McCaulley v. City of Philadelphia

• Decision Date: 20 August 1900
• Citation: 103 F. 661
• Parties: McCAULLEY v. CITY OF PHILADELPHIA.
• Court: U.S. District Court — Eastern District of Pennsylvania

103 F. 661

McCAULLEY v. CITY OF PHILADELPHIA.

United States District Court, E.D. Pennsylvania.

August 20, 1900

Horace L. Cheyney and John F. Lewis, for libelant.

John L Kinsey, City Sol., for respondent.

McPHERSON District Judge.

The libelant, who is the managing owner of the tugs Rescue and John C. Bradley, brings this action as bailee of the ship Windsor Park to recover damages for injury to the ship caused by collision with the sunken wreck of the steamer Maryland. The collision occurred in December, 1893, while the ship was being towed by the tugs up the channel of the Schuylkill river, within the municipal limits of the city fo Philadelphia, and the cause of action is alleged to be the negligence of the city in failing to remove the wreck, which had been obstructing the channel to some extent since November of the year preceding.

The duty of the city to keep the channel clear is said to rest upon section 28 of the consolidation act of 1854 (P. L. 37) 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 city councils shall authorize the construction of wharves upon a plan and scale to meet the demands of commerce, keep the same and the avenues leading thereto open and free from obstruction.'

The city denies its liability upon the following grounds:

(1) Because the act of 1859 (P. L. 643) has impliedly repealed section 28 of the act of 1854, by transferring the duty to remove obstructions from the channel of the river to the master warden, who is said to be an officer of the state, and not of the city. The act is as follows:

'That from and after the passage of this act, it shall be the duty of the master warden of the port of Philadelphia, immediately upon information of the sinking of any canal boat, barge, or other vessel in the channel way of the tide waters of the river Delaware or river Schuylkill, within the limits of the port of Philadelphia, to give notice to the owner, master or other agent having charge thereof, to raise and remove such obstruction within ten days after the date of said notice, under penalty of one hundred dollars, to be sued for and recovered before any alderman or justice of the peace within the limits aforesaid, as by law such sums are recoverable from the owner, master or other agent having control of the same, to and for the use of the board of wardens of the port of Philadelphia, subject, nevertheless, to an appeal to the court of common pleas of the proper city of county; which said sum or sums so recovered shall be appropriated towards the payment of salaries and contingent expenses of the warden's office; and in case of the refusal or neglect of the parties interested as aforesaid, to raise and remove any obstruction within the time specified in said notice, it shall be the further duty of said master warden to have raised and removed at the expense of the owner, master or patent; and the said canal boat, barge or other vessel, together with the cargo thereof, shall be subject to a lien in the hands of the said master warden until the expenses of

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