220 F. 1000 | W.D.N.Y. | 1915
To float the vessel after she was grounded the evidence shows that it was necessary merely to patch her and pump her out. No portion of her cargo had to be lightered, the particular services rendered being specified in an agreement between her master and the libelant. It is the general rule, where a vessel is aground and it is necessary to unload her cargo in order to float her, that both the vessel and the cargo are regarded in law as imperiled, and that the salvage services in such circumstances are performed in the common interest and for the common benefit, and accordingly the payment therefor must be borne by both; but thei'e are well-recognized exceptions to this rule, for instance, after a vessel is unloaded and her cargo delivered, there is no longer a community of interest, and the vessel alone is obliged to bear the expense of being floated. The St. Paul (D. C.) 82 Fed. 104. So, also, is there an exception where the stranding does not endanger the cargo, as in cases where the vessel is grounded on the beach or shore. In such a situation it often happens that, though there may be danger of damage to the ship, there is no danger to the cargo, and hence the latter should not be held liable for services rendered in releasing the ship. The Alcona (D. C.) 9 Fed. 172; The L'Amerique (D. C.) 35 Fed. 835. See, also, International Navigation Co. v. Atlantic Mutual Ins. Co. (D. C.) 100 Fed. 304.
In the case at bar the respondent urges that the vessel was in danger of breaking in two by reason of the washing of the sand from under her, and the consequent straining and weakening, and that therefore the cargo, consisting of shingles, copper, flour, bran, and mid-dlings, was also imperiled, and should accordingly assist the vessel in the payment of salvage expenses. I think there is force in this contention, for a community of interest or a common peril, such as would afford a right to contribution and general average, is not thought to mean equal danger, and therefore I think the cargo, though not in equal danger with the vessel, was nevertheless not relieved from contribution for salvage services. Willcox, Peck & Hughes v. American Smelting & Refining Co. (D. C.) 210 Fed. 89. But, notwithstanding
It is asserted that the salvage services in their entirety were made necessary by the fact that the steering gear of the Lackawanna was defective, as a result of which she came into collision with the barge Chieftain. The Circuit Court of Appeals has sustained this view. The Lackawanna, 210 Fed. 262, 127 C. C. A. 80. Although, generally speaking, the ship and cargo must proportionately bear the salvage expenses where there is a common peril, yet, where the salvage services are rendered necessary by the ship’s negligence, the cargo may be relieved from contribution and the vessel bound for the entire expense. International Navigation Co. v. Atlantic Mutual Ins. Co., supra; The Irrawaddy, 171 U. S. 187, 18 Sup. Ct. 831, 43 L. Ed. 130. The employment of the tug James A. Reid by the master of the Lackawanna to assist in floating her was an employment for salvage services, and no doubt gave rise to a maritime lien on the ship. If the salvors had elected to proceed against both the vessel and cargo, and had recovered against them both, the cargo, in my opinion, because of the unseaworthiness of the vessel or her negligent navigation, could have recovered from the vessel the amount for which it was held liable to the claimant. The Wildcroft, 201 U. S. 378, 26 Sup. Ct. 467, 50 L. Ed. 794; Strang, Steel & Co. v. Scott, 14 App. Cas. 601.
None other of the exceptions requires special attention. They are all overruled.