THE AKABA. THE OITY OF BIRMINGHAM. WOOD v. BURG et al. BOSTON TOWBOAT CO. v. WOOD. (Cireu1t Court of Appeals, Fourth C1rcu1t. February 7, 1893.) No. 36.
A towboat with a disabled steamship worth $130,000 in tow, under & contract of towage from Turk's island to New York, which provided that there should be no claim for assistance, salvage, or other services, broke a propeller blade, parted her hawser, and abandoned tl;le tow of!' the Hatteras Shoals in a hurricane. The .vessel so abandoned was with much difficulty and danger taken in tow by a passing freight and passenger steamship worth $350,000, plying on a regular schedule between New York and Savannah, and taken into Hampton Roads, the hawsers being twice parted on the way, and the tOWing vessel's bits being torn out. The rescuing vessel lost her regular return trip, and her cargo of vegetables and fruit perished from the delay. Held, that an award of $30,000 salvage was not so excessive as to be disturbed on appeal. BAME-CONTRACT-ABANDONMENT OF Tow. After the abandonment two other towboats, dispatched by the towing company, met the rescuing steamship with the disabled vessel in tow, and, although their services were refused, passed a hawser to the disabled steamship, and joined in the towage, until near Cape. Henry, when they cast of!'. Held. that the towing company could not recover on the contract, nor tor salva/:e.
'.rhe fact that, for a portion of the voyage, the rescuing steamship towed with the steel hawser, of the towboat, which, after parting at the time of abandonment, had been hauled aboard the disabled boat, gave the towing company no right to salvage.
Appeals from the District Court of the United States for the Eastern District of Virginia. In Admfralty. Libels against the steamship Akaba, (James Marke Wood, owner and claimant,) brought, respectively, by Charles S. Burg, master of the steamship City of Birmingham, for salvage, and by the Boston Towboat Company, for salvage and breach of contract. In the district court a decree was entered allowing $30,000 for the services of the City "Of Birmingham, and disallowing entirely the claims of the Boston Towboat Company. , The claimant of the Akaba and the Boston Towboat Company separately appeal. Modified and affirmed. Statement by SIMONTON, District Judge:
The British steamship Akaba was in the month of February, 1892, at Turk's \sland. She had then her shatt broken and her machinery disabled. HeI agents entered into a contract with the Boston Towboat Company to tow her trom Turk's island to New York, and to this end the towboat company sent the tug Saturn, one of their tugs, to Turk's island. These were the terms of the contract: It the Akaba was successfully towed to New York, and on this condition only, the towboat company would be paid $6,000. No claim could be made by the Saturn or her owners for assistance, salvage, or other services rendered on the trip from Turk's island to New York. The Akaba must be ready to be towed within 24 hours after the arrival of the Saturn at Turk's island; if not, the Saturn was to be allowed demurrage at the rate of $250 per day for every day's delay after the expiration of that interval. The Akaba., although disabled, IIlilst be in condition to be towed. The saturn reached
Turk's Island, reported, Wll8 detained one day after the 24 hours had elapsed, too/i" the Akaba In tow, and prooeeded towards NewYol"k.':On 27th February of the Sllme year the, Saturn, with the'Akaba In tow, arrived off the ooost of North Carolina, and there enCountered a very heavy gale. The Saturn was towing the Akaba witlla five-Inch stelll,wire hawser. During, the gale a blade of the Saturn's propeller broke off, and soon atter that the hawser parted close to the tug. The latter could not come up to the steamship, but layoff and on Dear her during the day. Towards nightfall the gale Increased Into a hurr!.cane, with a heavy seA. ,TheSatum then left her tow, and made all speed she could t,o,gampton Roads. The Akabaat this time was off Hatteras Shoals, wWql(wer:e to leewal'dllOm.,e 10 ml1El!l' without the use of her engines, with of her salls" drifting. The only recourse she had Wll8 a small steamer, ,ilie Ben Lodl, Insight, but UDlible to tow her, whose master lay near her, to be hand In case of disaster, so as to save lite. On the morning of the 29th.I"ebruary she, sighted the steamship City of Birmingham, and hoisted Signals, ,.otllistress. Tp,e 01,ty ot Birmingham is a freight and pll8senger steamship on schedule time between Savannah and New York. She was about four years old, 3,000 tons burden, and Wll8 worth about $350,000. She was on herregtilar voyage to New York, with .acrewof 50 men, with 25 or 30 pll8sengers, and an assorted cargo Qt value, muc)l of it being of a perishable nature, and which In fact did perish., signals of llistress, she went at once to the, of the Akapa. BelJig J:lrevented by the heavy gale and high sea from communicating Wlth her In nny other way, she fioated by buoy a Une to the Akaba to which a hawser was This effort consumed over two hoUrs, but was finally successfUl. With two hawsers,-(llle of her own and the other of the vessel In distress,-the City of Birmingham began to tow her from her dangeroUs lJosition. During these two hours the water had shoaled from 17 to 13 fathoms. After towing about three hours the hawser of the City of Birmingham parted. The tow was oontinued by her with the other hawser, when her bits broke out, and the other hawser also got loose. After great effort she again got her own hawser to the Akaba, and towed her nearly all night, when that hawseragaln parted. The sea having moderated, she waited until daylight, put out a small boat, and took the hawser of the Akaba, with which the was again resumed, and continued until the 2d March, when, with the Akaba In tow,she CllBt anchor In Hampton Roads. The hawser used by the Akaba was the steel-wire hawse,r of the Saturn, which, after it parted, was hauled abo\trd of the steamship. The Saturn, when she reached Hampton Roads, dispatched, In search of the Akaba, the towboats Taurus and Underwriter, belonging to the Boston Towboat Company. They are each w.orth aoout $50,000. They went to sea, and on 1st March found the Akaba in tow of ,the City Qf Birmingham, proceeding towards Hampton Roads, really needing no other aid. They offered their services to the Akaba, and were referred to the master of theClty of Birmingham. He declined them. Nevertheless they went to the Akaba, to whom the Underwriter gave a hawser, and, the TaurgB, taking a hawser from the Underwriter, they joined In the towage. reached Cape Henry, the towWhen the Akaba and her companions had boats cast ofl', and she went up alone with the City of Birmingham. Just after these two reached, an anchorage, and the Akaba had let go her anchor, but before the line between her and the City of Birmingham was let go, the latter steamship came Into collision with the British steamship Gordon Castle, riding at anchor in Hampton Roads, In which cOlllsio.n both vessels sufl'ered greatly, and for which the Gordon Castle put In a claim of $1,000. The agreed value of the Akaba was '$130,000. ,She was In ballast, with fUll complement of officers and men. The City of Birmingham, by her deviation of her voyage, lost her regula:r'return trip to Savannah and the earnings thereon, and has been held responsible for the cargo of vegetables and fruit which perished from the delay. She also suffered considerable damages while towing the Akaba, caused by the stntln of the towage and the wire hawser. A libel W8.'l tlled by the City of BirminghAm against the Akaba for salvage, and after she was In custody, by virtue of the warrant of arrest, the Boston Towboat Companytlled its libel for salyage service,S rendered by the' towboats Taurus and Underwriter, and for the services, use. and aid to salvage rendered by the, wire hawser of the Saturn:' and a t1eoond libel for breach of the contract of towage to New
York. These causes, tried together, came before the district court. The court awarded the City of Birmingham in a lump sum $30,000 salvage and expenses, gave to the Boston Towboat Company $250,one,day's demurrage ot the Saturn at Turk's island, and denied its clalm tor salvage on every ground. Damages tor breach of towage contract were refused. The case comes here-on appeal
Sidney Chubb and Floyd Hughes, for claimant James Marke Wood. Robert H. Smith and RichBl'd Walke, for Boston Towboat Co. Robert M. Hughes, for Charles S. Burg. Before BOND and GOFF, Circuit Judges, and SIMONTON, Distrlct Judge. . , SIMONTON. District Judge, (alter stating the facts.) As to the City of Birmingham: The services of this steamship were salvage services of the most meritorious character. She found the Akaba on a dangerous coast,-perhaps the most dangerous of American coasts, -drifting to leeward in a heavy northeast gale, aJmost helpless. Notwithstanding that she had a number of passengers and a· valuable cargo aboard, a great part of it perishable by delay, she went a;t once to the distressed vessel, rendered her skillful, prompt, and successful assistance, rescued her from her imminent peril, and, after great toil and danger, securely towed her to a place of safety. It would seem that all the elements which enter into a salvage service exist in this case-promptitude, courage, skill, lP'eat peril to life and property, toil, and success. The Blackwall, 10 Wall. 13; Cope v. Dry-Dock Co., 119 U. S. 628, 7 Sup. Ct. Rep. 336. As is said by Wallace, J., in The Baker, 25 Fed. Rep. 774: ' "Neither the value ot the property imperiled, nor the exact quantum of
service performed. is a controlling consideration in determining the compensation to be made. The peril, hardship, fatigue, anxiety, and responsibility encountered by the salvors in the particular case; the skill and energy exercised by them; *e gallantry, promptitude, and zeal displayed,-are all to be considered, and the salvors are to be allowed such a generous1recompense as will encourage and stimulate similar services by others."
It is not necessary that there should be a certainty of loss unless the service was rendered. It is sufficient that there is a reasonable apprehension of danger, and that the service is rendered in reference to that apprehension of danger, and not in the ordinary course of business. See cases quoted in The Oregon, 27 Fed. Rep. 872. When we consider the character of the coast near Hatteras, and the supreme necessity for encouraging heroic endeavor in saving life and property endangered upon it, we cannot say that the learned district judge ewed grossly in his finding the which he fixed. "By the uniform course of decision in this court," say the supreme court in The Connemara, 108 U. S. 359, 2 Sup. Ct. Rep. 754, "during the period in which it had full jurisdiction to reverse decrees in admiralty upon both facts and law, as well as in the judicial committee of the privy council of England, exercising a like jurisdiction, the amount decreed below was nevj:!r reduced unless for some violation of just principles, or for clear and palpable mistake or gross overallowance." This part of his decree is affirmed. In the evidence taken in the case items of damage caused by the collision of tlte
FEDERAL 'REPORTER, vol. 54.
sl\Jyingvessel with the'Qord6n Castle appear. The courtl>elow al· part 00' the by the City, of Birniihgham; but lin finding it gives lWnp sum,. without disCllssing this collifJion"or·"the responsibility of, the salved vessel therefor, or stating whether it includes these damages among the expenses. We apthe sum found, but we express no opinion on this point. Indeed,.thexecord does not disclose to what extent the towage of the Akaba contributed to the colliSion. With ,respect to #le towboats: The Saturn, their consort, had aband:l>ned her tow, the Akaba, in her extremity. She had no right thenceforward to dispose of her. When the towboats came up to and ,attj3mpted .to. force their services on her and the OitY.Of the latter vessel was fully competent to complew'the 'salvage service, and.in no need of any assistance, the sea and .the weather calm. For these reasons she refused They were asserting rights to which they had no of claim. ,.Their offers were properly rejected, and they no standing in court. ,. . With regard to the wire hawser: The Boston Towboat Company elaims salvage for its use. Apart from the fact that the conbetween th.at company and the Akaba expressly "provides that no for assistance or salvage .or other services shall be rendered," we see no right to salvage for the hawser on the facts of the case. It used Without the knowledge or consent or concurrence of tl},e,Boston Towboat Company. Its use, and the service it rendered to the Akaba..oan in no sense inure to the benefit of that compaIl'3s salvage. Salvage is awarded to those who voluntarily and spon,taneously render,. .in saving property at sea. Although salvage as claimed cannot be Iillowed,yet, under these pleadings, we can entertain another question. The hawser was left in the posse&' sioo. of the Akaba,'and was brought into port. It has, been lost. The right of property of the tow:boat company in the hawser was not lost. When articles are lost at sea the title of the owner in them remai.rul, e'fen if they be found floating on the surface or cast u,pon .shoce.All that the finder can do is to claim salvage on them. Cope v. Dry-Dock Co., 119 U. S. 630, 7 Sup. Ct. Rep. 336. A fortiori in the case of this hawser left in the control of the Akaba. This being so, the Akaba was a bailee without hire, liable for gross negligence. It does not appear in the case made how this hawser was lost, that is to say, with what absence of care. When the case is remanded to the district court, this can be made the subject of inquiry; and, if it appeltr that the Akaba is liable, an equitable adjustment of the loss can be made. The only other question is as to the libel of the Boston Towboat Company 'for . breach of contract of towage. After the Saturn reached Hampton Roads, ana was repaired, the libelant offered to complete'thetowage to New York, either with her or with the towboats Tatirusand Underwriter. This offer was made after the Saturn had abandoned the Akaba, and she had been salved by the City, of Bihningham, and was in the custody. of· the court, under the warrant of arrest. We concur with the court below in the conclusion
that there is no merit in this claim, and that the libel should be dismissed Except as herein modified, the decree of the district court is af· firmed. Let the cause be remanded to the district court for such proceedings as may be necessary in conformity with this opinion.
THE HAVANA. TURNER et aI. v. THE HAVANA. ROSSMAN v. SAME. ELSESSER v. SAME. WANSER v. SAME. REED v. SAME. ROBERTS v. SAME. (District Court,S. D. New York. January 25, 1893.)
MARITIME LIEN-REPAIRS AND SUPPLIES - FOREIGN CORPOR.-\.TION - OWNEl;tAGENT'S ORDER - CREDIT OF SHIP - ADVERTISING BILLS NOT A MARITIME SERVICE.
The steamboat H. was employed in makillg dally trips with fishing parties from New York outside of Sandy Hook. She was owned by a New Jersey corporation. The four stockholders resided in New York. The business of the company was done on board the steamer. They):u:I.d an office in Jersey City for the transfer of stock. Mr. S.; one of the stock· holders, was vice president of the company and general manager. who l'Q.D with the boat on her trips, and ordered, directly or indirectly, all supplies and repairs. The company had no other property, and no reputation or credit. Most of those furnishing supplies supposed Mr. S. to be the master, and all the supplies were furnished on the credit of the ship. Held, that the supply men had a maritime lien, excepting a bill for advertising the steamer's excursions in order to get business, which,not being a maritime service, had no lien.
In Admiralty. These were six libels against the steamship Havana to enforce liens for supplies. Decrees for libelants.
Anderson & Howland and Murray, for Turner. Alexander & Ash. for Reed and Rossman. Stewart & Macklin, for Wanser and Elsesser. H. D. McBurney, for Roberts & Bro. Henry D. Hotchkiss and W. S. Maddox, for the Havana. BROWN, District Judge. All the above libels were filed to recover payment for supplies of various kinds funished to the steamboat Havana, mostly during the latter pan. of 1892. The steamer was engaged in the excursion passenger bnsiness, making daily trips in taking fishing parties from New York about six or eight miles outside of Sandy Hook. The supplies were 811 procured directly or indirectly through the orders of Mr. Schrader, who was the general business manager of the vessel, running with the boat upon her trips and attending to all matters of supplies, a part of which were for the restaurant and the ref::,eshmf'nts for passengers 00 the trips. Prior to March 15, 1892, Mr. Schrader and three others had been owners of the vessel. They all resided then and reside now within the state of New Yock. In March, 1892, a company was formed for the purpose of taking the ownership of this steamer and 01