estimate must be very moderate; the more moderate, as this man had entered the period of old age, and could not, in the course of nature, be supposed to have continued long to spare from his own support a surplus for the sustenance of those dependent on him. It is the custom and the duty of the young to support the aged when they have entered the period of old age. At the age of 64 the tables of vitality show that Black's expectation of life was seven years and a. half. If we assume thl1t he could during this period of old age have spared an average of $75 a year to the use of the libelants, then we should arrive at an award of $562.50 as the damages to be 801· lowed, in this case. I will give a decree for that amount, and for the costs of this suit.
(Dilltriet Oourt, E. D. Virginia" February 20,1884.)
A large passengor and freight steamer, worth $150,000, having a cargo worth $10,UUO, was run into by a tug, which stove a hole in her hull, some six by eight feet in size, causing her to till with water, and she was beached on Hampton bar, in Hampton Roads. Salvors were telegraphed for, to Norfolk, who came with wrecking steamers, schooner, steam-tugs, pumps, and diving and wrecking apparatus. A diver went down, and, with plank and canvass, battened the hole. Pumps were then set to work, which emptied the hull of the water. The cargo was all got off without loss or damage. The steamer was 110ated, and towed 12 miles into port at Norfolk. All further injury to the steamer or her machinery was prevented. it was in December, 'and a severe storm from the eastward could have wrecked the steamer. None occurred, and the work of the salvors was accomplished within 48 hours. Held, that the service was a salvage service, and that the reward should bear some relation to the value of the property saved. Six thousand dollars decreed.
In Admiralty. Libel for salvage. The passenger and freight steamer l!1xcelsior, belonging to the- Po· tomac Steam-boatCompany,claimants in this suit,-TheodoreE. Bald. win, master,-left her wharf in NOrlolk at 5 P. M. on the fourth of December, 1882, on her regular trip to Washington City. She was valued at $150,000. She had a cargo worth $10,000, and the usual number of passengers, and her regular crew, on board. ' After passing Sewell's point, and in making for the wharf at Fortress Monroe, she came in collision with the United States naval tug Fortune, which drove a hole into her hull, on the starboard bow, some eight by ten feet in dimensions. Capt. Baldwin immediately made for Hampton bar, and at about 6: 15 P. M. beached her about midway of that bar, about four miles from Sewell's, point, a mile from the Soldiers' Home, and a mile and a half from Old Point Comfort wharf. She went upon, and lay nearly at right angles with, the bar; her bow in six feet, and her stern in ten or eleven feet, water. She had filled
DAKEB SALVAGJlCO. V. 'I'D BXCELSIOB.
with water, and laid easily 01) the bottom. The sea came over the main deck, aft, at high tide; but did not cover the deck amid-ships or forward. Her cargo was amid-ships, and was not reached by the water. She was in a place on the bar, and in a position on the bottom, that rendered her reasonably safe from further injury, except in the event of roup;h weather from the eastward. In consequence of the width of her guards, which spread out from about three feet at the ends of the steamer to ten or twelve feet at the wheel-houses, the waves of a rough sea would beat under the guards, and endanger the deck and the joiner work, and cabins above it, by lifting and breaking them up, and carrying them away, thereby bringing the and the lives of , . those on board in peril. It may be stated here that a board of naval officers, appointed afterwards for the purpose of inquiring into the collision, found that the Fortune was in fault; and the United States government has since compensated the claimants in damages from the accident to the amount of $18,350.86. From this computation of damages the amount due the libelants for salvage in this case was reserved, (to be determined by this court,) as also a ,biJ,1 of $470.70, rendered by the libelants, fOt services rendered the Excelsior during and aofter the salvage service was rendered. The board of naval officers, which has bf'en mentioned, found that the direct damage to the Excelsior, done by the Fortune, was $11,795. After beaching his vessel, Capt. Baldwin went off to Old Point Comfort, and from thence sent the following telegrams to the Baker Wrecking Company, Norfolk: "FORT MONROE, VA., Dec. 4, 1882.
"Send assistance, with steam-pumps, to Excelsior, on Hampton bar. Get BALDWIN." here by low water.
This telegram reached the telegraph office in Norfolk at 8 P. lIf. on that night. Capt. Stoddard answered it from Berkeley,! but the answer is not in the evidence. Capt. Baldwin's second telegram was as follows:
"Delay guarantied. "Bring on steamer Resolute a diver, with appliances. "T. E. BALDWIN."
"DEO. 4. 1882.
This telegram ,the telegraP9 office at Norfolk at 9: 15 P. M. Capt. Stoddard. superintendent of the Baker Salvage Company, left Berkeley shortly after 10 that night, on the wrecking steamer Resolute, with the wrecking schooner Scud in tow, with a diver and' diving apparatus. with a, portable steam-pump and appliances, and with other wrecking apparatus,pn board. Not knowing the position
hor; Norfolk! being on the north, Portsmouth on: the 'south, and Berl!:eley in tbp
The, east and, south branches of Elizabeth r1v:er meet, and form Norfolk har-
fork of the'two rivers.
on the har where the Excelsior was, Capt. Stoddard went directly to Old Point wharf, reaching there at midnight, and finding it high tide at that point. Aiming to reach the Excelsior at low tide, as requested by Capt. Baldwin, Oapt. Stoddard remained at the wharf until the approach of morning, and then left for the E:tcelsior, which he reached at daybreak. On Capt. Baldwin, conversation iDimediately occurred between the two as to the terms on which Oapt. Stoddard was to proceed with the work for which he had been summoned. Capt. Baldwin's statement, reduced after the tion to writing, but never shown to Capt. Stoddard, was as follows:
. "It was agreed that there was to be no salvage. The said Baker Salvage Company agreed to raise and float the steamer Excelsior and tow her to Norfolk, Va.; the work to be done as quickly as possible, the bills to be rendered, and, in the event of the said Baker Salvage Company and the Potomac Steam-boat Company not agreeing as to the amonnt charged for services rendered, then the question was to be settled by arbitratir>U.. "
Capt. Stoddard, while positively any stipulation that there should be "no salvage," substantially admits that there was an understanding as to arbitration in the event of a disputed bill for services. The ElCcelsior lay about midway of Hampton bar, on its south side, about fifty to a hundred yar.ds from the channel. As before said, she was full of water and submerged to her main deck, the water at high tide rising over the main deck aft. The hole that had been driven into her by the Fortune extended from her hurricane deck far down under the water. Most of her cargo was amid-ships, free from the water. Capt. Stoddard put the wrecking schooner Scud along-side, with a view to taking off the cargo. The diving apparatus was put on board the steamer, and the diver sent down to make examination into the extent of the wound which the steamer had received. Meanwhile Oapt. Stoddard went. back with the Resolute to Old Point wharf, where he. employed a number of laborers to aid in handling the cargo, and procured a quantity of plaIlk lumber with which to batten up the hole in the hull of the Excelsior. Returning with these lal>orers and this lumber to the steamer, the cargo was put in course of being transferred on the Scud to Old Point wharf, and the diver and his gang employed themselves in battening the hole in the hull. The removal of the cargo was successfully effected without any loss or. damage by the latter part of the afternoon of the 5th; the of· ficers and crew of the Excelsior ren<iering assistance in the work, and the two wrecking vessels making two or three trips each to the wharf. The .diver and his assistants not complete their task that da.y, and had to suspend work at nightfall till morning. At night a breeze set in from the eastward, producing a r,ather rough sea, and creating apprehensions in the minds of the officers of the two steaqlers.. At Capt. Baldwin's request, the Resolute was put on the starboard (windwar4) side of the Excelsior and mILde fast to her, with fenders placed to prevent inj ury to the guards and sidesaf the
BAKER SAllVAGE ·00. V.THE JlXOELSIOR.
vessels. While the sea continued rough,: it was a.labori.ou's tt;tsk tel keep these fenders in place, and to replace such of them as would be crushed between the two steamers. This task and that of keeping the vessels lashed together, subjected the seamen engaged to more or less danger of limb and life. The Resolute also was in more danger, lashed to the sunken steamer, in the event of a. storm, than .ifahe had been at anchor out in the harbor. -The object of having the Resolute close at hand was to be in readiness to save life in t4e event of a storm. Fortunately, however, instead of the breeze increasing on the night of the 5th, it ceased about 1 o'clock, and the weather continued good from that time until the enterprise was finally completed. The portable steam-pump of the Baker Company had been set up on the Excelsior in the afternoon of the 5th. On the next morning the diver and his gang resumed their work, and. were assisted in putting canvass over the planking by the action of the portable pump, which had been made ready for use the afternoon before. The stationary pump on the Resolute was, on that morning, put in connection with the operations on the Excelsior in such manner. as ·to be ready to render effectual assistance. About 12 M. on the 6th the. driver completed his task of stopping the hole in the hull with plank, and covering it with canvass, a.nd both pumps were set to work at their full capacity. The wrecking steam-tug Olive Baker, bad' been before that time ordered to the assistance of Capt..Stoddard, and had & tow.line attached to the Excelsior. By about 2 P. M. the pumps had done their work sO effectually that the steamer went afloat in tow of the Olive Baker. She was soon afterwards got under way, and, with the further assistance of the wrecking steamer VictoriaJ. Peed, belonging to the Baker Company, and their tug Olive Branch, was towed to her wharf at Norfolk; the pumps being worked during the voyage by the Resolute. The latter steamer lay by her at her wharf: at Norfolk, on the night of the 6th, doing such pumping as occasion required. During the voyage from Hampton bar to Norfolk there was, of course, no other coyeringupon' the hole in the Excelsior's hull but of inch pine plank, overlaid with canvass, which was liable to be
punctured by encounter with logs or other 'ha,rd'''sn.bstancea in the .'
channeL This danger rendered it necessary to provide every tion against· such an accident, by which she might be sunk to the tom of the channeL During the period of this service theJibelants1 tug Nettie was employed in errands between Berkeley Point, left under the dire.ction of Capt. Stoddard. Before Norfolk to go to Baltimore for repairs, certain necessarY,work W!.1S put upon and done for her by the libelants, to the valueofj$4'j;O.79, as assessed;by the board of naval officers., before mentioned. !These are the subjects of a second libel. The libelants are a corpQra.tion charte.red expressly, as .awrecldng and salvage: sively and elaborately equipped with wrecking steamers, boats, steam-pumps, donkey·engines, heavy and light anchors, chains,
cables, falls, diving apparatus, and skilled wreckers and divers, and are capable of rendering prompt and effectual salvage service, at short notice, on the Atlantic and Gulf coasts, and in the West Indies. Ellis et Kerr, for libelants. . White et Garrett, for claimants. Edmund Waddill, U. S. Atty., and Sharp If Hughes, for the United States. HUGHES, J. Obviously, the service rendered by these libelants to the Excelsior was a meritorious salvage service. They were telegraphed for as salvors. They left Norfolk and went to the Excelsior for the purpose of rendering salvage service. If their agent, Capt. Stoddard, had assented to the protestation of Capt. Baldwin that this was not to be a salvage service, he would not have altered the fact, or destroyed the rights of his employes as salvors, or changed the character of the service already entered upon. It is not the policy of the law maritime, when a vessel is in peril and has invoked the services of salvors, and these have gone to her for the purpose of rendering salvage assistance, to listen to stories of sharp bargains, driven at the instant, in the endeavor to change the character and lower the grade of the service about to be rendered. The law of the subject is laid down by the United States supreme court in the case of The Camanche, 8 Wall. 477, in which the answer alleged that the services were rendered under an agreement for a fixed sum, and were therefore not salvage services. The court said: "An agreement of the kind suggested is no defense to a meritorious claim for salvage, unless it is set up in the answer with an averment of tender or payment." In the present case there was no fixed sum agreed upon, and, of course, none tendered. There was an agreement that the compensation should be left to arbitration, in the event of a future disagreement as to the amount to be paid. As to such agreements, the supreme court of the United States, in The Camanche Case, said that "nothing shl:>rt of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will operate as a bar to a meritorious claim for salvage." This, therefore, was a salvage service, and it is an attribute of such a service that it entitles the salvor not merely to the ordinary compensation for work and labor performed, materials furnished, and money laid out and expended,-which are allowed and are computed at the usual rates commanded in the market by such services.-but to a reward in addition, given on the principle of encouraging daring and enterprising men to be in readiness, and to be prompt and adventurous, in giving aid to ships in distress, and rescuing lives and property in peril of the sea. The reward is gauged according to the peril in which the persons or property rescued may be; and if the thing saved be property, ac.cording, in some degree, to its value.
BAKER SALVAGE CO.V. THB EXOBLSIOR.
In one respect this was a highly meritorious service; for all the cargo was saved, without any loss or damage whatever, and the ship herself was saved without damage of any sort to her beyond what she had received in the collision which sunk her. This· being indisputably so, the only further point of inquiry is as to the danger in which the Excelsior and her cargo were, from which they were taken by the salvors; and as to the hazard encountered by the salvors, and their vessels and material, in the course of the service which they rendered. That a large and expensively furnished bay and river steamer, with first-class boilers, engines, and machinery in her hold, lying full of water on the bottom, at a place where a heavy sea could easily effect her destruction, was in very great p08sible danger, is quite clear. This danger of possible destruction on a December night, though not certain, was imminent, and depended entirely on the caprice of the winds. The danger of greater or less injury to her machinery, her hull, her joiner-work, and cabins, and her decks, from lying in the water submerged, with a hole in her sides of 50 superficial feet, was certain and absolute. She could not be removed from the position in which she was until the hole in her hull was closed, and made water-tight. This needed to be speedily and effectually done; it needed the services of one who was not only an experienced diver, but a workman of skill; and of the greater skill from the work having to be done under water. Not only was such a diver with such experience absolutely requisite, but after he had accomplished his task, and to some extent while it was in progress, steam-pumps of exceptional size, power, and efficiency were necessary to empty the ship of the water with which she was full, and to empty it expeditiously, without mishap or delay. And, after the vessel was thusby the work of the diver and of the pumps-made ready to be floated, it was of the highest importance that towing appliances and vessels should be in readiness to take the ship promptly into port, thoroughly guarded from the peradventure of accident to her frail and weakened hull at every step. All this was accomplished in a thoroughly skillful and successful manner by the salvors. The complainants have not shown that there were other skilled persons, with ample outfit of divers, steamers, and wrtlcking vessels and apparatus, at hand, by whose instrumentality this ship and her cargo could have been rescued from the danger they were in, speedily enough to have prevented the irNparable damages that would have resulted from her lying long in the water. That fact could not have been proved; and this court has had such an iteration of evidence in such a large number of cases to the same effect, that it is now at liberty to assume, until the contrary is shown, that the Baker Salvage Company is the only fully equipped wrecking company available at all times for the most arduous and· difficnlt salvage work, that is to be found anywhere south of the Delaware capes on the Atlantio seaboard. I think the danger of injury which the Excelsior was in
\vasvefy great; and she 'was certainliin danger of destTuctidn [rom a rough' sea, if one bad set in, which, by thumping up
under her very wide gnards, might have 'lifted and ripped up her main deck, and broken up and wrecked all that was above it. sible danger, which chanced not to have actnally occurred, to a vessel in danger, may always be considered as interpreting the spirit.with which the salvors worked, and illustrating the merit of their conduct; but is seldom made, ofitself, the ground of materially increasi¥g'their reward. As to the danger in which the Resolute and her ctew were during the rough part of the night of the fifth of Decembe,l, I do not think it was actually great. That there was grounq for apptehendingdanger is proved by-Capt., Baldwin having requested that: the Resoluteahou'ld lie close along"side of him; and that the Resolute was by Capt. Stodda;rdwillingly subjected to the risk of takingthatposition,- shows that the salvors were ready and prompt to encounter the risks incident to salvage service. On the whole,! think this was a meritorious salvage service, deserving high commenilationfor the spirit, skill; and success with which it was rendered; but not of high grade when considered with reference to the risks ILnd dangers inCident to it; yet of sufficient merit in both respects to justify a grltduation of the reward in some degree by the value of the propert'ysRved. EX<lept for the sttess laid by claimants' counsel upon the matter. it would hardly be worth while to indicate the marked distinction between this case and 'the case of the same steamer Excelsior, when, in December, 1881, she was by accident rrin on Hampton bar, not far from where she was beached by Capt. Baldwin. For the first case see 5 Hughes, 416. There is in no similarity between the two cases, except that the vessel was the same and the baron which she 'Was grounded the same. 'In the former case, the Excelsior was merely aground, thoitgh so fast aground, by leason of her bottom being exceptionally broad and flat, that she could not be pulled off by tugs, a;nd resort had to be made to wrecking anchors and cables. It is true that the services' of· a wrecker were called for, and the apparatus of wreckers employed. By the use of these, means, and by taking advantage of .the tides, which were waited for, the steamer was floated, and then proceeded on her voyage. She had been merely dela:ved. I believe none of her cargo was removed. On the &uthority of abundant precedent, I held that the case was one of salvage, but of salvage of a very low grade. It wasniore than a case of tugging and towing.
It was a case for the use of wrecking anchors and cables, and for wrecking services. On this ground alone, I allowed, in additioh to compensation by the ,rule of quantum meruit, a reward of $350. It was not a case for the reward to be made to bear any relation to the value of the propettysaved, which then was $180,000. In contrasting the present case with that, it is unnecessary to advert further than already done to the circumstances under which tIle
present libelants found the Excelaiol in Hampton roads,-sunk to her main deck on the water; with a hole in her hull, ically described by one of the witnesses as "big enougb for a street car to pass through;" with $10,000 worth of cargo on board nearly by water, on the main deck; with this deck and all above it liable to be lifted off and broken up by a heavy sea from the eastward; and with inj nries inflicted by collision upon her hull to an extent then painfully and apprehensively unknown, but since discovered to be more than $10,000 could repair. The only 'elements of safety in the condition of the, Excelsior were that she was squarely bottomed <>n one of the bars which skirt Hampton rdads, and that she was within 12 miles of Norfolk, on the border of one of the safest anchorages and most capacious roadsteads for shipping in the world. The with which she was saved, with all her cargo, was due to two causes, viz.: First, to the accident that no heavy wind or sea arose during the 42 December hours when she lay on the bottom; arid, second, to the consummate skill with which the salvors performed their work. Though the former accident, that of good weather, may go to the diminution of the salvage reward, the latter should·not. It is the characteristic of these salvors that, whenever success is possible, they perform their work with such facility and perfect success as to produce the impression on those who are benefited that their labors have not been diffi<mit enongh to deserve a liberal compensation. Such an objection is faulty both in its logic and justice, and I cannot accede to it. As to what claimants' counsel say of "harbor service," Hampton roads is rather an inland sea than a harbor. It is an anchorage and roadstead, into which sea-going vessels put for safety by hundreds, without a thought of going into port. It is surrounded by headlands, flats, and bars, and there are but two wharves on its entire boundary, and these run out far from land in reaching the channel. by the libelants to the Excelsior in this case The services were of the same character, though not as tedious, laborious, or difficult, as those which were rendered within the harbor of San Francisco in the case of The Camanche, 8 Wall. 448, where the award was onethird of the value of the property saved, where orrly a part of the property at risk was saved, and where the service was what counsel calls "harbor service." The work there was divers' work, and that of powerful lifting machinery. It was done in the harbor', and in perfect safety, except as to the accidents ordinarily incident to diving and the handling of machinery. Yet in that case, where therewa$ no sea danger, nor much danger of any sort, the award was, as before stated, one-third of the value of that portion of the sunken property' for $75,000. ' which was The case of The Blackwall, 10, Wall., I, was also a notable case of harbor serviGe,in wpicb for a half-hour's work with city fire-engines on board otaharbor tug, afire on a. ship was put out, and $10,000 awarded for saving property worth $100,000. . '
Salvage serVIces are rewarded in proportion to the danger attending them, to the peril from which the property was rescued, and to the energy, promptitude, skill, and success with which the salvage is affected. When of the requisite grade in these respects, the amount awarded is fixed with some reference to the values saved. In this case I will give a decree for 3t per cent. of those values, or In the second libel filed I will give a decree for the amount claimed, or $4:70.70. . The libelants claimed in argument 10 per cent. of the value of the property recovered, or $16,000; but as a compromise, to avoid the necessity of suing, reduced the amount of the bill presented to $10,000. I do not, in view of all the eircumstances of the case, feel justified in_awarding a larger amount than $6,000, as above stated.
v. ONE WIR£ RoPE
(District Court, S. D. New York. January 18, 1884.)
SnIPPING-FREIGHT, LIEN FOR.
A barge has presumptively a lien for her freight upon the goods laden Olt board, which is not waived by any provisions of the contract of hire not absolutely incompatible with the enforcement of the lien at the time of delivery.
2. SAME-'CONTRACT TO TAKE ON BOARD WIRE CABLE.
A contract to take on board wire cable in New York to be laid in the Erie canal, freight, the hire of the barge, at a per diem rate, to be paid as soon as the cable is laid, is not incompatible with such a lien, and with proceedings to enforce it at once in default of payment as agreed.
SAME-PRIVATE ARRANGEMENT BETWEEN MANUFACTURER AND OWNER.
Where wire cable was laden on board a barge by the manufacturer, pursuant to an agreement between the shipper and the owner of the barge, of which the manufacturer was chargeable with knowledge, held, that the barge had a lien upon the cable for her freight pursuant to the contract, and that such lien was not affected by the private arrangement between the manufacturer and shipper, not known tothe libelant, that the cable should be paid for on delivery, nor by the fact that the manufacturers, upon completing the of the cable, kept the shore end fast upon their premises, so as not to permit the departure of the barge with the cable abroad. Held, also, that the cable, as hetween the manufacturers ,and the libelant, must be regarded as laden on account of the libel. ant's contract, and as the goods of the shipper, and that the manufacturers were estopped from denying this, as respects the libelant, although, as between the manufacturers and the shipper, the title may not have passed.
4. SAME-LIEN ARISES, WHEN. A maritime lien for freight arises from the time the goods are 'laden on board. 6. SAME-LIEN AS AGAINST MANUFACTURER. As the barge under her contract with the shipper would, as against him, be entitled to a lien on the goods during the time the vessel was detained by reason of his not fulfilling his contract with the libelant, held, that the lien existed to the same extent as against the manufacturers, who, ftlr their own benefit, had held the vessel fast by the shore of of the cable until they removed the ca· ble under the stipulation given in this suit.