243 F. 358 | 7th Cir. | 1917
Do these allegations exhibit a cause of action? In the Workman Case and in the other citations by appellee (Thompson Navigation Co. v. City of Chicago [D. C.] 79 Fed. 984; Philadelphia v. Gavagnin, 62 Fed. 617, 10 C. C. A. 552; The Major Reybold [D. C.] 111 Fed. 414; Port of Portland v. United States, 176 Fed. 866, 100 C. C. A. 336; Island Transportation Co. v. Seattle [D. C.] 205 Fed. 993),' the injuries to the libelants’ vessels occurred through collisions; that is, the negligence of the municipal corporations was in the operation of their vessels as vessels. Here, it is to be observed, the sole negligence charged consisted in bringing the fire apparatus so near the Arizona, and operating it in such a way, as to cause her to sink. No direct precedent has been cited by counsel or found by us; and so the question must be answered in the light of analogies. If the damage to the Arizona had resulted from the operation of fire apparatus located upon the banks of the river, a different question would be presented. Here, however, not only the Arizona, but also the instrumentality which injured her, was upon the navigable waters of the United States. In the federal license of the fireboat there were no provisions which would exempt the city of Chicago from any maritime liability which under the same circumstances would fall upon a private corporation or individual. It would therefore seem that, following in the line of the principles declared in the Workman Case, a municipal corporation is liable for any negligent act, committed on navigable waters, which would render any private corporation or any individual liable. And as to these latter, liability is created not merely by the negligent handling of their vessels, but as well by the negligent setting in motion of any force from their vessels which causes an injury to another vessel upon navigable waters. In The Chickasaw (C. C.) 41 Fed. 627, a steamer, moored to her wharf and with her furnaces fireless, cut loose a coal fiat which was lashed to her side; the coal fiat was carried down by the current of the river and drifted against and injured the libelant’s vessel; and the decision turned on the question whether under the evidence the act of the Chickasaw’s mate in setting- the coal flat adrift was a negligent act. Very obviously tlie movements of the Chickasaw herself were not involved; but the injury to the libelant’s vessel was caused by the impact of the coal flat. In The Clarita, 23 Wall. 1, 23 L. Ed. 146, a privately owned fireboat negligently permitted a burn
The fireboat began her operations about 10 p. m. and continued fast to the Arizona until about 4 a. m. The Arizona sank about 7 a. m.
In the testimony of the captain of the fireboat and of one of his men, it was claimed that when they arrived the Arizona was already listing; that on examination her hold was found to contain a large quantity of water; and that, as she continued to list, water came into her through .seams in her port side above the water line. But the testimony respecting the Arizona’s condition before and after the sinking clearly establishes that the sole cause was the water from the nozzles of the fireboat, and the claim to the contrary is not now urged by appellant.
One contention of appellant is that the absorption of the men in fighting the fire, together with the darkness and smoke, prevented them from noticing and appreciating tire increasing' peril of the Arizona. Not long after the fireboat had been in operation the captain observed the listing and sent men on board the Arizona. These men, at the captain’s direction, put in siphons to draw water from the hold. And the t captain saw that water was being thrown in faster than it was being taken out ; that she was sagging at the stern and listing to port more and more; and that “there was ice only at the aft part of her. (right where the fireboat was), there was no ice forward at all, because there was no chance for ice there.” And when he finally quit the Arizona it was because her condition was such that he thought she might break her chains at any moment and imperil his fireboat.
The principle for guidance was:
“Where the danger is great, the greater should he the precaution, as prudent men in great emergencies employ their host exertions to ward off the danger.” The Clarita, supra.
But the record impresses us that the captain believed that for any damage he did in operating the fire apparatus no action would lie, and that he acted accordingly.
There is no contention that appellee was in any way at fault.
Our conclusion is that the evidence sustains the charges of negligence laid in the libel.
The decree is affirmed.