Ulster S. S. Co. v. Cape Fear Towing & Transportation Co.

94 F. 214 | 5th Cir. | 1899

After stating the case as above, the opinion of the court was delivered by

PARDEE, Circuit Judge.

The ordinary and usual employment of the tugs, for which salvage services are claimed in this case, was in the rendition of towage services in the same waters where the Torr Head was aground. Under the facts, it is fair to presume that tlie original employment of the tugs by the master of the Torr Head was really to render towage services, for which compensation was to be made whether they successfully aided the Torr Head in getting afloat or not. This appears from the undisputed evidence of the master, who employed the libel-ants, and agreed-to fix their compensation by arbitration. It also appears to have been the idea of the master of the tugs, because, of their own motion, and against the wishes of the master of the Torr Head, they quit work at 7:30 p. m. on the first day .of employment, and the tug Jacob Brandow entered into other employment. The services of salvors, to entitle them to compensation as such, must be successful, and, as a general rule, and necessarily, they must be continuous. In this connection it is significant to note that the assignment of error by the libelant owners of the tugs in their cross appeal, in which they claim that the crew should be awarded only a nominal sum, is to the effect that the services of the crews were merely •{he ordinary services rendered by them under their employment. The district court found that the services rendered by the libelants were in the nature of salvage services entitling the libelants to compensation. Looking at the services actually rendered, all were within the usual employment of the tugs and their crews. The only peculiar salvage service rendered was in the carrying out of the anchors of the Torr Head, and, considering this valuable service, in connection with the towage, the finding of the district court that the services were in the nature of salvage services, entitling the libelants to compensation, is not erroneous. We think it proper to emphasize the fact that all the services rendered and performed were under the direction and control of the master of the Torr Head, and that the real servicies which put the Torr Head afloat were, in the main, rendered by the Torr Head herself, operated by her master and crew.

The real contention before ns is in regard to the matter of compensation. The district court allowed §,13,000, and directed its disposition, half to the owners of the tugs and half to the crews of the respective tugs. The argument is pressed in this court that the amount awarded in a salvage case is so largely within the discretion of the district court that it is not to be disturbed, except for gross overallowance, palpable mistake, and the like. The true rule appears to be as stated in The Connemara, 108 U. S. 359, 2 Sup. Ct. 754, as follows:

. “In The. Sybil, 4 Wheat. 98, Chief Justice Marshall said: ‘It is almost impossible that different minds contemplating the same subject should not form different conclusions as to the amount of salvage to be decreed, and the mode of distribution.’ And by the uniform course of decision in this court during the period in which it had full jurisdiction to reverse decrees in admiralty upon both facts and law, as well aso in the judicial committee of the privy council of .England, exercising a like”jurisdiction, the amount decreed below was never reduced, unless for some violation of just principles, or for clear and palpable mistake or gross overallowance. Hobart v. Drogan, 10 Pet. 108, 119; The Camanche, 8 Wall. 448, 479; The Neptune, 12 Moore, P. C. 346; The Carrier Dove, 2 Moore, P. C. (N. 8.) 243, Brown & L. 113; The Fusilier, 3 Moore, P. C. (N. S.) 51, Brown & L. 341.”

Many cases have been cited on one side to show that, compared with allowances made for salvage services in many cases of more or less similar circumstances, the amount allowed in this case was moderate and reasonable; and, on the other hand, to show that the amount allowed was very high, and out of all proportion to the services rendered. It is profitless to discuss these'eases, as confusion could only come from trying to apply them in the present case. The Hesper, 18 Fed. 690, is, however, a case in which the circumstances are so similar that it is well to refer to it. The Hesper, worth §106,500, ran aground in the sand on Galveston Island, about 20-odd miles off the port of Galveston, and remained aground for three days; one-third of her cargo was lightered by tugs, which were worth $35,000; the weather was good; and the court found that: !

“The Hesper, when aground as aforesaid, was in a condition of peril and distress, hardly likely to 1)0 able to get out of danger by her own efforts, even if the weather had been certain to continue favorable for many days, and certain to be wrecked if the weather should prove to be bad; that the services rendered the Hesper by the libelants’ boats were salvage services, but of the lowest grade, involving neither risk of property, peril of life or limb, or unusual exposure, or gallantry, courage, or heroism, and the same will be fully compensated by double compensation on the basis of towage and lighterage services.”

In tha t case the district court allowed the sum of §8,000 salvage. This amount was cut down by tbe circuit court on appeal to the sum of S4,200; that sum being double compensation for towage and light-erage. lu the instant case, we find that the Torr Head was aground in a condition of peril and distress for less than one full day; that the services rendered by the libelants’ boats were salvage services, but of the lowest grade, involving neither risk of property, peril of life or limb, nor unusual exposure, nor gallantry, courage, nor heroism. The elements to be generally considered in determining the amount of salvage in a given case, taken from instructions issued by the British Board of Trade, may be stated as follows: (1) The degree of danger from which the lives or property are rescued; (2) the value of the property sayed; (3) the risk incurred by the salvors; (4) the value of the property employed by the salvors in the enterprise, and the danger to which it is exposed; (5) the skill shown in rendering the services; (G) the time and labor occupied. In the case of the Torr Head the value of the property saved seems to be large; the danger from which it was rescued was certain, but not determined; there was no risk incurred by the salvors; the value of the property employed was comparatively small, and it was exposed to no danger; the skill shown in rendering the services was of the ordinary kind; the time employed was short, and the labor was the ordinary employment of the tugs and persons engaged. Considering these facts, and that the amount of the salvage awarded was more than two-thirds of the value of the vessels employed in the service, and that under the decree appealed from extraordinary awards are given to the members of the crews of the libelants’ vessels, — such as over $300 to cooks and firemen who performed no services out of their usual routine, and whose wages were a dollar a day, — it would seem that the allowance of salvage is out of proportion to the services rendered, and unduly high in reference to the objects for which salvage compensation is allowed. In addition to this, we think it apparent from the record that the allowance of salvage was made largely on the theory that the libelants’ tugs and their crews really performed the whole services of saving the Torr Head from impending peril, while the fact is, as clearly appears from the evidence, and hereinbefore referred to, the real sendees which put the Torr Head afloat were rendered by the master and crew of the Torr Head, using her machinery and appliances; and it seems probable, — extremely probable, — the good weather continuing, that without the services of the libelants’ tugs the energetic master of the Torr Head would have successfully floated his vessel through the use of his own crew and appliances.

While it is now conceded that no claim can be made in the present cause for salvage on'either the pending freight or cargo, it is admitted that since the appeal was taken the libelants have sued in personam the owners of the Torr Head to recover salvage on both freight and cargo. As the trial judge filed no opinion in the case, we are not advised whether, in mailing his allowance for salvage, he considered the value of the cargo and freight. On the whole case we conclude that the allowance made against the Torr Head is an overallowance, that it was made on the incorrect theory that the libelants rendered all the services which saved the Torr Head; and that it ought to be reduced at least 50 per cent. On the cross appeal brought by the owners of the tugs it is claimed that the crews on board the libelants’ tugs rendered only services within the scope of their employment, and that the amount allowed to the crews is wholly disproportioned to the services rendered. That this claim is well founded appears from an inspection of the decree of distribution wherein cooks and firemen under pay of one dollar per day, and who rendered no services off their own tugs, and were in no wise overworked or exposed, are given nearly a year’s pay as a reward, where they wc-re occupied at regular-hours in usual work, in a salvage venture over which they had no control.

Proctors argue and cite cases as though there was some fixed rule for distributing salvage compensation between vessels and their crews. Awards in all cases that have come to our notice have been based upon the particular circumstances attendant upon each case, and have varied from one-half the entire salvage awarded to one or two -months’ pay. In the instant case, as we have found substantially that the salvage services were of the lowest grade, and that the crews aboard of the respective tugs performed only services in the ordinary course of employment, an award of two months’ pay would be simple. More than that would be judicial liberality at the expense of the unfortunate.

The decree of the district court is reversed and the cause is remanded, with instructions to award the libelants the gross sum of $6,500 salvage compensation, and distribute the same according to the views expressed in this opinion.