City of Seattle v. Lloyds' Plate Glass Ins. Co.

Decision Date07 October 1918
Docket Number3112.
Citation253 F. 321
PartiesCITY OF SEATTLE v. LLOYDS' PLATE GLASS INS. CO. [1]
CourtU.S. Court of Appeals — Ninth Circuit

A powder company of San Francisco, Cal., shipped to the Baldwin Shipping Company, at Vladivostok, 15 tons of gelatine dynamite, by a coastwise steamer called Loop, to be transferred at Seattle to one of the Japanese marus for transportation to its destination; the latter ship being expected to sail from Seattle about the time the Loop should arrive. On the arrival of the Loop at Seattle, however, it was found that that Japanese ship could not take the shipment, and it was then arranged to ship the dynamite on the steamship Robert Dollar, which was expected to sail about a week later. For the reasons stated it became necessary to unload the explosive from the Loop, and it was placed on a scow of the Lillico Launch & Tugboat Company which company was the agent of and acting for the powder company. This scow, with the explosive on board, was, on the 14th day of May, 1915, moored by the launch and tugboat company, without the knowledge of the port warden of the city of Seattle, to buoy No. 1 that the city had erected in the harbor, to await the arrival of the Robert Dollar, which was the next vessel carrying explosives bound for Vladivostok.

The city had, on March 1, 1915, pursuant to authority granted by its charter, enacted an ordinance, sections 7 and 8 of which are as follows:

'Sec 7. All waters herein specified, subject to reservations for anchorage, shall be known as 'fairway,' and shall not be obstructed in any manner whereby navigation may be endangered or impeded, and shall include, subject to such reservations, the following described waters:
'All of Elliott Bay, lying easterly of a straight line drawn from Alki Point to West Point.
'All of the east and west waterways.
'All of the Duwamish river.
'All of the Duwamish waterway project.
'All of Salmon Bay.
'All of Lake Washington Canal, outside that portion which shall be under the supervision and control of the United States government.
'All of Lake Washington, Lake Union, and Green Lake, lying or being within the corporate limits of the city of Seattle, or within the jurisdiction and control of the city.
'All that portion of Shilshole Bay, lying easterly and southerly of a line from West Point to the intersection of the northerly boundary of the city of Seattle with the outer harbor line.
'All navigable waters in the projection of public streets, lying on the landward side of the outer harbor line, shall be fairway. It shall be unlawful for the master, or other person in charge of any vessel, to anchor, tie, or make fast such vessel in any such fairway for a longer period of time than reasonably sufficient to load or unload the same, except that the port warden may, in his discretion, grant any permit for the use of any such fairway for a longer period of time whenever in his judgment such use will not interfere with the use of the fairway by any other vessel, but only upon the payment of the anchorage charges herein provided for.

Sec. 8. In aid of commerce and navigation anchorage for vessels is authorized in the following described waters:

'Elliott Bay Anchorage-- Beginning at the northeast corner of Harbor Island; thence northerly and in a straight line to a point intersecting a line drawn along the north side of King street; thence west on said line to a point intersecting the east line of the west waterway; thence along said east line to the northwest corner of Harbor Island; also, beginning at a point of intersection of the outer harbor line with a straight line drawn along the west line of the west waterway; thence north to a point intersecting a straight line drawn along the north side of Washington street; thence in a westerly direction to the junction of the outer harbor line and the east side of the West Seattle Ferry dock.'

Within that portion of Elloitt Bay lying easterly of a straight line drawn from Alki Point to West Point, and within a half-mile from the path of shipping that comes into Seattle Harbor, a like distance from the wharves and docks of the city, and 1,300 feet from a fill in Elliott Bay known as Harbor Island, which at the time here in question was vacant land, the city erected buoy No. 1. The morning after the scow of the Lillico Launch & Tugboat Company, with the dynamite on board, was moored to buoy No. 1, the port warden of the city was notified of the fact, and in consideration of the payment of a fee prescribed by the city ordinance of $1 per day he issued a permit to the launch and tugboat company to so moor the scow, at the time knowing that it had on board the 15 tons of dynamite. The scow so remained moored to that buoy until the dynamite exploded, about 2 o'clock in the morning of May 30th, resulting in great damage, including the breaking of a large amount of plate glass owned by various persons in the city of Seattle, a part of which glass was insured by policies of insurance issued to such owners by the Lloyds' Plate Glass Insurance Company and the Globe Indemnity Company. Pursuant to the obligations imposed by those policies, the insurance companies mentioned caused the glass to be replaced, and filed claims against the city for the amounts paid by them for the replacing of such glass under their respective policies. Subsequently the Globe Indemnity Company assigned its claim against the city to the Lloyds' Insurance Company, which brought the present action against the city for damages, resulting in findings and judgment for the plaintiff, to review which the city brought the present writ of error.

Hugh M. Caldwell and Frank S. Griffith, both of Seattle, Wash., for plaintiff in error.

Bogle, Graves, Merritt & Bogle, Flick & Paul, and Hughes, McMicken, Ramsey & Rupp, all of Seattle, Wash., for defendant in error.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

ROSS Circuit Judge (after stating the facts as above).

It cannot be doubted that the dynamite, being foreign commerce in transit to its place of destination, was rightfully brought into the harbor of Seattle. Such substance has long been a legitimate subject of commerce. Actiesselskabet Ingrid v. Central R. Co. of New Jersey, 216 F. 72, 132 C.C.A. 316, L.R.A. 1916B, 716; The Ingrid (D.C.) 195 F. 596, and cases there cited. The contention of the appellant that the city was without power to designate the place or places within the harbor where such an explosive should be handled, kept, or stored we are unable to sustain. Neither section 4278 nor 4279 of the Revised Statutes (Comp. St. 1916, Secs. 8016, 8017), embodying provisions of the act of Congress of July 3, 1866 (14 Stat. 81, 82, c. 162), nor the decisions of the Supreme Court reported, respectively, in Southern Ry. Co. v. United States, 222 U.S. 20, 32 Sup.Ct. 2, 56 L.Ed. 72, Northern Pac. Ry. Co. v. Washington ex rel. Atkinson, 222 U.S. 370, 32 Sup.Ct. 160, 56 L.Ed. 237, and Southern Ry. Co. v. Reid, 222 U.S. 424, 32 Sup.Ct. 140, 56 L.Ed. 257, in our opinion, sustain it.

It is beyond question that, where Congress has legislated in respect to either foreign or interstate commerce, no state or other subordinate legislation upon the same subject is of any validity. But we find no legislation of Congress with respect to the place or places within any harbor of the United States where any kind of explosives shall be handled, kept, or stored. Section 4278 above cited makes it unlawful to transport, carry, or convey, ship, deliver on board, or cause to be delivered on board, certain specified kinds of explosives, including nitroglycerin, upon or in any vessel or vehicle used or employed in transporting passengers by land or water, between a place in any foreign country and a place within the limits of any state, territory, or district of the United States, or between a place in one state, territory, or district of the United States and a place in any other state, territory or district thereof; and section 4279 of the same Statutes makes it unlawful to ship, send, or forward any quantity of such explosives by a vessel or vehicle of any description, by land or water, between a place in a foreign country and a place within the United States, or between a place in one state, territory, or district of the United States, and a place in any other state, territory, or district thereof, unless the same shall be securely inclosed, deposited, or packed in a certain prescribed way; and the next section-- 4280 (section 8018)-- declares that the two preceding sections shall not be so construed as to prevent any state, territory, district, city, or town within the United States from regulating or from prohibiting the traffic in or transportation of those substances between persons or places lying or being within their respective territorial limits, or from prohibiting the introduction thereof into such limits for sale, use, or consumption therein.

In all this we see nothing in any way relating to the place or places in any harbor of the United States where any kind of an explosive in course of foreign or intrastate commerce shall be placed, kept, or stored; and while, as has been said, it is beyond question that where Congress has legislated in respect to either foreign or interstate commerce no state or other subordinate legislation upon the same subject is of any validity, yet we understand the law to be that, where Congress is silent, the state may legislate in aid of, but without burdening, both foreign and interstate commerce. Such we understand to be the effect of the last of the decisions above cited of the Supreme Court, where, at page 436...

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