Workman v. New York/Dissent Gray

by Horace Gray

United States Supreme Court

179 U.S. 552

Workman  v.  New York

 Argued: April 20, 1897. --- Decided: for reargument November 7, 1898

Mr. Justice Gray, for himself and Mr. Justice Brewer, Mr. Justice Shiras and Mr. Justice Peckham, dissenting:

We are unable to concur in this decision; and the case appears to us of such importance as to warrant, if not to require, a statement of the grounds of our dissent.

The question presented by the record is whether the owner of a vessel lying at a dock in the port of New York can maintain a libel in admiralty in personam against the city of New York for an injury to his vessel from being run into through the negligence of those in charge of a fire-boat, owned by the city and in the custody and management of its fire department, while hastening to assist in putting out a fire raging in a building at the head of the dock.

We had supposed it to be well settled, on authority and on principle, that no private suit could be maintained against a municipal corporation for an injury to person or property caused by negligence of members of its fire department while engaged in the performance of their official duties.

How far a municipal corporation may be held liable to a private action for the neglect of itself, or of its officers, in the performance of duties imposed upon it or upon them by law, is a subject upon which, in some of its aspects, there has been much difference of opinion in the courts of this country.

The difference has been most marked in actions against a city for injuries from a defect in a highway which the city is bound by its charter to repair. Such actions, when not expressly given by statute, have been held not to be maintainable by the courts of the New England states, and by those of New Jersey, Michigan, Wisconsin, South Carolina, Arkansas, and California; but have been held to be maintainable by the courts of every other state in which the question has arisen. The decisions upon that point, in either class of states, are fully collected in 1 Shearman & Redfield on Negligence, 5th ed. §§ 258, 289.

What kinds of cases may fall within the same rule has been the subject of much doubt and discussion. But it has never, so far as we are aware, been held by the highest court of any state, that an action at law may be maintained against a municipal corporation for an injury to person or property caused by the negligence of the members of its fire department while engaged in the line of their duty.

It is not only in states whose courts hold that, unless authorized by express statute, no action can be maintained against a city for the neglect of itself or its officers to keep a highway in repair-as throughout New England, and in New Jersey, Wisconsin, and California-that no action has been held to be maintainable against a city for negligence of members of its fire department while discharging their duty as such. Hafford v. New Bedford (1860) 16 Gray, 297; Fisher v. Boston (1870) 104 Mass. 87, 6 Am. Rep. 196; Pettingell v. Chelsea (1894) 161 Mass. 368, 24 L. R. A. 426, 37 N. E. 380; Burrill v. Augusta (1886) 78 Me. 118, 58 Am. Rep. 788, 3 Atl. 177; Edgerly v. Concord (1879) 59 N. H. 78, and (1882) 62 N. H. 8; Welsh v. Rutland (1883) 56 Vt. 228, 48 Am. Rep. 762; Dodge v. Granger (1892) 17 R. I. 664, 15 L. R. A. 781, 24 Atl. 100; Jewett v. New Haven (1871) 38 Conn. 368, 9 Am. Rep. 382; Wild v. Paterson (1885) 47 N. J. L. 406, 1 Atl. 490; Hayes v. Oshkosh (1873) 33 Wis. 314, 14 Am. Rep. 760; Howard v. San Francisco (1875) 51 Cal. 52.

But the same view has prevailed in those states where a different view is taken of the question of the liability of cities for defects in highways and bridges. In the states of New York, Pennsylvania, Ohio, Illinois, Kentucky, Missouri, Mississippi, Iowa, Minnesota, Nebraska, and Washington (as appears in Shearman and Redfield on Negligence, ubi supra) cities are held liable to private actions for damages from defects in highways. Yet in each of those state it has been adjudged that cities are not liable to actions for negligence of members of their fire department engaged in the line of their duty.

In the case at bar, the decree of the district court in favor of the libellant against the city of New York proceeded upon the ground that by the local law of New York an action could be maintained against the city by the owner of property injured by the negligence of members of its fire department. The circuit court of appeals came to the opposite conclusion; and upon careful examination of the New York decisions we are satisfied that the circuit court of appeals was right upon that question.

In the court of appeals of the state of New York, the law has long been settled that a municipal corporation having a charter from the state, which requires it to construct and maintain highways and bridges, is liable to a person suffering injury in person or property by a defect in the construction or repair of either by the negligence of the commissioner of highways. Hutson v. New York (1853) 9 N. Y. 163, 59 Am. Rep. 526; Conrad v. Ithaca (1857) 16 N. Y. 158, 161; Requa v. Rochester (1871) 45 N. Y. 129, 6 Am. Rep. 52; Hume v. New York (1878) 74 N. Y. 264; Ehrgott v. New York (1884) 96 N. Y. 264, 48 Am. Rep. 622; Hughes v. Monroe County (1895) 147 N. Y. 49, 57, 39 L. R. A. 33, 41 N. E. 47; Missano v. New York (1899) 160 N. Y. 123, 54 N. E. 744.

But that court has constantly held otherwise in regard to negligence of members of the fire department, the police department, or even of the department of public charities, of public health, or of public instruction.

In Maxmilian v. New York (1875) 62 N. Y. 160, 20 Am. Rep. 468, which has always been considered a leading case, Judge Folger, delivering the unanimous judgment of the court, said: 'There are two kinds of duties which are imposed upon a municipal corporation: One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public, and is used for public purposes. . . . The former is not held by the municipality as one of the political divisions of the state; the latter is. In the exercise of the former power, and under the duty to the public which the acceptance and use of the power involves, a municipality is like a private corporation, and is liable for a failure to use its power well, or for an injury caused by using it badly. But where the power is intrusted to it as one of the political divisions of the state, and is conferred, not for the immediate benefit of the municipality, but as a means to the exercise of the sovereign power for the benefit of all citizens, the corporation is not liable for nonuser nor for misuser by the public agents.' 62 N. Y. 164, 165, 20 Am. Rep. 469, 470. The previous decisions holding municipal corporations liable to private actions for defects in highways or bridges were placed upon the ground that 'the duty of keeping in repair streets, bridges, and other common ways of passage, and sewers, and a liability for a neglect to perform that duty, rests upon an express or implied acceptance of the power, and an agreement so to do. It is a duty with which the city is charged for its own corporate benefit, to be performed by its own agents, as its own corporate act.' 62 N. Y. 170, 20 Am. Rep. 474. But it was adjudged that the city was not liable for a personal injury caused by the negligence of the driver of an ambulance employed by the commissioners of public charities and correction, because the powers and duties of those commissioners were such as were to be exercised and performed, in every local political division of the state, not for the peculiar benefit of that division, but for the whole public, in the discharge of its duty to care for paupers, lunatics, and prisoners. 62 N. Y. 168.

In Ham v. New York (1877) 70 N. Y. 459, the decision in Maxmilian's Case was approved, and was followed in holding that the city was not liable to one whose property was injured in consequence of the negligent construction of a schoolhouse by the department of public instruction of the city.

More directly in point is Smith v. Rochester (1879) 76 N. Y. 506, in which it was held that no action against the city could be maintained by a person injured by the negligent driving of a hose cart along the street, pursuant to a vote of the city council directing the fire department to assemble in front of the city hall at midnight as part of a celebration of the centennial anniversary of the National Independence. The judgment was put, not only upon the ground that the city had no authority to employ the horses and wagons of the fire department for a midnight parade of the fire department to celebrate the centennial anniversary of the nation, but upon the additional and distinct ground that assuming that the city had such authority under the statutes of New York, 'the difficulty in maintaining the plaintiff's action is the well-settled rule, that a municipal corporation is not liable for the negligence of firemen while engaged in the line of their duty.' 76 N. Y. 513.

In Terhune v. New York (1882) 88 N. Y. 247, it was held that an officer of the fire department could not maintain an action against the city for his wrongful dismissal from office by the fire commissioners, because, as was said by Judge Earl, citing the cases of Maxmilian, of Ham and of Smith, above referred to, 'the fire commissioners were public officers, and not agents of the city.' 88 N. Y. 251. See also Springfield F. & M. Ins. Co. v. Keeseville (1895) 148 N. Y. 46, 30 L. R. A. 660, 42 N. E. 405.

Quite in line with these decisions is Farley v. New York (1897) 152 N. Y. 222, 227, 46 N. E. 560, which was an action by the driver of a hose carriage against the city to recover damages for injuries caused by driving against an obstruction in the highway. The New York statute of 1882, chap. 410 (consolidating the laws affecting public interests in the city of New York), provides in § 444 that 'the officers and men of the fire department, with their apparatus of all kinds, when on duty, shall have the right of way at any fire, and in any highway, street, or avenue, over any and all vehicles of any kind, except those carrying United States mail;' and in § 1932 that no person shall drive or ride any horse through any street in the city faster than 5 miles an hour. The court of appeals, speaking by Chief Justice Andrews, said: 'The safety of property and the protection of life may, and often do, depend upon celerity of movement, and require that the greatest practicable speed should be permitted to the vehicles of the fire department in going to fires. Section 1932 was intended to regulate the speed of horses traveling on the streets and using them for the ordinary purposes of travel, and from the nature of the exigency cannot apply to the speed of vehicles of the fire department on their way to fires.' The further decision that negligence on the part of the driver would defeat his action against the city has no tendency to show that such negligence could render the city liable to third persons.

In the very recent case of Missano v. New York, 160 N. Y. 123, 54 N. E. 744, in which it was held that keeping the streets clean stood upon the same ground as keeping them in repair, and that the city was therefore liable for a personal injury caused by the negligence of the driver of an ash cart of the street-cleaning department, the court again affirmed the established distinction between such cases and those in which the corporation exercised a public and governmental power for the benefit of the whole public and as the delegate and representative of the state; and quoted with approval the statement of Judge Wallace in a similar case in the circuit court of the United States, where, speaking of the commissioner of the street-cleaning, he said: 'His duties, unlike those of the officers of the departments of health, charities, fire, and police, although performed incidentally in the interest of the public health, are more immediately performed in the interest of the corporation itself which is charged with the obligation of maintaining its streets in fit and suitable condition for the use of those who resort to them.' Barney Dumping-Boat Co. v. New York (1889) 40 Fed. Rep. 50. See also Hughes v. Auburn (1899) 161 N. Y. 96, 103, 104, 46 L. R. A. 636, 55 N. E. 389, and the decisions of the district court of the United States for the southern district of New York in Haight v. New York (1885) 24 Fed. Rep. 93, and in Edgerton v. New York (1886) 27 Fed. Rep. 230.

The highest courts of the states of Pennsylvania, Ohio, Illinois, Kentucky, Missouri, Mississippi, Iowa, Minnesota, Nebraska, and Washington also, as already mentioned, have adjudged that no private action can be maintained to recover damages against a city for an injury caused by negligence of members of its fire department while engaged in their official duties. The decisions are so uniform, and treat the point as so well settled, that it is enough to cite them, without stating them in detail. They are as follows: Knight v. Philadelphia (1884) 15 W. N. C. 307; Fire Ins. Patrol v. Boyd (1888) 120 Pa. 624, 646, 1 L. R. A. 417, 15 Atl. 553; Kies v. Erie (1890) 135 Pa. 144, 149, 19 Atl. 942; Frederick v. Columbus (1898) 58 Ohio St. 538, 546, 51 N. E. 35; Wilcox v. Chicago (1883) 107 Ill. 334, 338-340, 47 Am. Rep. 434; Greenwood v. Louisville (1877) 13 Bush, 226, 26 Am. Rep. 263; Davis v. Lebanon (1900) 22 Ky. L. Rep. 384, 57 S. W. 471; Heller v. Sedalia (1873) 53 Mo. 159, 14 Am. Rep. 444; McKenna v. St. Louis (1878) 6 Mo. App. 320; Alexander v. Vicksburg (1891) 68 Miss. 564, 10 So. 62; Saunders v. Fort Madison (1900; Iowa) 82 N. W. 428; Grube v. St. Paul (1886) 34 Minn. 402, 26 N. W. 228; Gillespie v. Lincoln (1892) 35 Neb. 34, 46, 16 L. R. A. 349, 52 N. W. 811; Lawson v. Seattle (1893) 6 Wash. 184, 33 Pac. 347.

The law on this point, as understood and administered throughout the country by the highest courts of all the states in which the question has arisen, is unqualifiedly recognized by the principal text writers. Mr. Dillon for instance, after observing that 'police officers appointed by a city are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties,' goes on to say: 'So, although a municipal corporation has charter power to extinguish fires, to establish a fire department, to appoint and remove its officers, and to make regulations in respect to their government and the management of fires it is not liable for the negligence of firemen appointed and paid by it, who, when engaged in their line of duty upon an alarm of fire, ran over the plaintiff, in drawing a hose-reel belonging to the city, on their way to the fire; nor for injuries to the plaintiff, caused by the bursting of the hose of one of the engines of the corporation, through the negligence of a member of the fire department; nor for like negligence whereby sparks from the fire engine of the corporation caused the plaintiff's property to be burned. The exemption from liability, in these and the like cases, is upon the ground that the service is performed by the corporation in obedience to an act of the legislature; is one in which the corporation, as such, has no particular interest, and from which it derives no special benefit in its corporate capacity; that the members of the fire department, although appointed, employed, and paid by the city corporation, and not the agents and servants of the city for whose conduct it is liable; but they act rather as officers of the city, charged with a public service, for whose negligence in the discharge of official duty no action lies against the city without being expressly given; the maxim of respondeat superior has therefore no application.' 2 Dill. Mun. Corp. 4th ed. §§ 975, 976. See also 1 Shearm. & Redf. Neg. § 265; Tiedeman, Mun. Corp. § 333a; 1 Beach, Pub. Corp. § 744; 13 Am. & Eng. Enc. Law, 2d ed. p. 78.

The libellant relied on Mersey Docks & Harbour Board v. Gibbs, L. R. 1 H. L. 93, in which the members of the town council of Liverpool and their successors, who had been formed by acts of Parliament into a corporation by the style of the Trustees of the Liverpool Docks, were held liable to an action for an injury to a vessel from a bank of mud which had been negligently suffered to remain in the docks. That decision proceeded upon the ground that the trustees of the docks were one of those corporations formed for trading and other profitable purposes, and in their very nature substitutions on a large scale for individual enterprise; supplying to those using the docks the same accommodation and the same services that would have been supplied by ordinary dock proprietors to their customers; and being paid for such accommodation and services sums of money, constituting a fund which, although not belonging to them for their own use, was devoted to the maintenance of the works, and presumably to pay claims against the corporation for injuries caused by their negligence. See L. R. 1 H. L. 105-107, 122. It was of such bodies, that Lord Cranworth, after observing that the fact that the appellants, in whom the docks were vested, did not collect tolls for their own profit, but merely as trustees for the benefit of the public, made no difference in principle in respect to their liability, went on to say: 'It would be a strange distinction to persons coming with their ships to different ports of this country, that in some ports, if they sustain damage by the negligence of those who have the management of the docks, they will be entitled to compensation, and in others they will not; such a distinction arising, not from any visible difference in the docks themselves, but from some municipal difference in the constitution of the bodies by whom the docks are managed.'

But the city of New York, in establishing and carrying on a fire department, is not a substitution for individual enterprise; nor does it perform any such services as ordinary individuals might perform to their customers; nor does it receive any compensation for the use of the fire-boat, or from those benefited by the acts of the fire department.

The decisions of this court contain nothing, to say the least, inconsistent with the conclusion that no action at law could be maintained in such a case as this.

This court, taking the same view of the liability of municipal corporations to actions at law for injuries caused by defects in highways or bridges, which has prevailed in New York and in most of the states, has held that an action of that kind may be maintained in the courts of the District of Columbia (Weightman v. Washington (1861) 1 Black, 39, 17 L. ed. 52; Barnes v. District of Columbia (1875) 91 U.S. 540, 23 L. ed. 440; District of Columbia v. Woodbury (1890) 136 U.S. 450, 34 L. ed. 472, 10 Sup. Ct. Rep. 990; Bauman v. Ross (1897) 167 U.S. 548, 597, 42 L. ed. 270, 291, 17 Sup. Ct. Rep. 966); or in the courts of a territory (Nebraska City v. Campbell (1862) 2 Black, 590, 17 L. ed. 271); or in the circuit court of the United States held in a state whose courts maintain such an action, as in New York (New York v. Sheffeld (1866) 4 Wall. 189, 18 L. ed. 416); in Illinois (Chicago v. Robbins (1862) 2 Black, 418, 17 L. ed. 298 and (1866) 4 Wall. 657, 18 L. ed. 427, and Evanston v. Gunn (1878) 99 U.S. 660, 25 L. ed. 306; in Virginia (Manchester v. Ericsson (1881) 105 U.S. 347, 26 L. ed. 1099); or in Ohio (Cleveland v. King (1889) 132 U.S. 295, 33 L. ed. 334, 10 Sup. Ct. Rep. 90); but that in a state where, as in Michigan, its highest court holds that a municipal corporation is not liable to such an action, no such action will lie in the circuit court of the United States, because, as was said by Mr. Justice Brewer in delivering judgment, the question 'is not one of general commercial law; it is purely local in its significance and extent.' Detroit v. Osborne (1890) 135 U.S. 492, 498, 34 L. ed. 260, 262, 10 Sup. Ct. Rep. 1012.

In the leading case of Weightman v. Washington, which was an action against the city of Washington for injuries caused by a defect in a bridge, the court said: 'In view of the several provisions of the charter, not a doubt is entertained that the burden of repairing or rebuilding the bridge was imposed upon the defendants in consideration of the privileges and immunities conferred by the charter.' 1 Black, 51, 17 L. ed. 57. And the court took occasion, by way of precaution, to observe that powers granted by the legislature to a municipal corporation to pass ordinances prescribing and regulating the duties of policemen and firemen 'are generally regarded as discretionary, because, in their nature, they are legislative; and although it is the duty of such corporations to carry out the powers so granted and make them beneficial, still it has never been held that an action on the case would lie against the corporation, at the suit of an individual, for the failure on their part to perform such a duty.' 1 Black, 49, 17 L. ed. 57.

In Barnes v. District of Columbia, the action was for a defect in a street in the District of Columbia, constituted a municipal corporation by the act of Congress of February 21, 1871, chap. 62, which vested in a board of public works appointed by the President, the entire control and regulation of the streets, avenues, and alleys of the city. 16 Stat. at L. 419, 427. The decision proceeded upon the ground that the care of the streets was 'peculiarly a municipal duty,' and that the board of works, being charged by Congress with the exclusive control of the streets, was, in that respect, like an ordinary agent of the city, and its proceedings were proceedings of the city. 91 U.S. 547, 555, 23 L. ed. 442, 445.

But there is no ground for assuming that the duty of putting out fires was imposed upon the city of New York 'in consideration of the immunities and privileges conferred by the charter,' or was 'peculiarly a municipal duty.'

In Bowditch v. Boston (1879) 101 U.S. 16, 25 L. ed. 980, it was adjudged that no action would lie, either at common law or by statute, against the city of Boston to recover damages for the destruction of a building, blown up under a general order of the chief engineer of the city to prevent the spreading of a conflagration; that the action, not being maintainable at common law, could only be supported by an express statute; and that the statutes of Massachusetts, as construed by the highest court of the state, did not authorize such an action against the city, except for the destruction of a building by specific order of three firewards or engineers acting jointly. In support of the position that the action would not lie at common law, this court relied on the ancient rule, as stated by Coke, that 'for the commonwealth a man shall suffer damage; as, for saving of a city or town, a house shall be plucked down if the next be on fire; . . . and a thing for the commonwealth every man may do without being liable to an action.' Case of the King's Prerogative in Saltpetre, 12 Coke, 12, 13. The expression 'the commonwealth' was evidently used by Coke as equivalent to 'the common weal' or 'the public welfare;' for he added, after the proposition above quoted, 'as it is said in 3 H. VIII. fol. 15,' evidently intending to refer to the Year Book of 13 Hen. VIII. 15, 16, in which the rule is introduced by the words 'the common wealth shall be preferred before private wealth;' and in a statement of the rule in a case in 29 Hen. VIII. the corresponding expression is 'the common weal.' Maleverer v. Spinke, 1 Dyer, 35b, 36b.

The precise question whether a municipal corporation is liable to an action at law for injuries caused by negligence of members of its fire department has never been decided or considered by this court.

But the principles affirmed and illustrated in the authorities already cited forbid the maintenance of a private action against a municipal corporation for injuries caused by the negligence of members of a fire department, while engaged in the performance of their official duties.

The putting out of fires which are in danger of spreading is for the benefit of the whole public, and for the protection of the property of all. The danger is so great and imminent that it is especially one of those cases in which the public safety must be preferred to private interests. Salus populi suprema lex. It is the public good, the general welfare, that justifies the destruction of neighboring buildings to prevent the spreading of a fire which as yet rages in one building only. The duty of protecting, so far as may be, all property within the state against destruction by fire, is a public and governmental duty, which rests upon the government of the state; and it does not cease to be a duty of that character because the state has delegated it to, or permitted it to be performed by, a municipal corporation. When intrusted by the legislature to a municipal corporation, a political division of the state, it is not for the peculiar benefit of that corporation or division, but for its benefit in common with the whole public. A fire department is established in a municipality, not merely for the protection of buildings and property within the municipality itself, but equally for the protection of buildings and property beyond its limits, to which a fire originating within those limits may be in danger of spreading. Moreover, the necessity and appropriateness of the course and measures to be taken to stay a conflagration must be promptly determined, in the first instance, by those charged with the performance of the duty at the time of the exigency; and often cannot be as accurately judged of long after the fact. The members of the fire department of a city, therefore, whether appointed by the municipal corporation or otherwise, are not mere agents or servants of the corporation, but are public officers charged with a public service; and for their acts or their negligence in the performance of this service no action lies against the corporation, unless expressly given by statute.

It appears to us to be equally clear that no suit upon a like cause of action can be maintained in a court of admiralty; or, as expressed by the circuit court of appeals in this case: 'That the suit is brought in a court of admiralty instead of a common-law court, and that the negligence consisted in the improper navigation of the vessel, are considerations which cannot affect the conclusion.' 14 C. C. A. 531, 35 U.S. App. 204, 67 Fed. Rep. 348.

It was argued that all the admiralty courts of the United States should be governed by one rule of maritime law, without regard to local dicisions. Such is doubtless the case in the courts of admiralty, as it is in the other courts of the United States, upon questions of general commercial law. Liverpool & G. W. Steam Co. v. Phenix Ins. Co. (1889) 129 U.S. 397, 443, 32 L. ed. 788, 793, 9 Sup. Ct. Rep. 480. Courts of admiralty are also governed by their own rules, and not by the common law or by local statute, in matters affecting their own jurisdiction and procedure, as, for instance, in regard to the rules of navigation in navigable waters (The New York v. Rea (1855) 18 How. 223, 15 L. ed. 359), to the limitation of the liability of shipowners (Butler v. Boston & S. S. S.C.o. (1889) 130 U. SL 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612); to the duration, the enforcement, and the marshaling of maritime liens (The Chusan (1842) 2 Story, 455, 462, Fed. Cas. No. 2717; The Lottawanna (1874) 21 Wall. 558, sub nom. Rodd v. Heartt, 22 L. ed. 654; The J. E. Rumbell (1893) 148 U.S. 1, 17, 37 L. ed. 345, 349, 13 Sup. Ct. Rep. 498); and to the effect of contributory negligence of a suitor upon his right to recover, and upon the assessment of damages. Atlee v. Northwestern Union Packet Co. (1874) 21 Wall. 389, 395, 22 L. ed. 619, 621; The Max Morris (1890) 137 U.S. 1, sub nom. The Max Morris v. Curry, 34 L. ed. 586, 11 Sup. Ct. Rep. 29. But the decision of this case does not turn upon any such question.

By the general admiralty law of this country, often declared by this court, a ship, by whomsoever owned or navigated, is liable for an actionable injury resulting from the negligence of her master or crew to another vessel. United States v. The malek Adhel (1844) 2 How. 210, 233, 234, 11 L. ed. 239, 249; The China (1868) 7 Wall. 53, 68, sub nom. The China v. Walsh, 19 L. ed. 67, 75; Ralli v. Troop (1895) 157 U.S. 386, 403, 39 L. ed. 742, 750, 15 Sup. Ct. Rep. 657; The John G. Stevens (1898) 170 U.S. 113, 120, 42 L. ed. 969, 972, 18 Sup. Ct. Rep. 544. But that does not warrant the inference that a libel in personam can be maintained against the owner for a tort which would neither sustain a libel in rem against the ship, nor an action at law against her owner.

There is no case, we believe, in which a libel in admiralty has been maintained by this court, as for a tort, upon a cause of action on which, by the law prevailing throughout the country, no action at law could be maintained. On the contrary, it has repeatedly held that, as no action lies at common law for the death of a human being, no suit for a death caused by the negligence of those in charge of a vessel on navigable waters, either within a state or on the high seas, can be maintained in admiralty in the courts of the United States, in the absence of an act of Congress, or a statute of the state, giving a right of action therefor; and in delivering judgment in the leading case Chief Justice Waite said: 'We know of no country that has adopted a different rule on this subject for the sea from that which it maintains on the land, and the maritime law, as accepted and received by maritime nations generally, leaves the matter untouched.' 'The rights of persons in this particular under the maritime law of this country are not different from those under the common law, and as it is the duty of courts to declare the law, not to make it, we cannot change this rule.' The Harrisburg (1886) 119 U.S. 199, 213, sub nom. The Harrisburg v. Rickards, 30 L. ed. 358, 362, 7 Sup. Ct. Rep. 140; The Alaska (1889) 130 U.S. 201, sub nom. Metcalfe v. The Alaska, 32 L. ed. 923, 9 Sup. Ct. Rep. 461; The Corsair (1892) 145 U.S. 335, sub nom. Barton v. Brown, 36 L. ed. 727, 12 Sup. Ct. Rep. 949; The Albert Dumois (1900) 177 U.S. 240, 259, 44 L. ed. 751, 762, 20 Sup. Ct. Rep. 595.

The cases of The Siren (1868) 7 Wall. 152, sub nom. The Siren v. United States, 19 L. ed. 129, and The Davis (1869) 10 Wall. 15, sub nom. United States v. Douglas, 19 L. ed. 875, related wholly to claims against the United States, as compared with claims against private persons; no question of the liability of municipal corporations was contested by the parties, or alluded to by the court; and neither decision has any tendency to support the libel in the present case. In The Siren, a claim against a prize ship for damages from a collision with her while in the possession of the prize crew was sustained against the proceeds of the sale after condemnation, solely because the United States were the actors in the suit to have her condemned. So, in The Davis, salvage against goods belonging to the United States, and part of the cargo of a private ship, was allowed because the possession of her master was not the possession of the United States, and the United States could only obtain the goods by claiming them in court. In short, in each case, as Mr. Justice Miller afterwards pointed out, 'the government came into court of its own volition to assert its claim to the property, and could only do so on condition of recognizing the superior rights of others. Case v. Terrell (1870) 11 Wall. 199, 201, 20 L. ed. 134. The opinion in each of the three cases distinctly affirmed the well-settled doctrine of our law, that no suit can be maintained in a judicial tribunal against a state, or against its property, without its consent. See also Cunningham v. Macon & B. R. Co. (1883) 109 U.S. 446, 451, 27 L. ed. 992, 994, 3 Sup. Ct. Rep. 292, 609; Stanley v. Schwalby (1892) 147 U.S. 508, 512, 37 L. ed. 259, 261, 13 Sup. Ct. Rep. 418, and (1896) 162 U.S. 255, 270, 40 L. ed. 960, 965; Belknap v. Schild (1896) 161 U.S. 10, 16, 40 L. ed. 599, 601, 16 Sup. Ct. Rep. 443; Briggs v. Light-Boats (1865) 11 Allen, 156, 179-185. In England, it is equally well settled that no libel in admiralty can be maintained against the Crown, or against a foreign sovereign, or against any property of either, without his consent. See The Lord Hobart (1815) 2 Dodson Adm. 100; The Athol (1842) 1 W. Rob. Adm. 374; The Parlement Belge (1880) L. R. 5 Prob. Div. 197, in which the court of appeals, speaking by Lord Justice Brett (since Lord Esher, M. R.), reversed the exceptional decision of Sir Robert Phillimore in (1879) L. R. 4 Prob. Div. 147. The decisions that no suit can be maintained against the sovereign without his consent have certainly no tendency to support a suit against a municipal corporation for negligence in exercising powers delegated to it as a political division of the state, or to its officers, for the benefit of the whole public, and not for the benefit of the corporation only.

The cases of The Blackwall (1869) 10 Wall. 1, sub nom. The Blackwall v. Sancelito Water & Steam Tug Co. 19 L. ed. 870; The Clarita (1875) 23 Wall. 1, sub nom. The Clara Clarita v. Cox, 23 L. ed. 146, 23 Wall. 15, sub nom. New York Harbor Protection Co. v. The Clara, 23 L. ed. 150, and The Connemara (1883) 108 U.S. 352, sub nom. Sinclair v. Cooper, 27 L. ed. 751, 2 Sup. Ct. Rep. 754,-related to the rights and liabilities of private persons engaged in saving, or attempting to save, vessels from imminent danger of destruction by fire; and decided nothing as to the rights or liabilities of municipal corporations or of their firemen. In The Clarita, it was a private corporation owning a ferry boat that was held liable for negligence while engaged in an attempt to save a vessel from destruction by fire; and The Blackwall, The Clara, and The Connemara concerned the allowance of salvage to private salvors for services in putting out a fire on a vessel. In The Blackwall, the court avoided, as unnecessary to the decision, the expression of any opinion upon the question whether members of a fire department could recover salvage for such services. 10 Wall. 12, 19 L. ed. 874. It was afterwards decided by Mr. Justice Bradley, sitting in the circuit court, that they could not, because 'the firemen were merely engaged in the line of their duty,' and 'the attempt to make the performance of this duty a ground of salvage, when it is a ship that takes fire, is against wise policy.' Davey v. The Mary Frost (1876) 2 Woods, 306, Fed. Cas. No. 3,592; The Suliote (1880) 4 Woods, 19.

In The F. C. Latrobe (1886) 28 Fed. Rep. 377, in the district of Maryland, and in Giovanni v. Philadelphia (1894) 59 Fed. Rep. 303, and 10 C. C. A. 552, 17 U.S. App. 642, 62 Fed. Rep. 617, and in Guthrie v. Philadelphia (1896) 73 Fed. Rep. 688, in the eastern district of Pennsylvania, in each of which a libel in admiralty was maintained against a city for a collision with the libellant's vessel of a steamboat maintained by the city for the purpose of clearing its harbor of ice, the steamboat, at the time of the collision, was not engaged in its usual public service, but in a special service for a private benefit; and stress was laid upon that fact in each of the opinions.

The decisions of the circuit court of the United States in Massachusetts in Boston v. Crowley (1889) 38 Fed. Rep. 202, and of the district court of the United States in Connecticut, in Greenwood v. Westport (1894) 63 Conn. 587, 60 Fed. Rep. 560, were only that libels in admiralty in personam could be maintained against a city or town for injuries caused to vessels by not keeping open a draw in a bridge. It may also be observed that in Crowley's Case the decision was not in accord with the earlier decision in French v. Boston (1880) 129 Mass. 592, 37 Am. Rep. 393, and proceeded upon the assumption (38 Fed. Rep. 204) that the question was one of general municipal or commercial law upon which the courts of the United States were not bound to follow the decisions of the highest courts of the state-an assumption inconsistent with the later judgment of this court in Detroit v. Osborne, 135 U.S. 492, 498, 34 L. ed. 260, 262, 10 Sup. Ct. Rep. 1012, above cited. In Greenwood's Case the question was considered to be an open one in the courts of Connecticut; and it has since been decided the other way by the highest court of the state. 60 Fed. Rep. 569, 575, 576; Daly v. New Haven (1897) 69 Conn. 644, 38 Atl. 397.

The only instance cited at the bar, in which a libel in admiralty has been maintained in such a case as the present, is that of Thompson Nav. Co. v. Chicago (1897) 79 Fed. Rep. 984, decided by the district court for the northern district of Illinois since this suit was commenced, and avowedly a departure from the case of The Fidelity (1878) 9 Benedict, 333, Fed. Cas. No. 4,757, and (1879) 16 Blatchf. 569, Fed. Cas. No. 4,758, in the southern district of New York, in which it was held by Mr. Justice Blatchford, then district judge, and by Chief Justice Waite in the circuit court on appeal, that a libel in rem could not be maintained in admiralty against a steam tug owned by the city of New York, and under the exclusive control of the commissioners of public charities and correction, and employed in the performance of their official duties, for her collision with the libellant's vessel through the negligence of those in charge of the tug.

The duty of the state to protect the property of all from destruction by fire covers vessels in its harbors, as well as buildings within its territory. The authority of the fire department and its members as to both kinds of property is derived from the municipal law, and not from the maritime law. Ralli v. Troop, 157 U.S. 386, 419, 420, 39 L. ed. 742, 756, 15 Sup. Ct. Rep. 657. All the shipping, foreign and domestic, in the port, is under the same safeguard, and subject to the same risks. Prompt, decisive, and unembarrassed action of the firemen is necessary to the protection of both buildings and vessels from the dangers of a conflagration. The necessity of allowing a municipal fire-boat to proceed on her way to put out a fire affords a special reason for not allowing her, while so occupied, to be seized on a libel in rem. But all the reasons for not maintaining an action of this kind against the city in a court of common law apply with undiminished force to a libel against the city in personam in a court of admiralty.

In any aspect of the case, therefore, we are of opinion that this suit cannot be maintained against the city of New York; not by the local law of New York, because that law, as declared by the court of appeals of the state, is against the maintenance of such a suit; not by the maritime law, because according to the municipal law prevailing throughout this country, as declared by the highest court of every state in which the question has arisen, cities are not liable to such suits, and no authoritative precedent or satisfactory reason has been produced for applying a different rule in a court of admiralty.