The Whitaker

29 F. Cas. 946 | D. Mass. | 1855

SPRAGUE, District Judge,

held that the vessel was in a condition to be the subject of salvage service. The men who labored under Holbrook, in attempting to launch the vessel, were not salvors, inasmuch as the services by them rendered had no tendency to relieve her from peril, and did not at all contribute to her ultimate safety; that the men who succeeded in relieving her were entitled to salvage compensation, unless the nature of the contract, under which they labored upon her. displaced their claim: that an agreement to relieve a vessel in peril, for an agreed compensation, is binding upon the salv-ors, and their compensation, although still .salvage, is limited to the amount agreed; that persons assisting the contractor may sustain a claim for salvage, but the court will take care that the party receiving the salvage service shall, in such case, be protected against the contractor, so that he shall not be required to pay, in all, more than the amount named in the contract; and that when the contract is to labor upon the vessel, for a compensation to be paid at all events, whether the vessel be relieved from her peril or not, such a contract displaces a claim for salvage. That, in this case, it being shown that the men who labored under Otis were hired for a per-diem compensation, no decree could be made in their favor, nor could any decree be made in favor of any of the libellants, unless Holbrook became a party to the suit, or the respondents were in some way relieved .from his claim upon the contract.

Subsequently, the counsel for the libellants moved for leave to amend, by making Hoi-brook a party, stating that he was authorized to act for Holbrook. Leave being granted, a decree was rendered in favor of Holbrook and Otis, for the $900, without costs, and the libel dismissed, as to all the rest of the libel-lants.