the plea. There has been no time since the collision during six and a half years when an action could not have been brought by the libelants or their representatives or assigns to recover their damages. It appears, however, that the claim was early placed in the hands of competent counsel, who advised waiting until the previous case was decided, in the expectation that, if the tugs were held liable, payment would be made without further legal
by Edward G. Benedict, Esq., of the New York bar.
expenses. The previous case wadully tried on the merits; the testimony printed in full in the apostles on appelU; and; both tugs being held liable, the libelants in the present case offer the former record as an adjudication determining the liability. of both tugs, and available in the present suit. By the reception of this record the respondents would obtain all the benefit of the former hearing, and of all the witnesses,some of whom have since either died or disappeared. There is no question, therefore, in this case, about the loss of evidence, which is doubtless one of the grounds of the statute of limitations; and the wish to avoid unnecessary litigation was so. far meritorious. As the statute is not strictly applicable to suits in admiralty, there is no doubt of the discretionary right of the court to give relief in a proper case after the expiration of the statutory period of limitation upon common-law suits of a similar nature. But the general course of the admiralty is to shorten, not to lengthen, the statutory period as respects the enforcement ofl;le('ret liens. This is done in the interest of spbsequent purchasers, mortgagees, or Henon, who are prejudiced by prior secret incumbrances. The general rule, therefore, is that, as respects such subsequent bonafide incunbraIlcers, liens muat be prosecuted with reasonable promptness, or they will be lost. But when no subsf'quent bona fide liens have arisen, there is no good reason why a suitor should not be permitted to proceed in rem in courts of admiralty, so long as he may sue in personam, or maintain a suit at law for the same debt. The Lillie Mills, 1 Spr. 307; The ·Bristol, ll Fed. Rep. 162; Martino Cilento, 22 Fed. Rep. 859. But the policy of statutes of limitation as statutes of repose must be respected in courts of admiralty as much as in courts of common law. In the careful brief furnished by the libelant no case is cited where any suit has been sustained after the lapse of the statutory period. In Willard v. Dorr, 3 Mason, 91, though the services were rendered 12 years previous, the cause ofaCtion did not accrue, in consequence of the capture of the ship, until within the statutory period. In my judgment, the court is not warranted in extending the statutory period in the exercise of its discretionary pdwer in admiralty suits, except for some cause of practical disability to sue, or for some peculiarities of a maritime nature that demand recognition in a maritime court, and make it plainly a matte} of justice that this discretion should be applied. In the present case nothing of this kind exists. The defendants did not in any degree induce the delay, or encourage the expectation of settlement. The libelant's was wholly voluntary; and, much as the loss of an apparently just demand may be regretted. I feel constrained to hold the claim barred. Judgment for defendants, without costs.
SMITH V. HAVEMEYEB.
v. 'HAVEMEYER et at
December 1; 1888.)
(OircuU OOflt't, S. D. NfIID York.
WHARVEs-LIABILITY OF OCCUPANT-DAMAGE TO VESSEL-REASONABLE CARE.
The occupants of a pie,:" the foundation of which extends outward like stairs, and which has a spike projecting below the water, may, b;Y the exercise of reasonable care, discover the danger, and are liable for Injury caused thereby, though the pier has been used for many years with safety.
In Admiralty. On appeal from district court. 32 Fed. Rep. 844. Libel by Smith against Havemeyer and others for damages occasioned by an unsafe pier. Decree for libelant, and respondents appeal. John E. Parsons, for appelll.1nts. . Goodrich, Deed'!} & Goodrich, for appellee.
WALLACE, J. This is an appeal from a decree of the district court in favor of the libelant in a cause in personam for damages suffered by the barkentineFormosa while lying at a pier in Brooklyn, of which the appellants were the occupants, and to which the vessel had proceeded at their invitation to discharge her cargo and deliver it to them. The Formosa was moored to the pier at flood tide, with her starboard side next the pier. After the tide began to fall she listed to port, away from the pier; and the starboard chocks, through which her two mooring hawsers passed, were torn out by the strain upon them, and the hawsers themselves were broken. With the next flood tide the vessel righted. An examination by a diver the next day disclosed that the stone foundation of the pier below the water extended outward, so that" he could go up the pier like a pair of stairs," and that at a point some eight feet below the surface of the water at low tide there was a spike projecting two or three inches from one of the spiles of which the crib-work of the pier was. built. Besides the injury to the vessel by the breaking of her chocks and hawsers, some of her copper was torn off on her starboard side by the spike while she was falling with the tide. It is in evidence that vessels like the Formosa had used the pier for the past 10 years without receiving any injuries. The appellants were not aware of the peculiar shape of the foundation of the pier, or of the existence of the spike. There is no evidence to iudicate that the vessel was not moored to the pier in the. customary way, and none from which it can be properly inferred. that there was any negligence on the pltrt of those in charge of her which contributed to the accident. The excessive strain npon her hawsers was caused by her list to port as the tide went down, owing to her contact with the projecting foundation of the pier below the water.. Upon the case made by the libelant it was for the appellants, if they relied upon the defense of contributory negligence of the libelant, to establish it affirmatively. Railroad Co. v. Gladmon,15 Wall. 401; Railroad C'.o. v. Harm, 93 U. S. 291. It was not necessary for the libelant to show that the appellants were aware of the vices and defects in the structure-which
occasioned the injury to the vessel. It suffices to charge the appellants with negligence that they could have distovered them if they had exercised proper care to inform themselves of the condition of the structure. The occupant who is in control of a pier or wharf is not an 'insurer of the safety of the structure towards those whom he invites to use it, but he owes them the duty to exercise reasonable care that its condition shall be such that they will not be exposed to unnecessary and unusual haz.ard of property or person in consequence of imperfections which they are not required to anticipate; and if there is such a vice or defect which is known to him, or which, by the use of ordinary care and diligence, should be known to him, his obligation is not fulfilled. The breach of this obligation is negligence, which makes him responsible to the injured party. The precise question has been considered in some of the adjudged <lases. In Dock8 v. Gibb8, 11 H. L. Cas. 512, the action was for negligence against the corporation having the management of the Liverpool docks,to recover damages to a vessel and cargo, sustained because the vessel while endeavoring to enter into the dock struck upon and became imbedded in a bank of mud at the entrance. Upon the trial in the court of exchequer the jury were instructed that it was not necessary for the plaintiff to prove knowledge on the part of the defpndant of the unfit state of the docks, but that proof that the defendants by their servants had the means of knowledge, and were negligently ignorant of it, was sufficient. This instruction was approved in the house of lords. In Wenddl v. Baxter, 12 Gray, 494, the court approved an instruction to the jury that the owners of a wharf were bound to keep it safe for the uses for which it was employed, and that the plaintiff was entitled to re<lover for injuries sustained through a defect, "unless the defect was latent, and so hidden and concealed that it could not be discovered by snch examination and inspection as the condition, use, and exposures of the wharf reasonably required." In ...Vicke:r8Ort v. TirreU, 127 Mass. 236, the court, in defining the obligation" of a dock-owner towards those invited to use the dock, said: "If there is a defect Which is known to him, or which, by the use of ordinary care and diligence, should be known to him, he is guilty of negligence, and liable to the person who, using due care, is injured thereby." The evidence that vessels had used the pier for many years with safety, was valuable as tending to show that there was no defect or unfitness in its construction likely to occasion injury to vessels using it, but became when it appeared beyond doubt that there were defects capable of producing mischief which could have been readily dis<lovered by proper examination of the structure. The decree of the district court is affirmed, with costs of this appeal.
END OJ' VOLUHB 86.