were taken in overhauling and repairing this boat, and that the tillerrope was taken out, examined, and oiled, without the discovery of any defect, and make the Morning Mail liable for value of these goods, etc., because, and only because, the tiller-rope in fact broke, especially as the evidence shows this is not an unuBual occurrence in the Missouri river. The evidence, I think, proves that the sinking of the Kinney was caused by the "unavoidable dangers of navigation," witpio.the meaning of the bill of lading. The libel will be dismissed.
C. & C. l1nooKB.
(District GOltrt, D. New Jersey. July 26, 1883.)
SALVAGE SERVICE-TOWAGE-UNCONSCIONAllI,E CONTRACT.
A schooner of 13" tons, worth about $2,OUO, with a cargo of the value of $400 or $500, was leaking badly on the higll seas from the efIect of a collision with a vessel that had afterwards abandoned her, but was not derelict. Her crew was tired out hy p"mping and long watehin"s; she was making very little progress, and With a change of wind was gradually working seaward, when a tug calUC to hcr and towed hcr up the bay to .lersey City, where she was left, at the reqnest of her master, on the flats, consuming in so doing about four bours. lleld, that this was a case of salvagc service of low grade, involving no circnmstances which would justify the court in making lar;l:c compcnsation; that a contract to pay $I,OUO for such servicc was unreasonable and would not be enforced; but that 82:;0 and the costs of the proceeding would be allowed for the towage and sah'uge service. Contnlcts made for salvage service and salvage compensation will be enforced when the salvor has not taken advantage of his power to make an unconscionable barg'ain; but the courts will not tolerate thc doctrine that a salvor can take advantage of his sitnation and avail himself of the calamities of others to drivc a bargain; nor will they pcrmit the performance of a public duty to be tumed into a trallic of protit.
In Admiralty. Libel ill rem. Samuel H. Valentine, for libelants. Bebee J; Wilco.r, for claimants. J. This is a libel in rem, and the claim is for $1,025 for a towing and salvage service rendered by the libelants. The libel sets forth that on the twenty-ninth of November, 1877, the schooner of the respondents was on the high seas, east of the Highlands, in a sinking condition, and with a flag of distress flying at her mast-head; that libelants' tug, seeing her in tbis condition, steamed along-side, and the master of the schooner reqnested the master of the tug to make fast and tow her into the port of Xew York; that the request was complied with, and the'llug towed the schooner, with a hawser, up the bay to Jersey City, and, at the request of the master of the
THE C. & C. BROOKS.
schooner, left her on the flats there; and that for said service the master of the schooner agreed with the master of the tug to pay him the sum of $1,000. The libelants also claim the additional amount of $25 for the use of the hawser in towing. The answer of the claimants admits the towage, but denies that the schooner was in a sinking condition, or that her capt!tin agreed to pay $1,000, or any other definite sum, for the service. The answer further alleges that, previous to the time of being taken in tow -by the tug, the schooner had met with a collision with the United States torpedo boat Alarm, which caused her to leak, and disabled her, but as she was laden with a cargo of wood she was buoyant and not in a sinking condition; that the Alarm remained by the schooner for some time, and then left her, her master promising to send a tug to tow her into port; that the crew of the schooner remained aboard, and that by the use of her sails she was slowly working her way into port, and had proceeded about 20 miles when she was hailed by the tug-boat Hudson, whose master offered his services to tow her into the port of New York, which service was accepted, and the said schooner thereafter towed into New York by said tug, being engaged in said service from that the towing was performed 3 o'clock P. 111. to 7 o'clock P. under circumstances of no unusual risk, danger, or effort; and that the claimants had always, and were now, ready and willing to pay a reasonable amount for the services rendered by the tug. The first question is whether the help rendered by the libelants' tug was a mere towage service, or whether it also embraced any of the elements of a salvage service. The schooner was not derelict, but she was leaking badly, and her crew was tired out by pumping and long watching. She had made small progress since she had been abandoned by the Alarm in the early part of the day. The best evidence of her semi-helpless condition is found in the fact that she had kept her flag flying union down during the day, and that the libelants were attracted to her by observing the signal of distress. I lay some stress, also, upon the proof that the captain of the schooner stated, after his arrival in Jersey City the same evening, that if the tug had not come to their relief there was danger of the loss of the vessel and crew. It must not be overlooked in this connection that just before the Hl'dson reached the schooner the wind changed from the south to the north-north-west; that a stiff breeze was blowing; and that the vessel was gradually working seaward. I am of the opinion, from the testimony, that it was a case of salvage service, but one of a low grade, and involving no circumstances which would justify the court in making large compensation. The next inquiry is, was there a contract between the parties for the towing, and, if so, was it reasonable in its terms and character? The weight of the evidence is in favor of the existence of a contract. The master of the schooner denies it, but his denial is apparently based upon the fact that he did not in express terms agree to the
proposition of the master of the tug to pay the $1,000. He admits that when the latter told him that he should charge $1,000 for the service, and hold the schooner liable for its payment, he responded: "It don't malw any difference; I want you to take hold of her and tow her up." He further states, in a subsequent part of his examination, that when the captain of the tug said he wanted $1,000 for towing her to New York, he made no objection, but told him to take a hold and tow her, and gave him a hawser. But did the circumstances of the case at the time render such charge reasonable and proper? Courts of admiralty look upon salvage contracts with great care, and will not be controlled by them when any advantage has been taken of the necessities of the party in need of help. The supreme court, in Post v. Jones, 19 How. 160, said:
"Contracts made for salvage service and salvage compensation will be enforced when the salvor has not taken advantage of his power to make an unconscionable bargain; but they [the courts] will not tolerate the doctrine that a salvor can take advantage of his situation and avail himself of the calamities of others to drive a bargain; nor will they permit the performance of a public duty to be turned into a tra1lic of profit. The general interests of commerce will be much better promoted by re<juiring the salvor to trust for compensation to the liberal recompense usually awarded by courts for such services."
The late Justice STOIW, in The Emlllolls, 1 Sumn. 210, thus states the law:
"Contracts made for salvage services are not onlinaTily held Obligatory by the court of adllliralty upon the persons wlHbe property is saved, unless the court can clearly see that no advantage is taken of the parties' situation, and that the rate of compensation is just and reasonable."
Then, after stating that the doctrine is founded on principles of sound policy, as well as upon just views of moral obligation, he adds, with almost indignant emphasis:
"Xo svstem of jUl'ispl'llllencf', purporting to be founded upon moral or religious or even rational principles, could tolerate for a moment the (loctrine that a salvor might <l\'ail himself of the calamities of others to force upon them a contract unjust, oppressiYe, or exorbitant; that he might turn the price of safety into the price of ruin; that he might turn an act demanded by Christian and public duty into a trailic of profit which would outrage human feelings and disgrace human justice."
Applying these principles to the case uneler consideration, 1 think the court ought not to sanction the contract. It was unreasonable and the charge exorbitant. The schooner doubtless needed help, and an allowance ought to be made, liberal enough to induce masters of other tugs, who are not moyed to help their fellow-men, when in distress, by motives of sympathy, to do so from motives of compensation and gain. If the schooner and crew ,,"'ere in no peril, 550 ,,"'ould be ample pay for the few hours' towage which ,was rendered. If they were in peril, as the libelvnts stoutly contend, can anything be conceiyed more heartless than the master of the tug refusing all aid un-
TIm - ALGITHA.
less the master of the schooner would agree to pay him $1,000 for rescuing him and his vessel and cargo from danger? The registered tonnage of the schooner was 135 tons, and she was 12 years old. The witness valued her from one thousand two hundred and fifty to five thousand dollars. I think that $2,000 is a fair valuation of her after the collision and before she was repaired. The cargo not jettisoned was probably worth four or five hundred dollars more. No exposure, risk, or danger of any sort accompanied the service of the libelants. Under the circumstances, $250 is a liberal allowance for the towage and salvage services, and a decree will be entered for that amount. As no proof of the tender of any sum by the respondents bas been made, the libelants are entitled to their costs.
(District Court, D. JIa1·yland.
A steamer, disabled by the breaking of her propeller shaft, made signals of distress, which were observed by another steamer, which took hcr in tow, and, after towing her 12 hours, voluntarily cast olI the hawser, without communication with her and under no stress of wcolther, and left her in no better position in any respect than \vhen she found her. lleld, not to be a salvage serYicc, and not to be a towage service, for which any compensation should be made.
In Admiralty. Brown J; BrunG, for libelant. John H. Thom(ls, for respondent. MORRIS, J. The Algitha, a British steamer of about 2,000 tons, having on board a valuable cargo of grain, was on a voyage from New Orleans via Sydney, Cape Breton, to Antwerp, Belgium, when she hecame disabled in her motive power by the breaking of her propeller shaft on September 3, 1882, in latitude 30 deg. 42 min. N., longitude 78 deg. 20 min. W. Her sails were sufficient to navigate her, and she had drifted with the gulf stream two to three miles an honr, until she ,,;as in latitude 32 deg. 15 min. N., longitude 77 deg. 45 min. 'Y., on the eastern edge of the gulf stream, about 150 miles from Charleston, and about 340 miles from Cape Henry, when on the night of September Gth, about an hour after midnight, her signals of distress were ohser\'ec1 from the American steamer Gauclaloupe, then on a voyage from Gaheston, Texas, to York. Capt. :;\icl,erson, the master of the Ga udaloupe, went off his course some six or seven miles to the Algitha, anc1 Capt. Barwise, her master, coming on board the Gauclaloupe, they had an inter'dew. Capt. Barwise ,\'as anxious to have the Algitha towed to a place of safety inside tb capes of the Chesapeake, so that he could get a tug to take him to