The Major Reybold
| Decision Date | 25 October 1901 |
| Docket Number | 34. |
| Parties | THE MAJOR REYBOLD. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Francis S. Laws and John F. Lewis, for libelant.
John L Kinsey, Leonard Finletter, and Chester N. Farr, for respondent.
This suit was begun by a libel in personam, wherein damages for a collision are sought to be recovered against a municipal corporation.
The Major Reybold is a steamship plying upon the Delaware river between the city of Philadelphia and the town of Salem. Between 4 and 5 o'clock on the afternoon of September 8 1899, she backed out into the stream towards the east shore from the north side of Arch street wharf, where she had been lying, intending to turn towards the south, and proceed upon a voyage to Salem. The battleship Indiana was anchored nearly opposite the wharf, and the Reybold backed as near to this vessel as it was prudent to go, and then reversed her engines for the purpose of stopping her way before turning down stream. She might, perhaps, have gone somewhat nearer the Indiana, if it had not been for the approach of a revenue cutter that was coming down the river, and evidently intended to pass between the battleship and the Reybold. At, or shortly before, the stopping of the Reybold, Ice Boat No. 3 belonging to the city of Philadelphia, which was coming up the river not far below, in charge of employes of the city, blew two blasts of her whistle, signifying that she would pass between the bow of the Reybold and Arch street wharf. To this signal the Reybold answered with two blasts, thus giving assent to the ice boat's course, and thereupon remained at rest upon the water, save as the ebb tide may have moved her slightly. The ice boat had ample room to pass in safety, but apparently miscalculated the distance between the Reybold and herself, for the starboard guard of the ice boat struck the stem of the Reybold upon the port side, and thus inflicted the injury complained of. The day was clear, and there was no obstruction to the view from either vessel.
These being the facts, the Reybold was not to blame, and the fault of the ice boat is clear; the remaining question being whether the city is liable for this negligence. The offending vessel was not being used as an ice boat at the time of the collision, and therefore no question arises concerning the city's liability for a collision that might be due to the fault of the boat while engaged in the duty of breaking ice in order to aid navigation. The principal defense is that the boat was being used by the city's permission for purposes that were not municipal, and that such permission, was, therefore, an ultra vires act that can furnish no ground for recovery. It appeared from the evidence that a meeting of the Grand Army of the Republic was being held in the city at this time, and that upon the day in question a naval parade took place upon the Delaware river. In the preceding June the councils of the city passed the following resolution:
'Resolved, * * * that * * * authority is hereby granted for the use of the city ice-boats to participate in the celebration of Naval Day, Friday, September 6, 1899, during the thirty-third national encampment and reunion of the Grand Army of the Republic, to be held in this city commencing September 4, 1899, and that the department of public works be and is hereby authorized and instructed to do all that is necessary to carry this resolution into effect.'
In pursuance of this resolution, ice boat No. 3 took part in the naval parade, and, the parade being over, and her passengers having been put ashore, she was on her way elsewhere at the time the collision took place. These are the facts upon which the city relies to support the legal position above stated citing several decisions in the ...
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