Smith v. Havemeyer
| Decision Date | 01 December 1888 |
| Citation | 36 F. 927 |
| Parties | SMITH v. HAVENMEYER et al. |
| Court | U.S. District Court — Southern District of New York |
John E Parsons, for appellants.
Goodrich Deedy & Goodrich, for appellee.
This is an appeal from a decree of the district court in favor of the libelant in a cause in personam for damages suffered by the barkentine Formosa while lying at a pier in Brooklyn, of which the appellants were the occupants, and to which the vessel had proceeded at their invitation to discharge her cargo and deliver it to them. The Formosa was moored to the pier at flood tide, with her starboard side next the pier. After the tide began to fall she listed to port, away from the pier; and the starboard chocks, through which her two mooring hawsers passed, were torn out by the strain upon them, and the hawsers themselves were broken. With the next flood tide the vessel righted. An examination by a diver the next day disclosed that the stone foundation of the pier below the water extended outward, so that 'he could go up the pier like a pair of stairs,' and that at a point some eight feet below the surface of the water at low tide there was a spike projecting two or three inches from one of the spiles of which the crib-work of the pier was built. Besides the injury to the vessel by the breaking of her chocks and hawsers, some of her copper was torn off on her starboard side by the spike while she was falling with the tide. It is in evidence that vessels like the Formosa had used the pier for the past 10 years without receiving any injuries. The appellants were not aware of the peculiar shape of the foundation of the pier, or of the existence of the spike. There is no evidence to indicate that the vessel was not moored to the pier in the customary way, and none from which it can be properly inferred that there was any negligence on the part of those in charge of her which contributed to the accident. The excessive strain upon her hawsers was caused by her list to port as the tide went down, owing to her contact with the projecting foundation of the pier below the water. Upon the case made by the libelant it was for the appellants if they relied upon the defense of contributory negligence of the libelant, to establish it affirmatively. Railroad Co v. Gladman, 15 Wall. 401; Railroad Co. v Horst, 93 U.S. 291. It was not necessary for the libelant to show that the appellants were aware of the vices and defects in the...
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