94 F. 214 | 5th Cir. | 1899
After stating the case as above, the opinion of the court was delivered by
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
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
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
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.