Berwind-White Coal Mining Co. v. City of New York

• Decision Date: 30 April 1943
• Docket Number: No. 168.,168.
• Citation: 135 F.2d 443
• Parties: BERWIND-WHITE COAL MINING CO. v. CITY OF NEW YORK et al. THE EUREKA NO. 72. THE ADMIRAL DEWEY.
• Court: U.S. Court of Appeals — Second Circuit

135 F.2d 443 (1943)

BERWIND-WHITE COAL MINING CO. v. CITY OF NEW YORK et al. THE EUREKA NO. 72. THE ADMIRAL DEWEY.

No. 168.

Circuit Court of Appeals, Second Circuit.

April 30, 1943.

Macklin, Brown, Lenahan & Speer, of New York City (Paul Speer, of New York City, of counsel), for libellant-appellee.

William C. Chanler, of New York City (Martin Faust and John D. J. Moore, Jr., both of New York City, of counsel), for respondent-appellant.

Clive C. Handy, of New York City (Gerald E. Dwyer and S. A. Hellenbrand, both of New York City, of counsel), for respondents-impleaded-appellees.

Before L. HAND, CHASE, and FRANK, Circuit Judges.

CHASE, Circuit Judge.

The libellant's coal barge Eureka No. 72 was sunk when she grounded on submerged piles at the north side of Pier 99, Hudson River, on March 3, 1939. It sued the City of New York, in the admiralty of the District Court for the Southern District of New York, as owner of the pier. The city impleaded both the tug Admiral Dewey, owned by the libellant, and since the latter owned that tug it was stipulated that any negligence of the tug should be imputed to the Eureka No. 72, and the New York Central Railroad Company which owned the land under water immediately adjacent to the pier on the north and had until recently had a track trestle there. The railroad company thereupon impleaded the George W. Rogers Construction Company which had, under a contract it had with the railroad company, removed the trestle about a month before the sinking. The Rogers Company had in this contract agreed to indemnify the railroad and save it harmless from any claim resulting from any act or omission of the contractor or those acting for it in the removal of the trestle.

After trial in the district court, an interlocutory decree was entered against the City of New York and the petitions impleading the New York Central Railroad Co. and the George W. Rogers Construction Co. were dismissed on the merits. The city has appealed and the libellant has assigned error to so much of the decree as dismissed the petitions against the impleaded respondents. The facts as found are not challenged. The appellant does, however, insist that it was not a general wharfinger and that it was not negligent.

Late in the afternoon of March 3, 1939, libellant's tug, Admiral Dewey, moored the loaded coal barge Eureka No. 72 at the north side of the pier and left when, so far as appears, it had no reason to believe the berth unsafe. At about 10:30 P. M. on the same day the barge settled with the fall of the tide on two submerged piles which so damaged her bottom that she sank.

From sometime in 1905 or 1906 until February of 1939 the New York Central had maintained the track trestle above mentioned along the north side of the pier on piles driven into the land, which was owned by the railroad, beneath the water there. The railroad had done so under a permit pursuant to an agreement it made with the city on October 10, 1905 which required it to remove the trestle immediately upon the termination of a lease it then had of the pier and to restore "said pier and land under water adjacent thereto on the northerly side thereof to its former state and condition."

Before the removal of the trestle, the appellee barges had, with other vessels, frequently been moored to the north side of the trestle not only without objection from anyone despite a sign on the river end of the pier reading "No Berthing Allowed At This Pier" but the city had on occasions collected from the libellant wharfage for those moorings. Apparently the libellant paid wharfage whenever it was billed for it. It has been urged in behalf of the city that it was unable to prevent the mooring of vessels at the north side of the trestle which was owned by the railroad that owned the land under water as well. However that may have been, it is presently immaterial since the city did in fact exercise control and hold itself out as a wharfinger there by collecting wharfage. All of which justified the conclusion of the trial judge that the libellant did, despite the sign, reasonably believe that the north side of the trestle was a safe and available berth.

When the trestle was removed by the railroad company it was done in compliance with an order of the city given March 10, 1938 and the Rogers Construction Co. was employed by the railroad to do the work. It may be assumed that the lease had expired and it appears from a letter dated September 22, 1938, written by the Commissioner of Docks to the railroad that immediate compliance with the order for removal was insisted upon because the trestle was a fire hazard.

There was no evidence as to the condition of the submerged land adjacent to the north side of the pier before the building of the trestle. It was shown that the Rogers Construction Co., which had agreed to remove the trestle in a proper and workmanlike manner and to remove four pile clusters immediately adjacent thereto on the north, had swept the bottom six times after the trestle was taken down in an effort to discover any obstructions there but these sweepings did not reveal the submerged piles which later caused the sinking of the libellant's barge. The city, however, had before the sinking and upon the request of the railroad acknowledged that it was satisfied with the work which had been done "in connection with the removal of the railroad trestle." And it did so without making an inspection of the bottom of the slip.

That the trial judge was right in holding that the city became a general wharfinger by permitting vessels to use the north side of the trestle for mooring purposes and by collecting wharfage from the libellant for such use from time to time is clear enough. The Santa Barbara, 4 Cir., 299 F. 147. Nor can it be said that by the removal of the trestle the city's status in this respect was changed when the slip was thus enlarged. The pier was still there and there was nothing to warn vessels that the waters adjacent to the north of it were not still safe and available for berthing. The city knew that the berth at its pier had been widened; was bound to know whether the change had made it unsafe; and, if so, to give adequate warning to those who might otherwise tie up there. Heissenbuttel v. Mayor, etc., of New York, D.C., 30 F. 456; The Cornell No. 20, D.C., 8 F.Supp. 431. Its neglect to do that was a breach of the duty it as a general wharfinger owed the libellant.

It is well settled that a general wharfinger is not an insurer but that he must use reasonable diligence in providing a safe berth; and that that requires the taking of reasonable precautions to remove under water obstructions that might otherwise endanger the vessels moored to his pier. Smith v. Burnett, 173 U.S. 430, 19 S.Ct. 442, 43 L.Ed. 756; Norfolk Tidewater Terminals, Inc., v. Wood Towing Corp. et al., 4 Cir., 94 F.2d 164. It may be that the city could have fulfilled this duty by engaging a competent contractor to perform the work of making the bottom safe. We need not decide that for it did not do so. The railroad's contractual obligation to the city was only to restore the bottom to its condition previous to the construction of the trestle. There is no proof as to the former...