Page:Federal Reporter, 1st Series, Volume 6.djvu/647

 THE 8CH00NEB NIANTIC. 635 �law of Connecticut to wharf out in front of its land to the channel, provided navigation is not impeded, (East Haven v. Hemingway, 7 Conn. 186; Nichols v. Lewis, 15 Conn. 137; Frink v. Lawrence, 20 Conn. 117; Simons v. French, 25 Conn. 346,) and to provide in front of its wharf a safe and con- venient berth for vessels. It does not appear that it had not provided such a berth. If the injury had happened by rea- son of the unsafe condition of the land in front of the wharf, or of the unsafe condition of the access to such landing- place, which was known to the defendant and not to the plain- tiffs, and was negligently suffered to exist, and of which no notice was given to the plaintiff, he using due care, the de- fendant would be liable. Carleton v. Steel Co. 99 Mass. 216. BanetU. Clark, 56 Me. 498. �If the Niantio had been assigned by the defendant the place which she took, and had received an injury from theinequal- ities of the bottoux, the defendant would have been liable. If a wharf master of the defendant had knowingly pennitted the Niantie to occupy a berth known to be unsafe, though partly on land of a third person — the captain being ignorant of its unsafe condition — the rule is apparently the same. It would have been the duty of the wharfinger to give informa- tion of inequalities of the bottom which endangered the ves- sel. Sawyer v. Oakinan, 7 Blatchf. 290. �When the Niantie voluntarily takes her own berth, partly upon the unwharfed out-land of a third person, and neither makes request for a berth nor inquiry for information, and the defendant does not know of her presence at the wharf, there is no liability because information was not furnished of the changed condition of the bottom in that neighborhood. Had the defendant, knowing the fact that the vessel was at the wharf, but not knowing where she was placed, been silent in regard to any change, a question would have arisen which is not in this case. The defendant being absent, and the libellant's captain making no attempt to gain information by sovmdings or by inquiry of any person, the charge of negli- gence rests upon him rather than upon the wharfinger. �The defendant, at the suggestion of the court, offered but ��� �