Hirsch Lumber Co. v. C. OTTAVIANO & CO. INC.
| Decision Date | 04 April 1927 |
| Docket Number | No. 251.,251. |
| Citation | 18 F.2d 952 |
| Parties | HIRSCH LUMBER CO. v. C. OTTAVIANO & CO., Inc., et al. C. OTTAVIANO & CO., Inc., v. E. W. McCLAVE & SON, Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Bigham, Englar & Jones, of New York City (Richard F. Shaw, of New York City, of counsel), for Hirsch Lumber Co.
William F. Purdy, of New York City, for C. Ottaviano & Co., Inc.
Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for E. W. McClave & Son, Inc.
Before MANTON, HAND, and SWAN, Circuit Judges.
There were three libels filed below for losses arising out of the happening to which we will refer herein. These suits were tried together and resulted in a decree for the Hirsch Lumber Company against C. Ottaviano & Co., Inc., for damage to a cargo of lumber. C. Ottaviano & Co., Inc., alone appeals.
The Hirsch Lumber Company shipped a cargo of lumber on the deck of the lighter Only Sister, consigned to E. W. McClave & Son, Inc., at its wharf on the Passaic river, Patterson, N. J. Arriving at the wharf at 3 a. m. on September 29, 1922, the lighter was made fast to a lighter which was lying alongside the wharf. When this lighter finished unloading in the afternoon, the Only Sister was then placed alongside the wharf in the berth occupied by it. During the night of that day, the Only Sister took a list off shore and dumped part of her cargo into the river. Thereupon this suit was brought against C. Ottaviano & Co., Inc., who in turn interpleaded E. W. McClave & Son, Inc., as wharfinger. The basis for the action was that the berth alongside the wharf was unsafe and that the wharfinger failed to warn the master of the lighter of its unsafe bottom. It was a soft bottom but irregular. The rise and fall of the tide was about six feet. The lighter drew eight feet loaded. The depth of the water at the dock ranged from five to six and a half feet and the vessel would ground at midship at about half tide. At low tide her inshore side would be raised out of the water by grounding at least three feet and her outboard side would be correspondingly immersed. This resulted in a dangerous list to a vessel carrying a cargo piled on deck ten to twelve feet high. With the lowering of the tide during the night, the lighter struck this uneven bottom, and its cargo capsized.
Liability was imposed upon the lighter below for the reason that the lines were not loosened to accommodate the falling tide, by...
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Berwind-White Coal Mining Co. v. City of New York
...adequate steps to prevent the continuance of its use for mooring. Daly v. New York Dock Co., 2 Cir., 254 F. 691; Hirsch Lumber Co. v. C. Ottaviano & Co., 2 Cir., 18 F.2d 952; Nassau Sand & Gravel Co. Inc. v. Red Star Towing & Transportation Co., Inc., 2 Cir., 62 F.2d 356. The liability of t......