Taylor v. Atlantic Mutual Insurance

Davies, C. J. (after stating the case.)—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 he was 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 at the bulkhead or wharf forming the extremity or water side of South street, between piers Nos. 28 and 29, on the East river; and were also entitled to the wharfage of the westerly half of pier No. 29. Such rights could only have been acquired by leases or grants made by the mayor, aider-men and commonalty of the city of New York, and such a lease had been so granted to the 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 river, 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 streets through the same, and requiring the persons taking out said grants to *fill in the intermediate spaces between said streets, and to construct and maintain the same. By § 220 of chap. 86, of the Revised — 320 — Laws of 1813, it was enacted, that it should bo lawful for the said mayor, aldermen and commonalty to lay out, according to the plan agreed upon for that purpose, regular streets and wharves, of the width of seventy feet in front of those parts of the said city which adjoin to the East river or Sound, and to the North or Hudson river, and to such an 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: § 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 lands 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 leveling 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 his own expense, and to receive to its own use wharf-age for all vessels that might at any time tie or be fastened to said piers or bridges, which they might — 321 — 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 § 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, that, by these provisions of the statute, the wharves on that side are exterior streets of the city fronting and adjoining the East or North river; 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. The § 212 of this act fixes the rate 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 § 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 then loaded, unloaded or careened. And § 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 t-> pay the wharfage due for such ship or vessel; provided, however, 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 his usual place of abode, and the money there — 322 — demanded, before the departure of such ship or vessel from the port. ^s> therefore, very clear, from these pro^ visions 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 made fast to any other ship or vessel which shall itself be fastened to any wharf or pier. The statutes do not require 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 (Laws of 1860, ch. 254), the 1st section of which act declares that ft shall be lawful to charge and receive wharfage or dockage at the following rates: “ For 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 day’s use of the same, viz., from every vessel of 200 tons burden or under, one cent per ton, and for every vessel over 200 tons one cent per ton, for each of the first 200 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 whithin any slip or basin, one-half of the above rates.” The Joseph Walker, after the 27th December 1854, 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 — 323 — sinking in thirty feet of water, on the night of 26th December 1854. 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 right ’ "’y 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 uakon to the refusal of the judges 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 questions he desired to he submitted to the jury. 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 the1 and made their requests accordingly, and, if refused, taken an exception.1 There is certainly.no ground of liability on the part of the defendants to compensate the plaintiffs for the use of the 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 — 324 — 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, any wharfage whatever for the use of the waters of such slip or basin, and then only half the usual wharfage. The plaintiff can claim nothing by virtue of this act, as it was not in force, until years after the removal of the wreck of this vessel. Equally untenable is the claim, that the plaintiffs are entitled to compensation from the defendants, for the use by their agents and servants in passing and repassover *wharf and pier of the plaintiffs, in going to and coming from the wreck of said ship, and the vessels employed in raising her. These wharves and piers are streets of the city of New York, for the free passage of all citizens, and are so declared by statute. The only revenues authorized to be derived therefrom, are.the wharfage, already referred to, and the charge authorized to be made by the 3d 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 plaintiff, is, that they so negligently, carelessly and unskilfully managed the raising — 325 — 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 the sea, and embraced a portion of the navigable waters of the state. It may 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 creáted, and 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 Brown v. Mallett (5 M., Gr. &. Scott 613), Maulé, J., in his elaborate opinion, says, that “ it is the duty of a person using a navigable river with a vessel, of which he is possessed and has the control and management, to use unreasonable skill and care to prevent mischief to others.” And he adds, “ his 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 (10 Exch. 312), 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 — 326 — clearly also laid down in the same judgment, that this liability may be enforced with the transfer of the possession and control to another person; and further, on the abandonment of such possession, control and management, the liability 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 plaintiffs’ vessel, the defendants, to whom the sunken ship had been transferred, exercised the possession, control, management and direction thereof. How, 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, r i so might reasonably have been able to have prevented the injury. It is clear, that either the original owner or transferee of the wreck may abandon it, a*...' so put an end to his liability.”The head-note to this case states 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 the 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.2 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 — 327 — 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. Judgment affirmed. Footnotes [1] But see Bank of Springfield v. Dana, 79 N. Y. 108. [2] And see Winpenny v. City of Philadelphia, 65 Penn. St. 135; Livezy v. City of Philadelphia, 64 Ibid. 106.