(after stating the facts as above). That the fire started on the dump and spread to the scows seems to iis borne out by substantially all the reliable evidence. It is quite true that all the testimony cannot be reconciled, but this' is perhaps accounted for by the position of the witnesses, and their excitement at the time. Several came upon the scene after the first scow was ablaze; several were badly placed to observe; some were perhaps interested not to have the fire, start ashore. It is difficult in such eases to reach an absolute conclusion, and we recognize that the material on the scows might itself start up; but the admitted fire on one of the dumps, to windward of the scows, and the positive testimony of several apparently disinterested witnesses would be enough to satisfy us, if in any case we did not feel bound to accept the finding of the District Court. Our duty to review questions of fact is of course undoubted, but we again repeat that a finding below will not be disturbed, when it depends upon the reconciliation of divergent or obscure testimony, given by witnesses who were present in court.
*201This being true, it seems to us that the liability both of the city and the appellant is established. The island was a place chronically afire, either smouldering or blazing, as conditions changed. Every one knew this, and knew the dangers to which scows were exposed which lay alongside. For this reason the earlier contractor had set up a system of fire mains and appurtenant apparatus to spray the dumps and subdue the fires, when they became formidable. All this had gone, through nobody’s fault, so far as appears, except in so far as it might be thought such for the appellant to fail to come to an accommodation with its predecessor. We rely on no such circumstance; it seems to us that to send scows to such a place, and discharge fresh refuse upon the dumps, without available water to keep the fire in hand, was to invite exactly what happened. The city, which sent them there, and the appellant, which discharged them, were both liable for their injury, because of the absence of any protection.
We cannot see even a plausible argument for the city, and that made by the appellant is scarcely more tenable. It says that the “diggers” effectually smothered the fire on the dump before putting on fresh refuse, chiefly relying for that conclusion upon the testimony of the men on the “diggers,” who were naturally interested. Even admitting as much, though the conclusion is at best doubtful, there could be no assurance that the fires would not spring up again, exactly as they did; certain extinction was clearly impossible. Some fire protection was an essential condition to the operations of any contractor who discharged scows of that kind of material and in that place.
So far we are in accord with the District Court, but we cannot agree as to the exoneration of the city under the terms of the charter. This was terminable at any time at the will of either party. The original rate had been $8 a day, but apparently this had been changed to $7 before November 29, 1922. When the Shamrock Company by its letter of that date announced that the rate should be restored, it terminated the existing contract and tendered another. This left it to the city to accept or refuse, the other terms remaining the same. The city did accept, and so far as concerned fire risk did not change the stipulations. It makes no difference, in our judgment, whether we read the other conditions of the city’s letter of December 5, 1922, as new or old. If old, an unconditional acceptance may be spelled out, and the Shamrock Company carried the risk. Let us so assume. It remains none the less true that it had the power to terminate the charter at its will.’ This it did pro tanto by its letter of December 22, 1922, when it refused to carry the risk any longer, and, as it could not force upon the city a modified contract, the existing one was at an. end. This put the city to its option of going on without that change/ or of ceasing to call for performance. It was with this correspondence before it that it called for any scows after December 22, 1922; these letters were a part of the terms upon which any further dealings must take place, and the eity’s request was an acceptance of them until they were again modified. A contract was made, of which they were a part. Compania, etc., v. Spanish-American, etc., Co., 146 U. S. 483, 13 S. Ct. 143, 36 L. Ed. 1054; American, etc., Co. v. Atlantic Mill, etc., Co., 290 F. 632, 20 Ann. Cas. 1097 (C. C. A. 3); McKell v. Ches. & O. Ry. Co., 175 F. 321 (C. C. A. 6); The Cutchogue, 10 F.(2d) 671 (C. C. A. 2). The libelant had therefore not assumed the risk of fire.
There remains only the question of the appellant’s agreement with the city to hold it harmless for its “negligent acts and omissions.” This seems to us only to cover eases in which the city’s liability to the scow owners arose without fault on its own part. It is quite true that the loss was here caused by the appellant’s act of discharging the scows without having proper fire protection, but it was also as much caused by the city’s tender of the scows and insistence that the work should proceed. It would be a harsh and unreasonable construction of the words to extend them to such a case, in which the city could not even enforce contribution at common law. Union Stock Yards v. Chicago, etc., R. R. Co., 196 U. S. 217, 25 S. Ct. 226, 49 L. Ed. 453, 2 Ann. Cas. 525. Thus we need not consider whether in any case admiralty could take cognizance of the contract, even to the extent of using it to determine where between the two the loss should fall.
Decree modified, by holding the appellant and the city both at fault, and each liable for one-half damages. Libelant to, have the usual remedy over, should execution fail for either half.