Statement of the Case.

by the collision. This libel was amended by adding as respondents the fire department of New York and Gallagher, who was in charge of the navigation of the New Yorker and the necessary allegations were made. The District Court entered a decree in favor of the libellant against the city and Gallagher, and dismissed the libel as to the fire department. The Circuit Court of Appeals affirmed the decree against Gallagher and in favor of the fire department, but reversed that portion which held the city liable. The case being brought here on certiorari, it is held that the District Court rightly decided that the mayor, aldermen and commonalty of the city of New York were liable for the damages sustained by the owner of the Linda Park.

Where both courts below have concurred in a finding of fact, it will, in this court, be accepted as conclusive, unless it affirmatively appears that the lower courts obviously erred.

The local decisions of a state court cannot, as a matter of authority, abrogate maritime law.

Under the general maritime law, where the relation of master and servant exists, an owner of an offending vessel, committing a maritime tort is responsible, under the rule of respondeat superior.

There is no limitation taking municipal corporations out of the reach of the process of a court of admiralty.

The public nature of the service upon which a vessel is engaged, at the time of the commission of a maritime tort, affords no immunity from liability in a court of admiralty, when the court has jurisdiction. While it is true that the emergency of fire was an element to be considered, in determining whether or not those in charge of the fire-boat were negligent, it does not follow that it exempted from the exercise of such due care as the occasion required towards property which was in the path of the fire-boat as it approached the slip.

A ship, by whomsoever owned or navigated, is liable for an actionable injury resulting from the negligence of the master and crew of the vessel. A recovery can be had in personam for a maritime tort, when the relation existing between the owner and the master and crew of the vessel, at the time of the negligent collision, was that of master and servant.

WORKMAN, the libellant below, was the owner, on June 11, 1893, of the British barkentine Linda Park. On the date named, while the vessel was moored to a dock at pier 48 in the East River in New York City, she was struck and injured by the steam fire-boat New Yorker. At the time of the collision the New Yorker was running into the slip between piers 48 and 49 for the purpose of getting near to another fire-boat which had shortly prior thereto safely entered the slip. Both the fireboats had been called in order to aid in extinguishing a fire in a warehouse situated a distance of eighty-five to one hundred

Opinion of the Court.

feet from the slip bulkhead. To recover the damage occasioned to his vessel, Workman filed, in the District Court of the United States for the Southern District of New York, a libel in personam against the mayor, aldermen and commonalty of the city of New York. This libel was subsequently amended by adding the allegations essential to make, as additional respondents, the fire department of the city of New York and James A. Gallagher, the person in charge of the navigation of the New Yorker at the time of the collision.

The District Court entered a decree in favor of the libellant against the city of New York and Gallagher, and dismissed the libel as to the fire department. 63 Fed. Rep. 298.

The Circuit Court of Appeals, to which the case was taken, affirmed the decree of the District Court against Gallagher and in favor of the fire department. The appellate court, however, reversed that portion of the decree of the District. Court which held the city of New York liable, and remanded the case with instructions to dismiss the libel as against the city. 35 U. S. App. 201; 67 Fed. Rep. 347.

The case was then brought to this court by the allowance of a writ of certiorari.

Mr. Harrington Putnam for Workman. Mr. Charles C. Burlingham was on his brief.

Mr. Theodore Connoly for the Mayor, Aldermen and Commonalty of the city of New York and Gallagher. Mr. John Whalen and Mr. James M. Ward were on his brief.

MR. JUSTICE WHITE, after making the foregoing statement, delivered the opinion of the court.

It is clearly deducible from the record that the courts below concurred in dismissing the libel as against the fire department of the city of New York, upon the contention made in the answer of the department that under the provisions of a named statute of the State of New York, the fire department of the city of New York was neither a corporation nor a quasi-cor

Opinion of the Court.

poration, but was merely a department of the city. As no controversy is made respecting the correctness of the decree in this particular, we dismiss this subject from view.

With reference to the decree rendered by both courts against Gallagher, the district judge held that, giving due consideration to the emergency of fire, "the running into the Linda Park arose through lack of reasonable prudence, and was unnecessary and negligent." 63 Fed. Rep. 298. The Circuit Court of Appeals, in its opinion, affirming the decree against Gallagher,

said:

"The evidence in the record adequately supports the conclusion of the court below that the injuries caused to the libellant's vessel by the impact of the fire-boat were caused by the negli gent manner [management?] of the fire-boat while the latter was trying to reach a convenient location to play upon a burning building near the pier at which the libellant's vessel was moored."

There is no substantial controversy raised on the record as to the premise of fact upon which the personal decree against Gallagher was rendered by both the courts below. And even if such were not the case, the facts upon which Gallagher's liability depends are not now open to controversy, because of the well settled doctrine that where both courts below have concurred in a finding of fact, it will, in this court, be accepted as conclusive, unless it affirmatively appears that the lower courts obviously erred. The Carib Prince, 170 U. S. 655, 658, and cases there cited. It is clear that if it was seriously claimed that both the courts below had manifestly erred in their appreciation of the facts as to negligence in the management of the fire-boat, the testimony would not justify the assertion. We shall therefore no further consider this feature of the case.

In order to elucidate the serious question which arises for discussion, we briefly state the reasons by which the courts below were led to reach opposing conclusions as to the liability or non-liability of the city.

The District Court, on the assumption that the local law controlled, determined that by that law, as declared in decisions of the courts of the State of New York, the city was

Opinion of the Court.

liable for the injury caused by the negligent management of its fire-boat. The Circuit Court of Appeals, however, was of opinion that the city of New York was not answerable for the injury inflicted, for the reasons which it thus stated. 35 U. S. App. 204:

"It is familiar law that the officers selected by a municipal corporation to perform a public service for the general welfare of the inhabitants or the community, in which the corporation has no private interest, and from which it derives no special benefit or advantage in its corporate capacity, are not to be regarded as the servants or agents of the municipality, and for their negligence or want of skill it cannot be held liable. This is so, notwithstanding such officers derive their appointment from, and are paid by, the corporation itself. In selecting and employing them, the municipality merely performs a political or governmental function; the duties intrusted to them do not relate to the exercise of corporate powers; and hence they are the agents or servants of the public at large. Upon this principle it has uniformly been decided by the courts that municipal corporations are not liable for the negligence or wrongful acts of the officers of the police or health departments committed in the course of their ordinary employment. Unless the duties of the officers of the fire department are of a different complexion, and they are the servants of the municipality because they are engaged in performing one of its corporate functions, the same principle must extend immunity to the municipality for the negligent acts of these officers and their subordinates.

"It is quite immaterial that the duties of these officers are defined and the offices created by the charter or organic law of the municipality; the test of corporate liability for the acts of the officers of the municipality depends upon the nature of the duties with which they are charged; if these, being for the general good of the public as individual citizens, are governmental, they act for the State. If they are those which primarily and legitimately devolve upon the municipality itself, they are its agents."

Having thus determined the general principle by which the

Opinion of the Court.

liability of the city was to be judged, the court reviewed some of the decisions of the Court of Appeals of New York, and deduced from them that the city, in the operation of the fire-boat, performed a governmental and not a corporate function, and, therefore, under the assumption that the decisions in question were authoritatively controlling, held the city not liable.

Whilst it is contended at bar that the District Court correctly decided, considering the local law of New York alone, that the city was liable, it is also asserted that even if by such law there was no responsibility on the part of the city of New York, nevertheless the Circuit Court of Appeals erred in deciding that the city was not bound, because by the maritime law the liability existed, and such law should have controlled, although the local law was to the contrary.

We come then to consider first, whether, in the decision of the controversy, the local law of the city of New York or the maritime law should control; and, second, if the case is solely governed by the maritime law, whether the city of New York is liable.

In examining the first question, that is, whether the local law of New York must prevail, though in conflict with the maritime law, it must be borne in mind that the issue is not-as was the case in Detroit v. Osborne, (1890) 135 U. S. 492—whether the local law governs as to a controversy arising in the courts of common law or of equity of the United States, but does the local law, if in conflict with the maritime law, control a court of admiralty of the United States in the administration of maritime rights and duties, although judicial power with respect to such subjects has been expressly conferred by the Constitution (art. III, sec. 2) upon the courts of the United States.

The proposition then which we must first consider may be thus stated: Although by the maritime law the duty rests upon courts of admiralty to afford redress for every injury to person or property where the subject-matter is within the cognizance of such courts and when the wrongdoer is amenable to process, nevertheless the admiralty courts must deny all relief whenever redress for a wrong would not be afforded by the local law of a particular State or the course of decisions therein. And this, not