City of Chicago v. White Transp. Co.

• Decision Date: 02 January 1917
• Docket Number: 2421.
• Citation: 243 F. 358
• Parties: CITY OF CHICAGO v. WHITE TRANSP. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

243 F. 358

CITY OF CHICAGO v. WHITE TRANSP. CO.

No. 2421.

United States Court of Appeals, Seventh Circuit.

January 2, 1917

Chester E. Cleveland, of Chicago, Ill., for appellant.

Charles E. Kremer, of Chicago, Ill., for appellee.

Before BAKER, KOHLSAAT, and ALSCHULER, Circuit Judges.

BAKER Circuit Judge.

I. Appellee's steamer, the Arizona, was sunk in the Chicago river through the alleged negligence of the city's servants in the management of one of the city's fireboats. By the law of Illinois a municipal corporation is not liable to the owner of property for negligence of firemen in the performance of their duty. This, of course, applies to acts within the sovereign dominion of Illinois. In the case of Workman v. New York City, 179 U.S. 552, 21 Sup.Ct. 212, 45 L.Ed. 314, it was held that for every maritime tort there is redress if the admiralty court has jurisdiction of the offending person or thing; that, though a libel in personam is not maintainable against a sovereign, it is not for lack of a cause of action in admiralty, but on account of the sovereign's immunity from process; that a municipal corporation, like private corporations and persons within the reach of the court, is subject to process; and therefore that a municipal corporation must respond to a libel in personam if a cause of action is stated under the maritime law, although the same acts of its servants would not constitute a cause of action under the local law of the state. So the present libel in personam was a proper proceeding.

II. At the close of navigation, the libel alleged, the Arizona was laid up for the winter at a dock on the east side of the Chicago river; that one night in midwinter a fire broke out in a grain elevator located on the west bank of the river northwest of the Arizona; that a gale was blowing from the northwest, and the thermometer registered below zero; that the fireboat negligently took a position in the river near the Arizona, and negligently operated and continued to operate the fire apparatus in such a way that the water therefrom ran into the Arizona's hold, and also formed large masses of ice on her decks, cabins, rails, and port side, so that she began to list to port, and finally sank all without fault of the libelant. The damages asked were the expenses of raising and repairing her.

Do these allegations exhibit a cause of action? In the Workman Case and in the other citations by appellee (Thompson Navigation Co. v. City of Chicago (D.C.) 79 F. 984; Philadelphia v. Gavagnin, 62 F. 617, 10 C.C.A. 552; The Major Reybold (D.C.) 111 F. 414; Port of Portland v United States, 176 F. 866, 100 C.C.A. 336; Island Transportation Co. v. Seattle (D.C.) 205 F. 993), the injuries to the libelants' vessels occurred through collisions; that is, the negligence of the municipal corporations was in the operation of their vessels as vessels. Here, it is to be observed, the sole negligence charged consisted in bringing the fire apparatus so near the Arizona, and operating it in such a way, as to cause her to sink. No direct precedent has been cited by counsel or found by us; and so the question must be answered in the light of analogies. If the damage to the Arizona had resulted from the operation of fire apparatus located upon the banks of the river, a different question would be presented. Here however, not only the Arizona, but also the instrumentality which injured her, was upon the navigable waters of the United States. In the federal license of the fireboat there were no provisions which would exempt the city of Chicago from any maritime liability which under the same circumstances would fall upon a private corporation or individual. It would therefore seem that, following in the line of the principles declared in the Workman Case, a municipal corporation is liable for any negligent act, committed on navigable waters, which would render any private corporation or any individual liable. And as to these latter, liability is created not merely by the negligent handling of their vessels, but as well by the negligent setting in motion of any force from their vessels which causes an injury to another vessel upon navigable waters. In The Chickasaw (C.C.) 41 F. 627, a steamer, moored to her wharf and with her furnaces fireless, cut loose a coal flat which was lashed to her side; the coal flat was carried down by the current of the river and drifted against and injured the libelant's vessel; and the decision turned on the question whether under the evidence the act of the Chickasaw's mate in setting the coal flat adrift was a negligent act. Very obviously the movements of the Chickasaw...