123 F. 781 | D.S.C. | 1903
O. R. Craig, master and managing owner of the steam tug Thomas Morgan, in May, 1901, entered into a written agreement with E. P. Burton & Co., whereby the said tug was employed in the towing of logs from the upper branch of the Cooper river to the mill of Burton & Co. near the city of Charleston, and for other towage services, on terms thereby stipulated, settlements to be made on the 10th day of each month for all work
Pregnall commenced work January 19, 1903, prosecuted the same continuously night and day, and succeeded in raising her January 31, when she was towed to his marine railway in the city of Charleston, the tug engaged in towing her pumping at the same time to keep her from sinking, and after she was put on the ways she was recalked and refastened, whereby, according to the testimony, she was put in as good condition as before the sinking. Pie has filed an account of the expenses incurred by him as salvor, amounting to $1,039.35. The bill for. preservation and restoration after she was raised amounts to $293.32. The salvage operations were ingenious. The tug was in great danger of being a total loss by reason of the great depth of water and swift current and quicksands. There was great risk of her filling with sand, which is alive in the swift currents. The work was laborious and continuous during nearly two weeks, and, as the method adopted was the use of the lifting power of the tides, the work was done at night as well as in the day, and, the weather-being cold, Pregnall, who was long past middle life, exposed his-health to considerable risk. It is doubtful that any other person in this port is possessed of the skill, appliances, and ingenuity which this salvage service required, and, as he incurred expenses of about $1,000, which would have been entirely lost if he failed in his efforts, he is entitled to an award as a highly meritorious salvor. It is difficult to fix a definite sum as compensation, because of doubt as to the value of the tug. Owing to the peculiar and lamentable conditions now prevailing at this port, nothing is more difficult than to determine the real value of any water craft. Witnesses for the libel-ant have testified that the Morgan is worth $8,000. Counsel for intervening libelants insist that this valuation is grossly excessive, and that she is not likely to bring at public sale more than one-half of this sum. A decree will be entered allowing Samuel J. Pregnall,
Next will be considered the claim of E. P. Burton & Co., who have filed a libel of intervention wherein they say in the sixth paragraph that:
“The steam tug Thomas Morgan was wrecked and sunk in Cooper river, and in such sunk and wrecked condition was liable to become a total loss if not immediately saved and raised; that so great was the depth, of the water where she was sunk, and so heavy the said steam tug Thomas Morgan, that the raising of her required great and continuous power and skill.”
The seventh paragraph of their libel is as follows:
“That these libelants, interveners, at the request of the owner, went to the assistance of said steam tug Thomas Morgan, and after continued efforts in the employment of tugs, pile drivers, lighters, tools, ropes, lumber, chains, hawsers, and labor of highest skill, eventually succeeded, after many days, in saving and raising the said steam tug Thomas Morgan, so wrecked and sunk, and enabled her to be brought safely to the port and city of Charleston.”
A more grotesque disparity between the services thus postulated and what was actually done by Burton & Co. it would be difficult to conceive. The relations between Burton & Co. and the tug have been already stated. They had a mortgage on her, and they have also filed a statutory lien for supplies advanced under their contract, amounting to $1,562.68. Their interest in the tug, therefore, was obvious. H. W. Blake, the general manager of Burton & Co., examined as a witness in their behalf, testifies that he was approached by Craig, the master of the Morgan, on January 14th; “he wanted to know if I would hire him our pile driver, and any other lighter that we had, to assist in the raising of the Morganand then follows these questions and answers:
“Q. What did you tell him? A. I told him that I did not want to do it, for the reason that the boats were worth a great deal of money to me, as I had arranged to drive some piling in our log pond; and it was only after we tried to find other lighters to assist that I consented to hire the lighters for the raising of the tug, and then X gave instructions to my foreman to- take the lighters down and stand by them and keep a watch on them, and do what he could towards the raising of the Morgan. Q. Did you send the pile driver and the lighter to the boat to perform a salvage service, or did you send them down under hire to Mr. Craig—look to Mr. Craig for payment of that money? A. I sent it down under hire expressly stipulated. Q. What price did he agree to pay you for that lighter? A. No price agreed at thé time; I told him that I would put it as cheap as I could.”
Eater on, in reply to direct questions from proctors for Burton & Co., he said that the pile driver and the lighters were sent down to. perform a salvage service, and that he knew that Craig had nothing,
“First, enterprise in the salvors in going out in tempestuous weather to assist a ship in distress, risking their lives to save life and property; secondly, the degree of danger and distress from which the property is rescued; thirdly, the degree of labor and skill undergone and displayed by the salvors; fourthly, the time occupied; fifthly, the respective values of the property salved and risked. When all these concur, a large award will be given. When none, or scarcely any, the compensation can hardly be termed a salvage compensation, but it is little more than remuneration pro opere et labore.” Newson on the Law of Salvage, p. 1.
To be entitled to salvage remuneration, there must be salvors. What was done by Burton & Co. to put them in that class? That is not their business. Their business is that of sawing lumber. Was Blake, their general manager, a salvor in any sense of the term? Clearly not, for the testimony shows that he never went near the wreck. Was Bean a salvor? The testimony is overwhelming that ■he devised no plans; that he had neither the equipment nor the knowledge for the conducting of salvage operations; that these operations were conducted and mainly depended for their success upon the operation of the tides, night as well as day, and that he
The next question is as to the relative priorities of the other liens, which, with one or two exceptions to be noted, are for materials and supplies furnished to the tug Morgan during the year preceding the disaster. I have already referred to the claim of Pregnall of $293.32 for the repairs, preservation, and restoration of the tug. The testimony shows that, after being raised, the Morgan was carried to Pregnall’s shipyard, the tug towing her being compelled to pump her at the same time to keep her afloat, and that she was then hauled on the ways and recalked and refastened. I have already referred to this claim as being, in the circumstances, in the nature of a continuation of the salvage service, and therefore entitled to priority over the other liens for supplies. It is difficult to deduce from conflicting decisions any invariable rule as to the relative rank of mari
All the other liens, it seems to me, should stand upon the same plane. They are for supplies furnished during the year preceding the disaster, and the lien is claimed under the state statute. In the absence of any special circumstances or equities, none of them having added anything to the value of the vessel, or increased the fund which will be realized from the sale, the fund to which they are entitled will be distributed pro rata among them.
The lien of Burton & Co. of $1,562.65 for supplies is objected to because they took a mortgage to secure advances on October 11, 1901; and it is claimed that this mortgage, which was given for the purpose of covering future advances, is inconsistent with the lien which they claim under the statute. Grant v. Strong, 18 Wall. 623, 21 L. Ed. 859, is relied upon to support this objection. In that case Strong filed a bill in equity to establish a mechanic’s lien for the sum of $1,547, and the proof showed an agreement between Grant, who was building 16 houses and had employed Strong to do the brickwork thereon, that Strong should take one of the houses, the price of which was fixed, in payment for his work; and the court held that the acceptance and reliance by Strong on another and very different security for the payment for his work was inconsistent with the idea of a mechanic’s lien, and that no such lien ever attached in the case. The other case cited, McMurray v. Brown, 91 U. S. 257, 23 L. Ed. 321, likewise related to a mechanic’s lien, and only goes to the extent of holding that lien laws do not in general create a lien in favor of a materialman who has accepted in full a different security at the time the contract or agreement was made, such a security being regarded as inconsistent with the intent of the parties that a mechanic’s lien should be claimed by the party furnishing building materials; but, if the owner has not fulfilled his contract by paying in the manner stipulated, the mechanic is entitled to his lien. A mortgage is not a lien under the maritime law, and I am of opinion that the taking of the mortgage by Burton & Co., in the circumstances, is not a waiver of the lien which the statute gives; that what was actually done in this case is not inconsistent with the inten
In accordance with this opinion, a decree will be entered directing the sale of the tug Thomas Morgan, and the distribution of the proceeds, after the payment of costs, as follows: (1) To Samuel J. Pregnall for expenses incurred in the salvage operations, $1,039. (2) To Samuel J. Pregnall 25 per cent, of the amount realized at the sale, as compensation for his salvage services. (3) To E. P. Burton & Co. such an amount as may hereafter be determined to be proper remuneration for the use of their lighter and other material in the salvage operations, including therein the amounts paid by them as wages to their employés who were in charge of said-lighter, and any amounts paid out by them for material used in the salvage operations, in" case it should be determined that such claims are entitled to rank with the claim for salvage. (4) To Frank S. Smith, engineer, the sum of $75 for wages due. (5) To S. J. Pregnall the sum of $293.32, the amount adjudged to be due for work done and materials furnished in the repairs and preservation of the Thomas Morgan after the Morgan was raised. (6) The remainder of the purchase money, after the payment of the above-mentioned prior liens, to be distributed pro rata between the libelant Pregnall on his two liens set forth in the'libel, and the intervening libelants who have filed their liens for supplies under the state statute, including therein the claim of Thomas Duggan for $19.12 for supplies furnished in January,- 1903. This lien was not recorded, but as the libel was filed February 10th, before the expiration of the 90 days within which it could have been recorded, it does not seem that any recording of it was necessary. The object of such record is to give notice. The suit in rem was notice to all the world.
(June 29, 1903.)
In the opinion filed June 12, 1903, it was held that Burton & Co. were not salvors, nor entitled to salvage remuneration; but the question was reserved whether they were entitled to compensation for the use of their lighter and other material hired to Craig and used in the salvage operation, and whether the compensation to be allowed for the use of such material should stand upon the same plane of priority as like material furnished by the actual salvor, and take rank over the other liens.
I have heard argument upon this point, but no authority has been cited, nor in the pressure of other duties have I been able to find any,
It therefore follows that the claim for the hire of the equipment, etc., cannot be allowed as a salvage claim.