OpenJurist

THE DAVE 41: MOSE.

THE

FAHEY t1. MAYOR;

DAVE

&

MOSE.

ETC.,

OF CITY OF

NEW

YORK.

(Df.Btr1.ct c<rWrt, S. D. New York. January 29, 1892.)

1.

WlIARVESAND WHARFINGERS-DUTY TO DREDGB.

The city is liable for injury to boats occasioned by its failnreto remove at reasonable intervals the accumulations from drains at pUblic wharves to which boats are . invited·. and at which.the city collects wharfage. It is negligence in a boatman to tie up for the night at a dock on the Harlem river at 155th street withont sounding, or inquiry as to the depth of water, or breast:ing his boat off.

Sum-DuTY OJ!' BOAT AT WHARF-SOUNDINGS-INQUIRIES.

In Admiralty. Suit by Michael Fahey against the mayor, etc., of New York city, to recover for 10S8 of canal-boat sunk at respondent's wharf. Decree for libelant. Hvland Zabriskie, for libelant. lVilliam H. Clark, Corp. Counsel, and James M. Ward, Assistant, for city. BROWN', District Judge. On the 16th of September, 1891, the libel. ant's canal.boat Dave & Mose, loaded with 275 tons of coal,moored alongside the platform dock at 155th street and the Harlem river, to which she was consigned. Her bow was headed down ri\'er and projected12 feet below the lower end of the dock, and her stern extended aboutthe same distance above the upper end. Between 1 and 2 o'clock during ,the following night as the tide went down, the forward part of the bOM caught on the bottom; and when the men on hoard were called between 1 and 2 A.M., she had a list to port, and with the help of ers could not be shoved off. The bottom being sloping and the stern of the boat free, she got a twist; and the stern, careening to port, took in water so as gradually to pull her off until she sunk. The bottom was of silt or sand, withno stones. Adjacent to the dock the water at mean low tide varied from 6 feet near the upper end of the dock to 4 feet at and below the lower end, where a drain of the surface water from Seventh avenuebrought in considerable quantities ofsHt and sand. Twenty feet out from the dock the depth of water at mean low tide was from 12 to 17 feet; 30 feet out, from 15 to 20 feet. The canal-boat was 17 feet wide. Similar boats have been accustomed to KO to the dock for several years past. Only two cases of injury from grounding are shown by the evidence; and the proof is not clear whether those damages were at the dock or above. It was not uncommon for boats coming to the dock to catch temporarily, but they were easily shoved off withoutdan;mge. The depths of water above stated are those ascertained by disk soundin.gs, that is, to the top of the soft silt or sand. Soundings by ,the rod were about a foot or a foot and a half greater near the dock, and two or three feet greater further off.

390

FEDERAL REPORTER.

vol. 49.

The gradual filling in of the bottom around the lower end of the dock was known to the officers:of the, city. The last dredging was in February. 1889; the dredging next prior was in September, 1887,-17 months .Two or, three feet,. the evidence spo,ws,had collected between those two dredgings in 17 months. This accident was 19 last dredging., .' . months The libelant's boat had repeatedly been at the same wharf before with similar loads,' and met with no difficulty. There is no evidence as to managed onthose occasipRs. The man in charge at this time had never been there before. He knew nothing of the depth of water; mnde no inquiries on arrival; made no soundings, and gave but small' to his but much slack to his stern-line; and he went to bed without breasting off or making any other provision for the safety of the boat during the night. Upon the,above facts I think both parties were in fault; the city, for nut dredging again about the lower end of the dock after a lapse of 17 ¥IonthS, when, as previous experience had shown, new dredging became neceE'sary, and the accumulations of sand there being known. The man in charge of the in tying np for the night at such a place as a dock on the Harlem river at 155th street without sounding, or inquiring as to the depth of water, or breasting off. Ordinary prudence and the habits of boatmen insl1ch locations are to make soundings, or otherwise ascertain whether the boat can safely lie over low water before leaving her without attendance or watch for the night. . This duty, however; does not relieve the city from the obligation to remove by dredging at reasonable intervals the accumulations from drains at public wharves where they are inviting boats and collecting wharfage. Decree for the libelant for one-half the amount of his damage, (Christian v. Van Taesel,12 Fed. Rep. 884,) with order of reference to ascertain the amount.

DICKIE

et al.

tI. WIlSON.

Court, S. D. New York. February 4,1892.}
L

It was proved that, in "straight" logwood (i. e., not roots or trunks with branches) in Jamaica, it is not customary to cut any considerable quantity in lengths of less than three feet, such outtings the value of the cargo. A deduction beinl\' claimed. by the ownerli of the cargo of logwood from the freight due the carrier because 72 tons of logwood were delivered so cut short for the purpose of stowing a full cl/orgc. and a!fainstthe protest of the shippers, but the evidence being inconclusive 8S to the exact amount of the shortcuttlngs, hetd, that an . allowanoo for 50 tons of short cuttings would be just. LibelanUi for $216 and recovered judgment fot' $68.59. Beld that, as respondent was successful on the main issue, the decree should be without costs.
VICTORY FOR RESPONDENT.

CARRIBRS-DAIIIAGB TO CARGo-J"A1IIAICA LOGWOOD-SHORT CUTTINGS-Ct1STOIII.

.. CoST8-DBOBBB FOR

In Admiralty. ants.

Suit to recover a balance of freight.

Decree for libel-