The owner of a wharf is bound to keep it safe and free from all defects which might injure persons or property using the same. While not an insurer he must use due diligence to make and keep it safe for the uses for which it was constructed or is employed. The analogy is that of the keeper of any structure commonly used by others for compensation and the obligation extends to all who rightfully come upon the premises for business purposes. Thus friends attending upon the arrival or embarkation of passengers, consignees of cargo, hackmen, and customs officers have recovered damages against the owner of a wharf for injuries sustained through its defective condition. So he will also be liable for injuries to vessels caused by rocks or other obstacles beneath the surface of the water or pikes projecting from the wharf. There is an implied warranty that the premises are safe and free from hidden obstructions. Frequent inspections are required in order to ascertain and repair such defects as may be engendered by its use, and if dangers are found to exist, he should close the wharf or give ample notice of its condition.
These principles were invoked in the case of Onderdonk v. Smith, et al., 27 Fed. 874; where a scow and her cargo were sunk in consequence of being punctured by a spile which projected from the bottom of the slip directly under the place where the scow had taken her cargo. The respondent enjoyed the exclusive privilege from the owners of using the pier and the adjoining slip for shipping their coal and to that extent, although they were neither owners or lessees, had control and occupation of the premises. "They assumed the duty toward those whom they invited there for the transaction of business not to expose them to hazard from any defects in the condition of the premises known to themselves or which, by the use of reasonable diligence, should have been known." Their superintendent knew of the existence of the spile and they were, therefore, chargeable with notice, because about three weeks before the accident in suit another boat had been struck by the same spile. The Court said:
If the scow had been injured by this obstruction while being loaded at the pier, or while going to it or away from it in the prosecution of the business which called her there, the case of the libellant would be clear. But the evidence is that her loading was completed at half past 4 o'clock in the afternoon, when the water was a little below high tide, and the accident happened about half past 9 in the evening, when the tide was low ebb; and if the scow had been removed from the place where she was loaded within a reasonable time after the loading was completed, she would not have been injured. When the tide went out, the scow settled down upon the spile, which projected about a foot from the bottom of the slip, and sufficiently far to puncture the boat at that condition of the water.
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The only liability of the defendants grows out of their duty arising from their implied invitation to others to use the pier for the transaction of the business to which the pier was appropriated. Their invitation was spent when the boat's business at the pier was finished, and a reasonable time had elapsed to enable her to move away. After that she remained there at her own risk. It is not necessary to hold that she was there against the permission of the defendants, and therefore a willful trespasser; but, assuming that she was there without having obtained the permission of the defendant's superintendent, the defendants were not under any obligation to concern themselves for her protection. Under such circumstances, the law imposed no duty upon the defendants except the general duty which every man owes to others to do them no intentional wrong or injury.
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Owners of private property are not responsible for injuries caused by leaving a dangerous place unguarded, when the person injured was not on the premises by permission, or on business, or other lawful occasion, and had no right to be there. One who thus uses another's premises cannot complain if he encounters unexpected perils.
In Smith v. Burnett, 173 U. S. 430, a schooner while moored in berth at a wharf on the Potomac River for loading, was sunk by a submerged rock within the limits of the berth at the wharf, which the master was invited to take, the obstruction being unknown to the master and having been assured by the owners of the wharf, through their agent, that the depth of water in the berth in front of the wharf was sufficient and that the berth was safe for the loading of vessels. Chief Justice Fuller, discussing the English and American authorities said:
Although a wharfinger does not guarantee the safety of vessels coming to his wharves, he is bound to exercise reasonable diligence in ascertaining the condition of the berths thereat, and if there is any dangerous obstruction, to remove it, or to give due notice of its existence to vessels about to use the berths. At the same time the master is bound to use ordinary care, and cannot carelessly run into danger.