Sarah C. Brown, while being towed alongside the tug Dentz, and while passing Blackwell's island on the night of July 12, 188B. The night and tow were ahead of the was clear, and the tide was flood. The . Continental, as the came up to Blackwell's island and on a course to pass between the island and the Long Island shore. While passing the tow on the port side, the canal-boat on the port side of the tow was struck by the Continental. Being the following vessel, and at the time passing the tow abead, the burden is on the Continental to show that the collision was not caused by fault on her part. The defense is set up in the answer that the failure of the canal-boat to display a light left the pilot of the Continental in ignorance of the presence of a canal-boat on the port side of the tug, and so caused the collision. The weight of the evidence is that the canal-boat had a light, of the captain, pilot, and quartermaster of the Contiand nental is that the collision was not caused by the absence of a light on the canal-boat. The answer also mentions a failure to port on the part of the tow, and giving an assenting reply to the signal of the Continental, as acts of negligence on the. part of the tow. These defenses are also disproved by the witnesses from the Continental. contended for on the trial is a different and new defense, The not alluded to in the answer, namely, that the tug crowded over to Blackwell's island, and thereby caused the collision. Considering the statement of the answer, this defense does not demand much attention.. It is not credible that the tug, after receiving and replying to the signal of the Continental, indicating 'an intention on the part of the Continental to pass the tow on the port side, would then, without reason, bear to port. Plainly, no such action on the part of the tug was thought of when the answer was made, and the testimony to that effect given at the trial fails to satisfy me that such was the fact. The decree must be for the libelant, with a reference to ascertain the amount.
THE CHEROKEE.! THE MONARCH. YOUNG'll. THE CHEROKEE
(DiBtrict Oourt, South Oarolina. June 6, 1887.)
BAi.VAGE-FoRFEITURE FOR :MiSCONDUCT.
To cause a forfeiture of salvage, there must be evidence of misconduct on the . p anof the salvors. The thoughts or desires of salvors are immaterial, unless their conduct be intluencedthereby. ThOtllth, ill view of the value of the services of the salvors upon final hearing the boila originally demanded appear grossly excessive, the court will consider
lReported by Theodore M. Etting, Esq., of the Philadelphia bar.
all of the circumstances which attended its taking, and will not decree a for- , of salvage in 'Consequence. unless it be made to appearthil.t'it'was the' lDtention of ahe salvors to thereby harass or oppress the claimants, or to en" force pompliance with an exorbitant; demand. ' 8. ,
Whim a,vessel is on 'fire along-side of a whRrf, a salvor disobeying either the orders of the master of the vessel, or the chief of the fire department, will be guilty,?f misconduct.
SAME.,--A1d;OUNT OF COMPENSATIoN. "
'Though the principles upon wMch salvage compensation is regulated are well known, it is almost Impossible for different minds,to contemplate the same case without forming q.lffel\ent copclusions with regard to compensation.
, .. - .:._. ,
Mitchell&: ,smith, for
. Bryan &:Bryan, for respoI;ldent.
SIMONTON;J., This is a libel for salvage. The Cherokee Is an iron ste:,J.m-ship of theClyde'Lihe, between Charleston and New York. She Is built in six cO'lllj:Ja.rtments, divided bY' iron bulkheads from t:he sJdnof the ship to the main deck. She has a one compartment forward, and another ,for freight. The lattercompa).'tment has , a 19wer hold just over the bilge;andl:i hold between 'decks; pn, Feb.ruary , 18,87, a.t9:A M.,sheleft.h er. dock. ,on her voy.. . . age to New York., When she the stream, abqut 200 yards from was reportea in thinkher dock, in,g that he could not' go bac1(tp"the city afire, cast anchor, and began to use thel!-ppliances against fire on his ship, with which she was equippedu'nder section 4470, ;l: Rev. St. The Monaich" a powerful steam-tug; with a fire pump,.w,ent t() herassistance. Soon afterwllrdsthe Cherokee, under her own stearn, towing the Monarch', went back to her dock, and was at once charge of the city fire department. The hold was filled with water, and the fire extinguished. The vessel is worth $200,000;' the cargo, $66,500; freight, $6,000. Is this a case of salvage? The fire was in the lower after-hold, out of sight, among cotton; cotton goods, and other combustible materials. The compartment was in an iron vessel, with iron bulk-heads, fireproof. But the hold itself was fire-proof. The deck above it was of wood, except for a space of a few feet around the hatchway, which was sheathed with iron. The hatchWtlY, seven and one-half feet long by twelve feet wide, was covered by a hatch of wood, divided into six movable parts. The hold between decks, just over the lower hold, had in it, as we have seen, cotton in bales, oranges in wooden boxes, shingles and lumber. Above this hold, between decks, were the saloons, berths, and other accommodations for passeI;lgers, all of wood, anQ above the upper edge of the iron bulk-heads. A cotton fire is always dangerous; inscrutable, treacherous. In the hold ,of a ship it is the more dangerous, aft its exact locality, extent, andpfogress, are uriknown. The master of this steam-ship, with all his appliances for controlling with the tug Monarch and her appliances fire in active operntion, along-side and in use, as soon as he found that he could return to his
at once weighed anchor, and put himself under the ,protection of the city fire department, which had been summoned to his aid. The services contributed by those under no legal obligation to render them, in saving property threatened with destruction on navigable waters, are salvage services. The Oregon, 27 Fed. Rep.872; McConnochie v. Kerr, 9 Fed. 53. In this case the tug fulfilled all the conditions of the definition. The serVices were salvage services. Has she lost her right to compensation for th,ese services by the misconduct of lfer master or of her owner? It appears that some days after the fire, in a conversation with Capt. Vogel,' who had been instrnmen,tal in bringing the steam-ship Back' to her dock, the libelant said to him: "If you had not come aboard, we wouldhava had a picnic." Holborn, the master bf the tug, in giving hisiestithony on thestandj admitted that in his heart he wished that the. steam"ship, instead of going back to the dock, had gone upb? h'ard bottom on the There is no evidence that either of them, by word or act, enileavored or persuade tbe master of the, steam-ship notto return to the dock. Men shOllldbe judged by their There can be no doubt that both of these persons would na.ve been glad' to save the ship witn01it aid, and to earn largEl salvage DOlllpEmsation thereby, anq. that this thought was in their minds. But unless they gave expression to thistliicnight bycondllcti by actions to carry it out, they cannot be said'to be guilty of misconduct involving 10S8 of compensation for any aid furnished. ' ' Again, it is alleged that the masterdf the tug was guilty of miscon'duct in that he resisted and disobeyed the order of the chief of the fire department, and the master of the Ship, to take his hose away.. The Monarch having been sought for by Mr. ,Holmes, of the Clyde line, and told that the Cherokee was afire, wertt along-side, and passed up her hose, whichwete put down the trunk of the hatch. She began at once, to pump. The master ,did not report to the of the steam-ship or anyone else. All the officers of the ship, however, saw him,his tug, and his hose, and knew what he was doing. One othet tug (the Maryland) had put in her hose and tried to pump. She was dismissed summarily. The Morgan offered aid; it was refused. Nothing was said to the Monarch by way of remonstrance, protest, or order. She accOmpanied theship dock, lashed to her. As theyreached the wharf the chief'of the fire department came aboard, and ordered the hose of the tug out. Holborn refused to do this unless the master of the steamship required him to do so.. ::'n cases oNire aboard ship at the wharves of thi-s city, collision a.lways arises between the fired,epartmentand the masters of tugs seeking to he salvots,. It is important to settle the question. When a ship is threatened with destruction by fire,and her officers and crew are abOard of her, in charge, anyone proffering salvage services must render them under the control and direction of the master, who has the right to reject them ifhe chooses. The Susan, 1 Spr. 502; Williams & B; Adin. Jur; 148,'note q; McLachlin's Treatise, 617; The'(J/wuteau,
5 Fed . 463. The cannot intrude themselves, or, having pemlissionto come on board, cannot take charge of the ship. The Dodge Healy,4.Wash.C. C. 656. When such avessel is at a wharf, and the fire department is called out, and comes to her assistance, the chief of the department has control ofall means used in repressing and extinguishing the fire. His duty is to protect all the adjacent property from fire. He is at the head of this branch of the city polIce. His action cannot be disturbed or set at naught by anyone. Digest of City Ordinances, § 306; Tlw Huntwille, MAGRATH, J., quoted in Cohen, Adm. 75, 76. He does not supersede the master of the ship, nor can he rescind any prior contract the ma.ster may have made. He controls and directs an appliances which. the,department has, or which. the ship may have, or may have procured, by which it is sought to subdue the fire. It makes no difference to the chief Whether the fire originated at the wharf, pr whether the ship, being away from it, came to it, properly or improperly, lawfully or not. The fact. of: the fire at the wharf, endangering adjacent property, makes it his duty to suppress it; gives him authority to direct in its suppression.: PJu Mary Frost, 2 Woods, 306. .If the master disputes thi$, his. only alternative is to go frOm the city. So long as the ship is at the wharf the fire department must control all the means used in P1Jtting the fire, out. Disobedience on the part of the tug, of the prders of the ,master or the chi,ef, would be misconduct. There conflict in ,the testimony on these points. The best witness, however, of his orders, is the Ghiefhimself. He says that he ordered the hose Of the Monarch out I ,and received the reply that master of the had employed the tug, he asked the master.if this was so. Receiving a reply in the affirmative he did not renew \lis order, as he had no right to do so. In other words, he recognized that he had no right to disregard the me/tns the ship was employing to the common end, unless they interfered with, interrupted, or counteracted his efforts. , The testimo,ny is also conflicting .upon the point ofq.isobedience to the .master9f the steam-ship. He says that when the chief came aboard, a:nd gave his ()rder that the hose ofthe tug go out,he confirmed it. The master of the. contradicts this. Others give testimony on both sides. We must rely on the undisputed facts which appeal' in case. When the shipwas,in the stream, the tug Maryland putherhose aboard, was ordered off and dismissed. So, the tug ,Morgan tried to get in, and was refused. When the Cherokee and first reached the wharf, the fire department put only one hose aboard. While the Cherokee was moving'withthe sbip the fire engines could not girl at her. The Monarch still accompanied her. When she got finally in, and all the hose of the city were in action, the chief told the master that he had the fire under control, and that the no longer needed. .1'he master then gave the ordel'.to take out the hose, and it was at once and with. out question obeyed. ,In other words, when the master of the Cherokee gave 'an or,der he obeyed, he enforced it. The impression made at the heaJ.:ing of the testimony has. deepened by a careful exami-
nation ofthenotes of the stenographer, that the aid of the Monarch was sought,wasaccepted, and was used. It was dispensed with finally when the fire department was in position to use all its engines on· the fire. Another; and a more serious, charge of misconduct, is that, when libelant made his claim he was evasive and unreasonable, and that, seeking to compel an extravagant amount, he tuok advantage of the absence of the court in the Western district, and the necessity the passenger ship Was under of filling her Bchedule time. and demanded an enormous stipulation for ship and cargo. A salvor who takes advantage 'of a foreign ship in a foreign port, away from her friends and home credit, pressed by necessity to leave the port, and who, under these circumstances, demands extravagant salvage compensation, and seeks to enforce his demands by requiring an exorbitant bond, may well be accused of piratical conduct. He deserves reprobation and punishment at the hands of the court. It is greatly to be regretted that we are deprived of the advantage of the testimony in open court of one of the chief actors in this matter. So far 'as the evidence discloses, the facts are these: An interview took place on the day of the fire between the libelant and Mr. Courtenay, of the Clyde Line, with whom was Mr. Eager, a general agent of the line, and the master of the steam-ship. This interview was in the office of Mr. Courtenay · Libel-' ant was asked what was his charge for the services of his tug. The ship was then full of water in the lower after-hold.' The cargo was not known. The loss· was not and could not then be ascertained, nor could the amount of assistance rendered· by the Monarch be measured. Libelant replied that he:eould not say, was not prepared to say, and that he would consult his tug-master, and see Mr. Courtenay the next day. This was recognized as a propel' thing to do. The next day libelant again saw Mr. Courtenay. Mr. Paine heard a good in this interview. He was within earshot, in an adjoining room. Mr. Courtenay tried to get libelant to state his charge. To this he gave evasive replies. No estimate was made by either side in the shape of a definite offer, except that Mr. Courtenay thought that $300 or $400 was enough. To a question from him, what libelant charged for pumping, the latter replied sometimes $10, sometimes $20, sometimes $5,000, an hour. Libelant, in his detailed account of this interview, says that Mr. Courte-' nay disclaimed any authority to settle, except under instructions from Mr. Clyde,and advised negotiations with him. Two facts are clear: 'fhe parties were never in a position to agree.. One claimed that he had rendered salvage service, and held the liberal idea of its value salvors always hold. The other did not think the service higher than pumping. For this he was willing to pay liberally, but not according to the popular measure of salvage. The otheTis that no tender of any sum was made. A resort to the court was inevitable. The negotiations began as to the amount of bond to be given for ship and cargo. The libel prepared' stated no sum definitely. The court was over 240 miles away. The amount of the stipulation was a matter of consent, as the ship wanted to go. The action of the marshal was stayed until this
could be fixed. Mr. Courtenay went with libelant to the office oHha attorney of the latter. The amount of $40,000 was first suggested for the bond, but was immediately withdrawn, and$20,000 was asked. 'l'his was indignantly and peremptorily rejected. It was finally given, as the ship had to go. This bond was a large one, especially in the view .now taken of the case; unnecessarily large. But we had the advantage of a great deal of testimony. The construction, of the ship, her complete appliances, the stowage of her cargo, the character of the the conduct ofheri)fficers aI;ld men,are now known as they were not known before. This has. been reached by skillful, laborious, and effort. Our question is, was demand forJhis bond, under,all the circumstances, such auact of misconduct as qa,l1s for by the court? money was the payment;ofwhich was to be, enfor.ced by the the bond., The reaUia1?pity on the bond wa,s payment I;)f auch sUtj). as the should ',The bOnd not demanded from ,a stral1ger, .;without friends or credit in this' port, who would be compelled to seek. and to pay for his' sureties. The owners of this vessel ','have." flS has been well said by their themselves in port." Not only are they in the best credit; they are backed by the strongest influence" social and in this city. No sureties were asked or expected. The bond covered cargo, as well as the ship. The cargo could be held, to protect the bond. A decree of salvage could not be against the ship except:to the extent of its proportion. Perhaps the testimony would disclose that the ship was fire-proof, and that the cargo alone was salved. The cargo was of value unknown. It filled, however, a large ship. If it left the port with no bond, or an insufficient bond, all lien on it was gone. Others might put In claims. The chief of the fire department had used expressions which indicated some claim. The Maryland had hopes. Perhaps the Morgan would intervene. The bond took . theplaceofthe ship and cargo. Considerations like these, with testimony of the libelant that he had declared his willingness to accept the bare assurance of Mr. Courtent1-y withqut more, with the further fact that the whole matter was supervised by able and honorable proctors of this court, sausty me that the bond was not demanded in. order to· harass or oppress, 'or to force compliance with an exorbitant. claim for salvage. And this would be necessary to make out misconduct of a character grave enough to involve forfeiture of salvage. Newson,Sa,lv.317; The CharleQ Adolphe, Swabey. 153; Williams & B. Adm. Jur. 147; The Rialto, 15 Fed. Rep. 124; The AliUlka, 23 Fed. Rep. 615; The Leipsic, 5 Fed. Rep. 108i Cohen, Adin. 288, 289. / What compensation shall be a,warded the tug? No question seems to perplex judges ,more than the amount to be awarded in salvage cases. The inquiry not what the services are worth, but is a generous award,' which would not only encourage the salvors, but aU others to do likewise. Dr. Lushington says in The Princess Helena, 1 Lush. 190, that the court "countenances and favors the meritorious class of persons
known as C salvors.'" But when we examine the cases'we find the widest range, from extreme generosity to parsimony, in the awards. As Chief Justice MAR8HALL says in The Sybu, 4 Wheat. 9&: lC Itis almost ible that different minds contemplating the same subject should not form different conclusions as to the amount of salvage to be decreed." No fixed rule existing, we look to general propositions as a guide. In The Suliote, 5 Fed. Rep. 99, Mr. Justice BRADLEY, with characteristic ness and terseness, states the principle: "Salvage should be regarded in,the light of compensation and reward, and not in the light of prize. The latter ismore like a gift of without regard to loss or sufferings of the owner, who is a public enemy. is the reward granted for saving the property of the ShO'11d not 'exceed what is, necessary to insure the,tnost prompt. energetic. and daring efforts of those who have it in their power to furnish aid and suceor.Anything beyond this would be foreign to the principles and purposes of salvage. Any1;hing short of this would not secure its objects. Thecoufts should be liberal, but not extravagant. . Otherwise that which is intended t() be encoura,gewent to rescue propertY.,from destruction may.be a tempt&tion to subject it to PElril." Mr. Justice CLIFFORD in The Blackwall, 10 Wall. 1, lays d(jwnsix points to be considered in,getting at an award in these cases. In The Ohetah, 19 Law T. (N. S.) 621, L. R. 2 P. C. 205, they are stated thus: "In estimating the value of salvage services, circumstances, among others to be considered, are-First, the degree of danger to which the vessel posed, and from which she was rescued by the salvors; second, the mode in which the services of the salvors were applied; third. the risl): incurred by the salvors in rendering these services." . We will follow these, and apply the facts of this case to them. The danger to which the ship was exposed, and from which she was rescued. The Cherokee is a steam-ship built of iron. The fire was in a water-tight compartment, into which' water, the most efficient agent ip. extinguishing fire, could be poured and retained. She was thoroughly equipped ,with steam and waterapparatns in full operation in the ity of the fire. She was fully manned, and under complete control. Her officers and crew were on the alert and efficient. Her engines were working order, and working, protected from the fire by fire-plloof bulk-head. She had on a full head of steam, 130 pounds pressure. She was in smooth water, on a. calm day, in a river, a few hundred yards from her own dock, within a few minutes' call of an efficient fira department, subject to the orders of her agent, who is the mayor of this city. The fire was in her lowest hold. It was in cotton, but it was sDlJthered, smouldering, progressing slowly. She was in danger, but not in imminent, pressing, immediate danger. Going to the wharf under her own steam, her hatch was permanently opened,and her hold filled. ThEl operation was simply mechanicaL In her compartment forward she had an inflammable and highly dangerous cargo. !twas, however, over 100 feet from the fire, separated by the engine-room and four fire-proof iron bulk-heads. So long as the fire could be kept in
cargo was perfectly safe. When the ship got to the wharf, and the fire department took charge, she was safe beyond peradventure. The mode in which the services of the salvors were applied. The tug was at the head of a Wharf', about to dock a schooner. Mr. Holmes, in the employment of the Clyde Line, running up, informed her master that he had come for the Monarch; the Cherokee was on fire. At once, without delay or further inquiry, ne left the schooner, went at full speed to the Cherokee, preparing his hose and pump on the way. Getting along-side, he put ill his hose and pumped at once at the locality of the nre. It was no time to stop or to report. An agent of the line sent word that the Cherokee was afire. The message itself involved the structions to aid her, and at once: ,The tug is a powerful machine, with a pump whose capacity, under favorable conditions, is 2,500 gallons a minute, through eight hose. On .this occasion she used three (3) hose, in sections 100 feet each. These hose ran over the combing of the hatch on the hurricane deck into the hold between decks over the hatch of the lower after-hold. There is much conflict of testimony upon the point whether these hose ever played directly into that hold. In the view taken of this case, this is not of decisive importance. The hose of the Monarch were put into the ship down where the ship's hose were. The master and the crew of the tug did not go down to the locality of the fire. The officers and crew of the ship were there in charge and directing. The Monarch gave them ber hose and her water. If these were directed to and played 'on the cargo and deckof the between-deck hold, the wood of the hatchan'd the deck and the et.!J'go stored there were kept wet, and, in case of an outbreak of the fire, would check it. The water thus poured on them passed through scuppers into the bilge below the lower filled it, and came up into that When the ship reached the dock a quantity of water was 'found in the hold. So, whether the stream from the Monarch went directly into the lower after-hold through the hatch,orindirectly through the scuppers and the bilge, it was of great service. Filling the hold was the surest method ofiputting ont the fire, the only method finally adopted, and adopted successfully. These services the tug rendered;' aiding the ship's appliances until the fire department took charge, and she accepted her dismissal. , In The Baker, 25 Fed. Rep. 774, Judge WALIJACE says: "'Neither value of the property imperilled, nor the exact quantum of llerviceperformed, is a controlling c6'nsideration in determining the compensation to be made. The peril, hardships, fatigue, anxiety, and responsibility enQOllntered by: the sal vors in the particular case, theskill and energy exercised '!ll. them, the gallantry. promptitude. and zeal displayed, are all to be consIdered." ..
the lower aftEir-hold, and 'did: not blaze out, this part of the
This nsto the consideration of the risk inc,uried brthe salvors. The fim WitS'sfuouldering in the cargo in the lower The ship was not afire. 'The tug was at notiineii:t'lany danger. Nor did her owner, officers', incur any danger going 'to the ship, going aboard of her, or remMning on her deck. They did not assume any direction of
THE JAMES A. GARFIELD.
the means used to put (lut the fire. They remained on the deck. They encountered no hardship or fatigue. They were unCierno responsibility. They had no ,opportunity ofdisplayiD:g any skill or gallantry.They did exhibit, in a very commendable' degree, tude and zeal, all the more commendable as the steam-ship was full of passengers. But all that they did, all that they could do under the circumstances, was to furnish their pumping apparatus and their water, aiding the pumps and the steam appliances of the ship, Taking all these matters into copsideration, and estimating the salvage service thereon, giving the ship the benefit of her own construction and appliances, and taking .into account the services of the fire department, for which no claim has been made, but which, nevertheless, inure for the advantage of the ship, (Tft,eBaker, 25 Fed. Rep. 773,) I award to the libelant, as the share of the services of the Monarch therein, the sum (If $650. The costs, except the cost of the stenographer, for which provision has been already made, will follow the award. Let a decree be entered ip conformity with this opinion.
THE JAMES A. GARFIELD. I
. TEBO 11. THE JAMF..8 A. GARFIELD.
(District Oourt, E. D. New York. June 15, 1887.)
&Lv...G....TuG AT WHAR1l'-FlRE.
The tug T. discovered afire in the engine-room of ,the tug G;, while the "atter lay at a wharf. and, proceeding to her. extinguished it. While the T. was on her way to the G., the watchman on the pier discovered the fire, .and summoned the fire department. Held, that the service was a salvage service, but that the G. had not been saved from total dllstruction on account of the summons sent to the fire department. Three hun-dred dollars was allowed as salvage award.
In :Admlralty. John J; AUen, for libelant. Edward H. Hobb8, for claimant. . BENE;DlCT, J. The services'rendered by the tug-hoat Tebo in extinguishing the fire that had broken out in the epgine-room of the James A. Garfield, although unattended with any risk to life or risk t() the Tebo, were salvage services, because they were services rendered voluntarily, to reHeve the James A. Garfield from a situation .of peril, and they were successf?!. , The fire was by those on the Tebo before 1t ,had beeridiscovered, by any othl'lrperson. They at once proceeded with the Tebo to thE! Garfield, and 9ypromptly pouring astream of water.upon it tIler the nre. The fire so was dangerous; by the services of the Tebo the damage resulting from it was reduced tp a minimum., . . ' ,... . 'B\lt, while ,the services of the Tebo unquestionably, saved the Garfield a conaiderable loss, I cannot agree with the advocates for the libelant ip the opinion that they .saved, her &om tota:! destruction. The, fact .that the watchman·on the pier the fire while the Tebo waspJ,"qlReported by of the York ·.