The Clarita and the Clara

APPEALS from the Circuit Court for the Southern District of New York; the case being thus:

A company in New York, called the New York Harbor Protection Company, and whose business was the aiding, protecting, and saving vessels in the port of New York, when wrecked or in distress-including the rendering of aid, protection, and safety to such vessels on fire or threatened with conflagration-was the owner of a steam-tug called the Clarita. This tug was equipped, not only with means suited to assist vessels wrecked or in distress, generally, but with special apparatus for extinguishing fires, that is to say with powerful pumps and hose, worked by steam as fire-engines, also with axes and instruments for scuttling. The commander, too, was skilled in the use of such apparatus as well as in the ordinary management of a vessel in seasons of storm and occasions of distress from casualty and weather.

The dock of the vessel was at the foot of Canal Street, New York, where she was kept in constant readiness for service, with a crew on board, with fires 'banked,' so that at any time she sould be set in motion and brought into service.

She was in her dock and in this state on the evening of the 1st of August, 1870, having on board several hempen hawsers strong enough to tow the largest vessels, but not having any hawser of chain, nor a chain attachment for a rope hawser. Hempen hawsers, as was proved, are the sort of hawser universally used in the port of New York for towing vessels heavilly laden or disabled, and much preferable, in such cases, to chain cable. The only chains which the tug had on board were her anchor-chains, of from fifty to seventy fathoms long, down in the locker; very heavy chains, too heavy, indeed, to be handled in any sudden emergency.

Though constantly called on for assistance in cases of collision, springing of leaks, wreck, and other catastrophes arising from bad navigation, weather, or want of seaworthiness, and sometimes to extinguish fires before they had got much headway, the Clarita had never, in five years, been called on to tow more than one vessel in a state of conflagration, or one about to become in that state.

With this history, and in this state of things, on the evening aforesaid, and while the tug was in her dock at the foot of Canal Street, New York, her captain espied a smoke which indicated a fire, rising apparently out of the water's edge, at Hoboken, on the Jersey shore, opposite. He got steam up on his tug at once, and was shortly at the Christopher Street slip, Hoboken, from which the smoke was ascending. He here found that a ferry-boat of the Hoboken Ferry Company was on fire; the fire, however, being in her hold, and not yet having burst forth anywhere into flame. Numerous people were on or about her, assisting to put out the fire. A Hoboken fire company was doing what it could, and two other steamers in or near the dock were sending water into her from their hose. The tug having made herself fast to the ferry-boat by one of her hempen hawsers got to work and plied her engines vigorously. A gas-tank belonging to the ferry company, which, of course, was particularly liable to ignite and explode, was near by; the dock had numerous vessels in it, and there were houses close to the place which, if a conflagration took place in the dock, would perhaps take fire and be consumed. The tug worked diligently for an hour and more, but the fire being in the hold, which was filled with flame and smoke, and therefore could not be entered so as to direct the water advantageously, gained upon the most active and persistent efforts, and it was soon discovered that it had reached the deck over the hold and was ascending to the joiner-work, of which the cabins and wheel-house, and other light wood-work on deck were composed. The master of the burning ferry-boat, who, with the chief of the Hoboken fire department, was on board of her, now requested the captain of the tug to pull the ferry-boat out of the slip and tow her on to Hoboken Flats, which were the nearest flats, and not far off. The captain of the tug hereupon, and within five minutes, attached the hawser, by which on arriving the tug had been made fast to the ferry-boat, to an iron cleat on the bow of the ferry-boat, and the tug (with the master of the ferry-boat and men of the Hoboken fire department on board), backed out of the ferry-slip and then went ahead.

Although, as already stated, the steam-tug had no chain cable (other than unwieldy anchor chain) or chain attachment on board, it appeared by testimony given in the case that there was a light chain cable on a boat in the dock which had been assisting in putting out the fire. After the ferry-boat had been hauled about two hundred yards out of the slip, the flames burst out fore and aft and burned the hawser off, and the ferry-boat was drifted by the tide foul of a bark on the Hoboken side of the river, above the ferry slip, at anchor, before the men on the tug could get hold of her again, and set fire to the bark.

As soon as practicable, another hawser (hempen) was got to the ferry-boat, and she was hauled off from the bark.

With this second hawser the ferry-boat was got round, heading up the river, when this hawser, too, parted, from being burned off by the fire on the ferry-boat. Then, as soon as it could be done, a third hawser (this time a large hawser of seven inches) was taken to the ferry-boat in a life-boat belonging to the ferry-boat and by men from the ferry-boat and the Hoboken fire department, and was again attached to the ferry-boat. But this hawser, too, was burned off. The iron cleat to which these different hawsers had been attached remained standing in the boat.

On this third parting of the hawser which had been attached to the burning ferry-boat, every effort was made to get a line to her again as soon as possible, but before one was got to her she had drifted broadside upon the bows of a schooner, The Clara, at anchor in the river, with a proper anchor-light, but with all her men except one, who happened to be up and walking about, asleep below, and set fire to her fore-rigging, sails, and bowsprit. The place where the schooner lay anchored was about three hundred and fifty yards from the frong of the Hoboken wharves. The ferry-boat, which was 164 feet long, came midship on the bows. The tug soon hauled up by the schooner and sent and attached the hawser again, and for a fourth time, to the burning ferry-boat. This time, it was not burned off, and the tug, plying all her force, dragged the burning boat from the schooner away into the deep stream, where the hawser was cut and the half-consumed remains of the ferry-boat allowed to sink.

As soon as the hawser was cut, the tug returned to the schooner, which was now burning fiercely, and certain, unless aid came to arrest the flames, to be consumed entirely. The tug made fast to her, and after having plied her engines for two hours and more succeeded in extinguishing the flames.

The owner of the schooner, thus saved from entire destruction, now filed a libel against the tug, to recover damages for the injury which she, the schooner, had suffered from the fire.

The owners of the tug in turn filed a libel against the schooner, for salvage, as having saved her from being burnt up entirely.

The case was heard upon the cross-libels.

The owners of the schooner contended that the tug was guilty of negligence, in not having had and used a chain hawser. The owners of the tug alleged that their hawser was good enough, and that the catastrophe was an inevitable accident, and moreover that the schooner was to blame in not having had an auchor-watch, who would have seen the burning vessel drifting on her and would have got out of her way. The District Court was of the opinion—

(1.) That the attempt to tow the burning ferry-boat out into the stream by a hempen hawser was an act of negligence.

(2.) That the drifting of the ferry-boat was not an inevitable accident, but was the result of negligence on the part of those in charge of the steam-tug.

(3.) That the schooner, not being required by law to keep a watch under the circumstances, was without fault, and entitled to damages.

That court accordingly gave to the owners of the schooner damages compensatory of the partial destruction which she had suffered by being set on fire by the drifting and burning ferry-boat. And after such a decree dismissed, of course, and from necessity, the libel of the tug for salvage, in preventing her being burned as to her residue.

The Circuit Court on appeals confirmed the decrees, and from the decrees of the latter court these appeals were taken by the owners of the tug.

Mr. Van Santvoord, for the appellants:

The questions in the two appeals arise upon the same facts; and the question whether the owners of the tug are entitled to salvage for saving the schooner from being wholly counsumed, depends wholly on the question whether the tug wrongfully caused the schooner to be set on fire in the first instance. If she did not cause her so to be set on fire at all, a claim for putting out the fire is a just one. If the tug did wrongfully cause the schooner to be set on fire, a claim by the tug for putting out the fire which she herself wrongfully caused would be preposterous. We should not present it.

We confined ourselves, therefore, to the only question in either case, whether the tug wrongfully caused the schooner to be set on fire:

1. We say that she did not. It might be argued with a certain plausibility that all that was done here by the captain of the tug, was done under order of the master of the ferry-boat. The tug was a vessel of New York, and when she went into the docks of Hoboken, she put hereself under the authorities there. Both the master of the Hoboken ferry-boat and the engineer of the Hoboken fire department were aboard of the tug when she was drawing the burning ferry-boat out into the stream, and it was their men who carried the hempen hawser to the schooner at anchor.

2. It might be argued too with a certain plausibility that the schooner was not anchored in a proper place, just in face of the wharves of the Hoboken ferry.

3. We might assert with more confidence that the absence of a proper 'anchor-watch' should bar the schooner's claim, or, at least, and if the tug be found in fault, cause an apportinonment of the damages. A considerable time elapsed from the time that the hawser was burnt on the third occasion till the burning ferry-boat ran afoul of the schooner. Had there been an auchor-watch he could have sheered, by means of the wheel, and slipped his chain, when the schooner would have drifted, and the catastrophe would have been avoided. But none of these arguments are pressed by us, much stronger ones remaining.

4. Admitting that if anything was wrongfully done by any one in the case, the tug was responsible for it all, we assert that nothing was done wrong by any one; that the case was one of misfortune, or, as it may be equally well called, of inevitable accident.

It is to be observed in the first place that it is the interest of shipping that an enterprising company, like the one which owner this tug-a company which, at great expense, fits up a tug with powerful steam-pumps, and keeps the vessel ready with her fires banked, night and day, to move on a moment's notice everywhere about a harbor for useful service-should be encouraged. If in a great and sudden emergency it have not done everything which on a retrospect, coolly made after the event, may appear to have been the best thing, it should not be dealt with hardly.

Now, it is in evidence that such an occurrence as having to tow a vessel in flames was a very rare one, though extinguishing fires while they are in dock or at anchor may not be so uncommon a one; and that Manilla hawsers are the only hawsers in use in towing vessels. It is plain too on ascertaining that the fire could not be got under by the fire engines and pumps-the fire gaining upon these efforts, the flames having already broke out under the guards and reached her joiner work-that the only means of saving the ferry-boat and preventing the spread of the conflagration to the wharves and adjacent buildings and other property, was an immediate removal of her out of the slip, with a view, if possible, of beaching her on the nearest flat; it not being possible from the condition of her deck to bring her to anchor after getting out of the slip. A very short time, it is admitted, occurred between the time when the order was given to tow the boat out and the time when she was towed out. The occasion was emergent. Confusion prevailed. There was no one person in admitted command anywhere. The captain of the tug acted entirely well, therefore, in towing out the vessel with such hawsers as she was provided with, and as were at her command, though they were not incombustible. The case falls within Sir Francis Bacon's illustration of the fifth rule of his Elements of the Common Law, where, in illustration of his maxim Necessilas inducet privilegium quoad jura privata, he says:

'The law chargeth no man with default where the act is compulsory and not voluntary, and where there is not a consent and election; and, therefore, if either there be an impossibility for a man to do otherwise, or so great a perturbation of the judgment and reason as, in presumption of law, man's nature cannot overcome, such necessity carrieth a privilege in it.'

If these views be correct the claim for salvage is obviously just, and need not be enforced. The tug was not the cause of setting the schooner on fire, and was the cause of saving her after she had taken fire.

Mr. E. H. Owen, contra:

The first three positions of opposing counsel are but feebly defended. They cannot be maintained.

1. The burning ferry-boat was in charge of the tug, and the captain of the latter was in command of all, though others may have aided him. Though the owners of the ferry-boat may have advised or even ordered the tug to take the vessel out of the dock, they did not order the tug to set our schooner on fire.

2. The schooner was lawfully lying at anchor near the middle of the river; a place where all vessels anchor. She had a good and sufficient anchor-light-that is to say a light set in her forerigging-burning brightly. This is not disputed.

3. That she had no sufficient anchor-watch on duty at the time was not a fault. The statutory rules did not require such a watch. All that is required of a vessel at anchor is to have a proper light displayed. It is not customary for vessels like the schooner to have an auchor-watch, unless it be when there is fog, or the weather is boisterous and dangerous. But the want of an anchor-watch did not cause the collision.

It is said, however, that if there had been an anchor-watch when the danger became imminent the schooner might have been sheered by the use of her wheel or her cable slipped, and so got out of the way of the burning boat. This is assumption merely. With all hands on deck she could not have been sheered far enough either way to avoid the burning boat. The ferry-boat was 164 feet long, and it came down broadside towards and upon the bows of the schooner, and struck her about midship, and, therefore, to have avoided her, the schooner must have sheered over 82 feet, which was impossible, and so the master testifies.

Nor could the cables have been slipped by a single watchman. The necessity for so slipping the cable did not arise until the boat was coming down upon the schooner, when it would have been too late to call all hands from below.

4. The ground chiefly relied on by opposing counsel is as little to be maintained as any one of the others. Whoever attempted the removal of the burning boat was bound to use precautions to prevent her from being carried by wind and tide against other vessels lying at anchor in the harbor, corresponding to the danger and consequences of such a result. The danger was extraordinary, and more than usual precautions to secure and retain control of the burning mass were, therefore, required by ordinary prudence. Reasonable care in such circumstances is not be determined by the ordinary usages of tugs engaged in towing when no such circumstances of peril to others existed. Proofs, therefore, of the customary practice of tugs engaged in towing vessels in and about the harbor, to use hempen hawsers only, does not furnish a satisfactory test of the caution and care due from a tug-boat professedly engaged in the business of rescuing vessels from conditions of extraordinary peril, including fire on board.

It is obvious that a chain attached to the burning boat would have prevented the loss of control over her. The use of such a chain is not proved impracticable, and it is equally obvious that it was not only practicable but easy.

No heavy anchor-chain extending from one boat to the other, which the hands of the boat could not manage, was required. All that was essential was that the attachment to the burning boat extending a few feet therefrom should be incombustible. For the rest a rope or hempen hawser was sufficient. The parties expected the flames to spread through and over the burning boat. It was this expectation which induced the attempt to remove her from the slip. In view of this it was negligence to remove her under no other control than a rope which presumptively would be burned off so soon as the expected spread of the fire should reach it. In this respect it was not like a shifting of the location of the boat with a view to the extinguishment of the fire before it should thus extend. Before any hawser was attached for the purpose of drawing her from the slip, chains were to be found both on the ferry-boat and on the tug, and it is not to be doubted that a chain of suitable length to form a connection of the hawser to the burning boat might readily have been elsewhere procured.

5. These views, as we conceive, are so obviously right that we need say nothing about salvage; that claim falling to the ground as of course, if the decree of the court below giving damages against the tug for wrongfully setting the schooner on fire, is sustained.

Mr. Justice CLIFFORD delivered the judgments of the court, giving an opinion in each of the cases.