Section 11.37 Duties of a Wharfinger

• Library: Tort Law 2016

C. (§11.37) Duties of a Wharfinger

A wharfinger has the duty to:

provide a vessel a safe berth, Smith v. Burnett, 173 U.S. 430 (1899); provide safe and adequate moorings and inspect those moorings and berths, Dow Chem. Co. v. Barge UM-23B, 424 F.2d 307 (5 ^th Cir. 1970); Union Mechling Corp. v. Tri-State Marine, Inc., 1981 A.M.C. 2601 (N.D. Ill. 1981); inspect vessels placed in its care and, if danger is presented, take remedial measures, United Barge Co. v. Notre Dame Fleeting & Towing Serv., Inc., 568 F.2d 599 (8 ^th Cir. 1978); Mulzer v. J.A. Jones Constr. Co., 397 F.2d 498 (7 ^th Cir. 1968); and provide a visiting vessel with a safe approach to the wharfinger’s dock, In re Frescati Shipping Co., 718 F.3d 184 (3 ^rd Cir. 2013).

A wharfinger that invites a vessel to use its dock is not a guarantor of the vessel’s safety but is under a duty to "‘exercise reasonable diligence in ascertaining the condition of the berths 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.’" In re Complaint of Nautilus Motor Tanker Co., 85 F.3d 105, 116 (3^rd Cir. 1996) (quoting Smith v. Burnett, 173 U.S. 430, 433 (1899)). Whether a wharfinger must provide a watchman is unsettled, with a split of authority. The Seventh Circuit has held that a wharfinger must provide a watchman. Mulzer, 397 F.2d at 501–02. The Fifth Circuit imposes a duty to provide a watchman if this service is required by contract. Noonan Constr. Co. v. Fed. Barge Lines,...