Section 11.38 Defenses

• Library: Tort Law 2016

D. (§11.38) Defenses

The burden on a wharfinger, like other bailees for hire, to return bailed property in the condition received is a heavy one. The defenses available to a wharfinger are few and rarely of practical use. A wharfinger may assert that a vessel was not in its care, custody, or control at the time of the damage. In re Flowers, 526 F.2d 242, 244 (8^th Cir. 1975) (questioning whether the defendant had the requisite exclusive control of barges); Sisung v. Tiger Pass Shipyard Co., 303 F.2d 318 (5^th Cir. 1962). When barges are placed in a fleet or spotted at a loading or unloading facility, there is usually no question that the wharfinger has taken the vessel into its custody. Normally, wharfingers inspect vessels before accepting delivery and...