53 F. 840 | 5th Cir. | 1893
This suit was a suit for salvage brought by the master of the schooner Cora, for himself, the crew and the owners of the schooner, for services rendered in saving a portion of the cargo of the steamship Eldorado. The Eldorado, on August 4, 3891, while proceeding from New York to New Orleans, being a vessel of 2,500 tons, struck a concealed rock near the Bahama bank, which caused .her to spring a leak, so that it became necessary to run her aground. She was grounded successfully upon a bank about 30 miles from Great Isaac’s lighthouse. The master desired to lighten the ship by taking out the cargo, and, having employed without success several crews from North Bimini, sent to Key West the mate, who obtained the revenue cutter McLean and the schooner Cora, The latter was brought by the former alongside the disabled steamship Eldorado. The Cora, with her pumps, diver, and crew, worked from the 9th io the 34th of August, but did not stop the leaks, nor permanently lower the water in the Eldorado to any great degree.
Meanwhile, on the 14th of August, the Merrit Wrecking Company arrived, and, with their complement of men and apparatus, got her in such a situation that on the 18th she was lowed by the steamer New York to a sheltered place, and on the 25th of August proceeded towards Hampton Roads. On the 16 th of August the large steamer New York, sent out by the owners of the Eldorado to receive her cargo, arrived and received it. The original object of the master in having the Cora brought out from Key West was to stop the leaks of the Eldorado, and get her off the reef, by lightening her of her cargo, and, after she was sufficiently unladen to enable liim to get her off, to replace in her the cargo. This object was changed to the purpose to reload the unladen cargo of the Eldorado on hoard the New York after the arrival of tire latter. On the 16th of August the Cora, against the wishes of the master of the Eldorado, instead of transferring that portion of the Eldorado’s cargo which she had on hoard onto the New York, took it to Key West, where it was libeled. The reason which led the master of the Cora to take the schooner and her cargo back to Key West was fears of hurricanes, and a broken rudder, which the officers of the Eldorado offered to repair.
Two facts are impressed upon our rninds by a study of this case:
First. It is doubtful whether the services of the Cora would, in any event, have been of much value to (he Eldorado and cargo. The appliances and methods of the improvised crew seem to have been crude. Their diver had failed to discover the large leak which existed, and was discovered when the diver from New York arrived. This failure made their services to stop the leak of little effect. On the whole it is not:, from all the testimony, a case of clear, undoubted contribution to the saving of property.
Secondly. The withdrawal of the Cora from the Eldorado, and her taking a portion of the cargo to Key West, against the wishes and to the detriment of the owners of the salved property, is a serious feature of the case. Undoubtedly, salvors, as a general proposition, are entitled to the possession of the property which has been salved.
The lien of salvors is not dependent, as are common-law liens, upon possession. With reference to retaining possession, as in all his other movements with reference to the salved property, the salvor must act in the interest of, so to speak, the whole property. Even if he parts with possession, he may enforce his lien upon the property, into whosesoever hands it may come. The Eleanora Charlotta, 1 Hagg. Adm. 156; The John Perkins, 3 Ware, 89. The very essence of the right to claim salvage is a benefit to the ownera by the saving of the property. The supreme court, through Justice Washington, thus defines salvage:
“Salvage Is allowable 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.” The Brig Alerta, 9 Cranch, 367.
In The India, 1 W. Rob. 408, Dr. Lushington rejected all claim for salvage, on the grounds that the services had been unproductive of advantage to the owners, and that the salvors quitted the vessel, leaving the salvage service incomplete. When we consider the question whether there was benefit in this case, we are struck with the doubtful character of the services, viewed' as effectual salvage services, and with the necessary loss caused by the removal of the merchandise to Key West. There is a feature in the case, in favor of the libelants, which we have not overlookéd, viz. their prompt coming from Key West to the disabled vessel. We think this is a case where the compensation of the libelants should be pro labore et opere, and not for salvage services.
The libelants, comprising the corps of men who came on the Cora, numbered 22. They were employed about 5 days. The schooner was valued at about $3,500. There has already been an award in the United States district court, eastern district of Virginia, of $2,500 for the libelants’ services, so far as relates to the vessel, — the Eldorado. For the libelants’ services, so far as relates to the portion of the cargo taken on board the Cora, we think there should be an award to the 22 men who constituted the crew of the Cora of $25 each, — -that is to say, of $550, — and to the owners of the schooner Cora of an equal amount. The decree will therefore be that the decree of the court below be set aside, and that there be a decree as above stated; the libel-ants recovering their costs in the court below, and the respondents recovering their costs in this court.
