catj.sed to lose. Sp,,:ague ·v. West, Abbott, Adm. 554. And as, in the eye of the . . maritime, upon .commercial reasons, the master of the ship is deemed .tgcontract;inrespect to the freight, rather with the merchandise than with the shipper, and his rights are, therefore, not made to depend upon any doctrine of agency. Hyperion's Gatrgo, 2 Low. 94. So, upon the same grounds, the contract to remove this merchandise-which merchandise, it must be remembered, was the cargo of the brig actually on board as Buch-should be to have been made with the merchandise as well as with the buyers thereof, and the merchandise, in consequence, is chargeable with the loss arising from the non-performance of that contract. There must be a decree in favor of Jibellant for the sum of $120, and costs.
(Oircuit Oourt, E. D. June, 1881.) 1. SALVAGE. . . Salvors cannot force themselves on a vessel against the will of the master.
M. M. Oohen, for libellants. A. Micou, for claimants.
PARDEE, D. J. In this case I liave found no necessity to find and write out the facts. There is disagreement on only tW,opoints; (1) Whether the Choteau rang her bell rapidly for (2) Did the Protector get her line aboard the Choteau and throw any water on the fire· and render assistance? Both of these I find against the libellants. The bell of the Choteau was rung three times for a landing, and was not rung for The fact is that the Protector's captain,hearing of the fire, and heara bell rung, rnn his boat alongside the Choteau, and attempted to assist in quenching the fire, but his offers of assistance were rejected, and his attempts prevented by the master of the Choteau, who was able and willing to and did take care of his own boat. Salvors cannot force themselves upon vessels in distress against the will of the master. It is at his option to accept their services or not, and if he refuse them compensation cannot be recovered for assistance subsequently rendered against his will. The Brig SlISrLn, 1 Sprague, 502. rrhat the sailors have no right to act against the will of the master. The .Dodge Healy, 4 \Yash. 657; The Bee, Ware, 332.
When are rendered without any beneficial results no sal· vage can be allowed. Schooner Elvira, Gilpen, 60; Conkling, Adm. 280; The Whitaker, 1 Sprague, 282; The Dodge Healy, 4 Wash. 657. Under this state of facts and these authorities libellants have no claim for salvage against the Choteau, nor do I think that under the general facts of the case libellants are entitled to any allowance for labor and expense in going to the assistance of the Choteau. It was in the port of New Orleans. The Protector's sole business is as a sal· vage boat. She is owned and run by an incorporation of insurance company presidents for harbor protection. The crew areunder pay for such service, with a contract waiving salvage, The boat had steam up, ready to go to any point. The boat is of iron, and neither she nor her crew ran any risk. Besides, in trying to aid the Choteau against the will of her master, the captain and crew of the Protector were violent and aggressive, and apparently disposed to lay the foundation for a salvage claim.. See the case of The Straton Audley, 3 Maritime Law Cas. 285. The proctor for libellantshasniade a vigorous effort to recover COElts or to divide them. Tpere is no doubt the question is within the discretion of the court. The good faith of parties should be considered among other matters. In the court below the decision was against the libellants, and the judge seems to have dou'bted the good faith of the parties from the incipiency of the suit, an'd gave costs as well as judgment against them. . . On the appeal this court substantially coincides with the distriet judge. The claimants have been at considerable necessary, unavoidable expense on account of this' action, which has no merit. They should not be saddled with the costs besides. Let the libel be dismissed, with costs.
See 5 FED. REp, 463.
(District Oowrt,8. D. New York. May 21, 1881.)
OOLLISION-LIBEL BY OWNER OJ', VESSEL FOR LoBS OJ' OAllGo-LIBEL BY OWNER OF CARGO-PETITION TO BE MADE CO·LIBELLANT-ORDER OONSOLIDATING ACTIONS-OOSTS-Two SAIL-VESSELS ON OROSBING OOURSES, ONE OF' THEM WITH THE WIND AFT-CHANGING COURSE BEFORE COLLISION-LIGHTS -LOOKOUT- VEBSEL TO WINDWAR&-SEVENTEENTH RULE OF NAVIGATION.
A vessel, arrested upon the libel of the 'master and owners of another vessel, who, with the crew, libelled her for loss, by collision, of vessel, cargo"pending freight, and personal effects, having been released, on giving bail for the full amount claimed, is not liable to be again arrested on a libel by the ownertlf ;cargo, setting forth the .same cause of action as to loss of cargo contained in th,efirst lluit. The proper and usual. course -in such a case, fQr the, owner of cargo, if he desires to be made personally a party, is to petition to be made a in the first sUit.Althougbanol-der upon the trial, consolidating . tlie'actions, in effect produces ihesame result, still, the commencement 'of 1:Jhe; actionbeing improper, the second libellant should be chlj.Fged with the costs of his action, and the bond given therein should be cancelled without regard to thE; result of the first"smt.· !, , ' Where the bark N. collided with the libellant's' schooner P., about 75 miles south-cast of Sandy Hook, about ,half past () o'clock A\ M. in ;Novemper, 1879, striking her on the stern a li,ttle to the port of the stern post aQ,d her to sink, and the P. was sailing on a'Qorth-east course, wing andwiJ the wind being south-west, and the P. that she did not see the Ni until just before the collision, when, to diminish the force of the blow, oTP08siplyto avoid the collision, she immediately changed her, C0\1r86, but not more than ,two, to port, and that the collision was caused by the N. having no lights, and not luffing to avoid it, and not keeping Qut of tlleiway of theP.; and the N, claimed her cour/?e had been N. W. by N. and not W., ,as clahned by the P.,and that she kept that COurse and did not change to 8: mOI:e northerly : course, all claimed by the P., but that the P. changed her course as much as , four or five points, and that the collision was caused by the fault of the P. in bringing herself on a line with the N. instead of keeping ol1t of .her way, and in not sooner seeing the N.,-lteld, on the evidence, that the P.'s.green light was first. seen by the N. distant about a mile, and from two and a,half to three points on her port bow, and that the N. was heading at the time N. W. by N. and not N. by W., as claimed by the P. Also held, the evidence shOWing that at the instant of the collision the courses of the vessels diverged about two or two and It half points, that the P. must have changed her course just before the collision more than two points to the port, and as much as four and a half to five points; that the disappearance of the P.'8 light from the view of those on the N. after it was first seen was due, not to the alleged change in the course of the N., but to the fact that the P. was not kept steady in her coursc; that 's port light was kept burning brightly, and could have been seen by the P. as soon as the N. saw her green light; that the collision was due to the fault of the P. in not keeping a good lookout, and in not sooner seeing the N, 's light, and, being to the windward of the N., in not keeping out of her way, as required by the seventeenth rule of navigation; that the N. was not in fault, but kept her course, as she had a right and was bound to do under the seventeenth rule,