,Sampilon's hawser not being long enough ouafe,) went to the Dickson, infcmned 'her that be' was thereby orderE! of the Baker Salvage in 26th of Decembe!1 brought her in,t,i over, to :Saker Salvage The tel'¢il1fited on the 26th of 'January following, steamer'Kimberly was finally !brough't into thi!3port.. The master· of the tug,soon after presented his 'accohntto the Baker Sa]vageComparty for the service of the Sampson, 53 days from the 3d of Decerrioer, :at $100 per day. This bill was sent .hy. to ,fetze, but alf,h()\;Igh ,caUlld for was nQt produced in evi!By,:,the7th of of W9rk, by Petzehac;l for or..had been paid as much ,alJ'!,aJQt!lJ 9£;$,2,500t andseemed',tqba disposed draw for another iCorreSpQn<;lence. ,Petre m,ade no ,claim to share in the ·f\alvAge'fol'J.the, Dickson·. would bave been the compensat4m that time per -day, for B:period which included ,Q.ll,y:$,,¢, fJOn the 4th of Febi n!3ry;, ;Paiq an, I,l.ddW9nal: 8.1 ,000. to th!3 ,.82,,;5QO pfeviously' rethe owners petbe Sampson .. ,There .,no . of accounts two. cOmpanies. I Qom PllPiY n,ever: dad ucOO4 :the per diBms which 'The, ,W';Quld AAye.b,eene,llrpeq. if :the pad noLbeen in the seryOqp1panyd\;LTjngl1 er after the 'fay:lQr P.i!l. ,op. i 2f>.th,. :2.£$t .. . 2..7t.h ·O.f. D"ec,ember.. ..'" .. · ,: ; !I... ) HeaJlJ" Hunckle, for
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:J!'ro.m,.this epJtoIlleQf the J of tlle that at the peginning iQf, Qf, tlwre ,werep"t t\YO' Qfcontract mut,VNly. i"greeQ., J.lppn,,,nd Salvage Company ,.,.....,.which that the was day, whetllerat work Qr not; pq.rty.,wasatJi»fll'tY1to, ,a,t.jts own at tlle .beginning tbequ!'lstjop exclqsively QutR-e'Kimberly joP, or Q9, the Cqwpany.shouldhav., for .her to lAA :the ;\l\i,y,. ,Wfl:lGldng, was upon I. 11m..of opinion, moreover, ,tMt,in.:tlte:pJ;Qgfess the MrviClil, and quite early in its prqgressl the @j:a.. oti,the: pa.rties:this unsettle§!. question; . I think Qf Sah:age COIlilPanyto Capt. D.elano that tQthe . K imperIYland his :woJ{'\r,>wit1;l.out ,9hjectjon during, a period .of three weeks beo( put au i"PteI'pretationupon the ,wpwpt I ,4weri.()an: !,rowing. Gompany cannotnQw bYithe acts of
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BAKER SALVAG1H,'O. V. THE
TA YLOR(DICKSON.
267
both parties that the Sampi'ol1: was empl6y:ed' in the general of the Baker Salvage Company, and not exclusively in the business of lightering the cargo of the Kimberly; and I think this WIlS so,inde-pendently of the fact that no person connected wi'th shipping and gation iIi the Chesapeake and its waters ·could fail to know that the Baker Salvage Company was a wrecking, as distinguished from a ing, company, and was principally engaged in wrecking enterprises on the outer waters of the Atlantic. An engagement to serve a company thus habitually engaged, for an indefinite period,at the price of $100 a day, work or no work, would seem necessarily to imply service in more than one enterprise; would seem necessarily to imply service in the general wrecking business of that wrecking company. But, independently of this cogent consideration, and even although it were at first/in the mind of the Sampson's owners that she should serve exclusively in the Kimberly enterprise, still the acceptance and execution of orders to do other work for a penod of three weeks, without objecti<)D or pt6test, seems to me to establish the conclusion that the 'service wass general service, and not a particular one only. The service having· gone on upon this basis for three weeks, then came the order to the Sampson to go out to meet the Peed, and to take from her the Taylor Dickson; or, if the Peed should not have gone to Chicamicomico, then to continue on to that point herself, and save and bring in the Taylor Dickson. Theaaceptance and performance of this service by the Sampson, withthnt the servic,e in out objection or protest, was an additional which the Sampson was engaged was the service of the .Baker Salvage Company. The master of the Sampson was at liberty, under the contract, to terminate the service at the time of receiving the order to go for the Taylor Dickson. He did not terminate it, but continued the service. He went to Chicamicomico as the avowed agent and servant of the Baker Salvage Company. He saved and brought in the schooner at the command of the salvage company, and delivered her to that company. In presenting his bill for his whole service, ending on the 26th January, Capt. Delano treated the period of his trip to Chicamicomico as part of the time for which the compensation of the Sampson was $100 per day. The correspondence between Petze and McBlair on, and a few days after, the ith of January, proceeded on the basis of $100 a day being due up to that time, and no claim was made or intimated by Petze that for any of the days constituting the period between 3d December and 7th January the $100 was not due. In fact no intimation was given either by Capt. Delano or by Petze, before the filing of their petition, that any exceptional service had been rendered by the Sampson that was not covered by the contract for $100 a day. It is clear to me, therefore, that the owners of the Sampson are precluded by their contract with the libelants, as well as by the equities of the case, and the ordinary considerations of fair dealing, from claiming, as against their employers, the Baker Salvage Company, any portion of the salvage award that has been decreed in this cause, and I will so decree.
I'EDERAL REPORTER,
vol. 40. .
.. The oIaim of the master and crew of.the Sampson, set up in their pcstands, I think, on a better footing. The ordinary business of the American Towing Company of Baltimore, of which the master and crew of the Sampson were employes. was that of towing in the Chesapeake, bay, "nd the rivers and harbors tributary to the bay. Their contract with the company was in contemplation of such service,-tnat of towing vessels within the capes. As long as the Sampson was employed in these inland waters, no extraordinary labor, skill, or risk was involved; but, when the owners Qf the Sampson authorized her to be sent outside of the capes, on extraordinary service. down the coast in stormy weather, for the purpose of rescuing a .vessel in distress, and in fact engaging in a wrecking and salvage service, all without consulting the .crew of the Sampson, there ,arose, ipdependently of any existing statutes on the subject, an implied 'permission on the part of the owners to .,the crew to l1emandand receive the usual proportion of whatever salVagetn0Iley might accrue from such expedition. While the owners of ashipntay release, by express ,0riD.\plied contract,a claim for salvage, Yet the seamen'of a vessel which s,aves. another are rendered incapable, .by section 453i of the Revised StatuJes of the United States, of releasing their, claim to, participate in any salvage that may accrue from the enterprise. A,deqree may therefore be taken in favor of the master and crew of theSaOlPSQD for on,c-thirdofthe reward of 83,000, after deducting costs,,,,hich was decreed in this cause on the 9th February last. · I ,
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On appeal to the circuit court. the foregoing decision was adlrmed.
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