nE
WELLINGTON.
475
appeal to be lightened than that of him !who must respond to the full extent of the liability, however small the value of his property. The language of the statute does not require any different rule of responsibility for. the different state of facts under which the obligation is incurred. The:well-known object of; this statute was the increase· of American shipby·a, reduction of the burdens of ship-owners. That end would be promot:lldby discharging part owners from a liability in 8olido for the debtsofelltch other. A construction giving such discharge is consistent with the language of,the, act, conforms with the -intention of congress, and regards strictly the deft1ct to be corrected. No principle of interpretntionrequires a different construction to the first clause of this section 18, and no other construction gives to it an effect so salutary and 80 helpful: to: owners, whose interests it aimed to serve. The aggregate lia, bility of the owners in this case, after deducting the amount above.all lowed fOI;demurrage, and including interest from date of filing the libeto ,this July 24, 1891, when the final decree is entered, is $6,139.65. The decree is ordered to be against each part owner for the proportion of this ,amount that his individual share of the vessel bears to the whole. The costs must be differently dealt with. They cannot be treated as a liability or debt of the owners, as owners, but are expenses of litigation for which the owners contesting are held in 8olido. Let it be so de,. creed. IN THE CROSS-LmEL.
A decree in favor of libelants for demurrage in the sum of $731.50, and costs.
THE
BLACKBURN ".
TIlE
WELLINGTOlf.
(Di8trict Court, N. D. CaZ(fornf4. November 80, 1ll9t.; IhLTAGB-CoMPENSATION-CONTRAOT FOR TOWAGB.
The steamer W., bound to Ban Francisco with a cargo of 9,850 tons of coat, lost. ' her propeller blades, became helpless, and drifted neal' the mouth of the Columbia river. While in communication with a vessel which oll'ered to tow her to an anchorage, from which tugs were easily accessible, and while in no immediate danger, she hailed the ateamer M., which WBB bound for Ban Francisco, and asked towage to that port. The M. was only about half her size, was not fitted for towing, and was also laden with coal. Her master, however, offered to leave the compensation to the decision of the W.'s owners, after arrival in Ban l"rancisco, which otfer was rejected, and after much haggling 815,000 was agreed NeIther vessel pOSBessed a suitable toW-line, and five small lines were used. This, in case of bad weather, would have been a source of danger, but the weather proved good, and the vellsels arrived In about five day",· Ilela that, while the compen8ation was excessive, yet, in view of the fact that there was no compulsion, it. was not so exorbitant lUI to justify the court in setting the contract aaide.
In AdJJliralty. Libel by D. O. Blackburn against the steam-ship Wellington, her freight.and cargo,upon a contract for towage. Decree for libelant.
FEDERAL REPORTlm,
vol. 48.
Geo. W.<Powle, Jr., for libelant. Pagd'« for claimant. Ross,:J.. · This is an action upon a oontract for services rendered the steamerWellillgton by the maRter of the steamer Montserrat. Both vessels were at toe time engaged in transporting coal from Departure Bay,in British Columbia, to the port of San Francisco. On the 24th of April last the Wellington sailed from that bay for San Francisco with tons of coal, and in the morning of the second day after a oargtl of sailingjwithout any apparent cause, lost all the blades of her propeller. Sheha.dnot sufficient sail-power to give her master any'control over her course; and she was therefore subject to be carried anywhere the currents and winds might take her. Ai the time of the accident the Wellington was about 72 miles in a south-westerly direction from the mouth of the Columbia river. The next day she encountered a severe gale, lasting about 24 hours, during which she lay in the trough of the sea, with the seas breaking heavily over her fore and aft. After the storm she continued to drift as carried by the currents, the wind being shifting, the weatherunsettIed;and the sea a strong north-west swell, until about 7 or 8 o'clock in the evening of the 29th of April she was within 10 or 12 miles ohhe mouth of the Columbia rivel', the sea then being comparatively smooth, and the weather moderate. The Columbia river has, at its mouth, a bad bar, which cannot be passed in very bad weather, and is not0rdinarily crossed during the night. To the north llnd south of miles, there is anchorage neal' the beach, fairly good in moderate weather, bpt which is not safe in case of storms, which might, with reasonable probabilitYi'be anticipated at that season of the year. The current at the mouth of the river sets quite strongly there, at which a to the northward and inshore. There isa lookout is kept. The light-house has of communicating with tugboats in the Columbia river whicbordinarily, at night, lay at Astoria, about 15 miles up the river. - There were at the time tug-boats in the river with sufficient power to have towed the- Wellington into the Columbia river, or to have towed her to San Francisco. The . ton, at.tp,e.time of the making of the contract sued on; was within sight of the While in the position ,described, the steamer Sussex, bOt1nd, out from the Columbia river, seeing the. Wellington with a signal of distress flying, approached her, sentan officer board, and offered to tpwhl;lr to an anchorage near the bar, which she reported as breaking badly, fora salvage compensation. While the officer was on board,the in sight. approached the Wellingtqn'lVaB hailed byher master, whoreql1ested the master of ,the Montserratto come on board, The master of the then the master of the Montserrat whether he thought he could tow the Wellington to San FranciRCa, and the latter replied that he thought he could. The master of the Wellington distnlseed the ftoni the Sussex, askiiighim to report his' thlmks .to'his master,' but that he did ·notiwant the proffered services. That being done, were opened with the master of the Mont-
THE WELLINGTON.
477
serrat as to the terms upon which he would agree to tow the Wellington, with all on board, to San Francisco. The master of the Montserrat offered to perform the service and leave the amount of compensation to be fixed by the owners of the Wellington, but the master of the Wellington declined that proposition, and wanted a sum fixed upon. The master of the Montserrat then said he would perform the service for 825,000. The master of the Wellington said, "No;" he would not listen to that, but offered $5,000, and then 810,000. The master of the Montserrat then said he would perform the services for $20,000, and the master of the Wellington offered 812,500. Fifteen thousand dollars was finally agreed upon between the parties for the service, and the master of the Montserrat undertook it. The mouth of the Columbia river is about 554 miles from San Francisco. The Montserrat is a merchant vessel, not fitted in any respect for towage purposes. The first hawser with which the attempt to tow was made was furnished by the Wellington. It was a large one, but when strain was put upon it, it immediately parted, was found worthless, and was cut adrift. Within an hour or two five small lines, part furnished by one vessel and part by the other, were got out, and made fast on board the Wellington, part to her anchor cable and part to her foremast; and, on the Montserrat, to her mooring bits, fore, aft, and amid-ships, that being the only available means of making the lines fust on that ship. In proceeding to San Francisco good weather was encountered so far as wind and sea were concerned, with about 24 hours of heavy fog, but the. evidence shows that storms might have reasonably. been anticipated at that season. The ships arrived safely in San Francisco in a little more than four days fro111 the time the Montserrat entered upon the performance of the service, but the time consumed iIi towing was a little less ihanfour days. Both ships were loaded, the Wellington's cargo'beingabout double that o,f the Montserrat. No one doubts that when the circumstances of a case render such action proper a court of admiralty will refuse to enforce a contract made for'salvage services. 'But is this one of those cases? I cannot see any just ground for holdin6 that the .master of the Wellington, in making the contract in question, acted under compulsion or duress, Of ,that any advantage was taken ofhis unfortunate position by the master of the Montserrat. Nothing could have been fairer than the offer of the master {)f the Montserrat to perform the service, and let the com pensation therefor be fixed on arrival in San Francisco by the owners of the Wellington. Yet that offer WRS,Tefusedby the master of the Wellington, who, for some reason not apparent, wanted the amount to ·befixedinadvance. There was no compulsion about the case, first, for the reason that the salvor, as just stated, offered to render the service without any contract at all, which offer was refused by the master of the Wellington. This fact is of itself sufficient to dispose of that objection to the contract made. But it may be added that the Sussex was present, and her officer was, when the negotiation with the master of the Montserrat begun, contending that he, as representative of the Sussex, was entitled to be employed by the master of the Wellington. It is true, the Sussex did not propose
478
FEDEML REPORTER,
to, tow ,the,'Wtellington t01 811'11 ,Francisco, the port of her destination, but only to 'an, anchorage near'the mouth of the ;where she wou.ld. h8\1ebeen safe so long 9.s good weather continued, and sheieooJd: havebt'enrescued· by any passing steamer, or bya tug from the,eolt1mbia river. :The"tugs plying in that river have bee11sumtilonedby means of the light-house. The Wellington was therefore'Dot only not hi immediate danger, but other relief was available at ,the: time her master entered into: the contract in question. He was in a/position to choose, and he chose not only to contract with the master ofthe Montserrat for the towing of his ship and cargo to her port of destination, but to fix in advance upon thE." amount to be paid for the service. That amount was undoubtedly too large for the service, but I do 'not, think it so'. exorbitant as to justify the court in setting aside the contract thus made. There were many elemen,ts of danger in the service. In the first.place, it was undertaken at a time of the year when, according to the evidence, it was reasonable to anticipate storms along that coast. The evidence further shows that the machinery of ordinary merchant vessels, such as the ,Montserrat, isaboui 25 per cent. less than that of vessels specially fitted for towage purposes; and that a vessel not so fitted, in undertaking to tow Ii heavily laden ship', like the Wellington, takes a very substantial risk of injury to her own machinery. In the event of such injury, the Montserrat herself might have become the subject of a salvage service, and, perhaps, a total loss. Besides, the ordinary danger attending the towing of a large and heavily laden ship in the open ocean by another ship was, in this instance, greatly increased by the fact that, instead of oue large line,five small ones had to be employed in towing, and by the further fact that the tonnage of the Wellington was nearly double that of the Montserrat. Moreover, the master of the Montserrat was assuming responsibility for any damage the or his cargo might sustain by reason of delay in delivering it, caused by the service undertaken by him, the duration of which could only be surmised, and1t'hich was.liable to be greatly extended by matters beyond his control. He also assumed responsibility to the owners of the Wellington for any injury that steamer might suffer by reason of the negligence· of himself, his officers, and crew in carrying out the contract, the performance of which on his part was essential to entitle him to any compensation. In view of all of the facts and circumstances oithe case, I am of the opinion that the contract entered into by the parties should be enforced by the court,· and & decree in accordance therewith will be entered.
CANDEll:
BAf.ES COTTON.
CANDEE " ·. SIXTy-EIGHT BALES COTTON·.
(District Oourt, S. D. Al.abama. March 9, 1891.) 1. B.u.VAGB-WBtI1Ii .ALLoWBD.
Salvage is allowed asa·reward for the benefit conferred on the person whOle property is saved." . .
.
B.
SllIE-RATE.
There is no nile governing absolutely the rate of salvage, but, when the property is dereliot, at least one-third of the value of: the property saved may be allowed. '
't
B. BAlfK-PASSBNGERS AS BALVORS· .A .passenger is elltitled to salvage when his services are extraordinary. .. SAlfE· .
When mariners left in charge of carlto, necessarily thrown overboard, desert their post, and a :;laBseuger, by persuasion and rewards, induces them to return, and suoeassfully directs them in the relilCUe of the cargo with llhe ship's appliances, hels entitled to salvage, but not to the extent of the full value of the service rendered , .. .
. .
-
In Admiralty. Libel for salvage. The steam-boat Anderson, while coming down tbeMobile river, had a part of the cargo, consisting of cotton in bales, to catch fire. An effort was made· by the officers and crew of the vessel to extinguish the fire while· the cotton was still on board. Being unsuocessful the master had the burllingbales thrown overboard into the river, and ordered one of his officers lind five or six members of his crew to take to the small boats, with proper appliances, and to endeavor to save the cotton from burning, -and to secure and keep it ulitil he could go with his steamer to Mobile, (some 20 miles distant,) and send up a tug-boat for it. The steam-boat went on without delay to Mobile. The libelant was at the time a passenger on said steam-boat. He voluntarily left the boat, abandoned for the time his trip toMobile,and, with the crew left by the master, joined in the effort to save the cotton.· Most of the 'cotton was saved, but some orit in a dainagedcondition. M. D. Wickersham and PiUa1l.8, T(Jf'l'e'!J &; Ha'rul:w, for libelant. OveraU .&; .Bestor, for' respOndent. . TOULMIN, J.The general ,principle is that salvage is only payable where a meritoriO'Us s61'\Titjehas 'been rendered:; It isalJowed as a reward for the meritorious conduct of the salvor,and in consideration of a benefit conferred on the person whose property he has saved. There is no positive rule which governs absolutely the rate of salvage. In this case if the cotton had been derelict,-that is, had been deserted or abandoned by the vessel,-:-and it had been saved as set forth in the libel, I would award at least one-third-perhaps more-of its value as salvage. But I find from the proof that the cotton was not derelict,-was not abandoned,-Lut that the master of the vessel left an officer and six members of bis crew to secure and preserve it until he could go to Mobile, and return or send for it. If this officer and these men had diligently and faithfully JReported by Peter J. Hamilton, Esq., of the :Mobile bar.