The Egypt

17 F. 359 | U.S. Circuit Court for the District of Eastern Virginia | 1883

Hughes, J.

This case corresponds so nearly in its general character and iu its details with that of The Sandringham, 10 Fed. Rep. 556; S. C. 5 Hughes, 316, decided by this court a year ago, that I do not feel called upon to deal particularly with every question of law arising in it. There was no appeal from my decision in the case of The Sandringham, and the questions of law therein decided must be regarded, until reversed by some appellate court, as the law of tills court and of this port.

The present is a case of salvage of the most meritorious character. The service was rendered under all the circumstances which constitute merit in a salvage enterprise. There was (1) great danger, from which the property of respondents was rescued; (2) groat value in the property saved; (3) serious and continual risk incurred by the salvors and their property; (4) great value in the property that was put at risk and employed in saving the ship; (5) extraordinary skill and success in rendering the service; and (6) much time and labor spent in the enterprise). These, the six ingredients usually hold to constitute a salvage service of the highest merit, all entered conspicuously into tho enterprise under consideration. In these respects the case is, I repeat, so like that of The- Sandringham, that I need only refer to the reasons I then gave for granting a liberal award in the present case. Adopting that decision as furnishing the rule of decision here, 1 will do no more on the present occasion than treat one or two questions which have been elaborately discussed at bar, and review the authorities cited by counsel for respondents in opposition to a large award.

I shall treat as settled law the point that an incorporated company, organized for the purpose of engaging in the meritorious work of saving ships in distress, and devoting themselves diligently to that pursuit, may be granted salvage reward as liberally as natural persons so engaged may be. The Camanche, 8 Wall. 448. This being assumed, I will first consider one of the principal questions of law discussed at bar. Let it be premised that it has been the habit of a dmiralty courts for centuries to estimate their awards of salvage by proportions of the value of the property saved. This practice arose in those tithes when there often was no other practicable method of bestowing salvage rewards than by a division in kind of the property saved. That reason having now ceased, the courts in modern times are more and more abandoning that method of distribution. They ascertain the value of the property saved. They grant such a sum in reward as they deem proper; and if this sum is not paid, they decree a sale of the ship, or of so much other of the saved property, if there be any, as shall be necessary to satisfy the award. But they still adhere in general to the practice of measuring the amount of their rewards by some proportion of the aggregate value of property saved. It thus happens that where this value proves to be very large, as in the present case, respondents in admiralty suits object to the practice; urging that the awards being in great excess of what the labor of effecting the salvage is worth, the owners of the property in such eases are made to pay indirectly for services rendered in cases where the amount saved is small and the compensation received by the salvors inadequate. I am inclined to believe that the courts will in time.come to fix the amount of their awards with very little reference to proportions. But if they do, I am sure the reason of so doing will be founded on some other objection than the one which has been indicated. The defense in the present case is only nominally made by the owners of the Egypt. It is really made by the agent in this country of the Board of Foreign Underwriters. Now, the practice of determining salvage rewards by proportions is really based on the principle of contribution from the fortunate for the benefit of the unfortunate; which is the principle on which all insurance is based. It is but another application of that principle; and I am inclined to think that insurers, if no other class, are, morally estopped from objecting to its application in salvage cases! It is for the advantage of commerce, and certainly in the interest of human life risked at sea, that respectable and thoroughly organized and equipped wrecking companies should be encouraged and sustained on the wild and stormy coast which stretches from the Delaware capes to the Gulf of Mexico. The danger of this coast is so great that many vessels are lost in spite of the most arduous and expensive exertions of the wreckers, who lose their labor and property, and risk their lives, in fruitless attempts to save them. In other cases the total value of property saved, after great labor and risk, is often far below the cost of rendering the service. When, therefore, a valuable ship and cargo is rescued from the jaws of destruction by this same class of men, would it be just or wise to deprive them of the benefit of an ancient rule of maritime reward, and cut them down to a sum not greatly exceeding a quantum meruit pro opere et labore ? Surely, if this be done, the change of rule ought to have some better justification than the objection that the old rule required contribution from the fortunate for the benefit of the unfortunate. For one, I am unwilling to be instrumental in inaugurating the new rule on this dangerous coast, where it may bo said, I think, with truth, that a majority of salvage services bring" either no compensation at all to the salvors, or compensation far inadequate to reimburse them for the work and labor and risk attending their enterprises. Passing to another question, I think the present case furnishes a fit occasion for repeating what I said in the case of The Mary E. Dana, decided last year, 5 Hughes, 369; [S. C. ante, 353.] I there said:

« Salvage services rendered on the long and dangerous coast which stretches from tiie Delaware capes to Florida, ought to be more liberally rewarded than on oilier coasts. It is not a seaboard studded with harbors and prosperous commercial cities and towns, from which salvors may run out short distances along shore, and render successful services in a few hours. It is a long coast, dangerous and barren, constantly swept by strong winds and currents; whore the ordinary tide varies only three feet, and on which wrecking enterprises cannot he successfully accomplished by individual exertions and capital. Wrecking service here can only be successfully performed by organized capital, enterprise, and skill,—by capita], skill, and enterprise so organized as to be capable of maintaining a constant provision of experienced mariners, powerful wrecking vessels, and ample wrecking implements and material ready at ell hours for immediate service. The business cannot sustain itself in the hands of reputable men and companies, unless the admiralty courts shall give exceptionally liberal awards in all cases of meritorious and successful service on this sea-board. And surely it is in the interest of commerce to sustain the wrecking business in these waters and latitudes. For these reasons, I repeat, salvors on this coast must be more liberally dealt with by the admiralty courts than on other coasts.”

What I then said I have found sanctioned and sustained, by anticipation, in a passage quoted in Cohen’s Admiralty Law, 131, from a publication of Judge Mabvecí, printed in 1861, in which that able admiralty judge is shown to have-said, while judge of the southern district of Florida, in the case of the ship Belle Ocean and Cargo:

“What would be no more than reasonable on this coast, where so many shipwrecks occur, and where the assistance of so few transient or trading vessels can be had to save the property, and where, consequently, the employment of a number of regular wrecking vessels has been found necessary for that purpose, might be unreasonably large in the neighborhood of commercial port's, on the coast of England or the United States, or in any place where regular wrecking vessels were unnecessary, because wrecks were fewer, and the assistance of transient persons or vessels could be more easily obtained.”

It is to ho observed that the bottom on the west Florida coast is, in general, hard and rocky, with no quicksand such as that on our coast. I am firmly of opinion that it is incumbent upon admiralty courts, in dealing with salvage cases arising on the long and dangerous coast extending from Delaware hay to Florida, as well in the interest of commerce as of humanity, to be exceptionally liberal in their awards to regularly organized salvage companies, in order to provide a certain and continuing reliance for vessels in distress upon trained and experienced wreckers, reputable in character, honest in their dealings, and of position in society rendering them responsible to public opinion for their conduct.

I will now examine briefly the cases cited by respondent’s counsel in opposition to a liberal award to the libelants in the case at bar; for I do not deem it necessary to more than advert to what seems to be the principal ground of criticism and complaint on which the respondents base their defense, which is that Gapt. Stoddard, on arriving at the Egypt at 9 o’clock on the morning of Saturday, the thirteenth of January, did not 'then have along with him the Peed, the Resolute, and his four wrecking schooners, with a full complement of men and wrecking implements and apparatus. If there had been any failure in the salvage enterprise, if the ship had gone to wreck, if any part of the cargo had been lost, or any disaster or destruction whatever sustained in the course of the salvage operations, this objection would have been pertinent, provided the misfortune could have been colorably traced to the delay in the arrival of these vessels and equipments. More reasonably still: if Capt. Stoddard, before he went to the Egypt, had been seen by Capt. Reavely at Norfolk or at Old Point, and engaged there for the salvage service, and informed then and there what material, vessels, and men he would need, the objection might be urged with some force. But I have not thought it worthy of any serious consideration, in face of the fact that Gapt. Stoddard was not employed in the salvage service until he went to the ship in distress; and that every bale of cotton was saved, not a single particle of the cargo was jettisoned, and that the ship herself was brought from her position of apparently hopeless danger on the beach, safely into port, so little injured that, after repairs to her rudder and stern, she was able in a -few weeks to resume and complete, her voyage with all her cargo on board.

Disregarding this objection of respondents, therefore, I pass to a review of the authorities cited by their counsel in his brief.

I will remark in advance that towage is not salvage, and, when considered by itself, is never compensated, except on the principle of paying according to its worth for work and labor performed; that is to say, in legal phrase, it is paid for on the basis of quantum meruit pro opere et labore. Of course, when this rule of compensation obtains, the value of the property towed is but slightly, if at all, considered in determining the compensation to be awarded. There are, indeed, frequent cases where, although towage is the dominant feature of the service rendered, yet the ship towed was in a situation of greater or less danger when taken in tow. In these cases an inconsiderable bounty, of salvage reward, is brought into the award, the case in its main feature being a towage case. But nothing could be more illogical than to argue, from the awards of courts in towage cases, what amounts they should decree in cases of salvage.

In the case of The Plymouth Rock, 9 Fed, Rep. 413, where the value of ship and cargo was $60,000, which was a case of simple towage, the vessel being disabled off Sandy Hook, a tug was allowed $2,000 for bringing her into the port of New York, a distance of some 20 miles. There was no element of salvage in the service, except that the vessel was disabled, liad a number of impatient passengers on board, and her own machinery was too much out of fix to bring her in.

In the case of The Camanche, 8 Wall 448, where a vessel laden with valuable machinery had sunk in the harbor of San Francisco, and the salvage service consisted in diving at leisure for it and drawing it up by strong steam appliances, consuming four months of time, and whore there was but a partial salvage of the property sunk, the supreme court of the United States allowed $24,062 on a value of $75,000 saved. That is to say, one-third; the salvors receiving other and larger remuneration by contract in the same service from insurance companies.

In the case of The Blackwall, 10 Wall. 1, a ship took fire while lying in the harbor of San Francisco. The city firemen, availing themselves of the aid of'a tug, went to her relief, and in 30 minutes extinguished the fire. The supremo court of the United States allowed $10,000 for the service; what remained of the ship saved from the flames being valued at $60,000. There was scarcely more than one ingredient of a true salvage service in the case, viz., the ship was in imminent danger of destruction.

In the case of The Adirondack, 2 Fed. Rep. 387, the service performed was simple towage. The ship was disabled at sea in her machinery. Another steamer took her in tow and brought her about 600 miles into New York. The court awarded $7,500, or $1,500 a day, for five days’ towing. The value of the Adirondack, which is an immaterial circumstance in a ease of mero towing, was $300,000.

In the case of The Colon, 4 Fed. Rep. 469,—which was another case of mere towing,—a steamer was disabled in her machinery at sea, and was taken in tow by another steamer, and towed 720 miles into New York. The court awarded $10,000 for six days’ work; the towing vessel in this, as in the preceding cases of towage, being herself bound for New York.

The case of The Edam, 13 Fed. Rep. 135, was another ease of more towage. The Edam had broken all the blades of her propeller, and was disabled at sea, a few hundred miles from New York. Sho was taken in tow by a strong steamer, the Napier, and brought into New York in three days. The award was $25,000; the more, in this case, because the towing steamer reversed her own course (having been bound for Liverpool) in order to return to New York.

In the case of The America, Marvin, Wreck & Salv. 217, lost on the Tortugas, the cargo only was saved, and the success of the salvage service was but partial. Here $47,971 was allowed for saving portions of the cargo,—being at the rate of one-fourth on that which was saved in uninjured condition; one-half on that saved in a wot and damaged state, and three-fifths on that which was saved by diving. The wrecking vessels used on the Florida reefs are not “large.” They are very small. They are mere smacks. Some of them are a little larger than others; and it is only in that sense that they are termed “large” in thelreporfcs of salvage eases arising on those waters.

In this case of The America, Judge Marvin applied his rule, which will be found to have entered into all his decisions in the Florida court, viz.: that where the salvage service was not successful, and more or less property was lost, the award was smaller in proportion as the property lost was greater. See what he said on this head in the case of The Isaac Allerton quoted by me in The Sandringham Case, and appearing in 10 Fed. Eep. 579. The salvage service in the case of The Allerton was wholly successful, and the learned judge awarded half of the value of the property saved ($96,000.) to the salvors. I repeat here what I myself said, in commenting on this rule of Judge Marvin, (Id. 579:)

“I think, with the court in The Allerton Case, that the proportion of the property lost must enter into consideration. In a ease in which, out of property worth $200,000, only the value of $50,000 was rescued, I would give a smaller percentage for salvage than I would in a ease where, other circumstances being equal, property worth $50,000 was in danger, and all was saved. In the first case, other circumstances being the same, and the service such as equally to deserve a liberal allowance, I might feel it unjust to give inore than one-tenth; while, in the second. I miaht think it equally unjust to allow less than a half.”

It will be observed, in the case decided in the Florida court by Judge Marvin, cited by Judge Locke, his successor in the case of The Neto, 15 Fed. Eep. 819, that in most of the cases arising on the Florida coast there were greater or less losses of property; and that, acting upon his own rule, Judge Marvin diminished his rewards of salvage with reference to these losses.

Eeturning now to cases cited by respondent’s counsel:

In that of The Grown, lost on Ajax Eeef, on the Florida coast, 300 bales of cotton being also lost, property to the value of $131,000 was saved piecemeal by a horde of native “wreckers.” Here $23,000 was allowed, or one-sixth.

In the ease of The Neto, 15 Fed. Eep; 819, the ship was saved, but 500 bales of cotton were jettisoned and lost. The success of the salvors was, therefore, very bad, and Judge Locke 'said that, if there had been means adequate to save all the property at risk, an extra-' ordinarily large salvage could have been paid more easily than a small one could be under the existing circumstances. He therefore awarded, as a small salvage, the sum of $9,625. The value of the ship and saved cargo is not given in the report of the case, and we are unhble to know the ratio which the award bore to it.

In his opinion in this case of The Neto, Judge Locke cites, from the records of the Florida court, a number of cases previously decided by Judge Martin, but gives very meager particulars of the facts of them. These records show that in one case, where much property was lost, Judge Marvin awarded 40 per cent, on a value of $30,000 saved. In another case, where there were “no circumstances of peril,” $10,975 was awarded, or 10 per cent, of the value saved. In another case $21,805 was allowed, or one-fourth of the value saved. In another ease a vessel was saved which “lay on a smooth and even, though a hard, rocky bottom,” and $9,200 was awarded, or 8 per cent. In another case, where the ship rested on a boulder and» was rescued from it, $5,700 was awarded, or 18 per cent. In another case, where the vessel rescued was in no great or unusual peril, an eighth of $9,000 was awarded. In another case, where a steamer was pulled off a shoal, and broke her rudder in coining off, so that she had to be steered by a schooner in the rear, while coming into port, $16,000 was awarded, or 10 por cent. In another case $17,500, or an eighth, was awarded for rescuing a vessel from a position of discomfort, but of “comparative safety.” In another case an award of 10 per cent, was given on $75,000 worth of cotton saved in a vessel,—30 per cent, on cotton saved when afloat, and 50 per cent, on property saved by diving. In another case the City of Waco was saved, when stranded on a rough, rocky bottom, by means of ground-tackle and lightening the ship of her cargo, and an award of $16,000 was made on a supposed value of $250,000. In the case of The City of Houston, which the court considered only nominally a case of salvage, an award of $17,500 was made on a supposed value of $400,000. In the case of The Hector, laden with $800,000 worth of cotton, which was a case in which much labor was expended under circumstances of very slight risk, $20,000 was awarded. In the case of The Buonevenlura, which had got among shoals, and when a government schooner had helped her to get out, by aiding with its anchor, and had taken on board 175 bales of cotton, 150 bales having been jettisoned, $8,000 was awarded for the assistance given, the value saved being $200,000. The foregoing are all the cases that were cited by Judge Locke in his decision in the case of The Neto, supra.

In the case of The Suliote, 5 Led. Bin?. 99, cited by counsel of respondents in the argument at bar, the vessel took lire in the cargo in her hold, while lying at her wharf in New Orleans. The lire was extinguished by three tugs, which came to the Suliote’s assistance. There were few, if any, of the ingredients of true salvage in the service, except that the ship was in danger from smothered fire in her hold. There was no danger encountered by the tugs. If the fire had been above-board, the service could have been completed in an hour; but, being in the hold, it required a day or more of time for its complete extinguishment under decks, which was effected by water, hose, and pumps, and by the use of carbonic acid gas. The district court awarded $37,500 on avalué of $250,000; but the circuit court, Mr. Justice Bradley sitting, reduced the allowance to $19,824.

In the ease of The Swiftsure, 4 Fed. Rep. 463, referred to in argument, but not cited in respondent’s brief, the ship went ashore north of Gape Charles, uninjured, not very far from the vicinity where, the Egypt was stranded, at about 9 o’clock one May morning, and remained there until 2 p. m., waiting for a tide, her chief officer being drunk. At the latter hour, two strong steam pilot tugs, which were cruising outside the capes looking for a job, took hold of her, drew her afloat, and in three hours got her into the channel coming out from Hampton Eoads. The court (Judge Morris, of Baltimore) awarded $2,500 for this towage service. The only element of true salvage in the case consisted in the fact that if the vessel, which itself was a strong steamer, with nothing the matter but drunken officers, had not sobered up and steamed off into deep water on that day, the worst might have happened to her in the event a storm should come on. Except as to this prospective danger, the case was one of mere towage. Ship and cargo were worth $125,000.

Coming now to the English cases cited for respondents, the first is the ease of The F. T. Barry, L. R. 6 P. C. 468-475. The Barry was one of three steamers which were severally engaged in towing the ocean steamer, the Amerique, from where she had been unaccountably abandoned by master, crew, and passengers, to the amazement of the world, and bringing her into the port of Plymouth, England. The ship when found had some water in her, which had to be pumped out. Except this, and that she was found abandoned, the case was one of mere towage. She was brought into port in about three days. The lower court awarded $150,000 on a value of $650,-000. The house of lords reduced the award to $90,000, or $30,000 a day for three days’ towing; holding that this was not a case in which a court should make an award of salvage with reference to a proportion of the value saved.

In the case of The Cleopatra, 3 Prob. Div. 145, the service was but little more than one of towage. It is true that, when the Cleopatra was discovered by the Fitzmaurice, much difficulty was experienced in making fast to her by hawsers. She was in the shape of a “ship’s boiler with a bridge in the middle;” and, when loose in the sea, was much given to rolling over and whirling around. She was a species of hollow raft which had been constructed for the especial purpose of transporting Cleopatra’s Needle from the Nile to- England. She had been abandoned in the bay of Biscay in a storm by the steamer which had had her in tow. After an effort of an hour and a half an officer of the Fitzmaurice succeeded, at some personal risk, in getting on board and running a line to his vessel. The towing was- then easy, and occupied 52 hours. The award was $10,000. The value of the obelisk and her artificial raft, the Cleopatra, was nominal.

In the case of The Glenduror, 1 A.sp. Mar. Cas. (N. S.) 31, the service rendered was prolonged to a week; but all dangerous work was done in a single night. The rest of the service was of the class proper to be compensated on the basis of quantum meruit. Hence, $10,000 was allowed on appeal, on property saved to the value of §270,000; the appellate court being restrained in its allowance, which was conceded to be low, by the illiberal award which had been made by the court below.

In the case of The Kenmure Castle, 7 Prob. Div. 47, $20,000 was awarded to one steamer for towing another by sea and partly on the Suez canal for 10 days; the judge saying that the weather was fine, and that there was no danger.

In the case of The Ville d’Alger, not yet reported, hut tried and decided by Sir Boeert Phieeimore judge of the English court of admiralty, the steamer City of Berlin broke her shaft about midway in the Atlantic ocean. The Ville d’Alger first took hold of her, and, after towing less than 24 hours, desisted for want of power or of coal. Then the steamer Samaria took hold of her, and towed her into New York, the port of her own destination, in six days. The amount awarded wras $42,500, for seven days towing; of which $2,500 was decreed to the Ville d’Alger. The City of Berlin had merely broken her shaft, and could have repaired it and come into port unaided, but did not wish to spare the requisite time. It was a case of mere towage.

I believe I have omitted no case which was cited Cor the respondents. Most of them are cases where the service rendered was but little more than that of mere towage; cases in which the amount allowed is always based upon the idea of quantum meruit, with no reference to a proportion of the value saved. They furnish no guide or rule in case of pure and true salvage, where towage is but an incident, and figures only as a winding-up formality after an arduous and difficult salvage service.

Those cases of salvage proper which are cited for respondents are all of them cases in which many of the most important ingredients of a true salvage service are wanting, and they accordingly furnish no guide in determining the awards due in cases where all of these ingredients are prominent and continuing features of the service to be rewarded. But, even taking these numerous cases as they are, I think their teaching is strongly in favor of liberal awards. In the towage cases, the amounts decreed are strikingly liberal; and when we consider that the salvage cases cited all either lacked most of the ingredients which constitute a true salvage service, or else are qualified by Judge M.jbvijí’s rule of diminishing the award with reference to the amount of property not saved, I think even they fail to enjoin a narrow policy of salvage awards. They certainly have very little application to a salvage service such as that now under consideration, in which every circumstance constituting true salvage is conspicuously present, and which, moreover, was characterized by a completeness of success almost unparalleled.

Salvage consists—First, of an adequate compensation for the actual outlay of, labor and expense made in the enterprise; and, second, of the reward as bounty allowed from motives of public policy as a means of encouraging extraordinary exertions in the saving of life and property in peril at sea. The first of these items of award admits of computation ; the second does not, and is usually determined with more or less reference to the value of the property saved. I have said that the salvage service rendered the Egypt is nearly identical in its features with that which was rendered in the case of The Sandringham. Yet there are one or two differences between the two. I do not think that the Egypt was in as desperate a condition before she was taken in charge by the salvors as the Sandringham. It is true that the latter lay off Cape Henry life - saving station in direct telegraphic communication with Norfolk, and at a point readily accessible .to the wrecking vessels and assistance sent from this city;- whereas, the Egypt lay on a desolate coast, 40 miles away from telegraphic and all other overland communication with sources of assistance, amid shoals and sand-bars and shallows, which rendered approach to her by wrecking vessels in midwinter difficult and hazardous. But the Egypt was not, like the Sandringham, swept entirely over by the sea where she lay, and did not ■ thump against the bottom so long or so violently, and had not been abandoned by her crew in the face of danger. When boarded by Capt. Stoddard she still had on her a faithful crew, commanded by a brave and skillful seaman and a true gentleman in the person of Capt. Beavely. The master of the Sandringham lost no opportunity of displaying his entire unfitness, in temper, character, and acquirements, for the responsible position which he held; and his crew during the entire salvage service were, with four exceptions, idle and ill-natured spectators of the brave men who were saving their ship and the property she carried. The crew of the Egypt, on the contrary, though working for wage's freely offered them, worked faithfully, and in the spirit of a genuine loyalty to their ship. I think, therefore, that a discrimination ought to be made between the two cases, in the award of the court; and so, whereas a fourth was' awarded in lump in the case of The Sandringham, I will in this case award a fifth, and add to that amount the sum expended by the libelants in the enterprise, viz., $4,256.55.

I will decree a fifth of the agreed value of the ship and cargo, plus the amount of expenses just named. •

See The Sandringham, 10 Fed. Rep. 556. and note, 584.