Water Front Contracting & Lighterage Co. v. Goodwin Gallagher Sand & Gravel Co., 252 F. 117

252 F. 117 | 2d Cir. | 1918

MAYER, District Judge.

On September 25, 1914, at about 11:30 at night, the tide strong flood and a heavy wind from the west, the steam tug Olympia, belonging to claimant, was bound up through Hell Gate. At the entrance to the Gate, between Mill-Rock and Hallett’s Point, the Olympia’s machinery broke down, and she was therefore forced to abandon four sand scows which she had in tow, thus leaving them adrift to go up in the flood tide through the Gate. These scows were worth about $16,500. Libelants’ steam lighter Sullivan went to the assistance of the scows and towed them into Potts Cove, the nearest and safest place, where she tied them up to a dock. When the Sullivan was turning this rather heavy tow around and stemming the tide, the flood tide swung the rear scow against the side of the scow William Turner, which was moored at the dock, causing damage for which libelants have been held responsible in the sum of $400.

[1j The service rendered by the Sullivan occupied about one-half hour, close to midnight, when there was danger of going aground, and when the salved scows were drifting up through the Gate, with the danger of striking on the Scaley Rocks, and, in such event, if not sunk, then at best fetching up on Casino Reach. For this service the court awarded $100 lor the first scow and $30 each for the other three scows, making a total of $190.

The theory upon which there was a differentiation between the amount allowed for the first scow and the remaining three was that the first scow would bear the blow if the four went on the rocks. Which scow would have suffered tlic most severe injury is necessarily a matter of speculation, and we are unable to find any basis other than to consider the constituent items of the salved property — i. e., four scows — as similarly situated.

[2]' The service did not involve any danger and took very little time; but it was prompt and effective, and averted the probability either of total loss or substantial injury. In performing the salvage service, the salvors injured the William Turner, as noted supra, and it has been held that such injury was negligently inflicted. This finding by a court of competent jurisdiction cannot now be questioned, and hence The Ashbourne (D. C.) 99 Fed. 111, is inapplicable, and the award in favor of the William Turner should not be added to the award for salvage.

[3, 4] But in ascertaining the nature of the salvage service, it is fair to consider the difficulty of safely landing the tow and the risk run of injuring some other craft, for such risk is an element of hazard quite the same in principle as the risk of injury to the salving boat itself. The circumstances constituting the “main ingredients” in determining the amount for salvage are too well known to need repetition. The Blackwall, 10 Wall. (77 U. S.) 1, 19 L. Ed. 870. The problem usually is not to award so little as to discourage salvage aid, nor so much as to encourage unnecessary or exaggerated service; and, as the trial court, in respect of the quantum has much the duty of a jury, the amount fixed by it will not be disturbed, if within those limits which define the maximum and minimum which reasonably should be awarded.

[ 5 ] In the case at bar, however, we think that the award was wholly inadequate. The case is quite like Stebbins v. Five Mud Scows (D. C.) 50 Fed. 227, except that the clanger was greater and the hour later, 'faking into consideration the value of the salved property and the nature of the service, w.e are of opinion that libelant was entitled to three times (in round numbers) the amount decreed below, and therefore chat the award should be $600.

The decree is accordingly reversed as indicated, with costs of the appeal.

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