459
lining to an outer covering. for the safe, insulated from safe, and so arranged that an attempt to get through the covering will affect the electrical conditions, and thereby give an alarm. The inventors could not have a valid patent for protecting safes by electricity any more than Morse could for sending messages to a distance by that agency; neither could they for every form of device for that purpose. for various such devices existed before their invention. They were entitled to protection only for their specific improvements upon what existed before. Ry. Co. v. Sayles. 97 U. S. 554. So far as shown. there were no such insulated coverings fitting the outside of safes before. There was such protection for the outside of houses. and other buildings and rooms, but none for the safes themselves. The application of this form of protection to the safes themselves is different from that to habitable structures. The patent appears now to be valid for this specific improvement. The claims are for a, safe provided with the outer covering, and for the oovering. It is also urged that the patent has expired, because the invention is the subject of a prior English patent which has been suffered to lapse for non-payment of tax. The statute merely requires that in such case the patent shall be so limited as to expire at the same time with the foreign patent. Rev. St. § 4887. This seems to mean that the term of the patent here shall be as long as the remainder of the term for which the patent was granted there, without reference to incidents occurring after the grant. Henry v. Providence Tool Co. 3 Ban. & A. 501; Reissller v. Sharp, 16 Blatchf. 383. It refers to fixing the term, not to keeping the foreign patent in force. It is urged that infringement has been so far acquiesced in that a. preliminary injunction would now btl inequitable; but this claim does not appear to be borne out by the proofs; The fact of infringement is not in reality contested. The patent has been so far acquiesced in, respected, and upheld, that, appearing to be good .and valid as to this specific form of electrical protection, it affords sufficient ground for a preliminary injunction to restrain further infringement by the . use ofthis form. Motion granted.
THB QUBEN OF THE
(Di8trict. Oourt,
Oregon.
September 9, 1884.
1.
SALVORS, WHO ARE, AND COMPENSATION OF.
A person rendering aid to a ship in distress is a salvor, whether he is a mere .volunteer or acts upon tile request of the own,er or .agent of the ship ; and unless there is an ,express contract to the contrary, or such a one must necessarily be implied from the circumstances of the case, the law implies that the service is to be compensated for on the uSl,llll condition oUhe Ultimate safety of the property.
FEDERAL REPORTER.
,2.
SAME-AMOUNT OF COMPENSATION.
A salvor in pursuance of a request is entitled to compensation according to the circumstances of the case, although he is unsuccessful, if the property is not lost or is otherwise saved ; but a mere volunteer is not entitled to any compensation unless he succeeds, and the fact' that his reward depends on this contingency may enhance the amount of it; but even when a salvor acts in pursuance of a request, and it is manifest that the property in peril must be wholly saved 01' lost, his compl.'nsation also depends upon the contingency of success, and should be enhanced accordingly. In awarding compensation for a salvage service the courts do not stop at mere payment for the work and labor performed, but go further, and give the salvor an appropriate reward in the interest of commerce and navigation.
3.
SAllIE-HEWARD.
4. SAME-ELEMENTS OF COMPENSATION FOR SALVAGE.
The elements that enter into the estimate in fixing the compensation for a salvage service are: (1) The value of the property saved and of that employed in saving it: (2) the degree of peril from which the saved property is delivered; (3) the risk to which the property and person of the salvor is exposed; (4) the severity and duration of his labor; (5) the promptness with which he interposed his services; and (6) the skill, courage, and judgment involved in them. 5. SAME-PAYMENT FOR SERVICE, WHEN NOT A BAR TO SUIT FOR SALVAGE.
A payment received lly a salvor as for work and labor and use of material, upon the reasonable understanding on his part that 1he other and principal salvors would settle and receive payment on the same basis without a suit for sa)vage, is no bar to such salvor intervening' for his interest in a suit subsequently brought by such other salvors for salvage, and receiving his due share of the award therefor, less the payment theretofore made.
In Admiralty. ill. W. Fec'hheimer and Henry A ch, for libelant.s 11Iilton A ndros and Cyrus Dolph, for claimant. C. E. S. Wood, for intervenors Gray et al. John H. Woodward, for intervenors Kidd & McDonald. DEADY, J. This suit is brought against the steam-ship Queen of the Pacific, "her tackle, apparel, furniture, appurtenances, and cargo," to obtain compensation for a salvage service rendered them by the libelants. It is brought by George Flavel, the managing owner of the steam-tugs C. J. Brenham, Astoria, and Columbia; and W. S. Sibson, the managing owner of the steam-tug Pioneer; and 21 others, comprising the crews of said tugs, and for all others entitled. The libel was filed October 13, 1883, and on the same day the vessel was arrested and delivered to the owner, the Pacific Coast Steam-ship Company, on a claim made by Mr. C. H. Prescott, its managing agent at this port. The answer of the claimant was filed on December 1st, and admits that the libelants performed a salvage service in respect to the vessel and cargo; and the contest between the parties is practically confined to the value of such service, and particularly to certain matters of fact, upon which the determination of this question 19,rgely depends. On May 28,1884, the Ilwaco Steam Navigation Company! J. H. D. Gray, l!jnd 19 others, the crews of the steam-tugs Gen. Canby and .Gen.Miles and a scow, filed a libel of intervention on behalfof themselves, as the owners, agents, and crews of said tugs and scow, set-
THE .QUEEN OF THE PACIFIC.
ting forth the part they performed in the saving of the veElsel, apd asking that a corresponding portion of any sum allowed as a compensation therefor may be awarded to them by the court. 'rhe answer of the claimant to the libel of intervention admits that the intervenors rendered the services alleged by them, but denies their alleged value and importance, and the circumstances of danger and ri"k relied on to give them enhanced value, and also sets up that they were paid for by the claimant at the time as follows: To saJ,d Gray, as agent for the said Ilwaco Steam Navigation Company, $600;. and to said Gray, personally, for the use and services of said scow and crew, and his own services, $654. An amendment to the libel of intervention admits the payment alleged in the answer, but denies that it was received in full satisfaction of the service rendered, but with the express understanding that it shoulwnot operate as a bar to. the claim of the intervenors as salvors in any suit that might be instituted for salvage. Between November 21, 1883, and April 24, 1884, three libels of in· tervention were filed by a number of persons who appear to have been employed and paid by the claimant to throw over cargo, or were of the volunteer crew of the boat from the life-saving station. From the anSWf:rs of the claimant thereto it appears that this crew have a suit now pending against the Queen, in Washington Territory; for the same service, and that the stevedores were employed and paid by the claimant at the rate of half a dollar an hour for their labor, and the proof sustains the answers in both cases. No evidence was offered or argument made on behalf of these intervenors, and it. is taken for granted that their claims are abandoned and their libels will be dismissed. Separate libels of intervention were also filed by John McDonald and .Tohn S. Kidd, alleging that they assisted in saving the Queen,-McDonald by serving as "sale fireman" for "ten hours or more" tug Pioneer during the time 'she was employed in rescuing the Queen, and Kidd as "sole engineer" on snch tug during all such time., No defense is made to these claims, and they will be taken as confessed. Besides, that of Kidd is proven by his own testimony. . ' Briefly, the facts, either admitted or proven, concerning the strand. ing of the vessel and her rescue, are as follows: . On September 2, 1883, the steam-ship Queen ofthePacjfic, being engaged in the coasting trade between Portland and Sa,n Francisco,' left the latter port for the former, and arrived off the mouth of the Columbia river in the forenoon of September 4th, where she anch. ored for a time within the sound of the automatic buoy, and then crossed the bar and entered the river by the south channel, under the direction of a licensed Columbia bar pilot, whom she carried for that purpose. The weather was very thick with fog and smoke, the wind was light, and the sea quite calm. As she came abreast of Clatsop spit the v6ssellost the channel and turned to the southward; .and at or near high water, and about 1: 45 P. 1d." ran hard, and fast on
46.9
FEDERAL
REPORTER. ,
north' end of said spit, in the quicksand, at a point about one-fifth of ll. mihHo the south-westerly of a straight line drawn between Cape and Point Adams lights, and about one mile and a north-easterly of red buoy No.2, and one mile and a. third' halfsottth of the wreck of the Great Republic, and within the 12-foot line,wnere she lay, heading south-easterly, at nearly a right angle 1Vith the channel, until she was pulled off the next day. . On this voyage the Queen had on board Mr. George C. Perkins, the vice-president of and a director in the Pacific Coast Steam-ship Company, arid one of its general managing agents, and was fully equipped and manned. She was then about one year old, and worth $485,<JOO, and carried 160 cabin and 74 steerage passengers, and 1,860 measured tons"of freight, worth $315,000, of which $95,000 worth was jettisoned, together with the United States mails and express matter of not less than $22,750 in value. The passage money,which was prepaid in San Francisco, amounted to $3,124.56. The freight on the whole cargo was $8,955.07, and on the portion saved it was $5,912.28. As soon as the vessel stranded the master ordered the engines reversed, and'attempted to back her off, but without success. Guns were at once fire(1 and steam-whistles blown as signals of distress, and the chief officer, Mr. Hall, dispatched in a small boat to Astoria. with a message to Capt. George Flavel, one of the libelants, to send all the tugs under his control to the assistance of the Queen. The signal guns were heard by the lookout of the tug J. C. Brenham, then lying at anchor in Baker's bay, and the fact at once communicated to her master, M. D. Staples, who immediately started with his tug in the direction of the spit, taking with him, at the request of Capt. O. T. Harris, then in charge of the life-saving station- at Cape Disweather was very appointment,aliCe-boat and volunteer crew. thick, and. the Brenham proceeded under a slow bell, at the rate of a:bout six miles an hour, across the middle sand, directlyforthe spit. through a channel known to the master, and called the "Cut-off," and trpe vicinity of the Queen in about 25 Thfil Brenhani' theri 'drew about 11 feet of water, and approached within about 150 feet of the. stern of the ship, and a little on the Ilort quarter, and .was 'hailed by some on-e thereon, and asked to "come closer." But, the tug striking the bottom, she withdrew from the ship -near onefoprth of a mile, but witl).in ear-shot, where she lay to until near 5 o'cloek in the evening, when, having received about 125 of the Queen's passengers from her starboard gangway: by means of the, life and ship's boat,' she proceeded to Astoria, where she arrived with the passengers at 6 o'clock, and. delivered a message from the Queen, concerning their disposition,to the claimant's agent at that plarJe. , In the meanwhile, the steam-tug Canby, the property of the Ilwaco Stearn Navigation Company, then drawing from seven and a "half to eight feet of water, in the course of its regular trip from Astoria to
TWl QUEll:N 01 .'l'liB P.A.OlJi'IC.
4:63
Cape Disappointment, met Hall, of the Queen, on his way to Astoria. in the small boat, when the master of the tug,-Thoma,s Parker·....,. learning what had .befallen the Queen, returned with Hall to Astoria, where the latter delivered the message from, the Queen for help to Flavel. The intervenor and agent of the Canby, J .. H. D. Gray, having learned from Staples and Hall, on their·arrival in Astoria, of the condition of the Queen, immediately and· of his own motion equipped .and manned a scow belonging to himself, then lying at Astoria, loaded :with sand, and, taking it in tow of the Canby, carried it to the Queen. ;;nloading the sand in the river as he went, and giving pilots Gunderson and Doig a passage there on the tugj and this he did with the purpose, then publicly avowed, of Elnabling the Queen to get a heavy tloLichor out astern in time to prevent the next tide from swinging her around or driving her further up on the sand, and to aid in lightf;Uling her of her cargo. Gray arrived at .the spit between 4: .and 5 .o'clock, and anchored about 100 yards off the ship's port qua.rter, where, by means of a line to the Queen and one to the tug, the scow was used as a ferry between ,the tWQ, whereon 100 or more passengers, with their hand baggage, were transferred fr,omthe. Queen to the Canby, and Gray was aboutstaJ:ting with· them to Astoria, when, at, the request of the master oUhe former, he transferred said pas.sengers to the tug Pioneer, then lately arrived from Astoria, a.nd remained with the Canby by Queen to assist inputting out her anchor. That evening, at slack low water and about lJ p'clock,the ship's bow anchor, weighing about 5,500 pOJIuds, was the scow and towed astern about 100 fatho.ms by Gray, and dropped a little off the port quarter. A fourfold purchase wa,sJhen applied to the inboard end of the 12·inchbttws.er attnched to this anchor"and the fall carried to the steam-capstalX, :andhove taut for the purpose of preventing her from going further on the spit and aJ.so of helping her off on the next high t i d e . , , On the morning of the 5th, Gray, after the scoW' along-side of the Queen, sent the C8uby away on her regular business, butremained himself with the scow, and·took from the ship baggage oithe value of $15,000, and express mfl,tterof much greater. value, which, with the aid of the Gen. Miles, it steam-tug belongingt() &aid IlW'l¥l9 Steam Navigation Complliny, towed to Astoria. on: the noon of said day. ,, As soon as Flavel received the message from 4th, he dispatched from Astoria. the tug Pioneer, D. J. McVic/jltr, to the assistance of the.ship, which, with Hall and his and crew on board, reached there about 5 o'clock P. M ·. of,the ,sa,me day, and anchOl:ed about of a mile distant fromt.he where she received the Pll,ssengers from the· Canby,' a,s above and .thell carried them ,to Astoria, where ,she ,a.rriv¢d So'clook in the evening, nond: remaJned until the next ::W;hile dispatching the tug.:.As.tm;i.ft,; up; at
464:
her dock, made ready and a spe(lial crew employed, and Bent to the aid of the Queen, where she lay until the next morning. in the evening of the 4th a consultation was held About 9 on board the Queen, when it was decided that if the ship's anchor and propeller did not get her off at the next high tide the cargo should be jettisoned. And to tbis end the ship's engines were reversed, and both them and the steam.capstan worked at full speed for about two hours and a half, and until after high water, but without moving her. Accordingly, between 2 and 3 o'clock in the morning, a request was sent from the ship to the Astoria that she should go to Cape Disappointment and get some soldiers to aid in throwing over the cargo, but those on board, including Noyes, the Astoria agent of the ship, thinking it doubtful if any sufficient number of soldiers could be obtftibedat the cape, and also concluding that it was not safe to at· tempt to move' in the dark, the tug did not leave her anchorage until 4 o'cloc.k in the morning, when she returned to Astoria, where Noyes pro<mred 40 laborers, and returned on the tug to the ship with them about 9 o'clock in the morning. The Astoria also took down a scow, and anchored it in the vicinity of the ship. The tugs PioIieer and Brenham laid at Astoria all night, and returned to the ship about 7 or 8 o'clock on the morning of the 5th. On the same morning the tug. -Columbia was lying in Baker's bay, 'and the master, Alexander Malcolm; having been informed that the Queen was ashore, went to her aid about half past 5 o'clock and anchored. Soon after, at a request from the ship, the tug returned to the cape and brought back 24 men and a surf-boat, and then took the small remainder of the Queen's passengers to Astoria and returned to the ship about 11 o'clock. The crew of the Queen commenced throwing over <largo about 5 o'clock in the morning, and continued to do so until about 1] o'clock, aided by the men from Astoria and the cape as soon as they arrived. At first they discharged through tbe forward and after ports; but between 9 and 10 o'clock the starboard after-port had to be closed on account of the rising of the tide and the list of the ship to that side. The libelant George Flavel is a seaman and master mariner of experience, and bas been familiar with the entrance to the Columbia river, as the Owner and manager of pilot and tug boats thereabout, for more than a quarter of a century. As the managing owner of the tugs Brenham, Columbia, and Astoria, and the managing agent of the tug Pioneer, be went to the assistance of the Queen on the morning of the 5th, and after boarding her had a consultation with the master of the ship and Mr. Perkins, substantially, according to the testimony of the latter, as foHows: The master of the Queen said to Flavel, "We are in a tight place," and asked him what he thought of it. Flavel-asked what we had been doing, and I spoke and said we had been throwing cargo overboard since daylight, and that we had an anchor out on the port quarter npon a 120-fathom
THE QUEEN OF THE PAOIFIO.
465
line, and that "we had held her in that position." Flavel said that was all right. "I asked him what the chances were for getting us off, and he said he did not know; that he would do his best." We chatted then a few moments and Flavel said: "All right; I will go on board and do what I can." I said: "All right; go on board and use your own best judgment, and do the best you can to rescue the ship, and we will do the best we can to look after her." About half past 11 o'clock Flavel returned to the tugs in the lifeboat, and caused the Brenham and Pioneer to be made fast to the ship's stem, by passing their hawsers through her port quarter and stem chocks, respectively, and then the Astoria gave her hawser to the Brenham, in which condition they pulled on the ship near ail hour. The flood-tide was setting in pretty strong the track of the tugs, and made it difficult to keep them in position. The Bren'ham and Pioneer, by reason of the current and swell, were driven toand materially injured, and were in danger of being very seriously injured, if not sunk. About 12 o'clock the Brenham's hawsera large towing one-parted, and she and the Astoria were separate(l from the ship. The Columbia then attempted to give her hawser to the Queen, but failed, when I!'lavel boarded her and succeeded in making her fast to the ship in the place of the Brenham, along-side of the Pioneer. The Astoria was then placed in front of the Columbia, and the Brenham in front of the Pioneer, and the four tugs, thus placed, pulled at the ship from a half to three quarters of an hour, and until high water slack, when she came off the spit on an uneven keel with a list to port, rolling and striking the bottom, but in an uninjured condition, and proceeded on her voyage. On leaving San Francisco the Queen drew 16 feet 3 inches forward, and 18 feet 2 inches aft, though owing to the consumption of coal on the voyage she must have lightened some before stranding, but how much is not shown. From the testimony of the river pilCH-Stevens -who took charge of the ship at Astoria on the 6th, it appears that her draught aft was then nearly 17 feet and the draught forward was probably reduced in the sa,me proportion. The diameter of the ship's wheel is 16 feet, and, according to her model in evidence, the center of the hub, which is three feet in diameter, is nine feet above the line of the keel. At low water, the hub, when not covered by the swell of the sea, was clearly visible, from which it is rightly inferred that the ship had then not more than eight feet of water under her stern, when on an even keel. Her eri· but were never worked beyond gines were rated at 3,000 2,100 or 2,200 horse-power. The engineer testifies that he menced to work them about 12: 40 P. M. of the 5th, but, as the wheel was buried in the sand, they worked slowly until it was cleared. . They were working at their full capacity when the ship'came off, and had been for the half hour immediately preceding. The engine that worked -the steam-capstan, to which the anchor line was attached, is v.21F,no.7-30
FBDERALREPORTER.
,about 50 horse-power, and was also working at its full capacity when ,. the ship came off the spit. The combined power of the four tugs is and the position they occupied with a little over 1,100 reference to the ship, when they first commenced pulling on her, was four points or less off her port quarter, but for some time before she came off it was about two points off said quarter. In my judgment, Flavel acted wisely in keeping the tugs well off ,the ship's quarter, rather than astern,-at least, untll the moment of high water, when she was expected to come off, if at all,-for by that means she was worked sideways in her bed, and thus freed from the pressure of the sand-bank which had naturally formed around her quarters and under her stern, and so far barred her way off the spit. And bAing unable by her own power, or any power applied directly astern, to work herself in her bed and break up this sand-bank in which she was imprisoned, it is altogether improbable that the Queen would ever have gotten off the' spit by her own unaided efforts, or, by any aid short of that furnished by Capt. Flavel. According to the tide tables for the Pacific coast, published by the Survey Office," the second high water at "U. S. Coast and Astoria, on September 4, 1883, occurred at 2: 13 P. M., and the water rose 8.9 teet. The first high water on the next day occurred at 2: 37 A. M., and measured 7.4 feet j and the second one at 2: 39 P. M.,and stood at 8.7 feet. The tides continued to decrease in height until the 10th, when they, stood at 5.9 and 7.4 feet. By the "tide constants," given in the appendix to these tables, it appears that the high tides on the fourth and fifth of September occurred at "Clatsop (near Point Adams)" only seven mjnutes sooner than at Astoria, and were onetenth of a foot lower. Counsel for the claimant assumes that the facts stated in this "constant" are true. But I do not understand that they are put forth as being anything more than approximately true. and in this instance they appear to fall far short of even that. Point Adams,'at the nearest point, is over three miles from the place where the Queen was stranded, in a direction nearly E. S. E., and the tide is full at the latter place probably sooner than at the former. Capt. Harris, of the life-saving station at Cape Disappointment, testifies that the tide is 35 to 40 minutes earlier at the cape than Astoria, and that a steam-boat leaving the former place on a high tide will ordinarily carry it with her to Astoria. There is no direct evidence of the distance from the cape or the spit to Astoria, but there are a good many circumstances bearing quite directly on the question, and I think the fact is of that character that the court may take notice of it. By the chart of the mouth of the Coluplbia river, "Sheet No.1," published by ,the United States coast survey, 1881, it appears that Astoria. is about ten miles from Cape Disappointment, and abouteigbt froni the point where the Queen was stranded.. Now, if the tide wave or Awall moves from the, cape to Astoria in 40 mint4etide would be high at the spit utes. or a milein four
THE QUEEN OF THE UOIFIC.
46'1
ahout 32 minutes sooner than at Astoria. .This conclusion accords with common iobservation and experience, while the statement that the tide wave moves from the spit ta Astoria in seven minutes, or at the rate of a mile in seven-eighths of a minute, is contrary to both and improbable on its face. According to this conclusion, it was high tide on the spit, on the afternoon of September the 4th, at 1 :41, and on the afternoon of the 5th at 2:07. It may, then, be regarded as morally certain that the Queen went on and came off the spit at high water slack. During the 4th and 5th the weather was very thick, although the fog lifted some at times, and the night very dark. Around the Queen there was constantly a choppy sea, with a swell of about six feet, with an occasional tide rip or light breaker on her stern and starboard quarter, at low tide. According to the observations recorded by the signal service at Fort Canby, the wind on September 4th was steady from the north at the usual times of observation, namely, 3: 52 A. M.; 11: 52 A. M., and 7: 52 P. M., at the rates of five, six, and seven miles an hour. On the 5th it was steady from the north at the first observation, at the rate of seven miles an hour; and at the second and third ones steady from the south at the rates 'of twelve and eleven miles an hour; and on the 6th it was steady from the south-east, at the first observation, at the rate ,of twelve miles an hour; and at the second and third ones steady from the south at the rates of eighteen and six miles an hour. Capt. Harris testifies that on the 6th there was a gale blowing from the southeast at Cape Disappointment, and a surf on the spit that would have made it very dangerous for the Queen if she had been there. The Brenham, Columbia, and Astoria are wooden vessels. and draw about 10 feet of water each. The first is about 100 tons burden and 240 horse-power; the second is about 90 tons burden and the same power; and the third is about 125 tons burden and 300 hor-se-power. The Pioneer is an iron vessel of about 100 tons burden and 325 horsepower, and draws nine and a half feet of water. They were each manned with a master and sufficient crew, amounting in all to 23 persons. The only evidence in relation to their value is found in the testimony of the libelant, Flavel, and he estimates the value of the Brenham at $25,000, the Astoria at $15,000, the Columbia at $35,000. and the Pioneer, be says, is beld by her owners at $60,000,-making in all the·sum of $135,000. These estimates are somewhat general, and, for the purposes of this case, I find the value of the tugs to be $100,000. 'llhe cost of repairing the same, on account of the injuries sustained by them while engaged in pulling the Queen off the spit, includirig the value of four hawsers, either cut or broken in the operation, according to the testimony of Flavsl, is $8,386.84, to which he adds $1,000. for repaitsyet to be made to the Pioneer. These tugs· are maintained by their owners, primarily, for the purpose of towing vessels in and out of the Columbia river, and not· the
468
FEDERAL nBPORTE8. .
business of wrecking. But, nevertheless, they are kept prepared for such service when needed, and their presence and maintenance about the mouth of the river is a very material security and benefit to the commerce of the Columbia. The Canby and Miles are wooden vessels-the first one of 76 tons measurement and 8 feet draught, and the second one of 136 tons mea,surflment and 11 feet draught. The scow is 50 by 20 feet, deck dimensions, and 4 feet deep in the hold. They were each duly manned, and the number of the crews amounted in the aggregate to l\} persons. The Canby is admitted to be worth $15,000, and the Miles is alleged to be worth $47,000, and the Scow $600; but, for the purposes of this suit, I find or assume that they are worth, collectively, $50,000. In his testimony, the master of the Queen endeavors to show that the tugs under Flavel's charge were so badly managed that they were but little if any assistance to the Queen, and that, in fact. she floated off at high water with the aid of her anchor and machinery. But this view of the matter is opposed to the undoubted and controlling circnmstances of the case, and contrary to the weight of the evidence generally. It is also in direct conflict with the contemporaneous and unpremeditated statement Of the master contained in a card of thanks dictated by him to the editor of the Daily Astorian on September the 5th, and published over his signature as "Capt. Queen of the Pacific," in the issue of that paper of the seventh of the same month. In it, after premising that he wishes to return his "sincere thanks for the prompt courage" shown by so many "in aiding the Queen of the Pacific," he says: "My special thanks are due to At Harris, (of the life-saving station;) to J. H. D. Gray, who stood by and helped from the start; to George Flavel, to whose determination we owe the safety of the vessel; to his experienced pilots; to the brave men who took off the passengers; and to the citizens who kindly cared for the passengers and prOVided them with all they reqUired. The services of all were of the best nature, and are gratefully acknowledged. I shall ever hold them in remembrance, and again desire to express my sincere thanks." On the same occasion the master publicly toasted Flavel as "the man who saved the Queen." Now, after making all due allowance for the kindly and grateful mood in whioh this toast was probably drank and card published, it is impossible to reconcile what is said in either of them concerning the person "who saved the Queen," or "to whose determination" "the safety of the vessel" was due, and the evident drift and purpose of the master's subsequent testimony, and particularly with certain statements therein. It is easy to see that the card and the toast came from the heart, and the testimony from the head. The one is the spontaneous and unqualified statement of the witness' feelings and convictions cotemporaneous with the occurrence, while the other is plainly the studied and calculated afterthought in which he under-
THE QUEEN OF THE PA.OIFIC.
takes to depreciate, as far as possible, the character and benefit of the libelant's services, with the intention, apparently, of diminishing their value in this suit. It is also assumed in the argument for the claimant that the Astoria refused to assist the Queen in the effort made to get off on the morning of the 5th. But the evidence is satisfactory that no request for such assistance was sent to the Astoria that night, nor any other than the one to go to the cape and get men to help to throw over the cargo. 'fhe claimant also contends that the Queen moved astern at high tide on the morning of the 5th. The third officedestifies that by tile use of the lead he observed her move astern about "nine feet." The master says she either mo\'ed or the anchor came home, but he does not say which, and gives' no reason in support of either conclusion, save hearsay and conject'ure. But the weight of the evidence and the probabilities of the case are d'ecidedly against her having moved. Capt. Harris, who was on board at the time and took pains to ovserve the hawser, thinks she did not move until she came off. Neither did the master or anyone else mention the fact, or even allude to it, when Flavel went on board the Queen to confer with him and ascertain her condition before going to work to try to get her off. And it seems to me highly probable that if the vessel had moved any appreciable distance during that tide, it would have been generally known or reported on board, and that it would have been mentioned to Flavel on this occasion as a material if not a hopeful circumstance. But if she did move a short distance-nine or even forty feet-this fact does not tend to show that her position was any the less dangerous, or that the service rendered her by the salvors was any the less valuable. The vessel did not come off, that is certain; and the only rational explanation of the fact, if it be a fact, is, as suggested by counsel for the libelants, that instead of being on a sloping bottom she was in a "pocket," or sink in the sand, and therefore in the more danger. As a general conclusion from these premises, I find that the libelants, and the intervenors Gray and others, performed a salvage service in aiding to get the Queen off Clatsop spit, without which she would have been buried in the sand there long ere this; that the scow and the 'tug Canby, and partioularly the four tugs employed in pulling the Queen off the spit, incurred material risk, and that the salvors, according to the respective positions and employments, displayed skill,judgment, and courage in saving the Queen, and taking off and removing to a place of safety her passengers, their baggage, express matter, and mails; Capt. Gray, by his wise forethought and skillful appreoiation of the Queen's situation, in taking t'he scow to the ship, as he did, for the purpose of getting out an anchor, and the attention and aid he gave to the doing of the same, contributed very materially to the saving of the vessel; that Capt. Flavel, by the skillful, courageous, .and determined m'anner in which he maneuvered the four
·
470
j'EDEllAL REPORTER.
tugs under his control on the 5th, under circumstances of more or less risk to them and to himselfpersonally, rendered a very great service to the Queen, without which in all probability she would haye been. a total loss. And the important question now to be determined' in tbe case is the amount to be allowed the salvors. But preparatory to that, and as a part of it, the defense made by the claimant to the claim of the intervenors, Gray and others, must be considered and disposed of. This defense turns upon the effect to be given to what occurred between Gray and Perkins at Astoria on the morning of the 6th. The parties are substantially agreed in their account of the transaction, except in one particular. Briefly and it was as follows: Mr. Perkins asked Capt. Gray to make out a bill for his services. that he wanted to get away to Portland. The latter wanted to know first if Flavel was going to settle, and the fOlmer said he thought he. would, whereupon Gray made out his bills and presented them, and thuy were paid to him accordip.gly. Gray swears that when he presented the bills to Mr. Perkins he said, as he did so, these bills are for "services," but if there is a suit for "salvage," I want to come in with the rest; to which the latter replied, the bills are very reasonable, and shall be paid; and if there is any suit for salvage, you shall share with the rest. Mr. Perkins swears that he has "no recollection" of Gray's saying anything about any further claim in case of a suit for salvage, but that he volunteered the remark, when he received the bills, that if Flavel did not settle, and the case went to the court for adjudication, he was willing the court should "review" Gray's claim, if it could be done without hazarding the interests of the company. It does not follow that because Mr. Perkins does not now recollect what Capt. Gray affirms he said, that the statement of the latter is not proven, But, admitting that it is not, I think the bills were presented and paid under the apprehension that Flavel was going to settle on the basis of "service," rather than "salvage," and that there would be no suit about the matter j but if it should turn out otherwise, and there was a proclleding for salvage, that Gray and others should not be prejudiced thereby. Another point is made by the claimant as bearing on the question of the amount of the salvage, and that is: the service of the salvors was not voluntary, but rendere.d in pursuance of a request or employment on the part of the claimant. I The authority cited in this connection is the case of The Undaunted, Lush. 90, 92. Bt1t the in this case is only to the effect that, when the services are ren4ered in pursuance of a request from a vessel in danger or distress, the party rendering them is entitled to recover sa.lvage, according to the circumsta.nces of the case, although such services prove to be of no benefit, while one who volunteers his services to a vessel uniler the same circumstances, if unsuccessful, is entitled to nothing. But in
THE QUEEN OF THE PA<JIFIO.
471
either case the law implies that the service is to be paid on the usual condition of the ultimate safety of the property in question. The Versailles, 1 Curt. 860. And whether the faot of a request shall affeot the amount of the compensation for a salvage servioe must therefore depend upon the degree of danger in which the vessel is placed. If she is in no danger of destruotion or serious damage. but only some slight injury, she may be a reasonable seourity for a salvage service rendered her upon request, although it should prove of no benefit to her. In suoh a case, compensation not depending on sucoess, the amount of salvage may very properly be diminished acoordingly. And, although not suggested in the argument, it may be admitted t4at if Mr. Perkins, as the general agent of the olaimant, did in fact employ the salvors, on the credit of the Pacifio Coast Steam-ship Company, to assist in the rescue of the Queen, assuming the solvency of the company, the risk of getting nothing for their services. if unsuccessful, would not enter into the transaction, and should not be considered in estimating the amount of their compensation. B.ut nothing of that kind' took plaoe on this occasion. Certainly, neither the request sent to Flavel from the Queen for his tugs, which was only a more direct form of a signal of distress, nor t.he conversation between him and Mr. Perkins on the deck of the ship, in which the latter told Flavel,.8ubstantially, to do what he could to get the ship off and they would look after her, amounts to even an implied contract whereby the Pacific Coast Steam-ship Company became bound to pay the libelants for their services as salvors they were successful or not. But it also from the master's testimony, that Mr. Perkins said to Flavel on this occasion, "We want your assistance-we make no bargain-we .will do nothing;" from whiC)h'it appears that the agent of the claimant, while aocepting the services of the libelants, expressly declined to make any agreement concerning their value, or to bind his principal to the payment thereof in any contingency. . . In the absence. of an express contract to the contrary, or circumstances from which such contract is necessarily implied, the presump. tion is that the salvors went to work with the understanding and expectation that they would get their compensation, if any, in the usual way,-off the bed·rock,-out of the property saved. And there being no such contract or circumstances in this case, the salvors would have had no claim for salvage, if unsuccessful in their efforts to save thA Queen, because she was in a peril from which she must have been wholly saved or become a total loss. So it is immaterial in this case whether the service of the salvors was rendered upon the request or employment of the ship or not. The service was a salvage one, andthey could only look to the saved property for their compensation· .Nothing remaiD,8 but to determine what compensation ought to 00 allo'\Vedthe And this is always the lin these· cal?es. Every case must tum largely on its
472
and, in the nature of things, the award, like the verdict of a jury in a case for damages, is somewhat arbitrary, and only approximately right and just. The value of the property saved is $736,786.84, and the libelants claim that the award ought to be equal to 20 per centum of that amount, or about $150,000. The claimant has not directly suggested what amount ought to be allowed for the service, but, from the awards made in the cases cited by counsel as furnishing a proper precedent or safe guide on this point, it appears ·that he is willing to allow from $25,000 to $35,000. In awarding compensation for a salvage service, the courts do not stop at mere payment for the work and labor performed, but go further, and give the salvor an appropriate reward, in the interest ,of commerce and navigation. 2 Pars. Shipp. & Adm. 292. In The Versailles, 1 Curt. 355, Mr. Justice CURTIS says: "The relief of property frolll an impending peril of the sea by the voluntary exertion of those who are under no legal obligation to render assistance, and the consequent ultimate sa.fetyof the property, con!ltitutes a tf'!cbnical case of salvage; and when its compensation is not fixed by such It contract as It court of adniiralty will enforce, it is to be adjusted according to those liberal rules which have been found beneficial to commerce, and have long formed It part of the marine law."
In determining the amount of the compensation for a salvage service the elements which enter into the estimate are: (1) '1'he value of the property saved and that employed in it; (2) the degree of peril from which the saved property is delivered; (8) the risk to which the person and prop.erty of the salvor is exposed; (4) the severity and duration of his labor; (5) the promptness with which he interposes his services; and.(6) the skill, courage, and judgment involved in them. The Versaille8, 1 Curt. 361; 2 Pars. Shipp. & Adm. 298. In all these particulars, sa-we two,-the risk to the persons and property of the salvors, and the severity ahd duration of their labor,this is a case for It large award. The property saved is of great value, and it certainly was in extreme peril, and that it could be saved at all was very improbable. The salvors acted promptly, and with great skill and good judgment; and while, on the whole, the risk sustained and the labor performed by the salvors was not very serious or severe, yet they were so material as to be well worthy of consideration. After careful consideration of the whole matter I have concluded to award the salvors the sum of $64,700, or a little less than 9 per centum of the value of the property saved, to be distributed as fol. 'lows: For repairs on the Brenham, Columbia, and Astoria, including a new hawser to each, the sums of $820, $1,120, $560, respectively, and to the Pi<)tleer on the same account, $700; to the tug Pioneer and its crew, $14,000; and the tugs Brenham, Columbia, and Astoria, and their crews, $27,000; to the tug Canby and its crew, $4,500;
THE QUEEN OF THE PACIFIC.
toe tug Miles and its crew, $500; and the scow and its crew, $500. From the sums awarded to the several tugs and their crews, except the Miles, there must first be paid to each of the persons composing said crews on the fourth and fifth of September a sum equal to the following multiple of the monthly wages he was then receiving or was entitled to receive for ordinary service in a similar capacity: To each master, or person acting as such, eight times a month's pay; to each pilot and engineer, or person acting as such, six times a. month's pay; to each mate, or person acting as such, four times a. month's pay; and to each seaman, or other person of said crews, two times a month's pay. . :From the sums awarded to the Miles and the scow, and their crews, there must be first paid to the persons comprising the latter as follows: To the master and pilot of the Miles, $70; to the engineer, $50; to the mate, $30; and to the fireman, three deckhands, and the cook, $20 apiece; to the foreman of the scow, $60; and to the three deck hands, $40 each. The remaining portion of the award, $15,000 is allotted to Capt. Flavel and Capt. Gray,-t,wo-thirds to the former and one-third .to the latter. The conduct of both these men on this occasion_ was highly meritorious and commendable, and deserves, in my judgment, special recognition in this award. Nor ought the fact to be overlooked, in this connection, that the latter has but one arm and the former is crippled in both hands. And, looking at Capt. Flavel's relation to this subject generally, as well as in this particular transaction, by the light of what is commonly known in this country, as well as the evidence in this case, it may be justly said, substantially, in the language of counsel, that the enterprise and gallantry displayed by him on September 5th was such as would reflect great credit on a much younger and abler man than himself. It is not common to find a man of 63 years of aRe, crippled in his hands and well able to \ live without labor, who will exert himself and incur the risk of bodily harm that Capt. Flavel did on this occasion. And his conduct was praiseworthy throughout. When his tugs were being seriously damaged, and their destruction seemed not improbable, he did not attempt to drive a bargain with Mr. Perkins for indemnity in case he was unsuccessful. But, regardless of consequences and determined to save the ship if possible, he persisted in his efforts, and by his presence and example directed and encouraged his men, and shamed them out of their very natural and reasonable apprehensions. Indeed, he was largely animated by a higher motive and purpose than the hope of obtaining any pecuniary reward. As is well known, the people of Oregon and adjoining territories were about to celebrate the completion of the Northern Pacific Railway. Distinguished persons from all parts of the world were bound hel'e to participate in the event, some of whom were on the Queen. That this valuable vessel should become a wreck on our shores at such a time was regarded by all
concerned as the country. Capt. Flavel sbared this. feeling, and as 8i matter of state' as well as personal pride was willing and did make exertions and take risks that under other ciroumstapces he'might well 'have declined. 'For nearly' 35 years Capt. Flavel has been engaged in the business of 'pilotage, towage, and salvage about the mouth of the Columbii{river, a:nd'withiidhe jurisdiotion of this oourt, and has never once sought the aid, of the same to enforce a claim for such service. The reasonable 'and' obvious inferenee from this faot is that his demands hitvenot'been extortionate or oppressive. In the decree, provision must be made for deducting the sums here. toforepaidthe intervenors, Gray and the,Ilwaco Steam-ship Com. pany, for their respeotive servieesfrom the amounts awarded to them. nto£ the remainder only, and for the filing with and for the paym theolerk of a stipltlation by the owners of the tugs and scow, and the members of their saveral crews,' containing a sohedule or state· mentof tbeposition or employment and monthly pay of each one of such ChlWS, as a basis upon which the award shall be 80 far distrib. uted. And in oase such stipulation is not filed within 20 days there. after, as to any of said tugs or crew, the matter may be brought before the court for determination on the petition ofthepersol1 interested.
'rHE JAMES
A.
GARFIELD.
(District Court, 8. D. New York. June 30,1884.) 1. PILOTS-DuTY OF-UNKNOWN OBSTRUCTIONS-EAST RIVER-COSTS. A pilot, is not an insurer. He is only chargeable for negligence when he
fails in due knOWledge, care, or skill, or tu avoid all obstructlonswhich were known or ought. to have been known to him.
2.
SAME-INJURY TO TOW-COSTS.
The schooner J. B, 0., drawing feet of water, while in tow of the tug J, A. G" ran upon the edge of an obstruction in the East river, 400 to 500 feet easterly from the Nineteenth-street bUOY, (Nes Rock,) near mid-channel. 8hortlybefore the trial, the existence of a pinnacle rock 4 yards square on the upper surface, an<}12Ji feet below low-water mark, was for·the first time discovered and located in the precise region where the schooner struck. Held, that the schooner had struck upon the edge of the newly-discovered rock, previous ignorance of which was not a fault, and that the pilot having pursued the customary course, the tug was not liable for the damage: but, as the facts seemed to warrant the suit, the libel was dismissed without costs.
In Admiralty. Owen cf; Gray, for libelant. Beebe, Wilcox cf; Hobbs, for olaimant. BROWN, J. The libel in this case was filed to recover damages for alleged negligence in the pilot of the steam-tug James A. Garfield, in running the schooner James B. Ogden, which was in the tow of the
