demand itself, SO as legally to become a pn,rt of it, even as against subsequent incumbrancers. The principle is of very frequent application .in cases of foreclosure.of mortgages, in which the expense of any bona fide and justifiable litigation in foreclosure increases the mortgage demand and is paid out of. the proceeds of sale, although it may prejudice subsequent mortgagees or lienors. Persons taking or holding junior liens take them subject to this contingency. KenebeZ v. Scrafton, 13 Ves. 370; T'itus v. Velie, 6 Johns. Ch. 435; Mackie v. Cairns, 5 Cow. 547, 565; Jones v. Phelps, 2 Barb. Ch. 440; Backes v. Hathorn, 17 Hun, 87, 89; Farmers' Loan, etc., v. Millard, 9 Paige, 620. The practice in admiralty is similar; and, though the reported cases may be few, the records of the court show that the ordinary practice is to pay the costs out of the proceeds of sale. The William F. Safford, 1 Lush. 69; The Wexford, 7 FED. REP. 674, 684-; The Orient, 12 FED. REP. 158. In this case I do not find any sufficient reason to depart from the be paid out of ordinary rule, and the libelants' costi:l must the proceeds of the vessel.
(District Court, S. D. New York: ::May 4, 1883.)
SALVAGE SERVICE-BARK LOADED WITH NAPHTHA-FInE.
Where the bark 0., being loaded with naphtha in her hold, took fire at night while lying at the oil docks and was towed out into the stream and the fire extinguished by two tugs, at some person:tI hazard of the crews, held, the service was one of salvage. and that the vessel should pay 15 per cent. and the naphtha 25 per cent. of its value, in consideration of the extra hazard in the salvage service occasioned by the naphtha.
The sum of $35 was also awarded to another tug for a short service in assistmg to extricate her.
SAME-PERSONAL INJURY TO SALVOR-COMPENSATION.
One of numerous salvors who suffers a special loss through a hazard to wllich all are exposed, may b.e compensated for this special loss, as for personal injuries in falling down an open hatch wIllIe carrying the hose on boal'd the vessel.
. In Admiral ty. R. D. Benedict, for the J. H. Starin. Beebe, Wilcox If Hobbs, for the Purcell. Scudder cf: Carter and Geo. A. Black, for claimant.
BROWN, J. The libels in the above two cases wet& filed by the owners of the steam-tugs Levy and Purcell to tecover compensation for salvage services rendered to the' bark Cyclone· and her cargo, consisting of --- barrels of naphtha, in rescuing them from a fire which occurred at Pratt's oil docks, near Bushwick creek, Brooklyn, on Sunday evening, August 8, 1880. The fire broke out about 9 P. M. on board the bark Nictau, which was moored in the slip on the north side of the wharf. The Cyclone was moored at the end of the wharf, her stem heading down the stream, and her stern extending northward beyond the pier. The spankerboom of the Nictau projeoted over the port quarter of the Cyclone, between her main and mizzen rigging, and the latter soon caught fire near, the stern. The captain called for assistance to some small steatnejs that were passing at a distanoe, but, not being able to obtain help, jumped ashore, cast off her lines so that the Cyclone might swing off· and away from the blazing boat near her, and ran towards the pier aboye for assistance. The tidewa.s flood, and as the boat swung off tuO'crew left her. The tide set her stern somewhat into the slip, ana a.t the same time carried her bows around until they struck and became f1ntangled in the piles near the end of the Matihattan railroad pier 'next above. At this time the steam-tug Levy had backed up 'to the bows of the Cyclone, and some of her own men, with others from the pier who had jumped aboard, fastened her hawser to the Levy, with which the latter attempted to pull the Cyclone away from the pier and out into the stream for the purpose of extinguishing the fire. The hawser breaking, another from the Levy was attached, with which she was in a few moments hauled out saDie distance into the stream. While endeavoring to effect this removal the Levy had her bows across the tide, and was held in position by another tug, the Joe, which pushed against her bows to prevent her swinging upwards with the tide. After getting out into the stream a short distance the anchor of the Cyclone was let go; but not having sufficient chain she was not held fast, and drifted slowly upward. Meantime the Levy, having a powerful engine, with hose designed to extinguish fires, was playing upon her. When in the stream the Levy remained alongside the Cyclone; her hose was taken on board the latter, and the Levy's crew, with those who had come aboard from the wharf, used their best endeavors in extinguishing the· fire. Shortly after they had got out into the stream, the steatn-tug Purcell, which also had powerful appliances for extinguishing fire, came along-side, and joined her efforts with those of the Levy. For some period, m'ore or less, after
the Purcell arrived, the nozzle of the Levy's hose was split; but it was temporarily repaired, and she continued playing upon the fire as before. The·fire was finally extinguished at about 1 o'clock at night. The cabin had been burned out, the bulk-head charred, and some holes had to be cut into the deck for the purpose of getting at the fire. The value of the vessel as saved was appraised at $6,500, and that of the naphtha, which was in barrels in the lower hold, at $7,553. The latter was uninjured. It was about a quarter past 9 o'clock when the Levy to·ok hold. An extinguisher, belonging to the fire department, arrived at the scene of the fire a little after 10. The Nictau was en· tirely consumod. Some other vessels also caught fire. A number of fire engines came upon the adjacent wharves, but under circum. stances in which they would have been unable to render any assistance to the Cyclone. That the services rendered by the Levy and the Purcell were in the nature of salvage is not contested. The questions submitted to the court upon the evidence relate only to the compensation to be awarded. Several recent caBes of fire among shipping have been reo ferred to, having some analogy to the present. The Jonathan Chase, 2 FED. REP. 268 ; The Suliote, 5 FED. REP. 99 j The B. C. Terry, 9 PED. REP. 920; The Rialto, 15 FED. REP. 124:. There are two circumstances in the present case which are wellrecognized grounds for enhancing salvage reward: First, the extremity of the danger of the Cyclone, and the necessity of immediate relief; and, second, the personal hazard which attended the service, owing to the and explosive character of the cargo in her hold, and its exposed condition, the hatches being all open. At the time when the Levy first arrived, the fire was already well under way astern, and but for the timely assistance of the Levy and the Pur. cell, there is no reason to she would have escaped entire loss. It was nearly an hour afterwards before the Havemeyer arrived, and no other valuable help is shown to have been at hand at that time. The danger of fire reaching the hold, or of such heat as might cause an explosion in the naphtha there, iB also an important consideration. There had already been one violent explosion from the fire either on the Nictau or one of the other vessels; and the danger on board the Cyclone from this source was one which might well make persons reluctant to remain on board, or so near her as was necessary to extinguish the fire. Her hatches being open, there was the further danger of fire being carried into the hold from the falling pieces of blazing material, some of which burned the bottom
of the boats. The open hatches also exposed the men, hi the hurry and confusion of the night, to danger. One, John Graham, while holding the hose, fell through and went down into the hold, causing aim considerable injury, for which he was treated some weeks-afterwards at the hospital. Another went over the hatchway and was only saved by clinging to the c.oamings. In the case of The Suliote, supra, Mr. Justice BRADLEY says that "salvage is the reward granted for saving the property 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. Anything beyond that would be foreign to the principles and purposes of salvage; anything short of it would not secure its object.s. The courts should be liberal, but not extravagant; otherwise that which is intended as an eneourge· ment to rescue properly from destruction, may become a temptation to subject it to peri!." In that case the value of the ship and cargo saved from the fire amounted to $247,000, for which, nearly $20,000. being 8 per cent. of the whole sum, was allowed to the saJvors. In The B; a. Terry, sttpra, the sum of $1,600 was awarded upon property saved amounting to $9,700; and in the case of The Rialto the value of the cargo saved was $378,000, and the· sum of $2,500, was awarded. In the last ease the services were comparatively slight; in the former there were no elements of danger or hazard, and other relief was at hand. In the present case the services were not onl.y much longer, but the exigency of the Cyclone and the danger of those on board of her were much greater. In the ease of The Tees, 1 Lush. 50.'5, Dr. LUSHINGTON awarded tlie salvors £1,000, upon a value of £12,350, or a little less than 8 per cent.; and on the Pentucket, rescued from the same fire, he allowed £300 upon a value of £900, or 33t per cent. In those cases the special circumstances are not stated, except that "the surrounding warehouses were burning fiercely; that the fire had communicated itself to the upper sails of the vessels;" and that "the salvage service was executed at some peril of life." On the whole, I think an award of 15 per cent. to be paid by the ship upon her value, as appraised, and of 25 per cent. to be paid by the owners of the cargo upon its appraised value, amounting in all to $2,863.25, will be a proper and just award in this case. The·dangerous character of the cargo, all of which was saved unharmed, and which largely increased the danger of the salvors, seems to me a sufficient reason why the cargo should pay a larger percentage for its rescue in safety.
There is not sufficient reason for distinguishing between the Levy and the Purcell in the services rendered. If the latter was more active ,or m,ore serviceable after she came up, the former was the first upon the scene, and ,the first to commence playing upon the flames, when every moment was precious. The services of the Joe in holding the Levy against the tide while preparing to pull the Cyclone away from the wharf, though brief and slight, are entitled to some recognition. She was occupied in this service probably not more than five or ten minutes, about one-tenth of the time occupied by the Niagara in somewhat similar but much more important services in the case of 1'he Jonathan Chase, 2 FED. REP. 268, for which BENEDICT, J., allowed the latter $350. I allow to the owners of the Joe and her crew, but without costs, as their petition was filed during the , progress of this trial, the sum of $35,-one-ha1£ to go to the owners, and of the other half $7.50 to her captain, and the rest to be divided equally among her crew. Of the residue of the above award, one-fourth should go to the owners of the Purcell, and one-fourth to the owners of the Levy. From the remainder there should be allowed, first, $.100 to John Graham fOr his expenses and personal injuries arising from his fall while on board the Cyclone engaged in handling the hose in extinbuishing the fire. The open hatches exposed all to equal danger; and, this danger, incident to rendering assistance, is considered in the amounts charged upon the saved property. When all the persons expo8ed to such a danger are before the court, I consider it but just that those who have .suffered the evil results arising from that danshould have some recognition and compensation for their special loss, on the same principle that a vessel would be allowed for hawsers or lines destroyed in rendering the salvage services. It is in accordance, moreover, with the principle on which salvage is awarded, that in distributing the award some recognition should be made of We special losses or injuries which those engaged in rendering the services may have suffered; for all will be the more ready to face danger upon the assurance that any special injury which may happen to fall upon anyone will receive due recognition dnd compensation. In the case of The Marquis of Htmtl,li, 3 Hagg. 246, where three persons had lost their lives in endeavoring to go for a, government steamer by request of the ship's agent, on an errand not immediately connected with the salvage itself, and not contributIng to it at all, £100 were allowed by Sir JOHN NICHOLL to the families of the deceased.
LONG V. THE TAMPICO.
Of the residue of the award $250 should be allowed to the captain of the Levy, and the captain of the Purcell; the remainder to be divided equally among the remaining 16 Illen who rendered assistance, including the crew of the two tuga, Gtaham, and the other persons whose names have been presented as petitioners on the trial, with costs to the libelants in each case.
THE TAMPICO. 'fIn: PROGRESSO.
:May 22, 1883.)
(Di8trict Court, 8. D. New York.
A reasonable apprehension of immediate danger "is a sufficient basis for an award of salvage compensation for rescuing vessels from fire.
SUIT AGAINST UNITED STATEs-IN PERSONAM.
No suit can blj maintained against the gover.nment in per8onam,. and the same immunit.y is extended by comity to foreign sovereigns with whom this country is at peace, and no attaul1ment or garnishee process can be susta.:ned at common law, whereby the public property·of a foreign government can be attached. 3.
No suit in rem in admiralty can be sustained, or seizure made by the marshal, under process against property of the government devoted to public uses, and 10 possession of an officer of the government.
FOREIGN GOVERlfMENTS-IM:lIUNITY FROM
The same immunity. from seizure is by comity extended. to the property of a foreign government in the public service and in possession of its officers.
5. SAME-ATTACHMENTS IN REM.
Attae,hments in rem may, however, be enforced by seizure in admiralty a.l!'jj,inst property of the government, if it be not at the time of the seizure in the public service, or in the possession of any officer of the government, but in the hands of a private bailee, for transportation merely. No greater exemption can be claimed in behalf of the property of a foreign government.
SAME-SALVAGE-BUXDEN OF PROOF.
In claiming exemption from seizure upon a iien forllalvage services, the bur. den of proof is upon those. claiming the exemption. and it should' appear clearly that the property had become the property of tl1e government, and 10 possession of some person proved to be its officer or representative.
SAME-IMMUNITy-By WHOM CLAIMED.
Immunity from seizure ca,n only be claimed by the' 'gpvernment itself, or by some provedorreeognized officer or Rgent interveuing in its behalf. Interven. tion by a private citizen merely describing himself as al!'ent. without proof. should not be deemed sufficient.