Phillips v. Schlesinger , 1884 Mass. LEXIS 265 ( 1884 )

W. Allen, J.

The defendants are liable only for injuries occasioned in a use of the dock by the plaintiffs which they were invited or induced by the defendants to make. Carleton v. Franconia Iron & Steel Co. 99 Mass. 216. Nickerson v. Tirrell, 127 Mass. 236. Murphy v. Boston Albany Railroad, 133 Mass. 121.

In the contract for coal with the Chesapeake and Ohio Railway Coal Agency, the charterer of the plaintiffs’ schooner, the defendants guaranteed thirteen feet of water; that was no invitation for a vessel drawing fourteen feet and three inches. The only invitation to bring the plaintiffs’ schooner to the wharf was what might be implied from the silence of the defendants’ superintendent when he heard the agent of the charterer, after the arrival of the vessel in Boston, direct the plaintiff to proceed to the wharf; and in what was said by the defendants’ stevedore, who gave instructions as to the manner of coming to the wharf, and who, as the master of the schooner, a witness for the plaintiffs, testified, said to him, “ Captain, let me tell you, don’t you come in there with your vessel in the night. It is a bad place; don’t you come in there unless I am there, or some one else, to tell you where to place your vessel.”

The master testified, that he went to the dock in a boat, and sounded with an oar and a line, and concluded that he could get up in the night and without help; and that, without informing the stevedore of his intention to do so, he attempted to bring his vessel to the wharf in the night, and when no one was there, and in doing so got aground. There was no invitation to use the dock in the manner in which the plaintiffs used it. The invitation or inducement extended no further than to use the dock to get to the wharf in the daytime, and when some agent of the defendant was present to direct or assist, and excluded coming in the night, and when no one acquainted with the dock was there; and when the captain used the dock for the purpose of bringing his vessel to the wharf in the night, and without assistance, he was not acting on any invitation or inducement offered by the defendants, but on his own judgment and responsibility. Exceptions sustained.