THE LUCY EVELYN. MACHIAS LUMBER CO. et al. v. ORIENT POINT WHARF COMPANY et al.

THE LUCY EVELYN. MACHIAS LUMBER CO. et al. v. ORIENT POINT WHARF COMPANY et al. Circuit Court of Appeals, Second Circuit. March 18, 1929. On Rehearing. April 4, 1929. No. 202. CTowell & Rouse and E. Curtis Rouse, all of New York City, for appellants. Peter Alexander and Edward Ash, both of New York City, for appellees. Before L. HAND, SWAN, and CHASE, Circuit Judges. Certiorari denied 49 S. Ct. 514, 73 L. Ed. —, [MAJORITY — PER CURIAM.] PER CURIAM. Decree affirmed. [REHEARING — PER CURIAM.] On Petition for Rehearing. PER CURIAM. We did not hold the claimants liable because of the fact that the berth was too shoal and the pier too frail. We thought, and still think, that, although the schooner knew the condition of both the berth where she lay and the pier, she did not know that there was no water off the pier end. King was present when she tried to leave, and actually helped to handle the lines. He saw nothing in her proposed navigation which caused him to suppose that it would fail; if he had, he was bound to advise her. It did fail, and she had to put back and endure the gale in what was then an unsafe berth beside a, weak pier. Had she been advised that she could not clear on an east wind, she would have been charged with the duty of getting a tow; but there was nothing to advise her. On a southerly wind, also, she would have had to get a tow, and she knew that she would; but with the wind that was she only needed water. Voluntarily to ride out the gale in that berth might have been bad seamanship, hut she did not do so voluntarily; she could not help it; she was trapped. Petition denied.