
    MOSES TAYLOR and Others, Appellants, v. THE ATLANTIC MUTUAL INSURANCE COMPANY, Respondents.
    
      Wharfage — Abandonment of Wrecked Vessel to Insurers — Liability—Damages for Obsbrueting Wharves and Piers.
    
    
      ■ “When a vessel, lying at a wharf in the city of New York, takes fire and sinks to the bottom, and is then and there abandoned to the insurers, who accept the abandonment, they do not thereby incur any responsibility for the obstruction occasioned by the sinking of such vessel, nor are they under any obligation to the public to remove the same.
    No action can be maintained by a lessee of the corporation entitled to wharfage or shippage against the underwriters for damages occasioned by such obstruction by the sinking of the vessel.
    
      Charles Tracy for Appellants.
    
      D. Lord for Eespondent.
   Davies, Oh. J.

Tbis action was prosecuted to recover from the Defendants certain moneys claimed to be due from them to the Plaintiffs, as wharfage or shippage, in respect to a certain ship called the Joseph Walker; or the damages which the Plaintiffs claimed they had sustained by the loss of such wharfage or ship-page, by reason of the wrongful and negligent acts of the Defendants, and their agents and employees.

The ship Joseph Walker, of about 1300 tons burthen, while lying on the west side of the pier No. 29, East Eiver, at the port of New York, taking in cargo, took fire on the 26th of December, 1853, and sank to the bottom of the river, in about thirty feet of water.

She had on board about 300 or 400 barrels of resin, about 300 bales of cotton, and about 20,000 bushels of wheat, all of which were submerged.

The Defendants, The Atlantic Mutual Insurance Company, were insurers of ^-§ parts of the ship.

Other insurance companies who are also parties Defendants,. were insurers of the interest of other owners, only parts being uninsured; and the owners of those parts are also Defendants.

The sunken wreck was not removed from the slip until the 25th or 26th of October, 1855.

• The insured owners of the vessel abandoned her, after she was burned and sunk, as a total loss, and the insurance companies accepted the abandonment.

The Plaintiff', Moses Taylor, as lessee of the corporation of New York, was entitled to demand and receive the wharfage of the bulkhead on the easterly half of the slip, and to the wharfage or shippage arising from the westerly half of the pier.

When the case was first before the Superior Court of New York, for consideration upon a demurrer to the complaint, that Court held that the Plaintiffs could not recover without showing that the Defendants, by due care and attention, could have removed the wreck, or at least have shifted its position, so as to prevent its being a cause of injury; and by showing that they were in default for not doing so.

That Court also held that the Defendants, having insured an undivided interest in the ship, and having accepted an abandonment, made by such insured owners, after the vessel was so burned and sunk, were not liable for loss of shippage or -wharfage caused by such obstruction, it not being alleged that by due care and attention it could have been removed.

And also held that such piers and bulkheads are open to the common use of the public for any purposes connected with the loading, unloading, or repairing of vessels, and securing their cargoes, -whether in vessels afloat or sunk, not prohibited by statute or the lawful ordinances of the Common Council; and that such use, when it neither encumbers the bulkhead or pier, so as to in-iconunode the loading or unloading of vessels, or the passing or re-passing of carts, nor in any way injures the structure itself, gives no right of action to the party entitled to shippage or wharfage.

Held also, that a use of a slip, in attempting to raise a vessel, and recover the property in it, especially as such attempt was made .at the request of the Plaintiffs, created no liability to make com-pénsation for such usé, as no facts were stated showing súcb use to be wrongful, or an invasion of the Plaintiffs’ right, or a violation of any duty which the Defendants owed to them.

The demurrer to the complaint was -sustained, and judgment given for the Defendants, with leave to Plaintiffs to amend (2 Bos.Rep. 106).

. The complaint was amended, and as thus amended did allege: “ That the said wreck (ship Joseph Walker) could have been removed with reasonable care, skill, and diligence in a short space of time; to wit: in the space of sixty days from the time when so sunk.”

“ That the Defendants, having control and possession of the said ship, have conducted themselves so negligently, unskilfully, and carelessly in and about their attempts at the removal of said ship, which they undertook to do, and as was their duty to do ; and in and about the bringing into said slip and sinking, or suffering to be sunk and left there, the said other vessels or hulks, and in various other acts of negligence, unskilfulness, and carelessness in respect thereto, that the Plaintiffs have suffered great and lasting injury.”

That “ by means of all which premises, and by the said several acts of negligence and unskilfulness, and by said other obstructions, brought into said slip by the Defendants, and left there, and by injury to the said wharf and pier as aforesaid, and by the said piles driven and left remaining- in said slip, as aforesaid, and by said obstructions to the passing and repassing of carts upon and over said pier and wharf, as aforesaid, and by preventing the entering and loading and unloading of vessels into and alongside of said slip, pier, and wharf, and by their unnecessary use and occupation of said premises as aforesaid, the said pier, wharf, slip or basin has been greatly interfered with, and the Plaintiffs greatly damaged.”

On the second trial, upon this amended complaint, the Plaintiffs adduced their testimony, and rested.

And it was admitted that the fire in the Joseph-Walker was accidental; that it did not originate on board, -and that the proprietors were not in fault in regard to the fire.

Tbe counsel for tbe Defendants asked tbe Court to charge tbe jury to find a verdict for tbe Defendants, on tbe ground :

1. Tbat tbe wharfage was proved to have been paid by the owners up to December 27, 1853, when tbe vessel was sunk, and the obligation to pay wharfage after tbat ceased. When she ceased to be a floatiug ship, without tbe fault of tbe proprietor, by an accident which, as to the owner, was a destruction of bis property, that common loss and calamity were so far shared by tbe pier owners.

2. Tbat in no view tbat could be taken of an express or implied contract, was there any ground for implying a contract to pay wharfage by tbe abandonees of a ship sunk to tbe bottom, and which could not be removed by any of tbe ordinary appliances belonging to a ship.

3. As to tbe idea of obstructing wharfage, it was decided in this case tbat, under the circumstances of this very accident, no wharfage could be clahned for tbe materials that were necessary for relieving tbe pier and slip from the obstructions tbat bad sunk there.

4. That tbe vessel being sunk in a public water, it was tbe duty of tbe Plaintiffs, or of tbe city authorities, to remove tbe obstruction. Tbe city made the Plaintiffs grantees of the tolls, and it was tbe duty of tbe Plaintiffs to remove tbe obstructions, in consideration of being entitled to such tolls; and they could make no claim upon any one for the continuance of tbat obstruction, which it was their duty, as receivers of the wharfage and tolls, to remove.

5. It was tbe duty of those having tbe tolls to clear tbe obstruction, and then, if any one was in fault, to throw the expenses upon those in fault.

6. Tbe insurers by abandonment do not acquire an actual movable possession; they are not tbe parties in actual possession, and are not chargeable with tbe removal of tbe ship ; they were merely owners of what should be saved.

7. Further, if there was - an obligation on the owners to remove the vessel, there could be no other obligation than to use reasonable diligence for such removal; and the Defendants could not be liable, inasmuch as the evidence was undisputed that they had used due diligence.

8. The sunken ship was an obstruction in a public water, without any fault of the Defendants, or original liability against them; and the engagement of salvors, by contractors having possession and conducting the work, did not render them servants of the insurers, or the insurers responsible for their acts.

The counsel for the Plaintiffs contended that the Defendants had accepted the abandonment, and considered the wreck of value, and made a contract looking to recover something from the proceeds. That by this act of theirs, and the transfer to them, they became owners.

That the wreck was regarded as removable, and the Defendants, if they chose to bring vessels and the like there in getting her out, should pay wharfage.

The Court charged the jury, that upon the evidence adduced by the Plaintiffs, as matter of law, the Defendants were entitled to their verdict. To this direction, that the jury should find for the Defendants, the Plaintiffs’ counsel demanded to go to the jvuy. This was denied, and the Plaintiffs excepted.

The jury then found a verdict for the Defendants, and judgment thereon was affirmed at the General Term of the Superior Court of New York, and the Plaintiffs now appeal to this Court.

It will be convenient to consider, in the first place, the ground of recovery, and the only ground upon which the Plaintiffs claimed, at the trial, they were entitled to recover, viz.: that under the circumstances detailed the Defendants were liable to pay wharfage.

The Plaintiffs claimed that they were entitled to the wharfage of the bulkhead or wharf forming the extremity or water side of South street, between piers Nos. 28 and 29, on the East Biver, and were also entitled to the wharfage of the westerly half of pier No. 29.

Such right could only have been acquired by leases or grants, made by The Mayor, Aldermen, and Commonalty of the city of New York, and such a lease had been so granted to Plaintiffs.

The corporation of the city of New York were originally the owners of the land between high and low water mark on the East Ni ver, and four hundred feet beyond low-water mark, extending into said river. -

At an early day the said corporation commenced making grants of said lands to the owners or proprietors of the adjacent upland, extending the street through the same, and requiring the persons taking out such grants to fill in the intermediate spaces between said streets, and to construct and maintain the same.

By section 220 of chapter 86 of the Revised Laws of 1813, it was enacted that it should be lawful for the said the Mayor, Aider-men, and Commonalty, to lay out, according to the plan agreed upon for that purpose, regular streets or wharves, of the width of seventy feet, in front of those parts of the said city which adjoin the East River or Sound, and to the North or Hudson River, and to such extent along those rivers, respectively, as they might think proper; and they had power to lengthen and extend, from time to time, said streets or wharves. Section 221 declares that the said streets or wharves shall be made and completed according to said plan, by and at the expense of the proprietors of land adjoining or nearest and opposite to the said streets or wharves, to the breadth of their several lots; and said respective proprietors were to fill up and level at their own expense, according to such plan, the spaces lying between their said several lots, and the said streets and wharves; and should upon so filling up and levelling the same be entitled respectively to become the owners of'the said intermediate spaces of ground in fee simple.

In pursuance of these provisions South street, the exterior street on the East River, was made and constructed of the width of seventy feet, by the Plaintiffs' or their grantors.

The 224th section of this act authorizes the corporation to direct piers to be sunk and completed, at such distances and in such manner as it may think proper, in front of said streets or wharves so adjoining and extending along the said rivers; and the said piers to be connected with the said streets or wharves by bridges, at the expense of the said proprietors; and if they should neglect ■ or refuse to make the same according to such directions, then it was made lawful for the said corporation to sink and make said piers and bridges, at its own expense, and to receive to its own '•use wharfage for all vessels that might at any time lie or be fastened to said piers or bridges which they might make.

Or it might be lawful for the said corporation to grant the right of making such piers and bridges, and the right of receiving the profits thereof.

The 233d, 234th, and 235th sections of said act contain prohibitions upon all persons throwing or placing any obstructions in any dock, or upon any wharf in said city, and impose penalties therefor.

And section 236 declares, that it may be lawful for the said corporation to make such by-laws and ordinances, as they should from time to time think proper, for regulating the wharves, piers, and slips in said city.

"We thus see, by these provisions of the statutes, that the wharves on that side of the exterior streets of the city front and adjoin the East or North Ni ver; that the piers are projections extending from said wharves out and into said rivers; and that the spaces lying between said piers are called and known as slips.

Section 212 of this act fixes the rates of wharfage for all ships and vessels using the wharves in said city, to be charged and received by the owners thereof respectively; the rates therein specified to be paid “ for every day such ship' or vessel shall use or be made fast to any of the said wharves.”

And section 215 declares that every ship or other vessel which shall make fast to any other ship or vessel that shall be fastened to any wharf, and being so fastened shall load, unload, or careen, shall pay the one-half of the rate of wharfage such ship or vessel would have been liable to pay if fastened to such wharf, and there loaded, unloaded, or careened.

And section 216 declares that the master or owner of any ship or other vessel, or, in their absence, the factor or agent to whom such ship or vessel shall be consigned, shall be liable to pay the wharfage due for such ship or vessel. Provided, howTever, that such factor or agent shall not be liable for the same, unless an account of the wharfage due shall be delivered to such factor or agent, or if absent, left at bis usual place of abode, and tlie money there demanded, before the departure of such ship or vessel from the port.

It is, therefore, very clear, from these provisions of the statutes, that wharfage is only demandable for the use of the wharf or pier, and the statutes define in what that use is to consist, or rather what is the evidence of such use.

It is, that the ship or vessel should be made fast to such wharf or pier; or if made fast to any other ship or vessel which shall itself be fastened to any wharf or pier.

The statutes do not recpiire the payment of wharfage, by any ship or vessel, unless such ship or vessel is made fast to some wharf or pier, or is fastened to another ship or vessel which is already made fast to any such wharf or pier.

This construction is confirmed by the act of 1860 (chap. 254 of Laws of 1860), the first section of which act declares that it shall be lawful to charge and receive wharfage or dockage at the following rates :

“ From every vessel that uses or makes fast to any pier, wharf, or bulkhead within the cities of New York or Brooklyn, for every day or part of a dajds use of the same, viz.: From every vessel of two hundred tons burden or under, one cent per ton; and for every vessel over two hundred tons, one cent per ton for each of the first two hundred tons, and for every additional ton burden, one-fourth of one cent per ton; and from every vessel making fast to another vessel lying at any pier, wharf, or bulkhead, and for every vessel lying at anchor within any slip or basin, one-half of the above rates.”

The Joseph Walker, after December 27, 1853, up to which time the accustomed wharfage was paid, did not, after that date, make use of the Plaintiffs’ wharf or pier, or make fast to any such wharf or pier; nor was it made fast to any other vessel or ship which was fastened to such wharf or pier.

The Plaintiffs therefore had no legal claim for wharfage, in respect to said vessel, after her partial destruction by fire and sinking in thirty feet of water, on the night of December 26, 1853.

As this was the only claim the Plaintiffs made at the conclusion of the trial, and as the statutes of the State did not authorize them to demand and receive wharfage, in respect to a ship sunk thirty-feet under water, the Judge rightfully decided that the Plaintiffs were not entitled to receive such wharfage, and properly directed the jury to find a verdict for the Defendants.

"We do not think the exception taken to the refusal of the J udge to the demand of the Plaintiffs’ counsel to go to the jury, is available on this appeal. If such demand is to be understood to mean that the Plaintiffs demanded to go to the jury on the question as to their right to recover wharfage, then it was properly refused, as such right was, upon the conceded facts, a question of law solely, and, as it has been shown, was properly decided adverse to the Plaintiffs, by the Judge at the trial.

If, however, the Plaintiffs’ counsel desired to go to the jury on other questions, it was incumbent on him to point out specifically the particular question he desired to. be submitted to the j^y-

This point was distinctly ruled in Winchell v. Hicks (18 N. Y. 558); and the doctrine of that case has received the frequent approval of this Court.

If the Plaintiffs had desired any questions of fact to be submitted to the jury, they should have distinctly stated them, and made their request accordingly, and, if refused, taken an exception.

There is certainly no ground of liability on the part of the Defendants to compensate the Plaintiffs for the use of a wharf or pier, in going to and coming from the wreck, or the vessels afloat on the waters of the East River, employed in raising it.

These waters are part of the arm of the sea, and are a public highway, and navigable to all.

• The Plaintiffs have no right to claim compensation for their use. The act of 1860, already quoted, was the first authority given by the State, to the owners of the adjacent wharves or bulkheads and piers, to charge for any vessel lying at anchor within' any slip or basin, and then only half the usual wharfage.

'The Plaintiffs can claim nothing by virtue of this act, as it was not in force until years after tbe removal of tlie wreck of this vessel.

Equally untenable is tbe claim that tbe Plaintiffs are entitled to compensation from tbe Defendants for the use, by their agents and servants, in passing and repassing, of tbe wharf and pier of the Plaintiffs, in going to and coming from tbe wreck of said ship, and tbe vessels employed in raising her.

These wharves and piers are streets of tbe city of New York, for tbe free passage of all citizens, and are so declared by statute. Tbe only revenues authorized to be derived therefrom are the wharfage already referred to, and tbe charge authorized to be made by the third section of the act of 1860 already adverted to.

This section makes it lawful for the owner or lessee of any bulkhead, pier or basin in the port of New York, to charge and receive the sum of five cents per ton on all goods, wares or merchandise remaining on the bulkhead or pier owned or leased by him, for every day after the expiration of forty-eight hours from the time such goods, &c., shall have been left or deposited on such pier or bulkhead.

Obviously, this section furnishes no ground of liability on the part of these Defendants, even if it had been in existence at the time of the happening of this accident.

It is now contended that these Defendants were in fault in respect to the sinking of the Joseph "Walker.

And the main ground upon which it is now argued that they are liable to the Plaintiffs is, that they so negligently, carelessly and unskilfully managed the raising of said wreck, and the removal thereof, that the Plaintiffs sustained great damage thereby. A conclusive answer to this position is, that the Plaintiffs did not request any such question to be submitted to the jury, and to be passed upon by them.

But upon the evidence adduced on this trial, the jury would not have been warranted in finding that the Defendants had carelessly, unskilfully, or negligently managed the raising and removal of said wreck, or that they had unreasonably delayed the same.

The place -where said wreck was sunk was a part of an arm of tbe sea, and embraced a portion of the navigable waters of the State.

11t might be very doubtful whether the Defendants were under any obligation to remove said wreck.

The current of authority would seem to show that they were not.

Thus, in King v. Watts (2 Esp. 675) it was held, that from an unavoidable accident producing the wreck of a vessel, no duty arises to the owner to take any precautions, or to remove the impediments to the navigation which were created, and that there was no reason for throwing upon the owner any special care, in consequence of what may be considered as a misfortune both to him and to the public.

In Browne v. Mallett (5 M. G. & Scott, 613), Maule, J., in his elaborate opinion, says: u It is the duty of a person using a public navigable river with a vessel of which he is possessed, and has the control and management, to use reasonable skill and care to prevent mischief to others.” And he adds: “Ilis liability is the same, whether his vessel be in motion or stationary, floating or aground, under water or above it; ” for in “ all these cases,” he says, “the vessel may continue to be in his possession, and under his control and management.”

Baron Alderson, in his judgment in White v. Crisp (26 Eng. Law & Eq. Rep. 532), referring to these observations of Justice Maulé, remarks : “ This duty arises out of the possession and control of the vessel being in him, and it is clearly, also, laid down in the same judgment, that this liability may be transferred with the transfer of the possession and control, to another person; and further, that on the abandonment of such possession, control and management, the liability also ceases.” He further says: “ If we apply these principles to this declaration, we find a distinct averment, that up to and at the time of the injury to the Plaintiff’s vessel, the Defendants, to whom the sunken ship had been transferred, exercised the possession, control, management and direction thereof. Now, we understand by this that the Defendants had it in their power, by due care and exertion, to have altogether removed this vessel, or to have shifted, at least, its position, and so might- reasonably have been able to have prevented the injury. * * * It is clear that either the original owner or the transferee of the wreck may abandon it, and so put an end to his liability.”

The head-notes to this case state accurately the principle decided : The owner of a vessel which has been sunk in a navigable river is bound to use proper care to prevent accidents to other vessels, so long as he has the possession, control, and management of the vessel — that is, so long as by due care and exertion he can either remove the vessel, or so far shift its position as to prevent such injury. This duty attaches to the ownership for the time being, and will be transferred to a purchaser of the sunken vessel; and it makes no difference that the vessel lies in a part of the channel not ordinarily used for navigation, but the duty ceases on the abandonment of the possession of the vessel.”

If these views are sound, and it is believed that they are eminently so, it is not perceived that in any aspect in which the facts developed on this trial are regarded, can these Defendants be held to any liability to these Plaintiffs, in respect to any of the matters set forth in the complaint in this action.

The judgment of the Superior Court of New York was correct, and should be affirmed, with costs.

All concur.

Affirmed.

JOEL TIFFANY, State Reporter.  