(DiBt'l'ictOourt, E. D. PennBlIlfJania.May 18., 18.8.1.)
1. WHARFAGE-WHEN INOURRED-USE OF WHARF .... TEMPORARY TAOHMENT OF LINE-LANDING OVER WHARF-MOORING VESSEL Aenoss THE HEAD OF.
A vessel injured by floating ice endeavored to enter the dock of wharf A, and in doing so attached for a short time a line to wharf B. Failing to enter', the dock,she was moored across the head of Wharf B, at a distance of eight or ten feet from and without attachwharves. She lay in ment to it, her lines being made fast to this position for 24 hours, during which thne her captain landed by means of a ladder from the vessel to wharf B. Held, th!!.t the vessEll was liable to the owner of wharf B for wharfage.
In Admiralty. Libel for wharfage. The facts 'are as follows: The steamship Whitburn sailed from Philadelphia, April 1, 1881, but being injured by ing ice put back to Philad-elphia, leaking. She endeavored to entel the dock of pier 41, and in so doing made fast for a short, time a line to pier 40. Failing, on account of the ice, to enter the dock, and it being unsafe on account of the ice and the darkness to seek another dock, she was moored across the ,head of pier 40, but at the distance of eight orten 'feet and without attachment to that pier, her lines heing made fast to piers 41 and'S9. In this position she remained for 24 hour's, during which time her captain went ashore over pier 4:0 by means of a ladder from the vessel to that pier. The owner of pier 4:0 claimed a bill of wharfage of $10, that being tbe usual charge per day for the use of his being paid, he filed this libel. ' wharf; and, the bill E. Hunn Hanson, for libellant. Oharles Gibbons, Jr., for respondent. BUTLER, D. J. The respondent could make no use'of the wharf without incurring liability to pay for it. That he did make use of it is plainly acknowledged in his own testimony. The extent of the use, and the circumstances under which it was enjoyed, are not important, in view, of the amount claimed. The sum would have been promptly paid, the cap-
tain says, if it had been presented before he left. If he had paid it when informed of the, demand, I would allow the libellant no costs. As it was not then paid, I will allow the claim for wharfage, ($10,) and half costs. A. decree may be accordingly.
TilE NEDERLAND.iDiltrict (lourt, E. D. PennSY&flallia.
June 14, 1881.)
COMMON CARRIER-INJURY TO PA88ENGER-LATENT DEFECTS IN MA(;HINERY.
Libel to recoy.er damages for injuries suffered by libellant through an accident to the tackle of respondents' vessel. The facts were as follows:
During a voyage of the steam-ship Nederland, while the ship's crew were in the act of setting the fore try-sail, the shoulder of the swivel hook of the lower block, attached to an eyeholt ill the deck, drew out from the iron strap surrounding the block, and caused the boom to fall to the deck. The libellant, who was a passenger, and who was rightfully on the deck at the time, was struck by the boom and injured. The libellant contended that the block had not been properly overhauled and examined; that the swivel was not kept oiled, but allowed to rust, and that the drawing out of the shoulder was due to this cause. The respondents .alleged that the block was apparently in good condition, and that the accident could have resulted only through some defect in the shoulder not discoverable by inspection of the block. There was some evidence of a .request to passengers before the accideut to move from the position occupied by libellant, but it was not shown that he was warned of any danger of accident, or that he heard or understood the request to move.
-Reported by Frank P. Prichard, Esq., of the Philadelphia bar.
D. Cowan,.M. VealejandJ. Wa1Ten Coulston, for libellant. Henry G. Ward and Morton ·P. Henry, for respondents.
BUTLER, D.l. No·:debatablequestion of law is involved. The contract imposed on. respondent an obligation to observe the highe.st degree of care for,the passenger's safety. For accidents which could not be avoided by such care; (resulting from latent defects in machinery·, or other similar cause,) he was not responsible. He· was not an insurer. The is well stated in Meyer v. Railroad Co. 14 P. F. Smith, 222. Here the accident resulted from the "shoulder ofthe'swivel drawing out of the block." ,So the witnesses testify, and so the. libellant says in his of facts." This could Qn(y occur by reason of some defect in the shoulder; and the shoulder being imbedded in wcod, and covered by the iron strap, (which was permanently affixed thereto,) this I defect could not he diacoYe.red. The impossibility of such discovery is shown nO,t only by the testimony of the wit.., nesses, but also by inspection of the block. It callnot be urged that the block was liable to such an occurrence, (as 'the shoulder drawing out,) because of its peculiar construction, and, therefore, an improper one; for the evidence shows that the drawing our of the swivel, in similar blocks, had never occurred before, to the witnesses' knowledge, and that the block is such as is in common use. It follows from what has been said that the respondent is not liable for the complainant's injury. While the question of contributory negligence, which was discussed by counsel, is rendered unimportant by the conclusion reached, I, nevertheless, deem it proper to say, (as the case may not rest here,) that I have found no evidence of negligence in the libellant, contributing to his injury. If his situation on deck, at the time rendered him liable to injury from such an accident as occurred, it was the respondent'g duty to remove him, or distinctly warn him of his danger, before attempting to draw up the sail. It is'clear, however, that no such danger was, or could be apprehended. The request made of passengers to move, was simply to save them from
possible inconvenience, from the moving ropes and sails, and to get them out of the way. ,If the libellant heard a.nd understood the request, (which.is very doubtful,) he took the risk of such inconvenience in remaining, buf nothing 'more. If greater risk was involved, (sach, for instance, as of the block giving way,) I incline to believe the tespondentshould beheld liable for failing to remove the libellant, or to see that he distinctly understood the- warning and the danger. A decree will be entered dismissing the libel with I will add here what I had intended to say above,-that if there was failure, (as the libellant asserts,) to keep the swivel oi:e1, this could not, in my judgment, have contributed to the shoulder drawing out; and, the question whether there was, or was not, such failure, is, therefore, unimportant. The testimony of the witnesses, who have spoken on the subject,however, is that the block appeared to be in good order in all respecis.
END OF OASES IN VOL. 'I