159 F. 20 | 5th Cir. | 1908
February 26, 1905, the Stuyvesaut Dock was a large structure built upon piling extending out to deep water along the river front in the port of New Orleans from Eouisia.na avenue up to near Napolean avenue, a distance of about 4,800 feet. It was inclosed more or less and roofed above, extended well back, and in the rear were grain elevators, machine shops, etc. It was divided transversely into four compartments by brick or fire walls, and the river front was divided into parts or berths, some -400 feet in length for the berthing of ships. The dock was used for the reception and handling and deposit of all kinds of goods to be shipped, and for the unloading of railroad cars from the rear side and the loading of steamships from the river side. Along the front and over the roofing of the dock extending from the rear to the river side was a wooden box construction called a conveyor, containing the apparatus necessary, and used for, carrying grain from-the elevators in the rear to vessels to be loaded while lying along the dock. On the evening of the day mentioned, the British steamship Indian was moored at berth 5 of the dock, her bow extending into berth 6 a little above the first fire wall. Outside the Indian, and with lines on the Indian, lay the steamship Brayhead. In berth 6, just ahead of the Indian, lay the steamship Victoria. Outside the Victoria, and tied to her port side, was a coal palace, a coal boat, and pump boat so fastened that the stem of the palace was a little off of midship of the steamer, while the stern of the coal boat extended some 80 feet or more below the stern of the palace. In berth 4, astern of the Indian with head close up, was the steamship Cycle. In berth 2 was the steamship Royal. In all, lying at the dock in the immediate vicinity of the Indian, were some 10 steamships.
The steamship Indian is a steel vessel 489 feet long, 57 feet in breadth and in depth to her ballast tanks 39 feet 7 inches, with a gross measurement of 9,191 tons, 5,190 net, 4 boilers, twin screws, and triple expansion engines. She had taken on as part cargo 350 bales of cotton, 50 tierces of lard, 192,857 bushels of wheat, a small quantity of staves, handles, and gum lumber. While the hull, decks, and masts of the Indian were steel, there was a large amount of wood on the decks — a part of the superstructure; her ropes and some of her rigging were of manila rope and some of wire; and, altogether, there was a large amount of inflammable material on and about her decks. She had steam under one boiler to use for sanitary arrangements of the ship. In this condition of matters, about 6 o’clock in the evening, a fire broke out in the conveyor about 1,600 feet from the lower end of the dock nearly opposite the steamship Indian. As soon as the fire was observed the alarm was given, and the master of the Indian called his crew to fire service. They at once covered the hatches, battened them down and covered them with tarpaulins. In a very few minutes the fire hose were placed and the pumps were started with the boiler
Under the voluminous and conflicting evidence, it is difficult to say exactly what would have happened to the Indian and her cargo but for the services of the Wilmot tugs; but the evidence leaves us in no doubt that the Indian was at the time of the arrival of the tugs in a position of the greatest peril as to her top-hamper, superstructure, and cargo, and in decided danger of injury to her sides and hull from the excessive heat from the burning dock, and the fire already caught and burning on her decks and in her rigging. It is not to be disputed that the services rendered to the Indian by the Wilmot tugs were salvage services entitling them to be rewarded in a court of admiralty; but it is contended, and the lower court so found, that the services of the tug were of a low order of salvage services, and that the awards should be on that basis. To this contention we cannot agree. The towing of a disabled vessel in still water, the pulling off of a grounded vessel with no circumstances of extra peril, the rescue of a steamboat blown from her wharf with no steam up, and other like cases, are instances of a low order of salvage services rendered by tugs and towboats ; but to rescue a vessel already on fire, tied up to a burning dock like the Stuyvesant Dock, an immense warehouse filled with mer
On the theory that the services of the tugs were of a low order of salvage, the lower court awarded the W. G. Wilmot $5,000 and the R. W. Wilmot $.2,500, making a total of $7,500, and this amount we consider inadequate under the facts of the case. There is no fixed rule based on value of property salved and character of services rendered to determine the amount of salvage rewards. In practice in this circuit, the courts have used their best judgment, sometimes awarding a percentage and other times a gross sum. The large size general capacity of the Wilmot tugs, has been hereinbefore given. The appraised value of the Indian after the fire was $347,256.47, and of her cargo $116,035.64, making for both $463,229.17. Three per cent, of this total is $13,896.87, and on the percentage basis this.sum would appear to be not excessive as an allowance for salvage. The judge a quo allowed a gross sum, and on that line we can well approve of the ■sum of $12,500. Considering the decree of the lower court, all the circumstances developed by the evidence, and the services rendered by the Wilmot tugs severally, we are of opinion that the award to the W. G. Wilmot is not so inadequate as to require correction; but that the award to the R. W. Wilmot is inadequate. Considering the greater capacity and value of the R. W. Wilmot and the fact that her valuable services were rendered not only in helping materially to get the Indian away from the burning dock, but also with her master and men in getting aboard the burning ship with hose, and there, in great discomfort if not in actual peril, rendering valuable services in keeping the fire down, we conclude that the award to the R. W. Wilmot should be increased to $7,500.
In the main case in the court below William A. Bisso, master of the tug Baton Rouge Belle, for himself and others, and Joseph A. Bisso, master of the towboat Leo, for himself and others, intervened, claiming for salvage services rendered to the steamship Indian in rescuing her from the fire at Stuyvesant Dock. From an adverse decree, they also appeal. The judge of the lower court disposed of their interventions as follows:
“The intervening libelants, the owner and crews of the Bisso tugs, the Belle of Baton. Rouge and the Leo, claimed to have rendered, salvage service in extinguishing the fire in the woodwork and rigging after the Indian was moved from the wharf, and while she was being towed to the middle of the river, and after she had come to anchor there. The claimant and the libelants deny that the Bisso tugs came upon the scene until the fire had been practically extinguished and was completely under control, and declare that they were ordered to desist by the captain of the Indian as they approached and began to throw water on the decks. The Bisso witnesses testify that they had been pumping on the Indian for more than 15 minutes before they were ordered off. They claim that as soon as the Indian was moved from the wharf the Belle of Baton Rouge came up between her and the wharf 'and lay along her port side and pumped on her while she was being towed into the river and for several minutes after she was anchored. And they insist that their position was such that they could not be seen from either of the Wilmot tugs, both of which were on the starboard side of the Indian with the flames and smoke from the fire on the rear of the Indian, between them and the Baton Rouge Belle. They further insist that the same fire and smoke prevented the captain and crew of the Indian from seeing them when they first*25 came up. On the other hand, there Is the testimony of numerous witnesses that the captain of the Indian called to the Bisso crews as they first came up and began to pump, and ordered them to desist and go away as he had no need of their services, and they were in fact injuring and not helping him. It is impossible to decide with certainty on which side is the truth. But this uncertainty is necessarily fatal to the claim of the intervening libelants. They cannot recover for salvage services until they prove by a clear preponderance of evidence that they helped to extinguish the fire. The evidence docs not establish that they rendered any services at all, much less that they rendered any salvage services.”
From our examination and consideration of the evidence in the case, we concur with the judge a quo as to the claim of intervening libelants, and only deem it necessary to add that the evidence is clear that as soon as the master of the Indian learned of the presence and offered services of the intervening libelants he refused to accept their assistance and ordered them off. Under nearly all supposable circumstances when the master is in command and control of his own ship he may refuse and reject salvage services, and no volunteer salvor can force on him, and be rewarded for, services which he forbids. See The Choteau (D. C.) 5 Fed. 463; Id. (C. C.) 9 Fed. 211; The Brig Susan, 1 Spr. 502, Fed. Cas. No. 13,630.
In his opinion in the case the judge a quo says:
“This record is incumbered with an enormous amount of irrelevant testimony. While the libelants are entitled to recover an allowance for salvage, in view of the ccaidiiion of the record, I shall not allow them costs, and under the final decree rendered in the case each party will be required to pay his own costs.”
We do not interfere with this part of the decree for two reasons: First, that the criticism of Judge Saunders is fully justified by the record; and, second, as a general rule, the costs are within the discretion of the court, and not subject of appeal. See Taylor v. Woods, 3 Woods, 146, Fed. Cas. No. 13,809.
For reasons herein given, and to give effect to our views, the decree appealed from is amended by striking out that portion of the same awarding various sums to the owner of the steam tug R. W. Wilmot and in favor of the crew of .said tug, and inserting in lieu thereof the following:
In favor of the Monongahela River Consolidated Coal & Coke Company, owner of the steam tug R. W. Wilmot, the sum of..........$4,500 00
In favor of the crew of said tug as follows, to wit:
Name Salary To receive
C. J. Mott, master, $375 00 $904 80
S. Hogan, engineer, 125 00 640 50
M. Kornbacher, second engineer, 70 00 362 30
A. Tilomas, deck boy, 40 00 207 00
■T. Helberger, deck hand, 40 00 207 00
J. Sharp, fireman, 50 00 258 00
M. Baer, oiler, 40 00 207 00
J. Lincoln, coal passer, 40 00 207 00
3,000 00
Total .................................................... $7,500 00
And as thus amended the same is in all respects affirmed.
In view of the peculiar circumstances attending the rejection of the
And it is so ordered.