APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.
MR. JUSTICE WHITE delivered the opinion of the court.
From a decree dismissing this suit for want of jurisdiction
the present direct appeal is prosecuted. Dismissal of the appeal is moved on the ground that the jurisdiction of the court below was not involved in the sense of the fifth section of the act of March 3, 1891, c. 517, 26 Stat. 826, and, in any event, because the question of jurisdiction was not certified as required by that act.
The libel by which the suit was commenced was filed on behalf of the master of the tug Helen, for himself and others entitled to participate, in a salvage allowance if made. The cause of action was thus stated:
"1. That in the afternoon of the twenty-fifth day of December, 1906, the tug Helen whereof said E. W. Simmons was Master, and having a crew of six men besides said master, was, together with the tug Alice, towing a certain barge from Norfolk, in said district, to the piers of the Chesapeake and Ohio Railway Company at Newport News, in said district; that about four or four-thirty o'clock on said day, when said tugs had arrived almost at their destination at Newport News, it was discovered that a fire was raging in the ship yard of the Newport News Ship Yard and Dry Dock Company, and thereupon the libellant, with the said tug Helen, docked his tow at one of the said piers of the Chesapeake and Ohio Railway Company, and proceeded with all possible speed to the said fire:
"2. That when libellant arrived at the said ship yard it was found that a large and fierce fire was raging therein and that said steamship Jefferson, which had been undergoing repairs at the said ship yard, was locked in one of the dry docks out of which the water had been emptied, and was afire, her upper works being then in full blaze and her hull smoking throughout nearly its whole length; that there was no one on board at the time and no one could have stayed aboard under the circumstances; that the water pipes intended for the use of the fire department were frozen up and there was no water available for their use, and that this, together with the fact that the Jefferson was in a peculiar and inaccessible situation being
in a dry dock, rendered the fire engines and fire department totally unable to render any assistance whatsoever; under which circumstances said steamer would have been completely destroyed but for the assistance rendered by libellant and other salvors hereinafter mentioned:
"3. That thereupon libellant with his said tug Helen and crew lay at a bulkhead of one of the piers as close to the said dry dock as possible, and together with the tugs Alice and James Smith, Jr., played streams of water from their fire hose upon said steamship Jefferson, and continued so to do until the fire was completely extinguished; that libellant and other salvors were thus engaged from about four-thirty o'clock in the afternoon of said day until about eight-thirty o'clock at night, during all of which time libellant and said salvors rendered every possible assistance to said steamship, and during all of which time libellant and others entitled as salvors as aforesaid, underwent great suffering from smoke, flame and sparks, and endured great hardship from exposure to the wind and water in the bitter coldness of the weather, and libellant and other salvors incurred great danger from said smoke, flames and sparks, and from electric wires, falling poles, adjacent burning buildings, etc.
"4. That the said steamship Jefferson is of great value; that the aforementioned efforts and services rendered by libellant and other salvors saved the said steamship from total and complete destruction; that libellant, by reason of the hardships necessarily incurred, and especially by reason of the nature and the great importance of the services rendered in saving said steamship, reasonably deserved to have, and therefore claim a commensurate reward for salvage therefor."
By an intervening petition the crew of the tug Helen and the masters and crews of two other tugs, the James Smith, Jr., and the Alice, asserted claims to salvage, on the ground that they had rendered services at the same time and under the same conditions as those which the libel alleged had been rendered by the Helen. The libel and intervening petition
were excepted to by the owner and claimant of the Jefferson upon these grounds:
"First. That the property proceeded against was not at sea or on the coast of the sea or within public navigable ...