McCaulley v. City of Philadelphia

• Decision Date: 07 January 1903
• Docket Number: 21.
• Citation: 119 F. 580
• Parties: McCAULLEY v. CITY OF PHILADELPHIA.
• Court: U.S. Court of Appeals — Third Circuit

119 F. 580

McCAULLEY v. CITY OF PHILADELPHIA.

No. 21.

United States Court of Appeals, Third Circuit.

January 7, 1903

Horace L. Cheyney, for appellant.

Chester N. Farr, Jr., for appellee.

For former opinions, see 103 F. 661, and 116 F. 438.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

ACHESON Circuit Judge.

In this suit the libelant (here the appellant) sought to recover from the city of Philadelphia damages which the ship Windsor Park sustained on December 29, 1893, while being towed up the Schuylkill river, by reason of the collision of the ship with the wreck of the steamer Maryland, which was lying in the river a short distance below Point Breeze, within the city. The action was based and pressed upon the provisions of section 28 of the act of assembly of February 2, 1854 (P.L 37), commonly called the 'Consolidation Act,' which provides in part as follows:

'It shall be the duty of the said councils, after the requisite surveys and soundings shall have been made, to fix the lines beyond which no wharf or pier shall be constructed and to keep the navigable waters within said city forever open and free from obstructions.'

The libel set forth that the wreck of the Maryland had been lying in the river since November, 1892, and charged that the city of Philadelphia was negligent in not having removed the wreck from the river before the happening of the collision. The learned district judge, while assuming that section 28 of the consolidation act was applicable to this case (103 F. 661; 116 F. 438), yet upon the facts shown by the proofs found that the charge of negligence contained in the libel against the city was not made out, and hence dismissed the libel.

It appears that in November, 1892, in a destructive fire which occurred at Point Breeze, the steamer Maryland took fire, and that she was towed down stream a short distance, and run ashore upon the east bank of the Schuylkill river, where she sank in such a position that 50 or 60 feet of her length projected into the channel of the river. Very soon thereafter the wreck was sold to a responsible purchaser, who immediately contracted with a competent and experienced contractor-- the Mason Company-- to raise and remove the wreck. The wrecking company began work early in March, 1893, which the evidence satisfactorily shows was as soon as weather conditions permitted. The work seems to have been prosecuted very diligently and with reasonably proper machinery and appliances. At first considerable progress was made toward removing the obstruction, and success seemed to be assured. In his letter (in evidence) dated May 11, 1893, to the Atlantic Refining Company, in reply to its complaint that the wreck 'has shifted,' etc., Maj. C. W. Raymond, the head of the corps of United States engineers stationed at Philadelphia, wrote:

'I have had an investigation made of the wreck and its locality, and it appears that the owner of the wreck, Mr. Fred. Creamer, of Camden, N.J., has been at work for some time making efforts to raise it with pontoons, and had practically succeeded in beaching it, when the extra strain caused by the freshet of last week parted his hawsers and sling chains, which permitted the vessel to be carried a short distance toward the channel. I understand that Mr. Creamer is again at work readjusting his chains and preparing to raise and beach the vessel. If the obstruction is not out of the way within a reasonable time, authority will be requested to remove it under the provisions of the act of congress approved June 14, 1880.'

The Mason Wrecking Company renewed and continued its efforts to remove and beach the wreck with at least some show of success, but about the last day of August the wreck again slid down into the channel. On September 13, 1893, Major Raymond, in a written report to the war department, recommended the removal of the wreck by the general government, pursuant to the act of congress of June 14, 1880. Accordingly, on September 18th he advertised for proposals, and on September 28, 1893, the notice required by the act of congress of the purpose of the secretary of war to remove the wreck was given. On October 30, 1893, the Mason Wrecking Company applied to Maj. Raymond for an allowance of 30 days' more time for the removal of the wreck by that company, and this extension of time was granted by the war department upon the recommendation of Maj. Raymond, who, in his letter to the department of October 30, 1893, stated: 'A recent examination shows that the wreck is not now in the way of passing vessels. ' The wrecking company, however, failed to remove the wreck within the extended time, and on December 19, 1893, the United States government entered into a contract with other wreckers for its removal, work to commence on December 31, 1893, and to be finished on January 31, 1894.

We do not see that the learned district judge erred in his findings of fact, and, even upon the assumption that section 28 of the consolidation...