" ,., .. r
i'EDERA L REPORTER,
ants.' fir:ql of John 'Stewart & Son, illltnufacturers of rugs, etc., and he made a'rawings of a loom for this purpose. . About the middle of September, 1889, he gave verbal order for such a loom to the Loom Works. It and tested satisfactorily about the middle of November, 1889, and on the 21st day of that month the defendants ordered from the Crompton Loom Works 25 such looms. The delivery thereOfcommenoed in the last week of December, 1889, and these are the looms alleged to infringe the plaintiffs' patent. The proof thus disclosed the .significant fact that the conception of weaving Smyrna rugs by power instead of by hand occurred about the same time to three different namely, Joseph H. Bromley, Thomas BrOmley, Jr., and George William Stewart, engaged in the of these rugs, whoee, respective firms, acting independently o( e!l:ch other, gave orders to 100m. builders, who thereupon constructed power looms for the purpose'" difterent structurally, but, all having mechanism to stop the, loom after every and for restarting it by the foot. , This coincidence is confirmatpry of our conclusion that 11;0 invention ,in,. ,a patentable sense' was involved in the. ,first and second claims of the patent in suit. Atlantic Works v. Brady, 107 tr. S. 192, 199, 2 Sup. Ct. Rep. 225.. For the reasons above. the lack ofpatentable novelty; and, second, becausfil of crear antiCipation shQwnin the FU,rbush loom madein the summer of 1888-the plaintiffs' case fails. Let a decree be drawn dismissing the bill, with (;os15.
LOT OF WHALEBONE. August 30, 1892.)
et al. v. A
(DiBtrlct Court, N. D. CaU/ornia.
SALVAGE-WUAT CONSTITUTES SALVAGES'lmvlOE.
A whlli1ing yess!!l with a cargo of whalebone and oil went ashore in tl1e ArctiC sea. Herrlldder and keel were and her machinery displaced. Every ef· fort to get' her off WitS nnavailing, and dist.ress sig-nals were displayed. A similar vessel in the vicinity, b,ut the dangerons condi,tion of the .sea pt·e· vented any response. Next morning a message was sent by the captalD of the wrecked 'ship,to wit, that if the captain of the salving ship would "set his colors to the mizzen peak he would leave his ship, and come aboard; or, if he that his botiecoutd be saved, to send his boats for it." There was some conflict as to thepllrport of ,the message, but it was decided that the weight of, testimony and the surroupding cIrcumstances indicated that the captain of the wrecked, vese sel was anxIOus to escape with his crew; and the saving of the cargo was a secoudary The whalebone was rescued, and landed safely in: port. Held, the bone must be regarded as having been quas1, derelict, and the ,service in securing it a salvage service.
When Bome of the.owpers ofa salvipg ship are also part, owners in the salved property, and their interests in the respectiye properties are varied and graded, and .where it is:necessary, in order to effect an equitable adjustment of the question of salvage, Bnd avoid a multiplicity of SUits, that all of the owners be made parties,
LOT OF WHALEBONE.
question of salvage ttlustbe as betweeTithe salving ship as one party and the salved property as the other; and such owners are not entitled to be dismissed as colibelants on filing a petition therefor. The property saved from the wrecked ship was worth $25.797.25. The labor of 80 of the crew of the salving ship was required for se\'eral hours to transfer the bone. Great skill and energy were displayed and personal risks incurred in effecting the transfer, which was made in boats, through the ice. The salving ship, with her cargo, was worth $75,000, and was exposed to the same fate which overtook the wrecked vessel. She was engaged in whaling at the time, with a prospect of a further catch. The season was short, and time was valuable. Held, in view of these facts, that the libelants were entitled to one third of the value of the salved property, to wit, $8,599.08. the shipowners to receive $4,000.54., and the remainderto be distributed among the other libelants according to the services rendered. as ascertained by the articles of shipment.
SAME-WHO ARE. SALVORS.
The fact that a part owner in a salving ship also. has an interest in the salved property will not prevent him from sharing in the salvage. .
in Admiralty. Libel for salvage. Decree for libelants. Edward Gray Stetson, for libelants. Andro8 &: Frank and Page &: Eells, for claimants.
MORROW, District Judge. This is a suit bronght by William Lewis, .of New Bedford, Mass., managing owner, and Joseph Whitesides. master,of the steam whaler Belvidere, on behalf of themselves and of the .other owners, and of the officers and crew of the vessel, and all others entitled to recover compensation for a salvage service in rescuing a lot of whalebone from the wreck of the steam whaler William Lewis, near Point Barrow, in the Arctic ocean, October, 1891. On the morning of the 3d day of October, 1891, the steam whalers William Lewis and Belvidere were engaged in whaling in the Arctic ocean, .about 25 miles northeast of Point Barrow. Both vessels were bark-rigged steam whalers. The Lewis was the more powerful vessel of the two. She was commanded by A. C. Sherman as master, and her crew of officers and men numbered 47. She had on board a lot of whalebone, subsequently valued at $25,797.25, and 250 barrels of oil, of the value of about $2,500. The Belvidere was commanded by Joseph Whitesides .tiS master, and her crew of officers and men numbered 44. It is alleged in the libel that she was worth, with her catch, supplies, and equipments, in the neighborhood of $75,000, and this is not denied in the answer. About 7 o'clock on the morning of October 3d the wind commenced to blow from the northeast, and continued to increase during the day until about 4 o'clock in the afternoon, wben the gale was accompanied by a heavy snowstorm. The Lewia and Belvidere sought shelter under the lee of Point Barrow, rounding that point between 7 and 8 ·o'clock in the evening. At the start from the whaling ground the Lewis was in the lead, but the Belvidere, steaming a little faster than the Lewis, obtained the lead, and kept it r.ntil the Belvidere came to an ,anchor in shoal water, south of the point. At this time it was snowing hard, and dark. The Belvidere dropped both anchors, and, in bonse,:uenceof the shoal water,. blew three of her whistle, to notify the
Lewistbat dllJlger. The Lewis was about two points off the starboard quarter lheBelvidere; In a few minutes it was discovered that the Lewis was ashore. The Belvidere kept up steam all night, and steamed up to her anchors to relieve the strain on them. The vessel drew 16 feet of on sounding that she had but feet of water under her keel. When the Lewis ran ashore her engines were reversed, and sail to back her off. Everyeff!>rt was made in this direction until about UP.M., the vellsel pounding heavily all the time, when the propeller refused to revolve,andit was found that the rudder was broken in two pieces. The engineer reported the keel broken, and the machinery thrown out of position, and at about the sallle time water was discovered coming in on the starboard side. At midnight the Lewis blew her stl'am whistle several times, Bent up rockets, and burned blue lights, to indicate her dangerous position and need of assistance. -These signals were observed ,on board the Belvid£'re, and the captain of the latter vellsel ask£'dMr. Blain, the second officer, if a boat could be got to the Lewis. The latter thought that the sea was too rugged, and that it would not be safe toniake the enort. The wind and snow continued during the night. In the morning the captain again asked Blain about Bending '8 boat to the Lewis, and was again told that it would not be sate. ,None of the officers of the Belvidere wanted to go. A heavy swell coming in made the sitnation dangerouil for the Belvidere. Accordingly, aboue 6 o'clock, she stl'amed up to her anchors, took up one, slipped the other with 45 tathoms of chain, and moved off shore about half a mile, iwhenshe was again Rnchored, with the Lewis on her starboard beam. Masses of ice, coming in around the point anel gr<>unding outside, had made the wuter smoother inshore, but the heavy swell continued, and the strong current, carrying ice, and running suuthward, rendered it still dangerous to attempt to reach the Lewis. About 10 o'clock one' of the Lewis' boats went inshore of the ice, and then, coming off to the windward of the Belvidere, came down with the current through the ice tathat vessel. This boat had eight men in it, and was in oharge of 8mith, the bOlltheaderof the Lewis. Solar there is a flubl'tantial agre£'ment as to the matl'rial fucts, but at this point there is a conflict in the testimony. Capt. Whitesides teHities that when Smith came on deck "1 asked him it he came with a report from Capt. Sherman, and he told, Ole that Capt. Shernlun said if r would set myeolors to the lllizzen· peak he would lea\'e his ship, and come aboard, or, if I thought I could get his bone, to send my boats in. I I would trynnd seurl my boats in." Blain, the second officerof the Belvidere, testifies that Smith told him that he came to the Belvidere to get the captain to stop by him; that the ship was bilged, and couldn't be got off; that "he wanted the captain to. take the crew, if he couldn'tc<ime there lor the bone; if he could get the bone, he would like him to come there and get it; 'iehe could not get it, he would like him to take the crew." Capt. Sherman of the Lewis t£'stifies that he sent a boat .tothe Belvidere bl'tween 10 and 11 o'clock, in command of Boatheader Smith. "I told to tell Capt. Whitesides to send his
A LOT OF WHALEBONE.
boais in to get my bone, or help take it off. I do not remember saying anything about taking the crew off." On cross-examination, he was asked if he ff'membered the exact message he sent Capt. Whitesides. He said he thought he did. "I sent for him to come, and send his boats in, and take my bone, or help take it." In reply to the question, "Did you Bay anything about setting colors?" he answered, "I don't think I did." Boatheader Smith was not produced as a witness, hut it was explained that he departed for New Bedford before his testimony could be taken. The terms of the message sent by Capt. Sherman to Capt. Whitesides at this juncture are deemed significant as indicating the purpose of the former with respect to the cargo of bone on board the Lewis. In the event Capt. Whitellides had determined that he could not take off the bone, was it the intent of Capt. Sherman to abandon it. as be did the vessel , and the 250 barrels of oil left on board? The message, as testified to by Capt. Whitesides and Second Officer Blain, incHcates that such was his purpose; but Capt. Sherman does not remember that he asked Capt. Whitesides to set his colors to the mizzen peak as a signal for the former to leave his ship and come on board the Belvidere, and be does not think he did; nor does he anything about taking ·off his crew. As indicating his purpose not to abandon the hone, he testifies that there would have been no difficulty in landillgthe bone, and carrying it, onsleps, to Cape Smythe, where a go,'ernment station is located, and also a trading station; but he says the hetter way would· have been to take it down in the boats. The Lewis had no sleds, but they could have made them. Rethinks the bone could have been landed and taken to Cape Smythe by sleds in two days, or by boats in a fewhoul'$. and he thinks his men would have risked spending the winter up there in order to save the bone. Capt. Sherman is not confirmed, in this view of the situation, by a single witness, but, on the contrary, it appears that the only persons who had anything due to them from the voyage, over and above their indebtedness to the ship, as the result of the catch.up to that date, were Sherman, the master, Greenwood, the second mate, Smith, the boatheader, and Bayman, fireman, The remaining 43 members of the crew had no interest in sa\·ing the cargo of the Lewis. and there is testimony tending to show that some of them made forcible declarations to that effect, using,}anguage that need not be repeated. But, further than this, the testimony of Capt. Sherman is lacking in candor. He says that the stations at Cape Smythe are between five and eight miles south of Point Barrow. This.is not true. Capt. Knowles, one of the owners of the William Lewis, and manager of the Pacific Steam Whaling Company, testifies on behalf of the claimants that the company has a station at Cape Smythe, but he says it is about 15 miles from Point Barrow. He had never been there, however, and must therefore have based his testimony on official charts or common report, The coast and geodetic survey gives the distance between Point Barrow and Cape Smythe at 161 Capt. Sherman testifies that he has been eight seasons in the Arctic; has been to Cape Smythe, and a many times each year to Point Barrow. His mistake in
the distance between these two points cannot therefore be attributed to ignorance. A competent sea captain ought certainly to be correctly informed as to on a familiar shore line by charts and observations, and his failure to state correctly a fact having relation to possible relief from a perilous situation must be considered as impairing the credibilityiofsuch a person as a witness. The,weight of testimony and the 8urrouJ;lding circumstances indicate that Capt. Sherman was anxious to escapeiwith his crew from the wreck of the Lewis with ,'such personal effects 8S could be saved, and that the saving of any part of the Qargo was a secondary consideration. The message sent by Capt. Sherman and received by ,Capt. ,Whitesides was therefore undoubtedly in the terms stated by the latter, or substantially so. In response to this message, Capt. Whitesides' called all hands, and sent' his boats in, with directions to go with the ice until they got in. shore r 'and then pull up to the wreck, where the ourrent was not so strong. 'The boats were sent.in about noon. The gale had moderated, butyouDg'ice was making. The boat that came out from the Lewis was retul'ned,but manned by a crew from the Belvidere. Four other boats were sent from the Belvidere. There were six men in eatJh boat, making 30 in all. They were instructed to do what they could to save the bone, and to say to Capt. Sherman that Capt. Whitesides would stay as long as possible, and when he got ready to go he would set. his ,colors to the rpizzen'peak, When the boats reached the Lewis,the 1;>one wus on deck. Theboatsi were loaded, and they started back, but were· carried by the ourrent'to leeward, whereupon the Belvidere took up her anchor, and went iniabout half way to the wreck, and picked up the, boats. The· waterwlls about 3!fathoms. As the boats had nQtbl'ought off all the bQne, they were sent back. Capt. Whiteside!'! also went on board the Lewis, but remained buta few minutes, not deeming it safe tQ be away froro his own vessel. Upon returning to the Belvidere he took up her anchor t and again moved further to leeward. He also sent one of theboats still further to leeward, with a line from the ship, to pick up some of the boats that had gQt adrift. AbQut 5 o'clock the last of the boats had returned to the Belvidere, and all the bone had been placed on board that vessel. It was impossible to save the oil, and it was left in the· wreck. 'The officers and crew of the Lewis came in their own boats to the Belvid«;lre, bringing with them their personal effects. They took no part in the-transfer Qf the bone beyond bringing it up on the deck of the Lewis. There'is some testimony to the effect that one Qr two of tlJe crew of the boat sent from the Lewis to the Belvidere returned to the Lewis, but,if SQ, it was to secure somepersQnal effects. and not tQ assist in transferring the bQne. It also appears that one or two native boats carried a small quantity of bone, but, Qn account of the danger of being crushed by the ice calQngside of the ship, the bone was transferred tQ Qne· of theship"s, boats before being placed on board the vessel. When all were aboard the Belvide:r;e, she took up her anchor at once, and steamed tQ the SQuth and west; the wind blQwing fresh, and the current running strong to the southward. In passing through the floating and grQunded
A LOT OF WHAtEBONJll.
Ice navigation was difficult and clangeroua. The vessel struck once, and one of the bobstays was carried away, but by skillful management she was brought safely out of her dangerous position, and on the following day she was steered to the northward, to make a lee un ier the ice. Her course was then directed along the ice pack to the westward until about the 9th or 10th of October., when she fell in with other vessels of the whaling fleet, and distributed 81 of the crew of the Lewis the vessels, retaining 16 on board the Belvidere. On the 16th of October the Belvidere left the Arctic for San Francisco, where she arrived November 5,1891. Incoming down, the bone on bOl1rd the :Belvidere,ineluding that taken from the wreck of the Lewis, was washed and scraped by the crews of both vessels. This work took about two days. After the arrival of the vessel .here the bone was bundled and packed at an expense of $50 to the salvors. As before stated, the bone taken from the Lewis is valued at $25,797· 25, and the question is, did the officers and crew of the Belviliere render a salvage in rescuing this bone.from the wreck, and bringing it safely to the port of San Francisco? Capt. Sherman testifies that he did not think he was paying. salvage for the service, and gives as.a reason that the owners of the Lewis and Belvidere were the same; and,he did not think there would be any any way. He qualifies this statement, however, by saying several of the owners are the same. In the protest dated November 7, 1891, and signed by A. C. Sherman, master, W. J. Greenwood,mate, James F.Ferndon, carpenter, and Henry Pratt, chief engineer, it is declared that "Oct. 4th, about noon, a boat was sent to the Belvidere for assistance" .:Eler boats were sent back, and at 3 P. M., wind having moderaWd, ,the master and crew left the vessel, saving but a portion of their on her personal efrec41. At that tim.e the vessel had settled in the i>tarboardside." Nothing is said in this protest about the cargo of the .Lewis. . A,lJ far as this document furnishes evidence, the vessel and cargo were abandoned by the and crew, and nothing saved by them a portion of their personal effects. In the log hook of the Lewis the JqIlQ:wiQg entry was made in to the events attending the disaster: "STR. WILLIAM LEWIS. Sunday, October 4th, 1891. "In command, Captain A. C. Sherman.. While coming in last night for shelter, winds blowing a gale from the N. E.· and thick snOWing, fn company with the Belvidere. under steam. the sails clewed up, we got into fourfathQms of water, and! les8 4, land was reported on the lee bow or starboard bow. Captain Sherman ordered the helm hard a-starboard, when she struck bottom. Time about 7 P.M. of the 3d. All sails and steam in trying to get her off; the ship drawing about 14, forward. and 15i feet aft; water 12 foot forward, 15 waist,18 aft. The ship seemed to be working on at 11 p.lI. night of the 3d. The rudder was broken in two pieces. Took in all sail and stopped steaming; the propeller striking something hard. the ship pounding very hard. .At daylight mornin$" of the 4th we saw our position. We had strnck bottom aboutollemile southwest of the point. The ice bad come in and grounded around us. The rudder was in two pieces. The stern post looked as if gone. The water has come into the ship up to the ash pans, about 5 foot. Winds had moderated. At 3.80 t>. X. CaptaiQ .Sher-
mau.,aba.:-.ddJUlll)th'e,WilIiaI1). Lewis mlle S.'W.,of Barrow.. tbe Belvidere." PointBll.rOOw, is in 71 0 of north latitude. The region is barren, posed, and "desolate. At the time of the wreck of the Lewis a storm wasragingiot"such fury as to cause vessels to seek shelter. It was late in the seasOn,; and, ulldel' the circumstances, tlie'coast was dangerous. It is trtiEftbllbit Cape Stuythe, 16lmiIessouth of Point Barruw, there established bythegovemment, and the are other 'by the, Pacific Steam Whaling'Company; but whether they were suftieientJyeguipped inrOctober oflast year to furnish food and shelter to 47 additional men 'during the' long winter does not appear. The most that elm be said is that they were established for the purpose of affording tovesselein distress, and,presumably, they were what has been stated,!and the lact that thti coast is otherwise: !ijninhabiledhy white people, it; is evident that the presence of the Belvidere at the scene of the disaster to the Lewis was a fortUnate circumstance, and that the conductor the officers and men of'the former vesS'el was highly: meritorious. In view of all the facts in the case,the bone rescued froth the wreckmust:!be treated as paving been quasi derelicf, and the service rendered by the Belvidere a salvagef:lervioo. ' . 'Wl, now Come to the question of the ownership of the Belvidere and William Lewis, and the :cargo of the latter. J. N. Knowles, A. C. Shermab, Samuel Foster, and Roth, Blum & Co. ha.ve filed a petition representing that .they are co-ownerswith· the other parties mentj(med in' the llibel of the lot of whalebone proceeded against in this suit, and that they are also part and cO-owners with the otber parties mentioned in'the libel of tl.e·steam whaler BelVidere; that they have, without their beenm,ade colibelants; that they never did, and do riot now, desire to bepai'ties to the ·libelj that they desire to withdraw they :petition the court to order that the libel, so far as they are qoncerned as libelants, be dismissed. It appears from tnestipulation :011 file that the petitioners are part and co-owners of the interests: Belvidere in the J. N. Knowles, - 12/96 Samuel FORter, 6/96 A. C.Sberman, 6/96
24/96, or t
In the petition, Roth, Blum & Co. are represented as in the vessel to the extent of 6/96, but they do not appear so in the lation. Thenathe of Leon Blum does, however, appear in the lastna,med document as oWlling6/96 oftheBelvidere, and Roth, Blum & Co. William Lewis. It also appears fropl.:tbe same stipulation that these parties, are also part.'owners of the William Lewis and her cargo of whalebone in the following interests:
A LOT OF WHAtEBONE;
J. N. Knowles,
Samuel Foster, Shermau,
It will be observed that Knowles and Sherman have greater interests in the whalebone than they have in the salving steamer, and hence it would be to their advantage to withdraw their interests from these proceedings. Samuel Foster has the same interests in the salving steamer that he has in the whalebone, and would naturally be willing to balance the account in his own way. And, assuming that Roth. Blum & Co. and: Leon Blum are one and the same parties, we find that their interests in the salving steamer and the whalebone are the same. and, like Mr. Foster, they would probably be willing to balance their own account. We have here, then, an ownership representing 30/96 of the salving steamer and 54/96 of the salved property asking to have the libel dismissed so far as these interests are involved in this controversy. The application appears to have merit, but let us inquire as to what effect such a dismissal would have upon the remaining interests. Would it be fair, under all the circumstances, to send some of these owne1'8 out of eourt, and impose the burden of the proceedings upon those who remain? Manifestly all interests should be treated alike. The following persons were also owners of interests in the Belvidere, and in the William Lewis and her cargo of whalebone, as follows:
In William Lewis and
S. C. Hart, in Belvidere,
A. Anderson, " " William Lewis, Goo. S. Horner, " A. Coddington, Jr., " Total,
8/96 her cargo of bone, 3/96 " " u " c. 15/96 " " " " " 6/96 " " u " " 6/96 " " " " " 33/96
,3/96 2/96 6/96 3/96 3/96 17/96
These parties do not ask that the libel be dismissed, as far as they are concerned. The following persons were owners of interests in the William Lewis and her cargo of whalebone, but were not owners in the Belvidere:
E. H. Hanson, Jos. Laflin, Benj. H. Waite, Nathan Adams, · H. Liebes & Co., L. & F. R. Brightman,
7/96 3/96 3/96 3/96 6/96 3/96 25/96
The following persons were owners of interests in tq.e Belvidere, but not in thei:William Lewis or her cargo of whalebone: . A. Estate, 12/96 J. Jr., 3/96 Wl1liamBaylills, 3/96 J. G<W"4Iard, ·. 3/96 G.lf;. 6/96 3/96 A. Estate & C. C. Church, 3/96 33/96 It is plain, from the foregoing statement of the various interests involved, in this controversy, that the libel cannot be dismissed as to the p.etitioners J. N. Knowles, A. C"Sherman, Samuel Foster, and Roth, Blum & Co. without doing injustice to others who, like themselves, aile 'interested in both vessels, and that the only way to proceed with due regard to all the interests concerned is to determine the question ofsabage as between the salving ship as one party and the salved property as ..the other. In this .way an equitable adjustment may be made, :not only in the. contribution. to and distribution of salvage, but also in the costs of the proceedings. But it is ;contended that the shipowners cannot be salvors of their own property, and the case of The Caroline, 1 Asp. 145, is cited as an thorityt6\ that effect;buUhe question involved in that elise was as to the suflioiehey·ofa tender:wherein parties paying for asiilvage service £20Q, that a part owner of the salved vessel made a OWnE!d.Di'or,eWl1n half oqhestEmp;ltug that performed the salvage service. Dr; tb'.at 1;his the ,and tllg llud sU\ltain.ed .the .The' case q,oes n<?t meet the question under.consideration. . ' is::wei,i by authority that'Jhe, master and crew of one vessel may recove'r 'for a salvage serdce tendered anothel' vesselbdonging to the same. qwpers. The Colima, 5 Sawy. 181; The Sapp'ho; 'L. R: 3 Adni. & Ecc. '142; The GtmJjruin,'10 Prob. Div. 103; ,The ,Cnrgo .. Laertes, 12 l,?rob. Div.187. It the J&W that the owners' of it'salving ship,' who are also the owners'; of the may obtain salvage" from the owners of the salved cargo, ,tpe circums,binces .which 'cause the neqeseity for the salvage services do not 'amotinito a breach of the contract of carriage between the shipowners and the owners of the cargo which is on board the salved ship. P. M. S. Co. v. Ten Bales (funny Bags, 3 Sawy. 187; The Milranda, 4 Marit. Law Cas. 440; The Cargo ex Laertes, 12Prob. Div. 187. In these last cases it may be assumed that the owners of the salving;ship had no interest in the cargo except as owners of the freight; bnt, may be required to contribute to salvage, itis clear that the as authorities do not go to the extent of eliminating from a salvage service theinte'iestsofall persons who may also have some interest.inthe salved
A. LOT OF WHALEBONE.
property. In this respect the rules of admiralty are not governed by the strict rules of the common law, but act upon enlarged principles of equity. The Virgin, 8 Pet. 540; Richmond v. Copper Co., 2 Low. 315. "It is the duty of salvors, in bringing suit for salvage compensation, to make 1Il1 the cosalvors parties. This they are required to do, at least in generaLterms, to enable the court in one final decree to do full justice to all concerneq.., Another and most important reason for the strict enforce. men,\ of tllis is to be found in the necessity of avoiding a multiplicityof The Edward Howard, 1 Newb. Adm. 523. In the case at bar, thelDaster and crew of the Belvidere are unquestionably entitled tu recovercoxnpensation for the salvage service rendered by them in iog the cargo, of bone from the wreck of the Lewis, and, under the au· thorities, cited, I am of the opinion that the owners of the Belvidere are also entitled in this action to recover compensation for the services of the ship. ' question is as to the amount of the salvage award. It will not be J,lecessary to review the numerous authorities on this subject. It is suffil:}ient:to say that, while they do not fix any certain standard of compens!J.tion,they point out the elements to be considered in determining the of the reward to be decreed for the service: (1) The labor by the salvors in rendering the salvage service; (2) the skill" energy displayed in rendering the service an<l the property; (3) the value of the property employed by tbe in .rendering the service, and the danger to which the property (4)the risk incurred by the salvors in securing thE:! (5) the value of the property saved; of danger from which the property was rescued. The Wall. 13,14. ,The principal incidents connected with this have rp.een related. It appeaJ;s that, for several hours the labor of in tak,ing boats through the ice to al1d from the, 14 more were employed in handling and looking of the Belvidere. The salvors were reasonably prompt in service., It is true that they waited until the gale had morning ofOctober 4th, but this delay appears to have b,een tb,ej of good judgment, rather than a lack of interest in the situation. " The evidence is to the effect that boats would have been sent .ihere been any prospect"of reaching the, Lewis. The diffi.. wh,en they did go indicate that an earlier effort w'ouldhavebeen futile. energy were displayed, not only in boats engaged in transferring the bone, but also in the movements of the ship in avoiding dangers, and in picking up the boats on their 'return. ,The value of the Belvidere, with her supplies. equipments"cRrgo of bone and oil, was $75,000. All ,the property was exposed :to the same fate that overtook the Lewis. The Belvidere was sur· rO\inded 1passes of grounded and floating ice, in the midst of a strong clll'rent, with; shoal water under her keel. ,The business of whaling, in $.e engaged, would, under ordinary circumstances, have frorp. this, shore early on the morning of October 4th.
attd, position 'was a ' still further reasonrol' ber depaW;ilre-.';QHad 10ok6llonly to their ownwellare:'Lthd safety or that'bt the ship, they would have continued her'fii'St'move in the morhirig'out into deepwater, al;ld Otl" 'the she slibsequelltly:tq0k;' but she anchor, and during:the day for the ofextenditrg relief to the Lewis. There was some personal risk incutredby tbesalvote in secu:ring the bone from/the wreck. The boats retorniHg'found''Some difficulty in reaching the ship; ,and some Df them as a whole, there was no grelit'risk,atid this 'fact will be 'taken into consideration; , The degree of from which the property Was 'rescued has been discllssed. It was not whollyderelict, and tbatfact will also be considere<k But there is another element involved in this service that may be! mentioned. The Belvidere was engaged in whaling, with a prospect of further catch. The season is short in the Arctic, and every day is of vlllue:in such a voyage. An average whale is worth from $10,· 000 to $12,000. After the Belvidere took on board the crew of the LeWis, no more whales were taken. The result of a loss of time to a steam whaler of the C8Iiadtyof the Belvidere is, of course, uncertain, but it must be tememberedthat such vessels are capable of rendering valuable in etise'of disaster to other ships, in saving life and property,and'the policy is to encourage the best efforts and the sacrificointhatdirection·. It appeal's proper, therefore, under the circumstanceS, to give sothe.consideration to the loss of time incurred by the Belvidere, and also her effectiveness in rendering thasalvage service. , In vie. of .11.11 the litetsin the case, I will direct that a decree be entered in favor of the libelants for one third of value of the property saved. This will amount to $8,599.08, And in making the distribution articles in of this award- among thes8lvors I wilIfo11ow the determillingtbe value oithe services rendered. All but three of the officers apd Olen shipped for the voyage on lays or shares; the master receivillg1/14j the mate, 1/28; and the other officers and men receiving different shares, aecordingto their services and skill, down to the ordinary seaman,.ho 'redei\l'ed 1/180; The three exceptions were the engineer, whose wages am not shown by the original articles; the assistant engineer, who was to receive 895 per month; and one of the boat steerers, who was to 8125 per m6bth. Assimilating these three services to others ,of like character, as ah()wn by the shipping articles, I find,that the engineer woUld be entItled to receive 1/80, the assistant engineer 1/100, and the boat stE'erer 1/80. The aggregate of all these lays or shares would then 'be' 53.40, per cent. of the proceeds of the voyage, leaving 46.60 for the ship. There are cases indicating that a rea:.. eouable allowance for a ship ina !lalvaj:te service is one third of the value of the property recovered/but I findlluffiCieut reason for departing from such anaUowancein the character of the service rendered by the ship in this case, aodin the mutual agreement between'theofficera and men and the ownersofthe vessel as to the individual share each shOuld have in the proceeds ()f the voyage, and in the relation' of the aggregate of
such shares to the interest by the ship. It seems to me, therefore, that it would be fair and reasonable to treat the salvage award as though it were a part of the, legitimate proceeds of. theV'oyage, and distribute it accordingly. The decree will therefore provide for a distribution of the salvage on that basis, as follows: To the captain, having 1 1/14 lay, (1) · $614 22 To those having 1 1/23 lay, (3) 373 42 each ." " " II/55 lay, (2). 156 35 " " "" 11/80 lay, (6) · 10749" " "" 11/85 lay, (1) · · 101 18 " "" 1 1/90 lay, (2) 95 55 each " "" 1 1/100 lay, (3) · 85 99 " " "" 1 1/110 lay, ( 1 ) · . 7890 " "" 1 1/120 lay, (1) · 71 60 " "" 1 1/170 lay,' (2) 50 58 each " " ." 1 1/1801ay, ( 2 3 ) - 47 77 " To officers and crew, - 84,592 54 To owners of ship, 4,00654 Total amount awarded,
Let a decree be entered in accordance with this opinion.
Co· .,. THE RESCUJ!.
eou.rllTOW 11.,.......· BTlUlIIIBII.
A lIt.eamboatapproacbing ber wbal'f fa bound to obll8rve tbe signal of another steamer 'backing out from anotber Wharf, and to bote the visible effect of the tide on the latter, and wbether she has suftlcient steerageway for bandy control or speedy movement, before shaping and bolding her course directly towards her, even tboup;h the former had given a lawful signal, by obey:ing which the latter, under ordinary circWDSt.&nC8a, would have. cleared.
In Adminl1ty. Suit by the Glouoester Ferry Company to recover damages fromtlIe tug Rescue for·a oollision. LiLel dhimisaed. Charles 11. D(llI)'ning, for lihelant. John F. Lewia, for responuent.
BUTLER, District Judge. On 12, lSnO, when the ferryboat Peerle88, on her way from Glouoester to South street wharf, Philauelphia, had reaohed a point opposite, and near Windmill island. in the river Delsaw the tug Rescue alongside the end of Knight's wbarf.-
IBeported bJ Kark Wllka Collet, Esq., of the Philadelvllia bar.