THll:BAY OF NA:PLES.
had sold it, as brokers for Watson & Farr. The respondents had no connection with it except as such brokers. Watson & Farr authorized thEmito sell, and pay freight, on their account. The suit against them cannot,therefore, be sustained. In view of what has been submitted it is prdper to say that the master's position respecting the bills of lading and collection of freight under them-beyond the sum named in the charter-is erroneous. He should have'accepted the balanoodue under the charter, as tendered,and surrendered the bills. That Watson &, Farr were the charterers' agents, is clear, and the evidence justifies a conclusion that the master knew it. When he reached the breakwater he took their orders and acted upon them. His subsequent conduct is dif.. ficult to understand. A.s the respondents (for Watson & Farr) have tendered; and now offer to pay into court, the balance due under the charter-$298.87-and both parties desire the business closed with the diR-' this case, a decree may be entered for thiS sum-$298.87with costs,to the respondents.
TuEBAY OF NAPLES HALL
et at et al.
t1. THE BAY OF NAPLES
(CirCW£t Oourt of Appeals, Second Of,rcUit. Decemj)er 14, 1891.)
Although the amount of salvageJl'ests in tluidiscretion of the court awarding it, an appellate cour1;may the if in making it there was l\clear and palpable mistake, or violatlOn of just princlples,or a departure from the path of au·i thority. 8.. BAKE-ExoESSIVlll.AwARD-EVIDBNOB. A vessel at anllhor in New York harbor, laden with petroleum in wooden cases, took fire, and, j)ut for the prompt services of tugs which came to her assistl1nce,' would have been totally destroyed in a tew moments. Tb,e saVing to the owners was ascertained to be $81,400, and $20,000 was awarded the tugs as sa1vage. The vessel was of iron, and iron rigged. The salvorsencotintered no peril to person or prop.; arty, and the of the f!xe required no extraordinary exertion on their part. that the award of salvage was excessive, and sl:iou'ld be reduced to 44 Fed. Rep. 90, reversed.
'AGE-DISCRETION OF TRIAL COURT-REVIEW.
Appeal from the circuit court of the t United States for the eastern district of New York. . In Admiralty. Libel by John Han and others against the ship Bay of Naples for salvage. Deoree for libelants for $20,000, which was affirmed pro forma, on appeal to the circuit court. From the decree of the circuit court the claimant appeals. Reversed. WilhelmU8 Mynde:rse, for appellant. Edward G. Benedict, for the tug Charm. De Lagnel Berier, for the steam-boat John Sylvester. Oharles 0. Burlingham, for the tugs Leader, Indian, and Talisman. Joseph F. Mosher, for the tugs Geo. t. Garlick, M. Moran, and John T. Pratt, libelants and appellees. ' v.48F.no.9-47
LACOMBE, CirpuitJudge, This. oomes here on an appeal from an affirmance proforma, by thec.ircuit coqrt, of a decree made by the district court of the ellStern district of New Xork, awarding salvage to the amount of$20,OOO, with costs. Shortly midnight of September 2, 1889, fire broke ouUnthecargo ofthe ship Bay QfNaples, in the between-decks, near tb.e was lying at anchor,below Bedloe's island. Her cargo was petroleum, of 150 deg.fire test, in 55,,600 wooden cases,eAch containing ,2 tin cans 9f 5 gallons each. Alittle after midnigbt;the tug M. Moran, to SE¥!- witll a vessel in tow, discerned the.fire,basWned to the spot. and wa!? asked to give assistance, to which reql.l¢st She Pro,mptly responded .Subsequently,apdat different times, thefeJ.'ry-boatJobnSylvester, other tug.-.boats, and, finally, the police-boat, @rvipe.it} extinguishing. the fire. The services consisted of throwing water, handling the hose at the fore-hatch,llndtowing the Bay of Naples from her anchorage. in .deep water, to the flats at Governor's island, where she was beached. The fire was substantially extinguished about 5 :30 A. M., and all services werethell discontinued. Further details of the situation and of the' work done will be found in the opinion of the district court, (44 Fed.'IRep. 90,}wbich correctly-sets forth the material facts. The saving to the owners was $81,400, and the aggregate award waR $20,000, about 25 per 6ent.'The claimant has appealed, contending that the grossly in of a fair remuneration as salvage for ,I,,' · '. " the service!! renaered. Appellate courts rarely reducee:alvage awards,. unleBB there has been sOme violation of just principles. or ,some clear and palpable mistake. solely ground that .the They subordinate court gave too large a sum, unless they 'are clearly satisfied the court QElloW made an oHbe services;' Such is the r.ule, in :the supreme court,' which. evenbefote the passage of the act of 16, 1875,limit,ing..its authority to revise a decree in admiralty to, questions of law, .was always extremely loath to-interfere with after of the case .by .two subordinate tribunals; 'ana circuitcourtil, apprecill,f.ing the fact thll:t different judges, even when possessing equally enlightened and sound judgmenta, would rarely form precis!'llY'itbe Same estimate, have discouraged appeals, which sought only to substitute the discretion of a circuit judge 1Q8 U. S. 360,2 Sup. for that'Qf,:the district:.j,l)pge. , '.(.'he Ot.Rep.754;2Yle Cal'llq.1'l.Che, 8 WaH., 448; ;RQWev·.T1wBrig, (STOBY,J.,) But it eqllallYrtrue that, when. the law gives a party 1 ,Mason, a right to appeal, he h!¥ltpe right to:demand the qonscientious judgmellt of the appellate court on every question arising in the case, and thl:l allowiJ;l many Pl!-ses, been increased or ance of salvage originally ,even.:where not violate any of diminished in thea,pipe,llate should regulate the subject, but :was the jqst prill"Ciples i,nadequRte. ,Po.st,v. Jones, 19 How. 161. Although as it is said, in the discreii9n the amount to be awarded as salvage
'TIll!: BAY OF
of the court it; appellate courtswilllook to see if that discretion has been exercised by the. court of first instance in the spiri t o(those decisionswhich higher tribunals have recognized and eMorced, and will readjust the amount if the decree below does not follow inthe path of authority, even though no prihciple has been violated or mistake made. Instances of suchi't3view are found in Rowe v. The Brig, 1 Mason, 372, (STORY,J,j) TheSuliote, 5 Fed. Rep. 99,(BRADLEY, C. J.j) TMBlaireau, 2 Cranch, 240. (MARSHAJ.L, C.J.j) Tlie-Connemara, 108 352, 2 Sup. Ct. Rep. 754, when the circuit court reduced theanH>Ullt from 8 to 6 percent.' , '" The circumstances which are to be into corisiderationindetermining the compenslition to bemacle for, salvage services are too well known to cali for restatement or discuflsion. The district judge f()urid several of them prominent,. in this case, toa marked degree.. The 'facts which operated to induce the making of so large an'award are recited in his opinion. The ship and Cargo were in imminent danger of total destruction. They were, it is true, in t11e harbor of New York, but the ship lay where the fire-boats of the corporations of New York and Brooklyn would p;o,-beingat anchor, not at a dock,-and the fire, broke out at a time when tugs generally are laid up, and scareely a vessel about except a few ferry-boats. With fire in lluch a cargo it was a question of minutes; a brief delay would have p;iven it such headway as would have put it beyond control. The captain himself, even alter the first and the ferry-boat had arrived and got to work, expressed the opinion that his ship could not be saved. The tugs were provided with powerful pumps,-were well fitted for the work they undertook, gave their services voluntarily, with great promptness, and were eminently successful, only 283 eases receiving any damage, and the actual loss of oil being only 72 cases. The presence of the police-boat Patrol did not affect the salvage, because, although the fire was still burning when she arrived, it was under controljand certain to be extinguished by the tugs; she ouly hastened the end. The evidence fully sustains these conclusions of the district judge, and the service was undoubtedly highly meritorious, and entitled to a liberal reward. On the other hand, the service in question was rendered without exposure or peril to person or property. The Bay of Naples was an iron vesseJ."with iron masts up to the top-mast heads, and all her rigging was wire. The fire was in the top tiers of cases between decks, and, though the flames occasionally rose up above the hatch, the crews of the tugs and of the ship were able at all times to stand by the fore-hatch and play down into the hold. There was no personal peril encountered by the salvors nor any E'xtraordinary exertion on their part. The district judge so found, and the libelants, upon the argument, conceded !:luch to be the fact. The extent and danger of the services performed, and the risk to which the vessels and other property employed in ,the service were exposed, are always important ingredients in a salvage service. A somewhat exhaustive examination of the decisions of the federal courts, bearing upon the question of anlount of salv-
FEDERAL REPORTER I
age, shows. that, except in the case of derelicts,: where the old moiety rule, though Il-o'1onger followed,has yet left traces of its influence, and in a few other 'cases, where there were exceptipnal circumstances, no such large percentage on so large a. net value saved, the property being in like straits, has been awarded, wllen there has been neither risk of life or property,nor extraordinary exertion in saving it. The case T6lied on chIefly by the claimant. is The Lone star, 34 Fed. Rep. 807. a decision by the same district judge who decided the case at bar, (affirmed in'the circuit court, 35 Fed. Rep. 799,) In that case 22 per cent. to 30 per cent. was awarded, but the service rendered in moving the vessel, "enveloped in flames," from the slip, was attended with danger, there being,such risk of fire thats.everal tugs applied toby the superintendent in throwto gointo the slip rE;lfused to do sOifl,t;id.the subsequent ing Wl!>ter upon the steamer, which "was burning furiously," involved some danger to the ves.BelS engaged, in the performance, with hard labor Rnd exposure to a, north-west galeiJ;l weather. .fl'he case at bar bears a strong analogyto that of The BlackwaU, 10 Wall. 1, where an to the amountof $100,000 was apaward of $10,000 for saving proved by the circuit.court and by. the supreme court, and to that of The Avoca, 39 Fed. Rep. 567, where $5.000 was awarded on $70,000 Baved. Upon all the facts we are of the opinion that the amount of salvage awarded by the district court is so much in excess of the usual rate for services of like character, rendered under similar circumstances, as to callfor a material reduction, and thillkthat $12,000 is a liberal allowance. "The ,evidence shows that the ferry-boat Sylvester was, for a time, unreasonably obstructive to the police-boat Patrol, preventing it from bringing its'powerful puntps into service: for nearly half an hour. The award to her owners and, crew should, fOf that feason" b13 .reduced onethird.. The decree of,tbeeircuit c.ourt is reversed, and the cause remitfor' in accordance with ,the views ted above expressed. Costs ofthis appeal to the appellant.
Scow Nb. 11.1 DUMPEnSCQW No. 11.
November lJO, 1891.)
LoVil: et al.
(Dtstrf.ct Oourt, E.D. New York.
OF PROOf. '.
, Libelants produced two' \Vitnesses, themselves libelants, f1'9m their tug' R., who ',,' asserted that after: a certain scow, which had been in tow ofthetugT., had sprung ,a1eaJ[ and the R. had rendered salvage services to her, by pusning her furtJ\er on the shOre and notifying her owners. Their story was flatly contradicted by the witueases from the tug T., who'asserted that, after the scow was left by the T.· l:Eteported by EdwardG, BllnediQt,Esq·· of the New York bar.,