The City of Lincoln

• Decision Date: 21 December 1885
• Parties: THE CITY OF LINCOLN. [1] v. THE CITY OF LINCOLN. POST and others
• Court: U.S. District Court — Southern District of New York

25 F. 835

THE CITY OF LINCOLN. ^[1]

POST and others v. THE CITY OF LINCOLN.

United States District Court, S.D. New York.

December 21, 1885

Evarts Southmayd & Choate, for libelants.

Root &amp Bartlett, for respondent, Macy.

Benedict Taft & Benedict, for the City of Lincoln.

BROWN J.

The original libel in this case was filed against the steam-ship City of Lincoln, to recover for the damages done to 2,768 steel-blooms, in March, 1882, in discharging them from the City of Lincoln upon pier 45, East river. Before the blooms were removed, the pier broke down in the center, and they were thrown into the river. Some of the blooms were lost, and others damaged. In the progress of the cause a petition was filed by claimants, alleging that the wharf broke down through the negligence of the wharfingers; and thereupon the owners of the wharf were brought in as parties defendant upon the analogy of the new fifty-ninth rule in admiralty. See The Hudson, 15 F. 162. Exceptions were thereupon filed by the wharfingers to the jurisdiction of the court, as respects them, on the ground that the negligence alleged, viewed as a tort, was, if proved, a tort committed upon land, and therefore not within the jurisdiction of this court.

1. If, as alleged, the wharf was rotten and insufficient through negligence of the wharfingers is not keeping it in proper repair for the business for which it was held out to be the public, the wharfingers are answerable as for a tort. If such a tort is a marine tort, the court has jurisdiction; otherwise not. This question was recently considered by this court in the somewhat analogous case of Leonard v. Decker, 22 F. 741, where the jurisdiction of the court was sustained, in part at least, upon the ground that although the cause of the damage-- projection bolts in that case-- originated upon the land, the consummation and the substance of the damage were upon the water. In the converse case of The Maud Webster, 8 Ben. 547, the result of the prior authorities is thus expressed by BLATCHFORD, J., in respect to negligence originating on the water, where the actual injury was received on the land: 'But where, although the origin of the wrong is on the water, the consummation and substance of the injury are on the land, the admiralty has no jurisdiction. ' In every action for a tort of this kind there must be both negligence and damage; neither alone constitutes a cause of action. If the negligence originates in one place, and the damage is sustained in another, some rule is necessary in order to determine the locus of the tort. The supreme court, in the case of The Plymouth, 3 wall. 26, and in other cases, have adjudged that the criterion is the place 'where the substance and consummation of the injury' are effected. So in 1 Hawk. P.C. c. 37, Sec. 17, it was decided that where A., standing on the shore of a harbor, fired a loaded musket at a revenue cutter, which had struck upon a sand-bank in the sea, about 100 yards from the shore, by which firing a person was maliciously killed on board the vessel, it was piracy; for the offense was committed where the death happened, and not at the place from whence the cause of death proceeded. See Adams v. People, 1 N.Y. 173; People v. Griffin, 2 Barb. 427.

In this case, the wharfingers' negligence was wholly upon the land, or in reference to a structure resting upon, and built into, the ground; but the injury to the libelants' steel-blooms was effected wholly in the water, into which they were thrown through the breaking down of the wharf. The whole 'substance and consummation of the place of the injury' were, therefore, in the water. It was the water that did the damage. That was the place of the damage, and consequently the place of the tort, for the purposes of jurisdiction. Had the goods been, for instance, crockery or glassware, which were broken or otherwise injured through the breaking down of the wharf, but without being thrown into the water, the injury in that case would have been consummated upon the land, and no jurisdiction in admiralty would have attached. Rock Island Bridge, 6 Wall. 213; The Mary Stewart, 10 F. 137; The Accame, 20 F. 642. If the blooms, in this case, had not been thrown into the water, the injury in question would not have arisen. But as this injury was caused wholly by the water into which the blooms were thrown, if this arose through the wharfinger's negligence, such negligence was a marine tort, of which this court has jurisdiction.

2. Upon the evidence in the case it is clear that this dock was wholly unsuitable for the use to which it was put, and for the weight of iron put upon the center of it; nor can I doubt that this unfitness arose from the neglect of the owner to keep it in proper repair. The weight of evidence shows that the spiles upon which it rested were worm-eaten, decayed, and rotten, and that their condition was obvious upon any proper inspection. It is evident, moreover, that no proper inspection of the spiles was previously maintained, and that the wharfingers must be held responsible for this neglect.

The wharfingers required the blooms to be piled but two high. Some half a dozen blooms, each weighing about 600 pounds, were by accident dropped upon the others. Elsewhere they were piled but two high. The mere piling of these six blooms, out of 2,768, in a third tier is comparatively insignificant; and considering the further fact that the position of these six was known to the wharfingers and to their agents two days before the wharf fell, and that no request was made to remove them, they must be held immaterial as regards the wharfingers' liability. In fact there was no request by them to make any change, or different distribution, of any of the blooms as they lay upon the wharf, from the time when the discharge was stopped until the pier fell, nearly 20 hours after. The discharge of blooms was begun on Monday; was stopped on notice at half-past 10 on Wednesday; and the wharf fell at 5 A.M. on Thursday. I am satisfied that there was no previous expectation by any one that the wharf would fall. Mr. Powers, the wharfingers' agent, indeed testified that on Wednesday he thought the dock would break down, and that he observed a settling of a foot in the wharf from Tuesday to Wednesday. But I do not credit either of these statements, not merely because all the other witnesses failed to see any such settling, but also for the reason that although Mr. Powers says that he spoke to Mr. Macy, his employer, about the wharf's being heavily loaded, and though the latter came down to look at the blooms, Mr. Macy estimated the settling at the lowest spot at two inches only, and Mr. powers did not express to Mr. Macy any apprehension of the wharf's falling; nor did either of them take any step to relieve the dock of the weight upon it, or request the stevedore to do so. In a conversation with Mr. Macy, about noon of Wednesday, after the discharge of blooms was stopped, the stevedore obtained permission to put other cargo upon the crib portion of the pier; and at the same time he offered to do anything that was desired by Mr. Macy in reference to the blooms. He testified that, had he known of any apprehension that the pier would fall, he could have removed all the blooms in two hours. The lighter sent by the libelants arrived late in the afternoon; and had there been supposed to be any urgency to relieve the dock of weight, I cannot doubt that some effort would have been made to have the lighter take some blooms aboard at once, instead of waiting, as was done, until the next morning.

These circumstances satisfy me that there was no apprehension on the part of any one that the wharf would break down; yet upon the following morning it gave way, under the slight impulse of waves from a passing vessel, which caused the steamer along-side the wharf to sway a little to and fro, upon which the pier gage way and fell. Upon all these facts I cannot avoid the conclusion, no only that the wharf had become greatly weakened from decay and want of repair, but also that the wharfinger had wholly failed to keep himself properly informed of its defects, and consequently failed to make it secure; and that he cannot be absolved from the charge of negligence in the suitable care and repair of the pier.

3. The steamer is ought to be charged with the loss, both because she negligently overloaded the pier, and also on the ground that having selected her own wharf, she is responsible for its sufficiency, without regard to any question of negligence on her part; or, in other words, that she is an insurer of the wharf. The cases of Vose v. Allen, 3 Blatchf. 289, and Kennedy v. Dodge, 1 Ben. 311, are cited in support of this position. The language of the court in those cases, supposed to sustain the libelant's contention, must, however, be read with reference to the facts; and in both these cases it was found that the ship was guilty of negligence in overloading the pier. In Kennedy v. Dodge it was expressly found that 'the pier was a good one, with sufficient strength to have supported the cargo had it been properly placed thereon,' while the Vose v. Allen the ship resumed the discharge of cargo three times after it had been forbidden; and she continued to discharge until the pier broke and fell. Whatever expressions may have been used by the court in those cases, the adjudications themselves do not sustain the contention that the ship is to be held answerable for the sufficiency of the pier without regard to her own negligence.

I do not think there is any principle or rule of law exceptionally applicable to the relation of the ship to the wharf at which she discharges. Her obligations are to be determined by the general rules of law applicable to her...