The George W. Elzey

250 F. 602 | 2d Cir. | 1918

'HOUGH, Circuit Judge

(after stating the facts as above). [1] The rule in respect to harbor salvage, where assistance is abundant and available, we stated in The O. C. Hanchett, 76 Fed. 1003, 22 C. C. A. 678; the awards should be moderate.

[2-5] The peculiar merits alleged in this instance, as gathered from the libel, argument for appellee, and opinion below, are that libelant’s personal bravery was remarkable; that the Elzey was most skillfully snatched from danger at exactly the right time — delay would have been fatal; that the schooner was abandoned, if not technically a derelict; and that the other tug near by (Genesee) did nothing. ‘ It is not doubted that bravery was displayed, for although, as the event proved, the period of violent explosions had passed before anything was done for the Elzey, miexploded shells lay on the decks of most of the vessels mentioned in evidence, and there was no certainty that those shells, or other cars of munitions, or both, might not blow up at any moment. There was the very pressing terror of the unknown, than which few things are greater. But we discern in the evidence nothing to mark the libelants as courageous above the other men present on police or fire boats and other tugs.

That the Elzey was in imminent danger is plain. She was of wood and on fire; hut she had been in great danger for hours before the Gallagher helped her, and the fire was put out by the city fireboat, which took cliarge after the Genesee had put on her stream. The Gallagher did not assist in that effort. We discover no evidence that the exact moment when the Gallagher towed her from the pier side was of specially vital importance, and it is observable that r,he had been left there for several hours while the Gallagher devoted her energies to tile removal of an iron steamer lying near by and of greater value.

That the schooner was abandoned, and had not a man on board to cut a mooring or take a lino; is undoubtedly a circumstance enhancing the value of the service rendered. That there was nothing done by the Genesee is not true. That tug was on the ground (so far as the Elzey was concerned) an hour before the Gallagher, and tried to pull the schooner out. Her line parted, and before she could, or at all events did, get out another, the Gallagher got her line on, and one tug was enough for the work. Thereafter the Genesee played on the fire from her standpipe, until the fireboat took charge, when she retired on the fireman’s orders, as was proper. There is no doubt that both the fireboat and the Genesee were far more powerful than the Gallagher nor was there any remarkable management or maritime skill necessary or displayed. All.the masters present were no doubt good tugboat men, and the evidence yields no proof that any more than the great, but daily exhibited, skill of such men was exercised or required.

On the other hand, appellants complain that the salvors failed in their duty of caring for the schooner while they were in possession of her, and that the special award to Capt. Bouchard is beyond all right or precedent. When the Gallagher and Hercules took the Elzey to Erie Basin, they moored her where men from other nearby vessels and apparently from the shore could easily get aboard. She was much injured by explosion and on her deck lay pieces of shell; she was overrun by curiosity seekers, and according to credible and disinterested testimony unbroken boxes were removed from her. When her master returned, clothing, provisions, nautical instruments, and the brasses of the engine were gone. It is not possible to find certainly from this record who took these articles, or their aggregate value; but it is clear that these libelants did fail in the active duty laid on salvors in possession of caring for what they have in charge (Serviss v. Ferguson, 84 Fed. 202, 28 C. C. A. 327); they did not exercise reasonable care (The Henry Steers, Jr. [D. C.] 110 Fed. 578; The Bremen [D. C.] 111 Fed. 228); and, while this failure of duty is far from sufficient to forfeit award, it must diminish the recovery, for salvage is not only an award, but a reward for successful well-doing.

The gift of $3,500 to Captain Bouchard, in addition to his wáge share of the $5,000, is without precedent, nor do we find any reason for it in the evidence. The measure of his bravery and skill has been stated above, and why he should thus be singled out for especial enrichment we fail to see. In result this cause differs from any reported case of harbor fire salvage in two matters making for increase, viz., abandonment and apprehended danger from exploding shells, and in one inclining toward diminution,- negligence of salvors after danger past. It may be noted that this negligence was peculiarly that of the man in command, the captain. Citations in salvage are rarely useful, but the following are of fires in local waters: The Kaaterskill (D. C.) 48 Fed. 701; The Lydia (D. C.) 49 Fed. 666; The Helen F. Robbins (D. C.) 55 Fed. 1014— and furnish some guide.

Upon weighing the foregoing considerations, it is thought that an award of $7,000 is ample, whereof one-half to the crew in proportion to wage; Peterson to share according to his scow man’s pay.

The decree appealed from is reversed, with the costs of this appeal to appellant, and cause remanded for further proceedings in accordance with this opinion. *