72 F. 678 | E.D. Va. | 1896
(alter stating the facts as above). The sole question in this case is the amount to be allowed to the Sagamore for salvage and for towing. Towing a disabled vessel on the high seas is always a salvage service. Courts, judges, and lawyers of the interior are apt to assimilate this service to towing on the inland canals and rivers of the country, and are apt not to realize the full nature of towing at sea. In the towing of a canal boat by a mule on a towpath, there is no danger of the boat running into the stern or sides of the mule, or of the mule’s backing down from the towpath and driving its heels into the stem of the canal boat (which has no stem). On the rivers of the interior West, a steam tug goes right up to the boat to be towed, is made fast close alongside, not even fenders being always interposed between the two vessels, and moves out with its tow into the channel, to breast a steady flow of water if ascending the stream, or to ride upon it if going down stream; the unbridled wind, that dread vis major of the ocean, not entering at all as a factor in the adventure. The case is different on the ocean, and especially off the North Atlantic seaboard, where the sea is never at rest, and where a cessation of winds is almost unknown. In those waters vessels are never in comparative safety except when under headway, and are always in more or less danger when merely riding the waves. In the act of making preparations for towing and being towed, ships out at sea are very liable to collisions, to the fouling of hawsers, to the smashing of small boats, to losing anchors, and to other serious accidents. After getting under way, and commencing the towing service, there is constant danger on the open sea, when the disabled ship" has no power of self-control. The hawsers are made as long as practicable, often 70 fathoms or more, in order to keep the vessels far apart. During the towing, the varying conditions of wind and wave are fruitful of casualties. In the case of The Strathgarry, which will be mentioned in the sequel, there is a striking instance of the unforeseen accidents incident to towage on
When the Sagamore approached the Great Northern for the purpose of taking her in tow, the sea and wind were such as to require the utmost care and caution.' The Great Northern, having-no cargo on, and but one anchor down, lying upon a rolling sea, against a fresh wind, with the exposure of 15 feet of free board, was like a cork upon the water. The evidence makes it probable that she was also dragging her anchor; for the. wind was strong, and the bottom smooth and of sand. Under these circumstan-' ces, to approach her, and engage in the necessary preparations for taking her in tow, involved in. itself the most serious danger. The Sagamore was not built for towing and salvage service. She was meant for rapid ocean navigation in all weathers. She had, practically, no free board, and neither wind nor wave could seriously affect her navigation. She had little capacity for maneuvering at sea; nothing but rudder and propeller; her engineer in the hold receiving directions, through a tube, from the officer in the pilot house. •
The value of' salvage service is estimated by the circumstances of the salved and salving ship, by the conditions of wind and sea prevailing at the time it is entered upon, and by the casualties which experience teaches practical seamen are liable to happen, in the ordinary course of events, while the service continues.
In the case of The Strathgarry [1895] Prob. 264, which was a case in which a sum was agreed upon between salvor and salved before the service was undertaken, the high court of admiralty, Bruce, J., said:
“In forming an opinion of the fairness or unfairness of the agreement, I think the court must regard the position of the parties at the time the agreement was entered upon. The agreement cannot become fair or unfair by reason of circumstances which happened afterwards. * ‘ * * In services of this character a very considerable part of the danger and difficulty arises at the commencement of the service. Hawsers are not made fast between large vessels in the South Atlantic, even in fine weather, without risk; and the mere maneuvering of the Hawkhurst [the salving ship], and the commencing to get a strain upon the towing hawser, was a service certainly attended with some datiger. The Strathgarry [the ship towed] is a steamship of 5,000 tons gross, and the towage of such a vessel was a service necessarily involving risk. * * * Such a service must have put a considerable strain upon the engines - of the Hawkhurst, especially having regard to the violent sheering of the Strathgarry. * * * In considering the fairness or unfairness of the agreement, I cannot, I think, as regards the Hawkhurst, any more than as regards the Strathgarry, take into consideration the events that happened after the agreement. was made. But the events which actually did happen are only illustrations of the risks incidental to such service as the Hawkhurst rendered.”
As before said, the value of the service is to be estimated by the conditions of wind and sea prevailing at the time it is entered upon, the circumstances of the salved and salving vessels at that time, and the casualties which experience teaches practical seamen are liable to happen in the course of events while the service continues. In the case at bar, the answer admits that this was “a meritorious salvage service.” The logs of the two ships, extracts from which are given in the statement of facts prefixed to this opinion, show that the Sagamore encountered very serious risks in going to the relief of the Great Northern, and in preparing to take her in tow. She herself, as well as the Great Northern, was afterwards liable to all the usual risks attending the towage, on the North Atlantic seaboard, of a great steamer, of more than 3,000 tons gross, and with 15 feet of tree board exposed to the wind. The Great Northern’s motive power was entirely disabled; her propeller useless, and bearing up against her rudder; she was without yards or square sails; and she had only a fore and aft rigging, which was not sufficient to give her steerage way. She was in ballast, and liable to plunge and to sheer ad libitum. She did sheer much during the towing, and brought injurious straining upon the engines of the Sagamore. The latter ship was in constant danger of her propeller fouling with the towing hawser. This vessel had §237,000 of values at risk, and brought the Great Northern, worth §100,000, safely into port. Fortunately for both ships, the weather and sea proved favorable after the towage was commenced. This last fact seems to be relied upon by the respondents as a reason for diminishing the amount which might otherwise be awarded to the salvors. Sufficient has been said to show that this principle does not hold good in admiralty. The good fortune of better weather and a quieter sea, which occurred during the course of the towing service, inured alike to both ships, and does not entitle the salved ship to claim the benefit of it, to the injury of the salving vessel. I think the award in this case should be liberal; and I will sign a decree for §10,000 and all the costs of this suit.
As to the considerations which usually enter into salvage service, see The Mary E. Dana. 5 Hughes. 362, 17 Fed. 353; The Marie Anne, 5 Hughes, 462, 48 Fed. 742; The Sandringham, 5 Hughes, 316, 10 Fed. 556. See, also, The Taylor Dickson, 33 Fed. 886; The Akaba, 4 C. C. A. 281, 54 Fed. 107; The Phoenix, 10 C. C. A. 506, 62 Fed. 487; and The Florence, 65 Fed. 248, for the opinion of this court.
Decree (March 31, 1806).
This cause came on this day to he heard upon the pleadings and proofs, and was argued by counsel; on consideration whereof the court, for reasons stated in writing and filed herewith, doth order and decree:
1. That the libelants, the Belgian American Maritime Company of Antwerp,*684 Belgium, owners, and Theodore Voss, master, of the steamship Sagamore, on behalf of themselves and the crew of the said steamship, do recover of the steamship Great Northern, for the services mentioned in the libel, the sum of $10,000, with interest thereon from the 1st day of November, 1895, till paid, and all costs expended by them to be taxed by the clerk of this court.
2. And it appearing to the court from the record that the steamship 'Great Northern was discharged from arrest in this cause by giving bond with C. J. Smith, J. G. Womble, and O. W. Grandy, as stipulators, the court doth further order and decree that the said Belgian American Maritime Company, of Antwerp, Belgium, and Theodore Voss, on behalf of themselves and crew of the said steamship Sagamore, do recover of the said G. J. Smith, J. G. Womble, and O. W. Grandy the said sum of $10,000, with interest from the 1st day of November, 1895, till paid, and costs; to be taxed as hereinbefore provided, and may have their writ of execution to enforce the payment of the same against the said stipulators or either of them.
3. And the court proceeding to apportion the sum hereinbefore decreed, doth further order and decree that out of the amount awarded the sum of $3,000 shall be allowed the master and crew of the said steamship Sagamore, of which the sum of $750 shall be paid to Theodore Voss, the master of the said steamship, and $2,250, the balance thereof, shall be paid to the remaining officers and crew of the said steamship in proportion to the wages received by the said officers and crew, respectively, at the time of the services mentioned in the said libel, and that the amounts awarded to the said master and crew shall be net amounts, free of counsel fees, and that the balance of the said award shall be paid to the said Belgian American Maritime Company of Antwerp, Belgium, the owner of the steamship Sagamore, or their proctors of record.
But no execution shall issue on this decree until after the expiration of 20 days from this date.
Norfolk, 31st March, 189G.