23 F. Cas. 440 | D. Mass. | 1859
This was a libel for salvage. 1 have no doubt that this vessel was in such peril as to be the subject of salvage-service, and that the libellants went on board from the shore, and aided in bringing her to. a place of safety. But it is insisted that they are not entitled to a salvage compensation, because it was understood between them and the master, before -and at the time the assistance was rendered, that it was to be merely pilotage.
This requires examination. It appears that, on the 6th of February, this vessel made sail from Holmes’ Hole, bound for Bos--ton. After proceeding about fifteen miles, her lumber ports were stove in by sheet ice, and in five minutes she was filled with water, and sunk as low as her cargo of lumber would permit. Her cabin and her rails were submerged, and only the extremities of the stern and bow, and the upper part of the •deck-load of lumber were above water. The •crew could have neither fire nor shelter, and most of their clothing was wet. The water flowed into her so freely, that no attempt was made to free her from it by the pumps •or otherwise. In this condition she made a signal of distress, and was soon afterwards taken in tow by the brig Rebecca, belonging to the same owner. The weather being mild for the season, and the wind moderate, some consultation was had between the masters of the two vessels, about proceeding to Boston; but it was concluded that the Susan should go into Monomoy Point. The master ■of the Susan was on board of the Rebecca, and her flag was then hoisted at the fore topmast head as a signal. Upon seeing this, eight of the libellants proceeded in- a boat toward the Rebecca; and as they approached her, the master of the Susan inquired if they had a pilot, to which one of them, James Colson, replied that he could take her in, referring to the Susan, then water-logged and in tow.
There is testimony that Captain Lowd, the master of the Susan, said that a pilot was all that he wanted, and that he needed no other assistance. But it is not stated that any response was made to this by any of the libel-lants, and I am not satisfied that it was said to them or made known to them, so that they understood or ought to have understood that whatever they should do would be only as pilots, and for mere pilotage compensation.
Immediately after getting on board of the Rebecca, she and her tow, by advice of Col-son, were taken into shoaler water, and there anchored as a place less in danger from ice, until the tide should favor her going into harbor. In the meantime, four of the libel-lants, at the request of Captain Lowd. took the steward of the Susan and the clothes of her crew on shore, and afterwards returned. While this boat was absent, the Rebecca departed and kept on her voyage. Soon after the return of the boat, with the aid of the libellants the anchor of the Susan was weighed, and she attempted to get into the harbor of Monomoy, steering partly by her rudder, and partly by her sails. Being very deep in the water she took the ground; thereupon a part of the libellants went in her boat to the light ship, half a mile distant, obtained a kedge anchor, and aided in hedging her off the shoal and into the harbor. These were, in their nature, salvage services. In weighing the evidence, with a view to determine whethér the libellants were by agreement restricted to the mere compensation of a single pilot, all the circumstances should be taken into consideration. No one of the libellants was a pilot by commission or appointment; and if they had been, the Susan was in such condition that they would not. by the general law, have been bound to go on board and aid in getting her into port, merely as pilots. The Hebe, 2 W. Rob. Adm. 247. The presumption, therefore, is, that the service was understood by the parties to be salvage, unless it be shown by satisfactory evidence that there was a different agreement. In The Haedwig, 24 Eng. Law. & Eq. 582, a vessel in a condition to be the subject of salvage service made a signal for a pilot, by hoisting her colors at the fore topmast head, as in the present case, and when a boat came alongside, the master of the vessel said he wanted one man as a pilot; and the boat’s crew— none of whom were commissioned pilots— aided in getting the vessel into port, it was held that they were entitled to salvage. Dr. Lushington, in giving his judgment, declared that he should hold a signal, under such cir-
In such case, the vessel has no right to make a signal merely for a pilot. Pilots are not bound, unless by statute, to take the hazards, or subject themselves to the labor of going on board, and aiding such a vessel, for mere pilotage compensation. But suppose such a signal is made, or an actual signal of distress is held out, and persons are thereby induced to go on board to render assistance, and then the master of the vessel, who has made the signal, refuses to accept their services, or will receive them only upon conditions to which they are under no obligation to accede, are they to be entitled to no compensation? This, I believe, is a new question, although such a state of facts has sometimes actually existed.
A signal of distress is a request for assistance. And. if competent persons, upon such request, subject themselves to labor and danger, and expense, to get on board of the vessel, and there offer their services for such reward as the law will give them, if such offer be rejected, it would seem that some compensation should be made for the labor, expense, and danger so incurred; at least, in cases where the vessel subsequently comes to a place of safety. .Several cases have heretofore been presented to me, where boats have put off from the shore to vessels making a signal of distress, with great gallantry and hazard to life, in launching through the surf, and where the subsequent service of getting the ship out of danger was comparatively trifling. The chief merit, and principal ground of compensation, was their great courage, skill, and danger in reaching the ship; and I should be slow to believe that, in such case, they would be deprived of all reward, at the option of the master in rejecting their services, after reaching his ship. But, in the present case, this question need not be decided, and comes into view only in giving construction to the acts of the parties, in order to determine in what character the libellants really acted. In my opinion, their services were not refused, nor accepted upon condition that they should be deemed mere pilotage, but were properly rendered by them as salvors.
It is true that these services were rendered upon the request of the master, and with some understanding; that is, under a contract with him. And it is sometimes said that the service is not salvage, if performed under a contract. This is quite inaccurate; and it is important that the error should be pointed out.
In much the greater number of salvage cases, the services performed are by agreement; that is, a contract between the sal-vors and the agent of the owners. Take the common case of a vessel in peril, sending a boat’s crew ashore for assistance, and upon their request, and by mutual agreement, certain persons, with a boat, or a sailing vessel, or steamer, render the desired assistance, nothing being said about compensation. The law declares what the compensation should be, viz., meet and suitable salvage, if property be saved; and no pay, if nothing is saved. But it is competent for the parties to go further in their contract, and stipulate what the compensation shall be. They may agree that, if the property be saved, a specified sum shall be paid. That is still a salvage compensation, although the amount is fixed by the previous agreement of the parties. They may agree that compensation shall not be dependent upon success, but payable, at all events, for the time and labor bestowed, whether property be saved or not. By such agreement, the compensation, not being contingent upon the safety of the property, is not .salvage. But the party who asserts that there was acontract which displaces salvage, assumes the burden of proving affirmatively the existence of such contract. It is not sufficient for him to show that there was some-contract; but he must go further, and prove that it was agreed that the compensation should be absolute, and not contingent, otherwise the law will say that it was to be contingent upon the saving of property.
The cases of Hennessey v. The Versailles [Case No. 6,365], and The Independence [Id 7,014], rest upon these principles. On land, the law is otherwise. If a person requests another to labor in saving his crops, or other
But here, again, the parties may, by their express contract, make the compensation contingent upon success. For land services, the law gives a quantum meruit, without regard to success, unless it appears that the parties had made a different agreement.
But for services in rescuing property from perils of the sea, the law gives no compensation, unless the property is saved. And the error into which some learned lawyers have fallen, as to the right to salvage, is in looking at the subject only by the light of common law doctrines applicable to services on land. In the present case, it is not proved that there was a special agreement for an absolute compensation, or fixing the amount.
It remains only to consider what amount shall be awarded. The vessel and cargo were worth about $5000. The time occupied by the eight libellants who first went to the Susan, was from ten o’clock in the morning, till twelve at night. Thirteen others of the libellants went on board, about eight o’clock in the evening, and continued to aid, or were ready to aid, until twelve o’clock; but I do not think the assistance of so many was by any means necessary. The labor and hazard were inconsiderable, but the service was promptly rendered, and the compensation was contingent.
There is one element which I have heretofore taken into view, in some cases, and which is not to be wholly overlooked in this. It is that encouragement should be given to competent persons, upon dangerous parts of our coast, to associate together, and keep themselves organized, with suitable boats and other appliances, to render prompt and efficient assistance to vessels in distress. Decree for $250 and costs.