M. & J. Tracy, Inc. v. Marks, Lissberger & Son, Inc.

283 F. 100, 1922 U.S. App. LEXIS 2248

• Court: Court of Appeals for the Second Circuit
• Decided: April 3, 1922
• Docket: No. 233
• Status: Published

Opinion

HOUGH, Circuit Judge

(after stating the facts as above). A wharfinger is one who keeps a wharf for the purpose of receiving goods for hire, and the wharfinger in this case was the city of New York. ¡Respondent was the consignee, who directed the Albany to lie at the city’s wharf; the hire therefor going to the wharfinger. Respondent had no lease or other right of exclusive possession in respect of this public wharf.

The duty of a wharfinger is to exercise reasonable care in ascertaining the condition of the berths at his wharf and to remove dangerous obstructions or give due notice of the existence thereof to vessels about to use the berths. Smith v. Burnett, 173 U. S. 430, 19 Sup. Ct. 442, 43 L. Ed. 756. This means that a wharfinger is bound to ordinary care and diligence in the transaction of his business, and it is the duty of a libelant to prove negligence. Stevens v. Maritime, etc., Co. (C. C. A.) 263 Fed. 68. If the injurious obstruction, though concealed, might have been ascertained by the wharfinger through the exercise of reasonable diligence, liability exists. Manhattan, etc., Co. v. Mayor, etc. (D. C.) 37 Fed. 160. And even where the obstruction is known and the notice given, so that it cannot be understood, liability continues. Schoonmaker v. New York, 167 Fed. 975, 93 C. C. A. 227.

But every such case rests upon its own facts, of which Panama R. Co. v. Napier, etc., Co., 166 U. S. 280, 17 Sup. Ct. 572, 41 L. Ed. , is a striking example. It has been thought that wharves maintained by municipalities or other public authorities are subject to stricter rules than are private wharfingers (28 R. C. L. p. 44), a doctrine for which no authority can, we think, be found in the courts of the United States.

The consignee of a Vessel is “bound to provide a safe berth,” as has been often said (e. g., Bowen v. Decker [D. C.] 18 Fed. 751), which phrase, however, means no more than that such consignee, while not guaranteeing the safety of the destinated wharf, “is bound to exercise diligence in ascertaining the condition of the dock and of the berths, and to give notice of any obstruction or of any danger to vessels” (Look v. Portsmouth, etc., Ry. [D. C.] 141 Fed. 182). This, also, is an obligation to exercise due care according to the circumstances, and as against a consignee it is as necessary to prove negligence as it is against a wharfinger. There is no warranty or insurance in either instance. Yet a distinction has been suggested between the standard of duty required of a wharf owner and that of a consignee. Conklin v. Staats, 161 Fed. 897 (899), 88 C. C. A. 593.

The difference between the obligations of consignees and wharfingers does not rest upon any legal distinction that can be drawn between their respective “standards of duty.” Both are bound to the exercise of care and diligence under the circumstances; but the means of ascertaining the existence of probable, or even possible, danger are not the same for both. In the majority of cases usually cited on this subject, the same person or corporation was at once wharfinger and consignee. In this case respondent’s use of the city’s wharf was an incident, as occasional an exercise of a citizen’s right or privilege as is riding for hire in a city-owned omnibus or car. The duty rests upon the wharfinger to watch, maintain, and keep in order that which he asks the public to pay him for the use of. The consignee, and especially the occasional user, who is a consignee, is bound to acquaint himself with the reputation and commonly known characteristics of what the wharfinger offers for hire. But a consignee, who knows that a berth has a good reputation, that it has been used for years without complaint or known accident, is entitled to transact his business on that reputation.

Applying the foregoing to the facts in this case, we may assume that -there was this single boulder on an otherwise safe and soft bottom. The existence of that boulder was not only unknown to respondent, but to the public. Vessels had continued to use this berth without finding this boulder almost to the day of this accident, and the repute of the wharf was good. It was upon this habit and reputation that the consignee acted, and we think he had a right so to act. Whether the city of New York, as a wharfinger, would have been held, had it been a party to this suit, is a matter as to which we are not called upon to express any opinion.

Decree reversed, with costs, and the cause remanded, with directions to dismiss the libel, also with costs.