The opinion of the court was delivered by: BYERS
This cause arises from the sinking of the Sampan on February 17, 1958 while tied up to a timber pier in Northport Harbor owned by the Village of Northport, Long Island. The individual respondents named in the original libel, and the later impleaded respondent Cochrane, were dismissed from the cause on consent, at the conclusion of the trial.
The fact of sinking is not in dispute; the cause thereof, and the question of liability, are the matters requiring decision.
The libel was filed May 1, 1958 and the Fourth Article charges 'fault, negligence, and careless, reckless, wilful and wanton conduct' on the part of the Village because it dumped many tons of snow on the ice that filled the slip in which the Sampan lay, with actual knowledge that 'tremendous pressures' were thereby applied to the hull of the Sampan, and after actual notice thereof and demand that it be ceased, that no action was taken by the Village to prevent the sinking and complete loss of the Sampan.
This in substance is the burden of proof undertaken by libellant.
The relevant facts are not in dispute and may be thus related:
The timber pier is built upon open spiles, and projects in a westerly direction and is in the shape of a 'T'. It is 20 feet in width and extends for a distance of about 64 feet to about the center of a cross element which runs generally north and south. That is 18 feet in width and about 119 feet long. On the southerly side of the first element there is thus created a slip of about 98 feet, by 64 feet, by 99 feet; the latter is the length of a bulkhead running along the shore front and parallel to the southerly section of the cross-piece of the 'T'. The open end of the slip is its southerly side measuring 58.8 feet.
Libellant's Exhibit 1 is a chart upon which the foregoing is shown.
It should be said at once that this pier is not a wharf in the commercial sense, and the Village is not a wharfinger with respect to it. This is a finding.
The libellant made the Sampan fast at the head of this slip alongside the pier, by lines leading thereto, sometime in October 1957, intending thus to lay up his vessel, a fishing oil screw, for the winter, and to enable him to do some work on the engines and to couple up and render operative a 650 pound winch which was then unattached to the vessel in any respect, but was standing on the deck, apparently unlashed to any cleat or rail. That is a matter to be referred to later.
The libellant did not seek permission to tie up his vessel from any official of the Village or otherwise, and relied upon acquiescence in his so doing, upon the fact, as he testified, that no one 'chased him away'.
By way of comment it may be said that his legal status is difficult to define, but is thought to be similar to that of a squatter upon land, who is suffered so to remain with the knowledge of the owner. He could have been thought of as a trespasser when first he tied up his vessel, but since the Village must be deemed to have acquiesced for over three months in the use that he made of this pier, such forbearance must somewhat mitigate the terminology to be employed.
If the Sampan be regarded as a kind of maritime mendicant, taking gratuitous haven without permission, it seems none the less true that she enjoyed immunity from the infliction by the Village of wanton, i.e., calculated, intentional injury, as she lay in the position stated.
Since no survey was held by libellant, it is a fair inference that his vessel was not covered by hull insurance, and thus the loss became wholly his, which is an appealing circumstance, if true; but liability is not to be visited for that reason upon the Village, i.e., the taxpayers, but only if the burden of proof, according to the allegations of the libel, can be found to have been sustained.
The evidence shows that the Sampan lay in the position stated, with her port side against a vertical ladder which was made fast to the easterly side of this part of the pier, as shown in Libellant's Exhibit 2. She carried two automobile tire fenders on that side, but they did not serve to ...