57 F. 661 | D.N.J. | 1893
From tbe evidence in tbis cause it appears that tbe steamer Golden Gate, on tbe 27th June, 1891, at about 2 o’clock in tbe afternoon, while proceeding to her wharf at Atlantic City, N. J., bad tbe misfortune to break her rudderhead, and so rendered her rudder unmanageable and useless. At tbe time tbe sea was quite rough, and tbe wrind was blowing from the northeast at tbe rate of 20 or 25 miles per hour. As soon as tbe accident occurred she let go her anchor in about 12 or 14 feét of water, and was immediately brought to. She anchored about 25 yards away from a sand bar, which lies, nearly opposite tbe channel buoy. As soon as she was brought to by the anchor, she either blew her whistle frequently, as testified by some of the witnesses, or hoisted her flag, as testified by other witnesses, as a signal that she needed assistance. Tbe whistles were heard or tbe signal was seen by the Atlantic City, a steamer lying at one of tbe wharves at Atlantic City, and about a mile distant from tbe Golden Gate. She immediately went to the assistance of the Golden Gate, and' after some effort succeeded in getting a hawser to her; but for some-reason, concerning which there are contradictory statements, she was unable to tow her. After one or two trials the hawser was cast loose, and tbe Atlantic City returned to her wharf, leaving the-Golden Gate Where she found her, and without rendering any assistance. Later in the afternoon the owner of the Golden Gate snade a special request of the captain of the Atlantic City to tow his disabled vessel up to her wharf. By this time the sea had become quite calm, and the wind had greatly modei’ated. The Atlantic City again went to the Golden Gate, without difficulty passed a line to her, and then towed her about one-lialf or three-quarters of a mile towards her wharf, when, noticing that the Florence, a sister steamer to the Golden Gate, and belonging to the same owner, was coming down to tow the Golden Gate, the Atlantic City cast off the towing hawser, and rendered no further service. At the time no claim for service rendered was made by the Atlantic City, but 12 months after, a difficulty having arisen between the
It will be noticed that the first effort to assist the Golden Gate was a failure. The Atlantic City, from some cause, was unable to tow her to her wharf. At the time this effort was made the Atlantic City was a volunteer, and, had it been attended with success, it would have been the basis of a claim for salvage, assuming that the Golden Gate was within reasonable apprehension of danger. But an indispensable ingredient' of a salvage claim is that the service rendered has contributed immediately to the rescue or preservation of the property in peril. Salvage compensation will not be decreed unless the vessel in fact was saved by those who make the claim. While attempts at rescue are meritorious, and to be highly commended, yet, unless success follow the attempt, no claim for salvage can be allowed. These principles, well established, seem to bar this claim so far as the first attempt of tlie Atlantic City is concerned. Admittedly, that attempt to render assistance to the disabled vessel was a failure, hence for that no salvage can be granted.
It has been assumed that the Golden Gate was in reasonable apprehension of danger at this time, but the evidence is not satisfactory on this point. The burden of proof is on the libelant, and it can hardly be said that it has been properly met. The opinion of witnesses on the part of the libelant are purely speculative, and in opposition thereto the naked fact remains that the Golden Gate laid for hours 'where she was hove to, securely held by her anchor, -without encountering any peril other than the ordinary peril of the sea. But it is not necessary to express a positive opinion upon this part of the case. It is immaterial on the view which has been taken of the facts.
The second attempt to assist the Golden Gate was made under different circumstances. The Atlantic City was not in this instance a volunteer. She was expressly engaged by the owner of the Golden Gate to tow Ms disabled vessel to her wharf. Success is no Longer a criterion for the allowance of salvage compensation; and, besides, it is admitted that this effort was partially successful. But the difficulty with the libelant’s case is that there is not a particle of evidence that at the time of rendering this partial service the Golden Gate was in the slightest peril. The sea was quite calm; the wind greatly moderated; no danger was apparently hovering around the disabled vessel; she might be said to have been almost in her home port; her situation visible to all; no alarm felt by any one, least of all by those on board. Such circumstances w'ould not justify a claim for salvage compensation. The services rendered by the Atlantic City were simply towmge services. For such service she is entitled to fair compensation, but beyond that nothing.
It is proper to add that this is very nearly in the category of a stale claim. Xo demand was made until a year after the rendition of the alleged service, and even then seems to have been resurrected as a sort of counterclaim to a demand previously made upon the
If the parties cannot agree upon the amount to be paid for tow-age service, let there be the usual reference- to ascertain what it ought to be.