FEDERAL REPORTER. THE OTTAWA. DUNHAM TOWING & WRECKING CO.
(Distrtct Court, N. D. RZtnoia. December 5, 1887.)
SHIPPING-CHARTER-PARTy-LAY DAYS-STRESS OF WEATHER.
The respondent had chartered a tug' of libelant agreeing to pay $125 per day forit while wind-bound. The tug was discharged at Grand Haven. From tbat day, December 7th, she remained in Grand Haven until December 10th; the captain being informed a storm was coming by the signal-service officer. Other steamers ran in and out of Grand Haven until the 11th, and the storm did until the 8th, and there was ample time for the tug to have reo turne<i to Ohicago before it. Held, that as there was no storm prevailing on the 7tn., and no indications of an immediate storm, respondent was not liable for the lay-days.
In Admiralty. . Libel by the Dunham Towing & Wrecking Company against tb schooner Ottawa, respondent, for the services of a tug while detained in port. by stress of weather. .'Jchuyler Kremer, for libelant. Geo. A.- Farr, for respondent. BLODGETT, J. This is a libel for the services of the Morford, at the rate of $125 per day, during the time she was, as alleged by libelant, detained in the port of Grand Haven by stress of weather. The case made by the pleadings and proof is substantially this: On: the first of December, 1885, Buswell & Co., residents of Grand Haven, made a contract of charter with the Dunham Towing & Wrecking Company for the services of the tug Morford to tow the schooner Ottawa from the port of Chicago to Grand Haven,and from there to Cheboygan, Michigan, at the price of $200 a day while engaged in towing. and $125 a day while wind-bound in port, the employment to date from 6 o'clock in the evening of the first day of December. There was some delay in getting out of the port, so they did 110t leave the port of Chicago until some time in the evening of the second of December, the day after the contract commenced. On leaving the harbor they laid their course for Grand Haven; but, as the captain of the tug testifies, after being out two or three hours, they encountered a heavy sea from -the northward, when they drew in towards the west shore of the lake, and kept near the shore until they reached Milwaukee, about 2 o'clock in the afternoon of the 3d, where they laid until about 4 o'clock in the morning, when, the sea running down, they left Milwaukee and ran across to Grand Haven, reaching there on the afternoon of the 4th. They lay in Grand Haven until Monday morn.. ing, the 7th, when for reasons which are not disclosed by the testimony, and not necessary to consider, Buswell & Co. notified the tug that they had no further use for her, having abandoned the idea of getting the· Ot... tawa to Cheboygan, and that the tug could return to Chicago. The tug did not return to Chicago until the ensuing Friday, having left on
day afternoon, and returned by way of Milwaukee, instead of steering directly for Chicago, and it is claimed that the detention from Monday until Thursday was by reason of bad weather, which prevented the tug from making the trip from Grand Haven to Chicago at an earlier date, and, under the wind-bound clause of the charter, this claim is made and insisted upon. The proofs show, on the part of libelant, that on Monday morning, when the captl:j.in was notified that the services of the tug were no longer required, the captain of the tug visited the signal-service office in Grand Haven, and was there told that a storm was coming; and that several propellers and barges were then lying in Grand Haven harbor, having taken refuge there, and did not deem it prudent to leave until about the time the tug left, and that the weather was so cold as to endanger the tug by the accumulation of ice upon her bows and over her decks. The proof on the part of the respondent shows that the weather on Monday, at the time the tug was discharged, was not threatening, and thewater not rough enough to make navigation at all perilous to a strong, equipped tug like the Morford, and did not become so until about noon on Tuesday; that the captain, on visiting the signal-service office, waa not told that a storm was coming immediately, but that there was a coming that way, and that it might reach there within 10 hours. The proof also shows that the steamers plying on the regular line between Grand Haven and Milwaukee made their regular trips every day, from Monday until Thursday and Friday, without any detention by reason of stress of weather, and that two schooners arrived in Grand Haven harbor during Tuesday, making the trip by sail direct from Chicago, and that none of these craft experienced any trouble from the sea, nor from the formation of ice. r think the testimony may be taken as conceding that, if the same kind -of,weather had prevailed on Monday that prevailed from Tuesday noon to Thursday, it might have been prudent for the tug to have remained inside the harbor; but r think the proof leaves the case in precisely this -condition: The weather was pleasant, and not so threatening in its ternal indications as to make it probable that a severe storm was near at hand at the time the tug was discharged. The tug could have left Grand Haven by 11 o'clock Monday morning. It is probably true that the sergeant in charge of the signal office told the captain of the tug that there was a storm coming, but there was no storm signal displayed, and he had not been ordered at that time to display one, and no storm did -occur until time enough had elapsed for the tug to have made the entire trip from Grand Haven to Chicago. Now) then, we have just simply this case presented: This captain, learning from the signal-service office that a storm might come,-and an experienced navigator on these lakes need not have consulted a signalsE'lrvice officer in the month of December to learn that,-saw fit to remain in port, and wait until he could have smooth water and warm weather for his home run. There were no portents in the weather itself foretelling a severe storm, and other navigators whose duty required them to
put. to sea did so, and made their voyages in safety. I do not think the signal.service officers have become so thoroughly versed as yet in the laws governing the changes of the weather as to make their predictions a safe guide by which to regulate the :movement of the vessels engaged in commerce. We know from our common experience and observation that their predictions fail at least as often as they are realized, and that they would make a very unreliable criterion for navigators to adjust their to and from their ports by,-so much so as to make it times of impracticable to allow their predictions very materially to control the movement of ships without regard to the trained judgment of experienced seamen, especially when voyages are short as they are upon our lakes, and vessels never very far from a port of refuge. But, even if their predictions were implicitly reliable, the proof shows that the signal officer only told the captain that his information was there was a storm impending, which might reach there in 10 hours, and ,there was then ample time for this strong, swift tug to have made this port, without the incumbrance of a tow, before the arrival of the predicted storm; so that it seems to me no excuse is shown: for this· delay in port from Monday till Thursday· . It is urged-that the question whether the weather is such as to makeit dangerous or bad seamanship to leave a safe harbor by reason of bad weather, that is, whether a vessel is wind-bound, is wholly a matter of judgment and. discretion on the part of the master, and that, if he deems the weather so rough or threatening as to make it unsafe to leave port', then all parties are bound by. his action in that regard. I think this is a fair statement of the general rule, if there can be said to be a general but this rule as stated is, I think, subject to this rule, on the qualification: that the weather must be actually tempestuous or rough, or there must be such indications·of a coming tempest as are considered reliable by experienced navigators in those waters; and I am satisfiEjd from the proofthat there was no such storm prevailing, and no such indications of an immediate storm on.Monday morning, when the tug was discharged, as should have kept a prudent seaman in port.. If the captain of the Morford had left Grand Haven, say, at 11 A. M. on Monday morning, he could have niade the port of Chicago before any bad weather 'would have been experienced. It must be borne in mind that this was in the winter-time, when rough weather was to be expected. This tain had no right to lay, in port, at the expense of another, waiting for a. summer sea. He musLp.ave known that at that time of year rough weather and. water were the rule, and the mere fact that the weather was cold and some sea running was no more than was to be anticipated; but I do not think, from the proof, that the weather was either such iJ;lfact, or to be anticipated from threatening indications, ag to make it seem perilous to a properly prudent and courageous seaman . . Ido not intend to be understood as saying that the weather prognostications of the signal-service bureau are to be wholly disregarded by theprudent seaman; but that they are not to be implicitly followed; and also to say,in this particular case, that no such indications or informa-
'THE R. D.BIBBER.
tion were obtained from the signal officer as justified the master of this tug in remaining in port during the day he was discharged. ' The only controversy in, this case is as to the amount of these lay-days in the harbor of Grand Haven. I shall therefore dismiss the libel, 8.!) libelants have been paid for all the remaining time, and for time enough to have made the trip from Grand Haven to Chicago if they had started on Monday morning.
'I.'HE R. D. BIBBER. GALVESTON·STEAMsmp & LIGHTER Co.
(Oircuit Oourt, E. D.
THE R. D. BIBBER and Cargo.
SALVAGE-GOOD F.A.ITH OF LmELA.NT-lNTEBE8T;
, ,A l>artner :in a firm to whom a schooner was consigned was also interested in a Jighter companY, thl! libelant, Who claimed on the schooner· . .hill Interest in no way affect!!d ,the goodf<h or right of the libel· ant t O f e c o v e r . , '
. · ' ApMs()n had contracted, to discharge the cargo ota vessel, ontside or at the wllarf; for 8 stipulated price; after the work had been begun, the vessel'W6S driven ashore. Held,that his previous contract, did not affect his rigbt to claim'salvage for services on the same cargo after the wreck. 8. SAME-RIGHT OF LmELANT-NoN-JOINDEB OF PARTIES., , , A libelant employed men, and paic;lliberally to render salvage services. Held, t)lat libelant was entitled to COmpensation"and the amount should not be reduced on the claiIp,t4at tlle persons employed by them were ,entitled to compensation. ,They ,should join in 'the suit or make claim to the proceeds, if any are in th'e registry olthe court. '
4. SAME"':":COMPENSATION-ONE;:EIALP SALVAGE. A schooner loaded with railroad Iron went ashore in Galveston bay. The
vessel and cargo were salved by libelants under a contract with the master for' 50 per cent. of the value; wrecking creWIl were paid extra sums. and pumps oflarge cost for that locality used, andtb,e vessel and cargo saved at the risk of serious damage to the Property in the work of salvage, oni! ,of, the ,lighters being injured, the crews suffering much hardship, and the weight of the evidence showing that thecollt Of saving railroad Iron wrecked'onthegtilfbeach, on basis of work and labor, is 50 per cent. of its value. -Held; that the contract was reasonable, and a proper allowance for 'salvagewduldbe 50 pel' cent. of the value of the, property salved.
In Admiralty. McLemore & Campbell, for libelant and appellee. , Waul' &-. Walker, for Mifflin Kennedy, claimant of the cargo, appellant.
P ARDEE I J. tfhis came on to be heard upon the appeal of Mifflin Kennedy,: claimant of the cargo, and was argued; whereupon the court filldsfrom the "evidence the following, as the facts in the case: tstHed, by the Galveston Steam-Ship Lighter Company, a. privatecorporat?-on,whose business was, at and before the filing of the libel, to caJ;rY'9tr the and towage business the waters the port of and the'sald company was well eqUIpped ,for such bUSiness; and -said company was,' at the time of the services rendered as stated itlthe
libel, well equipped for the purpose of rendering aid and assistance to stranded vessels in distress around the port of Galveston; .and said company had provided itself with steam-tugs, and expensive wrecking pump, with a view of saving vessels and their cargof;s that might be stranded off Galveston harbor. (2) On the nineteenth day of January, 1887, the schoonerR. D. Bibber, while being towed into Galveston harbor, ran aground on the Texas coast, about seven miles from the city of Galveston, with a cargo on board of about 700 tons of steel rails, such as in general are used by railroads. (3) The said schooner, Bibber, drew about 13 ft>et and between 4 and 10 inches when she struck the bottom, on the nineteenth day of January, 1887; and she was driven by the sea and wind, during the afternoon of that day, further onto the beach, into about seven feet of water, at a point called "Bird Island;" and as she lay, on· January 20,1887, she was partially buried in the quicksand, and powerless to extricate herself· . (4) On.January 19th thexnaster of the schooner H. D. Bibber, finding that his vessel was aground and not able to be relieved by the steam-tug Ivy, that was towing her into of Galveston under the directions of a pilot, nor by the steam pilot-boat that went to his assistance, left his vessel, and went into the city of Galveston to seek assistance. (5) The master remained in Galveston all day of the twentieth of January, and until th,e morning Clfthe 2tst; and, during his sojourn at the the suggestion of his Ship's agent he made known to the libelants herein the condition of the R. D. Hibber, and invited the officers of the said libelants, the Galveston. aI1dLighter Company, to make a proposition, or propositions. as to relievingt4e schooner and cargo from their sunken condition. The officers of the company declined to make any proposition, or to agree to any terms of salvage, at the time, alleging that they were ignorant. of the true condition of things.' (6) The libelants were advised, on the afternoon of the nineteenth of January, thattM schooner was. in distress and aground where she wason the coast, anden).plpyed a man skilled in such matters (Charles Clarke) to proceed as soon as possible to the locality of the :6ibber for the purpose of ascertaining the extent of the trouble, and toreport, without delay, the true condition to libelants. ' (7) On the morning of the twentieth of Jal}uary, Charles Clarke, as the employe of tire libelants, and at their instance, went out with a number of seamen to the scene of trouble, and made observation of the situation, and without delay returned and made report to the libelants as instructed. (8) 'rhe.libelants at once ordered Clarke and his men (about six) to' proceed with all haste to the schooner, with a tug and such appliances as were needed to relieve the sunken schooner. And Clarke and his six men went out. on the evening of the twentieth of January, to the Bibber, and at once went to work with skill and zeal to relieve the schooner. (9) On the same day, and at a late hour of the day, (twentieth of January,) the master of the schooner and of the underwriters on the cargo of the schooner Bibber, went to the office oflibelants to renew the request upon the libelants to submit propositions or terms upon which the libelants would undertake to save the schooner and her cargo. And thereupon propositions or terms were submitted for the consideration of the master and agent of the underwriters, as follows: "GALVESTON, TEXAS, January 20, 1887. "Capt. B, E. Pinkham, Schooner R. D. Bibbe1', .8'tranded on the barSlR: We will undertake to salve your vessel and her cargo on the follOWing terms: Firstproposltion. We will do the entire work at our own risk and expense, charging i of the value of the property saved for our services. Second proposition. We will hire to you, for aix days, our '14-inch suction' wrecking pump. for the sum of one thousand and one hundred dol-,
THE R. D. BIBBER.
lars for each day after the first six days, you paying all expenses; and we will hire you one of our lighters for the sum of two hundred dollars per day, you paying all expenses. "If you accept our second proposition, we will require that you furnish us good security for the safe return of pump and lighter to the wharf, in same condition as delivered to you, usual wear and tear excepted. [Signed] "B. ADONE, Agt. Gal. S. S. & Lighter Co." (10) After the master had taken time to discuss the proposition with the insurance agent and others, and after both the master and insurance agent had visited the scene of the ,disaster on the twenty-first of January, in order to acquaint themselves with the situation of the Bibber and the hazards of the undertaking to save the vessel and cargo, and after the transmission to, and receipt of telegrams by, the insurance agent from his principals, the , master accepted in writing the proposition to allow libelanta 50 per cent. of all the property saved by libelants of schooner Bibber and her cargo. (11) The master and his two mates, and all of the crew of the Bibber, left the schooner on the twentieth day of January, 1887. and the only person of the officers and the crew that returned afterwards to the vessel during her distress and days of trial, to remain or work, was the second mate, who turned on the evening of the twenty-second of January. The master visited the schooner nearly everyday, but remained only a short time. and left Charles Clarke and his men, as employes of libelants, in cha1'ge of the schooner Bl:bbe1' and cargo. The master and his crew left the schooner, and remained absent. because they did not care to undergo the hardships and hazards to which they would have been exposed if they had remained on board the Bibber; and such of them as did return to her, except one. went because the hardships and hazards no longer threatened them. (12) The libelants and their employes, from the twentieth of January to the '24th. inclusive, in salving the Bibber and cargo were prompt. energetic, skillful, and courageous. They employed, at different times during this period, four steam-tugs of great power and large value, with extra crews of men, and a wrecking pump of extraordinary capacity and large cost for that locality. The employes of libelants were paid by libelants, besides their regular wages, latge amounts of money, as reward and compensation for their services in saVing the schooner Bibber and cargo; not less than $3,000 haVing been paid to the employes as extra wages, inclUding $1,200 to Charles Clarke, and $100 each to the men employed on the schooner,-about 16 in number. ' (13) The schooner Bibber and cargo were saved at the risk of serious damage'to the property engaged in the work of salvage. which property was worth about $75,000 or $80,000. including the Buckthorn. that was employed by libelants at the risk of libelants. The employes of the libelants. acting for libelants as the salvol's. displayed. throughout the several days of their employment, conduct of great merit; they were prompt. skillful, and courageous, and they endured hardships, and underwent hazards to their health 'and lives, in the service rendered by them. One of the lighters employed by libelants was materially damaged in the service, The schooner Bibber was rescued from total loss, and the cargo of the Bibberfrom a beached and sunken condition, by the efforts of libelants, and such loss was imminent when the efforts were begun. (14) The schooner Bibber was consigned to Moeller & Co., as ship's agents, and the cargo of steel rails to M. Kennedy, claimant herein. The firm of Moeller &; Co. was composed, of J. Moeller and T. H. Sweeney, the latter of whom was a stockholder in and secretary of the libelant company. (15) Charles Clarke. the managing employe of the libelant company in effecting th6salvage of the Bibber and cargo, had contracted with the master
of the schooner while sM was outside and before she to discharge the cargo of steel rails outside and at the wharf for 30 cents per .tnd in pursuance thereof had discharged about 70 tons while the schooner was outside, (16) M. Kennedy, the consignee of cargo, was represented in Galveston by Messrs. Parker and Campbell, neither of wnomwas consulted as to · the contract between the master and the libelant company as to salvage. (17) Considering the condition of the schooner and her cargo, the circumstances under which the contract for salvage was made, and the risk of total failure taken by the libelant as to the ship, the contract for one-half of the value of the property salved was reasonable, and, so far as the master had authority to make it, should be recognized and sustained. (18) As '8 general rule, steel rails in a wl'ecked vessel on the beach near Galveston are not subject to total loss, but they are at risk, and are subject to and the general expense of saving them is about 50 per cent. of their value. , (19)'fhe services of the libelant company, and its vessels and npplianclls and employes, in salving the cargo of the Bibber, were salvage services; and, whethermeasuredbythe contract aforesaid, or allowed, by the court on the merits; were worth, and should be compensated by, an allo,wance of 50 per cent; cif the value of the property salved. , ' (20) The schooner Bibber settled the claim against her after the seizure by paying' 50, per cent. of an apparently fair valuation, and no claim is now asserted on this trial. (2I)T'hecaruosaved by the libelants'was made up of steel rails, on board of the Blbber at the time she went aground, being about 700 tons; which cargo was saved by libelants, partly by taking same out of the schooner, in ,order to enable thelibelants to take the sclloonel' offthe ground, and partly by saving the schooner, so as to bring her into tile harbor, and to the wharf in the'city of Galveston, with a portion of the steel rails in the vessel. . (22) ,The cargo thus by libelants was worth. at Galveston, the sum of $25.000 on the fifth day of February; 1887, the day on whieh the libel in this suit was filed, and on the twenty-fourth day of January, 1887, when the s31vage was complete; and the proper allowance for salvage therefor is the sum of $12,500, with damages for delay since tire decree of the district court, July 16, 1887.' I (23) The record and proof in this case show that the cargo of the schooner Bibber was seized by due process in admiralty, and was duly claimed. by 1lin Kennedy, with sureties on his bond for $20,000, Julius Kauffman and Ii us Runge signing as sureties. And after judgment as against said Keimedy and his sureties in the district court, the record and: 'proof show that an appeal was taken from the judgment of the district court to the circuit court of the United States by said Milllin Kennedy and Julius .Kauffman and Julius Runge as. principals, with J. Hutchings and J. G. Goldthwaite as sureties, ona bond of $20,000, and conditioned to payoff and satisfy such judgment as the circuit court might render!n the premises.
And the court finds as conclusions of law: (1) That the interest of'Sweeney, partner in the firm of Moeller & Co., conof the schooner Bibber in the libelant company, does not affect the good 'faith, or right to recoV(lr of the said company for services rendere<lby said company to the cargo of the said schooner Bibber. Hobart v. Drogan. 10 Pet. 108, and cases there cited. Also, see chapter 2, Jones Salv., and Abb. Shipp. 360 et seq. . (2) That Charles Clarke's preVious contract to discharge the cargo of the Bibber outside or at the wharf at a stipulated rate, does not affect his right
to claim salvage for salvage services on the same cargo when afterwards the cargo was wrecked and the services rendered.' See same authorities. (3) That the libelant company. having employed men and paid liberally. and employed machinery .to render salvage services, and having in this way rendered sl;Uvage services. is entitled to recover salvage compensation. and the amount' thereof should not be reduced on the objection of claimants that others. the persons so employed, are entitled to share in the compensation. The remedy of such others, if they have complaint or have not been liberally compensated, is to become parties to the suit, or to make claim against the proceeds, jf any are in the registry of the court. See The Oamanche, 8 Wall. 448; The Blackwall, 10 Wall. 1. , (4) The libelant company should have a decree against the cargo of the schooner Bibher, to-wit: About 700 tOllS of steel rails, for salvage in the sum of $12,500, and against Mifllin Kennedy, claimant, and Julius Runge and Julius Kauffman, snreties on the release bond in Bolido, condemning them to pay tbealnonnt of the decree against the said cargo, with interest thereon a.t 8 percent. per annum, from JUly 16,1887, and all costs heretofore adjudged against them by the decree of the'district court of July 16. 1887, and all cdstsoftbis court; and against J. H. Hutchings and J. G. Goldthwaite, sureties on tbe appeal-bond, condemning them jointly and severally to pay and satisfy the decree herein to be rendered against said M. Kennedy. Julius Runge, and Julius Kauffman. , , There is nothing in the evidence to show that the Bibber was put aground through any negligence of the tug, Ivy, nor even of the pilot. 1'he evidence rather shows that the fault was the master's, in misstating the draft of the Bibber. I do not find any evidence that Moeller was interested in the Galveston Steam-Ship & Lighter Company. It.is immaterial, however, as his partner Sweeney was. Neither Sweeney, as agent of the Bibber, nor Clarke, as contractor to unload the Bibber, was charged with any duty to the cargo of the Bibber, after the Bibber was stranded, that rendered them incompetent to claim as salvors of the Bibber's cargo, if they thereafter rendered salvage services. There is not sufficient evidence to warrant any finding that the lighter company or its officials acted otherwise than in good faith, or took any undue adVantage of the master of the Bibber. What the company did was open, and the master could see for himself. He could have seen better if he had stayed by his ship. This case differs materially from that of The Hegpf!lr, 18 Fed. Rep. 692. The Resper was a steam-ship, aground in fair weather, under the control of her master and crew, who did not abandon her to salvors, and the services 'rendered her were at the procurement of the ship's agents. The salvage of the Hesper was due as much to her machinery and her master and crew, as to the services of the lighters and tugs called to her aid. By the weight of evidence in the record, the cost of saving railroad iron wrecked on the gulf beach on the basis of work and labor, is 50 per cent. of its value. The salvage of the cargo of the Bihber cannot be said to ha:ve been due until decreed by the admiralty court. As a general rule one-half of the value of the property salved is the maximum salvage. I have therefore allowed damages, in the way of interest from the date of the decree in the district court.