69 F. 104 | 9th Cir. | 1895
The appellee was the libelant of the ship Elmbank, her cargo, etc., for salvage services rendered in extinguishing a fire that broke out in the cargo while the vessel lay at her dock in San Francisco. The cargo consisted of sulphur in sacks. The fire broke out at about noon of Saturday, the 10th day of June, 1893. A few minutes later the fire engines of the city fire department of San Francisco arrived. The firemen took off the hatches, and pumped large quantities of water into two of them. Three steam tugs came alongside and offered assistance, which was refused. The firemen continued to pour in water, and made two additional holes in the deck for that purpose. The master of the Elmbank engaged the steam tug Fearless to assist in pumping in water, at an agreed compensation of $50 per hour. She passed her hose on board and commenced work. The fire, instead of being-abated by the large quantity of water which was poured into the hold, appeared to be gaining in intensity. At about 3 o’clock, W. H.
The elements that enter into the adjustment of the amount of the award in a salvage.case are, in general: (1) The value of the property by the use of which the salvor rendered the salvage service, and the danger to which that property was exposed; (2) the skill with which the services were rendered; (3) the time devoted thereto, and the nature of the labor; (4) the risk incurred by the salvor; (5) the value of the property salved, and the degree of danger from which it was rescued.
The consideration of the first of these elements is not involved in this case, for the libelant risked no property of his own. His skill as a chemist is unquestioned, and there is no doubt that his services were rendered in a skillful manner. The fact that fire may be extinguished by the use of carbonic acid gas, and that the gas may be generated from muriatic acid and marble dust, may be said to be fairly well known, and to be matters of common knowledge. It is also within common knowledge that the fire department of nearly every considerable city of the United States is fitted with chemical engines for extinguishing fires by the use of carbonic acid gas. The San Francisco fire department had eight such engines. But the process of introducing gas from retorts such as those improvised by the libelant may be said to require practical skill. The idea of extinguishing the fire in this case by carbonic acid gas was suggested by Mr. Dutton. He knew the libelant was a skillful chemist. He knew also of other practical chemists, and it is undisputed that there were several within his reach. If he had failed to secure the services of the libelant, therefore, he would have applied to others. The libelant faithfully and efficiently superintended the use of the agencies which he himself suggested and those that were placed at his disposal.
The time the libelant gave to the work of extinguishing the fire, and for which he was employed by the underwriters, included 5 or 6 days, two of which were given to the first fire, and the remainder to the second; and during that time his service was continuous, with the exception of short intervals for rest. The time he devoted to examining the condition of the hold and the cargo after the final extinction of the fire, and to superintending the unlading of the cargo, covered a period of 10 or 12 days; but the service so rendered was not within the terms of his employment, and was not rendered at the instance of either the master or the underwriters, but, on the contrary, was against their objection. The evidence proves, moreover, that soon after the second fire was extinguished the libelant was informed by the master that his services were not longer needed, either by him or the underwriters, and in response thereto
Concerning the personal risk to the libelant, the evidence tends to indicate that, at and before the time when he arrived at the vessel, the introduction of water in the'manner in which it was being poured into the ship produced currents of air, which distributed flowers of sulphur in impalpable dust through the unfilled spaces of the hold, and that if by any means fire had been communicated to the dust so commingled with the air there was liable to occur what is known as a “dust explosion,” such an explosion as has upon oe-' casions occurred in flour mills and in coal mines, and that the intensity of the explosion would have depended upon the proportions in which the dust and the air were present, and the extent of the space which they occupied in the hold. The danger, if it existed, however, was largely obviated by closing the hatches and shutting off the access of currents of air, and it was evidently not believed to be imminent at any time, for no difficulty was encountered in inducing a sufficient number of men to go upon the deck to batten down the hatches and to go into the rigging to make tight the openings in the masts, and enough men thereafter to remain on the deck or sufficiently near the vessel to conduct the operation of the chemical engines and the improvised retorts. If there were danger, it was at all timés shared by the men in charge of the engines, and the gang of four or five men in charge of the retorts; and, while the evidence may be said to establish the fact that the danger existed, it fails to convince us that the peril was great, or that it endured for more than a comparatively small portion of the time. There appears to us in the testimony of the libelant an exaggeration of the danger. He says:
“I said, on entering the ship, that unless they did something to prevent tlio access of the largo volume of air which was entering into the ship, all the hatches being open, the masts being all hollow, and creating a draught, (hat there would bo at any moment a very dangerous explosion.”
He declared that the masts were “open at the foot, and were acting like the stack of a reverberatory furnace.” In short, he locates the source of the danger principally in the hollow masts, which caused draughts from below, and operated like furnace stacks. The evidence elsewhere shows beyond question that the masts, although they were hollow, were closed below, and that there was no opening whereby the air could pass through them. The currents of air through the open hatches were stopped immediately after’ the arrival of the libelant, for he testifies that he ordered the captain to close down the battens of all the holds, and sent the sailors to the mast head to make them as tight as possible.
In the danger of the loss of the vessel and cargo must be found the principal element of salvage service in this case. The value of, the rescued property was $97,000. If the fire had not been checked,, the loss would, of course, have been total. The important inquiry is, what was the risk from which the libelant’s efforts rescued the property? There is nothing in the nature of a fire of sulphur which
The agreement under which the libelant in this case undertook to render his services may be properly considered in determining the amount that should be awarded him therefor. The testimony concerning the terms of the agreement is not harmonious. The libelant testifies that no conversation on the subject occurred between him and Mr. Dutton until after they had left the office,'and that while they were on their way to the vessel there was a conversation, the substance of which was that the libelant would charge for salvage, and that he would make no charge if he failed to save the property. Mr. Dutton, on the other hand, testifies that the only conversation on the subject occurred in the office. In this he is corroborated by another witness who was present. The conversation, as detailed by Mr. Dutton, was as follows:
“I said: ‘Professor, what are you going to charge us for this, to put out this fire?’ He laughed and said: ‘I will charge you— I will charge you what you gentlemen call “salvage.” ’ I kind of hesitated at that. He laughed, and said: ‘Oh, well, there will he no trouble about our coming to an arrangement, Mr. Dutton.’ I said: ‘No, professor, I guess there will be no trouble about that. We will come to an arrangement easy enough.’ 'He said: ‘Yes. It will depend on the amount of work I have to do how much I will charge.’ ”
If these are the terms on which the libelant was engaged,—and we are of the opinion that they are,—he was not a volunteer salvor in rendering the service, but he was an employé for hire, working under a definite understanding with his employer, the purport of which was that if his efforts were successful, and the property were rescued from the fire, the amount of his charge would thereby be enhanced, and would be as for salvage service, yet, whether successful or not,
There is a recognized distinction between a voluntary and an employed salvor. Said Dr. Lushington in The Undaunted, Lush. 90, 92:
“There is a broad distinction between salvors wbo volunteer to go out and salvors who aro employed by a ship in distress. Salvors who volunteer to go out go out at tlieir own risk, for the chance of earning a, reward, and if they labor unsuccessfully they arc entitled to nothing. The effectual performance of salvage service is that which stves them the title to salvage remuneration. But if men are engaged by a ship in distress, whether generally or particularly, they are to be paid according to their efforts made, even though the labor and services may not prove beneficial to the vessel.”
In The Sabine, 101 U. S. 384, the court, after approving the doctrine of the case last cited, said:
“Reported cases may be found whore the owners or insurers of such property, being informed that the property was in peril, sent out vessels arid mariners for its assistance and relief; and in such a case it is undoubtedly true that the persons employed, both for their services and for the use of the vessels or other appliances, may maintain a libel in personam to enforce file payment of just compensation for all such services.”
In The Queen of the Pacific, 21 Fed. 460, 471, it was held that in a case where there was a request for the services, and the compensation did not depend on success, the amount of salvage might very properly be diminished thereby.
In view of all the circumstances, we are of the opinion that a just estimate of the salvage service rendered to the Elmbank and her cargo must include the services of many others besides the libelant. It must include the men who had charge of the chemical engines and the retorts, and who, in discharging tlieir duties, incurred the same danger that was incurred by the libelant It must include the efforts of the Are department in partially filling the hold with water, thereby occupying the space which must otherwise have been filled with carbonic acid gas in the subsequent efforts to extinguish ihe fire, for, although the firemen may not receive salvage compensation, it is proper to consider the extent to which they contributed to the result in apportioning the salvage to others who have earned it. There should also he considered ihe efforts of Mr. Dutton, to whom must be accorded the merit, if any there be, of suggesting the use of carbonic acid gas, and of suggesting the use of the chemical engines. A proper award for all the salvage in Ihe case might justly exceed the amount that has been decreed to the libelant, hut we are unable to find that Ms services alone should be compensated in that amount.
Said Mr. Justice Bradley in The Suliote, 5 Fed. 99, 102:
“Salvage should he regarded in. the light of compensation and reward, and not in the light of prize. The latter is more like a gift of fortuno, conferred without regard to the loss or sufferings of the owner, who is a public enemy, while salvage is the reward granted for saving the iiroperty of the unfortunate, and should not exceed what is necessary to insure the most prompt, energetic, and daring effort of those who have it in their power to furnish aid and succor.”
In view of all the facts, it is our judgment that the amount awarded the libelant by the district court is excessive, and that a liberal allowance would be $6,000. The decree is therefore reversed, at the cost of the appellee, and is remanded for further proceedings in accordance with this opinion.