15 F. Cas. 1003 | D. Mass. | 1867
On the afternoon of the twenty-first day of January, 1867, the bark Flora Southard, proceeding in ballast from Boston to Philadelphia, and having on board most of the supplies necessary for the voyage to Rio de Janeiro, which she had agreed to undertake from Philadelphia, and valued with her stores at about thirty thousand dollars, fell in with the schooner Lovett Peacock, in distress, in latitude 37° 15’ N. and longitude 70° 30’ W., some three hundred miles from any land. The schooner had a signal flying, and as the vessels came within hail, her master said he was short of bread, flour, and water, had lost his sails, and his
The disputed points were, whether the master of the bark took any unfair advantage of his position to obtain the control of the salvage enterprise, and how far the vessel was in peril, and what was the conduct of the schooner’s master at the beginning and during the continuance of the salvage service. The master of the schooner swore that he was ready and anxious to proceed on his voyage, but that his men deserted him, and that even then all he wanted was men, provisions, and sails; that sails and men were refused him; that Captain Mclntire exaggerated the damage to the schooner in order to discourage him while enhancing the value of his own services.
I am entirely satisfied that the imputations on Captain Mc-Intire’s conduct are untrue. The only foundation for them is the qualified refusal of sails on the first day, which is satisfactorily explained by Captain Mclntire, and which I do not believe had any influence on the result. Upon all the evidence it is clear that master, officers, and men of the schooner thought it prudent and proper to abandon her. She had met a great deal of bad weather; had lost all her large sails, and one of her boats; was much strained and damaged in her upper works, so as to leak badly in heavy weather; her cabin and house were both so-injured as to let in the cold and wet; her officers, and a double crew that she happened to have, were exhausted and disabled. Whether Captain Reagan ought to have despaired of his ship, while her hull remained sound, is a different question. His conduct is of importance chiefly in this respect, that if he was,, as he would have us believe he was, the promoter of the salvage enterprise, and able and willing to lead it, and the bark’s crew were willing to go with him, Captain Mo-Intire certainly had no right to attempt to-enhance the service by sending an officer who was not needed; and such conduct would diminish his compensation and perhaps that of his principals, the owners, though it might not affect that of the actual salvors who were no parties to it. This line of evidence, too, has a bearing upon the amount of peril, as it appeared to the parties at the time. The truth appears to me to be that Captain Mc-lntire believed, and openly and without any concealment said, that the schooner could be saved; that in this opinion he differed from .all the other persons who had any means of knowledge; that if Captain Reagan did not agree with the majority, he at least presented that appearance, which is all that is important in this case, as it is all that can affect the salvors.
Such being the state of affairs the question arises and has been earnestly argued, whether this is a case of derelict. I cannot think it was, because the final abandonment by the owners and the occupation by the salvors were contemporaneous acts, and the one would probably never have happened unless in a situation where the other was possible, since the boat of the schooner was not capable of taking off all her crew. So that the owners of the saved property must be credited with the chance, whatever it may have been worth, of the schooner making Bermuda, which she was undertaking to do when fallen in with by the bark, and not merely with the chance of a vessel abandoned on the high seas being picked up. I have always strongly .insisted upon the distinction between a vessel disabled at sea and one abandoned there, and again between a vessel abandoned at sea and one abandoned on a frequented coast where assistance can be obtained, because an attention to these distinctions seems to me to reconcile many of the most apparently conflicting decisions upon the, quantum of salvage. The true point here is, that not merely the risk the vessel is in of present or early damage or destruction must be looked at, but the peril that the owner is in of never re
It is therefore a case for very liberal compensation. And I consider that I do not,go too far in decreeing, as I do, • one-fourth of the net value, or twenty-two thousand five hundred dollars. The distribution will be governed by the circumstances of the ease as applied to the general rules in salvage. The ■owners appear to be entitled to the usual share of one-third; the master, who was the only originator and instigator of the whole enterprise, and the second mate who conducted it to a successful conclusion, giving the work of his hands as well as of his head, and the men who were with him. are all to be highly considered. The men who remained on board the bark are entitled to some share, but they neither underwent the actual hardship and whatever there was of danger, nor were they exposed to much additional labor, for they had the assistance of the shipwrecked crew to some considerable extent in place -of those vTho went in the schooner. The first -officer who refused, as he had a right to do, to give the aid of his skill and experience, ■cannot expect much. Lord Stowell once refused to give any thing to a mate under somewhat similar circumstances. But as the sal-vors have received the benefit of his services •on board the bark, I shall give him the share of a man. The distribution then will be as follows:
To the owners of the Flora Southard, one-third; to the master, one-sixth; to the second mate, one-ninth; to the four men, actual salvors, SHOO each; to the six persons who remained on board the bark (exclusive of the master), the remaining sum of $4350, to be divided between them in proportion to their wages, except that the mate is to rate as an able seaman only.