76 F. 855 | D. Wash. | 1896
These cases are full of interest, because of the important questions presented for consideration, as well as for the story of hardships endured, heroic efforts to save, and the final rescue of, a valuable ship and cargo, and the lives of a large number of persons, constituting her ship’s company and passengers. That story, briefly told, is as follows:
On the 12th day of October, 1895, the steamship Strathnevis, an English merchant vessel, left Tacoma with a cargo of 3,000 tons of flour and miscellaneous merchandise, of the value of $55,000, and 129 passengers, and a crew of 30 persons, bound on a voyage .to the city of Yokohama. She touched at Victoria, and there took on other passengers, making the total number 165. On the seventh day out from Victoria, in latitude 49° 14' N., and longitude 164° 27' W., and distant about 1,600 miles from Cape Flattery, in a heavy northwest gale; her propeller shaft broke between the stern post and boss. It was a clean break, the propeller being completely severed from the vessel and lost in the sea, depriving the vessel of all use of her propelling machinery, and leaving her destitute of motive power, except the wind. The Strathnevis is a first-class steel steamship, of 3,574 tons registered gross tonnage, and 2,305.56 tons net. Her dimensions are 350 feet keel, 43 feet beam, 27 feet depth; her engines are 1,500 horse power; and her carrying capacity is about 6,000 tons. She was built for a cargo ship, but had been fitted for the accommodation of passengers, and was, at the time referred to, employed as one of the vessels of the Northern Pacific Steamship Line, from Tacoma to Hong Kong, via Victoria and Yokohama. She carried five small sails, which, with two others improvised after the accident, made a total spread of canvas of less than 1,000 yards. In her disabled condition, and with her inadequate facilities for sailing, she battled with tern-
The Strathnevis was driven before the gale until she came within seven miles from Destruction Island, where she dropped an anchor
It is established by the evidence, beyond question, that the master, officers, and crew of the Mineóla were prompt in rendering assistance to the Strathnevis, and that they displayed the very highest degree of couragé and seamanship. Their undertaking was perilous, and involved arduous labor, which was skillfully performed, and resulted in complete success. The value of such service cannot be fairly measured by the ordinary contract rates for towage services performed by vessels in the business of towing. The Mineóla was not in commission as a tugboat looking for such employment, although she was fortunately equipped with towing bits and other appliances, which were useful on this occasion. I must find from the evidence that the Strathnevis was in a position of imminent peril when the Mineóla found her. The testimony to the contrary given by her commander and other witnesses is, in my estimation, completely overcome by the evidence of the signals flying from the masts of the disabled vessel at that time, and the indisputable facts that, being without motive power to render her manageable in such a position, and with one anchor lost, and tempestuous weather prevailing, she was lying at anchor on the lee shore of Destruction Island.
I find the value of the property saved to be, according to a preponderance of the evidence, as follows:
Value of the Strathnevis...$1:50,000
Value of her cargo..... 55,000
Value of freight and passenger money. 15,000
Total value -..:...$220.000
■ ■ By the undisputed evidence, it is shown that the value of the Mine-óla, her cargo and freight, amounted to $216,850. The time of the Mineóla consumed by the deviation from her voyage was four days, and the value thereof $2,000, and her hawser destroyed in the service was worth $600. In view of all the facts and circumstances, it is my conclusion that the following sums, as a reward for the service rendered in saving the Stratiinevis, are just and reasonable, viz.:
To the owner of the Mineóla........ $12,000
To Oapt. Pillsbury.. 1,800
To G. W. David, first mate......... 600
To Alex. Kirkwood, second mate.... 600
James S. Richards, chief engineer.. 600
John Nelson, seaman. 300
Edward Olson, seaman!.. 800
Harry Fabricicous, seaman.. 300
O. W. Parker, third mate.......... 300
Charles A. Engleman, carpenter. 300
*861 Otis Doe, assistant engineer. ? 300
.John H. Dong, second assistant engineer.. 300
[¡¡award H. Waterman, third assistant engineer. 300
John F. Grant, steward....... 200
James Richardson, coolt. 200
Howard Marden, seaman... 200
D. White, seaman. 200
Arthur Christian, cabin hoy...:. 200
L. Johnson, seaman..... 100
Albert Osberg, seaman. 100
Michael McLaughlin, seaman . 100
John Finley, waiter. 100
Thomas Koeu, oiler. 100
Fred Ott, oiler... 100
James Maddison, fireman . KM)
William Carey, fireman..... 100
M. Connor, fireman. 300
William Malloy, fireman..... 100
M. O’Connor, fireman...... 100
David Wilson, fireman. 100
Andrew Adamson, coal pass or...... 300
O. A. Peterson, coal passer... 100
Fred West, coal passer...... 100
In the distribution as above, I have intended to recognize special merit in Second Officer Kirkwood, and Seamen Nelson, Olson, Fabricicous, Marden, and White, and Christian, the cabin boy.
Gounsel tor the respective parties have cited many cases bearing upon the question as to the amount proper to be awarded as salvage. I have taken the case of The Sirius, 6 C. C. A.. 614, 57 Fed. 851, as my guide, for the reason that the decision in that case was rendered by the circuit court of appeals for this circuit, and I consider it a fair decision. In that case the court awarded the total sum of §8,000, although the master of the Sirius had entered into a written contract with the master of the rescuing ship to pay §20,000. In this case the value of the property salved is considerably greater, and was in more imminent peril, the hazard incurred was greater, and the labor performed more arduous; and the master of the Mineóla is entitled to higher consideration, because he went to the rescue promptly, and in a manly, generous spirit, — much to Ms credit, in contrast with the behavior of the captain of the Tillamook. The Sirius, however, was towed a greater distance, and the time of the service was longer. It is my opinion that the above amounts are liberal recompense, and yet reasonable, irrespective of the claim for salvage made against the Strathnevis in behalf of the owners, master, and crew of the Miowera.. and the same will be decreed to be paid accordingly.
Referring now to the case of the Miowera, I find, from the pleadings and the evidence, that she found the Strathnevis in a perilous situation, far from land, and out of the track of inward bound steam vessels. With her defective sailing gear, the Strathnevis was able, at best, to make but slow progress towards any haven; and in midwinter, when storms were to be expected, she was in great danger of becoming entirely unmanageable, and of being driven ashore or upon the rocks when she approached near the coast. The Miowera rendered meritorious service, in towing her to the
“All the evidence tends to show that the peril was continuons from the first moment when the schooner went to the relief of the bark down to the time when the steamer Western Port anchored her in the port of Hyannis, in a condition so crippled and disabled by the disasters she had encountered that the service of the other steamer was indispensable to get her into Boston, where she was bound. She was in very great peril when relieved by the schooner, and was by her placed in a position of far less exposure. Those on board the schooner were prevented from doing more by the violence of the storm, and from returning to complete the service, by causes beyond their control. They rendered important service in changing her position, and in transmitting intelligence to her owners, and in giving them the opportunity of sending forward more efficient aid.”
The case was appealed to the supreme court, which affirmed the decree. Cromwell v. The Island City, 1 Black, 121. In the opinion of the supreme court, by Mr. Justice Crier, it is said that:
“Tlie peril from which the bark was finally rescued by the interposition of the Western Port was begun previous to the 23d of January, when the hark was first, discovered by the schooner, and the salvage service was first commenced. The hark was in her greatest peril at that point, and was with much difficulty taken by the schooner to a place of greater comparative safety; but she was unable to put the hark in a place of absolute safety, in the port of Hyannis. The peril was not ended. The schooner, being unable to complete the rescue, gave notice by telegraph to the owners, at Boston, who dispatched the steamer Forbes to the assistance of the hark. * * * We concur, therefore, in the opinion of the circuit judge that the hark was not abandoned after salvage service commenced, that it was one continuous peril from which the hark was rescued, and that each of the several salvors contributed to the final result.”
Another case in point is Cowell v. The Brothers, Bee, 136, Fed. Cas. No. 3,294. The Brothers, on her passage from Lisbon to Baltimore, had encountered a succession of dreadful tempests, reducing her to a mere wreck, so that it was difficult to keep her afloat. For three weeks the crew suffered all that human nature coadd endure, and two members had been washed overboard. In this situation, Capt. Cowell found them, and supplied them with provisions, when they were on the point of starvation. He offered to take them aboard his vessel if they would abandon The Brothers, but was finally persuaded to take the wreck in tow. After towing for several days, during which time the men on The Brothers were supplied with provisions by Cowell, the towline was broken a second time, after having been repaired once; and on account of the tempestuous weather it was impossible to again take the damaged vessel in tow, or for the vessels to keep together, and they soon separated, and did not again come in sight of each other. The disabled vessel drifted for nine days afterwards, when she came to anchor, and subsequently, with other assistance, was enabled to reach a port of safety. . Judge Bee, in his decision awarding salvage to Cowell, said:
“The service rendered upon this occasion was as great as the erew could receive; nor is it at all proba We that the vessel would have been saved by any other means. Cowell, too, risked much in the attempt; for his ship was actually injured, and the delay of towing rendered him additionally exposed to capture, and to the forfeiture of his insurance. He failed, indeed, in bringing the brig into port, but not until lie had done all that was possible. He*864 .brought her into soundings, within 90 miles of land, and the supplier She received from him enabled her crew to sustain the fatigué of nine days after the separation.”
Ryan v. The Cato, Bee, 241, Fed. Cas. No. 12,184, is another case in which Judge Bee awarded salvage to a salvor who, after rendering important service, was prevented from bringing a disabled vessel into port by stress of weather. In the case of The Gary v. The Sherman, Chase, 468, Fed. Cas. No. 5,259, the facts were as follows: After the Gary had conducted the Sherman for some time, the towline parted; and it was a question in the ease whether the hawser was broken, or whether it was cut by direction of the master of the Sherman, with fraudulent intent on his part to avoid liability for the service rendered by the Gary. The Sherman did not signal, and the captain of the Gary, concluding that the separation of the vessels was intentional on the part of the Sherman, made no further' effort to complete the service he had undertaken. The Sherman, after proceed^ ing for a time by her own sails, was assisted into port by another vessel. Chief Justice Chase, in deciding the case, said:
“Through the aid of the Gary, the Sherman had been rescued from danger, and brought safely a great part of the way to Charleston. Favorable winds enabled her to proceed still further without that aid, and then she found another vessel which towed her into port. Under these circumstances, I am inclined to regard this as a case of salvage, in which two vessels performed successfully the salvage services.”
■ The recent decision by Judge Brown in the case of The Veendam, 46 Fed. 489, is in line with the decisions already referred to. In that case the steamship Véendam, in middeean, about 1,350 miles from New York and 900 miles east from Halifax, became disabled by the breaking of her shaft. The steamship La Flandre came to her assistance, in answer to signals of distress, and towed her a distance of about 191 miles, when the towline was broken; and, owing to a thick fog, it was impracticable to re-establish connection, and both vessels anchored and remained near each other until temporary repairs enabled the Veendam to proceed by her own steam. After a time the Veendam disappeared, and the master of La Flandre, concluding that she had gone ahead of him, proceeded to Philadelphia. The Veendam, by her own machinery, finally arrived at New York. In his opinion, Judge Brown says:
“I cannot doubt that tbe services rendered in this case were of a salvage nature, as distinguished from ordinary towage. That subject has been several times considered in this court. Such services are treated as salvage when rendered to a disabled ship with the obvious purpose of relieving her from circumstances of danger, either present or reasonably to be apprehended, and not merely to expedite her passage. The Saragossa, 1 Ben. 552, Fed. Cas. No. 12,334; The Emily B. Souder, 15 Blatchf. 185, Fed. Cas. No. 4,458; McConnochie v. Kerr, 9 Fed. 50-53; The Plymouth Bock, Id. 413-416. The sails of the Veendam were not sufficient for safe navigation in her situation. She was 900 miles from the nearest port, and, during the 12 hours before La Flandre was sighted, she made only about 1% knots per hour under sail. Her ability to make repairs to her shaft, secure enough to proceed under her own steam power, was evidently uncertain, and could only be determined by trial, and she had 600 passengers on board. The situation was therefore manifestly one of reasonable apprehension of danger. A disabled steamer in midocean is not in a safé place, or in a safe condition. * * * It is objected that La Flandre did not tow the Veendam into port, or to a place of*865 safely, and that when her shaft gave out the second time she was in as much danger as at first; so that La Mandre is not legally entitled to salvage compensation, because not successful. The Edam, 13 Fed. 135; The Algitha, 17 Fed. 551: The Aberdeen, 27 Fed. 479. The principle invoked is elementary. It is applied when the ship is lost, or when the attempt to rescue her is abandoned. In the cases cited the salvors voluntarily abandoned the service. Here the ship was saved, and the service was not voluntarily abandoned. * * * It is not essential to a salvage service that the salvors should attend the vessel aided into port.”
I flunk the above eases show how the American courts regard cases of this character, where a vessel lias been found at sea in a situation of peril, and has been aided by one vessel, and her rescue has been completed by her own efforts, or by the aid of another, and the claim for salvage lias been preferred by the one first to render assistance. The English courts seem to look with equal or greater favor upon claims of this character. In the cast; of The Atlas, Lush. 518, the facts, in brief, were a.s follows: The libelant found the Atlas derelict about 70 miles from the shore of England. Hawsers were made fast, and they began to tow her, and continued during that day and the succeeding night, and the salvors labored at the pumps to keep her from becoming water-logged. A aleara tug offered her services to tow them into Yarmouth Roads, which services were accepted. The tide was falling, and, by persevering in the ai tempt io enter, libelant’s vessel went aground, the hawser by which she was towing the Atlas was broken, and the Atlas went upon the beach, and they were then deserted by the tug. After waiting for the weather to become sufficiently calm, the master of the Allas went ashore in Ms boat, and during his absence strangers boarded the Atlas, and brought her into harbor on the flood tide. On appeal to the house of lords, the decision of Dr. Lushing! on, refusing to award salvage, was reversed, and in the course of ihe opinion by Lord Coleridge it is said:
“That, whore a salvage is finally effected, those who moriioriously contributed to that result are entitled ro share in the reward, -although the pari they took, si a ruling by itself, would not in fact have produced it. * * « Whore succs'ss is finally obtained, no mere mistake or error in judgment in the manner of procuring it; no misconduct short of that which is willful and may he considered as criminal, and that proved beyond a reasonable doubt by the owners insisting the claim, — will wort an entire forfeiture of salvage.”
In the case of The Camellia, 9 Prob. Div. 28, the same rule was, observed. The Camellia, an iron screw steamship, on a voyage from Baltimore to Londonderry, having broken her propeller shall in mid ocean, proceeded for several days under canvass, when she fell in with the Victoria, a steamship on a voyage from Boston to Liverpool with a cargo of live stock. She was taken in tow by the Victoria, and proceeded under tow until the towiine broke. She signaled to be again taken in tow, but the Victoria' could not- come around without great risk of damage to her cargo of cattle and sheep, and she therefore proceeded on her way after signaling to the Camellia that she would report her. The Camellia subsequently fell in with tiie tug Etna, and was towed to Queenstown. In a suit on behalf of the; Victoria for salvage, an objection was urged that she
“I find as a fact that the Victoria did not leave the Camellia because she was unable to see that she was signaling to be again taken in tow, but because, from the nature of her cargo, she would have run a considerable risk of loss and damage to it by turning around to windward to connect the two vessels, and I am advised that this was a reasonable apprehension. * * * ■ I think that there was no misconduct on the part of the master of the Victoria, and that, balancing the risk to the interests which were committed to his charge with that to which the Camellia was still exposed, he did not act improperly in going on when the hawser broke.”
From all the authorities cited upon the argument, I deduce these principles:
First. To earn salvage, success must crown the efforts of the salvors. But, when a vessel has been actually rescued from a situation of peril, all who have contributed at any stage of the rescuing service are entitled to a share of the reward.
Second. Voluntary abandonment of an attempt to rescue a vessel in peril works a forfeiture of the right to salvage. But when salvors are prevented by stress of weather, fog, or darkness, or other circumstances beyond their control, from rendering further assistance, and there has been no willful disregard of duty on their part towards the imperiled ship, there should be no forfeiture.
Third. The amount of salvage to be awarded should be commensurate with the merit of the salvor’s conduct; and when salvage has been earned, and there has been no willful misconduct or neglect, mere failure on the part of salvors to do all that might be done under the circumstances affords good ground for reducing the amount to be awarded, but there is no inflexible rule making a total forfeiture the penalty.
Application of these principles to the case in hand leads me to the conclusion that the Miowera, her master, officers, and crew, by aiding the Strathnevis in answer to her signals of distress, performed a salvage service entitling them to compensation; that they did not voluntarily abandon the Strathnevis, but by going on their course to Honolulu, on December 23d, without first going to the telegraph station at Tatoosh and reporting the Strathnevis, the master of the Miowera failed to perform an important duty, and that failure gives rise to the serious question in this case,— whether or not there has been a total forfeiture of the right to salvage. I do not accept the excuse given by Oapt. Stott, which is that the machinery of the Miowera was in such a condition that it would have been imprudent to have made the run to the telegraph station. I think that idea is an afterthought, for no such reason is noted in the ship’s log, nor is it mentioned in Capt. Stott’s letter giving an account of his experience with the Strathnevis, written before arrival at Honolulu. I have concluded, however, out of regard for the many hours of brave and laborious efforts to save the Strathnevis, and heavy expenses and damages incurred and suffered by the Miowera, that total forfeiture is a penalty heavier than the offense deserves. I will therefore award as salvage about one-half the amount which in my judgment would other
To tlie owners of the Miowera.......... .$18,000
To James Stott, Iter commander.......... 500
To C. W. Hay, first officer... 500
To P. Smytn, chief engineer............ 500
To W. Anderson, second officer.......... . 300
To F. A. Hemming, third officer........ 300
W. Knox, carpenter.... 200
W. Scott, second engineer.............. 200
J. Stewart, third engineer............... 200
G. Lynch, fourth engineer.............. . 200
W. W. Knowles, fifth engineer.......... 200
H. L. Foster, sixth engineer............ 200
W. Morrison, seventh engineer.......... 200
T. B. Young, purser.................... 200
.T. Scott Conklin, surgeon.........___ 100
F.Whittington, chief steward.......... 100
E¡. J. Page, fourth officer...... 100
T. Healey ...... 100
J. Dodge, fireman..... 100
J. Me Averno, fireman... 100
H. Mulholland, fireman........... 100
J. Haekett, fireman.. 100
O. Hassett, fireman.. 100
JB. McCue, fireman..................... 100
F. Kirk, fireman.... 100
G. Calder, fireman.. 100
A. Davy, fireman.. 100
D. Tierney, fireman.. . 100
R. MeKecknie, fireman................. 100
G. Smith, fireman...................... 100
J. Middleton, chief cook.... 100
H. Rankine, boats wain.... 100
H.Johanson, able seaman... 100
J. Munning, able seaman............... 100
D. Graham, able seaman............... 100
G. Smith, able seaman.. 100
G. C. Hemberg, able seaman............ 100
W. Mitson, able seaman................ 100
J. Anderson.. 50
«T. Hart.... 50
A. Duggan.... 50
W. Fred ... 50
T. H. Stevenson, able seaman. 50
D. McDonald, able seaman..., 50
J. Harcus .. 50
J. O’Toole ......... 50
J. Spoors .... 50
C. McAvoy.... 50
J. Brown ... 50
W. Anderson... . 50
M. McGrath ... . 50
R. Green .... 50
*868 A. Went in... $ 50
W. Bagsley. 50
S. Hopkins ....... 50
M. Callan .... 50
C. Ralph . 50
D. Buchan ...•. 50
C. A. Dunkley, stewardess... 50
H. Bellmane. 50
J. McGraw . 50
F. Heather . 50
C. J. Shepard. 50
T. Easlea . 50
T. Collins . 50
C. Midlane . 50
D. B. Hastie. 50
A. Henry . 50
G. Clark. 50
S. Cohen . 50
C. Stevenson . 50
G. Bellchamber . 50
J. Nealson i... 50
W. H. McPherson. 50-
J. Keir . 50
G. Gawler . 50
A. Quahen . 50
B. Singleton, stewardess. 50
P. Sholders . 50
W. Patrick, barber. 60
'Let there be a decree in accordance with this opinion.