620
FEDERAL REPORTER.
vicinity, below the bridge, are three or more piers or docks', to which it is customary for steam tugs coming up the river to bring canal boats. The libellant having arrived at this place reported his arrival to the consignee, Ur. Banta. The consignee directed the libellant to bring his boat up to his (tho consignee's) wharf to discharge, and offered to send him two men to help him pole his boat up to that wharf, which was situated within what is known as the port of Hackensack, about a mile further up the river. The libellant denied the consignee's right to require him to do this, claiming that he had come as far as his contract required him to bring his boat, but offered to go up if the consignee would insure his boat, which the consignee refused to do. The parties, having come to no adjustment of the difference between them, then agreed to meet the next day at the office of the shippers of the coal in New York. They met there but never came to any agreement, and after remaining at the wharf in Hackensack, where the tug left him, several days, and after notifying the consignor that he must take the coal away if the consignee did not receive it, the libellant had his boat towed down the river and brought the coal to Gowanus basin, Brooklyn; and while the cargo was there he libelled it for breach of the contract contained in the bill of lading. The question is whether the libellant had performed his agreement by bringing the boat alongside this wharf below the bridge and offering the coal to the consignee there. If he had done all that the bill of lading required it is clear that he can maintain this suit for damages. The claimants, however, insist that he was obliged to go to the consignee's wharf, if the consignee required it, as in fact he did. I think the rule of law is that where the vessel is chartered, or the shipment is of the entire cargo to one consignee, by bill of lading, and no place of discharge within the port is named in the contract, the charterer or consignee has the right to designate the place of discharge within the port, provided that the place so designated is a usual and proper place. The Boston, 1 Lowell, 464; The E. H. Fittler, ld. 114; Davis v
o'nouRiUl
V. TONS OF COAL.
621
ut. S. Dist. N. Y. unreported; S. C. affirmed, 8 Reporter, 357. I think these cases recognize as a qualification of this right of this consignee to designate the place of discharge that it must be one not unreasonably inconvenient or inaccessible, or extra hazardous to the vessel. Whether or not it is so inconvenient, inaccess;ble, or extra hazardous, must be determined by the circumstances of the particular case. In the present case there were certainly some inconveniences and some hazards.to the libellant's boat in complying with the consignee's request to take her to his wharf to discharge her cargo. At the wharf at which she stopped she could lie safely at all stages of the tide and discharge her cargo continuously. At the consignee's wharf she could lie and discharge at high tide, but when the tide was about twothirds down, on aCC0unt of the want of depth of water, she would have to be shoved out into the river or hauled away till the tide rose again sufficiently for her to be brought back to continue her discharge. The bottom was such that it would be unsafe for a loaded boat to lie there aground. The time required for the discharge of her cargo would thereby be prolonged certainly one day, and perhaps two. To reach the consignee's wharf the libellant's boat, which drew 6 feet and 10 inches, could only cross the bar in the river above the bridge when the tide was at least half flood, and there was no practicable way of getting her up there except by poling her up on the flood-tide. Nor would it be safe to do this in the night-time. There was but one time in the daYl of about three hours, when it could be safely attempted. It was late in the season, and that time of year, December 12, ice was liable to form in the river any night, and at the consignee's wharf, which was a mere bulk-head, lying along the bank of the river, the boat would, in case of ice forming while she was detained there, be in danger of being cut and sunk by the ice, and in danger of being frozen in. The delay that would be necessarily caused by the only method of discharge practicable there, as above described, might very possibly lead to the loss of libellant's boat from this Wallace, 3 Cl. 130; Sleeper v. Puig, Diat.
022
cause. The place was not a safe one for the boat to winter. I think this necessary detention in discharging was, under the particular circumstances of the case, and considering the season of the year, not only a seripus inconvenience to the vessel, but that it made that place extra hazardous. No doubt the vessel takes upon herself the usual perils of the port, and if she agrees to carry to a port, and there is not in the port any place of discharge at which she can safely lie for a continuous discharge of her cargo, she must submit to this inconvenience as being within the contract, but subject to all delays of this character necessarily' incident to the port as a port. I doubt very much whether a vessel can be directed by the consignee to a place of discharge at which she cannot discharge continuously, if there are any places within the port, uSllally resorted to for the discharge of such cargoes, and where she can discharge her cargo, which are not open to this objection. Judge Lowell thus states the rule in the case of The Boston, 1 Lowell: "In the absence of evidence of usage, I lay down the rule of law that when there are two or more wharves in the port, equally convenient to the carrier, he is bound to deliver at that most convenient to the shipper, if he be duly and seasonably notified of such preference." In general, a vessel cannot be required to lie idle unless it is necessary. A continuous delivery of cargo after arrival, if practicable, is to be presumed to have been contemplated by the parties. But, however it be may in a caE'e where this is the only inconvenience, it seems to me clear that where this necessary detention involves the vesssl in a danger of loss or injury, beyond what mere delay usually does, a place subject to this objection is neither reasonably convenient nor safe within this rule of law. The poling of libellant's boat up the river to the consignee's wharf would also be a considerable inconvenience. I am not able to find on the evidence that it would be atdanger than ordinary navigation, if the tended by any men attempting it were accustomed to the wor k. The consignee offered the services of his men, to be paid by libellant.
O'ROURKE V. TONS
or
COAL.
623
He did not offer to have her poled up at his own expense. It is unnecessary to determine the point made on the part of the libellant that this inconvenience alone, and the fact that it would require libellant to put his boat in the power of strangers, would have excused him from going to the consignee's wharf. But, under all the circumstances, I hold that tb,e place designated was not such a. proper place as the consignee has the right to designate. It is urged, however, that the wharf at which the boat lay, and all the wharves below the bridge, were private wharv'es, and that the consignee had no right to go there to receive the cargo j but he testified himself that he offered to discharge there if the libellant would pay the cartage to his dock. This shows that it was a wharf which parties other than the pro· prietor of the wharf' could use for a compensation. This made it so far a public wharf as to be a proper place to discharge. It is also insisted that the libellant did not tender the cargo there. There may have been no formal tender, but it is evident, from the consignee's own testimony, that the libellant gave him to understand distinctly that he had arrived with his cargo at a place which he considered the end of his voyage. The only point made between the parties was whether he must, under his contract, go to the consignee's wharf, as the consign.ee claimed he should do. The consignee distinctly refused to receive the ca.rgo where the boat lay, and, after waiting several days, the libellant took it away. No other tender was necessary. Nor was the libellant bound to wait there any longer. He had the right to take his boat out of the river, where it was not safe for him to remain with her longer at that season of the ye:1l'. The libellant appears to have been unduly alarmed at the risks of going up the river, and to have insisted that his boat could not safely be carried up, and to have overestimated the inconvenience and danger probably attending her lying at the consignee's wharf and discharging there; but these circumstances are immaterial. The real qnestion is whether, under the circumstances, his
/
624
FEDERAL PEPORTER.
contract required him to go further. The rigMs of the parties are fixed by the bill of lading, and the evidence of oonversations prior to the date of it oannot have any effect to vary ita provisions. The that the oonsignee's wharf was an old wharf, and that many canal boats were towed or poled up there every year, and that the oonsignee generally received his coal there, have no bearing on the question. His wharf was not the customary place for landing cargoes of 000.1 at the port of Hackensack. It was, at most, but one of 'several suoh customary places; and the particular con· tracts made in other cases are not shown. This libellant had the right to stand on his contra.ct, even if other persons had yielded to the demand of this consignee, under similar contracts, to bring their boats to his wharf; and the consigne& could have expressly contracted to have the boat brought to his wharf if he had seen fit. The libellant is entitled to a decree for the damages sustained by him from the refusal of the consignee to receive the cargo. Decree for libellant, with costs, and a reference to comput. damages.
BERGEN
V.
THE STEAM.TUG JOSEPH STICKNEY, ETa. March 15,1880.)
(District Cowt, S. D. NeJIl1 York.
COLLl8ION-EVIDENCE-BURDEN OF PnoOF.-"
In the case of injury from a collisio!l the burden of proof is upon thc libellant to 3how, ])1 a fair preponderance of the evidence, that the collision happened, and that i' was the cause of the injury."
In Admiralty. J. A. Hyland, for libellant. E. D. McCa.r.hy, for olaimant. CHOATE, J. This is a libel for damages alleged to have been caused by a collision between the steam-tug Joseph Stickney and thE' libellant's canal boat, Ida, on the twentieth day of May, 1879. The Ida was taken in tow on the nineteenth of May, having on board a,Cl;trgo of coal, at South Amboy,
BERGEN V. TUG JOSEPH STIOKNEY.
625
and, with several other boats, brought to a place in the East riYer called the Sea Fence, where it was usual to stop with tows preparatory to distribuEng the boats according to their several destinations. The libel charges that while the Ida, was lying moored by the sea fence, the tug, in taking up other boats for distribution, and having on her port side two boats, ran against the Ida; that the outside boat on the port hand of the tug struck the Ida on her port quarter about six or eight feet from the stetn with great force, causing the injuries alleged to have been sustained. To maintain his case· the libellant himself and his son, about 12 years old, testified. The libellant swore that the boats came together with so great force as to split a thick and heavy fender j that no apparent damage was done to the Bide of his boat, and that he did not know at the time that any damage was done, but the tug with the boats in tow continued to press and crowd the Ida forward so that she was pushed forward six or eight feet and her bowline parted. He says that he did not discover the damage done till his little boy opened one of the hatches and told him that the water was running in. He was then going below for his pipe, and he went and looked and saw that she was sinking; that he then called out to the captain of the tug that he was sinking. . On the part of the tug the pilot was examined. He admits that in .getting other boats along-side the tug for the purpose of taking them away he lay close to the Ida, but he denies having hit her, or crowded her against the pier. Another witness called on the part of the tug stood on the pier and saw the whole performance. He saw no collision, nor any crowding of the Ida forward. The boy testified to his father's putting in the fender between the Ida and the other boat. He also testified to the other boat striking the Ida, but says noth. ing of the nature or force of the blow, or of its splitting the fender, or of the crowding of the boat forward, or parting the bowline. The supposed injury to the boat was the squeezing of her sides together so as to burst off two planks on the stern, and otherwise to strain her so as to make her leak v.1,no.8-40
