The Richmond, No. 99

No. 99 | 2d Cir. | Dec 15, 1914

DACOMBE, Circuit Judge.

The Richmond, attended by two tugs, the Arrow and Starbuck, was lying at anchor in the East river near Twenty-Eighth street, New York, when fire was discovered in between decks of the engine room and in the cargo of lumber at a point just forward of the engine room bulkhead.

Her master at once sent the Arrow away to summon the municipal fire boat. The Arrow, instead of proceeding towards the berth of the fire boat, headed across the river for Newtown Creek, intending to telephone for the latter. Thereupon the Richmond and, by her orders or with her consent, her attendant tug the Starbuck, blew alarm signals, which they say were intended to recall the Arrow and summon the fire boat. These signals, however, were in fact a general alarm, to which many nearby tugs, including the Florence, responded. When the Florence arrived, hose from the Starbuck had been passed aboard the Richmond, through a coaling port in the port side of the ship, and thence led, by some of the ship’s company, to a hatch a few feet forward of the port, through which water was discharged into a lower compartment to check the spreading of the fire in a part of the cargo. Two lines of hose of the Richmond herself had also been put in commission, one down the starboard hatch, the other down a hole chopped in the deck just over the fire, also the steam of a perforated pipe. The Florence came alongside near the Starbuck. She did not make fast to the Richmond, but held her stem against the steamship’s side, while one of her crew stood on the stem holding the nozzle of her hose in the same coaling port through which the Starbuck’s hose led. She continued discharging water from this nozzle until the arrival of the fire boat, when she was ordered to desist by the fire chief, who took control of the situation. Her witnesses say that she continued playing her hose for about an hour. As to these facts there is no dispute. After the Florence had been throwing her stream through the coaling port for some time, the master of the Richmond discovered what she was doing. Apparently as he was moving along the alleyway into which the stream was playing, he was struck by it. He testifies that he at once hailed the Florence and told her to stop; that he did not want her stream; that it was doing no good and was interfering with the work of the Richmond’s crew, who were fighting the fire; that the man who was holding the Florence’s hose thereupon began to play on the side of the steamship, saying he would “keep the side cool,” whereupon the captain told him to wait till it got hot; that the captain of the Richmond repeatedly told the'Florence to desist and to take her stream away (that he did this at least four or five times); that on each occasion the Florence would cease playing into the coaling port for a brief time, only to resume doing so as soon as the master of the Richmond disappeared. The master of the Florence and her deck hand deny this, but we are inclined to believe the Richmond’s story for these reasons:

First. Her master’s story is fully corroborated by the engineer of the Richmond and the master of the Starbuck.

Second. The witnesses from the Florence endeavored in their testimony to create the impression that her hose was put on board the Richmond, as the Starbuck’s was. Persistent cross-examination alone forced them to admit that the hose was never on board the Richmond, but that all that entered the port was the business end of the nozzle and the stream of water.

Third. Corroboration of the story of the captain of the Richmond that he did not want the Florence’s stream and tried to have it removed is found in the circumstance that he also objected to the tug Reichert throwing a streám aboard and told her master to "desist doing so. This the master of the Reichert himself admits. He desisted as soon as requested.

Fourth. It was quite natural for the master of the Richmond to ask the Florence to remove her stream, because it was doing more harm than good. From the coaling port through which it entered it merely played across an alleyway, struck against the bulkhead of the engine house, splashed and fell on the deck, some distance away from the hatch through which the Starbuck’s hose was discharging. Most of the water went down the scuppers, some little perhaps down the hatch. Moreover, it interfered with the men who were working in the alley, wetting them, and sometimes knocking them about.

For services rendered in response to the alarm which she might fairly take as addressed to herself with others, the Florence might be entitled to salvage, for the fire was a serious one; but certainly she ought not to be awarded anything for continuing to play her hose either into the alleyway or against the side of the ship, after she had been told that her services were not wanted, and that her throwing a stream into the alleyway was interfering with the fire fighters on board.

Moreover, we are satisfied that because of her obstinate persistence in thrusting her services on the Richmond and continuing to interfere with the fighting of the fire by the Richmond’s crew, after she was warned that she was so interfering and told to desist, she forfeited whatever small sum she might otherwise have claimed for services rendered in compliance with the alarm whistle, which she might fairly construe as addressed to herself. The District Judge reached a different conclusion on the theory that the captain of the Richmond “could have compelled the Florence to leave.” She was not made fast to the Richmond, so that the cutting of a line would not have set her adrift, and we do not think the master of the Richmond, when he found his repeated requests and orders were unheeded, was under any obligation to abandon his occupation of fighting the fire aboard his own ship in order to board the Florence, overpower her master and crew, and enforce her withdrawal.

. The decree is reversed, with costs.