the nature and character of the rights of the parties arising from the transaction of purchase and sale, but its judgment was solely based upon the operation and effect of the prior judgment between the parties or their privies, it follows that the decision of the case was placed upon no Federal ground but involved solely the decision of a question of general law, that is, the effect and scope of the thing adjudged as arising from the prior judgment of the state court. Chouteau v. Gibson, 111 U. S. 200; San Francisco v. Itsell, 133 U. S. 65; Covington v. First Nat. Bank, 198 U. S. 100, 107. Indeed the fallacy underlying all the contentions urged in favor of our jurisdiction and the arguments of inconvenience by which those propositions are sought to be maintained, in their ultimate conception involve the assumption either that the correctness of the state decree, which was held to be res judicata, is open for consideration on this record, or assail the conclusively settled doctrine that the scope and effect of a state judgment is peculiarly a question of state law, and therefore a decision relating only to such subject involves no Federal question.

Dismissed for want of jurisdiction.

THE STEAMSHIP JEFFERSON.1

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE EASTERN DISTRICT OF VIRGINIA.

No. 243. Submitted May 17, 1909.-Decided November 29, 1909.

Where the District Court has allowed an appeal, but has not certified that the question of jurisdiction alone was involved, as required by § 5 of the act of March 3, 1891, c. 517, 26 Stat. 826, if it appears from the face of the record, irrespective of recitals in the order, that the

1 Docket title, Simmons, late Master of the Tug Helen, and Others, v. The Steamship Jefferson, The Old Dominion Steamship Company, Claimant and Owner.

215 U.S.

Argument for Appellants.

cause was dismissed for want of jurisdiction, the question of jurisdiction, if it is of such a character as to sustain the appeal, is sufficiently certified. United States v. Larkin, 208 U. S. 333.

Where the case is dismissed because the character of the action is one cognizable exclusively by a court of admiralty and the jurisdiction is challenged because the situation of the vessel and the character of the services rendered afforded no jurisdiction in admiralty, the jurisdiction of the court as a Federal court is involved and the case is one cognizable by this court under § 5 of the act of 1891. Salvage service, over which a court of admiralty has jurisdiction, may arise from all perils which may encompass a vessel when on waters within the admiralty jurisdiction of the United States, and this includes services rendered to a vessel undergoing repairs in dry dock and in danger of being destroyed by fire which originated on land. A vessel used for navigation and commerce does not cease to be a subject of admiralty jurisdiction because temporarily in a dry dock without water actually flowing around her.

158 Fed. Rep. 255, reversed.

THE facts, which involved the jurisdiction of the admiralty court of a case for salvage services rendered to a vessel in dry dock and in peril from a fire originating on land, are stated in the opinion.

Mr. R. T. Thorp, Mr. Henry Bowden and Mr. D. Lawrence Groner for appellants:

The jurisdictional question is properly certified. Shields v. Coleman, 157 U. S. 176; Interior Construction Co. v. Gibney, 160 U. S. 217; Chappell v. United States, 160 U. S. 499; Merritt v. Bowdoin College, 167 U. S. 745; Filhiol v. Forney, 194 U. S. 356; Petri v. Creelman, 199 U. S. 487; Excelsior Co. v. Pacific Bridge Co., 185 U. S. 282. The jurisdiction of the Federal court was denied as such. Dudley v. Lake County,

103 Fed. Rep. 209; Sun Printing Co. v. Edwards, 121 Fed. Rep. 826. A vessel is not removed from admiralty jurisdiction because at the time it is in dry dock, for such jurisdiction depends not on whether the vessel is actually afloat but on the purposes for which it is used. The Old Natchez, 9 Fed. Rep. 476. So also admiralty does not lose jurisdiction over a naviga

Argument for Appellee.

215 U.S.

ble river because at times the river becomes unnavigable. Nelson v. Leland, 22 How. 18. Although a dry dock itself may not be a subject of salvage service, Cope v. Valette Dry Dock Co., 119 U. S. 625, as to repairs in dry dock, see Perry v. Haines, 191 U. S. 17; Simpson's Dock v. Steamship Co., 108 Fed. Rep. 425; The Sapho, 44 Fed. Rep. 359; Hoffner v. Crane, 115 Fed. Rep. 404; United States v. Coombs, 12 Pet. 72. That the fire originated on land is immaterial; vessels afloat saved by being towed from a land fire are subject to salvage. Kaiser Wilhelm der Grosse, 106 Fed. Rep. 963; The J. I. Brady, 109 Fed. Rep. 912; The Barge No. 127, 113 Fed. Rep. 529; The Old Natchez, 9 Fed. Rep. 476; The Lone Star, 35 Fed. Rep. 793; Grinby v. The Khio, 46 Fed. Rep. 207; The Oregon, 27 Fed. Rep. 871; Wilson v. Winchester, 30 Fed. Rep. 204. Admiralty jurisdiction extends to a salvage suit for services rendered from land to a vessel burning at a wharf. The Huntsville, 12 Fed. Cas. No. 6,916; and see The Ella, 48 Fed. Rep. 569, as to salvage for digging out vessel which had been driven ashore.

Mr. Walter H. Taylor and Mr. Harrington Putnam for appellee:

This court is without jurisdiction. The appeal should have been taken to the Circuit Court of Appeals. If to this court it is not properly certified under § 5 of the act of 1891. Louisville Trust Co. v. Knott, 191 U. S. 225; Smith v. McKay, 161 U. S. 358; Maynard v. Hecht, 151 U. S. 324; Blythe Co. v. Blythe, 172 U. S. 644; Schweer v. Brown, 195 U. S. 171.

The decision below was correct and the libel properly dismissed. Quenching a fire on a ship in emptied dry dock is not a basis of salvage. The Warfield, 120 Fed. Rep. 847; The Robt. W. Parsons, 191 U. S. 17. The Jefferson was not saved from a peril of the sea. 1 Parson's Mar. Ins., 544; Phillips v. Barber, 5 B. & Ald. 161; Frame v. Ella, 48 Fed. Rep. 569. The property salved must be a vessel engaged in commerce or the cargo of a vessel. The Murphy Tugs, 28 Fed. Rep. 429; The

Island City, 1 Lowell, 375; The Pulaski, 33 Fed. Rep. 383; The Hendrick Hudson, 3 Benedict, 419; S. C., Fed. Cas. No. 6,355. Salvage is only awarded for saving property from sea perils. Mason v. Ship Blaireau, 2 Cranch, 240, 266; Benedict's Admiralty, 3d ed., § 300; The Emulous, 1 Sumner, 207; 2 Kent's Com., *245; Desty's Shipping and Admiralty, § 303; M. Benefante, 5 Revue Int. du Droit Maritime, 568; Schaps Das Deutsche Seerecht, 701; Sieveking, German Law Relating to Carriage of Goods by Sea, Eng. trans., p. 145; The Merchant Prince, Hanseatische Gerichszeitung, 1888, Part I, No. 120, p. 276; Burchard on Salvage, Hanover, 1897, p. 29.

English courts before 1821, could not award salvage for services between high and low water mark. 11 Ency. Laws of Eng., 368; Benedict's Adm., § 111; Kennedy, Law of Civil Salvage, 2d ed., p. 2. In England and the United States the question of locality is important as admiralty courts alone can award salvage. Ex parte Easton, 95 U. S. 68; 50,000 Feet of Lumber, 2 Lowell, 64. Fire originating on land is not a sea peril, The Plymouth, 3 Wall. 20; and as to adhering to ancient limits of admiralty jurisdiction, see Cleveland Terminal Co. v. Steamship Co., 208 U. S. 315; The Troy, 208 U. S. 321; The Poughkeepsie, 162 Fed. Rep. 494; Adm. Juris. of Torts by Mr. Justice Brown in Columbia Law Review, January, 1909.

In the absence of sea perils claims for salvage rewards are against public policy and the tendency of later cases is not to enlarge but to restrict the subjects of salvage. Gas Float Whitton, App. Cas. [1897], 337; Cope v. Vallette Dry Dock, 119 U. S. 625; Hughes' Handbook of Admiralty, 129. Shipowners' suits against owners of dry docks for injuries on the dock depend for admiralty jurisdiction on maritime nature of contract and on locality. The Sapho, 48 Fed. Rep. 359; Waitman v. Griffiths, 3 Blatchford, 528; but see The Professor Morse, 23 Fed. Rep. 803.

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