11 F. Cas. 1166 | U.S. Circuit Court for the District of Massachusetts | 1833
This is a libel of salvage in the case of an asserted derelict. The ship Henry Ewbank, Jeremiah N. Jaques, master, owned in Charleston, (S. C.) sailed in February last from that port with a cargo of cotton and rice, bound to London. In the course of the voyage, having met with severe disaster and lost her rudder, she was on the 12th of March, in latitude 42° 5' and longitude 53° 50' W. abandoned by the master and crew, who on the same day were taken up by the ship Marmora, of Boston, and afterwards safely arrived at that port At the time of the abandonment, the ship (as described by Captain Jaques) was completely unmanageable; her cargo (the rice being stored in bulk) was shifting, so as to throw her gunwale Into the water in every gale; and she was waterlogged, and in imminent peril of foundering from the nature of her cargo, and her forlorn situation. On Monday, the 1st of April, the British barque Hope, Lister roaster, bound on a voyage from Liverpool (England) to New York, with a large number of passengers on board, and a cargo consisting of salt, coals", and iron, fell in with the Ewbank in latitude 40°, longitude 54° W. The Hope was at this time, from the length of the passage, and the deficiency of provisions, in a disturbed and suffering state, from which she was greatly relieved by obtaining a supply from the Ew-bank. The master of the Hope, with the consent of the owner of the latter, who was then on board, concluded to undertake 'the enterprise of getting the Ewbank into port; and accordingly his mate, Mr. Metcalf, and a suitable crew, consisting of four seamen and six passengers, were finally selected for the purpose. When the Ewbank was boarded she was found stanch and strong, but
Such is a very brief outline of the more general facts, which are given with great particularity and clearness in the opinion of the learned judge of the district court, to which I may thus generally refer for more minute facts. I may, by and by, have oe-casion to glance at some facts of a controversial nature, upon which there is a great contrariety of declaration by the witnesses.
The cause came before the district court upon proceedings instituted, in the first place, on the 3d of June last by a libel by Mr. Manners, his Britannic majesty’s consul, for and in behalf of the owner, master, officers, and crew of the Hope, for salvage. Upon this libel a warrant of arrest issued, upon which the Ewbank and her . cargo were taken into custody by the marshal. In this libel no mention whatever is made of any other persons as co-salvors. On the sixth of July, another libel was filed by Wheelwright and others, • (including all the crew, who navigated the Ewbank into port, except Metcalf,) stating the general facts, and averring, that there was an entire abandonment of the Ew-bank by the original salvors; and a new enterprise undertaken by themselves; and excluding Metcalf from any share in the salvage, on account of his asserted neglect of duty and desertion; and concluding with the declaration, “that the said vessel and cargo were saved by the labors and service of your libellants, without the assistance of any other person or persons whatsoever.” In this libel, also, there is a total omission to state any claim in behalf of the owner, master, and other part of the crew of the Padang; and, indeed, upon the structure of the libel there would seem to be a studied disinclination to admit any such claim. Afterwards, on the same day, another libel was filed by Blaise Isserverdens and others, owners of the Padang, in behalf of themselves, and the officers and crew of the Padang, for salvage, repelling the libel and claim of the Hope, and praying, “that no award of salvage be made to the libellants named therein.” On the seventh day of June, another libel was filed by George Brewster, denying the claim of the Hope to any salvage, and praying salvage to be awarded to the owners, officers, and crew of the Padang. On the eighth day of June, a libel was filed by George Weissell, the second mate, and others, the seamen of the Padang, denying the claim of the Hope to any salvage, and praying salvage for the benefit of the owners, officers, and crew of the Padang. And lastly, on the second of July, a libel was filed by James Turner, one of the passengers, and an original salvor from the Hope, stating, that he was by artifice induced to go on board of the Padang, and could not return to the Ew-bank, and praying salvage. Upon all these libels, except that of Turner, process issued in the common form, which was also served by the marshal. A claim was interposed by the Charleston Fire and Marine Insurance Company, to which the Ewbank had been duly abandoned, and the abandonment accepted, praying for restitution after an allowance for salvage. A claim was after-wards interposed by William S. Skinner, agent for the underwriters at Lloyd’s, and
Upon the final hearing of the cause, the district court decreed a salvage of one moiety of the net proceeds of the Ewbank and cargo (the same having been sold under an interlocutory order of sale), amounting to ■$31,488.37, and the decree distributed this salvage as follows: Three fifths of the salvage to be given to the owners, officers, and •crew of the Padang, namely, one half to the owners, and the remaining one half to be divided into twenty-one shares, of which Capt Brewster was to receive six, Wheelwright three, Weissell two, Eldridge and Betts, (sal-vors on board of the Ewbank,) two, and the residue of the crew (four) one share each. The remaining two fifths of the salvage were -decreed to the owner, officers, and crew of the Hope; namely, to the owner one half; the other half to be divided into twenty-five shares, of which were decreed to Captain Lister six shares, to Metcalf three shares, to Watkins, Green, James, Marshall, Duggin, Turner, and Leman, (original salvors belonging to the Hope, and, except Turner, remaining during the whole voyage on board of the Ewbank,) two shares, and to the residue of the crew of the Hope (nine) one share each. The court also decreed the libel of Wheelwright and others, of Brewster, and of Weis-■sell, to be dismissed without costs to either party, a compensation to them being decreed under the other libels, and the expenses to be paid out of the gross proceeds. [Case unreported.]
Prom this decree there were divers appeals interposed. The first was by the owner, officers, and crew of the Hope, to so much of the decree as awarded three fifths of the salvage to the Padang, and limited that of the Hope to two fifths, The next was by •Grace, Watkins, Marshall, and Duggin, from the decree, so far as regarded the .amount •awarded to them; and the appeal asserted, that Metcalf was entitled to nothing, and that Hough ought not to have a double share. Wheelwright also claimed an appeal with Grace, Watkins, Marshall, and Duggin, upon their joint libel, on account of the dismissal thereof. Wheelwright also claimed an appeal on account of the insufficiency of the salvage decreed to himself, as well as for other special causes. And lastly, the owners of the Padang claimed an appeal from the decree, so far as regarded the amount of salvage, and the portion thereby decreed to the Hope, and for other causes. No appeal was interposed by the Charleston Insurance Company, or by any other of the parties. But the actual appeals necessarily bring before the court all the substantial merits of the case, as to the amount of salvage, the persons entitled to salvage, and the proper distribution thereof.
Before I proceed to the principal matters, the state of the pleadings requires me to make a few preliminary remarks, especially as in the present case they involve some questions of costs. There is certainly a very unnecessary multiplication of libels in this case; and it is matter of regret, as well as of surprise, that a different course was not pursued in instituting the original proceedings. It would have been far more for the credit of all the parties concerned in all these libels to have admitted with frankness and distinctness all the claims of all the other salvors. There was, however, a studied desire on the part of all the li-bellants to bring forward in bold relief their own merits, with a studied suppression, or a very feeble acknowledgment of the claims of other salvors. The libel of the Hope has wholly forgotten the existence of the Padang. That of Wheelwright and others makes no mention of the owners of the Padang; and sets up an exclusive claim to salvage for themselves, as being the only salvors in the new enterprise, without the assistance of any other person whatsoever. The libel of the owners of the Padang repudiates the claim of the Hope, in which respect it is closely followed by the libel of Captain Brewster. So that it is impossible, in the actual posture of the facts, not to perceive, that there has been as little ingenuousness, liberality, and fulness of statement on any side, as could well be presented to the attention of the court. One cannot wink so hard as not to see, that, trusting to the' libels alone, as a suitable guide to inform the court of the facts, it would have been impossible for the court not to have been led astray, and to have made shipwreck of the cause. If the demerit in these particu-larshad rested solely on Wheelwright and his co-libellants, I should have entirely concurred in the judgment of the district court in dismissing the libels, if not in form,* at. least in fact, by a denial of all costs. But it seems difficult to distinguish his case successfully from that of the libel of the Hope, and even from that of the owners of the Padang, who, while setting up their own claims, have not only denied these of the
Passing by, for the present, any further consideration of these matters, which are preliminary in their nature, I come, then, in the first place, to the question, what amount of salvage ought to be decreed? The district court allowed (as we have seen) one moiety; the insurance company have acquiesced in this allowance; and so have the owners, officers, and crew of the Hope. The amount is contested by the other parties appellant, who ask for an increase of salvage, asserting, that it is not sufficient to compensate them for their labors, or in proportion to the merits of the salvage service. At the argument I intimated a strong disinclination to change the amount of salvage; and upon the most mature-reflection I adhere to that opinion. This is a clear -case of derelict, for there was an abandonment of the property, animo non revertendi. In such cases the habit of courts of admiralty has been to decree one moiety to the salvors; and by the old law no more than that was ever decreed. That rule, however, has been somewhat relaxed in modem times; but still a moiety continues to be the favored, if not favorite, proportion allowed by courts of admiralty in ordinary cases. See The Fortuna, 4 C. Rob. Adm. 193; L’Esperance, 1 Dod. 46; Rowe v. The Brig [Case No. 12,093]; The Blenden-Hall, 1 Dod. 414, 421; Elliotta, 2 Dod. 75. It is not, however, an inflexible rule; but it yields to extraordinary circumstances, greatly diminishing or enhancing the perils, and gallantry, and personal sacrifices of the salvage service. But the court on all occasions has great reluctance in deviating from a moiety, and expects a very strong case to be made out; in which, upon other principles, there would be a very great disproportion between the services and the compensation; so great, indeed, as in a moral and legal view to constrain the court to deviate from it And there is great wisdom in thus adhering to the rule; for nothing can be more
The next question is, who are entitled to be deemed salvors? The owners, officers, and crew of the Padang contend, that they, and those, who actually navigated the Ewbank into port, are exclusively to be deemed the salvors; and that the owners, officers, and crew of the Hope, as such, are not entitled to share in the salvage. For this purpose they assume two grounds of argument; first, that the Hope rendered no effectual service to the Ewbank; and, secondly, that there was a total abandonment of the original enterprise by her crew, and an entirely new enterprise undertaken by a new crew on meeting with the Padang. It appears to me,that neither ground is maintainable, either in law or in fact That the Hope was the first and original salvor does not upon the evidence, admit of the slightest doubt. She found the Ewbank in a state of derelict, and put a salvage crew on board; thus taking possession, and entitling them and herself to be deemed the exclusive salvors, unless the possession should be afterwards totally abandoned, and the enterprise surrendered.
Then let us turn to the other point Has there in the present case been any absolute, voluntary abandonment of the Ewbank and cargo by the crew of the Hope? I agree, that, if there has been, then the Hope cannot now entitle herself to share in the salvage. The doctrine stated at the bar, is perfectly correct, that salvage must be earned, not by attempting merely to rescue, but by the actual rescue of the property from its perils. The property must be effectually saved. It must be brought into some port of safety; and it must be there in a state capable of being restored to the owner, before the service can be deemed completed. All the service done before that time is •merely in fieri. Whatever of personal gallantry, or of laborious exertion, or of severe sacrifices, may have been already borne, it comes to nothing, unless the property is actually saved by the asserted salvors. But if saved, it is wholly immaterial, whether the salvage is by the original salvors alone, or by them with the aid of others; for the
Much stress has been laid on the ascertainment of the point, whether Wheelwright or Metcalf was in the command after the Ew-bank parted from the Padang, on the voyage to Boston. I do not attach any considerable importance to this fact, let it be decided whichever way it may be. Metcalf, being originally placed in the command by the master and owner of the Hope, must, in contemplation of law, be deemed to be the commander de jure during the whole voyage. No person had any legal right to displace him, while he remained on board. And if he consented to act under another person, it must be deemed to be a mere voluntary obedience, binding on him personally, but not necessarily on the owners of the Hope. The evidence in the case, however, leaves the point quite equivocal. And I rather incline to the belief, that in fact both Wheelwright and Metcalf exercised command on board in the character of equals, without either of them yielding any acknowledged superiority to the other. But this, in my view, is quite immaterial; for no one can doubt, that Wheelwright was the real dux facti, the strong, prevailing, skilful mind, that led throughout the voyage. Metcalf appears from the evidence to have been a man not of very high character, occasionally at least given to intemperance, arid somewhat deficient in energy and skill. On the other hand, it is but a moderate tribute to Wheelwright to say, that every line of the testimony proves him to be an accomplished seaman, of uncommon skill, and energy, and spirit. 1 have no private doubt, that he conducted in fact, whatever he might in form, the great operations of the voyage. It was the common case of the dominion of the strong over the weak or inefficient. The grounds, then, upon which an attempt is made to exclude the Hope from any share in the salvage, wholly fail, treated as matter of law, or as matter of fact. And the remaining question on this head is, in what proportion the Hope is entitled to share in the salvage. The district court gave two fifths to the Hope, and three fifths to the Padang. Both parties are dissatisfied with this allowance. It is insisted, on behalf of the Hope, that she is entitled to one half, bringing the whole into what is called, in the homely language of the common law, “hotchpot,” and what is called, in the more refined language of Rome, with more classical propriety, “collation.” Lord Stowell. in the case already cited of The Jonge Bastiaan, 5 C. Rob. Adm. 322, brought the whole property into hotchpot, and gave an equal share to each of the salvor-smacks. It appears to me, that his judgment in that particular case 'was perfectly correct and unexceptionable. But be did not affect to lay down a rule to govern all cases. Cases may easily be suggested, in which, from the inequality of the labors, and perils, and nature and extent of the services of the co-salvors, equality would not be equity; though I think, that; as a general rule for ordinary cases, the rule of equality has much to commend it by its simplicity and convenience of application. It has a strong tendency to diminish the causes of litigation, and to suppress that spirit among the parties, so notably and pertinaciously displayed in the evidence in the present case; I mean, the desire to found a claim of exclusive merit upon the studied disparagement of all other persons. If the district judge had followed the rule in the present instance, I should have felt great repugnance in altering it But I confess myself better satisfied with the actual proportions selected by him. The apportionment is more exactly in regard to relative merit, and relative perils, and relative risk of property, than a division into moieties would have been. On the side of the Hope, it may be truly said, that there was more of peril, and hardship, and suffering, with little skill and energy, and an entire want of success. On the part of the Padang, there was great skill, energy, and success, prompt assistance, and ready co-operation, but little peril or suffering. The relative services of the vessels, the Padang and the Hope, are very nearly in the proportions of the salvage.
It has been argued, that there was positive misconduct on the part of the salvors of the Hope, by withdrawing some part of the equipments and sails of the Ewbank, and by doing great injury to some of her cabin-work and decorations. We must not always scan things of this sort with nice and curious eyes. Much must be allowed to the nature of the marine service, and much to the infirmities of human nature, resulting from ignorance, and carelessness, and the spirit, not of wanton, but of unsparing abuse. This objection does not properly lie in the mouth of the co-salvors, but in that only of the owners of the property. It may justly diminish the aggregate amount of the whole salvage; but it can furnish no peculiar ground of merit in those, who become co-salvors in the actual state of things, and take it for better or for worse. Now, it is not a little remarkable, that the owners, of the saved property take no such objection. They are content with the actual state of things, imputing no blame, and seeking no redress. The case is wholly distinguishable from that of wanton plunderage and gross mischief, which might go to the forfeiture of the claim of salvage, or at least of a part thereof. But, even in such a case, it would only go to diminish the common stock of salvage in favor of the injured owner, and not transfer it to the co-salvors. Nor do I think the distressed state of the Hope at the time, when she fell
Upon the whole, without entering more at large into this part of the case, I am well satisfied with the decision of the district court in apportioning the salvage between the Hope and the Padang, according to the proportions of two fifths, and three fifths. But this apportionment only applies to the proportions, in which the owners, officers, and crews of the respective vessels, which were ultimately engaged in the salvage service, should share, relatively to each other; and cannot be permitted to affect the rights of the actual salvors belonging to either vessel. The claims of the latter not only admit, but absolutely require an independent consideration.
We are next led to the consideration of the question, what proportion of the salvage ought to be decreed to the owners of the Hope and Padang, as contradistinguished from the officers and crews of those vessels? The district court decreed a moiety; and the appeals actually interposed, though not professedly dealing with the distribution of the Hope’s share, do (as I think) necessarily bring the whole subject before this court for review and reconsideration. And here it seems important, if'practicable, to search for some general rule; and, if none can be found, to establish one for ordinary cases, as the point must constantly present itself in almost every case of salvage. There have been no peculiar services, no uncommon sacrifices, and no extraordinary perils encountered by the salvor ships, while engaged in the salvage service in this case, and no very large amount of property was put at risk. Neither of the salvor ships broke up or discontinued her voyage; neither of them has suffered any loss or injury in tackle, apparel, keel, or cargo; neither of them was exposed thereby to extraordinary difficulties, or has had any hair-breadth escapes from imminent dangers. The owners of the Padang knew nothing, and said nothing. The owner of the Hope was present; but did no more than yield a ready assent to what was done, having no personal hazard, and assuming no extraordinary responsibility. The case, therefore, stands upon merits common to all cases of this sort, and must be decided upon general principles. The owners, then, have a just claim to share in the salvage in all eases, where their property is put at risk, in effecting the salvage service. I entirely agree with my lamented brother, the late Mr. Justice Washington, in declaring, that no stoppage on the high seas for the purpose of saving life is, or can be, deemed a deviation from the voyage, so as to discharge the insurance on ship or cargo. Bond v. The Cora [Case No. 1,621). The duties of humanity call upon every human being to do such acts of mercy and charity; and that duty is enforced by all the authoritative precepts of Christianity, which no one is at liberty to disregard. But I farther agree with him — Bond v. The Cora [supra] — in holding, that any farther stoppage for the purpose of saving property, is a deviation from the voyage, and discharges the underwriters. And in all cases of this sort, it is wholly immaterial, whether the owner stands his own underwriter, or the risk is borne by others at his expense. In either case his property encounters risks beyond those belonging to the ordinary prosecution of the voyage, aiid he is entitled to an indemnity. But the law does not stop short with a mere allowance to the owner of an adequate indemnity for the risk so taken. It has a more enlarged policy, and a higher aim. It looks to the common safety and interest of the whole commercial world in cases of this nature; and it bestows upon the owner a liberal bounty and reward, to stimulate him to a just zeal in the common cause, and not .to clog his voyages with narrow instructions, which should interdict his master from any salvage service. If a bare compensation for loss and risk were allowed, what motive could any owner have to suffer his voyage to be retarded; his just expectations of profit to be frustrated; his whole commercial arrangements to be suspended upon risks, which he could neither foresee, nor guard against by any common prudence? The law has a wise regard to considerations of this nature; and it offers, not a premium of indemnity only, but an ample reward, measured by an enlightened liberality and forecast. While I agree with Lord Stowell, that the master and crew are, in strict language, the only salvors; I cannot agree to the justice of his remark, “that the owners in general have no great claim; as to labor and danger, none;” and “that they come in only upon the equitable consideration of the court for damage or risk, which their property might have incurred.” The San Bernardo, 1 C. Rob. Adm. 178. This latter remark is not borne out by the subsequent practice of that eminent judge; for he has been liberal in awarding salvage to the owners. I can, with far more satisfaction, unite in the opinion of Mr. Chief Justice Marshall, in speaking on this subject in the great case of Mason v. The Blaireau, 2 Cranch [6 U. S.) 269, where he says, “The proportion allowed to the owners of the Firm,” (the saving ship,) “and her cargo, is not equal to the risk incurred; nor does it furnish an inducement to the owners of vessels to permit their cap
Upon the whole, with the greatest deference to the opinion of the learned judge of the district court, I have come to the conclusion, that the owners of the Hope and the Padang are not, under the circumstances of this ease, entitled to more than one third of the salvage. In so deciding, I have the satisfaction to know, that I am supported by his own judgment in three late cases; I mean those of The Boston [Case No. 1,668], The Hudson [Id. 6,828], and The Friendship [Id. 5,122], in which he adopted the same proportion. In apportioning the remaining two thirds of the salvage, I have not the least hesitation in expressing my sense of the merit of Wheelwright’s services, as being in the very first rank. The only drawback, which there seems to be to his full measure of praise, is found in his conduct after his arrival in port, in setting up an exclusive claim for himself and his co-libellants, as the sole salvors; and in excluding their fellow-laborer, Metcalf, from all share in the salvage. There is manifest error in this; which I am not disposed to impute to any wanton disregard of the claims of others, but to a precipitate and rash judgment, acting at the moment upon warm feelings, and the belief of imaginary wrongs, and the natural delusions of self-interest. In making the apportionment between the master and the other officers, I find the usual course has been to allow the master a larger proportion than the mate, even when the latter has been put in command of the salved ship, as she is sometimes denominated by Lord Stowell. The common proportion has been, as I gather, under ordinary circumstances, double that of the mate. And it should be so; for the master, by his conduct in permitting the salvage enterprise, takes upon himself a great responsibility to his owners; and no common share
After bestowing upon the subject considerable reflection, I have come to the conclusion, satisfactory at least to my own mind, that the distribution should be according to the following scheme. In the first place, I shall decree one third of the moiety of the net proceeds, decreed as salvage, to the owners of the Hope and Padang, in the proportions already intimated, of two fifth parts to the owners of the Hope, and three fifth parts to the owners of the Padang. In the next place, 1 propose to divide the remaining two thirds of the moiety into fifty-seven shares, to be distributed among the several officers and crews of the salvor ships according to the following classification.
1. -The first class includes the master and officers of the Hope and Padang.
Capt. Brewster is to take nine shares, 9
Capt. Lister ' “ six “ 6
Mr. Wheelwright “ five “ 5
Mr. Metcalf “ four “ 4
Mr. Weissell “ three “ 8
2. The second class includes all those persons belonging to the Hope, who were placed on board the Ewbank, and composed a part of her crew during the whole voyage. To each of these there are to be assigned two shares, namely:
To Watkins, 2
Grace, 2
Marshall, 2
Duggin, 2
8
3. In the third class I place Turner, who was excluded from serving on board of the Ewbank contrary to his wishes, and to whom there are to be assigned two shares. 2
4. The fourth class includes the seamen of the Padang, who navigated the Ewbank into port, and to each of these I assign one share and a half, namely:
To Eldridge,
Hilyer, 1£
Betts, 1£
4}
And I assign a like proportion to Hough, the carpenter, for his meritorious services, and the peculiar circumstances under which he went on board of the Padang; having been very efficient, as one of the original salving crew, namely: 1£ 1£
5. The next class includes those of the crew of the Padang, who remained on board of her. To each of these there is assigned one share, namely:
To Miller, 1
Hatch, 1
Dale. 1
Barrett, 1
- 4
6. The next class includes those of the original salving crew of the Hope, who left the Ewbank, and went on board the Padang. To each of these there is assigned one share, namely:
To James, 1
Lyman,. 1
Cornish, 1
Smith, 1
- 4
7. The next and last class includes the crew of the Hope who remained on board of her. To each of them (in all nine in number) there are assigned two thirds of one share, namely:
To Walker, f
Oliphant, £
Addison, £
Graves, £
Jones, £
Lord, £
Mitburn, £
Love, £
Skinner, £
18/s —6 shares 6
shares 57
It will be perceived, from the manner in which I have viewed the general merits of the cause, that it has been wholly unnecessary for me to enter upon a minute examination of the great mass of conflicting testimony, as to the comparative merits or demerits of individual salvors. That there is much in this testimony, which is utterly irreconcilable, must be admitted; and on that account I rejoice, that it has not become my duty on this occasion to weigh in minute scales the .credibility of those portions of it, which present the most distressing conflicts. All the testimony comes from parties in interest; and therefore partakes of the common infirmities of prejudice, suspicion, and feeling, which belong to evidence originating in such sources. Salvage cases constitute one of the class of excepted cases from the ordinary rule of evidence, by which a party is not permitted to testify in his own cause. But the exception arises from the very necessity of trusting to that, or of being left without proof; for in many cases no other persons exist, who can testify to the facts. A mere formal release
It remains for me only to say a few words upon the subject of costs. And, I think, taking into consideration, how much of the evidence bears solely upon the merits of the particular salvors, without any reference to the general amount of sálvage, that it would not be correct to make the costs and expenses in the district court an equal charge upon the whole proceeds of the Ewbank and cargo, the effect of which would be to make the owners of them pay a full moiety. It appears to me, that it will be more just to charge the moiety given to the salvors with three fifths of those costs and expenses, and to charge the remaining two fifths on the other moiety. The costs of all the parties salvors in this court are to be deemed exclusively a charge upon the moiety awarded to the salvors. The claimants, (the Charleston Fire and Marine Insurance Company,) are entitled to their costs in this court, the decree of the district court not having been varied as to them. These costs are of course to be a charge upon the moiety awarded to the salvors.
I have thus gone over all the grounds of this cause, and I conclude by remarking, that I shall refer it to the clerk to ascertain and report the amount of salvage due to each party, according to the principles of this decree, after deducting all the costs, charges, and expenses.