456
FEPERAL
HEISSENBUTTEL
v.
MAYOR,
ETC.,
OF NEW YORK.
CDiatrict Oourt. S. D. NM York. April 7, 1887.) 1. WHARF AND WUARFINGER......CONCEALED DANGERS-W ARNI'NG.
Owners of wharves and slips knowing them to be dangerous for public use are bound to them, or to give and maintain someqonspicuous notice warning the pUblic of the danger. This applies equally to anew landing built to' replace ,an old one, until the new landing is fit for use.
2.
SAME-CASE STATED-UNEQUAL BOTTOM......IMPLrED OPENING TO 'l'HE PUBLIC
. . · The defendant built a new landing, 25 feet shorter than the old one, at the foot of One Hundred and Sixth street, Harlem river. The, old bottom of the landingwRs isafe. The newdoqk,· when completely finished, was unfit for use because the dredging of the bottom along·side was incomplete. The libelant, knowing of the repairs, ,and that the work on the dock itself was done, but having no knowledg-e or notice of any imperfection about the bottom along·side, sent a cargo of coal to the dock seven days after the completion of the pier itself. III taking the ground, the boat was broken in two through the unequal dredging of the bottom: There was no inclosure of the pier after its completion, and no notice orwlirning that it was not ready for use. Held, that the ci,cumstances constitu,ted an implied invitation to the public to use t4e wharf, in the absence of any notice or caution to the contrary; that the respondent was bound to keep it closed or to give conspicuous notice warning the,public away, and was liable for the damage for not doing so.
In Admiralty. On the fifth ,of July, 1883, the libelant's boat, with a cargo of268 tons of coal, was taken from Port Johnston to the landing in the Harlem river at the foot of One Hundred and Sixth street, where she was moored. Not 10Qg after, iq, the rise and fall of the tides, she was broken in the middle, through the inequality of the bottom along-side the landing, in consequence ofits having been dug out immediately in front of the landing some four or five feet deeper than immediately above or below, ao as to render it unfit, for the time being, for the accoinmodation of vessels. . This suit is to recover the damages. The landing was an old one, to which the publichad been accustomed to resort. It was formed by a short pier projecting into the river, and was owned by the corporation"torthe use of which itcoUected whai'fage. The old pier having become dilapidated it was torn down, and a new one had just beenbuilt. To accord with the newly-adopted exterior line of the Harlem ri\'er, it was not built so far into the stream as the former dock, by about 25 feet. The new dock itself was built by contract; it was finished oli the twenty-ninth of June, about seven days preceding the accident. The bottom in front of the old pier was even and safe. For the purpose of making the new pier 25 feet shorter, the city had <hedged the space towards the shore occupied by the old dock, but at the time of the accident had not yet extended the dredging, as it designed to do, and as it afterwards did, both above and below the line of the pier, so as to m'ake it fit for vessels to land there. No notice warning persons from the dock was at any time posted upon the premises. The respon,dent contended that it was not liable; because, though the pier itself was finished, the dredging was not completed, and because the new dock had not been
HEISSENBUTTEI, 'II. CITY OF NEW YORK.
457
opened to. the public, or vessels invited there, and that the libelant's boat came in her own wrong, and at her own risk. E. Henry Lacombe, for respondents. Hyland&- Zabriskie, for libelant. BROWN, J. . There is no dispute in regard to the general rule that the proprietors of wharves and slips are responsible for damages caused to vessels coming to them in the usual course of business, when the damage arises from defects of which the owners have notice or are chargeable with knowledge. When a wharf or slip becomes dangerous, the law imposesupon owners the duty of giving reasonable notice and warning of the',danger, in order that the public, accustomed to resort to them, may 'not he 'entrapped and injured. There is no difference, in principle, between repairs..upon highways and upon wharves and slips in this respect,or,ill the duty ofreasonable caution to the . Shear. & R. 'Neg.§§ 498,,585. This obligation, and the practice, to give warning H'h som.ecopspicuous wa'Y of any obstruction in highways that are, in coul-se of repaii', ·are well recognized. The evidence shows a practice in regard to wharves and slips, although it was claimed that thlil, practice of inclosing the' pier itself is rather for the convenience of 'But the occasional use of a conspicuous notice towarh personsfr()ID ,dangerous piers or docks is a matter of COmmon knowledge, .apd ther,e' pan be no doubt that the want of any such notice or caution, where wharves or slips are dangerous, is legal negligelloe in the proprietor or lessee, ,as the case may be. . completion of the new pier in this case, it was apparently 'ready fort}le public use. ,There was no notice or caution of any kind posted uponthe premises warning persons away, nor any person present to give such warning. . The appearance of the dock in a finishea condition, arid in its former place, so far as the public could judge,was by implication an invitation to the public to make use of it, in the absence of any caution to the contrary. It was a virtual opening of the dock for the public use. It is impracticable tnat vessels navigating rivers should first send ashore to make inquiries whether they can land at a dockl;\pparently perfect and ready for usej nor,so fin as appears, ie there. ordinarily any other mode of opening a dock to the publiQ than by putting it in apparent complete readiness for use, with no notice to the contrary. . the city had a discretion as regards the time when it would complete the dredging, so as to make the landing fit for usej but this discretion did not release it from its obligation not to mislead the public in the mean time by apparently offering the dock for use as a landing without notice of its concealed dangerous character. In the leading case of Gibbs v. Trustees of Liverpool Dock8, 6 Hurl. & N. 164, (in the exchequer chamber,) COLERIDGE, J., says: "But at all events we think that if they [the defendants] had a discretion, under the circumstances, to let the danger continue, they ought, as soon as they knew of it, to have closed the dock to the public." Judgment was given on that
468
FEDERAL REPORTER.
and the was affirmed in the house of lords. L. R. 1 H. L. 93. If it is a duty to close a dock, it is equally a duty to keep it closed, or to warn the public from concealed dangers. The obligation to give notice to the public of any changed character or condition that renders such places dangerous has been frequently recognized, and seems to me to be justly applicable here. In the case of Ireland v. Oswego, etc., 00., 13 N. Y. 526, JOHNSON, J., says, referring no right to place and to a corporation making repairs to, a road, that" it continue dapgerous obstructions in parts of the highway where persons of ordinary prudence do or will be likely to travel, without some guard ,or to warn them of their danger." Page 534;. DENIO, C. J., uses similar l,anguage. Railroad 00. v. Hanning, 15 Wall. 649. 655, 660j Carleton v.Franconia, 99 Mass. 216j Shear. & R. Neg. § 866. The evidepceq.oes not show any such knowledge 9nthe libelant's part as should preclude his recovery. He knew, indeed, that the old dock had been ,tom down, and a new one put in its place. ,He was there after the dock itself was finished, and before the cargo of ooal was sent; and that the and, as he teStifies, supposed that all the work was dock was rea,dy for the accomIXlodation of vessels. There was nothing further inquiry. to lead him to any contrary supposition, or to theQOnsignee, wbo ordered tbe cargo there,supposed the work was done; and there is no proof that would charge either with any knowledge that the bottom along-side the landing 'W,as unsafe, that the previous. dredging was only partial, or that the city intended to dredge more. The case seems to me to turn wholly upon the duty,of the corporation to give notice, where the obstructions or unsafe character of the liable to mislead others. The landing are concealed, and are two parties do not stand the same footing. The one has knowledge of the danger; the other has not. To hold that persons who venture to use a new dock apparently finished in place of an old one to which they had long been accustomed to resort, must first make inquiries, at some place several miles distant, which the public generally are of" and could not ascertain without considerable difficulty, would,as it seems to me, be a very unreasonable requirement. The posting of. a conspicuous notice on the premises is, on the other hand, so simple an,d reasonable a provision for the protection of the public, and so strictly according to the analogies of other similar cases,' that I cannot hesitate. to hold it obligatory. , For these reasons I must, allow a decree for the libelant, with costs, with a reference to compute thedaJUages.
BATCS"ELDEn
INSURANCE CO.
459
and another
'D.
INSURANCE Co. OF NORTH AMERICA!
(JJi8trict Court, E. D. Pennsyl1;ania. April 1, 1887.) 1.
Ordinarily the burden of proving that a vessel was unseaworthy at the time an in.suranceQn the cargp.was effected is on the insurer; but Where. a vessel has been forced to put back into port by a storm, and an insurance is then effected, and the voyage resumed without notice to the insurers of the storm, the burden is shifted, and the insured must show tb,at the vessel was sea· worthy when she made the second start. SAJ,fE-8oRVEYOns' REPORT.
OF VESSEL-BURDEN OF PROOF.
2. 8.
" Unless overcome by competent evidence, the report of the surveyors of a port is sufficient evidence that a vessel is seaworthy.
S.um-Loss BEFORE AND AFTER INSURANCE.
When part of the dama$'e to a cargo was sustained prior to the placing of the insurance, and no notICe of such damage/iven to the insurers, the duty of allcertaining what part of the 108S occurre before and what after the iJi· surance devolves on the insured.
In Admiralty. "Driver andston, for libelants. Charles Gibbrms, Jr., for respondent. "BUTLER, J. The lumber merchants" at Norfolk, Virginia, chl1.l'te!ed the barge Americus in February, 1884, to carry a cargo of lumber from their landin?; below Norfolk, to Philadelphia. Soon after, the barge took on about 200,000 feet, and proceeded to Norfolk. On the eighteenth of the same month she started up the bay in tow of the tug Monitor. During the night of the eighteenth, while the barge and were lying at anchor near Hampton bar, below Fortress Monroe, a heavy gale arose, which continued during the next day and night, and about 9 o'clock P. M. of the nineteenth, caused both vessels to drag and ground upon the beach. .The barge remained there for three days, and was then taken off by wreCkers, (who first removed the deck load,) and conveyed to Norfolk, where she remained for several days. She had mken in some 18 inches of water as she lay on the beach, which was While at Norfolk a survey was made, and she was reo pumped ported tight and safe for her contemplated voyage. On the twentyseventh of February she again left Norfolk, in tow of the tug Rattler, and proceeded up the bay. After being out for several hours, she encoun· tered another severe storm, which caused her to roll and pitch dangerously. After. passing the Horse-shoe bar she leaked badly, and was in such condition as to make it necessary to enter the York river for harbor, where she came to anchor about midnight. The storm continued during that night, and the next day and night. She filled with water soon after the .leak was· discovered, and a part of the deck load was washed off ana lost. After the storm abated she wastakento the Pian1 Reported
by C. Berkeley Taylor, Esq., of the Philadelphia bar.
