''rellma whether the repairs weremad'e upoa:tlltnl11lldit:of,the ,vessel Wuptia ihe credit of Mr. Addlc\!;:s. Ahswer. '1'hey"wel'eimaiie upQn the credit of Mr. Addicks. Q. And not on the .credit of the vessel? A. The was rendered to Mr. Addicks. Q. To whom do you look for the payment of the bill,L...::;Mr. A:ddicks or the veflsel? A. We look to' the'vessel for the paymentofJthe 'bHl\ through Mr. Addicks, as agent for the vessel."
, On cros&.examinlition this witness says:
"Question. These repairs and charges were made against Mr. Addicks, asL undeI;stand.were not? They were. Q. And it was on directiollE!You made the repairs? A. 1"68, sir. Q. Ami you t() hhn, 1 J'ou, the paymeht these bills which were contracted for as you h'Rve stated? Is that correct? A. We looked to the vessel tllrollgb him'as ali agent of the' vessel. We cannot do otherwise."
The'lnference to drawn frotn such testlmonY,supplemented as it is by ,$videtl6eofthedealings and transactions between the libelant and Mr., A.,ddicks, removes the presuhiptioh of a lien" and convinces me that had no idea or intention of looking to any other quarter for the the Now Then than'to Mr. Addicks; that it .q.ever theyilcht as security for payment, but depended solely respotislbiIity of Addicks as the husband and agent of the' 9wnerj that it is now too late for it to attempt to set up a lien, and it. must thereforcflleek to recover its claim bva libel in personam, or by: an' action at 'A decree will be entered dismissing the libel. with costs.<" "
et at. ".
Tllll T., bound ,from Galveston to Liverpool, went aground on. the Florida cclaBt'Ql)Out 25 miles north Of Cape Florida, December f>th, and was without assistmorning of ,the 8th, when two small vessels reached her. They at lI:ll.,anchor I\ndlleavy chain water] but befp.re could make fast tng-ht, came on, with a heavy stonn, durmg whicn the T. W\lS driven fast upon the rooky, bottom. Other vessels arrived until tbe 10th, when there were 15 vesof 489. tons,' and lI!en;. also wrecking. schooner Cor!lt., fr(l1I! Key West, with stear;n' PUII!PS and c:\tller appliances., The whole force was enga.i.ed 25 days in ,taki\1g o11ltthe (largo of 'cotton and carrying it to Key West, 158 Buies, a revenue the.re\n by toWing sOlI!e of the trips.' They thus saved 8,105 the largest part dry.' Tb:erewasno anchorage nearer'. 'than 25 miles, and BEl:Veral times the sal17lng vessels' were driven there' by bad weather. Two of them were pamaged While. taking of( the lleavy seas. Fina.1ly a wrecking vessel a,rtl"ed from New York, and,though her services ware not absolutely necesBalW, were accepted, and the T.: was 'got oft and taken to Key West. She was appraise, 11;1:.190,000, "lItt. her Held, that 25 per cent. would be proper 0, Wllensation' for the Whole, service, but in view or the 'aid rende.red by the revenue du1Jter and by 'the New York'V6ssel, for which the latter was compensated by tp.e tllere shOUld. be a.llOW'ld but 223i' per oantio
In Adlbiralty. steamship for libelants.
Libel by A. Russell and others agtiiristth.e British and cargo' to recover for Decree :'.' ,
L. W. Belhd, for libelants·. Jeff. B. Browne, for claimants. II
LoCKE, District Judge. This vessel from Galveston, bound for pool, went ashore on the Florida coast, about 2,5 milel! to the northward of Cape Florida, on the night of the 5th of December last. She had been ashore on the Bahama banks, and thrown overboard about 2,000 bales of cotton, a lot of copper, and lost her small anchors and hawsers in getting afloat, and was leaking some when she went ashore. She wasat a distance from any assistance, and received no aid until two of the smaller reached her on the morning of the 8th.. They had with them but 14 men, and went to work as soon as their assistance was accepted, getting out an anchor and heavy chain into deep wateri but, before they were able to get it to the ship and make it fast, night came on, and thfl wenthe:r and sea became so bad they were obliged to buoy th e end und leave, it. That night the wind and. sea were very heavy. The crew of the steamer did not consider it safe to remain on board, but went ashore onto the beach. During the night the salvors cou1L1 do nothing but remain on board. The steamer swung around onto the beach. and beat into ancl Upon the hard rocky beach until, in the morning, but 8 feet ofwater was under her stern, 10 amidships, and 12 torward, and she had sprung a leak, 110 that there was about as much water inside her as outside, with 6! leet of water on the enll:ille room. The weathercontiuued bad, so that nothing coulrl be done towards connecting thflchain withihe vessel or lightening the vessel of cargo, but saL·ors went to work breaking out cotton, and hoisting; it upon the deck, so as to be ready for discharging as. soon as vessels could come for it. On the 9th thre.e morewrecking schoonersllrrived, and on the morning of the .10th others" so that there were.an aggregate of 15 vessels, of 489 tons and nearly 200 men. The weather continued bad until the morning of the 10th, when they carried .out a wire cable, connected it the chain, and brought it to the windlass. In tbe mflln time the wrecking schooner Cora had with steam pumps, boilers, and other steam appliances. 'l'hesteamer had. no appliances by which manual labor could be tnadeavailable, no windlass breaks or capstan bars, and it was only when steam power could be used that anythinj( could be done towards hea",ing any strains on the anchor. The engine room and engines of the steap1ship were under water, and the only appliances that could be made available were those of the Cora. salvors continued diseharging cargo and pumping with theirsteam pumps. They had to bring the cotton to Key West, a of 158 miles. They got out what they could·of the cargo dry, but much of it was wet. They took out in all 3,105 bales of cotton, \>f which 2,266 were dry, and the rest from under water.. The weather was bad much of the time during the service, and for several days it was impossible to come to the vessel f(\r cargo. There was no anchorage or protection for the salvors' vessels nearer than Cape. Florida, nearly 25 miles distant, where they had to ',rhe water from the beach take refuge
where the steamer was lying, and she was exposed to the full sweep and force of the sea. In' order to facilitate the discharging of the vessel, the salvorslan,dedabout a thousand bales of cotton at Cape Florida, and after the vessel had been got afloat, and brought to Key West, that was also brought and delivered to the master here. The salvors were engaged for 25 days in the service, every day of which they were at work. They say that all nights except two they worked :until 12 o'clock at night, and those two until 10 o'clock. 1,631 bales were hoisted by hand; the rest were hoisted by the steam of their boilers. They carried out another anchor, and continued to keep their pumps going until the water was below the ship's engines. After the libelants had been at work 13 days, the wrecking steamer J. D. Jones, sent out by those interested in the property, arrivedfrom New York, and offered her services. Thevessel had been about pumped out, and moved from her bed, and would without doubt have coine off the next tide, but the libelants deemedlt safe to accept all the assistance' offered,so permitted the J. D. Jones to layout another heavy anchor, and take a line from the steamship.. They also put a large steam pump from her on board the Tregurno, to he ready in event of an unexpected leak. They finally floated the and brought her to Key West; Upon an examination she was found not to have been materially damaged, although her bottom was somewhat· dented. Many riv'ets were broken out, and the seams were leaking in places. The property has been appraised by appraisers appointoohy the court,-the vesselat$90,OOO,and the cargo at $115,446. This,was unquestionably a salvage service of considerable merit. The property was in It condition ofperil ; the vessel liable at any severe weather to be so broken arid injured as to be worthless; and the cargo, even if saved from going adrift, to be so scattered along the beach asto be considered but little less than a total loss. The master 'was utterly powerless to relieve or assist the property in his charge, and there wae no aid that could be procured, except the salvors, nearer than Norfolk or New York. The property of the salvors was exposed to dangers very much greater than of ordinary commerce and navigation. Two of their vessels, while alongside endeavoring to take cargo, were damaged by the heavy sea and bales of heavy wet cotton. The labor was severe, unremitting, and long continued. 'The were, with a few exceptions, regular licensed wrecking vessels of this district, whose duty it is at any time to go to the assistance of property in distress, and are dependent in a great degree upon earnings from such services. They have rendered valuable aid to the property, and 'are entitled to a liberal compensation. In defense of the salvage claim, or in mitigation of it, it has been urged that the first set of salvors-those who first arrived-were remiss in their duty in not laying out a heavy anchor, and making the ship fast by heavy strains, to prevent her driving further ashore that night, which necessitated so much subsequent labor and damage. The salvors bound to do, in the line of salvage service, all their powers and the means within their control can possibly enable them to do, and whehever;from lack of en-
ergy, activity, or effort, they leave undone anything which they might have done, it will be considered in diminution of salvage; but in this case I am fully satisfied that it was not within the power of the few salvors there the first day to have connected the heavy anchor and chain which they carried out with the vessel before the weather became so bad that it was impossible. The master does not show by his testimony that it could have been done, and the statements of the salvors, and the entire circumstances at the time,' satisfy me. I am also satisfied that after the first night the vessel was not driven any further ashore or aground on account of any discharging of cargo, and that there was neither loss of time nor damage to property on account of not carrying out a hawser, making fast to the cable, and heaving chains before it was done. I am therefore convinced that the salvors did as well as the means at their control would permit, and there can be no reduction from the merits of what they really did do for their inability to accomplish more. It is also urged that several of the salving vessels while engaged in this service, and whIle on their way to or from Key West with cargo from this vessel, rendered aid to the steamships Erl King and Manin, which were ashore at the same time. This appears from the evidence to be true to a certain extent. It does not appear how many of such vessels rendered such service, or how long they were engaged, nor does it appear that such number was sufficiently great to interfere with or delay the work in this case. at most, it prolonged the service a day or two, there was no damage to the property, nor injury to the interests in this case. Unless those other vessels, when found in distress, had ample assistance, it was the duty of the vessels engaged in this service to render them all the aid within their power, and, unless it is shown that they neglected property in this case to its injury, there is no reason that it should diminish their compensation. The services of the revenue cutter McLain were secured for two trips in assisting in towing some of the schooners to and from the steamship. Although no amount can be allowed for this vessel, she being the property of the government, the expense of coal and other supplies must be paid, and her officers and crew are entitled to a compensation, although at a much less rate than the regular salvors. The wrecking steamer J. D. Jones was employed by those interested in the property, and will be compensated by them, and her services are not to be paid for from any salvage given in this case. In determining the amount that may,reasonably be allowed for this service, there are a few peculiar circumstances which influence the decision. Numerous cases have been referred toby counsel in the case, both from this district and from the district of Virginia. We find com paratively few cases in this district where the circumstances resemble those of this. The character of the bottom and the exposure to the sea from deep water usually requires immedillte aid, and wherever the vessel has been saved it has bep,n by an immediate lightening of cargo and floating by means of anchors. 8el·dom has one so far aground and so filled with water been rescued. In
most oftl:iosecaees. tlia.property. was in greater 9anger from damage than :th,is, but saved 'with much less labor and less time; and, although the rate per oent. given has, where both vessel and cargo have been saved,. been, much) less than I consider may be fairly.given in this case1tbe amouilitB of the individual shares have been mucbgreater, when the timeooebpied is taken into coDsideration. The:easesof tl'heKimbiwley,'reported in 40 Fed. Rep. 290, cited by the claimants,and; of The Sandringham, 10 Fed. Rep. 562, and The Egypt, 17 Fed. Rep. 859, resemble this case more in the peculiar circumstances than the general class of cusesjn this district. Those cases, all decided in the eastern district of Virginia, were for the salvage of iron steamships and their cargoes lipan auunillhabited coast, at some distance from assistance; where the cargo. had to be discharged, the water pumped out, and the vessel hauled oli' by anchors. Each of those vessels lay upon a sandy bottom; this one, on a rocky one. In The Ki'mberley the cargo had to be transported 60 miles to port, in The Sandringham 30 miles, and in The Egypt about 40 miles; in this case, it wIls158 miles. In those cases assistance was within those distances; but in this, very'nearly allof the aid came from Key Wt'st, 158 miles. In those cases the shoals outside and around the vessels necessitated taking oft'the cargoes, or much ofthem, in the· surf boats, but at the same time prevented the full force of the sea from reaching the vessels, as it did in this case. Here the full force; of the sea -reached the vessel ushore. 011 account of the ' nearer approach of deer' water, and, t1tere being no anchorage, rendered' the position of the salvors' vessels une of greater peril. - Here, as in The Sandri'ngham, the steamship's crew left at the first appearance of rough weather,and"themasterfhaving no idea his vessel would be saved, sent tbemto KeyWest.to beforwa.rded to England. ltis a queslion: whether in this case the time occupied and labor performed in taking the cargo the greater distance to port, does not fully equal that attendilll1; the boating of.the cargoes off in those cases. In thecllse of 'l'luL8andringham, where the salvors were engaged about a took ,out 1,049;bales of cotton, the court gave one fourth of the vnlue, which was $193,000. In Egypt thesulvors were engaged 8 days,. discharged between 1,100 and 1,2UO bales of cotton, and the courl gave one filth upon. au agreed estimation of $250,000, in addition to 84,2.'16.55; which amt:lunthad been expended by the wreckers. In The Kimberley, where the labor WaB , more protracted and severe. the court gave an award of 20 per, upon Qi value of $490:,000 as a bonus or gratuity, in addition to an amount expended and perdiern compenslltion for the vesselsandappliooces ,of the, salvors, amounting to $46,000, or a total snlvageoompensation of &144,000, or abont29percent. upon the toh\l valuation. An appeal having. beeu taken, the case was compromised for a oompensation ot' .100-,000. In the case of The City of Worcester, 42 Fed. Rep.' 913, where. the vessel was on the rocks near the entrance to New London harbor, and valuable servioes were rendered by patching and repairing holes in the MttOlU, getting her afloat, and taking her to New York, &31,753.52 was given on a valuation of &237,500.
In this case the property has been appraised, py aboard of appraisers appointed by the court, at $205,496, such appraisement objected to, and sUllh objection fUlly heard by evidence and argument, and, although some doubts have been thrown upon the absolute correctness of theappraisement, nothing has been offered'showing that a more satisfactory valuation could be arrived at without handling, sampling, and classifying each bale of cotton. This is.. deemed an unnecessary expense, and, while the. valuation may be too high, it is possible that it is too low, and the report of valuation will be accepted as sufficiently near the true value to justify the determination of salvage. Had there been no aid or service rendered but what was represented and entitled to salvage under the libel, I should not consider 25 per cent. of the net value of the property saved 8S unreasonably large, and should make that award; .but t4e vlllue of service of the revenue cutter McLain, as well as of those of the wrecking steamer the J. D. Jones, must accrue to the benefit of the property, and not of the wreckers, and must reduce the amount of the salvage to that extent; and it is considered that 221 per cent. of the net value, found by deducting from the appraised . value the costs, expenses, and charges for the care, custody, and control of the property, and the costs of the suit from the appraised value, would be a lair award; and it is so ordered.
THE EL J)ORADO. JOHNSON
'l1. THE EL DORADO.
(Df.Btrict CO'UIrt, B. D. Flori.da.. April 28, 189S.)
SALVORS-WHO ARB-ADDITIONAL ASSISTANCE.
The steamship E., of 2,500 tons, bound from New York to New Orlean!!, with a valuable cargo, struck a rock on the Bahama banks, partly filled, and was soon after grounded near Bimini, in 32 feet of water. The 'wrecking schooner C., of SO .tons, with proper pumps and appliances and 22 men, went to her a88istanoefrom Key, accompanied by a revenue cutter. A diver with a diving suit worked continuously'in stopping the leak, while the rest of the crew were engaged in removing submerged cargo in order to get the suotion pipes into the hold, the cargo being placed on the C. After five days' work other wrecking vessels arrived from New York. The following night the C.'s rudder was'carried away in a squall, and as she was thenheavHy laden, and as the I'6venue cutter, which was about to leave, offered to tow her to Key West, her master decided to go that day, against the objection dfthe master and agent of the E., who desired the saved cargo to be transferred to one,of the New York vessels,and offered to the owners 01 the C. agaiilst her loss. An additional reason for desiring the protection of the revenue cutter was that there had been threats of seizure for wrecking in what were claimed to be British waters. 'JIbe C.left with the E. her pumps and most of her crew. The E. was finally floated, taken to Newport News, and therelibeled by the owners and crew of the C.; who also brought this libel against tile cargo carried to Key West. Beld, that libelants were originall\alvllrlil, 'Ilotwithstandlngthat the services of the V.888.els from New York were finally eftlcaoioUII in Baving the vessel and most of the cargo. "., "
SAME-MISCONDUCT OF SALVORS.
Under the circumstances it was not Improper to carry the saved cargo to Key West, as it was not improbable that the E. and the rest of her cargo would be entirely, lost, and as there was no o1fer to guaranty the salvage, especially in view of the needed protection of the revenue cutter.
Sl!Jvage could only be awarded with respect to the cargo brought to Key West, and the fact that, while engaged in saving it, the salvors were also rendet"ing val· uable'services to the steamer and the rest of the cargo, for which proper compen. sationwould presumably be awarded in the proceeding against them, taken together with the fact that the vessel was finally saved, are reasons which should operate to reduce the salvage below the usual percentage allowed in the district for diving up cargo; and therefore 25 per cent. should be considered a proper allowance.
4. S.l.ME-VALUE OF RES-STIPULATION·
. .Where the claimant, in order to get possession of the cargo after the filing of the libel, stipulated with libelants that its value should be considered as $18,000, he was from afterwards disputing this amount, or proving that the cargo sold for tell! after transportation to New York; bu.t as the stipulation was in place of an apPraisement, and as it is theJlractice of the district to deduct from the appraised vallie all charges and expenses incident to the custody of the property, such deductions.should be allowed from the stipulated; value.
In Ad.Pliralty. Libel by B. W. Johnson and others against a portion ,of the of the steamer EI Dorado.. Decree for libelants. Jeff.B. Browne, for libelants. G·. B,owne Patterson, for claimants. LOCKE, District Judge. Thi's steamship, of about 2,500 net tonage, laden with a valuable cargo, bound from New York to New Orleans, struck an unknown nnd uncharted roeknot far from the Great Isaacs, on the Bahama banks, on the night of the 4th of August, 1891. She was soon found to be leaking badly, and was run ashore on a sandy bottom not far from Bimini. .The leak was in' one of the forward com partments, so that she had settled very much by the head, her bows resting for about 30 feet on thesandy l>ottom in32 feet of water, while the rest of her length was afloat, drawing at her stern but about 18 feet; but she was water-Iogged,and had 11 heavylistto port. While in this condition the wreckers from Bimini and the other Bahama islands came on board, and were permitted to discharge cargo from between decks "and take it ashore; but they had no appliances for stopping leaks or relieving the vessel in any other way, and the master,em ploying one of the Bahama boats, sent his first officer to Key West for aid. Mr. Philbrick, the agent of the owners of the steamship line, made application, to the libelants owner and master of the wrecking schooner Cora for aSf'istance. She was a licensed wrecker, l\schooner of about 80 tons; fitted up with four steam pumps and boiler, a diving suit and apparatus, an experienced lliver,anchors, hawsers, and other wrecking appliances,and was used onl)' for salvage purposes, but was then lying with a ship keeper and '. , master on board. In a short time they had selected from the experienced Key West a crew ;of 22 men; and sigrtified their willingwreckers ll.nd nak;ed to the stranded ship, but suggested that, as the Cora was ness to a sailing vessel, it would save mU<lh time if the services 01 the revenue
THE EL DORADO.
cutter McLain could be procured; she being the only steam vessel in the harbor. Both the owner of the Cora and Mr. Philbrick made application to the collector of customs for the revenue cutter to take the Cora in tow, which was granted. The libelants in the Cora, in tow of the McLain, reached the El Dorado, Sunday, the 9th of August, and immediately went to work. Johnson, the principal libelant and subqlarine diver, weht under the bottom, while the others went to work getting out and setting up the pumps. Johnson found the port side of the steamship uninjured, but on the starboard side he found extensive damage,seams, cracks, and holes, more or less open, for the distance of about 28 feet. These he went to work repairing, and qontinued patching, plugging, wedging, and calking with wedges, plates, patches, and rolls of blankets; working under water more or less every day until Thursday afternoon, when, in adjusting a large canvas patch over the holes which he had stopped, he discovered another large hole further aft, which he was unable to repair that day. In the mean time the other libelants had been at work rigging up arid using their four steam pumps, and breaking out and getting up the cargo from the hatches of the first and second compartments, in order to get the suction pipes down iuto the hold. The water came inside the hatches to the coamings, so that everything that was taken out was taken out from under water, and, after a short time, from water several feet in depth, by naked or skin divers. When the pumps first got to work they apparently lowered the water, but subsequently they found it impossible to pump the ship out until all the holes were stopped, and after working some time, concluding that there were no holes in the first compartment, but were all in the second, they removed their pumps in the first hold, and went to work in that; hoping to free that, and to float the vessel; but it was found that the doors between the two compartments were not tight, but sprung open by the pressure of the water, so they attempted to work out the cargo so as to reach and tighten them. They worked this way from early daylight until late every night, diving up, hoisting out, and putting on board the Cora the cargo from these holds, until the night of Friday, the 14th, when she was filled with aU could carry. On that day the wrecking steamer the 1. J. Merritt arrived from New York with more pumps, divers, and other appliances. Libelant Johnson was nearly wom out with having been under water so much for the last five days, and the divers from the Merritt continued the work which he had commenced. The night of the 15th the vessel, being exposed to the wind by her stern being raised high in the air, was struck by a severe squall, and, although they had anchors and hawsers laid out from the mast heads, and the revenue cutter towing to keep her on an even keel, went over on her beam ends, and commenced to fill; when, in order to bring her upon an even keel, it was necessary to flood the fire room, engine room, and the holds fore and aft. Her crew left her, and most of the master's personal effects were taken off; the chief libelant and Capt. Byrne being about all that remained on board that night. The next
s,aw,e, line, arrived from. New as she might her rudder lWf!.d. in a squall, aria W,8ltltQ and was loaded with as cargo as she ['he cap,tainof the' cutter dedcl.ed on returnWtlstillnd her in,tow' to tha:t ,port, and one of offer., Capt.; ,B.Yl'De, , tPe Mr'i.Morse, superjntendent of the lin!'lrthQP.. OJl ,bllard of tqe York,objected 1 and deSired to put th,e,earg'i» :frQPJ, J4f!Cora OA board the :rse\V,York, and to lighten to b;ut Williams,'fearing for inhEjrdisaqled in event of a hui-ricane, which migi,lGaha.ny)ime &t (seasoll of the year, and desiring the Proteotion p,f .tl,l,6 from. the fnet tq8,t threatjl. o( seizing: her.fQJ':'Yrecldng claimed to be Britisp' had been Mr· .Morse to repair the. sliJety ofthevef3sel, but ants did of any validity ,and thei declined 19 ,ac9l'lptit, &nd theprotectionofthe cutterj andbrought,1pecargQ then on West, where it was delivered. clairpllpt, and a,.fterwards libeled for salvage., 'tlWm the chief libelant, the marin,e most diYllrs the Cora, remained.QJ;1, JhqlJ.il"d ,th;e El,. DQrtl,Qo, in, the repairing;puQl;p!;nglllnd ship,&nd t4kirig ,Per to Newport News,: efforts to ,s. settlement, the was libeled ' TQ;6;,rest of the cargo; been taken outof. Yorkj, !Vlls libeled there, and these '.,.' ".'. ' ; , Thepnb' "luestion if ,q,y, is due from the taKey on"the Cora,? Bot the allegations oLthe pleagiQgllan!iJheJ.estiwpny has so CQverall. the entire servicerentleredtbe, ,nd the is to detarmtne jU8t where :th.(l.'3e.:f\l;ice" bene,p.,t, and gl)neP4 interest ceases, Cargo. qegips." The property was gisaster; it wall, pertain ofJPt&110ss. without some BU0h anqbas far as.timeallowed; tll1d, ,;expained away <>tberday or:tw;o,fIit the.fli'rtl:\est, Jopnsqn would pavQ:9,een able to com.the. oft1W.· hole" and in time to have freed the llbip. of and stopping Ilrrivill.of that I tj:link the leaks bad: beet!, d.o.n,e, the probthesenTjce, aD9.;,IcaDllot accept the pPsitioft steamer Wfilre alone valuable. The sgQooner, pumps, armor had beentitted Qot.lM of. bJ' Chief andwero Y()tk;fpJ' The
keptool1'for wrecking 'llndsalvagEl'purposes. This district had long been without the modern means of saving property, and it had' been frequently intimated from: the bench that if ,more capable means were provided· it would, he for the interest of commerce. and frequently enable the wreckers to earn more libeval salvages, which commerce could well afford to Pll.Yi8nd in an opinion in the case of The Slobodna, 35 Fed. Rep. 537,-a case in which had the wreckers had steam pumps the ship would have been saved,-I mention with much regret thatit did not appear that +'he modt>rri "'recking lippliances could be profitably introduced into this district on account of the extent of reef line to be watched and the character ofthebottom" from which vessels required immediate relief. Since that the libelants have procured, at much expense and trouble, appliances which have done good work in saving property which would ha\Te been lost, and which, if not as complete as those of some wreck. ing companies of other districts, are certainly entitled to encouragement. It is trilethat neither the services rendered by the J;ibelants nor by the steamer Merritt to the steamship EI Dorado and the rest of the C'argo, after her arrival,call have any weight in the question pending in this case, as the property for which salvuge is claimed had been saved, dived up, and taken on board the Cora before the arrival of that vessel; but the pleadings, arguments, and evidence, attempting to show that the libelants rendered nO aid to the property, appear to demand an expression of opinion upon that point. But coming to the property libeled herein, I am satisfied that it was necessary that it should be tak"en out, both to lighten the ship forward, and tGenable the suction pipes to be put down into the hold. It is plainly shown that, after the Cora left, more ofit was taken out and taken to Nassau. The master was helpless to accomplish this by his crew, and, although the answer alleges that there were a superabundance of. men and vessels of the Bahama wreckers employed by the master to lighten all the cargo of the steamship to North Binlini, yet the future history of thecargo,so lightened, ,as given in evidence, shows that it was finally transported to Nassau, and thence to New York, after paying a liberal salvage. , The saving and taking out of this cargo, whether in respect to saving it, or in respect to its connection with the saving of the vessel and the rest of the cargo, could only be performed as a salvage service and for a salvage compensation. It was not within the power of the master to procure aid to perform it in any other way. whetherit went to Eimini and Nassau, and paid salvage there,or on board the Cora as a storeship. The master had put his vessel into as comparatively a safe place aspossible, yet the peril was great, and the prospect of a final saving of the entire property small. A vessel situated as this one was, leaking badly, fathoms of water, and her with her stem resting upon the bottom,in stern elevated and; exposed to the force of the wind and an open sea for 12 points of the compass, at the season of the year when a West India cyclone might at any time be expected, is in such a condition as to make
a service rendered to any particle. of pr()perty, either. vessel or cargo, a valuable one. But it is contended on behalf of the claimant that the bringing of the cargo to this port of Key West, and asking compensation here, was wrongful, injurious to the property, and involving the expense of freight to New: York, so that the libelants have forfeited any. salvage which they might have earned from it. Would the facts and circumstances under which the Cora returned to Key West with this cargo demand such severe and extreme penalty? I do not think the evidencElshows bad faith sufficient to justify such decree. We can only judge of the purposes andintentions(').i' the integrity of one's actions in the past by the then present conditions and circumstances, and not by the light of future events then unforeseen. At the time the question whether the Cora should return to Key West or not was pending the El Dorado was sunk, -,-1yil?-g upon the bottom, with the water coming up on the lea side for some distance over the upper deck. Capt. Byrne says in his testimony that "the prospect was that the steamer might become a tota1loss." The steamers New York and Merritt, as well as a number of Bahama vessels, one liS large as the Cora, and an abundance of men, were present to render what aid was necessary. She took away neither her pumps, her submarine diver, nor her skin divers, nor in reality anything that could be needed in the future 'preservation of the property; her presence with that of the men that left in her could have rendered no further aid than did those remaining, and the fact is that she returned to the service as soon as she nould be repaired. In examining the argument made by the claimant that the cargo was taken to aport inconvenient .and expensive for the owners of the property, the rights. and interests of both parties, .and not of the claimant only, should be considered. It isa well-established principle of salvage law that while the salvor is not justified in unnecessarily and unreasonably taking a ship or goods to a port inconvenient to the owners, (The Eleanora CharwUa" 1 Hagg. Adm. 156,) yet the master has no righLto insist that the ship or property shall proceed or be taken to a distant port, inconvenient for the salvors, without first satisfying their demands, (The Houthamdel, 1 Spinks, 25;) and, if the master insists, the saivorsare justified in going so· far as to resist his attempt, take control of the ship, and take it to a convenient port. and place it in the custody of the law, (The Nicolai Heinrich, 17 Jur. 329; 22 Eng. Law & Eq. 615; The La Bruce, [decided in this district by Judge WEBB. 1837,] 1 Adm. Rec. 84; Marv. Wreck. & Salvo 150.) When the master and Mr. Morse offered to guaranty the safety of the Cora they made no ofl'er to guaranty any salvage Oll what had been taken out, and .was then in safety on board the Cora. The Cora was disabled, and unab1eto take care of herself in bad weather. There had been threats of seizing her. The revenue cutter, whose presence, so far, had been a protection to her, was about to leave, and was willing to tow her to Key West for repairs. In this case, under the then existing circum-
stances, whioh port would seem to be the most inconvenient and unreasonable, the rights of both parties considered.-taking the cargo to Key West for adjudication of salvage, or compelling libelants to surrender possession, and resort to the courts of New York for their proper compensation? The owners of the property were unknown, it had been separated from the ship by the marine disaster, and, in event of its further loss, neither owner nor master of the El Dorado GOuld be held for salvage on it. Both claimant and underwriters had their resident agents at Key West ready to look out for and protect their interests. The destination oftbe vessel and of the cargo was not New York, but New Orleans, a port much nearer Key West, and it appears that it was undetermined at that time whether the ship, if saved, would continue her voyage or not. There was no certainty at the time that anything more would be saved to which the libelants could look for any salvage compensation they had earned, and they had a perfect right to look to this property itself. They were engaged at and came from Key West to render the service, and that was the district most conveniently reached, and the nearest to which damaged cargo could be taken. Could it have been foreseen at that time that the EI Dorado and cargo would be saved and taken to New York, and the libelants compelled to follow and institute suits there, without, doubt they would have preferred two suits to three, and been perfectly willing that this cargo should have accompanied the other; but the delivery of this cargo in question to another steamer would have neces::;itated following it by the libelant::; with an action in rem into whosoever hands it came. I consider that, viewing the condition of affairs as they stood on the 16th of August, libelants were sufficiently justified in bringing the cargo of the Cora to Key West to prevent the forfeiture oLany salvage they had earned in saving it. They had a lien on it which they had a right to enforce; it was in their pos::;ession, and could not be restored to the El borado or her master; and I do not consider that the q1.1estions, risks, and inconveniences apparently necessarily involved in delivering it to another vC&sel. required or demanded such action so as ,to entail the penalty of forfeiture for not so doing. Determining this is deciding but one question of the ease,-the right of libelants to salvage; the amount of the salvage is a more difficult and delicate one. How shall the value of the services rendered the balance of the property in taking this out be separated from the value rendered this cargo alone, and the latter only considered? In this case the merchandise was all taken from under water, rendered foul by potash and tobacco, by diving to different depths, from 5 to 10 feet. The labor was disagreeable in the extreme, and carrried on with all the energy, skill, and ability demanded. There are, though, two grounds upon which it might appear reasonable that the ordinary rates in this district given for diving up cargo from a vessel should be departed from in this case: (1) The vessel was finally saved, thereby showing that the danger to the property was not as imminent as where the vessel is lost. (2) The libelants in this case, were rendering valuable aid to the vessel and rest of the cargo,
tiil4 uit is I, at' tbe-'l lI,6'w'farshould'th'es,e the salvage in thiscase,if ataH? :":THis'cargb, QrtM'greaHirpartqfil','which 'was taken outfl'otti the equare nbtobly in eeru\.indanger of totallosB un'lessremoven. of'the'l1atehes; It takl'ng It .o?t; 'It tJe,en It. In the case of the BntIsh 1874,: (10, Adin. Rep. 595,) where' Hie' was 'taken' . by diving; ,and the vesselatterwards aa'\i'eu by w'eU:agJ'iri the' case of The AmiM,(1872,) Id: same, I had an ,opportunity to eXinuirie this que'sHon;and considered that, where itwas ab;; the cargo should be 'removed for the perservation of the yessel, the property WIlB i·n 'as great danger as where the vessel is finally lost, 'or, rather, is just asurgent. I do not ,tlianhe fact that tltevesseI was finally saved in this case have any more in those, or in the case of the cargo that went from theslHp to NhSElau.' , " 'The other ground; that thelioellirits were earning other salvage at the sarrie time, presents a more diffi,ctlltquestion for consideration. A fair, reaeqUitable bonus or gratuity, is all tbatean injustice be given, in elise of property savea from marine disaster; andwhere a. rendered to property of a large value, a small rate per cent. will pay than a latgerrate upon a smaller If ffo41 \llis'case as tried that' a valuable service was tpis vessel.and, the' 'entire cargo, and it is to be presumed that therewill'be awarded a fairantlJjust salvage for such service from such property, but how far should sn'chpresumption'irifl'nence an award in this case? There is nothing in this case to inform the'court of the vilue of the entireproJlerty,' so that it could be about what would be a tair/rate upon it, 'nor ca'n'thls court decide how, when those other cases colhe'on to: be'tried, th'ejinay appear;, or, what llJay be the decisions of thostl conrts. The clairiumt herein is, contesting such ,claii118 for salvage,8,Ilcl"by his allegations denies the value of these \:iervices,andallegesthatno substantial service Wa.. rendered until the . 'iLrrival of the Merritt. , lIad decreesbeeri given in tnese pending cases, this court) could very Justly consider such awards in determining this :dase, as tHe courts of the other district!! clin properly consider any award llIade in this case; but, in the absyDce of any such decrees, I do not consider that it.is equjtlj,ble or just to. :deflrive the salvors in this case of 'dtlythjng they have actual!,f earned ftortrthe property libeled, ip antid:patiOll decrees' ?th.er property; : Consldeifpg thIS m rel,atloil to the property hbeled only, what would' be a faIr' and Just compensation? The .numerous cited tw the. case' of1'MSlobod:na, ,35 Fed. Rep.'Q37, show what have belm tM usuahates for div'ing/ tl'papdsaving <iargoin this district for matly j'ell.rs.· Taking cotton in bales tis:..ubasis, thehite& have usually
THE' .EL DORAD\).
been '25 :percent. on that saved dry ,40 percent. upon that /Ja.yed from water, but without diving, and, 50 per cent., or sometimes eVEln higher, for tha.t13avedbY,4iving, according to the peculiar circumstances of the C,!lse depth of the water, and I have never found that such rates have compensated the salvors toogenerously for the time and labor and seJ;vices;renGiered. In otij,el' cases of merchandise than cotton, the rates have, at timea, varied according to the bulk, value, or character of it, sometimes being more a.ndagain This was o( more value than cQtton, and a less rate than is ustl,ally onrthatwouldappeartobefair, even if the libelants had no interest thereat of the property in peril. In the case of The (recently dljcided in this court,) 50 Fed. Rep. 94q, ,where a stearner,was a rocky beach, was leaking,full of water, and had to puye all of her ,out before she could be floated, in caSeS decided in and The Sandringham, 10 Fed. Jwp.56,2;ThtlEgypt, 17 359; The Kimber,ley, 40 Fed. Rep. 289; The City of Worcester,42 Fed. Rep. 913; and other cases, - I considered 25 per cent. not an unreasonably large salvage upon the entire ship and cargo; and, had the libelants done nothing but save the merchandise herein libeled, the same rate given in The Tregurno (25 per cent.) would not be deemed unreasonable. This is less than was voluntarily paid the Bahama wreckers for similar services, and will indiviLiually give the salvors but about $80 per share, which is not deemed too large, simply as wages, when the time occupied and the character of the work is considered. On that cargo which went to Nassau there was paid from 30 to 35 per cent., and this Chief Justice YELVERTON in the case of Braynrn v. The El Dorado, in the vice admiralty court at Nassau, January 28, 1892, characterizes as being" most grievously underpaid." Certainly, had this cargo gone the same way, it could have had no better fate or incurred less expense. In order to procure ,property after in was libeled, a stipulation and agreemerifw:ds entered into by libelants and claimant that the value of the property should be considered $18.000, and that that value should be accepted in lieu of an appraisement. The claimant in his answer now denies that the property was worth $18,000, and alleges that it wab taken to New York, and there sold for less than that amount, and offers to introduce evidence of the sales, proceeds, and expenses. It has frequently been the practice of this court, when satisfied that an error has been made in the appraisement, and the property is still iI) its custody. even after judgment, to open the decree for a rehearing upon the value, and receive further evidence upon that point; but where partit's, by agents well versed in this class of property, after a careful examination of it, agree upon, and stipulate for, a certain amount for the purpose of getting possession of it, take it beyond the knowledge or control of the court or the other party at interest, and dispose of it ex parte, I consider it would be a most unsafe practice to adopt to permit them to come in, and, by asking, set aside their agreement. If force
and validity ever to be given to an agreement, it seems that it should be in this case, and I must hold that claimant is stopped from questioning the value of the property. But that stipulation is that that value shall be taken in lieu of an appraisement, and as the value of the property at that time. It has been the established practice of this district, where a percentage of value is given, to ascertain the net value by deducting .from the appraisement all expenses which have been incurred in the Care and custody of the property up to the time of so determining i,ts 'Value, and this seems but fair in this case. It is therefore ordered that there be deducted from $18,000 all of the expenses of labor, warfage, and storage, etc., incurred in the preservation of this property previous to the 31st day of August, that being the date of the agreement, together with the costs and expenses of this suit, and the libelantS receive 25 per cent. of the net amount thus found, and the matter be referred to the clerk, as commissioner, to ascertain the coste, charges, and expe.use8, a.nd make the computations.