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.,
DUMPER ,SCOW NO. 11.
sbe was never moved by any vessel. Held, 'on this conflict of testimony, tbat the libelants had failed to prove their caEle by prepOnderance of evidence, and the libel should be di&missed.
In Admiralty. Suit to recover salvage compensation. Wing, Shoudy &: Putnam, for libelants. Goodrich, Deady &: Goodrich, for claimant.
BEKEDIGT, J. This is an action by the owners and crew of the steamtug Chas. Runyon to recover salvage. Its decision turns upon a question of fact not ordinarily presented in actions of this· character. The circumstances,are all follows: A dumper scow, while in tow ,of the tug Talisman, sprung a leak. and sank off Coney island, in the lower bay. After an ineffectual effort by the Talisman to get the scow afloat, she was left by the Talisman where she had grounded. On the next day, or the day thereafter, a derrick was sent down by the owners of the scow to raise her. This derrick was towed down by the tug Chas. Runyon, and by the same tug the derrick, with the scow in slings, was towed up to New York city. For this last service of towing the derrick down, and the derrick and scow to the city, the Runyon was paid. She now claim!';! to have rendered other services prior to the time of towing down the derrick, which entitle her to salvage. The assertion is that on the day after the day when the scow sank, 'while the tug Runyon was proceec'ling from Barren island to New York, the scow was observed by those on board her,abatrdoned; that they proceeded to her, and, finding her afloat, put a hawser upon her, and towed her a mile and a half towards the h'on pier, and until she fetched up on the bottom; that, in order to prevent her from floating off again, the Runyon, by pushing against her, shoved her still more aground, andtben left her, and proceeded to the city, and there notified her owners of her situation; that about 6 o'clock in the evening of the same day the Runyon went down to the scow again, and, by hooking an anchor on her, succeeded in pulling her somewhere near a quarter of a mile further up on tlieshore, where she was left fast on the ground, and., there remained until raised by the derrickl ',These servi<:es, asserted to have been rendered by the Runy.:on· prior to the arrival of the derrick, and subsequent to the time thesc6w grounded, are testified toby two witnesses from the Runyon, who are themselves ants. The G'laimants produced two witnesses froIIl the Talisman, who were on board the Talisman at the time the scow was sunk, and who assert that the account given by the master and the deck-hand of the Runyon, in regard to any serviQes rendered on the Runyon between the time when the scow was left by the Talisman and the time whim she sent down by the owners, is wholly was taken hold of by the false. They assert in positive terms that the scow was never moved by the RunYQn or any other vessel between the time when she was left by the Talis.roan and the time when she was taken hold of by the derriclq that the scow when left by the Talisman was so fast aground 'that the Talisman, aftersf,renuous efforts, was unable to move her, and that it would nQt lIepol3sible fw:, the Runyoll (being. of le$.Spower than the
at aU; thb:t not possible for the "COW to float, for the reason that she was in a sinking condition, and that she in fact sank to the bottom as soon as the chains of the derrick were loosed. Furthermore, those witnesses say that the positibnwhere the scow was left by them was carefully observed by them at. the time, that ranges were taken, and that they saw the scow when the derrick raised her, and she was then in the same position where she had been lelt by the Talisman. .In this conflict of evidence, the general rule that the libelant, in order to succeed, must prove his case by a preponderance of evidence, is ,to be applied. Here there is no preponderance of evidence in favor of the libelants, and the libel must therefore be dismissed, with costs.
(l>tBtrf.ct Oourt, E. D.
February 10, .1888.)
An ocean steamer worth $150,000, with a valuable cargo, and about 50 men, as orew·and passengal's, wllUe·running on schedule time from New York to Carthagena and other Caribbean a brig, in a practically helpless condition. about 130 miles off CapeJ:ienry. Only three men were on the the captain and the restor the crew having died of yellow fever. It being considered unsafe to put men aboard her, the brig was towed into HaJIlpton Roads, during a high and dangerous wind, the steamer aeviating from her course about three days for that purpose. The trig and cargo were appraised at $7,645 as the auction value in Norfolk, whicb was milch below their commercial value. Held, that $2,750 should be awarded as salvage in addition to the expenses incurred by the deviation.
OCEAN STEAMER-YELLOW FEVER-COMPENSATION.
In Admiralty. Libel for salvage services performed by the steamer Bellver and crew, in towing the brigantine Marie Anne into Hampton Roads. Decree for .libelants. .The other facts fully appear in the following statement by HUGHES, J.: The steamer Bellver, Antonio Planas, master, left New York on the 18th of October, 1882, for IJimon. Carthagena, and other ports on the on the morning of the 20th, she saw the Caribbean sea.At6 signals of distress, aud went Marie Anne, a"French brigantine, to her. Most of the crew of the Bellver were Spanish, but Rossello, the first mate, spoke French. At the direction of the captain, Rossello spoke to those on board the Marie Anne in their own language. He asked them what they wanted. They replied, "We want to be saved." He asked if their captain was· on board. They replied, he was dead. He asked if they had any They replied, "Nbne," adding, "wa are but three;" all. the rest of the crew and the captain were dead. They requested to be taken on board the Bellver. When denied, they requested that their vessel and themselves should be taken into port. Their caJr tain and the rest of their crew had died of yellow fever. The captain of the Bellver held.a conference with his officers and passengers, and it was decided to tow them into port. They were then about 130 miles off the The Bellverhad on board a crew of 40 men, 7 capes of the