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April 8, 1940


The opinion of the court was delivered by: INCH

INCH, District Judge.

Libellant, Manhattan Lighterage Corporation, in the first suit, owned the derrick lighter Biltmore which on October 3, 1940, sunk, while alongside of Pier 32, North River, and dumped over a cargo of pickled beef in barrels belonging to the Canada Packers, Ltd., which is the libellant in the second suit.

The Manhattan (so referred to for convenience) sued both the City of New York, as the owner of Pier 32, and the Moore-McCormack Line, Inc., a steamship company (referred to as the Steamship Company), one of whose steamships, the Brazil, had brought the cargo of pickled beef to that pier a day or so before the accident, for the purpose of reloading same on the Biltmore.

 The Canada Company (so referred to for convenience) brought suit against the City of New York, the latter impleaded the Moore-McCormack Line, Inc., and the Manhattan Company.

 The two suits were tried together under a due stipulation and the testimony taken was made available in each suit. Ownership, incorporation and such details were also duly stipulated and the real question at issue is, what respondent is liable for the damage suffered by the lighter and the cargo?

 There is nothing to indicate why the Manhattan Company should be liable and the petition impleading it must be dismissed. There is also no substantial proof indicating that the Manhattan Company and the Canada Company should not recover for their damage against one or both of the remaining respondents.

 The question of liability of one or both of these respondents depends on a correct finding of the relation of these parties to Pier 32, at the time in question. Such responsibility rests on which respondent furnished an unsafe berth for the Biltmore. On these questions of fact a considerable amount of testimony has been taken.

 The Steamship Company claims that Pier 32, at the time of the accident, October 3, 1940, was and had been for a long time previous a public pier owned and maintained by the City of New York and that only in the event of actual notice of the defective condition of the berth, or circumstances which reasonably would put the Steamship Company on notice of its defective condition, could the Steamship Company be held responsible for what occurred. That the City of New York had absolute and exclusive control over the repair of Pier 32 and the slip and, in fact, removed the offending pile after the accident.

 The City of New York on the other hand claims that for almost a year prior to the accident, and at the time that it occurred, the Steamship Company had exclusive use of Pier 32 and that anything that was defective in the slip or pier, making same unsafe, was the sole responsibility of the Steamship Company.

 However, the Steamship Company never collected wharfage from any vessels berthed at Pier 32 and in this connection it should be noted that during the months prior to the accident and during which the City now claims that the Steamship Company had exclusive control, other vessels were allowed, by the City, to dock at this pier on which wharfage was collected by the City, the explanation as to some, being that this was done as "a neighborly accommodation".

 Before coming to a decision on this issue it may be well to briefly state certain facts.

 A day or so before October 3, 1940, the Steamship Company notified the City that its steamship Brazil would arrive in New York and asked and obtained a temporary wharfage permit to berth her alongside the north side of Pier 32, North River, where she would unload certain cargo. This was one of approximately 55 similar temporary wharfage permits which had been asked for and granted to the Steamship Company during the previous nine months. Each of these permits were limited to a definite vessel and were for a definite purpose. To be sure they included the usual conditions, one of which was that if any damage was done by the temporary occupancy the Steamship Company would be responsible for and repair same.

 There is no proof that the broken fender in question was caused by anything the Steamship Company did. The evidence shows that along about the beginning of 1940, the Steamship Company decided to operate a number of vessels, consisting of large steamships which is referred to as the "good neighbor fleet". One of these was the Brazil.

 It is evident that the City of New York was quite anxious to obtain the business of this Steamship Company in this regard, but before it could do so at Pier 32, considerable work would have to be done in construction and repair of that pier.

 The Steamship Company had asked early in 1940, for a broad survey at the pier and slips in order to ascertain the extent of this work but such survey did not take place until after the accident near the end of the year when negotiations for exclusive possession by the Steamship Company had substantially been completed. In the meantime the City of New York proceeded to do all the work that seemed to be necessary to eventually get the pier and slips in proper shape. During this time therefore, and at the time of the accident, the City of New York remained a wharfinger. From time to time it charged the Steamship Company wharfage and was paid for same.

 Wharfage has been defined to be "money paid for landing goods upon or loading them from a wharf". Old Dominion S.S. Co. v. City of New York, D.C., 286 F. 155, 156.

 While in the pleadings the City indicates there was a lease of the pier to the Steamship Company no such relation was proved at the time of the accident or prior thereto. At the trial the proof of the City all went to show that while there was no lease there was what was claimed to be an exclusive possession of the pier by the Steamship Company. As to this there can be no doubt that the parties were seriously contemplating a lease in the future and that in anticipation of same the City commenced the construction and repair work, some of which included the fender system along the slip on the north side as well as elsewhere. This work started in February and March, 1940, and consisted of an inspection, removal of damaged or worn piles and their replacement by new ones. This work however was temporarily suspended in April, 1940, when, according to the testimony of the assistant engineer for the City, in charge of the maintenance and repair of this pier as well as of others of the City from the Battery to Dyckman Street, the general superintendent of the Steamship Company informed him that both the north and south side of Pier 32 would be required by ships and that "we could not work the pile driver at that time or maybe for a few weeks later". He thereupon stopped work temporarily stating as an additional reason, "I was not going to keep that gang of men there because I was getting about 20% of the work done that I should have for the amount of money that was being spent".

 Apparently a survey of the piling was made between March 29, and April 10, 1940, by the city engineer and his assistant. This was the last survey by the City of the fender piles, about six months before the accident which occurred on October 3, 1940. The engineer in charge for the City also testified, "the only time I would go to Pier 32 in 1940, was while I had a dock building force engaged in repairing that Pier". Work was apparently suspended therefore from the middle of April until it was resumed in June and suspended again in September, this time due to the fact that a pile driver had to be repaired and certain parts replaced. The engineer in charge stated, "I didn't go back until October 28, and until November 1st, to examine the fender system".

 Regardless therefore of the general work on the pier being done by the City for the Steamship Company, about which so much is here made by the City, it is plain that during the months preceding the accident, and at the time it occurred, the City of New York had absolute and exclusive control over the repair of Pier 32 and the slips. The Dock Department of the City made the above inspections and repair of the fender piling system during the temporary use of the pier by the Steamship Company under these individual wharfage permits, the granting or withholding of which was entirely in the discretion of the Commissioner of Docks. The pier was thus being constructed and repaired by the City or its constructors in connection with the getting of it ready should exclusive possession be eventually given to the Steamship Company, as was hoped, and a lease thereof made to the Steamship Company.

 After the accident, about two weeks thereafter, this work of the City had about been completed and exclusive possession was temporarily given to the Steamship Company in the form of a "revocable permit". Shortly thereafter, in December, a five-year lease of the pier to the Steamship Company was agreed to by the parties.

 The effort of the City to now give retroactive effect to such arrangements to cover this accident is unavailing to change the relationship of wharfinger and permittee existing on October 3, the date of the accident and prior thereto. It is plain that without a lease had the Steamship Company, for some reason, claimed exclusive possession of the pier and slips prior to the accident, the City would have been heard from in no uncertain terms.

 The City being a wharfinger at the time in question it was called on to exercise reasonable care to ascertain the condition of the berths at its pier and to remove dangerous obstructions or give notice of the existence thereof to vessels about to use the berth. M. & J. Tracy Inc., v. Marks, Lissberger & Son, Inc., 2 Cir., 283 F. 100, and cases there cited.

 Was this duty to use reasonable care duly performed by the City? That the berth where the Biltmore lay was dangerous and unsafe is sufficiently proved, for about four feet below the water at low tide at this place there was a large broken fender and while this obstruction might not be seen from the dock, reasonable care required those representing the City, then engaged in the work of repairing and making safe the fender system on this side of the pier, to ascertain by reasonable investigation whether there was any such broken pile likely to be dangerous to its permittee and notify the Steamship Company that it should not place the lighter at such a berth or do so at its own risk, before granting the permit. That it was a very real danger and unsafe berth is shown by what happened on October 3, 1940. Yet the City gave no such notice or warning and in fact failed to reasonably investigate the berth.

 In accordance with the wharfinger permit the Brazil had unloaded on the pier a quantity of barrels of pickled beef weighing approximately 365 pounds each. The Steamship Company then engaged the lighter Biltmore to come to Pier 32 and take on board these barrels. She arrived about eight o'clock in the morning and was placed alongside the pier where these barrels had been unloaded. This was in the neighborhood of door 62 on the pier. The lighter was 96 feet long with a rake at each end making her bottom length a little over 80 feet. Work was started and there is nothing to indicate any improper loading of the lighter which was being supervised by the captain of the lighter. About two o'clock in the afternoon when the lighter had loaded approximately 498 barrels of the approximately total weight of 90 tons she was found to be making water. The lighter's carrying capacity exceeded 400 tons and she was in seaworthy condition having been gone over a year before and ...

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