The L. W. Perry

71 F. 745 | E.D. Wis. | 1896

SEAMAN, District Judge

(after stating the facts). The main difficulty in this case arises from the inadequacy of the fund to furnish reasonable compensation for the service rendered, owing to the condition of the vessel and the cargo, and the expenses necessarily incurred to make them available for sale. It is undisputed that thé schooner was derelict when taken up by the steamer; that it was a volunteer service, not referable to contract, and clearly a case of salvage; that,, although not involving serious peril, the service was of special merit, because the schooner was adrift in the track of maritime commerce, and during a storm, imperiling other navigators' through the absence of control, lights, or warning, and the steamer departed from her voyage at considerable expense, delay, and risk, and conferred benefit upon the public, as well as upon the owners of the salved property.

Without regard to the element of reward which is intended by the salvage allowance, it is manifest that remuneration pro opere et labore would be placed in excess of the fund here, if such basis were allowable. Therefore, it is contended on behalf of the libelant that the entire sum remaining should be awarded for the salvage service; and, as supporting such claim, they cite The Zealand, 1 Lowell, 1, Fed. Cas. No. 18,205, and The William Hamilton, 3 Hagg-. Adm. 168. In those cases there was an award to salvors of the net proceeds, and in Llewellyn v. Two Anchors & Chains, 1 Ben. 81, Fed. Cas. No. 8,428, there is like disposition; but in each the fact is noted that no claimant of the salved property appeared, and in the opinion in The Zealand, Judge Lowell states, as ground for the allowance, the “distinct refusal by the owner to claim,” and that if he had appeared he “should not feel at liberty to make the order.” These decisions are of eminent authority in the admiralty, but, so far as relates to the proceeds of the cargo, which is the principal subject of controversy here, are not applicable, because the claimants appear and contest the claim.

While salvage is of the nature of a reward for meritorious service, and for determination of its amount the interests of the public and the encouragement of others to undertake like service are taken into consideration, as well as the risk incurred, and the value of the property saved, and where the proceeds for division are small, the proportion of allowance to the salvor may be enlarged to answer these purposes, nevertheless, the doctrine of salvage requires, as a prerequisite to any allowance, that the service “must be productive of some benefit to the owners of the property salved; for, however meritorious the exertions of alleged salvors may be, if they are not attended with benefit to the owners, they cannot be compensated as such.” Abb. Shipp. (London Ed., 1892) 722. The claim of the libelant can only be supported as one for salvage. It does not constitute a personal demand, upon quantum meruit, against the owners, but gives an interest in the property saved, which entitles the salvor to a liberal share of the proceeds. Allowance of the whole cannot be made without repudiating the doctrine of salvage; and, as remarked by Judge Betts, in The Waterloo, 1 Blatchf. & H. 114, Fed. Gas. No. 17,257, “would be a return to the barbarous practice of giving the finder all he finds.” There must be a residuum secured to the owner. “His rights are not to be deemed derelict.” Id. In Smith v. The Joseph Stewart, Crabbe, 218, Fed. Cas. No. 13,070, a sipiilar,claim was denied, and it is pertinently said in the opinion: “If the salvors are to take all, the loss would be as total to the owner as if Ms property had been swallowed up by tbe sea;” in effect, the owner would be required “to pay for saving when nothing is saved.”

One of the grounds for liberality in salvage awards is the ris'k assumed by the salvor, — that he can have no recompense for service or expense unless he is successful in the rescue of property, and that ills reward must be within the measure of Ms success. He obtains an interest in the property, and in its proceeds when sold,but accompanied by the same risk of any misfortune or depreciation which may occur to reduce its value. In other words, he cau only have a portion in any event; and the fact that his exertions were meritorious, and that their actual value, or the expense actually incurred, exceeded the amount produced by tbe service;, cannot operate 1 o absorb the entire proceeds against the established rules of salvage;. The Carl Schurz, 2 Flip. 330, Fed. Cas. No. 2,444. Therefore, the application to that extent must be denied; but, in consideration of the circumstances, and of the small amount remaining, the; salvor should obtain the utmost which e:an be awarded. This is next limited to a moiety, as cemtended on behalf of the claimants, but may be placed at such portion as will make the best approach to the; purpose; of salvage allowance. Post v. Jones, 19 How. 150; Smith v. The Joseph Stewart, Crabbe, 218, Fed. Cas. No. 13,070; Two Hundred and Ten Barrels of Oil, 1 Spr. 91, Fed. Cas. No. 14,297; The William Smith, 59 Fed. 615. in this view, three-fourths of the; net proceeds of both vessel and cargo, after deducting Hie; expenses anel costs apportioned against each, will be awarded to the libelant for salvage.