The Joseph F. Clinton, 250 F. 977

The Joseph F. Clinton

250 F. 977 | 2d Cir. | 1918

HOUGH, Circuit Judge

(after stating the facts as above). [1] Awards of salvage almost always depend for propriety on such a nice adjustment of differing estimates of danger and value that appeals, to merit consideration, must show a yielding to erroneous principle or plain misapprehension of facts. The Florence, 71 Fed. 527, IB C. C. A. 240.

[2, 3] In this instance the pleader, and therefore probably the court below, has overlooked the principle that a tug is bound by the contract of towage not to abandon both tow and contract when the former gets into trouble, until the reasonable resources of good seamanship are exhausted. The tug’s engagement is usually, as here, to take the tow from’ one place to another in a skillful manner (The Thomas Purcell, Jr., 92 Fed. 406, 34 C. C. A. 419), and when danger arises, the tow cannot be abandoned until all reasonable efforts for its preservation have been exhausted (The Carbonero, 122 Fed. 753, 58 C. C. A. 553; The Geo. Hughes, 183 Fed. 211, 105 C. C. A. 643), and the burden of showing such efforts is on the tug (Re Cahill, 124 Fed. 63, 59 C. C. A. 519). The citations made are of suits to recover from the tug, for breach of towing contract; and it is obvious that no claim for any other reward or remuneration can lawfully be made by the tug until the obligation of that contract has been fulfilled as far as reasonably possible, or (what is the same thing in legal effect) the service claimed for is shown to be outside of and beyond the same.

[4] Applying this principle, it was clearly the tug’s duty under the contract of towage to get the Clinton to a place of safety, if reasonably near by and to be reached without danger to the rest of the tow or the Henrico. On the facts shown, the towage into Chincoteague, to shallow, quiet water and soft bottom, was but a slight extension of the tug’s duty, and for it she is entitled but to a reasonable recovery for work and labor done. Let the question be put whether any claim for salvage could have been made, if the Henrico had taken the barge to Chincoteague and left her there on the mud. The question answers itself, yet, if such service be not salvage, it was but a slight extension of the towage agreement.

[5] For services outside the contemplation of the parties in making the contract for towage, remuneration may be given, and, if they amount to salvage, a salvage award is due. The City of Haverhill (D. C.) 66 Fed. 159. What is salvage, as distinguished from mere towage, has been sometimes discussed (The Viola, 55 Fed. 829, 5 C. C. A. 283; United States v. Morgan, 99 Fed. 570, 39 C. C. A. 653) without, we think, advancing beyond the test for salvage laid down by Brown, J. (The Plymouth Rock [D. C.] 12 Fed. 634; McConnochie v. Kerr [D. C.] 9 Fed. 50); that is, a successful effort to rescue from an actual or apprehended danger.1

As applied to a boat in tow, it is said, and truly, that promptly to deviate into a harbor of refuge is to guard against danger; and it is *980also true that volunteer towage is often a salvor’s effort, but the.contract of towage, while not imposing the duty of deviation, established, a relation which made a moderate charge for deviating sufficient.2

[6] After reaching Tom’s Cove the Clinton would have sunk at her mooring, had it not been for the prompt and efficient labors of the Henrico’s engineers and the use of tire tug’s syphon. That rescue from imminent danger was beyond both the towage agreement and reasonable expectation except as a salvage service. To render it required at the outside one day, and when it was over the Clinton was fit to keep on to' New York (as the event proved), instead of being (probably) raised at great expense by her insurers in a place so remote from wrecking and salving plants as Chincoteague.

[7] The contention is made that tire Clinton was unseaworthy on leaving Hampton Roads. If true, the fact would not affect the nature of tug’s duty or the right to salvage. How far it might have lessened the quantum of effort due under the towage contract is but speculation, as we find the barge seaworthy; i. e., reasonably fit for the voyage, until her pump broke down, and that turned out to be not a structural defect, but failure to keep refuse out of the inspirator.

[8] In making award we bear in mind that the Henrico was ready to take the Clinton on to New York; that the latter refused, and has not paid the towage bill.

The decree appealed from is reversed, and cause remanded, with directions to enter decree for libelant for $1,000 and costs of District Court. Appellant will recover costs of this appeal.

Followed with copious citations in file Flottbek, 118 Fed. 954, 55 C. C. A. 448; The Kennebec, 281 Fed. 423, 145 C. C. A. 417.

For the statement of rule in England, see The Minnehaha, Lush, 335; The J. O. Potter, 3 A. & E. 295; and The Marechal Suchet, [1911] P. D. 1, to the effect that salvage begins when tug justified in abandoning towage contract, hut vis major compelling abandonment must be shown.