749 placed upon the charterer, and he is concluded as to all want of strength which could have been discovered by reasonable inspection. The issue, so far as relates to the charterer, was twofold. If the jury found either that the accident was caused by a peril of navigation or . I by some unseaworthiness which was patent, the verdict must have been against him. My conclusion is that there was no error in the instructions. It a case where the court would have erred had it directed the at· tention away from the direct evidence, exelusive to that which \Vas inferential. The inferential should have been considered, but only along with the direct; and this is precisely what the jury were in· structed to do. As to whether the verdict was against the evidence, the chief ques. tipn was whether the shaft broke from a latent or patent defect. The same issue,.upon similar, and, to a large extent, identical evidence, had been tried before the court in an equity cause, and the conclusion tlwn reached was the same as that to which the jury in this case arrived. . , The rule for a new trial is therAfora refused. ; In addition to the cases cited I have consulted Kimball v. Tucker, 10 Mass. 195; ,Airey v. Merrill, 2 Cap,en,.1 GJ;ay, 525; qo.ok v. J5Gray, 238. . .
was
THE (DiBtrld Oourt, E. D.
H'roERABAD.
'l.'efm, 1882.)
1:
SALVAGE-DERELICT.
Where a vessel was by: a collision, ahd was thereby rendered' so that the master, mate, and '6rew safety on the 'colliding'\'essel, leavin'g' . the injured 'vessel to drift helplessly on the sea, bUt intei1dingtb proceed to a port for the purpose of procuring a tug to rescue the wrecked vessel; and did actuallyprocureli. tug and returned 'to the-wrecked veSsel, it is not a:eBse technically of legal derelict. Where a steam-barge sights $,vesse} at sea-drifting hllJp!esslY,JUld in great peril,with a hole in her, port quarter, her her head gear tom,-her bQom pver bo:w, and carried away,her ber, have the as salvors to 'tl1eit just demands shall be paid,or UntJ1 the vessel sluil be taken mtO' the custody of the Jaw prepar'atory to the amount of salvage being legally a'sCertained... J
2. TOWAGESERVICEB.....Ag SALVAGE-RIGHT OJ' POSSESSION.-
75Q 8. POSSESSION OF It is not permissible under sucb circumstances for the salvors to unreasonably exclude the master and crew of the wrecked vessel from" all relation to and interest in the property should they return to her with means of her rescue. 4. SALVAGE COMPENSATION. Where the risk incurred by the salving vessrl, and the danger to which the property employed by the salvors in rescuing the wrecked vessel was exposed, were not extraordinary; the skill and labor employed in the rescue, though adequate, were not of singular character; the time occupied, the value of the property saved, and the value of the salving vessel were not great,-it is nota of order of perilous service, so as to merit as comp,ensation the moiety of the property saved. " .,
Finches t Lynde d; Miller, for libellants. " Markham d; Noyes, for claimants. . DYER; D. J. This is a cause of salvage. "-'wo libels have been filed,-;.one by the owner of the steam-barge Alpena ,and the other by her master and 'crew, in which last-mentioned libel the master of the; barge Wenona joins. The Platenal fa0ts are ail Jollow8.: On Monday, the seventh da.y of June, 1880, the Alpena, of which the
libellant Bewick was owner and of which the libellant McGregor was master, having in tow the barge Wenona, of, which the ]ibel;lant Tucker W8swaster. witS on a -from to Nilwaukee, and at ,aQout 7 in of that day, at, lJ.point in ,Lake Michigan of ishind' 'and about' ten "or elev"en miles off Pointe aux Becs the schooner Hyderabad was discovered in It 'disabled condition, with no' on board of her. The Alpena and her tow had arrived at North Manitou on the 6th, and on account of alJ,verse weather had remained there under shelter until the afternoon of the 7th, when they resumed their voyage, sailing on a south-westerly course for Milwaukee. Both the Alpena and her tow were light. The testimony tends to ,show tilat the values of the Alpena and Wenona, respectively, were $40,000 and $18,000. The Hyderabad had been in collision witiI tbe schooner Ford· River. The former vessel had left Milwaukee on Friday evening, June 4th, laden with a bound. for the port ot Kingston. The cargo FordRiver w.as goi?g to Chicago, loaded with posts, ties, and telegraph pQles, and the collisi9n occurre<'iat about half past 4 ,o'clock on the morning of Sunday, June 6th. Concerning the injuries &ustainedby: the Hyderabad in the collisloD, one of the seaman on that vessel, sworn in behalf of the claimants, testifies: .. The bowsprit, jib-boom, foretop-mast, main-gallant mizzen gaff, boat's davits, mainsail and the'mizzen, were all injured or carried away by the collision. There was a hole in the .portq:uarter just forward of the .mizzen rigging; it was aboutei.ghteen inches'to two feet in length',!'lnd about the breadth of one of her broken: 'and !:lulgedin; . This breW! ,was about three to feet'a\ipv,eth,e, line., T.he this 1;101e into the kitchen, and It leak:eddown tnJ;ough flour into the hold." The .sam.e w,itnesssays that the FOl:d mVel' struck the
one
THE HYDERABA.D.
751
darabad,<m the port side of' the stem, forward: that tho:'1101e in the Hyderabad's port quarter was made by the posts projecting over the rail of the Ford River; and that "when her bow swung off, that brought''her 8ternin. Her head-stays llnd our head-stays got entangled. The motion of the:.,vessels in the water, one rising and the other falling, caused the ends of'thecedll.t strike the Hyderabad on posts projecting over the rail of the Ford Hiver her port quarter and thus made the hole." He says also that the bad's small-boat was brokell, and that this was caused by the two vessels getting entangled and knocking the pOltdavits away and pounding each ()ther aft. Another of the claimant's witnesses, speaking of the injuries to the Hyderaobad, says: "Our bowsprit was carried away from outside the knight-head; our foretop-mast was carried away from the cap of the foremast the, maintop-mast the gallant pole was carried away. Her foresail was tom: her mizzen was tom: her mainsail was torn a little: her rail was lifted up off the stanchions a little, forward on the port side. Aft, just forward of the mizren rigging, on the port side, there was a: plank bulged in: the wood all remained there. * * * The false covering board was started from the plank, about a foot in length and about an inch in the highest place, and then rundffto nothing at either end. ' The oakum was riot all out." The master of the Hyderabad testifies, that in the collision his'vessellost ber bowsprit, jib-boom, head gear; foretop-mast, maintop gallant pole, and'two jibs; that the mizzen boom was broken; arid that the rail was started a little 'forward, and one stanchion was cracked: that on,her port quarter the false .covering board was started, and the plank between the covering boardarld ,the false covering board was stove:tn. At the time of the collision there was a heavy sea running, 'and the and crew of the Hyderabad, being fearful that'their vessel wduld sink,went immediately on board the Ford' Brver. That tbe Hyderabad was thenstipposed to be, and was, in fact,in 8ufilcientjeopardy to cause gteat i alarm, 'Can be no doubt. For a considerable time therFord River remained: near'beli, .and beforeleaving:her the master and mate Of the Hydel'abad andtw{)of'the crew of tbe Ford IUveratterripted to board the Hyderabad, but the sea was sa beavy that thll small boat could not lie along-side the latter vessel with safety, .and theattempt'was abandoned. Wilson, one of the crew of the Ford River, testifies that at thattimea tug not have gone along-side the Hyderabad, .and that' sometimes as she Tolled, her rail was under\vater. The testimony, however, tends to show that her hatches were then weUsecured and ;in good ·condition. As all further effort to relieve the Hyderabad, in existing circumstances, was impracticable, the Ford River set sail for the west shore of the lake, tak" jng with her the llyderabad's entire crew; The Hyderabad was thenl!ttanding head to the wind and sea, with her mainsail and staysail set, arid various witnessesior the 'claimants testify that eheappeared to be riding the seas easily, and without the appearance of being water-lClgged. The Ford River left the Hyderabi,W about 2 o'clock in the afternoon of 6th,. and arrived off Ma.nitowoc about half past 7 o'clock on the fol· morning. It IS very clearly shown that the. purpose of the master of
752
FEDERAL REPORTER.
tbe tl'derabad, and of the master of the Ford River, in sailing directly for the west shore of the lake was to reach a port where a tug could be obtained to go to the relief of the Hyderabad, and that this was the intention of the maMtee and crew of that vessel when they left her. It is, of course, appal:ent that they went on board the Ford River, in the first instance, for greater personal tlafety, and that they did not, up to the time when the Ford Riverleft, regard it safe to attempt to remain on the Hyderabad, nor could they be otherwise than doubtful whether she would survive her extremity; but it is clear that, wl;ien the.Ford River left the scene of the disaster, the master of the Hyderabad l;iad not abandoned the hope of reclaiming his vessel, and that his intentiOn was to make every exertion in his power to save her. This is manifest from w,hat followed, for, 011 arrival at Manitowoc the of the two: vessels went directly, to the telegrapll office and endeavored to engage a tug from ,T,wo Rivers for immediate service, and, on failing to acoomplish this, a tug ,£rO\ll Milwaultee was seut for, Which at once responded to the call for and arriv:ed,ab Manitowoc jn the evening of that day. The at Manitowoc that night, andu.t about. So'cIoc!) on the morning of the with the crew of the Hyderabad, on I course; in pursuit of,Jllat , As before stated, the Alpena,while on her course to Milwaukee sighted the Hyderabad Oll the evening of Monday, the 7th, and nearly SO hours had then elapsed from thetime the Ford River had left the Hyderabad. Themaster of tbe, Alpena testifies that when he found the wrecked vessel, her head gear, bowsprit, and jib-boom were carried away, and were hangingalong-side of.ber; that her pint side was in a broken-up condition, particularly above the plank sheer; .. her fore-stay sail was set, foresail seemed to be hanging about decks, torn up, and in a very rough condition; mainsail was partly set, torn badly; in bad conditiol), boom carried away, small boats were gone. We afterwards found a hole in the port side. Her maintop-mast was carried away and was hanging down in the rigging. Did not see any one aboard of her when I reached .her j she had evidently been abandoned, and her decks I could see from the pilot-house nnder water amidship. '" '" ... There was some sea running ; she was rolling helplessly in the sea." This is the language of the ,witness. The mate of the Alpena, testifying as to the condition of the Hyderabad, says: "Her wheel was unshipped; all her head gear carried away; her mainsail was all torn, her foresail was lying unfurled on deck,ber jib-boom and bowsprit were hanging over her bow, her mizzen boom or gaff was broken, her maintop-mast was gone, hanging down; there was a break in her portquarter, right under hel" covering board; I should judge the hole was in the neighborhood of two feet or eighteen inches lung. '" '" '" I think the hole was about the ,width of one plank; this hole was, I should jUdge, three feet, if she lay still, from the water." There is other testimony on the part of the libellants as to the condition of the Hyderabad similar to that just referred to, and further showing that one of the vessel's pumps was out of working order. The master of the Alpena ordered part of his crew to go aboard the Hyderabad and to take measures to rescue her. The master of the barge Wenona.
THE H'iDERABAD.
753
and some of her crew, also went on board. Certain precautions were taken for the escape of those who went on the Hyderabadin case their safety should be threatened by sudden danger. In the then state of the weather there was in fact no special peril in the undertaking, but in ignorance of the precise condition of the Hyderabad it was naturally feared miglit sUddenly sink. After ascertaining the extent of her injuries, and the condition of her cargo, the crew of the Alpena, aided by some of the crew of the Wenona, put her pumps in working order, covered the break on her port quarter with canvas, adjusted her steering gear as best they could, and .then got out a Hntil and took hel-' in tow astern of the Wenona. It was quite a late hour in the evening when this was accomplished, and the vessels then proceeded ,qn a course to Milwaukee;:xiloving slowly and there was yet some fear that the lIyderabad might swamp or' capsize. While thugjundet way, 8 and 9 o'clock on the morning of the 8th, theveBSell:l<were met by,the' tug w;bich had left Manitowoc that morning with the master,; mate" and crew of tbe}Iyderabad on board. The tug clUne alongside the Hyderabad, and, the mate and crew went aboard of .her·. 1:hetestiIllony tends to .show that th'e fIxuister of the Hyilerabad ..' then; informed: the ",r ' ; , - . ' I ,\ , .· , _ .," . ' master of the Alpena that he Was the chief officer of the former vessel,apd had come with a' tUg to repossess' hetluid take her in tow, The master ol'the Alpena'declined to surrender,possession"and asserted his claim as a salvor. Some further negotiations attempted, in the course of 'which the master ,of the Hyderaba4.clajms that he gave the master of the Alpena assurance that he should fot his services,but they were unavailing, and thereupon the tug returned to the Hyderabad, took from her a line, and thus all the vessels'proceeded to Milwaukee, where tbeyarrived at 10 o'clock In the evening of that day. From the time the master and crew of the Hyderabad returned to her, until their arrival in port, such joint control was exercised the vessel by them, and by the master and crew of the Alpena, as manifested a purpose to assert on one hand the right of. salvors, and on the other the right of original authority and possession, temporarily lost, but now reclaimed j and the same state of affairs continued, with reference to possession, after the vessel was brought into port and until the removal of her cargo, which was completed on the afternoon of Thursdaj', June 10th.
as
,
:
'.
.
"
·
'
,.
T
<
I do not find that the Alpena, in going to the relief of the Hyderabad, was obliged to materially deviate from her original course, and the testimony tends toshow that she lost from 11 to 12 hours' time in rendering the servIce in question. There is serious dispute between the parties as to the peril the Hyderabad was in on account of water in hold, and as to the extent of the injury to her cargo. The testimony does not show, the precise proportions in bushels, of dry and wet wheat, but the witness Vance testifies that after the dry grain was taken out there remained in the vessel about 10,000 bushels of damaged wheat, as near as he could judge. The dry part of the cargo was -Bold for $9,016.87; the wet wheat was sold for $500; and v.11,no.7-48 -
754
REPORTER.
the vessel, in hernamruged condition, was appraised-at $8,050 ;so that the entire value df:.vessel and Cltl'go, after arrival in port, may be said to have bean $17;!l66.87. It is contended in of the libellants that the Hyderabad, was in the fwi sense of the law, derelict. when found by the Sir Leoline Jenkins defined derelicts to be "Boats or o,ther vessels forsaken or found on the seas without any person in them." Life of Sir Leoline Jenkins, vol. 1, p. 83. The case of the Hyderabad answered this description. Sir William Scott, of The Aquila, 1 C. Rob. 41, said: "It is sufficient if there has ,been an abandonment at sea by the master and crew, with.out .hope of recovery. I say without; hope of r'ecovery, becaus.9 a mer.e quitting of the ship for the purpose of procuring assistance: from shore,or with an intention of returning to her again, is not an abandonment." . In Rowe'v. Brig, 1 Mason,373, Judge S,tory derelict, in the. sense of the "it is sufficient that the thing is found deserted upon the seas, whether it arose from accident or necessity or, voluntary dereliction. Sir William Scott has declared that a legal derelict is properly where there has been an abandontnent at sea by the ma'steralld crew without hope of recovery. With the view, for the' word,s ':without hope of recovery' are 'introduced, viz., tq,' diStinguil3h a' temporarY from a permanent abandonment, i$ .might, b,e,enmore accurate toha:ve said an abandomentwithout an iilteniionof'retul'1l; ,since the spes recuperitndi might exist, even though the abanaonment 'were without such intention.'" .' ' .!1: "', j In The 1 Swab. 208, Dr. Lushingtonsaid: "A ntastel' and crew abandon a vessel for the safety of theI! lives ;" he does not contemplate returning to use his own exertions; buii' the master hardly ever abandons a vessel on intention, if he can obtain assistance, to his vessel: ,Tpatdoes not take a way, from the legal characte,r of derelict." " . .' In the case of The Bee,: 'Ware. 334, Judge Warel;lltys: "Whep.'s, a vessel is found at sea" ,deserted, h,as been abandoned by the master and cre;w without the intentil?Pof resuDling the posse¥sioIl, she is in the senseof thelaw derelict." . In theqcase of The {s,lpnd.. City, 1 Black, 128, it;wa/s lle14 .by the supreme court tl;1at ,consFt.ute a. case of derelict the .aban,donment must have without hope of recovery Or If the crew have left the ship temporarily,:with the retUl"l;l , ", " , ' ,": ,.,1 ":_,j'.. ' : . . ,. . J - . ', . _ l"
!
755. obtaining assistance, it is nor will the libel· lant be entitled to salvage as of tlo derelict." .Thus it appears that within the definition laid down by some jurists their contention as to tb!'l legal charaeter the libellants are right of the Hyderabad when she was found by the Alpena, but within the rule stated in the case of The I8land Oity· it is doubful whether she was strictly and technically derelict. But although the master of the Hyderabad may be said to have neither abandoned the spes recuperandi,nor to have renounced· the animus revertendi, she was at least quasi .derelict. In the language of Betts, in the case of The Gilpin, Olcott, 78, "she was apparently abandoned, and if her crew might 'ha:ve .been absent. to .procure Il,ssistance from other vessels more force,their abjlity to. return to the wreck, or the chance of affording any aid after the lapse of a few hours, must, in the then condition of things, have beeu most dubious contingencies." ,That the Hyderabad was il;l grave peril after the collision is ent. She was out of sight of land, and was at the mercy of the elements. She had been deserted nearly 30 hours when the Alpena c.ame upon her. When an aband,qned vessel is thus found fiQating at large on the high seas, there. is, of course, the. consideration that, BO far as any beneficial property of the owner is concerned, it. is in the q.tmost peril,-nearly as much so, when it happens to turn out tolerably as if,it .were in bad order, becausein any event the chance of recovery must be. slight. T1te Howard, llJow. The ljbellants wpuld have been guilty of a of duty, finding the Hyderabad, as helplessly afloat on the lake, j.f :they had not taken immediate measures for her relief. When prQperty is fO,und thus from necessity temporarily left to the mercy of :the elements, caUfl8" though not finally anbandoned leg",lly dereor any lict, and the finder. takes of it with the bona fide intention ofsl;Lving it fort;he owner, he will not be treated as a trespasser. On Qontrary, if by his exertions he contributes materially to the preservation Qf the property, he will entitle himself to remuneration according to the merits of his services as a Balvor. The Bee, supra. The relief pf property from an impending peril of the sea by the voluntary exertions of those who are no legal obligation to and the consequent ultimate safety of the proprender case of salvage. It may be a case of more or less merit, according to the degree of peril in:which the,propertywfl.s, and the, difficnlty of relieving it. But, these ojrcumatances
756
FEDERAL MlpOR':1'IlR.
affeot the degree of the service, not' its nature. Williamson v. The Brig Alphonso and Cargo, 1 Curt. 378; The service rendered by the libellants, or some of them, was, then, a salvage service, and the remaining question is, what compensation should be awarded? As was said by the court in the case of The Gilpin, supra, I do not think this is a case for extravagant compensation. Although the services were well.timed, faithful, and highly meritorious, and outrank a mere quantum meruit reward, yet they are not entitled to be placed in the highest order of perilous salvage services. TlJe risk incurred by the libellants, and the danger to which the property employed by them in rescuing the Hyderabad was exposed, were not extraordinary. The skill shown in rendering the' service, and the labor performed, were' adequate, but not of singular character. The time occupied, the value of the property saved, alid the' value of the libellants' vessels, have been stated. The more difficult qries. tionis, What was the degree of danger to whioh the iHyderabad was exposed when she was found and taken, in tow by the' Alpena? That she was in serious peril immediately after the 'collision, atid1hatany vessel, left ;as she was to drift at large; -Subject only to the uncertain elements,'is in great danger, is apparent. I am satisfied frorn the testimony, and from personal eumiriati'on of the vessel made after the arguments, that the water found in her hold obtained ingress through the break in her port quarter. At the time of the' collision and for some time after a heavy sea was running, 'and the break was not safar above the deep-load line a13 t6 be beyon:d the reach!of th'e waves as the vessel rolled. The testimony on the part of the claim.ants tends to show that' within a fewhoars after thEi Ford River left the Hyderabad the wind changed and'became'Ught,and the Beas run down; and the'testimony of the libellants IS to the effect that when they sighted the Hydel'abad the sea: had taken tHe' fdtniof+ J.', heavy dead swell, which was gradually subsiding.'Theprobfs,on both sides show that after the Alpena had got well under way the weather became settled and very flne/ and so continued' until arrival in port. Aato·the depth of water iIi. the hola of tIle Hyderabad there is sharp conflict in the evidence, but I' regard the'testimony of the witnesses sworn on the part of the libtlllants' as most teliableon the question. They testify that her pumps were kept iIi- cOnstant tion throughout the night when' she was taken iIi tow, and Ulltil' 8 o'clock on ,the following morning. ·liThe mate'of ·the flea that when he vessel's crew went aboard of 'het from the; i
THE HYDERABAD.
757
tug there were two feet of water in her hold. That was after a night of continuous pumping, and the concurrent testimony of witnesses on both sides is that the pumps were worked more or less from that time until the vessel reached Milwaukee. How deep she lay in the water when discovered by the Alpena is not conclusively shown. Her scuppers appear to have .been in order after the collision, so as to permit the escape of water from her decks, and yet some of the libellants' witnesses testify that there was water on her decks when they boarded her. One fact is evident, that she was not so deep in the water as to make it impracticable to take her in tow, nor does there appear to have been much difficulty experienced......her pumps being kept in operation-in towing her into port. And yet it js,not to be forgotten that when her cargo was taken out more than one-half of it was found to be in damaged condition; and, of course, helpless exposure of the vessel to the sea, and of the cargo to the action of the, increase the injury to the cargo., water in her hold, would The witness Vance, who examined the, cargo after the vessel was. brought into port, testifies: . "After the dry wheat was taken out the wet wheat was found all the hold, and, if 1 remember rightly, the most of the wet aft and amidships, and I found it, in some places, wet five or six feet froin the bottom of the vessel, and in other places not so much. I judged that most of the water that came into the vessel came in through the hole on her poJ$ quarter where a plank was broken, near the water's
It was contended in argument, by claimants' counsel, that when thetug, with the master and crew of the met'the Alpena, the master of the Alpena should have yielded possession of the Hyderabad, and that his refusal so to do should work a forfeiture of 'all salvage claim, or, at least, greatly reduce it. The finders of the wrecked vessel having originally taken lawful possession of her, had the right as salvors to retain possession until their, just ,demands should be paid, or until the vessel should b,e ihtOthEf custody of the law preparatory to the amount of salvage: being 1egallyascertl!'iul;ld.The Gilpin, supra. At the same time it is pot permissible._ under such circumstances for the salvors· to unreasonably exclude the master and crew of the wrecked vessel from all relation to and interest in the property; and in determining the amount ()f salvage to be here awarded, the court should take 'intocoD.sideratioIi the 1act that the of the Hyderabad wer,e of tug, and that they encountered her in tow of the Alpena within eight or.: ten hours after she had been found, and accompanied her to port, as
758
a fact bearing upon the probability that she would have been ultimately rescued by her own crew without the intervention of the Alpena. The libeUants ask the allowance of; at, least, a moiety of the value of the salved property. .The claimants have tendered $1,500, but insist that the court should not award an amount exceeding $500. Considering all the circumstances I shall, allow as salvage the sum of $1,750. As questions are raised touching the alleged wrongful appropriation by some of the crew of the Alpena of articles of personal property belonging to tbe creW-of the Hyderabad, and consequently of their right to share in the 'award now made, distribution will not b& ordered until further hearing on the question of apllortionment. ])ecreeaccordingly. NOTE. TOWAGE AS SALVAGE SERVICE. Towing maybe salvage servicewben performed in aid of avessel in distress. The H.B. ]foster, Abb. Adm. 222; 'l'he Reward, i W. :Rob. 176; The (}races, 2 W. Bilb. 294; The Meg Merriles, 8 Hag. Adm.'346 The Jane, 2 Hag. Adm. 338; The Traveler, 3 Hag. Adm. 370; The London Merchant, rd. 401; The 7 BIatch!. 243; The Swiftsure,4 FED. REP. 463; The Mary E, Long, 7 FED. REP. 364.. Although an abandoned vessel might have been saved by her crew returning to her, had the, steamer not to her aid, it is a case of salvage. The Jose-ph O. (}riggs, 1 Ben. 83. in tow a vessel disabled and in distr43ss cannot be compared to an ordinary towage service, (The Rebecca Olyde, 5 Ben. 103; The Oharles Adolphe, Swab. 153; The Pq,ris, 1 Spinks, Ec. &; Ad. 289;) as where a vessel has received injury or damage. The Saragossa, 1 Ben. 551. It is sufficient if the, damage or misfortune might expose tbe vessel todestrnction. Id. The Cornelius (}nnrtell, 16 w Rep. (N. S.) 677. A situation of actual apprehension, though not of actual danger, makes a case of salvage compensation. The Joseph O. (f,.iggs,1 Ben. 83; The Raikes, 1 Hag. Adm. 247; The, Henry Ewbank, 1Sumn.400. DERELICT. To constitute a case of derelict. the vessel must have been finally abandoned, (Tysonv. Pryor, 1 Gall. 133; The Island Oity, 1 Black, 121; The Jenny Lind, Newb. 449; The T. P. Leathers, Id. 421; The Ida L. Howard, 1 Low. 7; The Sarah Bell, 4 ,No. of Cas. 147,) without hope of recovery and without intention of retul'lling to it. The Elizabeth and Jane, 1 Ware 35; The Boston, 1 Bumn. 328 ; The Emulous, rd. 210; The Hen1'1/ Ewbank, Id. 400; The H. B. Foster, Abb. Adm. 222; The .Allacapas, 8 Ware, 65; The .Aquila, 1 C. Rob. 32; The Leander, Bee, 260; L'Espemnce, Dods. 46. The mere quitting of the ship to procure assistance, and with intention to return, is not an abandonment. The Emulous, 1 Sumn. 210; The Island Oity, 1 Cliff. 224; The 1 Sumn. 328; The Beaur,3 C. Rob. 92. Salvage was·allowed in a caSe where 'the with its cargo, was found water-logged, abandoned. and appal'ently...'.:thoughhl fact not-:-derelict. The Senator, 1 Brown,Adm. 372. .
TBEMIN,NA.
759
POSSESSION BY SALVOP.s. A vessel, in point of fact, for 12 or 14 hours in a condition where her instant destruction is menaced, and the lives of those who might remain on board were greatly jeopardized, may be rightly taken possession of by salvors. The John (lilpin, Olcott, 80; The Dodge Healy, 4 Wash. C. C. 651. Unless a vessel has been utte1'ly abandoned, and is in templation of law a derelict, even bona ftde salvors have no right to the -exclusive possession, and are bound to give up charge to the master on his .appearing and claiming charge. The Creone, 6 FED. REP. 517.-{ED. See TMSantlringham, 10 FED, REP, nnd 'note. 556; Id.&84; TM LMp.tc, Id. ll85, and note; Id;6911 .McConflOchte v. K.rr, 9 FED. REP. 60; :l7I4 Plgmoutll &ck, Id.413; 7'IU Emily B. Soutler, 15 Blatch(. ,185; 7'IU Ellor"" 1 Lush. 6&0.
THE (lh',trkt Oourt. B. :SEAlmNS' WAGES-FISHING
MINNA.
n: MithigfJ1/,.
May 1, 1882.) \
AGAINST VESSEL,
Persons employed upon a. fishing tug, solely for the purpose of catclitng ,and preserving fish, are entitled to proCeed against the vessel for the' Toodvery of their wages, notwithstanding the fact that they take n() part in thenav!gatipli of the vessel. and that an incidental portion of their duties is perforll\ed, on shore. .
In Admiralty. This was a libel for serviO'es performed as fishermen on' boavd the Minna. The testimony showed that the Minna ,was employed solely in fishing, running out from Alpena every morning, from 15. to 25 miles, to the fishing grounds, throwing her nets and making 'a lift or :-catch of fish, and returning the same' evening to port, wherathe fish Her crew e-onsisted simwere discharged and prepared for ply of a master and engineer. Libellant took no part in the tion of the vessel, but was employed solely ail a fisherman. His contract required him to go out with the tug every day, to set and lift the nets, clean the fish, discharging the catch and reeling the nets on -!3hore. He also lodged ashore at nigqt. F. II. Canfield, for libellant. John C. Donnelly, for O'laimant. BROWN, D. J. At first blush,I wasinblined to the opinion that 'libellant's services, not being maritime in charlliO'ter, were :p.ot such as to create a lien upon the The cases coliat6d in2Parsons, Shipping, 185.;indic,ate:that have, no lien -unless their labors contribute to the preservation Qr'nltvigation Qfthe _ship; or to the sustenance or health of the crew. 8ee;'also, Gurne'll