| D. Mass. | Apr 15, 1847
1. Are the officers and crew of the Holder Borden, to be deemed salvors, in rescuing from the waves, and placing upon the island, the oil and fragments of the vessel? In the case of The Neptune, 1 Hagg. Adm. 227; The Massasoit [Case No. 9,2(30]; and the recently reported case of The Reliance, 2 W. Rob. Adm. 119,— it is decided that, in case of shipwreck, and part of the vessel being saved by the exertions of the crew, they are entitled to wages; but cannot be deemed salvors, unless under very extraordinary circumstances. It is insisted, that this case comes within that exception. Immediately upon the disaster, the captain resolved upon building a schooner, as the only means of escaping from the island. He put upon this service as many men as could be employed to advantage, and it took nearly five months to complete her for sea, during which time the residue of the crew had no other employment than that of saving the oil. The weather was fine, the sea was smooth, and although the service was laborious, it was not attended with danger, or any particular suffering. We should keep in mind, that this was a whaling voyage, in which the great principle of maritime policy, of uniting the interest of the mariner with that of the owner, is adopted, in its greatest force. By express contract, the compensation of a mariner is to be only a share of the net proceeds, which shall be brought to the hands of the owner. In taking the oil from' the wreck, therefore, they were laboring to secure the proceeds of the voyage, upon which their compensation depended, which was enhanced by every barrel ultimately saved. I do not think that the circumstances were such as to entitle them to be considered as salvors, for merely placing the remnants of the ship, and the oil, out of the reach of the waves.
The men worked only during the day, not being pressed for time, subsisted upon the
3. The brig Delaware, purchased at Oahu, is to be deemed the property of Dr. Durfee. The purchase was made in his name; the bill of sale given to him alone. He has paid the purchase-money, and although the captain states, that he purchased her for the owners of the Holder Borden, whoever they might be, it does not appear that any of the other owners have, in any manner, ratified his acts, or participated in the purchase. For going from Oahu to the island, which I shall call “Pell’s Island,” and taking from thence the oil, and the few remnants of the ship, the brig was entitled to compensation, and has a lien, therefor, on the property taken on board and brought to the United States. It appears, that the officers and crew of the Delaware, have been paid by her owner, for their services in going from Oahu to Pell’s Island, and taking and conveying her cargo thence to the United States, and are not now to be compensated for that service.
It is found, by the assessor, that the actual expenses incurred by the owner of the Delaware, in saving this property, including the purchase of the brig, and deducting her value at Fall River, was $11,303.12; and he has reported, that five per cent will be a fair rate of insurance. This, I am satisfied from the evidence, is a moderate estimate. Beside the amount of expenses and insurance, the owner ought to be allowed such further compensation, as would have been an adequate inducement to him, if he had been present, to allow his vessel to be employed in this extraordinary enterprize.
For this, including the risk of the brig, I shall allow the sum of $1650, which, added to the expenses above stated, makes an aggregate of $12,953.12. The assessor has reported, that one-third of the net proceeds would be a fair compensation to the owners of the Hope, for taking, and carrying to Oahu, the oil and remnants, which were conveyed in that vessel, and that sum, being $755.60. will be allowed to them accordingly; and as Captain Pell has not been adequately rewarded, for his peculiar and meritorious services, in the extraordinary circumstances in which he was placed, I shall award to him the further sum of $200.
The net proceeds of the oil and remnants of the ship, taken by the brig Delaware from Pell’s Island, amounted to $17,628.57; deduct $12,953.12; leaves $4,675.45. The net proceeds of the oil and remnants, conveyed by the Hope, was $2266.80; deduct $755.60, and $200, leaves $1311.20; from the above sums of $4675.45, and $1311.20, will be deducted the costs of the libellants; and the residue will remain to the owners of the Holder Borden, and her officers and crew. So far as this fund is the proceeds of the remnants of the ship, it belongs exclusively to her owners. So far as it is the proceeds of the oil, it belongs to the owners, officers, and crew of the ship, in the proportions prescribed by the shipping articles. Decree accordingly.