Parsons v. Rockwell, 62 F. 487

62 F. 487 | 4th Cir. | 1894

Lead Opinion

JACKSON, District Judge.

The master of the steamship Saginaw, on behalf of the owner, filed a libel for salvage, in the circuit court of the United States for the eastern district of Virginia, against the steamship Phoenix. The Saginaw was a passenger and freight steamer plying between the city of New York and divers West India ports. She left New York on her regular trip February 9, 1893, with an assorted cargo worth, about $400,000, with a crew of 39 men, and 8 passengers. The value of her trip, including both freight money and the fares of passengers, was about $13,000.

On the night of February 12th, in latitude 32° 35' N., longitude 71° W., the Saginaw was attracted by signals of distress, and, proceeding in the direction of the signals, about 10 miles distant found the British steamer Phoenix disabled with a broken shaft, and requiring assistance. The captains of the two steamers entered into negotiations for the towing of the Phoenix, which, resulted in the libelant agreeing to undertake to tow the Phoenix into Chesapeake bay. When the shaft broke, the Phoenix was about 300 miles from the hay, in the open sea; the accident occurred February 8th, and the Saginaw took the Phoenix in tow about 2 o’clock on the morning of the 13th. Between those dates she was under sail and drifted about, changing her position hut little. The libelant says, in his testimony, “the weather was generally fair, except at times strong gales and heavy seas.” The voyage commenced about 2 o’clock on the morning of the 13th, and during that day the evidence shows that there was a moderate breeze and cloudy weather. On the 14th, the weather was squally, blowing hard at times; the 15th “set in with moderate weather and light breeze blowing” until evening, when it became foggy, which condition prevailed until the vessels came to anchor on the morning of the 16th, and in consequence of the fog, and the violent storms which set in during that night, remained at anchor until about 11 o’clock on the morning of the 17th, when the storm abated and the voyage was resumed, and the Phoenix towed, without difficulty, into Hampton Roads. A careful examination of the evidence shows that there is but little, if, in fact, any, conflict between the parties to this case as to the character of the weather during the time actually occupied in the towing, and we therefore accept the statement of the master of the Saginaw “that the weather was generally fair, except at times strong gales and heavy seas,” which the evidence discloses were of short duration; but his evidence does not, nor does that of any taken upon the part of the libelant, show that there was any unusual or dangerous storm while the vessel was actually in tow. It is not to be denied that there was more or less trouble, as is always the case under such ' circumstances, in handling the vessel, but it must be admitted that no unusual trouble occurred, nor was there any evidence of any unusual risk taken by the Saginaw. In the language of one of the witnesses, the Phoenix “towed pretty evenly, without jerking.” The weather, for the season of the year, was very good, and under its condition there was but little danger or difficulty to be apprehended. But little, if any, hazardous service was encountered; certainly there was no heroic effort required of the salvors in bringing the vessel into the port of safety. Such we find to be the substantial facts ,of this case, upon which the district court founded its judgment, and awarded the libelant $85,000 salvage.

It is to be observed that the services rendered were not extraordinary nor unusual. No unusual seas were encountered, the vessels had no hurricanes to contend with, nor was the Phoenix, the disabled vessel, close to a dangerous coast, and, as the sequel proved, there never was a well-grounded apprehension of extreme danger. The only storm encountered arose after the vessels were anchored inside of Lynnhaven bay, a place of comparative safety, which continued a day before they were enabled to go into Hampton Roads, where the towage ceased. Although the storm was violent while the steamers remained at anchor, still there is no evidence of any particular peril encountered, or of unusual risk to the vessels. We are asked, under these circumstances, to affirm the judgment of the district court, and many cases have been cited, not only to aid the court in reaching that conclusion, but also to show that courts, in the exercise of sound discretion, in cases of this character, are as a general rule disposed to be liberal in their allowances for compensation, and that a more liberal allowance should be made in cases arising on the south Atlantic coast, for the reason that navigation along it is more dangerous and perilous than on the northern coast. Another reason assigned for the support of this proposition is that there are not near so many vessels passing along that coast, and for this reason the risk to disabled vessels is greater in this part of the ocean.

This brings us to the consideration of the main, if not, in fact, the only, question presented in the record in this case, and that is whether the amount of salvage allowed by the court is excessive. Counsel on behalf of the claimants have referred the court to a number of adjudicated cases as persuasive authorities to show, not only the flexibility of the judicial mind in regard to salvage rewards, but to convince it that the allowance in this case is excessive, while the opposing counsel has cited many to sustain it. It is to be remarked that the elements that enter into an estimate are not always found to exist alike, and for this reason the award in each case must depend upon the circumstances surrounding it, and hence “the elasticity of the law of salvage.”

From the many cases referred to, we have selected The Alaska, 23 Fed. 597, one of the largest passenger vessels afloat at that day, not only for the reason that the conditions prevailing at the time of her accident, and during her towage, were in many respects similar to those of the Phoenix, but for the additional reason that the allowance made in her case was the largest, under somewhat similar conditions, among the cases cited. Khe, with her cargo and freight, was valued at §1,041,542, and the Lake Winnipeg, which went to her assistance, was valued, including her cargo, at about §350,000. When found, she was 600 miles from New York, with a broken rudder, having encountered “heavy weather,” and had drifted for two days without aid when the Lake Winnipeg observed her signals of distress and took her in tow, arriving in New York on the fourth day of (heir voyage. During the voyage the weather became “boisterous, with thick snow,” the cables which fastened the two steamers together parted, and many other difficulties were encountered. In her case, the character of the weather was much the same as existed in the case of the Phoenix. No supreme danger was encountered by either vessel during their towage, which called for heroic endeavor. The allowance in that case was 89,000 less, though there was nearly, if not, three times as much in value involved.

But it is claimed by counsel for the libelant that this and other cases relied upon by counsel for claimants as persuasive guides for the court in fixing the amount of the allowance are mostly, if not altogether, cases decided by courts on the north Atlantic coast, who are not inclined to be as liberal as courts on the south Atlantic coast, mainly for the rea,son. that they are noi; called upon to consider cases which arise on that coast, and which to the mariner is one of special danger. Whether or not there exists upon that coast special danger is not a question of fact involved in this case, and cannot, therefore, be considered as an element in fixing the allowance, as the Phoenix was far out at sea, and for this reason we dismiss its further consideration. In our examination of the cases relied upon by counsel for the libelant, where the accidents to vessels have occurred on the south Atlantic coast, we reach the conclusion that the courts on that coast have not been more liberal than the courts on the northern coast, but that in a few instances they have had cases of extreme peril to life and property, which required heroic efforts upon the [tari; of those who went to the assistance and rescue of vessels, that justified liberal allowances. The Akaba, which is relied upon to support the allowance in this case, and which is the strongest one cited, we think rests upon facts that do not exist in this case. The case of the Phoenix is one of meritorious towage, where no such supreme necessity for aid and prompt action existed as in the case of the Akaba. This court, in reviewing that case, used the following language, which, we adopt, showing the extreme peril of the vessel and all on board: "She was found on a dangerous coast, perhaps the most dangerous of American coasts, drifting to leeward, in a heavy northeast gale, almost helpless,” with a broken shaft, 10 miles off the coast at Hatteras. “The vessel that went to her rescue had many passengers and a valuable cargo aboard, much of which was perishable, rendered her successful assistance, rescued her from imminent peril, and after great toil and danger towed her to a place of safety.” That was a case of supreme necessity, requiring prompt action and great effort upon the part of the crew of the vessel which went to the assistance of the Akaba. In that case, the district court allowed $30,000, which, upon appeal, was approved by this court. 8 U. S. App. 316, 4 C. C. A. 281, and 54 Fed. 197. But that allowance was $5,000 less than in this case, and, as we have seen, under far different circumstances. That is the only reported case we can find on the south Atlantic coast that approximates the allowance in this case. Numerous cases cited in appellants’ brief tend to show that this allowance is in excess of the usual amounts for services of this character under similar conditions. Necessarily, no general rule can be laid down to regulate allowances in,cases of salvage. The rewards to salvors largely depend upon the merits of their claims in each case. We would not be inclined to interfere with the decree complained of in this case, even if we were of opinion that the allowance was greater than we would have originally made, unless, under all the facts, we reached the conclusion that the allowance was excessive.

In the light of the precedents before us, as well as the fact of the absence of those essential elements in this case that w'ould justify so large an allowance as the district court made, we are of opinion that there should be an abatement of $15,000, reducing it to $20,000, which, we think, under the facts of the case, will be a liberal reward.

The decree of the district court is modified to this extent, and the case is remanded for that purpose, in accordance with this opinion.

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Rehearing

Petition for Rehearing by Appellee.

{June 2, 1894.)

PER CURIAM.

We have carefully considered the petition for a rehearing, and the points therefor pressed by the appellee. We see no reason to change the conclusion reached by the court after a full and exhaustive argument upon the merits of the appeal. Whatever ambiguities, if any there be, in the opinion filed, have been removed in the mandate sent down by this court to the district court. In that court, a reapportionment can be made upon the change in the amount of the salvage award, where complete justice can be done to all parties. The prayer of the petition is refused.