253 F. 400 | N.D. Cal. | 1918
This is a libel for the value of services rendered in salving a wreck. It grows out of these facts: Early in the morning of the occasion in question, a vessel was discovered floating, capsized, and bottom up, a short distance outside the line of breakers off the bar at the mouth of the Klamath river, which flows into the Pacific on the coast of California about 48 miles north of Humboldt Bay. The sea was rough, and she appeared to be in great danger of going ashore. When first discovered, the identity of the vessel, by reason of her situation and submerged condition, could not be made out, but from her size and appearance it was thought to be the Magnolia, a gasoline schooner of 49 tons burden, which was known to ply between the port of Eureka and other ports along the northern coast. Word of the wreck was-immediately brought to Reqqa, á fishing-village situated on the Klamath a mile or so from
The defenses interposed are, in substance: (1) That the case is not one of strict salvage, but of contract service, wherein the basis of compensation is quantum meruit; (2) that, if a case of salvage, it is one of joint salvage, rendered by the Coaster and the tug, and that compensation must be apportioned • and awarded accordingly.
*402 “I told Capt. Coggeshall that a boat was capsized outside the bar which appeared to he the Magnolia. He replied that it was not she,'as she-was in Crescent City. Then he said, if it was the Magnolia, could any one go out and get her; and I answered that it was too rough to go out.”
And he testified that he did not agree to go out. to the wredc. Asked how he came to go 6ut, he said:.
“After the conversation over the phone I went up on the hill to take a look at the vessel; there was quite a crowd there looking at the wreck; some claimed they could see persons clinging to the bpttom, and remarks were made that some one should go out. After watching the wreck for a while, and listening to the talk, I concluded to take a chance and go out. My idea in going out was, first to save life, if there was any on the wreck, and next to save the Magnolia. After taking in the situation, I really went out because, as a seaman, I thought it was my duty. I did not go because of any conyersation with Capt. Coggeshall over the telephone.”
Capt. Coggeshall, on the other hand, testified that Capt. Crone agreed to go out after the submerged vessel; that the substance of their conversation was that, when Crone told him of the wreck and that it was supposed to be the Magnolia, he said to Crone:
“I would like to arrange to have you go right to sea. Do ybu think you would be able to go to sea right away?
“Capt. Crone: There is a little too much sea right now, and not enough water.
“Capt. Coggeshall: I wish you would make ready to go to sea, and let me know if anything can' be done. I want you to go out if you possibly can.
“C'apt. Crone: It is reported that there are men on board of the Magnolia.
“Capt. Coggeshall: If you possibly can get out, I wish you would go and first try to save life, and if you can’t do that make fast to the ship and do the best you can with her, and whatever is right for your time and trouble I will pay you.
“Capt. Crone: That is all right; I think I will be able to get out.
“Capt Coggeshall: Go as soon as you can.”
There was no other testimony as to what occurred at this conversation, and it is sufficient to say that I am unable to find in accordance with the version given by Capt. Coggeshall, assuming that it would tend to establish a contract rather than a voluntary salvage. See The Roanoke, 214 Fed. 63, 65, 130 C. C. A. 503. I am of opinion that the other circumstances in the case, and particulaly what occurred between Capt. Crone and Capt. Coggeshall when the Magnolia was taken in tow by the latter, and the further fact that Coggeshall proceeded to make other arrangements for rescue, tend ,to sustain the version given by Capt. Crone, and that I must find accordingly.
“Wisdom born after the event is the cheapest of all wisdom.”
Indeed, it is not seriously contended that any of the elements of a. true salvage were lacking, if the service was not contractual. 35 Cyc. 720.
Nor is there anything of substance in the second proposition or defense, that the case is one of cosalvage as between the Coaster and the tug. The latter was not a participant in the rescue of the wrecked vessel from any imminent peril; she took her in tow in the open sea, after she had been rescued from the threat of immediate danger of destruction by going ashore; and while her service was of value in carrying her to a safe haven, and thus relieving the Coaster to that extent, and may be considered in determining the ultimate value of the services rendered by the latter, the service of the tug was admittedly rendered under charter or hire by the owner, and is to be regarded more in the nature of a towage than a salvage. The Roanoke, supra. The tug, therefore, cannot be considered in any proper sense as a cosalver.
Without further discussion, I am of opinion that under all the’circumstances libelant will be reasonably compensated in this case by an award of S750. It would have been different, had he been required to carry the derelict the considerable distance through to Humboldt Bay, which it appears was the nearest point of a safe haven. But he voluntarily surrendered her to the owner, and therefore cannot claim upon the basis of a complete towage to that point. On the other hand, while the amount of the award is in excess of the compensation demanded by libelant before suit, obviously he is not to be circumscribed by the fact that he offered to accept a less sum in amicable adjustment of the controversy. Having been driven to the necessity of litigation, he is to have such award as in the judgment of the court will compensate the services performed, regardless of any previous offer on his part to accept less than that sum. His de
Let a decree be entered, awarding the libelant the sum above specified, together with his costs.