Let a decree be prepared in favor of the libellant for the sum of $2'5, with interest thereon from the date ef filing the. lihel, (April 18, 1879,) each party paying his and their OWB eosts.
(Distrtct (JO'Urt, E. D. Michigan. October 15, 1877.)
1. MARSHALLDiG OLAIHS-SALVAGE-WAGEs.-In marshalling claims for payment from the proceeds of sale salvag:' is entitled to be paid ill preference to prior claims for seamen's wages. In this case the clairna were directed to be paid in the following order: (1) Salvage services; (2) seamen's wages; (3) claims for towage and materials, those of a later year ranking those of a former; (4) claIms under the state law.
In Admiralty. In marshalling olaims for payment from the proceeds of sale, salvage is entitled to be paid in preie-rence to prior claims for seaman's wages. In this case the claims were directed to be paid in the following order: (1) Salvage services; (2) seamen's wages; (3) claims for towage and materials, those of a later year those of a former; (4) claims under the state law. Reference having been made to marshal the claims the commissioner classified them in the following order: (1) Seamen's wages; (2) claims for towage, supplies, repairs, and services in pumping out the schooner, getting her off Stony island reef and taking her to Windsor; (3) claims for repairs and supplies furnished in the home port. To this report exceptions were filed by the parties who got her off the reef and towed her to Windsor, claiming they were entitled to rank as salvors, and should be paid in preference to those who had simply claims for towage, and materials furnished in the ordinary course of her employment. It seemed that in coming up Detroit river, with a cargo of coal, in November last, the schooner took the ground upon It reef, in 111e Detwit river, ..ear its mouth, a.nd
.l'ublielled on suggestion.
off Stony island, so-called. At the time she struck she was somewhat out of the usual channel, upon the American side, and lay in such a position that the current, and the swell of passing felly-boats, caused her to swing upon the rocks and injure her bottom. · . F. H. Canfield and Jas. J. Atkinson, for the salvors. Mr. Donnelly, for the seaman. George E. Halliday, for material men. BROWN, D. J. The only question in this case is whether the expenses of getting this vessel off Stony Island reef and towing her to Windsor are entitled to be paid in preference to the seamen's wages and the ordinary claims of material . men. This claim is not for salvage in the strict sense of the word. There was no immediate danger to the schooner; there was no peril i;ncurred by the salving vessel. The job was upon a contract for a sum certain, substancontract for towage services. Had the tially like any vessel been sunk at her dock, or at any other place where there was no reasonable probability of her suffering injury by remaininR, I should not consider the claim as entitled to any particular favor; but, under the circumstances, I think the vessel was in a condition to have salvage services rendered her. She was fast upon the rocks, was leaking badly, and, indeed, was full of water; passing vessels caused her to sway back and forth; she was also subject to the action of a strong current, and a change of wind to the south-east might have created sufficient sea to have broken her up. While, as before observed, the case is not one of strict salvage, inasmuch as the hiring was by the day, and no peril was incurred by the salving vessel, I do not regard this fact as material in determining the nature of the service. The case is not one of ordi?ary towage, and, if not towage, it is salvage. The term "extraordinary or meritorious towage" made use of in soma cases is misleading and of no practical importance. As distinguished from towage, salvage implies simply some degree of danger and some need of extraordinary assistance. As observecl by Dr. Lushington in The Reward, 1 W. Rob. 174, 177: "I apprehend that mere towage service is confined to
vessels that have received no injury or damage, and that mere towage reward is payable in those cases only where the vessel receiving the service is in the same condition she would ordinarily be in, without having any damage or accident." . In the case of The Westminster, 232, he adds: "The degree of the danger is immaterial, in considering the nature of the service, for if the cargo at all required assistance to remove it to a place of safety, the service then assumes the character of a salvage service." See, also, The James T. Abbott, 2 Sprague, 101 ; Baker v. Hemmingway, 2 Low. 501. In the case of The M. B. Stetson, 1 Low. 119, the court remarks: "Speaking generally, it may be said that the mere fact that. a vessel is aground, is enough to show that she is in a situation to have a salvage service." While this language was not intended to apply to a grounding upon a mud bank in a river or harbor,. which is an ordi. nary incident of navigation, I think it may be properly applied to any case where the grounding is attended with danger to the vessel, if she be suffered to lie there. The case being one of salvage, libellants are entitled to be paid first, even before the seamen whose wages were earned prior to these serVIces; since it is to their exertions that anything remains to which the lien of the seamen can attach. The Sel-ina, 2 Notes of Cases, 18; The Mary Ann, 9 Jur. !l4; The Panthea, 1 Asp. Mar. Law Cases, 133. The commissioners will amend the report by classifying the claims as follows: (1) Salvage services; (2) seamen's wages; (3) claims of tugs and material men, those of a later year rank. ing those of a former; (4) domestic claims.
NOTE.-See Dalstrom v. Schoon1fT' E. M. Davidson, 1 FED. REP. 259; P. II; W. Co. Y. Steam-Boat H. C. Yeager, Id. 285; Mayo v. Clark, Id. 735.
P. M. B.
BRAINARD and others .". STEAMER NARRAGANSETT.
(District Court, D. Connecticut. July 22, .1880.)
TORCH-REV. ST. t 4234.-The showing of .. lighted torch by a sailing vessel, upon the approach of a steam vessel during the night, required by section 4234 of thl) Revised Statutes, is not confined merely to those cases where the steam vessel is approaching a sailing vessel from astern.
Samuel L. Warne1', for libellants. Thomas M. Walter and Nathan F. Dixon, for claimants. SHIPMAN, D. J. This is a libel in rem to recover damages sustained by the schooner Silas Brainard, by a collision with the steamer Narragansett, in Long Island sound, on the morning of October 11, 1877. The schooner Silas Brainard left South Amboy on the afternoon of October 10, 1877, with a cargo, bound for Middletown, Connecticut, and about half-past 3 o'clock on the next at a point in Long Island sound nearly opposite Lloyd's Neck, about 20 miles easterly of Throgg's Neck, and about one-third the distance from Long Island to the Connecticut shore, collided with the steamer Narragansett, on her way from Stonington, Connecticut, to New York city. The schooner suffered serious damage. The story of the schooner, as contained in the libel, is as follows: At the time of the collision the tide was on the ebb, the wind was blowing a slight breeze from the north by west, and the course of the schooner was north-east, or nearly' so. She was properly lighted, and all of her lights were brightly burning. The mate, who was then in command, and the lookout saw the steamer coming up the sound, under a full head of steam, with the evident intention of passing on the starboard of the schooner, who kept on her course. The steamer was run foul of the schooner, striking her bowsprit and flying jib-boom; the wheel of the steamer strnck upon the schooner's starboard quarter, and by the of the blow the mainmast, the main and fore-rigging were broken, the rail, the bulwarks, stanchions, and So large part of thei11arrk