, '1'BE 'VENEZUELA. '
OJ' NORTH AMERICA
MERRI'l'T et 'al. ". SAME.
Court, B. D. New Yor7c. May 14, 181lS.)
IhLVA8l1-STltANDING-MUJTS OP DJPP!!RBNT BALVORS..,...sUBORDJNATB
The steamship Venezuela went'ashore on Brigantine shoals, oifthe ooast of New Jersey. Heragentll in New YorkeIUployed tbelibelants Merritt et al. to 1l0at her, and several were at once dispatched by the latter with wrecking appliances. , Prior,t6 their arrival at the ship, a wrecking steamer and lighter belonging to tbe,Ubel811ts the Insurance Company of North America et al. had arrived at the had oifered their services, were declined bY,the master of the Venezuela on the ground'thatthemattel" had been referred to the agents in New Ydrk. :On the arrival of tli,e Merritt services of the vessels of the otber libelants were accepted ,by the master in charge of the Merritt boats, but in no o,tberW8,y than, as" assisting him, and as subordinates to him,' and in his employment, The ship was taken oft by the united efforts of all the libelants. Separate li1:)els were thereupon filed by the salvors, to recover compensation for the service. ThEi evidence showed that the oontrol of the service rested entirely with the Merritts; also that their appliances were two or three times greater than thQsEl of the other liblllants. The value of the Venezuela and her cargowas$lJOO,OOO. Herownera did not deny the salvage service. and oifered $40,000 as total salval\'e, which was agree<l,to.H(!ld. that the libel of the insurance comp,any. though that oompany acted as ,a subordinate helper only, could not be dismissed; that the only question 'remaining was as to the shares of the difterentlibelants; and that Merritt & Co. ahould receive $83.000, and the other libelants $6,500.
In Admiralty. Libel for salvage. Decree for libelants. George A. Black, for Insurance Company of North America. Benedid Benedict, for,I. J. Merritt and others. <hudertBr08., for the Venezuela.
BROWN, District Judge. On the 5th of February, 1892, the Venezu.ua, a/lteamship of 2,900 tons, went ashore on Brigantine shoals, off the coast of New Jersey. The value of the steamship, cargo and freight, upwards of $900,000. She was got off between 2 and 3 o'clock A.H. of February 7th, through the united assistance of the aboveDaDled libelants as salvors, all of whom are engaged in that business. The above libels were filed to recover salvage compensation. The answerto each libel admits the rendering of a 118lvage service, but denies [lome of the matters stated in the libels, ,and alleges that the ship was got off mainly by the use of her own engine. The causes were heard together. At the commencement of the trial the defendants offered to allow decrees for $40,000 for the whole service, which has been agreed t9 by the libelants as a fair compensation for the whole work; and the trial proceeded with reference to the respective rights and shares of the two libelants. The evidence shows that at about 4 o'clock in the afternoon of February 5th" a telegram was )'eceived by the agents of the Venezuela in New York, stating that the steamship was aground; that the Merritt Wrecking Company was on the same afternoon employed by them to get the
vessel off, and the whole charge of the work was put in that company's l:ands. On the same evening that company dispatched to Brigantine shools the tug Buckley and the schooner Rllpidan, which arrived there at about daylight on the following morning, with Capk Chittenden as the representative of the company in charge of the work, accompanied by one of the agents of the Venezuela. On the afternoon of the 5th, the company telegraphed to Norfolk, directing their tug Rescue and barge Seymour, fully equipped for wrecking purposes, to g6 to Brigantine shoals. TwP other vessels from New York were also engaged by the on the 6th. Merritt Company, and ordered . The steam lighter Tamesi and the. wrecking steamer North America, belonging to the other libelants,receiving information on the afternoon of the 5th that the steamship was ashore, also repaired to Brigantine shoals. The Tamesi, proceeding from Somer's point,arrived there at about 6 P. M., and offered her assistance to the master of the Venezuela, which was declined by him on t1\eground that the matter had been referred to the agents of the ship in New York. The North America, from Lewes, Del., delayed by a thick snowstorm, arrived at about half past 1 A.M. of the 6th, and lay by until morning. i Capt. Chittenden with Mr. Dallas, on the arrival of the Buckley and the Rapidan, were put on board the Venezuela by Capt. Townsend of the Tamesi, with thesurtPoat of the latter. The Insurance Company and the Atlantic & Gulf Wrecking Company acted together. The evidence .leaves no doubt that the entire charge of the undertaking to get the ship :afloat was given both by the agents and by the captain onhe Venezuela to the Merritt Company, and to Capt. Chittenden acting in its behalf; and that the services of the Tamesi and North America were accepted by Capt. Chittenden in no other way than as assisting him, and subordinate to him and in his employment. Notwithstanding some difference in the testimony, I cannot find that those vessels took part as independent salvors, or through any employment or acceptance of them as such by the master of the Venezuela. .Upon this ground it is claimed on behalf of the Merritt Company that the other libel should be dismissed, as not rightfully filed. The pleadings, however, and the attitude of the parties are ndt such, I think, as to make that a proper disposition of the cause. The other libelants as helpers in the salvages'ervice, though subordinate to the Merritt Companyand in its employment, might have been joined as co-libelants in the libel of the Merritt Company as any other of their employes might have been joined, such as master and crew, who are often individually joined as co-libelants with the owners in such a cause. In the present case the other libelants filed a separate libel, because they claimed the $tatus of independent salvors, instead of being mere employes of the Merritt. Company. The owners of the Venezuela in their answer to that libel have not denied that 8tatus, nor their rendition of salvage aid; nor have they objected to the separate lihel; and the Merritt Company have not intervened in that libel to contest it. The latter company have simply filed their own libel for salvage service, alleging that the Tamesi and
the North America were employed by them for such compensation as should be agreed on between the owners of said vessels and Capt. Israel J. Merritt, one of the libelants. Under such pleadings, although the proofs, as I find, sustain the latter allegations,yet inasmuch as the Tamesi and the North America have a lien for their salvage services, which the owners of the Venezuela do not deny, I have only to fix the amount which upon the proofs should be allowed to them out of the whole sum agreed all; and in fixing that amount the rt:lation of the parties, as disclosed by the evidence, is very material. The principal part of the allowance should, I am satisfied, be awarded to the Merritt Company, not merely because they had by far the most vessels, men, and means involved in the enterprise, but also because they were the principals to whom the whole work was assigned, and who had the entire charge and responsibility of it. The services of the other two boats were rejected by the Venezuela, as independent salvors, and were only accepted afterwards by Capt. Chittenden as helpers to him for particular uses in the work of his company. The Merritt Company is one of the largest and most successful in such operations; it had abundant means for the work. It had ordered to the shoals men, vessels, and appliances ·of all kinds in abundance for getting the steamship off speedily. The North America and the Tamesi had no authority to take , any part in the enterprise, except in the employ of Capt. Chittenden, for such work as he might assign them, and for so long only as he might desire. Their services were not really necessary; because other sufficient means already ordered by the Merritt Company would shortlyarrive. But it was a prudent act, considering the possibility of a change of weather,and the desirability of getting the vessel off as soon as possible, for Capt. Chittenden to make use of the two othQl' vessels present, at least until the rest of his own forces should arrive; and it was at the same time considerate and liberal towards those two vessels, although they had come thither without orders or request, to give them some recognition and employment in the work. It is manifest, however, that in thus voluntarily taking them into his service,-the North America to pull on a' hawser ahead of the steamer, and the Tamesi to take off about 1,800 bags of coffee, in addition to what was taken by the Rapidan, in order to lighten the vessel a little, for a compensation to be fixed by Mr. Merritt himself,-it was not the intention of Capt. Chittenden to admit those vessels to share in the work on the basis of independent salvors or to surrender in the slightest degree the position of the Merritt Company as the principals in the undertaking, and as such entitled chiefly to its emoluments. They were to be paid upon the basis of subordinate helpers, employed for particular uses only; the North America to give a pull at the times ordered; the Tamesi to lighter a small part of the cargo to New York in tow of the Buckley. Neither skill, nor judgment, as salvors, was required or expected of them, and they incurred no responsibility. The skill, the judgment, the direction, the management, and the responsibility of the work as a whole, all lay v.50F.no.8-39
'Merritt Company. To,treatthQse vesselsjtnerefOre; aspart-nerlwith t'Hei Merritt OOlu,pany,or'as standing on' :theeame basis with thalt as:independimtsalvOl1J; instead of mere subordinates, employed 'only, would'be, plRinly unjust to whose business' the whole and would do' letter and, spiritof the agreement 'between them; On the ne:Xtday the services bf other tugs, offered at cheap rates, were declined; ;'fpe-oonduct ohhewClrk itselfwas;in plain conformity with this view. Capt. Chittenden directed everything; tbeexamination of the ground by thedeterminatiOri inwhichdirectidnit was best to move; the location of the ahopor and the purchases, and the arrangement of the cables;, ithe :unloading-'of part of the COJ.1go; and the methods and times o£ibaulingon thesbip. Tn all'these ,things theqther vessels took no part. ·As respects the direction in which to mdve, they expressed a can.. trary.opinionj:butthaspeedysuccess of Chittenden's plan fully' JuStitlecillhis judgthent-andskilf. ' , ' , The'lJuggestion thatlheanchor and cable were laid broadlyoff the line:of movimlen:t is not .entitled ito credit; nor that the' anchor finally "came and gave the'greateable no efficient hold. The main reliance was upoQ the steady andeontinuous tension of the immense 15-inch cable three timea' the strength'oUhe North America's hawserJ' Under the'steiQY strain, and; pressure of such cables, the sand gradualJyyields apathwtlJ for the.lvessel. The midday tide on the 6th was not as' high as usual; it was not expected that the vessel would come: off then; but. everything was,then t1-dJusted; the preliminary trials were made; the strain was put on the anchor, and it was 1;>rought to a firm-hold; all the stretch and slnckwere taken out of the cable; and when in the higher midnight tide the full power of the steamer herself, and of the vast cable and'ianchor, and the hawsers of the North America and the Buckley were all applied, the ship 'came speedily afloat. The 'outfit provided bytlie Merritt Company 'for the work consisted of 6 vessels and 76 men, including the Lovett and Wyman, dispatched on the 6th. The outfit of the other libelants was 2 vessels and 29 men. The value of the vessels and ml1terials of. the former was about $65,000; ofthe:latter, tbout $40,000; but of-the latter the North America only, worth' $25,000, was'llsed in hauling off the ship, the Tamesi being employed 'as a lighter only, and towed with her own eables by the Buckley. The whole: time occupied,both at the shoals and' in going and returning was for the vessels of the Merritt Company equal to a little over 13 days, including also going back,for the cables and anchor that were slipped when the Venezuela' werttafloat. The time of the. Tamesi and North America, including going, and, returning, was about four days. The expenditures of the Mel'ritt Company were about $3,333; those of the othertwovessels, so far as proved, about $100. Thebauling foreeapplied to. the Venezuela by the Merritt Company with their cable and the tug Buckley was about three times that ofthe North America. Taking allthese elements together, the means employed in getting off the ship stand in favor of the Merritt Company as against the North
America, about in the ratio of from two or three to onei so that if the two occupied the same status as independent salvor's, the Merritt Company should receive about two and one half or three parts to the North America's one. But Bsthe North America came in merely as a subordina.te and temporary helper to the Merritt Company, one half the share of an iudependent salvorjor from one seventh to one eighth, will, I think, be a fair adjustment of the North America's compensation as between, themselves. As for the Tamesi's service, as a lighter towed by the Buckley, $1,500 will, I think, be a very ample allowance. Deducting from the $40,000 the sum to be allowed for the Buckley, and the expenditures of the Merritt Company, the above proportion of the residue, including the $100 . expended, will be about $5,000, which I award to the North America. This sum appears to me a liberal award to that vessel, taken as she was for temporary and special use without any obligation on the part of the Merritt Company to ,share the work with her in any degree, and when the rest of their own forces were expected to be present on the following day. Her actual service in pulling was but for 20 minutes on the 6th, when her hawser broke; and less than two hours on the following midnight tide. On the other hand, if a reduction of $6,500 in the receipts of the Merritt Company for a brief use of these two vessels seems large, it must be considered that the very fact of their use of that additional force, and the fortunate result and speedy relief to the Venezuela and her cargo without loss, presumably entered to some extent at least into the concession of the liberal allowance of 840,000, which was agreed upon for the whole service. A decree, with costs, may be entered for the Merritt Company for · $33,500; and tor the other libelants tor $6,500.
THE DESPATCH, (two cases.)
(DLBtrtct Court, B. D. Ntw York. :May 18, 1892.)
SALVAGE-DIFFERBNT SETS OJ' SALVORS-AwARD TO LATER ARRIVALS.
Though subsequent events sometimes show that of several salvors the services of those arriving later could have been dispensed with, such later salvors are not to be deprived of all share in' tbe award if they rendered accepted aid.
SAME-FIRE: ON VESSEL-TuGs-CITY FIRE: DEPARTMENT.
Fire broke out on a lighter lyipg in a slip in New York city. The city tlre department began work on the fire, and shortly afterwards came two tugs, which pumped water on the flames. Afterwards carne the barbor fire boat, to which one of the tugs surrendered her place. The value of the property saved was $17,000; one tug was worth $15,000, the other $12,000. Held, that the tug fiMt to arrive should receive $200 as salvage, and the other $75.
Libel for salvage.
Decree for libelants.