15 F. 545 | S.D.N.Y. | 1883
The appellants, members of the crew of the steamship 'Pomona, filed their libel against Kerr, the owner, and Mahlman, the captain of the steam-ship, to recover their share of $3,025.75, alleged to have been received by Kerr and Mahlman for salvage services rendered by the Pomona to the steam-ship Colon. The district
If the payment was received as salvage compensation for the entire service rendered by the Pomona, the libelants are entitled to recover. As is tersely stated by the learned district judge in his opinion, “the receipt of the whole compensation as salvage would necessarily import its receipt for the benefit of all the other co-salvors interested in the same service.”
That the service was a salvage service, though of an inferior order of merit, seems very clear. Such was the conclusion of the district judge, and, as will hereafter appear, such was the theory of the appellees and of the owner of the Colon when the former made claim against the Colon for compensation. That the payment received by the appellees was intended to be in full for the services rendered by the Pomona, is not disputed.
The case, then, is narrowed to the single question whether the parties to the payment regarded it as a payment for salvage or as one for towage only. If it was intended to cover towage only, then, of course, the crew of the Pomona have no interest in it, because their rights as salvors were not in controversy and could not be affected by any settlement without their consent, and because neither of the parties to the payment contemplated the adjustment of the rights of the crew.
Whether the parties to the payment regarded it as made for salvage depends upon the force of evidence, -which may be briefly stated: About a fortnight after the services were rendered by the Pomona to the Colon, the latter arrived at New York, and a libel -was filed against her by the appellees, “for themselves and all others entitled, ” for salvage. Process was issued, and the Colon was taken into custody by the marshal. Thereafter the owner of the Colon answered the libel. The answer alleged that “the services rendered were only towage, and should not be ranked as salvage services of peculiar merit. ” The answer also alleged that $1,000 would fairly compensate for the services, and that such sum was tendered and paid into the registry of the court.
Shortly after the filing of the answer, in order to settle the controversy without litigation, negotiations took place between the owner of the Pomona and the owner of the Colon, which resulted in an agreement that a Mr. Dennis, the vice-president of a marine insurance company, should act as arbitrator, and fix the sum to be paid
Mr. Dennis testifies that he understood he was to decide whether the service rendered by the Pomona was a salvage service, as well as the amount of compensation which should be paid; but neither of the parties to the arbitration so testify, and the captain of the Colon, who was present when the arbitration was agreed upon, states that it was agreed that Mr. Dennis should make an award as compensation for the salvage.
Inasmuch as the claim made against the Colon by the appellees was for salvage, and was in behalf of themselves and all others entitled ; as the owner of the Colon did not seriously dispute the theory that the service was salvage, but insisted that it “should not be ranked as salvage of peculiar merit; ” as the paramount question between the parties to the suit against the Colon was as to the amount to which the libelants were entitled; and as the amount finally paid was paid in settlement of the suit, and was receipted for as so paid by the appellees,—the conclusion is reached that the payment was understood by the parties to it as relieving the owner of the Colon from all further responsibility for the service rendered by the Pomona, and as shifting upon the appellees the duty of satisfying all others who might be entitled to a share in the reward. If this was the contemplation of the parties it would be manifestly unjust to subject the owner of the Colon to liability to the appellants; and yet such would be the result if the conclusion of the district court should be approved, because the service was, in fact, a salvage service.
The circumstance that the arbitrator incidentally decided that the service rendered by the Pomona was only in the nature of a towage
The question whether the crew had any claim growing out of the service, was not suggested by the parties, or considered by the arbitrator. As the crew could not be bound by his decision, and as he was to decide what compensation should be paid for the whole service rendered, and as the paramount object of the arbitration was that this decision should exonerate the owner of the Colon from the claim for salvage made in their libel by the appellees, the presumption is cogent, if not irresistible, that both parties intended that the latter should be exonerated completely; and if, incidentally, that should require the satisfaction of the claims of the crew, that liability should rest upon the appellees.
The large compensation awarded seems to have been given upon the theory that, although the value of the Pomona’s services to the Colon was of great value to the latter, in view of the exigency of her situation, the efforts of the Pomona involved no appreciable danger, hardships, or labor to herself or to her crew; nothing but the delay of a day, with its attendant expense, and the risk assumed by a deviation on her voyage. She probably sustained the chance of loss by the derangement of her business engagements which a day’s delay
Upon all the facts, one-fifth of the whole salvage will adequately reward the officers and crew. The decree is that $600, with interest at 6 per cent, from October 4, 1880, be deposited in the registry of the court, to be distributed to the officers and crew in the proportion their monthly wages bears to the whole monthly pay-roll. The libel-ants are entitled to costs of the appeal, and in the district court.