180 F. 892 | S.D.N.Y. | 1910
(after stating the facts as above). The chief reason for making a liberal allowance in this case arises from the value of the property saved and its danger. As to the Erika’s own peril, undoubtedly, if the story of the engineer is to be taken literally, the ship was in considerable danger of breaking her own shaft, par-: ticularly on the night of the 4th and during the 5th, when both were pitching heavily, and when the wind was very high, even by the Var-zin’s own log, which gives it up to 11 on the Beaufort scale. In view of its contradiction by the Lloyd’s surveyor, I shall accept the engineer’s statements with some reservation, but I cannot disregard the fact that, as the ship was going so slowly under full power that it could not make its own steerageway, the strain upon the shaft must have put it in considerable additional danger of breaking. Especially, while the ships were on the Bank, it would have been a matter of serious moment to be both adrift with broken, shafts, and no- one can fairly ignore that the salvor during that time was running a measurable risk. Upon her crew, except during those times when all hands were called to make ready for heaving the hawser aboard, or to clear
Coming now to the peril in which the saved property stood, it seems to me that the Varzin greatly underestimates it, and the testimony of her master that she was tight and seaworthy for an indefinite period is to say the least only a small measure of the truth. I am quite satisfied that he could make no headway except as he could continue to meet favoring winds, and could not have made port unless by a series of happy fortuities. Before he spoke the Erika, his course showed that he depended substantially upon the wind, and that he could lay a course very little into the wind. His sails, except those made for the ship which were not really designed for independent navigation, were of the most flimsy character, and several times carried away. The light cargo made the ship ride high, and must have added much to the difficulty of maintaining any,course into the wind. Especially the entry in the log of the Varzin shows pretty clearly that at the time the officers recognized that the ship was in no condition to continue any longer at sea than was absolutely necessary; nor do I credit the story of the Varzin’s master that all he wished was a tow to New York, if he could get in communication with a boat carrying wireless. That would have no doubt been much cheaper and would have admirably answered his purposes if he had been able to get it at once, but he was certainly very willing to take the first assistance which offered, and which would bring into port his immensely valuable cargo. Though, as I believe, he had ample stores for the safety of his crew for an indefinite time, and though his position was somewhat, north of some of the trans-Atlantic courses, it is quite obvious that with the winds which blew on subsequent days he was in great danger of blowing out of any course, and of drifting about helplessly till he was picked up by some steamer like the Erika, which in that event would have with reason claimed a larger award than can be awarded now. Certainly his wisest course was to do what he did, and avoid any further risk of danger or damage. It is very well now when all are safe and happy, in port to consider the many means of safety which might have come to hand, but the fact must always remain that a ship practically helpless, 350 miles from land, is always in real peril in the north Atlantic in winter, and that, although there are ways in which she may come out of it, hull, cargo, and freight, there are likewise many others which lead quite elsewhere.
In so far as involves the loss of 36 hours in standing by on the 1st, I do not think that the master of the Erika can be blamed. He was not ready to heave on board the hawser until early in the morning, and it was natural that with some sea running he should be unwilling to risk his men until there was light with which to see what he was about. The Varzin herself did not suggest in the night that a small boat should go out, thought she sent it out each time after-wards, and it seems to me unfair to charge with overcaution a master who will not put out his crew in a small boat in the dark and between ‘ two ships working so near together. Besides, that very proximity of the ships would have been doubly dangerous in the night, even by a
Though I am fixing a larger award than has heretofore been granted, so far as I find in the books, I have not thought that the sum should be fixed upon anything- like the same percentage of the value of the property saved as would obtain in smaller cases. The salvor must no doubt have adequate inducement, but that inducement cannot be strictly proportionate to the value, and this is a principle which has been recognized in the cases. Considering the peril of the Varzin and her value, and the real, though not great, danger, which the salvor herself undertook in towing a much larger ship through such weather, the necessary length of time involved, and the extraordinary success of the help given, I think a salvage of $45,000 is fair, and I will award that sum. . To this may be added the expense of the Erika, amounting to some $o,000, and consisting of the items mentioned in the statement of facts. I consider the loss involved in the supposed disarrangement of the schedule too remote to be the basis of damages. If the parties cannot agree upon the expenses, they may take a reference. Costs will follow the award.
