THE JOH.N A. BERKl\IAN. ,
European port, and insurance was on this argo. This is certainly a circumstanoe in favor of 'the upon all the evidence, I am.of opinion libellant's ranty was broken, and the respondent was justified in refusing to load the vessel. The respondent's allegation' that he was induoed 'to sign the charter-party by the frau4ulent representations of the libellant is clearly not proved·. , Libel dismissed, with costa.
THE JOHN A.BERKMAN.
(District Oourt, D. Massachusetts. January, 1881.)
DOCK-'LIABILITY OF OWNER OR OCCUPANT.
" The owner or occupant of a dock is liable in damages to a person who, by his invitation, express or implied, makes, use of it, tor an injury caused by any defect or unsafe condition of the dock whichthe occupant negligently causes or permits to exist,.if shch person'w8.'l himself in the exercise of due care Such occupant is not an insurer of the satetyof his dock, but hll.isrequired to use reasonable care to keep his dock in- such a state as to be reasonably safe for use by vessels which he invites to enter it, or'for which he holds it out as fit and ready. If he fails to use suoh due :care-if there is a defect, which is dilige,llce, known to hilli,or which, by the use of ordinary care should be known to him-he is guilty of negligence, and liable to the person woo, using due care, is injured thereby." . , Nic7(,er8on v. Tirrell, 127 Mass. 236.
Held; under the circumstances of this case, that the master of a vessel was at fault in attempting to enter a after the tide had fallen, when he knew that he was about to enter a dock where his vessel could not float at all conditions of the tide.
3. SAME-LIABILITY OF OWNER. Held, further, under the circumstances, that the owner of the dock
was also in fault in not cau1iioning the vessel to stop' before she by groundiI;J.g.-[ED. reached thl! point where shll' was
. D. J. This is a of damage. are the owners of the schoonel;John A. NELSON,
J. C. Dodge et Sons, for H. N. Shepard, for
. . '
';rhelibelIants and the
respondents are the proprietors of a coal wharf in East Bos'ton. On the twenty-eighth of November, 1878, the schooner arrived at this port, having on board a cargo of coal consigned to the respondents. On the following day' she entered the dock, but before reaching her discharging berth at the wharf she grounded. At the next tide, in the night-time, a further attempt was made to haul her to her berth, but failed. The next day, at high water, the attempt was renewed, and this time with success. She was then placed in her discharging berth and her cargo' discharged. During these proceedings the schooner sustained. injury from being strained and hogged, and the question in the case is whether the respondents, as owners of the dock, are responsible for the damage, and to what extent. It was the expectation of the parties that the schooner was to enter the dock at high water, and was to take the ground t.o the tide receded. It is usual for coal vessels to take the ground at low water when discharging at the coal wharves in Boston. The rule of law applicable to this case is well settled, and is not in dispute. The last case upon the subject is NickerBon v. Tirrell, 127 Mass. 236, and the rule is thus stated by Morton, J.: "The owner or occupant of a dock is liable in damages to a person who, by his invitation, express or implied, makes use of it, for an injury caused by any defect or unsafe condition of the dock which the occupant negligently causes or permits to exist, if such person was himself in the exercise of due care. Such occupant is not an insurer of the safety of his dock, but he is required to use reasonable care to keep his dock in such a state as to be reasonably safe for use by vessels which he invites to enter it, or for which he holds it out. as fit and ready. If he fails to use such due care -if there is a defect which is known to him, or which, by the use of ordinary care or diligence, should be known to him-he is guilty of negligence, and liable to the person who, using due care, is injured thereby." I adopt this as a full and accurate statement of the law of this case. Dpon a careful review of all the evidence in the case I
THE JOHN A. BERKMAN.
have come to the following conclusions upon the questions of fact in dispute: 1. That there was a sufficient depth of water in the dock to allow the schooner, with her depth of 13 feet, to enter a.nd float with entire safety at high water. 2. That the dock was sufficiently dredged, and that there was no such unevenness or inequality in the surface of the hard bottom of the dock, and no such accumulations of mud, as to make it unsafe for this vessel to lie on the bottom at low water. 3. That the evidence is not sufficient to satisfy me that a log or stick of timber was imbedded in the dock, which would have caused the injury to the schooner. 4. The bill. of lad.ing, signed by the master, and accepted by the respondents' agent in Philadelphia, contained the memorandum, "Plenty water." This was relied upon atjhe hearing, though it is not charged in the libel. But conceding this to be open to the libellants, and that it is in effect a warranty of the sufficiency of the depth of water in the dock for the schooner, I yet find, in view of the understanding of the parties, when the bill of lading was signed, and the usage of coal vessels arriving in Boston to take the ground at low water when lying at coal wharves, that there was no breac. of the warranty. Upon all the foregoing issues of fact I find for the respond. ents. But upon another ground, in my opinion, the respondents are less fortunate, and this accident may be attributed, in part at least, to their want of reasonable care. It appears that the schooner, on her arrival on the 28th, anchored in the stream opposite the respondents' wharf. The next day one of the respondents came to the end of the wharf and beckoned to th" schooner to enter the dock. At that time the tide was at its full height, and if the schooner had started at cnce she would have reached her berth in safety. But a considerable time was consumed in getting her anchor, and no special haste seems to have been made by those in charge of her; at all events, valuable time was lost, and she did not the 3r()t where she first grounded until the tide had
faUento such an extent as to render it unsafe to 'proceed. The master knew he was about to enter a dock where his vessel' could not float at all contlitions of the tide, and he was at fauUin attempting to enter such a dock after the tide had fallen. The respondents were also at ,fault. The respondent who was present' should hav.e cautioned the schooner to stop before she reached the point of danger. l!'or this failure of duty the respondents should be held responsible. The preponderance of the 'evidence shows the injury to have been caused by the grounding at this point, and the efforts made to move 'her. As the negligence of both the partiescoritributed to this res\i:lt, I pronounce for the lants for one-half the damages. I do not find that the build 6f, 'the schOoner, being; It single-deck, center-board vessel, wi'thgreat breadth'of beam as compared with her draught, rendered her unsuitable to carry a cargo of coal. Nor was it negligence.in the master not to enter the dock until the day after her arrival. Stress was laid on both these, circumby the respondents, but I deem them immaterial. In repairing the schooner the accident a second deck was built on her. The libellants claimed this was made necessary by the injuries resulting from the accident. But it was shown she was originally constructed with a view of having a second deck added at some future time. I am of opinion this deck was put on in pursuance of the original plan, and was not made necessary by the injuries received in the dock. In the assessment of damages the expense of the new deck is not to be included. Interlocutory decree for the libellants accordingly.
__ (District Court, D. Connecticut.
April 8, 1881.)
Andrew C. Lippitt, for libella.nts. Thomas M. Waller, for owners. SmPMAN, D. J. This is' a libel in rem to recover the amount
:alleged to be due the libellants fot' services as seamen on board the fishing steamer S. L. Goodal during the Bummer and fall of 1879. The controversy relates to the wages of seamen,.by .custom, in the menhaden or white-fish fishery. The menhaden fishery commenced along the coast of Connecticut and Rhode Island at least 35 years ago. Vessels which fish ex-elusively in the waters near Long Island, Connecticut, and Rhode Island are called the western fleet, a.nd those waters are called western waters. Vessels which fish off the coast of Maine are called the eastern fleet, and are said to fish in eastern waters. The customs of the business respecting the wages of seamen differ in eastern and western fleets except that universally the crews pay for their board and the cooks' wages and board. 1. The custom of the business upon western vessels. When the business started, some 35 ot' 4:0 years ago, it was carried on solely by sailing vessels, and the fish were sold to the farmers on the coast. Fish-oil factories, for the conversion of fish into fertilizers, were unknown. The uniin the absence of special contract, was that the form owners were to receive and the master and crew were to receive two-thirds of the catch; and this meant twothirds of the price at which the fish were sold. The outfit of seines, barrels, salt, etc., was provided by the vessel. In process of time fish-oil factories were erected by companies who also owned vessels, ahd these factories were the only consumers of the fish. Nearly all the sailing vessels were now owned or chartered by the factory owners. The owners of the vessels and of the factories being the same, there could
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