
    Taylor and others, Plaintiffs and Appellants, v. The Atlantic Mut. Ins. Co., impleaded, etc., Respondents.
    When a vessel, along-side of a public pier in the city of New York, is, accidentally and without fault of her owner, burned, and sinks to the bottom, near the mouth of the slip or basin, thereby so obstructing the slip and bulkhead as to prevent other vessels celling in; those entitled to the slippage, or wharfage, cannot recover for the loss thereof, caused by such obstruction, from the owner of such vessel, without showing that such owner, 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 that he is in default for not having done so. Held, that the allegations of the complaint in this action did not show any such ability, on the part of the owner, or any such default.
    
      Held, also, that an insurance company, which had insured an undivided interest in such vessel, and had accepted an abandonment, made by such insured owner, after the vessel was so burned and sunk, was not liable for loss of slippage, or wharfage, caused by such obstruction, it not being alleged that, by due care and attention, it could be removed.
    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 such a use, when it neither incumbers the bulkhead or pier, so as to incommode the loading or unloading of vessels, or the passing or repassing of carts, nor in any way injures the structure itself, gives no right of action to the party entitled to slippage and wharfage.
    Hence, a use of the slip in attempting to raise the vessel and recover the property-in it—especially as such attempt was made at the request of the plaintiffs—was held to create no liability to make compensation for such use, as no facts were stated showing such use to be wrongful, or an invasion of the plaintiffs’ rights, or a violation of any duty which the defendants owed to them.
    (Before Duer, Ch. J, and Bosworth, and Woodruff, J. J.)
    Heard, October 24th;
    decided, November 14th, 1857.
    This action comes before the Court at General Term, on an appeal by the plaintiffs, from an order made by Mr. Justice Hoffman, on the 8th of January, 1857, sustaining a demurrer interposed by the Atlantic Mutual Insurance Company, to their complaint, and directing judgment to be entered in favor of the defendants so demurring, with liberty to the plaintiffs to amend their complaint, within twenty days after notice of such order. Moses Taylor and others are plaintiffs, and The Atlantic Mutual Insurance Company, and six other insurance companies, which are named in the body of the complaint, and Loftis Wood, Richard Eccles and William H. Webb are the defendants. The complaint and demurrer, exclusive of the title of the action, are as follows:—
    “ The complaint of the above-named plaintiffs states, that the pier, No. 29 East River, in the City of New York, was, on the 26th of December, 1853, and still is, owned, one undivided half part thereof by the plaintiffs, and the other undivided half thereof by the Corporation of the City of New York. That the plaintiffs are the owners of the bulkhead or wharf, and water-right, on the west side of said pier No. 29. That, by an agreement between the plaintiffs and said Corporation, prior to the date last mentioned, the plaintiffs above named were, thereafter, and still are, entitled to receive all the wharfage, slippage, advantages, or revenues derivable from the west side and half of said pier, and from said bulkhead, and the said Corporation, of the east side and half of said pier. That, on the west side of said pier, is a slip or basin extending out from said bulkhead about 470 feet, of which the plaintiffs have been, and still are entitled to the free and unobstructed use, where vessels of all sizes have been accustomed to enter and remain along the west side of said pier, and along said bulkhead, and receive and discharge cargoes, being liable to pay* wharfage to the plaintiffs, and. the plaintiffs being authorized to charge and collect wharfage at fixed rates, according to the tonnage of the vessel. That the ship Joseph Walker, in the usual course of business, for several days prior to the date aforesaid, had been made fast along the west side of said pier, and had been receiving on board a cargo, composed mostly of cotton, resin and grain, being liable to pay to the plaintiffs a per diem wharfage. That, on the night of the said 26th day of December, 1853,.the said Joseph Walker was, in a few hours, accidentally burnt to the water’s edge, and sunk, in her position along the west side of said pier, near the mouth of the slip or basin, in about thirty feet of water, at medium tide, carrying down with her a large part of her cargo, spars, etc., and so obstructing the slip and bulkhead as to prevent other vessels from coming in. That several of the owners of the Joseph Walker, and who, in the aggregate owned f-§ parts thereof, had insurance on their interests in said ship, as follows:—in the Atlantic Mutual Insurance Company, $ on ■If parts of the ship; in the New York Mutual Insurance Company, $ on -Jfe parts; in the Eeliance Mutual Marine Insurance Company, $ on parts; in the Astor Mutual Marine Insurance Company, $ on part; in the Bun Mutual Insurance Company, $ on part; in the Union Mutual Insurance. Company, $> on -fo parts; in the Mercantile Mutual Insurance Company, $ on A parts; and that the remainder of said Joseph Walker was not insured, and was owned as follows:— Loftis Wood, Eichard Eccles and William H. Webb, each owned ■gs parts thereof. That, immediately upon ■ the sinking of the Joseph Walker, the owners who were insured as aforesaid abandoned the wreck, so far as they were concerned, to the above-mentioned underwriters, who thereupon accepted of the abandonment in due form, so as to vest the ownership of the property so insured in said underwriters. That, after several weeks of unnecessary and unreasonable delay, and while said wreck was so sunken, as aforesaid, the defendents agreed, with one Captain Bell, to raise and recover the said wreck and property so sunk, or such part thereof as he could, for the benefit of the defendants, and to remove the same; and that he should have from them, as compensation therefor, 75 per cent, of what the property recovered might bring at auction sale, the defendants to have the balance. During the spring, summer and autumn of 1854, various efforts were made by him in pursuance of the agreement, and others who who acted under said agreement, and at the instance of the defendants, to raise and secure the said wreck and property of the defendants; that, as a means for so doing, they brought into the said slip, and kept there, for several months, three or four other • vessels, or hulks, and various machinery and fixtures, so as almost wholly to close up the slip and bulkhead, and encumber said pier, and render said slip, and pier, and bulkhead nearly valueless to the plaintiffs, during the time, for the usual purpose of wharfage or revenue, or for other purposes, some of which other hulks, machinery and fixtures have also been sunk in said slip, when so employed, where they yet remain in the way also of vessels; that the wreck of the Joseph Walker, and said other obstructions still remain sunken on the bottom, in said slip, near said west side of said pier, and to the great injury of the plaintiffs ; that the defendants have not attempted to remove the said wreck, as they were in duty bound to do, and as the plaintiffs have often requested them to do, from the said slip, but have wrongfully, and in violation of the plaintiffs’ rights, made use of the said slip, and pier, and bulkhead as a working place, when they could raise, the said wreck so as to enable them to secure and remove the spars, rigging, iron, timbers and other such property connected with said wreck; that the defendants, as the legal, owners of the said wreck, have been guilty of great and unreasonable negligence and delay in the removal of the said wreck and obstructions, whereby the plaintiffs’ accustomed revenue derivable from the said pier and dock, or basin, has been greatly interfered with and injured, and has been greatly lessened from the fair and usual amount thereof, and the plaintiffs have suffered great and lasting injury and damages, to the amount' of ten thousand dollars. The plaintiffs, therefore, demand judgment against the defendants, in the sum of ten thousand dollars, besides interest and costs of action.”
    
      Demurrer.
    “ The defendants, The Atlantic Mutual Insurance Company, demur to the complaint, and specify the grounds of objection to the complaint—1. That there is a defect of parties. 2. That the Mayor, Aldermen and Commonalty of the City of Hew York are necessary to be made parties to the action as defendants. 3. That the complaint does not state facts sufficient to constitute a cause of action. 4. That the complaint does not show any obligation, or duty, in these defendants, for the non-performance of which these defendants are liable. 5. That the complaint does not show any fault of these defendants, in the sinking of the ship Joseph Walker and cargo where she was sunk, or in preventing the plaintiffs from removing the same, if they desired. 6. That the complaint does not show that these defendants were in the possession, or control, of the ship Joseph Walker, or could have removed the same. 7. That, from the complaint, it appears that the duty of removing the obstruction to the wharf and slip, by the sinking of the Joseph Walker, in law, rests on the plaintiffs or on the Mayor, Aldermen and Commonalty of the City of Hew York, and not on the owners of the said ship Joseph Walker, or on these defendants, in whole or in part. On all which grounds of demurrer these defendants insist that the complaint should be dismissed, with costs and a proper allowance to these defendants.”
    
      M. Merrill, for plaintiffs and appellants.
    ,, Daniel Lord, for defendants and respondents.
   By the Court. Bosworth, J.—The

complaint does not allege that the wreck of the sunken vessel can be removed. It states, that various efforts have been made to raise it, and that some of the hulks, machinery and fixtures, employed in the efforts made to raise it, have also been sunk, in the slip, while so employed. It is not alleged that the hulks, machinery and fixtures were sunk by reason of any negligence or want of skill, in the persons employed, nor that they were not appropriate instrumentalities for the removal of the wreck.

In White v. Crisp, (26 Eng. Law & Eq. R. 532,) the Court con- " strued the allegations of the complaint to mean, that, up to and at the time of the injury complained of, “ the defendants, to whom the sunken ship had been transferred, exercised the possession, control, and management, and direction thereof.”

Of that construction, the Court remarked: “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. If these words do not mean, this, we think there was no liability on the part of the defendants.” We consider this a correct statement of the rule of liability, in a case like the present, and that none of the cases cited conflict with it.

There are no words, in the complaint in this action, which can be deemed to import, that the defendants could have raised or removed the wreck of the Joseph Walker, unless the averments, that, “ during the spring, summer and autumn of 1854, various efforts were made by him,” (Captain Bell,) “and others who acted under said agreement, at the instance of the defendants, to raise and secure the said wreck,” imports it. But the complaint, while it does not allege that these efforts were not as well devised and efficient as any that could, reasonably, be made, also states, that this vessel sunk in about thirty feet of water, at medium tide, and still remains sunken on the bottom, with the hulks, machinery and fixtures, which were also sunk, in the efforts made to raise her. These statements do not favor an inference that the wreck could be removed.

The complaint further states, that “the defendants have not attempted to remove the said wreck, as they were in duty bound to do, and as the plaintiffs have often requested them to do, from the said slip.” But no facts are stated, as creating a duty to remove the wreck, except that the vessel was burned, by accident, and sunk to the bottom, and that various unsuccessful efforts had been made to raise it. The allegation, that it was their duty to remove the wreck, is of no importance, in the absence of averments, that it could be removed by the defendants, and that they retained the control and management of it.

There is no allegation, in the present complaint, in those terms, or of that import. The plaintiffs’ request, that the defendants should remove the wreck, would not, of itself, create a duty or liability.

We think the complaint does not state facts enough to show' that the vessel could be removed, and, consequently, not enough to make it the duty of the defendants to remove it.

For these reasons, the further allegations, “that the defendants, as the legal owners of the said wreck, have been guilty of great and unreasonable negligence, and delay, in the removal of the said wreck and obstructions, whereby,” etc., neither of themselves, nor in connection with the preceding averments relating to the same point, constitute a cause of action. Negligence in not removing, or delay in removing that which it is not shown can be removed, cannot be imputed to the defendants.

It being affirmed that the vessel was burned by accident, and sunk to the- bottom, the defendants, to whom she was subsequently abandoned by her insured owners, are not liable to the plaintiffs for any loss of wharfage which they have consequently suffered, until the defendants are shown to be under an obligation to remove the vessel, and to be in default for .not having done so. There are no facts, stated in the complaint, sufficient to support either of those conclusions. Hancock v. The York and C. Railway, (10 Com. Bench Rep. 349.)

No fault can be imputed to either of the insurance companies, arising from, or which caused, the sinking of the vessel. They had no agency in producing that result, and were not interested in the vessel, as part owners, until after she had been abandoned to them by the owners of parts 26/32 thereof, and subsequently to her being sunk.

The only other allegations, which it can be pretended constitute a cause of action, are to the effect that the defendants “ have wrongfully made use of said slip, and pier, and bulkhead, as a working-place when,” (or whence,) “they could raise the said wreck, so as to enable them to secure and remove the spars, rigging, iron, timbers, and other such property connected with said wreck.”

It will be observed, that this clause of the complaint characterizes the use made of the slip as being as truly wrongful as that made of the pier and bulkhead. The wreck could not be removed or raised without using the slip. Whether it could be done, if at all, without using the pier and bulkhead, the Court cannot so clearly see. It is not affirmed that proper efforts could be made as efficiently, without using the pier and bulkhead as with using them, nor that effectual efforts could be made without using both. The complaint states, that the plaintiffs have often requested the defendants to remove the wreck from the slip, and that, during the spring, summer and autumn of 1854, Capt. Bell, and others, acting under the agreement made between him and the defendants, and at the instance of the latter, made various efforts to raise the wreck.

Such a request gave the defendants the right to employ all means to raise the wreck which they, in the honest exercise of their discretion, deemed best adapted to ensure success, and to make any use of the slip, pier and bulkhead which they deemed necessary, and to which means and use the plaintiffs tacitly assented, by not objecting to it.

The piers and bulkheads are open to the common use of the public, for any purposes connected with the loading and unloading of vessels, the repairing of vessels, and the unloading and securing of their cargoes, whether they be in vessels afloat or sunk, not prohibited by statute, or the lawful ordinances of the Common Council, in relation to the manner of using them. Even if it cannot be, justly, said that the rights of the owners of wharves and piers are created by statute, it may be said that they are dependant upon statutory law, which defines and regulates these ^rights with great minuteness and detail.

The owners of piers and bulkheads have the right to demand wharfage, slippage and cranage from vessels having the use, which, by statute, makes them liable to pay. (Davies’ Laws, p. 551, §§ 212, 213, 215, 218, 224, 228, 230 and 231.)

For discharging “any ballast, consisting of earth, gravel or stones into a dock, or on a wharf, without the consent of the owner thereof, a penalty is given by statute, and when it has been so discharged, without consent, if it is not removed, after the receipt of a written notice to remove it, the owner of the vessel from which it was discharged is liable to pay the same wharfage, daily, as such vessel would be liable to pay.” (Davies’ Laws, p. 558, § 233.)

If any wharf shall be encumbered with lumber or other prop-erty, so as to incommode the loading or unloading, of vessels, or the passing or repassing of carts, the owner is required to give written notice, to the owner of the lumber or other property, to remove it in a reasonable time; and if they be not removed, the owner of the wharf may remove them, and keep them in his custody until the charges of removal and storage be paid. (Id., §^235, and see § 234.) All the statutes, in relation to wharfs and piers, import a right to the public to use their top surface, without charge, for any purpose necessarily or properly connected with the loading, unloading or repairing of vessels, without being liable for such use, when it is a use not prohibited by statute or the ordinances of the Common Council.

It is the right of the owners of the sunken wreck to recover and remove so much of their property as they may be able. The fact, that the slip, pier and bulkhead are used for that purpose, is not, of itself, wrongful, nor does it, as a matter of course, entitle the owners of the wharf and pier to be paid for such use.

In order to understand what wreck the defendants have attempted to raise, and in which attempt it is alleged they have wrongfully made use of the slip, pier and bulkhead, and in what manner it is charged that said use has violated the plaintiffs’ rights, we must look at the other parts of the complaint.

In looking at the other parts of the complaint, with this view, we find it stated, that this wreck was sunk, by accident, in water thirty feet deep at medium tide, and remains on the bottom; that it is sunk near the mouth of the slip or basin, and so obstructs the slip or bulkhead as to prevent other vessels from coming in, and, of course, rendering it impossible for the plaintiffs, while that obstruction continues, to entitle themselves to wharfage from other vessels; that the defendants were often requested to remove the wreck from the slip, and that various and unsuccessful efforts to raise it were made during the spring, summer and autumn of 1854.

The use alleged to be wrongful, and in violation of the plaintiffs’ rights, is a use of the slip, pier and bulkhead as a working place, so as, and with intent, to secure and recover the property. It is not charged, that this use incumbers the bulkhead or pier, so as to incommode the loading or unloading of vessels, or the passing or repassing of carts; nor that any notice to desist from such use, or to remove from the bulkhead and pier the property or articles pilaced on them, in connection with using them as a working place, if any have been so placed, has been given.

The complaint, in its specification of the consequences of all that the defendants have done or omitted to do, concludes by charging, that “ the defendants, as the legal owners of the said wreck, have been guilty of great and unreasonable negligence, and delay, in the removal of the said wreck and obstructions, whereby the plaintiffs’ accustomed revenue, derivable from the said pier and dock, or basin, has been greatly interfered with and injured, and has been greatly lessened, from the fair and usual amount thereof, and the plaintiffs have suffered great and lasting injury and damage, to the amount of $10,000.”

On the whole complaint, it must be deemed to be true, that the use of the pier and bulkhead as a working place, to raise the wreck and recover the sunken property, has neither prevented the plaintiffs from earning wharfage, nor diminished their revenues from that source. This must be deemed to be true, because the complaint states, that the sunken wreck so obstructs the pier and bulkhead “ as to prevent vesselsefrom coming in.”

It is not alleged that the use of the bulkhead and pier, as a working place, incommodes the passing or repassing of carts, or the loading or unloading of any vessel that may have been fastened to the end of the pier, or to any part of the bulkhead or pier which may be accessible to any vessel liable to pay wharfage.

We are of the opinion that the defendants have a right to use the pier and bulkhead to recover their sunken property from the slip. That the mere fact of using them, irrespective of the character and extent of the use, is not wrongful, nor a violation of the plaintiffs’ rights. And that unless it be made to appear that the use made of them incommodes the loading or unloading of vessels, or the passing or repassing of carts, or injures the pier or bulkhead itself, no right of action can be based on such use. And inasmuch as the complaint shows that there is an obstruction in the slip, for the existence of which the defendants are not responsible, and which prevents vessels from entering the slip, and thus establishes that it is impossible for either the pier or bulkhead to earn wharfage, it fails to establish, by means of the allegations now under consideration, a cause of action.

A use of the slip under such circumstances, and for the purpose ' for which the complaint states it was used, being lawful, something more is essential, to a good complaint, than an averment that it was used wrongfully, and in violation of the plaintiffs’ rights.

The idea of the pleader seems to have been, that the use itself was wrongful, and in violation of the plaintiffs’ rights, merely because it was used as a working place, for the purpose of recovering the property, and not of removing the wreck.

But a use in that way, for such a purpose, violates no right of the plaintiffs, and the allegation that it was wrongful, and in violation of the plaintiffs’ rights, is not an allegation of a fact, but is the pleader’s view of the nature of the acts which he describes.

We think the order appealed from should be affirmed, with costs.  