THE F. Y. MERRYMAN.

813

served this rule, the attention of those on the tug would undoubtedly have been aroused in season to stop or pass astern. She had no right to presume that the tug would see and avoid her if she failed to observe the precautions prescribed by law and usage. The negligence of the tug affords no excuse for the negligence of the steam-boat. A.s I find both vessels at fault, the libelant is entitled to a deoree for one-half the damages. Ordered accordingly.

THE F. I.

MERRYMAN. 1

(Diatrict Oourt,.E. D. NeJlI) York. AprillS,1886.)
SALVAGE-VESSEL WITHOUT NAVIGATOR AND VESSEL SINKING-SALVOR SAVING HIS LIFE IN ACT OF SALVING-AWARD.

The bark S., being in a sinking condition, and without boats, met the brigantine M., which had on board her crew alone, the master and mates having died, leaving no one capable of navigating her. The master of the S. thereupon abandoned his vessel, and, with all his crew, went on board the M., and brought her safely to port without further difficulty. Libels were thereafter filed for salvage against the M. by the master and crew of the S. The value of the M. and her cargo was $50,000. Held, that the service rendered to the M. by the master of the S. was a salvage service, and the fact that in rendering it he was probably saving his own life did not defeat his claim; $1,000 was therefore awarded him. But as the M. was in need of a navigator only, the services rendered by the crew of the S. were not salvage services, and they could not recover.

In Admiralty. Jas. K. Hill, Wing et Shnudy, for libelants. John E. Parsons, for claimants. BENEDICT, J. This is an action by the master and crew of the German bark Friederich Scalla, to recover salvage from the brigantine F. 1. Merryman, her cargo and freight. The facts are not in dispute. On August 20, 1885, the brigantine Merryman sailed from Bathurst, on the Gambier river, with a cargo of hides, for Boston, Massachusetts, under the command of Capt. Nickerson. She had no mate, her mate having died in July. Her crew consisted of the master, two seamen, an African shipped in Bathurst, and the cook and steward, a colored man. On the day after sailing the master was taken sick, and died on the first of September. On the same day the master died the second mate was taken sick, and on the eleventh day of September he died. Before dying the captain told the cook and steward, in case the second mate should be sick, to take command of the vessel, and steer between N. W. and N. W. by N., and he would probably hit some port in America. When the captain died. the cook and steward, whose name was William Henry Fill'bert, took command. He was no navigator, nor was there any person on board able to take
1 Report.ed

by R. D. & Wyllys Benedict, Esqs., of the New York !>ar.

314:,

FEDERAL REPORTER.

an observation. The bark was steered as the captain had directed, and on the twenty-first day of September the sails of a bark were discovered ahead, which proved to be the German bark Friederich Scalia. As the vessels neared each other an ensign was hoisted on the Merryman, and about the same time it was discovered that the Scana had also a signal flying. When within hailing distance the Merryman reported herself as 32 days from Bathurst, and in want of a navigator. The ScaUa reported herself as 50 days from Stettin, and without boats. A boat was sent to her from the Merryman, when it was ascertained that the ScaUa had been disabled on the ninth of September, and was at the time in a sinking condition; that she had lost all her boats, and the master had been desirous of aban· doning her for several days. Thereupon the master, the mate, and 10 mE:n, comprising the crew of the ScaHa, left their own vessel, and went on board the Merryman, taking with them, in five trips of the boat, their clothes, nautical instruments, and some provisions. The master of the ScaUa then took command of the Merryman, altered her course, and proceeded towards Boston. When off New York, being somewhat short of water, it was thought best to go to New York in· stead of Boston, and on the seventh day of October she arrived in New York, having met with no disaster or bad weather, and the'vessel and her ca.rgo being in good condition. From the time the mas· tel' of the Scana took charge of the Merryman, most of the ship's work was performed by the mate and sailors of the Scalla. Two of the crew of the Merryman were able to work, and took turns at the wheel. The cook and steward did little or nothing, being worn out. Out of this state of facts has arisen this claim of the master, mate, and seamen of the Scalla to be paid a salvage compensation for their services on board the Merryman. It cannot be doubted that a salvage service was rendered to the Merryman by the master of the ScaUa. The Merryman was in dis· tress for want of a navigator; he supplied that want. His presence on board changed the condition of the Merryman from a situation of considerable peril to one of comparative safety. By means of his knowledge and skill the Merryman reached port, and without loss to her owners. I clitn see no ground on which to deny him a salvage reward for the services he rendered. It is true that saving his own life was one, and perhaps the principal, motive which induced him to leave his own sinking vessel and join the Merryman; but it has seve eral times been held that the existence of such a motive affords no ground for refusing salvage reward. The TWQ Friends, 2 W. Rob. 349; The Merrima,c, 1 Ben. 201. . The contention on behalf of the claimants is that instead of fur. nishing a navigator to the Merryman, the entire crew of the ScaHa, for the purpose of saving their own lives, went on board the Merry. man, and no individual was separately designated to render service. By their own arrangement they constituted a. unit. Treated as

THE F. I. MERRYMAN.

815

such, the service rendered by the Merryman to all was more than the equivalent for the services rendered to the Merryman. But surely the master of the ScalIa was, by the attendant circumstances, designated to render to the Merryman precisely the services she needed, namely, those of navigator and master. These services he did render, and in so doing he assumed responsibilities if not more serious than those from which he escaped, certainly different, but which he was under no obligation to assume. It seems to me to be no answer to his claim for compensation for this service to say that the services rendered to the Merryman by others who went on board the Merryman were more than compensated by the saving of their lives by means of the Merryman. Besides, the question is never a mere question of equivalent for services rendered. When a salvage service is shown in a court of admiralty, it is the duty of that court to see that more than an equivalent is given for the services, and this upon grounds of public pojicy. The rendition of a salvage service to the Merryman by the master of the ScalIa entitles him, therefore, to ask of this court a salvage compensation, whatever may have been the benefit received from the Merryman by others of the crew of,the Scalia. He was nine da'ys in command of the Merryman. He met with no storm or unusual circumstances. To say the least, his anxieties were diminished, rather than increased, by taking charge of the Merryman. The value of the Merryman and her cargo was some $50,000. I think the master should be paid a thousand dollars as his reward. In regard to the other persons, 11 in number, who went from the Scalla to the Merryman, and who, under the direction of the master of the ScalIa, navigated the Merryman to New York, the case is dif· ferent in this: that while they rendered useful services, and relieved a small crew, no doubt much worn by labor and anxiety, their services in no way differed from the services they would have performed on board their own vessel; certainly they were no more important or arduous in character. These services were not necessary to the Merryman, for her Grew, with the aid of a navigator, would have brought her in safely. Nor were these services requested. The servo ices of a navigator were required, and only the services of a navigator were asked of the ScalIa. The services of the others were rendered voluntarily, because, not daring to remain on their own vessel, they obtained permission to come to the Merryman. These services were not those of salvors. They were not necessary to the salving of the barl;:, They were not requested by the bark's crew, who remained in possession of their vessel. They were accepted because voluntarily tendered, and they must be deemed to have been rendered as an equivalent for the benefit they received Tnere must therefore be a decree in favor of the libelant Augustus Hoffschild for the sum of $1,000, and the costs of tbis action. As regards the other libelants, the libel is dismissed, without costs.

mn

_ _

·

816

FEDERAL REPORTED.

THE SWALLOW. l

ALLEN V. SEVEN HUNDRED AND EIGHTy-FIVE TONS Oil' CoAL.

(District Court,' E. D. New York. March 29, 1886.)
DEMURRAGE-DESIGNATION OF WHARF-IMPROPER PLACE.

'fhe ship Swallow, laden with coal, arrived in New York harbor, January 29th. Her charter-party provided that she should discharge at a wharf designated by consignee, "not above East-river bridge." The consignee designated a wharf above the bridge, and where there was not sufficient water for the ship. This place the ship rejected, and, it being dangerous for her to remain in the stream on account of ice, she went to Boston wharf. On February 12th, no other place having been offered mean time. after notice to the consignee, she began to discharge at Boston wharf. On the following day the consignee sent lighters, into which the rest of the coal was delivered; and on February 22d the discharge was completed. Twenty days elapsed between the time that she was ready to discharge and the time when the coal was all out. At the rate fixed by the charter, she could have been discharged in eight days. Held, that the ship was entitled to recovel' demurrage, at the charter rate, for twelve days.

In Admiralty., Wilcox, Adams et Macklin, for libelants. Souther « Steadman, for claimants.
BENEDICT, J. The case presents a question in respect to demurrage, between the owner of the ship Swallow and the consignee of a cargo of coal, laden on board that ship at Leith, in pursuance of a charter-party. 'rhe charter-party contained a provision that the coal should be delivered in New York according to the bills of lading; and also provided that the consignee of the coal at New York should receive the same "from along-side the ship, not above East-river bridge, at a wharf designated by them; ship to discharge at the rate of 100 tons per working day during the regular custom-house hours, sufficient depth of water being provided along-side the wharf, the ship paying wharfage, and so end the voyage; demurrage, if any, to be paid at the mte of four pence sterling per ton registel' per diem." The bill of lading provided for the delivery of the coal at the port of New York, the danger of the seas excepted, to Perkins & Co., on their paying freight for the goods, with all other conditions as per charter-party. The charter-party_ also gave the ship the privilege of loading, for the ship's benefit, a quantity of paper stock above the coal. The ship arrived in New York harbor, January 29th. The consignee was on the same day notified of her arrival, and then designated the foot of Fourteenth street as the place selected for thEl landing of the coaL The place thus designated was not in conformI

Reported

P. D. & Wyllys Benedict, Esq., of the New York bar.

THE SWALLOW.

317

ity with the charter, because not only was it above the East-river bridge, but the bulk-head had not sufficient water for the ship. The place was therefore rejected, and as at the time the ice running in the harbor rendered it dangerous for the ship to remain in the stream, she proceeded to Boston wharf, where she was duly berthed on January 30th. There she discharged the paper stock, the same being all discharged by February 4th. No other place for the discharge of the coal having been designated by the consignee, nor lighters sent to remove the coal from along-side the ship, on February 11th the discharge of the coal at Boston wharf was commenced, after notice to the consignee. On the next day the consignee sent lighters, into which the rest of the coal was delivered along-side the ship, as she lay at Boston wharf. On February 22d the discharge of the coal was completed. At the rate of 100 tons per day, 8 days would have been used to discharge the coal. The time that elapsed between the time when the ship was ready to discharge at Boston wharf and the time when the coal was all out was 20 days. Allowing 8 days of this as the time to be used by the consignee in receiving the coal, leaves 12 days of detention, for which the libelant claims demurrage at the rate of $97 per day. It has scarcely been contended that the ship was bound to go to Fourteenth street; not only was it above the bridge, but there was not sufficient water. The main ground upon which the claim to demurrage is disputed is that the designation by the consignee of Fourteenth street as a place of discharge gave the ship the right at once to discharge the coal on Boston wharf, and that her delay up to February 11th to commence to discharge there was caused by her own procrastination, and not by the consignee. But it is to he considered that it was known to all that the coal was not intended for general use, but for the use of the gas company, at Fourteenth street. Everyone knew that Boston wharf was not where the coal was wanted. The ship, therefore, had the right to suppose that the consignee would either send lighters to take the coal from the ship at Boston wharf, or designate some other place for the discharge. No lighters were sent to the ship until February 12th. This was not because of ignomnce as to where the ship was, but the time was consumed by the consignee in an effort to induce the ship to go to Fourteenth street. The consignee having no right to require the ship to go to Fourteenth street, if unable to designate another place of discharge, should have sent lighters to receive the coal along-side the ship at Boston wharf. By so doing the consignee would have received his coal without delay to the ship. The omission by the consignee to send lighters was for the aake of taking the chance of inducing the ship to go to Fourteenth street. The consignee having taken the chance, and lost, the delay that resulted should be at his expense, and not at the expense of the ship.

318

FEDERAL REPORTER.

My conclusion is that the libelant, Mary E. Allen, is entitled to recover for 12 days' demurrage. at the rate of $97 per day, and for the same reason the libelant is entitled to recover the freight without deduction for wharfage or lighterage.

THE GIULIO. 1

(Di8trict Oourt, E. D. New York. December 15,1885.)
BOTTOMRY BOND-HypOTHECATION OF VESSEL-NOTICE TO OWNER-ApPROVAL.

Where the master -of l\ bark at Tarragona executed a bottomry bond, binding the vessel and freight for advances and necessary disbursements, but it appeared that, when the bond was made, the owner was within reach of the master by telegraph from Tarragona: that a letter would have been received by him in five days; and that he was in actual communication with the master while the vessel was at Tarragona, but the latter never notified him of his intention to borrow money on the credit of the ship, or obtained his approval: held, that the contract, so far as it affected the vessel and freight, was void.

In Admiralty. Wilcox, Adams cf; Macklin, for libelants. Goodrich, Deady eX Platt, for claimant.
BENEDIOT, J. The action against the Italian bark GiuIio, and her freight money, is founded upon a written instrument, in the words and figures following:

"I, the undersigned, master of the Italian bark Giulio, now at Tarragona, loaded with oil and almonds, and ready to sail for New York, have received from Messrs. McAndrews & Co., of this city, the sum of $836.72, claimed for advances and necessary disbursements on said vessel to enable her to proceed on her voyage; which sum I promise to pay to the said Messrs. McAndrews & Co., or to their assigns, or to their order, ten days after the arrival of said vessel at said port of New York, or any other port at which the present voyage may end; and for the payment of said sum I hereby bind my vessel and owners. and I assign and transfer so much of the freight money as may be necessary, and authorize said Messrs. McAndrews & Co., their assigns and transferees, to receive and collect such freight money at any port of discharge. P. MARTINGARO.

'''l'arragona, second August, 1885."

The person by whom this instrument purports to be signed was the master of the bark, who possessed an imperfect knowledge of the English language, in which the instrument is written. One of the defenses set up is that the master never executed the instrument, and that his-name attached thereto is a forgery. Upon this point I incline to the opinion that the signature attached to the document is genuine, but I am far from believing that the contents of the document were correctly stated to the master, or known to him when he signed it.
1

Reported by R. D. & Wyllys Benedict, Esqs., of the New York bar.