FEDEJtA..L REPORTER; \'01.
thecufuoenta. He wQs experienced seaman, but had no particuhirkiiowledge of .these waterlil. It does not appear that any use of the compass in connection with the lights was made until afterth'tf vessel struck bottom. No soundings were made. It is apparent to tIs,as it was,tQ the district judge, that there must have beeR some. mismanagement 'or want of adequate care and skill in the lJavigating of the tug. When the tug struck, the tow drifted on the:shoal, could· not .begot off, became a complete wreck, and a total loss to appellee. The'decree appealed from is affirmed
FIREMEN'S OIURITABLEl ASS'N v. ROSS et al. (Oircult Oourt of Appeals, Fifth Circuit. December 12, 1893.) No. 146.
BALV4GIll"'-CITY FIRlll DE:fAnTMENT.
. company which furnished the men and equipment that constitute the; ,:llte depal'tment of New Orleans is required by ordinance and by contract to take all proper measures to extinguish fires and to preserve order, while a further ordinance provides that "in no event shall the fire department be permitted to charge for services rendered in extinguishing . fires,. on shipboard" or to claim salvage." After a ship had loaded at ;New Orleans, and had begun her voyage to Em'ope, fire was discovered in her cargo, and she put back to the city, where, at the request of her agents; the fire' department, by the use of its engines, the fil'e, ,HeM" that the &re department couId make no claim for salvage.
,ApPEiitI from the District Court of the United States for the Eastern .District of LouisiaIia. . a libel by Firemen's Charitable Association against Wm. . steamship European, for salvage. The Ross 81; Co., owners of lower court dismissed the libel, and libelant appeals.
,I,,",. " , '" :
The. steamship Eurowan/having tllken on board a cargo of cotton and grainlltthe docks of New Orleans, left that city on the 27th of May, 1891, 'for'a voyage to ports: of Europe. Within a few hours after leaving the dock;' and when about 90 miles down the river, afire was discovered in the cottQD, between decks, upon the discovery of which the master turned his the river tOWllrds the city, and at the first opportunity sent a boat,ashore to the telegraph office .and notified his agent that the ship wasonfi:.-e, and. would re1'l1rn to the city, requesting him to make such arrangements as he considered necessary. In accordance with this request the agent'of the vessel saw a representative of the underwriters, and these twogentlerrten telephoned the chief of the fire department, and requested that he have one or two engines at the wharf when the ship should arrive, in order to render assistance if needed. The chief of the fire departnientreplled that he· would have them there promptly. The ship arrived at the wharf at about half past 3 o'clock a. m., where the chief of the fire department had in readiness two steam' fire engines, and the companies, ready to go to 'work. The m.aster of the vessel, hoping to be able to extinguish the fire by the use of his own steam, continued using that som.e six hours after the arrival of the vessel at. the wharf in endeavoring to subdue the fire, but finally, finding it impossible, and being .informed that, the fire i!epartment would make no charge for salvage for .eervices rendered the 'vessel in extingujshing the fire, permitted them 'to'''go to work. Two more steam engines were subsequently employed, 'o:nd'they worked alternately two at II time for about ;twenty!J.ours. when the
FIREM.EN'S CHARITABLE ASS'N
fire was fully extinguished. The agent of the ship offered the fire de· partment as a gratuity the amount of $200, which, being refused, was increased to $400. This they also refused, and brought their. suit by libel for salvage in the United' States district court. Upon the hearing the libel was dismissed at the cost of the libelant. From this decree an peal has been taken to this court.
W. S. Benedict, for appellant. J.McConnell, for appellees. Before PARDEE and McCORMICK, Circuit Judges, and LOCKE" District Judge. LOCKE, District Judge, (after stating the facts.) The question in this case is whether the service rendered by the Firemen's Asso· ciation exceeded the duty imposed upon it by ite employment in the public service. In determining this question it is necessary to examine the relation existing by contract and agreement between' it and the city, and ascertain what that duty was. The ordinances of the city of New Orleans in regard to the employment of a fire department consisted of a General Ordinance No. 7,346 of the Administration Series, enacted September 28, 1881, providing for the' obtaining of bids from different companies for providing the city with the apparatns and the service of employes for the protection of the city from fire. After enumerating the different officers and men for such employment, and the different engines, horses, hose, and other apparatus that shall be employed, it provides that they shall take all proper measures for the extinguishing of fires and preservation of order and laws according to ordinance regulation respecting fires. Subsequently, on the 10th of August, 1883, Ordi·' nance No. 7,346 was amended by Ordinance No. 396, which, among other things relating to the duty of the department in event of a fire on shipboard, provides that "in no event will the fire department be permitted to charge for services rendered in extinguishing fire on shipboard or claim salvage." On the 11th of August, 1886, there was enacted Ordinance No. 1,890, Council Series, re-enacting Ordinance 7,346 with some alterations and modifications, and authorizing the mayor to enter into notarial contract with the Firemen's Charitable Association in accordance with the provisions of Ordinance 7,346 as amended. Under these ordinances, on the 14th of September, 1886, the mayor of New Orleans entered into a formal contract with the Firemen's Charitable Association, appellant herein, that for the amount of $160,000 per annum said Firemen's Association would provide such equipment and apparatus, and in; sure a prompt and efficient service in the extinguishing of fires in the first, second, third, and fourth districts in accordance with the provisions of Ordinance 7,346 as then amended. We find nothing that would directly or by implication repeal Ordinance 396, and consider that it must be recognized as in force at the time of this contract, and that such contract was made in contemplation and in accordance with such amendment then existing. This amendatory ordinance shows plainly that fire on shipboard had been contemplated and provided for. In accordance with it, the Firemen's
prohibited from charging' or claiming salvage for suell ,This ,View of the case we consider is sufficient to deteft(tiriij'.the qU,estiO:tlf:!'at issue, and although unnecessary to review the. rights of firemen who claim salvage for the performance of such duty, or to compare and review the numerous cases cited, it may not be amiss to examine briefly the circumstances of some of those cases in which salvage has been awarded for. such services, and which have been relied upon in this case. 'ItHhe of The European, 44 Fed. 484, the fire was not within the city of Key West, nor did it expose any of the property or wharf of the city to danger until permitted to come to the dock upOn a,definite1and positive contract and the firemen should, be'employed to render services for a compensation. The vessel in that case hadintioway had any connection with: the city as one of its commercial agencies; It had had no business connection in anyway withitj nor was it, nor had it been, a source of profit or eIqolliment in anyway to the city, or any of the oitizens. ·In! that 'caSe the firemen received no compensation for their Services as suebfroin the ci1Jyor from any individual, and they were: under no contract, any, more than was implied by their organization, that they. would protect the property of the city and citizens from ftreiladar as they might be able. Without a contract for aid from.the'ftremen the steamship would not have been permitted to come to',the wharf. In that case it was not considered that it was the duty of the' firemen as such, any more than it was that of ,prn.'vate individuals, to render any service to the property. It was the. same in the case of The Huntsville (Dist. Ct. S. Cas. No. 6;916. In that case Judge Magrath says:
of the' :mayor, withGut thejJ.dditlon of other circumstance, the law in such. Cft$e8 created for the fire department a plain, positive duty, for the performance of wblch they were legally bound, and upon the performanceof which they became entitled to certain compensation from the city ot Oharleston; but she had been brought to the city upon the express condition that the fire department would take under charge the burning 'vessel, protect the 'adjacent property, and surrender all claim to compensation from the cit». for the service they might render."
dOcks Oti the city, if sheh8.d been brought to the city by the authority
"It thefl.rehad occurred .whlle the Huntsville was lying at one of the
In the case at bar the. steamer had taken in a cargo at the docks of New Orleans, had paid,: wharfage dues and large disbursements at the city, and was, for the time being, one of the commercial agencies of the country passing through that port by which the were being eXpOr:!ed. S4e had left the wharves a very few hours before, with probably the fire smoldering in her cargo. Had the steamship returned to the wharf without any notice being given tQ the fire department, .or understanding had of her coming, could have changed the legal duty of the firemen? We think not. It was the duty of thea,ssociation under its contract to do all within its power within mentioned to extinguish fires, and, had there been no pOsWJve enactment specifying its duty in regard to fires on board: safety of the property of the city and its citizens, as well as general pdnciple that for all police pur-
THE ALLEN GREEN.
THE ALLEN GREEN. LAINGv. THE ALLEN GREEN. (Circuit Court of -Appeals, /Second Circuit. February 27, 1894.)
CoLL18ION-STEAMER AND SAIL-BROKEN RUDDER CHAIN-LOOKOUT.
A steamer meeting a schooner put her wheel over to avoid her, when the rudder chain broke. It appeared that the broken llnk was reduced one-third by wear, and the chain was open to inspection. The steamer immediately sounded danger signals; but these, owing to the. absence of a lookout on the schooner, and a discussion going on between the master and crew, were not noticed by her In time to avoid collision, there was ample time to do so. 'Held, that both vessels were in fault. 53 Fed. 286, affirmed.
Appeal from the District Court of the United States for the Southern District of New York. These were cross libels filed by Arthur Laing and Arthur L. Nickerson, respectively, to recover damages for a collision between the steamer Riversdale and the schooner Allen Green. There was a decree below for divided damages (53 Fed. 286), and both parties appeal. Edward L. Owen, for appellant. Henry G. Ward, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. LACOMBE, Circuit Judge. On the afternoon of May 24; 1892, the steamship Riversdale, the property of libelant, was in collision with the schooner Allen Green a short distance below Liberty or Bedloe's Island, in the Bay of New York. For the damages resulting to the steamship, the district judge held both vessels in fault. 53 Fed. 286. The steamer sighted the schooner nearly ahead in ample time to avoid her, and the pilot gave the order to starboard. In the attempt to comply therewith, the rudder chain broke, and the steamer consequently lost the use of her helm. There is the usual conflict of testimony as to the velocity of the wind, and the navigation of the vessels. The evidence, however, abundantly sustains the conclusions. of the district judge that shortly after the brealdng of the rudder chain, and several minutes before collision, the steamer, which was proceeding under a slow bell, stopped and reversed, and had actually acquired sternway before the collision. She also repeatedly sounded danger signals to indicate that she was under