Firemen's Charitable Ass'n v. Ross, 60 F. 456

Firemen's Charitable Ass'n v. Ross

60 F. 456 | 5th Cir. | 1893

LOCKE, District Judge,

(after stating the facts.) The question in this case is whether the service rendered by the Firemen’s Association exceeded the duty imposed upon it by its 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 Kew Orleans in regard to the employment of a fire department consisted of a. General Ordinance Ko. 7,34-6 of the Ad ministration Series, enacted September 28, 1881, providing for the obtaining of bids from different companies for providing ¡he city with the apparatus and the service of employes for the protection of the city from Are. After enumerating the different officers and men for such employment, and the different engines, horses, hose, and other apparatus that shall he 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, Ordinance Ko. 7,346 was amended by Ordinance Ko. 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 Ko. 1,890, Council Series, re-enacting Ordinance 7,316 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 Kew 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 insure 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 he recognized as in force at the time of this contract, and that such contract was made in contemplation of and in accordance with such amendment then existing. This amenda-tory ordinance shows plainly that fire on shipboard had been contemplated and provided for. In accordance with it, the Firemen’s *458Association was prohibited from charging or claiming salvage for such services. This view of the case we consider is sufficient to determine the questions at issue, and although unnecessary to review the general question of 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 he 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. In the case 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 definite and positive contract and agreement that the firemen should be employed to render services for a compensation. The vessel in that case had in no way had any connection with the city as one of its commercial agencies. It had had no business connection in any way with it; nor was it, nor had it been, a source of profit or emolument in any way to the city, or any of the citizens. In that case the firemen received no compensation for their services as such from the city or 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 fire as far as they might be able. Without a contract for aid from the firemen the steamship would not have been permitted to come to the wharf. In that case it was not considered that it vvas the duty of the firemen as such, any more than it was that of private individuals, to render any service to the property. It was the same in the case of The Huntsville (Dist. Ct. S. C. 1860), Fed. Cas. No. 6,916. In that case Judge Magrath says:

“If the fire had occurred while the Huntsville was lying at one of the docks of the city, if she had been brought to the city by the authority of the mayor, without the addition of any other circumstance, the law in such cases created for the fire department a plain, positive duty, for the performance of which they were legally bound, and upon the performance of which they became entitled to certain compensation from the city of Charleston; 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 city for the service they might render.”

In tbe 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 by which the products of the country passing through that port were being exported. She 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 to the fire department, or understanding had of her coming, could that have changed the legal duty of the firemen? We think not. It was the duty of the association under its contract to do all within its power within the districts mentioned to extinguish fires, and, had there been no positive enactment specifying its duty in regard to fires on board ships, the safely of the property of the city and its citizens, as well as the general principle that for all police pur*459poses a ship at the wharf is within the city, would bring this case within that duty. We consider the case comes plainly within the principle laid down in Davey v. The Mary Frost, 2 Woods, 306, Fed. Cas. No. 3,592, and declared in The Suliote, 4 Woods, 21, 5 Fed. 99, and not within that of The European and The Huntsville, and the decree dismissing the libel is affirmed, and it is so ordered.