The Elmbank

• Decision Date: 11 June 1894
• Docket Number: 10,639.
• Citation: 62 F. 306
• Court: U.S. District Court — Northern District of California
• Parties: THE ELMBANK. v. THE ELMBANK et al. PRICE

62 F. 306

THE ELMBANK.

PRICE v. THE ELMBANK et al.

No. 10,639.

United States District Court, N.D. California.

June 11, 1894

Walter G. Holmes and Howell A. Powell, for libelant.

Andros & Frank, for claimants.

MORROW District Judge.

This action is brought to recover for salvage services alleged to have been rendered in June, 1893, to the ship Elmbank and her cargo, consisting of about 2,000 tons of sulphur, by Thomas Price, a chemist, in extinguishing a fire which had started in the sulphur stowed in the hold of the vessel, and which had baffled the efforts of the fire department of this city assisted by three steam tugs, to place it under control by the use of water. The salvage services claimed to have been rendered consisted of skillful labor and the scientific application of chemical compounds which, it is claimed, was the only practical and efficient method of arresting the fire and saving the vessel and cargo from total loss and destruction.

The Elmbank is a British vessel constructed or iron, and of about 2,188 tons burden. She is 279 feet long; 41.9 feet beam; her depth of hold-- that is, the cargo capacity-- is 24.2 feet comprising the lower hold, which has a depth of about 16 feet, and the between decks, of about 8 feet. She had a cargo consisting of about 2,000 tons of sulphur and 1,100 tons of coal. The coal was stowed in two sections,-- one, of about 500 tons, was stowed in the forward part of the vessel, in front of what is known as the collision bulkhead, and the other section was stowed in the after part of the vessel,-- while the sulphur, which comprised the principal part of the cargo, was stowed in the lower hold and between decks. The sulphur was contained in bags or mats, stowed in tiers from side to side of the vessel as high as the between decks leaving a space of about seven or eight feet from the upper deck, except under the hatches, where the bags were piled up to the hatch, forming a sort of column. The discharging of the vessel had been going on for about a day and a half when the fire was discovered. All the coal had been taken out, and some 200 or 300 tons of sulphur had also been discharged from the between decks, out of hatch No. 2, and 10 or 12 tons of sulphur had been taken from the lower hold out of the same hatch. The vessel was lying at Union street wharf. The stevedore and his gang had ceased operations about noon of Saturday, June 10, 1893, to partake of their midday meal. The fire was discovered about 12:15, and the records of the city fire department show that the alarm was sounded at 12:17 p.m. The fire seems to have spread very rapidly, for, when the engines of the fire department arrived at the wharf, dense volumes of yellow smoke were issuing from the hatches and from such other avenues of escape as there were. Five engines answered the call,-- Nos. 1, 2, 5, 9, and 12. The latter engine is the most powerful in the service of the department. The city's fire boat also attended, as well as tugs owned by private parties, equipped particularly for the purpose of rendering efficient service to shipping on fire. The officers of the fire department promptly proceeded to contend with the fire. They directed streams of water into the hold of the vessel through the hatches. An attempt was made to descend into the hold, but the firemen were driven back by the suffocating smoke. All the hatches were opened; hatch No. 1 only partially. It seems that the streams were introduced through three of the hatches. Altogether some eight or ten streams of water were flowing into the hold. The chief of the fire department concluded that the seat of the fire was in the neighborhood of the large hatch, designated as No. 3. Later developments proved that he was correct, although he may have been mistaken as to the exact locality of the most violent section of the combustion. Finding that, in spite of the large quantity of water that was being poured into the hold, the fire was gaining, two holes were cut by the fire department in the deck, for the purpose of getting more directly at the seat of the fire. This, it seems, was suggested some 20 minutes after the engines had arrived. As the decks were of steel, the work of cutting holes proved a laborious and slow undertaking.

The task occupied about three-fourths of an hour, and, after all, so far as discovering the center of the fire, seems to have been fruitless. One of these holes was cut between hatches Nos. 2 and 3, in the middle of the deck; the other, abaft the main or No. 3 hatch. Pipes were inserted in these apertures, and the fire department did all it could, with the appliances it had at command, to extinguish the fire, without avail. The fire was not even arrested, but appeared to be increasing.

The Firemen's Fund Insurance Company, it appears, holds the insurance on the cargo of sulphur. Mr. Dutton, the vice president and manager of this company, had been advised of the fire when the alarm was sounded. He arrived at the wharf, in company with another gentleman, Mr. Smith, between 1:30 and 2 o'clock in the afternoon, and found the fire department hard at work pouring in water, and then engaged, also, in cutting a hole in the deck just abaft of hatch No. 3. Upon ascertaining that the fire department had not made any progress in checking the fire, Mr. Dutton, after remaining for 10 or 15 minutes, determined to call upon Prof. Price for assistance. To use his own words:

'It did not seem to me that that was the most satisfactory (way) to extinguish a fire of that kind. My idea was that it would be far better than scuttling the ship to extinguish the fire with chemicals.'

He recalled the fact that Prof. Price had officiated in a like capacity some years previously, and had succeeded in extinguishing a fire in a cargo of lime in the bark Whistler. Mr. Dutton repaired without further delay to the laboratory of Prof Price. What passed between these two gentlemen is thus testified to: Mr. Price says:

'I was in my office, and Mr. Dutton, vice president of the Firemen's Fund Insurance Company, came there, and said that there was a ship lying off the wharf at Union street, having some 2,000 tons of sulphur on board, and it was on fire, and the fire department had been there since soon after the fire had been observed, something approximating three hours, and, instead of the fire being extinguished, it was gaining. They were also pumping water into her from three tugs,-- the Fearless, the Governor Markham, and the Relief; still they did not seem to be doing any good. He said he wanted me to come down; that he remembered I had, several years ago, put out a fire on a vessel that came into this port in distress, being on fire. He thought if I came down there I would be of assistance to the ship. We both jumped into a carriage that he brought up with him. On the way down towards the wharf where the ship was lying we talked on several matters. About half way down, if I remember rightly, he asked me what I was going to charge for my services, if I had any to give. I told him I would not mention any price. I would charge for the work. I did not know. It was dangerous work. I did not know how long a time it would take me to put out the fire, and to what danger I might be exposed, but I would take my chance on salvage to get what I would be entitled to if I rendered any assistance of value, or nothing if I did not render any assistance.'

It will be observed that the witness states that the conversation as to 'salvage' took place on their way down to the fire. Mr. Dutton testifies as follows:

'I went in, in company with Mr. Smith. Saw the professor there, at work in his laboratory with his son. I said: 'Professor, there is a ship with a load of sulphur on fire down at the Union street wharf. The fire department are pouring water into her, and it does not seem to me that is the way to put it out. Is it not a better way to extinguish that with chemicals?' He said: 'Of course it is. It is the only way to do it.' I said: Can you come down and take hold as you did in case of the Whistler, and put the fire out?' He said: 'Certainly I can.' I asked him to hurry up and put on his coat and come down; that I had a wagon outside that would take him down. I told him that I had suggested to them down there that I was going up after him, and would bring him down. He started getting his matters at which he was at work in shape so that he could leave them. While he was washing his hands in a basin in the corner of the room, in his shirt sleeves, I said: 'Professor, what are you going to charge us for this,-- to put out the fire?' He laughed and said: 'I will charge you-- I will charge you what you gentlemen call salvage,' I kind of hesitated at that. He laughed and said: 'Oh, well, there will be no trouble about our coming to an arrangement, Mr. Dutton.' I said: 'No, professor; I guess there will be no trouble about that. We will come to an arrangement easy enough.' He said: 'Yes; it will depend on the amount of work I have to do how much I will charge.' We then got in the wagon, the three of us, drove over past my office, and there I got out to tell them I was going down with Prof. Price to the fire, and Mr. Smith got out and left us.'

Mr. Smith, the gentleman who accompanied Mr. Dutton into the laboratory of Prof. Price, states:

'In his office Mr. Dutton spoke to him about the fire, and told him the ship was on fire,-- a ship loaded with sulphur. Told him the general condition, and asked him if he could put it out. He said: 'Yes, I can put it out;' and he said he would charge him salvage. He spoke it in that sort of a careless, offhand way. He was washing his hands at the time. Q. Was that remark made in reply to any question which Mr. Dutton asked him in

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