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(DiBtriet OO'll'l't, E. D. South Oall'olina. February 8, 1887.)
One who voluntarily goes.tothe:Bsslstance of a Yessel in distress, with the intent and of aidin$ her. but who fails to arrive until his assistance has ceased to be necessary, IS not entitled to compensation as a salvor, nor is his 8eatu8 altered by reason of the circumstance that he participated in the e,fforts to save the vessel,if at the time, of ,arrival his assistance '\'VaS not required.
S. SAME-COSTS-UNNECESSARY, ASSISTANCE''-INTEN'1"-EFFECT OF. While one who goes to the assistance ola vessel in distJ,'es's,\ but who fails to arrive until the necessity for his aid has ceased to cannot claim as a salvor, the court will. in consideri'ngthe 'question of costs. have a due regard for the intent and hope of the libelant, and, if it appears that tbe efforts of the made with the intpnt and hope of il'endering 888istance, the costs will'becliv:ided. ' ' ,
" ;!MitilieU &: Smith, for claImant.
In Admiralty. Libel for salvage. :A.G. MagrdJ)", forlibelant;' ,
, SIMoNiON, J. On the morning 'Of tpe eighteenth Jaiiuary, 1887, about past 12 A. M., a fire broke ouUn the Bessarabia"then loading with cotton in the' port M9harleston, at Atlantic Wharves.' ,The ,steam-ship was bUiltin forw,ard was divided into two parts by, w09den bulk-heads. were in the ship, wh:en fire broke op;t, some 1,100 bales of cott()n. of theseb&les were.inthe ,Ciotnpartment aft, the remfitnder in'the compartment forward. 'SfuOke was seen cOD:"!ing out of thefo'rward hatch,auel, the fire was evi,ciep.tlyin the forward The ,alarmoffire was first given the' watch on the ,of the 'steltrn-ship, doming on deck, set his punwgoing, an.<l sent a stream pfwater down the forward hatch with the ship's hose.. Hesounqed no alarm from.his vessel, but the . 91} the. :wharf tosoun9 the city fire alarm; thus to summon theClty fire department. In, fi\l'e minutes this waS done. The fire r.espoilded at once, and were on the' scene of in five or six the'alarm was sounded , with five steam f\?ur , sbonastbe fire department \ii-rived, its chief took charge tbe 'fire,w1th, the fun concurrence of tbe master of the steam-ship, andilli a sh'ort'time had4;"and soon wards had 10, streams. of pouring the, forward hatch, frqm hose discharging each about '800 gallons of water a min'ute: This steady stream of water produced its natural result. The fire was at once under control, and after some time was subdued. After the fire was out, and
IReported by Theodore M. Etting, Esq., of the Philadelphia bar.
· THE BRANDOW.
the city Are department hnd,leftthe steam-ship, some fire appeared on severnl bales of cotton in'the second division of this fotward compartmehh' This was easily, the hold being full.of water. When the first alarm calling out the fire department was sounded, the libelant was at home in bed, abo].lt two squares from his tug, which was lying at Adgers' wharf. He was roused at once, dressed,went to the tug, and, her fires being lit, got up steam, and to the Bessarabia. Refixes 'the time at which he reached the steam-ship at a quarter to 1. It is immaterial to fix the exact minute. All of the witnesses agree that thetng reached the steam-ship just about or just after the pinnace bad 'been let down into the water. The pinnace was loweredin order that it :should go to the bow 01 the steam-ship, and carry a line from her to the next dock. This was done under the direction of, the chief of the fire (lepal'tmenti for the purpose of preventing the steam-Ship -from listing,becBuse of the quantity of water which was pouring into her. ItBputpoBEl wastokeep the steamship on an even keel. This ,was donew 'faciJitatethe extibguishment of the' fire. The tug, on coming bf the \Vroteduntil the pinilacewas clear of her. andthencalle<lto sOIlle'one: on the deck oftha· steam'"8hip to take her lines. 'l'his wais doneby,the carpenter, in the pl'esenceof the second mate. ·Thel8.tter hailed the tug l and asked why she came 'alongside, ando:j1I:glie'had ord-erstotowthe ship from the dock? No reply was heard td: this query. As soon as libelant, had made his tug fastjbe went,oriboard the Bessarabia, and, soon had the hose ofthetug passed into thel'l"OOamship. He did not ask for nor report himself to any officer 'oNbe eh:ipor. of the fire department. There 'is, again, some conflict of testimony upon the point :whether the .tug pumped. any water into the ship or'not I find tha:tthehose of the tug, with or without a nozzle, was:'passoo into the forward hatch, and did pour a of water,for 8Omemitnttes, between fi-Y;e minutes and 'a: half,hour, ·and that, BSBoon as this was, observed, the hose of the tug was taken away by theconcllr'ati\ion .of the maSter oftha "steam-ship andi the :chief of the ,fiTe' department; that there was nO ,reSistance to this on tbj;j ,part of thel1b'elarit. He remained alongside of the steam-ship ip tug· a short time afterwards, when he was ordered away. The tug was provided with hose about two to two and a half inches in diameter. $75 000 The value of the ship is, The cargo, 45 000
Of the cargo there was damaged by water, bales of cotton, By fire,
By water, slight, 35 This cotton has all been sold for $21,056 gross. Is this a salvage service? "The relief of property from an impending peril of the sea, by the exertion of those who are under no legal obligation to render assistance, and the consequent ultimate safety of the property t constitute a case of salvage. It may be a case of more or less merit,
according to the degree oiperi! in which the property was, and the danger and difficulty of relieving it, But these circumstances affect the degree of the service, not its nature." The Alphonso, 1 Curt. 376. One es'sentialelement in estimating the compensation for salvage is the degree of the danger from which the property was rescued. The BlackwaU, 10 Walt liThe Sandringham, 10:Fed. Rep. 573. In'ordel' then to constitute a salvage service, the property must have been in 'peril, arid must have ,been relieved by the services of the person daiming :salvage, either rendered alone, or in combination with others; and the of the property:must have been consequent is to say, a consequence of-such services, in whole orin part. The fact has been J01;1nd, that the·tug came alongside of the steam-ship after the latter had beenplaced, with full concurrence of her master, in the charge of the .city fire department; that this department was fully equipped for such service, ,having five steam fire-engines. on duty actively, and four in, redepartmenthadlthe fire undercontrol,and extinguished serve; it; that:the:,sbipwlts in nO'da:tiger, and that the fire·coulrl not spread in ,her cargo;: that the fire itself was:diminishing, and the vessel was being 'filled'with water at the rate of from 5,000 to 8,000. gallons per minute. . When the 'tug aTrived the ship and ca'L'go, to all intents and purposes, were already saved. Under these circumstances, the libelant could give no assistaooEl.None was needed. He could not have contributed towardsthe!safety'oftheship1andcargo, for when he reached the steamJship shewasrinder thecontrbl of the department, and her safety thus insured. : ''Fhere,can be no doubt; however, that the libelant went to the Bessambiawith the intent and hope of aiding her. Courts always favor intent of this/kind. If, when:hereached the steamer; he had communione of them, or with the fire department, cated with her, officers, or, ·tendering his aid, and if, when ordered away, he bad remonstrated, a different reSult ,might have, been reached. At aU events, he should not be punished,: 18Illlof the opinion that he is not entitled. to salvage; and that the libel should be dismissed, the costs to be' divided.
HOLDEN V. WHITING.
and others v.
(Oircuit Oourt, D. Ma88achu8etf8. February 18, 1887.)
EsTOPPEL-OF BANXBY REcORD OF VOTE-FRAUDULENT ALTERATION-SALE OF MORTGAGE.
The secretarY,and·treasurer of a savings bank fraudulently altered the , record of a vote/of the trustees authorizing him to discharge and release a]] mortgagesbelpnging, to the bank, by interpolating the word" assign, " and then assigned one of the mortgages for full value to A. Held, that the evidence showed that the transaction was a sale, and not a pledge; that the purchase W,$S made on A/s own account, and not on account of a national bank, as and that the purchaser acted in good faith and without notic,e C)f any fra\l.,d; that it was immaterial whether the signature to a certified copy <if thereoord received by the purchaser through the mail (sent. as he supposed, ,by the secretary in fulfillment of his promise to that effect) was a for&,eryj)f tb,e s,eqretl/-U's name or not; and that the purchaser obtained a good tItle by estoppelagainst the bank; following involving sim:ilarfraudu,:lent trans8ctions of the same official. ' ,
, In; Equity. 'BtnJ.t P., Butler ,and Solon Bam.crojt, for complainants. J. G.'.:6bboU; for defebdant.
COLT, J. This is a bill in equity brought by the receivers of the Reading Savings Bank ,against the defendant, to obtain the reconveyance of a number of mortgages claimed to belong to them as receivers of the bank. On March 22, 1879, the bank failed. It was discovered about this time that N. P.Pratt, the secretary and treasurer of the bank, had fraudulently disposed of a large part of the assetB. By a vote of the trustees, passed in 1876, the treasnrer was authorized to discharge and release all mortgages belonging to the bank. This· record was altered by Pratt so as to read" discharge, assign, and release." By means of this fraudulentinterpolation Pratt succeeded in disposing of a large number of The rights of purchasers of these securities have several times been before the courts for adjudication. In Whiting v. Wellington, 10 Fed. Rep. 810,Judge LOWELL held that a purchaser in good faith without notice Qbtainedatitle by estoppel against the savings bank by virtue of the certificate of its recording officer that a certain vote was found. 11pon its record. This :decision was followed in ann. v. Reading Sav. Bank, 137 Mass. 431, and in Holden v. Phelps, 141 Mass. 456,5 N. E.Rep. 815. The defendant.derived title to the notes and mortgages in controversy through John F. Kimball, president of the Appleton National Bank, and those for whom Kimball acted, and it is admitted that if Kimball, andJbose for whom he acted, had no title, the defense fails. The positio;u is taken by the plaintiffs that Kimball had notice that ;these securities "ere taken contrary to law, and that he is guilty of frarid. Assnming;that notice and fraud on the part of Kimball are charged in the bill" which the defendant denies, I can find no sufficient proof to sustain these allegations·. It is in evidence thatiduring the years 187·8 v.29F.no.17-56