17 F. Cas. 484 | D. Mass. | 1854
delivered his 'opinion, in substance, as follows:
• There is no doubt that the Missouri and .'cargo were in peril, at the time referred to, and .in a condition to be the subjects of salvage service; and that the libellants rendered a sálvage service, in taking from the vessel a- lárge quantity of spe.cie, a great part of which has come to the-possession of the claimants.The safety of this specie is owing to voluntary exertions of the seamen of the Sterling, and to the use of the Sterling herself.;: But thé claimants insist, that there are:facts here which defeat this claim; that there .was a . fraudulent conspiracy by the masters of the, two vessels to embezzle part, at least, of the money. It is not denied that there was a conspiracy and actual embezzlement; but it is contended by the libellants, that those, only who participated in the fraud should suffer for it, and that the innocent should not bear the penalty. The research and learning of the counsel have produced no ease, where the courts have gone further than to inflict that punishment on the guilty; none where they have gone so far as to decide that others, not personally implicated in the offence, shall forfeit their right. Two cases are relied upon: The Florence, and The Barefoot. In the former, there was no misconduct, and no forfeiture. In the latter, the vessel having been sunk on the coast, several small vessels from the shore interfered, and obstructed the owners of the cargo, in their endeavors to save it. The owners of these vessels did not assert their innocence, and it was not even suggested that the wrongful interference was without their assent
But it is insisted that the circumstancés of this ease go beyond any which have as yet been reported, on the ground that the act here performed, on which the libellants’ claim was founded, was fraudulent in its inception.
It is urged that it is not a case of subsequent embezzlement, but of a fraudulent conspiracy in the beginning, that the property should be originally taken for a fraudulent purpose; that, as Captain Pitman had the control of the Sterling and her crew, and intended by his acts to commit a fraud, the owners and crew, as well as himself, can claim only through a fraud, which the law does not allow. And this, certainly, deserves consideration. I think it clear, and, indeed, it is not distinctly contended otherwise, that there was no fraud, or misconduct, previous to the stranding. The proof is, that the skill and labor of Pitman and his men assisted materially in saving the vessel from total destruction. There is no ground to presume that any fraud was conceived, until after the vessel was wrecked upon the beach. But the salvage service had been previously commenced, by saving the vessel and cargo from total loss upon the rocks. With respect to the time of the conspiracy, the evidence shows that after the stranding of the Missouri, and before the removal of the specie, while it was in preparation for removal, the-appropriation of it to their own use was suggested by Dixey to Pitman; and the .latter testifies that the only objection he made, was the danger of discovery. I am satisfied, that, although at that time there was no settled plan, as to the division of the money, yet that the proposition was so far entertained that Captain Pitman acceded to measures designed to conceal the real quantity of specie, and to a misrepresentation of the quantity, which would be a means of deceiving others. I cannot but consider their whole conduct as intended, at the time, to place themselves in a position to take advantage of any opportunity to appropriate the specie; and that Pitman was willing to
. Therefore, so far as the facts are concerned, I find that before the specie was fully transferred, and while it was in process of transportation, there was a fraudulent conspiracy designed to be carried into effect, if means could be found for concealment, and that the parties did subsequently carry it into effect
I shall now consider the two different funds to which this claim relates.
First, as to the sum of $9,000, which it is said the parties intended to restore to the owners. That was taken from the Sterling by Dixey, and the greater part of it transmitted to them. That was originally saved, avowedly, for the owners, and came to their use; but it is insisted, that no salvage is due on that because it was contaminated? by the general fraudulent intent. But shall that defeat the claim of the crew and owner? Why should the crew be deprived of their reward? It is said, because the master entered into a fraudulent conspiracy. But it is not pretended, that they participated in it. What is their' condition? The vessel was stranded. They went on board, rescued the specie, transported it to the Sterling, and delivered it to the agent of the owners. This was the service of the crew, aided by the vessel.
A claim for salvage rests on two grounds, —individual justice and public policy. Why should the crew be deprived of it, on either ground? Their services were faithfully rendered, and on the ground of private justice, their claim is the same as in any other case. As to public policy, that policy generally favors the preservation of property. It is for the interest of mankind that the fruits of human labor should be preserved. It is the policy, too, of every country, that its own property should be preserved. Its preservation is beneficial, into whatever hands it falls; but the original owner .must not be divested of more than that policy requires. The books state, in detail, various elements to be taken into consideration, in determining the amount to be paid to those who have rendered a salvage service, but I have nowhere seen a satisfactory general principle laid down. T think the true principle of the salvage reward is, to give a sufficient inducement to render the service promptly, perseveringly, and honestly. And in some cases, as on a dangerous coast, to offer sufficient inducements to competent persons to keep themselves in a state of preparation to afford relief, and to be watchful in the discovery of objects requiring it. This accords both with public policy and the true interest of the owners.
It must be remembered, that salvage is a contingent compensation. And the law should afford an inducement to exertion, where it is as yet unknown whether any reward will be secured. Without this, there will be nothing but motives of humanity operating upon the mind.
Sometimes great exertions are made, and great hazard and loss incurred, without success, and public policy requires that such a promise of reward should be held out, in case of success, that all those in a situation and competent to render relief, shall be eager to do so, from the mere hope of gain; for .example, that the sailor, who alone sees from the mast-head a vessel in distress, or the master, who descries her at a distance, with a telescope, shall not be tempted to pass her by, but shall have a prospect of pecuniary advantage, which may prompt his efforts.
Why, then, deprive the seamen of their reward, because another man has acted with an improper purpose? If, indeed, his fraud is so carried out, that the property is not restored, they lose that reward; but that is because their efforts are not ultimately successful
There is, however, a technical argument, that they claim through the master, and under him. But salvage service is voluntary. The master has no authority to compel seamen to engage in it I do not mean to say that they may not be bound to act under his orders, if they engage in the service; but the service itself is voluntary.
Further, thfe salvage service did not begin with the removal of specie. It began when they went on board, and assisted in making sail on. the Missouri, to weather the point There was a salvage service in thus relieving the vessel and cargo from the imminent peril of going on the rocks, — continued by saving the cargo and part of the appurtenances of the vessel.
This was, undoubtedly, in aid of the Missouri’s crew, but that is unimportant Dixey continued to be master, so long as they remained on board of the Missouri. The only thing that can be said to vary this from other cases, is, that possession continued in Dixey, until they got on board the Sterling. Then the possession was in Pitman and his crew; because Pitman was in command, and Dixey was under his control. If Dixey was assigned, as it is argued, a particular part of the cabin, and the specie placed in his charge, still I do not think that changes the legal or equitable aspect of the case.
The salvage service was ' honestly performed by the crew, and then the property was intrusted by them, as perhaps they were obliged to intrust it, since they could not control it on board of the Sterling, to the custody of Pitman.
As to the right of the owners of the Sterling, it is argued by the claimants that, in the cases where salvage was allowed to the owner, but forfeited by the guilty party, the embezzlement took place after the property had reached a place of safety. I do not find
It is said that the whole claim is through Pitman. How so? He had the power to use their property, but it does not set up, or sanction, his fraud, for them to claim a salvage reward for such use. There was an original service by the owners, as much as by the mariners. Their ship was.used; the time of the crew, paid for by them, and their provisions, were used. .The whole service was co-ordinate. The men could not act without the ship, nor the ship without the men. The right to salvage accrues from the use of the vessel.
In the early English decisions, the courts seem reluctant to acknowledge the rights of owners, and in some cases have magnified the claims of the master, at their expense, attributing to him the whole merit of the use of the vessel, without considering whether it was by the authority or assent of the owners, or not; but the true view is, to regard him as being permitted by the owners to use their property. If he does so, and loses their vessel, it is their loss, and he is not called upon to make it good. The owners consent to, and authoriz! the salvage of the property, but not that he should secrete or embezzle it That is not his agency, and when he does that it is without their sanction. It is a matter of public policy, to hold out to them an inducement to permit the master to use their vessel. If they should instruct him not to save property, he would be bound by their orders. And they will so instruct him, if the law does not give them, not only a full indemnity, but an additional pecuniary reward.
Now the prqbability of the reward is an element to be weighed, as well as the amount; but by the doctrine now contended for, in addition to the ordinary contingencies of salvage service, they must run the risk of the master’s honesty.
As to the $9,000, my opinion is, that the owners are entitled to salvage on that' amount, or on so much of it as was restored.
With respect to the- portion recovered, at Holmes’ Hole, I have had’ more difficulty. That did not come to the owners’ use, by the mere act of the salvors. It was concealed on board of the Sterling; was separated from the rest, with the knowledge of Pitman only; brought to Holmes’ Hole, and there buried; and has come to the owners’ hands by other means. And the question is, whether the right to salvage is lost. I have reflected on this, and have come to the conclusion that it is not. To sustain a claim for salvage, the property must be saved, the salvors must contribute to its safety, and the property must come to the owners’ use, or within their reach. Here, the property was saved from impending peril, and has come to the use of the owners. To be sure, the salvors have not personally delivered it. The captain has embezzled it, or at least attempted to do so, and endeavored to deprive them of it. He did not succeed; and it is now in the hands of the claimants. The merit of the owners and seamen is the same, as if no fraud had been attempted by the master. Had Pit-man succeeded in his fraudulent attempt, no salvage would have been due; because the property would .never have reached its owners. As an illustration, suppose a ship, with treasure on board, is sunk on the other side of the globe, and a vessel is fitted out, proceeds to the spot, and with risk and labor succeeds in obtaining It, and then puts it on board of a third vessel, to be brought home, and on the passage, the master and crew of the latter vessel attempt to embezzle it, but unsuccessfully, and it finally comes to the hands of the owners; shall the original sal-vors be deprived of their reward? I see no principle of justice, or policy, which requires it.
I think the libellants are entitled to salvage on the $7,500. On the question, whether there is a lien on each part for the whole salvage, I have no doubt. Where the whole property belongs to the same person, there is no reason for saying to the salvors, if you permit any portion of it to go beyond the reach of process, you shall lose your lien upon the residue, for the salvage on such portion. Such a rule would be inconvenient to both parties.
It is for the interest of the owners, that no more of the property should be withheld from them than is necessary for the security of the salvor.
The circumstance that a portion of the specie was separated from the rest, and remitted to the owners by Dixey, their master, can make no difference. The lien for salvage in no degree depends on possession. It is true, that Judge Peters, in Brevoor v. The
In determining the amount of salvage to be awarded, it is to be borne in mind, that there was no deviation, or detention, of the Sterling, which could affect her insurance, or delay her voyage; as she was at her anchorage, waiting for the pepper crop, and the services of the crew were of short duration, and attended -with no particular hazard.
The amount on which salvage is to be given is $15,103.91.. It appears that all but six of the crew have been settled with. I award to the owners of the Sterling $600; to each of her seamen, who was on board the Missouri when she went ashore, $88; to each of her other seamen $53. It appears that $18 was paid to each of them by Captain Dixey, at Analaboo, and receipts taken, expressed to be in full for labor and services. It is contended, that this is a bar to their recovery. Upon all the testimony, I do not think it can be so treated. But the $18 must be deducted from the salvage decreed to each man.
Decree accordingly.
