108 F. 878 | E.D. Wis. | 1901
(after stating the facts). The libelants were seamen engaged in the performance of their duty to ship and cargo, as such, when the alleged service in the nature of salvage was rendered. The doctrine is well settled that their duty and allegiance were due continuously throughout the term of engagement; that it was imperative, in the event of distress or shipwreck, to exert themselves “toxthe utmost to save the vessel, cargo, and stores,” and their failure so to do is declared by statute a bar to any claim for wages. Section 4525, Rev. St. Salvage services can be performed only “by persons not bound by their legal duty to render them” (2 Pars. Bhipp. Sc Adm. 264), and seamen “are not allowed to become salvors, whatever may have been the perils or hardship or gallantry of their services in saving the ship or cargo,” as remarked by Mr. Justice Story in the early cause. of Hobart v. Drogan, 10 Pec. 10x8, 122, 9 L. Ed. 363, unless their connection with the ship is dissolved. The authorities on the subject are reviewed in the case of The C. P. Minch, 20 C. C. A. 70, 73 Fed. 859, 865, and the opinion thus states the deductions therefrom:
“In every ease where compensation in the nature of salvage has been awarded to seamen, the voyage has terminated by the shipwreck of the vessel, which has either gone to the bottom or left her bones oil the shore, or she has been’ abandoned by ail, or by all except the salvors, under circumstances which show conclusively that the abandonment was absolute, without hope or expectation of recovery, or the seaman lias been by the master unmistakably discharged from the service of the shipowner.”
The fairness of this summary is conceded in the brief submitted on behalf of the libelants, but it is contended that the testimony presents a case within the exceptions, based npou the twofold assumption (1) that a so-called “abandonment” to the underwriters appears; and (2) that such fact, in connection with the alleged don-duct of the master, operated as a discharge of the seamen “from the service of the shipowner.” I am of opinion that neither of these theories is ten able; that the first is unsupported by proof, and the second is unfounded either in law or in fact. Under the law of marine insurance, the property at risk may be abandoned to the insurer in cases of constructive total loss, and such act amounts to “the cession by the insured of all Ms interest in the subject insured to the insurer.” 1 Am. & Eug. Enc. Law (2d Ed.) 5. But there is no testimony in this case of such an abandonment in fact, nor of circumstances calling for its exercise; and the utmost lha.t can reasonably be inferred is that underwriters were duly informed of the stranding, and either furnished or approved the relief expeditions. If so, they were acting within their right as insurers for the protection of their interest in the property, whether vessel or cargo or both, and not as salvors or volunteers. The Lydia A. Harvey (D. C.) <84 Fed. 1000. An abandonment to the insurers, however, merely results in a change of owners, and the duty of master and seamen to stand by the ship and cargo is unaffected by such change. Their service is due to both and to all interests involved in the venture.
In the case at bar it is manifest that the steamer was not “absolutely abandoned, without hope of recovery,” and that neither master nor seamen so regarded the situation; but she was on the shoals, in September, when storms were to be expected and with a storm threatening, and it was well understood that speedy release was essential. The duty was unmistakable and urgent for the utmost exertion on the part of master and crew to that end, and without demand or promise of extra compensation. If the master, under such stress of circumstances, promised the seamen better pay at the expense of the insurers, as the libelants testify, the promise was unwarranted. So made, whether exacted or volunteered, it merely called for the performance of an imperative existing obligation, and, at best, was without consideration. Therefore, while the proof preponderates in favor of the alleged promise, I am satisfied that it can receive no judicial sanction as a binding agreement, or as a discharge in any sense from the service of the ship. The libels must be dismissed accordingly, but no costs will be charged. The amount of the tender in favor of the libelant Batchelder will be paid to him.