v. I. , SAME-MQORIXG
CITY OF ALLEGUENY. __NOTICE. . .' ..
887
The 9.ity granted a right ,of way along its public wha.rt to a railroad company, .whiehjln the exercise of tlulprivilege, cut away several conveniehtto him, anq tl:Je city did not replace them, nor provide substit,u'tes. 'There'i"emaineli, hOwever,a check-post and ring-bolt which libelant used, and he did' ,not complain of the removal of the posts, nor give notice to the city to replacethllm, and did nothing himself to add to his .appliances for tying. This'state of thingllllOntiJiuing for several months, the libelant's floats and cargoes of coal in boats'werellwept away by a flood in the river, the cheek.post and ringbolt standing ftrm).and the break being in the fastenings. -HeZl:Z, that city was not liable for the nbelant's loss., '
In Admiralty. L. CJ. Bo/rwn, for libelant. ;
EfJphenBfJ:JiM, for respondent.
AClIE$ON, J. The libelant sues the (lity of Allegheny,thePlioprietor ·of. a public, .wharf on the bank .of the Allegheny Ii ver, damafloat and injury ,to another, and also, falthe 10l;lS 'ofoort4l.in CQal contained in flat-boats; which . sweptaw.ay, :fNm, stlid whllrf ,on 4th 'day of February" 1883, by an ice flood.' 1.'he,libel chargei', .(loss was J opcasiolle!,l, ,by the failurEl' of tbe. city to perform the it owed tp in,thllUhe city to .provide: and maintain sufficient other ·f(i)r ,the secure mooring ,Qf said boats; and thespecifie .c()mplaint thl'lJ::ein is that thE) city, ,by an ,ordinance,g1'anted, to tlle:Pittsbur§h,J&Westem &ib:ctadQorp,papy the right fol' its ,railroad over an<talong the.. mitte"d the !0i)mpany, iJ:)' constt'UQting its railroad,etp., cto cutdown or neceSSary .for fastening,and BEla/.n'jug bQats and mooring at said wh",rf, "and and neglected to replaee,thesame., or tofurnish sllbstitutes for the requested and uotifiedb-ythe libelant and otheta, so to The an,sweds tesponsive to libel, aud denies all the allegations upon which the libelant'E1right to recover depend.s. Tbe !materialfacts of the case as disclosed by tbeev;idence are these: The libelaut,had··been :the exclusive and cODstantoccupant of,tbat portion,Qfth6 rivet shQrewhere his fiats lay on February 4,1883, for a .period'Cif,lO, years prior to that date, and for the use he paid the city the aumof$l@. monthly. Testifying in. his own, behalf" tbEl.libelant says:' "[had'6 lease from Alleghelly city for this wharf." Al)d again he states: ,"I had sJease during aU that time. I occupied it by the year, , I paid the wharfage every month,-$15 per month." Therewss,it would seem, no writtell or Jormal lease, Qut, the libelant's long-continued oc·cupancy ha.qbeenofthe. /'lame distinct portion of the landing 'or,wharf, ;for his possession thereQ{Wf\s. both ,permanent He there carried on thl)rElta,H: QQalbusiness, and to that end, mlliJiltained ,at that. plaoo two floats.; floats had ·no rudders or c>f.locomotioniand. were intende4 . ;navigabut were kept faatlJuecl to the shore, On W,l\S !llgn : The largei' ooewas a ;and.!On It the liqe1ant. had an .office in which his books, were kept, ,. bllsi-
888
FltDERAL REPORTER,
vol. 41.
I
J)ess generally ""as conducted. There was a pair of scales for weighing coal on that float, and two aprons extended therefrom to the shore, over which wagollswere driven to and from the float. The libelant had. teams and wagons for delivering the coal to his customers, and the wagons were driven ,on the float and there loaded. The libelant testifies: u,Thecoalwaskept in t:qe barges, and the barges were tied to the float, and, the wagons driven oil the float and loaded fropt the barges." His practice was to buy cargoes of coal, and have the loaded barges or flats brought to his float, where the boats were kept until he had retailed the coal, and when the boats were empty the oWners would take them away. In this state ofnffairs, on February 4, 1883,a,sudden and rapid, rise of the Allegheny river occurred, the ice breaking and running out on the :morningofihatday. At the time the libelant ,had in use a check-post, which stood on the bank of theri'V'er near the foot of Sandusky street, and a ring-bdltfirmlyattachedto the,wharf some distance lower down the stream, and'rra these the libelant's floats were fastened by chains and a. line. Both'post and ,ring-bolt proved to be sufficient to stand the strain to which they were subjected, ,but large cakes of ice 'got' in betweenthe floats and the shore, and',utirler the pressure of the flObd and the action and the floats and flat-boats were carried off. 'of the ice, the chains Under the proofs the 0111y ground upon whichtbere could possibly be II. recovery by the ,.libelallt is the alleged negligence and breach of duty oli the part; of the defendant in not replacing, or providing substitutes for, certain 'oheck':'posts,.....two in number, according to the libelant's wit&'Western ness HamiltoD,--which'were removed When the ,Company widened its track, or put ina switch at that place. The exact time when those posts were cut away is left in doubt, but, under all the evidence, it may be safely, assumed that it was at least several months'before February', 1883. At the time this occurred the libelant wasein the exclusive occupancy of his portion of the wharf, using it in the manner and for the purposes already set forth, and he certainly then. knew the fact that those posts had been removed. The allegation of the libel that the defendant was requested and notified by the libelant and others to replace said posts or furnish substitutes is unsupported by anyevidencej and upon the facts proved it cannot be pretended that th& libelant made any complaint about the removal of the posts,or that any .request was made or notice given by him, or by anyone else, to the wharfmaster, or to any official of the city, to restore the posts or provide substitutes. The libelant relies upon the decisions of thesuprem& the city in thecases of Oity of Allegheny colirt of v.: Campbell, l07Pa. St. 530, and Willey v. Allegheny Oily, 118 Pa.. St. 490,12' Atl.Rep. 453. --But in the former' case there was the element of'actualand timely notice to the city to remedy the defects, and both cases involved the rights of navigators, which the court adjudicated: in Cbnfonrtity with the principles preWm1sly settled in PiJ,tsburghv.GrtiRr, 22 Pao St."54. 'That this is lL correct exposition of the rulings'of the court in those cases Is verified by the opinion of the supreme court in the more recent, case of Cmwford v. {)Uy 'ojAllegheny, 16 At!. Rep. 476.
JACKSON t7. CITY OF ALLEGHENY.
889
But the libelant's use of the premises he occupied was not the ordinary use of a wharf by navigators. Id. Indeed, he was not a navigator in any proper sense of the term. Moreover, he paid no wharfage on the barges and flat-boats which were brought to his float and there kept while he retailed the coal contained therein. The libelant's statement that he"was. under the direction of the wharfmaster of Allegheny city," is a bald assertion, unsupported by any fact in the case; The portion of the river shore he used was practically surrendered into his exclusive possession. To all intents and purposes he was lessee of the premises at a fixed rental. Such, evidently, was the libelant's own understanding on the subject, as appears from .his testimony quoted simple truth he maintained at this place a floating coal-yard; where he carried on the business a retail vendor of coal. I am of opinion, then, that the defendant did not owe to the libelant the high measure of care which is justly due from a wharfinger to navigators whom he invites to bring to his wharf craft for safe mooring. Orawford v. Oity of Allegheny, supra. Now the libelant had been so long in the occupancy of these prem- · iaes that he knew perfectly the perils which were to be expected from the periodical floods which occur in the Allegheny river; and, what appliances were necessary for the security of his floats was a matter peculiarly within hiE!, own personal knowledge. Therefore, and inasmuch as he uttered no complaint when the posts were removed, made norequest to any cityofficial to have them replaced,and did nothing himself to provide substitutes, it may reasonably be inferred that he regarded the appliances which remained as sufficient for his purposes. How otherwise can his conduct be explained? But ifhis own judgment was that he had sufficient appliances for security, how' can ,negligellce fairly be imputed to the city? Then, again, in tact the check-post and ring-boIt to which the libelant tied on the occasion of the ice flood stood firm. The break. was in the fastenings. And here it must be noted that testimony tending to show that the libelant did not have propep lines and lashings, and, further, that he failed to exercise that ,reasonable foresight and care for the protection of his prop. erty which the circumstances called for. But, finally, it is by no means dear that the catastrophe would have been averted had other posts been available to and used by the libelant. Being interrogated by the libelant's counsel on that very point, the witness Hamilton declined to express any opinion as to what might have been the result bad there been .additiunal fastc;mings to other posts. The burden is upon the. libelant to show both negligence on the part of the defendant, and. that such negligence caused, or at least contributed to, the disaster. But neither of is sufficiently established, And, withthese things, in Qut further discussing the evidence, I content myself with saying that, upon the whole case, I am not satisfied that the libelant has any just >Cause of action against the defendant. Having ,reached this conclusion on the merits of the controversy, it is not necessary to consider the jurisdictional questions raised by the answer. Let a decree be drawn dismissing the libel, with costs.
or
890
FEllERALREPORTEB "vol,; 41·.
BARTL'ETT
i". A CARGO OF LmJ:BER. ,"
(DUtrict COurt, E. D. New York: March 28, 1890.) "',. . , , DBHURRA.GB-LI,UllLITY 01' Col!tSlGNBB-Tnm 01' D18QJUltGE-Q.tl8TOftl
Where itwas proved to be a custom of tbe port of New-Yorli: forv6ssels to bediscbargedin tbe.order of their arrival at tbe wharf of the¢onsignee,'held, tbata vessel which'arrt"ll-d after otb,er vessels, and was discharged I,n, her turn, could notrecover demJ1$ge for the time lost in awaiting her turn. , , ','j
PORT.
In Admiraltr. Action by the 'master of' the brig George' E. against a cargo lately on board that vessel, to reCOver demurrage. The bill of ladihg under which the lumber was transported contained no provision as to time of discharge, or far "dispatch." Goodrich,Deltdy & GOodrich; fOI'libelant. D. Benedict,' forclaiul1int. i
BltNEDlcT,J.' This isan action fordEimumge. The pl8,ined'Johvas delay the'schooner George E. Dale. The cargo was lumber. The cl)nsignee'splace of discharge was a pier where there was a space of some' 250 'feet. When the George E. Dale' arrived at this place of discharge, sbe found 'the schooner Emerson' there before her. The then' discharging at the pier. After the Eltie discharged the l\1mersori:was giyen .the i berth, and then the Dale was given,the berth lmu .di!5cnarged. Tbeposition of the libelant. is that m(nD, for two ,vessels to lie at the pier and be discharged at same 'Um,e, and that .it·, was the d\lty of the consignee, therefore, to discharge two vessels at the :game time,: instead of keeping the Dale waiting the Emerson ,The proof is not yerysatisfa(}o tory to. show that tWQ could bb properly discharged at the same time' at this place, but,however that may be, the 'proofis that ,by the of port in .,to diScharging of lUInber the IS not requIted to be chschllrge and take care of tvvo cargoes oflumber atthesame'tinie;' The shown by 'the prooftJ is that where sevel'al vess.els come to the, samEl, consignee, the consignee dis· charges 'them in tum; 'that is, one after 'theother, in the order of their ai'rival. This ctistom We this case when he dis· charged the Dale in 'her'tUrn after the Emerson. Under the eus· tom proved it was rio ,'failhre Of his duty to decline to undertake 'of the Dale' bef6i'e!the disciharging of the ,Emerson. was' con· elUded, even if the (act'wll's' that.. tHere was room at the pier for both to be dischargedaftlie same time. , The libel must be dismissed, with costS. I,' .' . " " '1
Reported by EdwardG..
ksq., of 'the New Yora