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THE CLARITA AND THE CLARA, 90 U. S. 1 (1874)
U.S. Supreme Court
The Clarita and the Clara, 90 U.S. 23 Wall. 1 1 (1874)
The Clarita and the Clara
90 U.S. (23 Wall.) 1
1. The owners of a vessel in flames towed by a tug and no longer in command of her own captain and crew are not liable for injury done by her to another vessel by the negligence of the captain of the tug, the said owners not having employed the tug, she being a tug whose regular business was the assistance of vessels in distress and she having gone, of her own motion, to the extinguishment of the fire in this case.
2. A vessel anchored in the Hudson opposite to the Hoboken wharves, if anchored three hundred and fifty yards from their river front, is anchored so far from shore that in case of a collision with a vessel towed in flames out of the Hoboken docks, no allegation can be made that she is anchored too near the shore.
3. A vessel at anchor having an anchor light and one man on deck, though not strictly an anchor watch, is guilty of no fault in not being better lighted or watched.
4. A vessel whose business it is to give relief to vessels on fire is bound to have chain hawsers or chain attachments on board, and if, having only manila hawsers, she is compelled to tow a vessel out of its dock with such a hawser, which is burnt, so that the vessel on fire gets loose from the tug and, drifting, sets fire to another vessel, the tug is liable for the damages caused.
5. The owners of a vessel who through their own carelessness or that of their captain set fire to another vessel cannot claim salvage for putting that fire out.
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 could 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 nearby, 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 woodwork 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 front 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 anchor 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.
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