THE CALVlN
295
It is urged that it does not lie iIi the mouth of Hazleton to object that his patent is vQid, so long as he has by his own acts given it currency, and dealt with it as valid; and there might be some force in this point if the bill did not show that the patent is totally valueless, and void ab initio, for the fraudulent practices by which its issue was obtained, so that a court of equity would abuse its high character and prerogative by treating this patent as property. It would be as consistent f()r the court to compel the conveyance of lands which a party held, or pretended to hold, under a forged deed, when the party seeking to compel such conveyance knew of the forgery. This objection to the bill seems to me so unanswerable that I do not deem it necessary to discuss the question of multifari.ousnessmadeby the demurrer. The demurrer is sustained and the bill dismissed.
THE CALVlN ., .1
P.
HABBIS·
HXGGXN$
et·· al.".
LYNN GAs-LIGHT
Co.
('District Court; D.Maaaachuldt..'December 15, 1887.) WHARVES-DUTY 011' DOCK OWNERS LIABILiTY FOR NEGLIGENCE. ; ,
The owner of a dock is bound to use reasonable care to keep the dock in such a condition as to be reasonably safe for vessels which enter it UpOD his invit!\tion, express or implied; and he is liable for injuries to vessels caused by ony defect therein. whicli by the exercise of ordinary care would· have been known to h11J!, or which .h.e negligently permitted to exist; following ·TkB John L Berkman" 6 Fed. Rep. 585.
This was an action brought by Aaron S.Higgins et ownerS of the schooner Calvin P.Harris, for injuries sustained by the schooner while Company. . entering a dock belonging to the Lynn E. 8. Dodge, for libelants. J. B. Richar(1son and W. Niles, for respondents. NELSON, J. The Lynn Gas-Light Company is the owner of a private wharf:and dock in the harbor of Lynn; the upper or shore end of the wharf being used by the company as a coal wharf. The approach to the coal .wharf for wessels is bya dredged channel extending across the flats, and by the dock above mentioned dredged out along the easterly side of the wharf. The schooner Calvin P. Harris, from Philadelphia, arrived at the outal: end of the wharf. on the morning ofseventh of September, 1885, having on board a cargo of 645 tons of coal owned by the com" pany, which, by direction of the company's agent,. was to be unloaded on the ooal wharf. The schooner's draft of water. was ·13 feet and 9· inches. At 11 o'clock A. M., or at high water, she hauled into the dock. to get to her discharging berth at the coal wharfj but before reaching it!
296
FEDERAL· REPORTER.
:she grou"tided: 011 a hard bar or shoal in the dock, and sustained injury for which the owners in this suit claim to recover damages against .the gas company.' The rule of law applicable to this case is that adopted by , this court in The John A. Berkman, 6F(\d. Rep. 535. The rule there stated is this: The owner or occupant ofa dock is liable in damages to a person who, by his invitation, express or implied, makes use of it, for an injury caused by any defector unsafe condition of the dock which the occupant 'negligently causes or perniitsto exist, if such person was hifu. self in the exercise of due 'care. SUch an occupant is l1:@t an insurer of the safety of his dock, bufhe is required to usereasonabkcare to keep his dock in, such a state as to be reasonably safe for use by vessels which, he invites to enter it, or for which he holds it out as fit fl.udready·. :'If· he fails to use such due care,-if there isa defed which is known to him, or which by the use of ordinary care or diligence should be known to him,-he is guilty of and liable to the person who, using due care, is injured thereby. Tested by this rule, there can be no question as to the liability of the company for this accident upon the state offacts proved at the hearing. that bar, was caused by the backwater of a mill-pond, wlilch'at "low stages of the tide flowed across the flats and entered the at this point, carrying with.it the wash of the flats. The water had 'baen."running in'to the dock from the mill-pond for many yea.rs, and this was lmown to the officers of the c01-npany. Twice before the bar had formed from the same cause, and each time had been removed by the company. Onl)' the year before, the cOJ;npany had ,paid damage to another vessel which had grounded on the bar and received injury. That it had rece.l1tly increased in dimensions is shown by the circumswnce that only ope month before, on a tide of tpe ,same heighl, and drawing no less watel',the Eams had passed through the dock to the same berth without touching. It also appeared that the bar was dredged out by the compltpy after the Oycurrence of this accident. .It thus appears that the officers of the company had notice oithe existence 6f the bar, and of its character; that causeswere constantly at work to increase it; that'lts removal was practicable; and that there was' no lackof time or opportunity to remove it. It was therefore culpable negligence in the officers of the company to permit the dock to be used by vessels of the draught of the Harris, and in the agent of the company to'direct the Harris to enter it. There is no evidence in the case showing want of due care on the part of, the owners of the vessel or of the master and pilot in charge. She was hauled in on a tide ofordinary height, and in the usual manner. That abar existed was known to them, but they did not know it had increased so as to, be dangerous. The Harris had brought coal to this wharf for several years, and never before had trouble in getting iIi. On the previous trip in August she had come in without difficulty. They had no reason "to suppose there would be any at this time. The company's agent gave them n.onoticeof the danger. They had the right, in the absence of positive knowledge to the contrary, to rely upon the direction' of the company's agent to discharge at the coal wharf, as' an assurance
THE HIRAM· R. DIXON.
297
that the bar had not increased t and that the dock was safe and free from obstructions so far as it was the duty of the company to make it so. I am of opinion that the gas company is responsible for the damage to the Harris. Interlocutory decree for the libelants.
THE HIRAM LoRD
R.
THE
{Di8triDt
. . D. New York. December 15, 18&7.)
M.AR:J'Tnr1tLmNs-BupPLIEll-l3'EFoRE .VESSEL LAUNCHED. Be6
I.
is a maritime contract,though, at the time of making the vessel be not launched.
A contract to .furnish· necessaries for the use of a vessel during
a Toyage at
BAME":':'CoNnUCT-BupPLIEB· IN FOREIGN PORT.
. .8.
When a contract contemplates the furnishing of supplies to a vessel at a foreign' part, it is to be presumed that a lien on·the.vellsel wae contempiMed bV the parties, unless. something to the contrary appears. '('.' A ciontract to furnish nets to a t1shlngvessel is , B
maritime contract, In view ..of thes\1bject-matter. though the contract be made on land andnetll delivered on landl and if such nets ar,efurnlshed when the vessel i8 i.u. a foreign port. a lien for their price is created on the v e s s e l . '
BAliE-'-1tLuUTl)[E CONTRACT-To SUPPLY FISHING-NETS.
libelants. lJudlow Ogrkn, for claimant. Stern &: Myer8, for Kessler.
In Admiralty.
BENEDICT, J. This is a proceeding in rem to enforce agllinst the steamer Hiram R. Dixon a lien for the price of certain fishing-nets. The facts are 'riot in dispute. In 1883, the steamer proceeded against was Luilt at Mystic Bridge, in the state of Connecticut. In April Of that year, upon being launched, she 'was towed to New York to receive her boilers and engines. For that purpose she remained in New York until July 4,1883, andwhile there was enrolled, that being the residence of her owner; After her enrollment she proceeded to Bristol, in the state of Rhode Island, and there received her outfit for a fishing voyage. As part of her outfit for that voyage she received on board the nets in question, and thereafter proceeded to sea, and with them engaged in the husiness of catching menhaden. These nets the libelants made to order for this vessel, upon request of Hirllm R. Dixon, for whom the vessel was then being built at Mystic Bridge. .Pursuant to directions from Dixon, the nets when completed were sent to William M. Fish, thedeao lReported by Edward G. Benedict, Esq., of the New York bar;
