45 F. 647 | N.D. Cal. | 1890
On the afternoon of January 3, 1890, Messrs. Goodall & Perkins received a telegraphic dispatch from the first officer of the steamer State of California, dated “Bowen’s Landing, via Walhalla,” informing them that the steamer had broken her shaft, that her rudder was di,sallied, and that assistance was required to tow her into port. The steamer was then three days overdue, and her non-arrival had given rise to serious apprehensions for her safety. Her value, with her cargo and freight, was about $300,000. She also had on board 130 passengers. On receiving this dispatch, Ex-Gov. Perkins immediately opened negotions with Mr, J. D. Spreckels, representing the libelants, who are the owners of five powerful and well-equipped tugs, for the dispatch of one of them to tho assistance of the disabled vessel. A written contract was
“If the master of a burning vessel prefers to allow her to burn, rather than to permit outside parlies to extinguish the flames, he may do so. lie has a perfect right to decline any assistance that may be offered him. He should not be assisted against bis will.”
I should hesitate to accept the view of the master’s right and duties as broadly as it is here laid down. But where the owners of a vessel in peril have taken all measures in their judgment necessary to insure her safety, and those measures arc adequate, and all that prudence requires, other parties have no right to obtrude their services, and anticipate the employment of the means adopted by the owners, and then, if successful, claim a salvage recompense. Such an enterprise savors more of a predatory expedition than a salvage service to be encouraged and rewarded on grounds of public policy. It is said by Mr. Justice Bradley in The Justice v. The Chalmette, 1 Woods, 398:
“If my ship is disabled, but perfectly safe for the time being, and I go ashore to employ a tug-boat to tow her into port in mild weather, then presenting no danger or risk, can the owners of vessels whose business it is to do just such work decline my employment, and hasten off in a race to see whiph shall first seize my ship as a salvage prize? This, instead of encouraging that enterprise and daring which the laws relating to salvage are intended to foster, w'ould be to encourage sharp practices and unconscionable speculation.”
In this case the agent of the tug-boat declined the office of towing the bark for an agreed compensation, but said he was going down to take his chances as a salvor, and make a claim for salvage services. Mr. Justice Bradley characterizes this conduct as “somewhat extraordinary,” and adds:
“Had not the captain finally yielded to this proposition, * * * it might well have been doubted whether it was a case of salvage at all.”
These observations are commended to us not less by their justice and good sense than by the authority of the eminent judge by whom they were made.