Winpenny v. Philadelphia

• Decision Date: 05 May 1871
• Citation: 65 Pa. 135
• Parties: Winpenny and Chedester <I>versus</I> Philadelphia.
• Court: Pennsylvania Supreme Court

65 Pa. 135

Winpenny and Chedester versus Philadelphia.

Supreme Court of Pennsylvania.

March 24, 1870.

May 5, 1871.

March 24th 1870.

Before THOMPSON, C. J., AGNEW, SHARSWOOD and WILLIAMS, JJ. READ, J., at Nisi Prius

Error to the District Court of Philadelphia: No. 199, to July Term 1869 R. P. White and G. H. Earle, for plaintiffs in error.—They referred to the foregoing Acts of Assembly. The above provision of the Consolidation Act is not repealed, for the section of the Act of 1859 is not inconsistent. The city was bound to keep the navigation clear: Pittsburg v. Grier, 10 Harris 54.

C. H. Gross and T. J. Barger, for defendant in error.—The acts referred to do not impose on the city the duty of keeping the navigation clear, that belongs to the United States: Gibbons v. Ogden, 9 Wheat. 1; Smith v. Turner, 7 How. 283; Corfield v. Coryell, 4 W. C. C. R. 371; The Barque Chusan, 2 Story 455; Hammett v. Philadelphia, postea 146.

The preamble is not part of a statute; Dwarris on Statutes 655.

The opinion of the court was delivered May 5th 1871, by AGNEW, J.

The true question in this case seems not to have been brought to the attention of the learned court below, whose decision appears to have been rested on the effect of the Act of 14th April 1859, Pamph. L. 643. But the case does not fall within the scope of that act. The evidence shows that the obstruction which caused the injury to the plaintiffs' vessel was an abandoned canal coal-barge, which had been wrecked somewhere in the upper waters of the Schuylkill, was brought down by a freshet and lodged within the port limits of the city of Philadelphia opposite South street wharf. It was also testified that the wreck was of no value, not even fit for firewood, and was claimed by nobody. The persons said to have been the owners were not within reach, and had gone to New York.

The preamble of the Act of 1859 recites "that frequent obstructions to the safe navigation of the Delaware and Schuylkill, within the tide-waters, do frequently occur by the sinking of canal boats, barges and other vessels trading on the said rivers, and there being no adequate remedy to compel the owner, master or other agents having charge thereof, to raise and remove the same;" the act then enacts that it shall be the duty of the master warden of the port of Philadelphia, immediately on the information of the sinking of any canal-boat, barge, or other vessel in the channel-way of the tide-waters of the rivers within the limits of the port of Philadelphia, to give notice to the owner, &c., having charge thereof, to raise and remove such obstruction within ten days, under a penalty, &c. In case of the refusal or neglect of the parties interested, he is then to raise and remove the boat or vessel at the expense of the owner, master, &c., and the boat and cargo are made subject to a lien for the expense. The master warden is also authorized to sell all such property at public sale for cash, to pay the expenses, returning the surplus to the owner.

It is very clear these provisions do not apply to the sunken hulk described in the testimony. It was not a trading vessel, or a boat, or barge, capable of use, but an old and worthless wreck, which had drifted off and lodged and became embedded in the mud. It did not sink, within the letter or the spirit of the act, in the tide-water of the Schuylkill and the limits of the port of Philadelphia, but was brought down the river by a freshet. It had no owner, master, or agent having charge of it, but had been abandoned in the upper waters of the river. There were no parties interested; it was not the subject of a lien, and could not be sold at any price, for it was utterly worthless — not fit even for firewood. Those who have noticed the rusty and mud-and-water-soaked timbers and planks of such a sunken hulk, can readily understand how worthless they become. The evident intention of the Act of 1859 was to provide for the raising and removing of trading vessels, that is, those in use — vessels having some value, and having owners or other parties interested in them, who are liable to port regulations and can be reached. But a worthless wreck like this, abandoned by the owner and brought down by a flood, is not only valueless, and without a party interested in it, but the owner is absolutely not liable to raise or remove the hulk. The principle is stated in the 3d vol. Whart. Cr. Law, sec. 2406 (6th edition), where it is said: "But if a ship or other vessel sink by accident in a river, although it obstruct the navigation, yet the owner is not indictable as for a nuisance for not removing it." For this he cites the leading cases of Rex v. Watts, 2 Espinasse Rep. 675; and also R. v. Russell, 9 D. & R. 561; S. C. 6 B. & C. 566; R. v. Ward, 4 Ad. & El. 384; R. v. Tindall, 6 Ad. & El. 143, and R. v. Morris, 1 B. & Ad. 441. In the very recent work of Shearman & Redfield on the Law of Negligence, sec. 583, it is said: "It is well settled that the owner of a vessel which has been sunk in navigable waters, and abandoned by him, is under no obligation to remove the vessel, and is not liable for the injuries it may cause other navigators." "If, however, instead of abandoning the wreck he retains such possession and control of it, as it is susceptible of, he is bound to exercise an ordinary and reasonable degree of diligence and despatch in removing it, or preventing its doing injury to others." And when he attempts to remove the wreck and fails, the inadequacy of the means will not be proof of negligence. Ibid., and see authorities there cited. And see, also, Angell on Water-courses, 3d ed., p. 211.

There seem to be good reasons for this rule. When a vessel is lost by the act of God, or by accident, the owner suffers oftentimes great damage, and when she becomes a total loss, it seems to be a great hardship to add to his misfortune the duty of removing the wreck. It would discourage...