Rum of$5,OOO, and the taxable costs. 'The award will be apportioned hereaftetamong the salvors by the court, unless they agree among themselves as to its division. 1
et al. v. THE
(District Court, E. D. New York.
July 12, 1889.)
Fire broke out on a wooden ship, wbich had previously carried petroleum, and which was lying in a crowded dock. A water-boat near by eame up, on a call for assistance. and poured water into the ship for some 20 minutes, when the city fire department appeared. and extinguished the tire. The ship was valued at $40,000, Held. that $500 should be awarded as salvage. but without costs, as no proper effort was made by the salvors to make known the amount demanded before suit, and the ship was seized without notice of intention to proceed against her.
In Admiraltv. Action by Sullivan and others agninst the British ship Vanloo, to recover salvage compensation for services rendered in extinguishing a fire therein by the water-boat Nelly. Edward D. McCarthy, for libelants. Wing, Shoudy & Putnam and C. C. Burlingham, for claimants. BENEDICT, J. This is nn action on behalf of the water-boat Nelly, to recover snlvage compensntion for services rendered to the ship Vanloo on the 23d day of October, 188Fl, on which day, at about 11 o'clock in the forenoon,-that ship being in the Atlantic dock, with little or no cargo on board,-fire broke out in the lazaret, which burst forth through the hatch in flames estimated from five to ten feet high. At the time the fire broke out the master of the ship was not on board, but the mate and several of her crew were. On the bursting forth of the fire, the mate caused an alarm to be at once given by the ringing of a bell on board the ship and cries of "Fire!" On hearing the alarm, the water-boat Nelly, then lying near by in the same dock, having on board some 8,000 gallons of water, at once proceeded along-side the burning ship, and commenced to throw water upon the fire with her pumps. After some 15 or 20 minutes the fire department of the city carne to the ship, and by their powerful pumps the fire was extinguished. There is no c!<Jubt that the services rendered by the Nelly were salvage services. Theonly question raised in the case is as to the amount. The
'The parties being unable to agree as to the division, the court subsequently distributed the $5,000 aUlong the salvors, awarding $3,150 to the owners of the tug, and $1,250· to the master and crew.-[REP. "Reported by Edward G. Benedict, Esq., of the New York bar.
ship Vanloo was a wooden vessel. She had been engaged in carrying petroleum on a prior voyage. Her value was $40,000. Notwithstanding the strong assertions of some of the witnesses called by the libelants, the circumstances proved satisfy me that the ship would have been saved from destruction by the exertions of the fire department without the aid rendered by the Nelly. It is impossible, therefore, to award to the Nelly salvage compensation as for saving a shi p worth $40,000 from total loss. Ft0lll: what amountofloss the ship wassavedoy the exertions of the Nelly cannot be determined with accuracy, but the extent of the .damage actually done to the ship by the fire, and the intensity of the fire as it'appeared to those who saw it, afford some ground upon which to base a conclusion as to the probable extent of the damage that would 'have been done by the fire before the arrival of the fire departnlent if no assistance had been rendered by the Nelly. The estimate of the libel'ants' advocate puts the loss from which the ship was probably saved by the Nelly at half her value. It is made plain by the evidence that without the Nelly's aid the ,fire would have burned for 20 minutes without serious opposition; and it must be conceded that a delay of 20 minutes in attacking such a fire in the lazaret of such a ship could not occur with'out giving the fire a headway that must have caused serious injury to the ship; but I do not think that she could in that time have been injured to the extent of half her value. Still I cannot doubt that ill the absenc-e of the Nelly the ship would have sustained damage many times exceeding the amount I shall award the Neny for her services. In determining the proper award to be made to the Nelly, it is to be -considered that it is a case of fire in a crowded dock. It was a fire in a wooden ship of the value of $40,000, which had lately carried a cargo of petroleum. Danger, not only to the ship on fire, but to many others in the dock, was present. Prompt aid was necessary. and prom pt aid was furnished by the Nelly, able as she was to throw water upon the fire without any delay whatever. The aid was furnished on a call for assistance from the ship, and was voluntary. It was. however, rendered without risk, and was of short duration. In my opinion, $500 will be a proper award for the services rendered by the Nelly, but it must be without costs, because it appears that no proper effort was made on the part of the Nelly to make known before SUlt the amonnt demanded, and the ship was seized without notice of the intention to proceed against her.
SMITH v. THE MORGAN CITY.
(District Court, D; South Carolina.
SALVAGE-FEES OF MARSHAL.
A vessel was libeled for sQlvage, but the warrant of arrest remained in the clel'k's office, and was never to the marshal. The parties ,stipulated that the vessel should remain In her owners' possession. The bond was neither taken in the marshal's name, nor delivered to him. After a decree for salvage was rendered, the claim was paid without sale, no money passing through the marshal's hands. Rev. St. U. S. § 829, provides for a commission to the marshal for sales in admiralty proceedings, which shall be reduced when the claim is settled without a sale. Held, that the marshal should receive the reduced commission which is given him as compensation for the loss of his opportunity to earn fees by a sale of the property, and not as a compensation for services.
But the clerk, under section 828, giving him a commission for "receiving, keeping, and paying out money" in pursuance of any order of court, of a given per cent. of the amount;"received, kept, and paid," is not entitled to any compensation.
In Admiralty. Libel for salvage. Libel for salvage by Smith, master of the steam-ship Apex, against the steam-ship Morgan City. A decree was rendered for salvage, and, the sum awarded having been paid, the marshal's and derk's commissions were taxed as part of the co·sts. To this taxation the claimants object. J. P. K. Bryan, for libelant. Barker, Gilliland &- Fitzsimons, for claimants. SIMONTON, J. The case comes up on a question of the marshal's and clerk's commissions. 'Vhen the libel for salvage was filed, the warrant of arrest was left in the hands of the clerk. Libelant's proctor instructed the clerk not to hand it to the marshal. No arrest having been made, the respondents put in a stipulation for the Morgan City, both proctors assenting, and she remained in the possession of her owners. A decree for salvage having been rendered, the case was settled by the parties without a sale. No money was paid into the registry of the court, or into the hands of the marshal. In the taxation of costs the clerk charges his commissiOllS on the award, $12,000. The marshal also charges commissions at the rate of 1 per cent. on the first $500, and one-half of 1 per cent. on the rest. The claimants dispute these charges. Section 829, Rev. St., givea to the marshal, for sale of vessels or other property under process in admiralty, or under the order of a court of admiralty, and for receiving and paying over the money, 2t per cent. on allY sum under $500, and It per cent. on the excess over $500. But when the debt or claim in admiralty is settled by the parties without a sale of the property, the marshal shall be entitled to a commission of 1 per cent. on the first $500 of the claim or decree, and one-half of 1 per cent. on the excess, if any. Judge BENEDICT, discussing this section in The City of Washington, 13 Blatchf. 410, says: "The provision