Bagdad Land & Lumber Co. v. Louisville & Nashville Railroad , 127 Fla. 139 ( 1937 )

The right upheld by a majority of the Court in this case is the right to collect wharfage charges when no such service is rendered. The right to collect wharfage is a franchise existing as an incident to the ownership of land abutting upon navigable waters, as a riparian right. The right to collect wharfage is altogether dependent upon the furnishing of increased facilities for use in shipping. City of Shreveport v. Red River Coast Line, 37 La. Ann. 562, 55 Am. Rep. 504. It is a charge for the use of special shipping facilities actually provided and used by the shipper, and not a right to collect a tariff toll upon goods that might have been wharfed, but which were loaded on ship without the use of special facilities.

In order that a right to collect wharfage charges may exist absent a statute providing some other rule, there must be provided a berth for the vessel and a place of deposit for the vessel's cargo upon which the wharfage is demanded. The occupation by defendant's lighters and barges, by anchorage or otherwise, of that part of the navigable water alongside ship that was open to all, although in the vicinage of the vessel moored to the plaintiff's wharf, implies no contract or liability for wharfage where there is no use of the wharf itself by such lighters or barges, for the landing or for the reception of goods or passengers.

This case is controlled entirely by the Common Law. The English case of Stephen v. Costor, 3 Burrows Rep. 1409, established the common law rule to the effect that "duty of wharfage and cranage cannot be due where the party has not had the use of the wharf or the crane" and that "wharfage is duty for loading on a wharf," and does not (in the absence of a statute so enacting) entitle the wharfinger to collect wharfage on such part of the vessel's cargo put on board to or from lighters and loaded or carried away from the vessel without having been landed upon the wharf at all.

The American case of Robertson v. Wilder, 69 Ga. 340, text 343, follows the foregoing English Statement of the common law, and holds that the wharfinger cannot exact a "landing" or "shipping" traffic toll where goods are put on a vessel from barges or lighters not fastened to the wharf at all, and making no use of it as such. The mere fact that shippers load vessels in such manner as to avoid the necessity of using a wharf for the purpose no more entitles the wharfinger to collect for wharfage under the circumstances than Tallahassee taxi drivers are entitled to collect taxi fees from those who elect to walk to the railroad station in order to avoid the employment of a taxicab.

The lumber for which the wharfage was claimed in this case was not landed to or from the lighters or barges on any part of the plaintiff's wharf, but was loaded directly from a lighter or barge lying alongside ship on the navigable water side of the vessel moored to plaintiff's dock, for which mooring a separate charge was made and collected by plaintiff as dockage fee. To hold defendant liable for wharfage under such circumstances is to ignore the rationale of this Court's own decision in Frater v. Baylen Street Wharf Co., 57 Fla. 63, 49 Sou. Rep. 188, 131 Am. St. Rep. 1084. Therefore, I cannot concur in the majority opinion which converts the wharfage fee from a service charge to a toll and thereby runs counter to our own cited decision last mentioned.