It -is the only reasonable inference that the fire department came because of the continued blowing of the Andree’s whistle; that was the purpose and the result followed immediately. It makes no more difference that some unknown person turned in an alarm than if the call had been made upon an attendant in an engine-house who relayed it to the chief in charge. While we do not know who gave the order to blow, it is again fair to assume that it was the officer then in command of the ship. At sea the master is always at hand and it may be proper to hold that he alone is charged with the safety of the venture. He was not on board, and in port custom allows his absence, if some officer takes his place, who is, I think equally so charged. We should say that on him devolves the duty and the power.
The barge was on demise to the ship’s owners; the cargo was only temporarily on board it, having been unladen from the ship to be soon reloaded. It was in the ship’s custody and entitled to her protection; the venture included it as much as though it had been in her hold. The ship’s officer was, therefore, responsible for it as it lay, unless this duty had devolved solely upon the bargee. I am not sure that my brothers would go so far, but I can see no escape from that conclusion. While we.have held bargees responsible for overloading, and for the use of the lines, I know of no instance which even remotely suggests that where the barge is alongside the ship and subject to her immediate orders, the bargee supplants the ship’s officers as to the care of the cargo once delivered. I cannot help thinking that such a result would seem very unreal to seafaring folk.
If all this be true, we have a ease where the officer in actual charge of the cargo called in the fire department to save it from destruction. There are indeed expressions in Ralli v. Troop, 157 U. S. 386, 15 S. Ct. 657, *46839 L. Ed. 742, which if taken literally would forbid a lien for general average in such a case; but it is never true that a fire department acts only in the interest of the property afire; the fire may always spread, a chance against which they aet as much as to preserve what is immediately in danger. To push the rule so far is to deny that there can ever be general average at all, an extreme to which Ralli v. Troop has not been pushed [The Northern No. 30 (D. C.) 24 F.(2d) 975; The Beatrice (D. C.) 36 F.(2d) 99], and which Justice Gray’s general discussion forbids. On principle I cannot see why different legal consequences follow from the use of the ship’s hose and that of a municipal fire boat, where each is used at the order of the officer in charge. Whatever the historical background of the lien of general average, we ought not ignore the changed situation which modern conditions present. The sacrifice is made for the common venture; it is directed by the person then in control of that venture; it results in a salvage of the whole. These seem to me the outstanding facts, the rest are immaterial details.
It is too late now to raise the appellant’s point that no claim can arise in personam. No such assignment of error was made; the case was not tried below on any such theory; it is an afterthought which might have been met, had it been urged in season. I am by no means clear that it would not then have been good, but that is another matter.