Hollenbeck v. The City of Atlanta

| S.D.N.Y. | Apr 15, 1893

BROWN, District Judge.

The above 21. libels and petitions are filed to recover for ihe salvage services of 21 different tugs which were engaged in extinguishing a fire which broke out on the City of Atlanta, at about 5 o’clock in the afternoon of January IS, 1891, as she la'y at her dock on the south side of the pier at the foot of Eighteenth street. East liver, outside and alongside of the City of Columbia, a sister ship. Both vessels were of wood, and worth about S?75,000 each. The fire arose in the lamp room of the City of Atlanta, which was on the main deck, a little aft of amidships. The ship was light, and most of the officers and crew were absent. Efforts to put out the fire with the ship’s hose wore baffled by the smoke, which, Inning little means of escape, drove back the men. The hose of the City of Columbia also could do little service. Orders wore thereupon given by the mate of tin* latter to cut the dines of the City of Atlanta; and the beli of (he City of Columbia, which had been rung as an alarm, speedily drew' various tugs to the scene. The City of Atlanta lay stem out; nex( alongside the bow of the City of Columbia. Hails were given to the tugs from a throng of men on the how of the City of Columbia, to get out a line to the City or Atlanta and tow her away. Tim tug Waite, accordingly, got a. line to the stern of the City of Atlanta, where it was taken and made fast by the petitioner John McQuirey, a landsman, who. at some risk, went on hoard the City of Atlanta to make fast Urn line, after those on hoard of her had left. The tug Bogart, arming at about; the same time, got out a. hawser and made fast ahead of the Waite, and the tug White, having cut the hawser of the Atlanta which made her fast to the dock, took position on ihe port side of the Waite, and the three lugs then pulled the City of Atlanta stern first out into the stream. Meantime the tug Three Brothers, which had been at the head of the slip on the opposite side, came to the City of Atlanta about; amidships, and began playing with her hose before and while the steamer was hauled out. After the steamer was pulled away from the City of Columbia, 17 other tugs from time to time came to the steamer and took part in ihe salvage service; most, of them by flumping and throwing water with the hose; some by towing and lidding her in position, and some by both.

The steamer was 215 feet long hv 36 feet beam, and of 1,800 net tons. She was not easily managed; and the cold weather and considerable ice in the river made the work one of considerable difficulty, exposure and hardship. With the flood tide, despite all the tugs that were pulling her could do, she drifted up a mile and a half to the lower end of Blackwell’s island, where she narrowly escaped going upon the reef. With the ehb tide she drifted down again, and at about 3 A. M. was beached near the mouth of New-town creek. During all this time the fire was not wholly subdued, but would occasionally break out afresh; and a number of the tugs remained by her until 8 or 9 o’clock the next morning, and one until the following afternoon.

After the fire was wholly extinguished, the steamer showed little signs of the fire outside, though some 40 feet of the forward part of her hull was so burned and charred, that it had to be wholly renewed. Two or three small holes only were burned through her starboard side. Inside, her woodwork was practically ruined, except in about one-third of the after part of the ship, which was not injured. After the fire she was sold and her proceeds, netting $7,100, hare been paid into the registry of the court. Not only is salvage claimed against the proceeds of the City of Atlanta, but the four tugs who moved her away from the City of Columbia claim salvage compensation against the City of Columbia for saving her, when in great alleged danger, from any loss or injury by the removal of the burning ship from alongside.

1. As respects the claim against the City of Columbia, I am satisfied that no salvage award against her can be made. None of the tugs were employed by her. They did nothing directly to her, or upon her. They did not enter into her service, but into the service of the City of Atlanta. They removed the latter from alongside, because there was reasonable apprehension of danger to the City of Columbia, should the City of Atlanta remain alongside, and very likely from the additional desire of the tugs to take the whole work into their own hands free from any such co-operation of the fire department as might perchance diminish their salvage rewards. The removal was a mere incident of their mode of conducting the salvage service to the City of Atlanta, and the advantage to the City of Columbia was only an indirect benefit; not a direct service to her.

If the fire on the City of Atlanta was such as to jeopardize the safety of the City of Columbia, then she had become a dangerous nuisance; and those taking charge of the salvage of the City of Atlanta, had no right to keep her alongside the City of Columbia for their own convenience and benefit, to the peril of the City of Columbia. It was their first duty, removal being easy, to take her away where she would not needlessly imperil other property, or do it any unnecessary damage. Such removals by salvors are frequently and constantly required by those exercising powers in the nature of police supervision in the public interests; such as harbor masters, dock masters, police officers or officers of the fire department. Removals thus made in salving operations do not give rise to any claims for compensation from the property thus relieved from danger.

The removal in this case does not appear to have been oidered by any such officers; but it seems to have been done by the tugs voluntarily, upon the suggestion of persons watching the smoke of the burning ship, and adopted as a thing reasonably proper to be done. It was but an incident in ihe 'salvage service undertaken for the City of Atlanta; and it was done in the performance of a reasonable duty so to conduct the salvage operation as not unnecessarily to injure other property. Such an act is not a ground for a salvage claim against other property.

I have not been referred to any ease in which one vessel has been charged with payment of salvage for an indirect advantage derived from the rendering of a salvage service to another vessel. The absence of authority is no small evidence that such indirect claims form no part of ihe law of salvage. If such claims were allowed on the ground that if the burning vessel were left to her fate and not removed, much oilier shipping might in the end be destroyed, it is plain ¡hat such claims of salvage for indirect benefits might be extended indefinitely, and would scarcely admit of any limit. But the policy of the law, which is ihe very basis for the allowance of salvage awards, does not require any such extension of salvage claims, but on the contrary plainly prohibits it. Fcr it can randy happen that the vessel to which the salvage service is directly rendered, cannot respond for all such compensation as may be necessary to secure prompt efforts to assist vessels in danger or distress. It is sufficient, to allow salvage against her alone. "Undoubtedly a vessel in jeopardy from some other dangerous object, may employ lugs in her own behalf to free her from danger by 'removing it. whether it, he a burning vessel or any oilier dangerous object; and when such removal is clearly made as an independent act in the employment of fhe other vessel, and for her benefit, a, salvage compensation might, perhaps, he allowed. That is not the present, case; because, as I have said, the removal of the Pity of Atlanta was not an independent act:, upon the employment or for the benefit of the City of Columbia; but it, was a. mere incident in the mode of performing fhe salvage service undertaken for the City of Atlanta,, and was a duty incumbent: on the salvors of the Oily of Atlanta as to the mode of performing that salvage service, in case remaining alongside endangered the safety of the City of Columbia.

2. The service rendered to the City of Atlanta, was a meritorious one. The small amount saved, however, and (he numerous tugs engaged admit; of but moderate compensation to any of them. It is ‘clear that the removal of the City of Atlanta from alongside the City of Columbia was deemed expedient and necessary at, (he time. Both were wooden steamers. Both had considerable light woodwork upon their upper decks; and the wind, though not strong, was from the south, which increased the danger of permitting the City of Atlanta to remain alongside the City of Columbia. In some cases the attempt to put out the lire at the dock has resulted in the destruction of both the ship and the property on the dock. Notwithstanding, therefore, the judgment expressed after the event by witnesses who are, no doubt, competent judges, that the Are might have been in fact subdued without removing the City of Atlanta, and without setting fire to the City of Columbia, as the removal was done with the evident concurrence of all present, I think the course adopted ought to be approved, as the course deemed most prudent at the time, and as a reasonable duty to the adjacent property. This course, however, increased the difficulty of the tugs in dealing with the City of Atlanta in the currents and ice of the East river, and exposed the salvors in the cold weather to considerable hardship.

I think $4,000 will be a proper aggregate sum to be awarded for the services rendered in this case. There were great differences in the size, value and equipment of the different tugs engaged in the work, and in the length of their respective services, as well as in the time when they arrived on the scene. Some had no pump and were only of service in hauling the City of Atlanta out, and then keeping her in place, as well as they could; though the difficulty of the latter work was much increased by the lack of any concert of action, for which they are themselves to blame.

The tugs not supplied with pumps and which did towing work only, must rank lower in merit than those that did pumping; not only because pumping was the immediate means of putting out the fire, but because the labor, exposure and hardship of the pumping woilr in a cold winter night greatly exceeded that of towing. No diminution, however, is made as against those pumping tugs that at times did pulling at the request of the superintendent. Eor those that remained in attendance at the owner’s request after the fire was extinguished, an additional allowance is made; and to those that broke hawsers, or suffered other damages, what is believed to be a sufficient allowance therefor is also included. Without entering into further details, I apportion the above amount as follows:

To McQuirey who made fast the lines, $30; to McNeil who has been disabled from having frozen his foot in the service, $200; to the Imperator and the Three Brothers, $350 each; to the Elder, $340; to the Runyon, $310; to the Rawson, the G-olden Rule and the Golden Rod, $220 each; to thé Wonder and the Rambler, $210 each; to the Agnes, $190; to the Bauer, $170; to the Waite, $140; to the Mascotte, $120; to the Mischief and the Bogart, $110 each; to the Pearl, the Vigilant and the Ceres, $100 each; to the Baltic, $90; to the White, $65; and to the Clough, $45.

Of the sums above awarded to the various tugs, two-thirds will go to the owners, and the other third to the men on board in proportion to their wages. A decree may be entered accordingly.