opinion: SHAMROCK TOWING CO., Inc., v. CITY OF NEW YORK et al.
  Circuit Court of Appeals, Second Circuit.
  May 6, 1929.
  No. 303.
  L. Hand, Circuit Judge, dissenting in part.
  Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, of New York City, of counsel), for appellant Flannery Towing Line.
  George P. Nicholson, Corp. Counsel, of New York City (Charles J. Carroll, of Brooklyn, N. Y., and William A. Walling, of New York City, of counsel), for appellant city of New York.
  Single & Single, of New York City (Wm. J. Mahar, of New York City, of counsel), for appellee.
  Before MANTON, L. HAND, and CHASE, Circuit Judges.
  MANTON, Circuit Judge.
  Appellee recovered below for damages to its scow Green Bay, which, while loaded with city ashes and rubbish, caught fire and burned. This scow, with the city’s department of street cleaning scow No. 56, was in tow of the tug Joseph J. Flannery, owned and operated by the appellant Flannery Towing Line, Inc., and both were loaded, having received their cargo at the Stanton street dump at 6:10 on the morning of April 15, 1926. The ashes were wet down by sprinkling water, with a hose, on the entire load when loaded, and again on the morning of April 16th. A tally clerk, who kept a record of the truckloads of ashes and rubbish received at the foot of the ramp leading up to the dumping board when the scows were loaded, testified that ho looked at each load as it came on, kept a record of the classification of the material and the yardage, and that there were no burning ashes loaded. The fire broke out on the No. 56. The captain testified that he went aboard about half past 6 on the morning of April 17th; that he had no fire in the cabin stove; that he walked over the load from stern to bow, and saw no evidence of smoke or fire. About 11:20 a. m. on April 17th, the tug Joseph J. Flannery took the No. 56, the Green Bay, and the No. 12 in tow and proceeded up the East River, where they were to pick up another scow at the Forty-Sixth street dump. While engaged in clearing the deek of boxes preparatory to taking a line from another vessel, he was told by the captain of the No. 12 that the No. 56 was on fire. On looking up, he saw the fire in the center of the load and he fled to the No. 12. Several tugboats played streams of water ou the fire, but the flames were blown over to the Green Bay by a northwest wind blowing about 45 miles an hour, starting a fire on her and causing the damage. It was not shown what caused the fire on the No. 56, and the evidence merely states its discovery and the place where it started. Care was exercised, as was the custom, to wet down the ashes, because it is known that live coals sometimes appear in the ashes.
  The city of New York was held liable below for negligence in caring for the ashes when loaded and in some unnamed way failing to prevent a fire. The Joseph J. Flannery was held at fault upon the theory that, when the fire broke out, the tow was going up the East River, and upon discovery, when alarm whistles were blown, and when the Green Bay was not afire, the Joseph J. Flannery turned about and headed down stream, passing the Green Bay to the windward of the No. 56, and a strong west wind carried the fire over to the Green Bay, causing the blaze. In the absence of proof of a negligent cause, the city of New York was not responsible. O’Brien Bros. v. City of New York et al. (D. C.) 7 F.(2d) 485, affirmed 7 F.(2d) 488 (2d C. C. A.). The city of Now York was not an insurer, hut liable primarily oniy for its own negligence, and secondarily when the negligence was shown to be that of another to whom the vessel has been intrusted by the bailee. Mere proof that fire occurred is not sufficient upon which to base negligence. The appellee failed to sustain the burden it had of establishing the cause of the fire and that such cause was a negligent one, for which this appellant was responsible. Hildebrandt v. Flower Lighterage Co., 277 F. 438 (2d C. C. A.) affirming (D. C.) 277 F. 436.
  Nor did the contract of hire between the city of New York and the appellee stipulate that the city was an insurer. The contract dated December 4, 1924, submitted by the city'of New York, provided:
  “Neither the city of New York nor this department will be responsible for the 'damages to the scow resulting from the negligence of the owner’s employees in charge thereof or for damages resulting from fire or for damages resulting from causes beyond its control.”
  To it the appellee replied:
  “Replying to your agreement of December 4, 1924, relative to scow hire is hereby returned, as it cannot be accepted by us.
  “Pending adjustment of same we will hold the city of New York liable for all damages to our scows while under your charter.
  “Our scows to be returned to us as per incoming survey; that is, to be returned to us in the same condition as when received, ordinary wear and use excepted.”
  Thus it appears that the city’s proposal to relieve itself from liability for damages resulting from certain negligence, from fire regardless of its cause, and “for damages resulting from causes beyond its control,” was rejected in the reply by the appellee. When the city retained the scow in its service after receiving the appellee’s letter, the bailment became subject to the terms of that reply. Shamrock Towing Co. v. City of New York, 16 F.(2d) 199 (2d C. C. A.). This reply should be read as a whole, to determine the intention of the parties, and due effect given to each paragraph as modifying or limiting any other. 6 R. C. L. 227.- Considered in this way, it is apparent that the seeond paragraph does not impose an insurer’s liability, but is rather the assertion of an intention to hold the city liable for such damages as would follow as a matter of law, unlimited by such an express agreement as the city had proposed. The last paragraph contains the gist of the temporary arrangement under which the scow was retained by the city, and furnishes the basis for the determination of its liability. By the terms of acceptance, the city did not become an insurer, but was liable only if negligent. The scow was to be returned in the same condition as when received, ordinary wear and tear excepted. A covenant to insure is not implied, and can only be imposed where it is found in an agreement by clear and explicit language. Wan-dell v. New Haven Trap Rock Co., 285 F. 339 (2d C. C. A.); Mulvaney v. King Paint Mfg. Co., 256 F. 612 (2d C. C. Á.).
  The Flannery Towing Line should likewise be exonerated. There is no evidence to justify the claim of negligence in the navigation and care of the scow after the fire started. The Joseph J. Flannery signaled for assistance and did all that could be expected of it under the circumstances. The maneuver of the tug was not an improper one. The master acted in extremis and was free from any negligence.
  Decree reversed, with costs.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama