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The Guadalupe.1

(District Court, D. Texas.

April, 1884.)

Admir. my — Salvage—Rule eor Estimating.

1.1 making up its judgment, in an action for salvage, claimed for relieving a gr< andad vessel, tho court inquires into whether or not the tugs employed pei formed only ordinary towage service; and, estimating the salvage earned, if: ny, considers how much danger and risk the plaintiffs incurred, the merito-rio is nature of their services, and the gallantry displayed.

In Admiralty.

Mg demore é Campbell, for libelants.

Bui linger, Mott é Terry and Hume & Shepard, for respondents.

Bo, eman, J.

Tlie Guadalupe, an iron steamer of the Mallory line, of 2,1 90 tonnage, almost new, with powerful machinery, valued at $300,000, with a cargo and freight charges valued at $345,000, on the t\ enty-fourth of September, 1883, at 4:30 or 5 o'clock, a. at., ran agrou iid on the sand beach at Bolivar peninsula, out at sea, about 15 miles from Galveston bay. The steamer, in an overcast and foggy night while running head on to tho shore,, at flood-tide, with wind blowi lg from the shore, firmly lodged herself on the ground, between 300 ;; ud 400 yards from the tide limit. I add an extract from the ship’: log-book

“So inding frequently. At 4:45 a. m. weather overcast and foggy on the horizo r. Ship stopped and aground in 11 to 12 feet water; soft mud. Got ancho ■ out and tried all possible means to get off. .10:30 p. m., got off with assist: nee of three tugs.”

Th) ship’s draught then was 12 feet 2 inches at the stem, and 14 feet t ft. Soundings made, as the captain says, just after the ship groin ided, showed 10 feet water at tho bow and 13 feet aft of the pilothouse and 14 feet at the stern. When the tide ebbed he said there was j ess than 10 feet at the stern. Going towards the shore the water si emed to shoal about 1 foot to every 100 feet. Prom tho captain’; evidence it clearly appears to me that the ship at low tide must have been lying on ground from stem to stern, and, I think, considering the draught of tho vessel, liis testimony will warrant the opinion t tat even at flood-tide she was lying from ono end to the other on tl le ground. Whether such a conclusion may be j astly drawn from what he says as to the soundings, the belief that the full length of tl e ship was on the ground at highest tide "is fully sustained by the j hysical conditions and surroundings, supplemented as they are by tl e evidence of the ship’s engineer and the several officers of the salvi ig tugs.

N< ne of the ship's officers say anything definitely as to the rate of speei I she was running when she grounded or when the slow-bell was souu led. But, whatever may have been her speed at that time, it *444appears that the bell for stopping the engines did not strike until the ship was in shoal water, less in depth than her draught, and that her movement forward towards the shore was checked and stopped by the ground under her, rather than by her engines. The ship’s speed per- hour is 11 miles. The engineer says when she is going at full speed she can be stopped in five or six minutes; at half speed, in two or three minutes. Considering the engineer’s evidence as to the time (if there was any) the slow-bell and stopping-bell sounded, and the time required to check or stop the ship at full or at half speed, the ship, steaming head on the shore at either rate of speed mentioned, must have advanced into shoal water a distance greater than her length; and these considerations also suggest that when she stopped on a full tide, — which rises about 15 inches perpendicular, — her entire length must have been on the ground.

The captain says he continued to do all he could to withdraw the vessel from her fastenings until 11 o’clock a. hi., when, finding that he could not move her, he sent the ship’s mate overland to Galveston with a message to the ship’s agent. The mate reached Mr. Sawyer, the agent, about 4 or 5 o’clock p. m., and he at once saw the agent of libelants. Sawyer, without telling libelants what particular service he wanted the tugs to perform, requested and directed them to be made ready as soon as practicable to go outside of the bar with him to the assistance of the Guadalupe. The steam-tugs Laura, Maddox, and the pilot-boat Mamie Higgins, and the steam-tugs Bessie and Buekthorne, the latter with a lighter in tow, being equipped and made ready as soon as practicable, got .under way about 6 :30 o’clock p. m., and proceeded, under the general charge and control of Sawyer, who went out on the Higgins. All of these tugs are engaged usually in lightering ships at the bar, and were as valuable and powerful boats as are usually employed in their line of business. The three first named tugs reached the ship about 10 o’clock p. m. ; the others did not get up in time to render any service in releasing the vessel. But this fact does not deserve particular notice, because the libelants pray for a reward in gross. When the tugs reached the' ship, she was lying stranded, just as she was when the mate left her, 11 hours before. The wind was from the shore, and the tide was. about as full as it was when the ship grounded. The ship’s captain says the vessel moved for the first time when the tugs came alongside of her, and adds that this movement, observed by him then as the first time she had moved since he abandoned all effort to release her, may have been caused by the approach of the tugs. The Laura’s captain, having taken his vessel closest to the shore, says he sounded about 30 feet in front of the Guadalupe and found less than 8J feet; and in sounding along-side, about the same distance from the stern of the ship, he found 10 feet of water. The tugs found the ship lying, fast aground, where she had been for 17 hours, unable, as. her captain admits, to move by any force-of her own, or by the'fa*445voring: force of the fide and wind. Under the direction of Sawyer, the th reo tugs wore lashed to the ship, and after the full power of these tugs had been applied for 15, 20, or 30 minutes to move the vessel she found relief, and moved off, uninjured, into deep water, on he voyage to Galveston. Until the tugs reached the ship no one in the interest of the libelants know anything of the condition of the distre ¡sed steamer. Sawyer, acting for the ship, demanded the services o the tugs, and in every way practicable they responded, without ki lowing or asking anything about the signal or message brought from he ship to her agent. Sawyer, being deeply interested in for-wardi ig all possible aid for the ship’s relief, hurriedly took charge of the ti gs, without thinking it necessary to communicate to libelants any ii formation as to the ship’s condition, or to discuss with them the natur ¡ of the services required, or the amount to be paid for the work. At the time he applied for the services of the tugs there were not ei lough men on them for such services as might become necessary, and Sawyer furnished a number of men for the crews on the tugs. As there was no “lighterage work” done, I think it not necessary í o refer more particularly to this fact.

I tí link this statement of the case substantially covers all the facts whicl are necessary to enable me to apply the law and make a de-decre j responsive to the issues presented in the pleadings.

Th s libelants claim a salvage reward of 10 per cent, on the gross amount, $45,000. The respondents, offering to pay a liberal quantum i lendt, contend that the services performed do not in law entitle li lelants to salvors’ compensation, because the ship was not in peril; that the ship would have avoided all injury and found a speedy relief or release from her ground fastenings by the use of her own powe ■ and favor of a flood-tide without the assistance of the tugs, whicl , in fact, reached her just as she ’was, by the use of her own powe ■, effecting or about to secure her own release; and, further, libels nts are not entitled to anything more than a quantum meruit, becas so, if such work was performed in the ship’s interest, she not being a s the time in peril, as is shown by libelants’ testimony, the services vere only such as the steam-tugs perform in their every-day business, and they should not be allowed salvage compensation.

In reply to the suggestion made by respondents that the Guadalupe was not in peril when the tugs came up to her, it may be remark ad that the true element of a ship is in the sea, and her life is only full and complete when she is riding in deep soundings, at ancb >r, or when she can respond and move at her master’s will on the o sean in pursuit of her useful purposes. And when such a ship, at a time marginal to the equinoctial period, is found in the shoal wate 1 of the Mexican gulf, with the full length of her flattened bottom press ed by her great weight into the sand, unable, by the application of al her great power, supplemented by favorable tides and winds, for 11 hours to move herself, it cannot be said that she is free from *446serious distress, though the sea and the conditions about her may give no perceptible evidence of immediate peril. The proof shows that she did not and could not, with favoring tides and winds, move herself for 17 hours; and under such circumstances the conclusion cannot be avoided that she was in distress, and that the peril attending such a ship was much more than a possible danger.

It cannot now be determined whether the ship, unaided by the tugs, could,- or would have, in an hour, in a few hours, or in a few days, effected her own release from the sand-bed in which she was lying when the tugs came to her aid, as is so earnestly contended for by respondents’ counsel. But it is clear from the proof that she was lying helpless, out of her element, and unable to respond to her master’s purposes when the' tugs were lashed to her sides, just as she was when the captain, in despair of securing her release, dispatched the mate with his message for relief to Galveston. I think it is also clear that she moved off into deep water only when and after the tugs supplemented the power of the ship’s machinery with the full force of their combined effort to move her. The testimony on this point is conflicting, and but little proof can be extracted from it; but it is the duty of the court to apply the proof, however little there may be on the point, rather than to follow the speculations of the captain, when he, in his deposition?, read on the trial of this cause, says the ship would have been released if the tugs had not come there. Especially should the court hesitate and refuse to abandon whatever proof there may be on this point, 'when it is borne in mind that the captain noted in his log-book, at a time when it is likely no thought of a controversy like the present one was in his mind, these remarks: “Ship stopped and aground in 11 to 12 feet water; got anchor out and tried all possible means to get off; 10:30 p. m. got off with assistance of three tugs.” Further, it appears to me, for the ship’s captain to say, as he does, in the face of the admitted fact that the tugs applied their full force for a space of 15, 20, or 30 minutes before the ship begun to move, that the ship would have released herself in any given time, is as groundless a speculation on his part — and he is the only witness that indulges such an assertion — as it would have been for him, or any other weather prophet, to say, at the time the tugs came up, that the calm sea, then smooth and quiet, would not, in the same given time, be lashed by a September storm into a fury that would have driven the ship broadsides further on the dangerous shore. The tugs, though responding at once to a call for aid that took them out of, and a distance away from, the safety of the harbor, their usual field for labor, were in little more danger at any time while so employed than they were when engaged in lightering ships at the bar. But these tugs, in consequence of the character of the work they are ordinarily engaged in, cannot secure insurance against loss of any kind, and it may be said that the libelants’ danger of loss is increased in some degree whenever they cross the bar in pursuit of any unusual purpose.

*447The fact that no great danger attended the performance of the service rendered in this case, does not of itself take from the service its sah age character, or make the work performed for the Guadalupe only s¡ ch labor as the tugs usually perforin.

The question whether any serious danger, great fatigue, or gallantry m the part of the salvors attended the performance of a valuable i nd useful service, may be and should be considered by the court in estii dating the sum which should be allowed for reward. If none of thes e conditions characterized the valuable service in this ease,— and I hink they did only to a limited extent, — the service was not, teehnii ally speaking, very meritorious.

Beli iving that the service rendered the distressed ship was not simply towage service, nor a work performed in the lino of the everyday hi siness of these tugs, I shall consider the libelants as salvors, and a] low a compensation reward based on well-established facts, which show that the libelants rendered a salvage service, though not of a r ary meritorious degree. A decree in favor of libelants for §8,00<', with 8 per cent, interest from date of demand, will be entered.

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