Union Ins. Co. v. Shaw

DILLON, Circuit Judge. Concurring as we do m the main with the views expressed in the opinion of the district judge dismissing the libels, it is not necessary to discuss the questions presented at any considerable length. Upon the record it is not at all material to determine whether the ninth and tenth sections of the act of August 30, 1852 (10 Stat. 61), in respect to the number of passengers vessels are permitted to carry, apply to steamers navigating inland rivers. It was determined in this circuit, in 1855, that this portion of the act does not apply to steamboats plying on the Mississippi river. But if it. [583] were conceded that it is otherwise, the result in these cases would be the same, for upon examining the evidence we are not satisfied that in fact the boat had more than one hundred deck passengers (that being the number limited in the inspector’s certificate) at the time of the disaster. Nor does it appear, on the supposition that there may have been more than one hundred such passengers on board, that this circumstance caused the fire, or that it materially interfered with the efforts to extinguish it, or contributed to the loss of the boat and cargo. NOTE. No appeal to the supreme court was prayed. The proposition ruled in 1855, upon the act of 1852, mentioned in the opinion, was decided by Mr. Justice Catron and District Judge Wells. The next question made arises upon the fifth section of the act of July 25,1866, which provides “that cotton, hemp, hay, straw, or other ignitible commodity, shall not be carried on the decks or guards of any steamer carrying passengers, unless the same shall be protected by a complete and suitable covering of canvass or other proper material, to prevent ignition from sparks, under a .penalty of,” etc. 14 Stat. 227. The hay was piled up in the engine or deck room, in the manner stated in the opinion of the district court, reaching from the floor to the carlings or ceiling, and surrounded by sacks of oats and grain, piled up in like man-. ner, and stripped with plank to keep them steady. The hay was not covered with tarpaulins or canvass. The point is made by the respondents, that the hay being thus placed in the engine or deck room, which was shown to have been enclosed by bulkheads, was not upon “the decks or guards” of the steamer within the meaning of the section of the act of congress above mentioned. The district court expressed on this subject a contrary opinion, and its view has much to recommend it as tending to the security of life and property, which was the object of the legislative provision. But without entering into an examination of this question, we place our judgment of af-firmance upon the ground which we shall proceed briefly to state. The evidence satisfies us that the hay, surrounded and protected as it was by a tier of grain in sacks (made of burlaps or jute-cloth), on each side, and two or more tiers of such sacks on each end, was thereby rendered more secure from fire than it would have been if simply covered with canvass. The act of congress does not prescribe all the modes in wnich the ignitible commodities shall be protected. The protection must be complete and suitable, whatever mode is adopted. This may be by canvass; but any other mode is sufficient if it affords an equivalent protection and is complete and suitable, that is, adapted to the risk of fire and the degree of exposure. The material out of which these sacks are made is-shown not to be easily ignited; it will char, but not burn into a flame when surrounding grain. All the witnesses concur in stating that the hay surrounded and covered by sacks in the manner shown by the testimony was more secure from fire than if it had been completely covered with canvass or tarpaulins. The evidence leaves the origiD and cause of the fire in uncertainty. It either originated in some unknown manner in the hold and thence extended to the hay through the old pump hole, -or it was caused by some deck passengers who had displaced, without.the knowledge of the officers, some sacks, and had in this way obtained access to the top of the bales of hay. I confess that the circumstances of the burning rather impress me with the conviction that the fire originated in the hold; but it is shrouded in mystery and wholly unexplained. The libellants base their right to a recovery wholly upon negligence of the officers of the boat, which, they claim, caused the fire, and consequently the loss of which they complain. The burden of proof is upon them to-establish the proposition of fact that it was owing to the negligence of the officers of the boat that the fire was caused; and it is our judgment that the evidence falls very far short of doing this. See Transportation Co. v. Downer, 11 Wall. [78 U. S.] 129; Railroad Co. v. Reeves, 10 Wall. [77 U. S.] 176, 190. Affirmed.