ATLAS STEAM-SHIP CO. V. STEAM-SHIP COLON.

473

The Colon, on her arrival in New York, in her damltged condition, was worth about $230,000. She had earned no freight. On the arrival of the steamers in New York, the president of the Pacific Mail Steam·ship Company, which owned the Colon, called on the agents of the Atlas Steamship Company, and asked them to fix a sum for the service rendered, as he desired to transfer the passengers and cargo of the Colon to the Crescent City. NoagrMment was made, and later in the day the agents of the Atlas Steam-ship Company wrote to said president (Mr. Clyde) that they wished to consider the matter, and that they would communicate with him definitely on Monday, August 28. transhipment of the Colon's passengers and cargo to the Crescent Cit;}' was immediately commenced, with notice thereof to the agents of the Etna. On Monday the agents of the Atlas Company called upon Mr. Clyde and stated to him that they considered the.services worth $150,000, and that they would claim that amount. Mr. Clyde replied that he did not think the service was worth any sucb sum, but that he was willing to pay them fair compensation. There was no further negotiation, and on the following day tbe libel in this case was filed against the Colon and her cargo, claiming $150,000. The greater portion of the cargo of the Colon was then on board of the Crescent City. Process was issued under the libel, and the Colon and the cargo were both attached. A stipulation for the value of the Colon and her cargo, in the sum of $150,000, was given August 30th. The libel was filed by the Atlas Steam-ship Company, (limited,) for itself and all others. The master, officers, and crew filed petitions to be made co-libellants, and orders to that effect were entered. A salvage compensation of $10,000 was awarded by the court to the owners of the Etna and to her master and crew. Of this sum $4,375 was awarded to the master and crew, and $750 more to the master. These two sums, amounting to $5,125, have been paid by the owners of the Colon. The cargo of the Etna was shipped under bills of lading which permitted the Etna to tow

474:

FEDERAL REPORTER.

and assist vessels in all situations. Certain consignees of cargo on the Etna, whose goods had been damaged by the detention, filed petitions 'and became co-libellants. The dietrict court decreed that they should recover the damages sustained by them, and that the Colon should pay the same in addition to the award of $10,000. The damages of these co-libellants were assessed, and, with the costs awarded to them, amounted to $2,200.28, and that sum has been paid by the owners of the Colon. A reasonable allowance to the. Etna for damage to her hawser is $75; for repairs to her deck and engine, $300; and for extra coal used, $125. The wear and tear of the engine of the Etna depended on the pressure of steam carried and the number of revolutions made. The cargo of the Colon was shipped under bills of lading which exempted her from liability arising from disasters or dangers of steam navigation. The damage to her engine resulted from a latent defect in the crank-shaft, which could not have been discovered by examination prior to the breakage. None of the officers or crew of the Etna left their vessel at any time to render assistance to the Colon. None of the passengers or property on board of the Colon were transferred to the E tna. The towing voyage to New York was without danger or anxiety. The Colon was equipped with eight sail-boats, large enough for ocean service, which could have been sent, if necessary, to intercept steam vessels or to some port. The engineer's log of the Etna shows that there are entries in it as follows: "August 21st. Forward crank-pin and thrust heating." "August 22d. Still running water on the bearings." "August 28th. Bearings hard to keep cool." It was found that these entries were made nearly two years after the service was rendered and during the progress of the trial in the district court. The libellants endeavored, on the trial in the district court, to prove that they had sustained a loss of $2,300 in freight on account of the detention of the Etna. This claim was abandoned after considerable testimony in regard to it had been taken. The libellants put forth on the trial in the district court exaggerated claims as to items of damage and

ATLAS STEAM-SHIP CO. 11. STEUr·SHIP COLON.

4:75

disbursements, and gave proof in regard to them, but after. wards abandoned such claims. The district court refused to allow costs to the owners of the Etna On the foregoing facts my conclusions of law are that the compensation awarded by the district court to the owners of the Etna-$4,875-was adequate and liberal; that costs in that court were properly refused to them; and that they should pay to the claimant its costs of this court. The claim of the owners of the Etna, in their petition of appeal, is that they are entitled for the salvage service to not less than $25,000, with costs, besides compensation for the actual losses and damage sustained by them in the servo ice, and exclusive of any award to the master and crew of the Etna for their services. In other words, they claim that the $500 should be increased to $1,856.65, and the $4,375 to $25,000. This would make the entire amount paid and to be paid by the Colon $34,181.93, besides costs, and it would make the relative compensation of the owner of the Etna and her ship's company as 4.87 to 1. There is no appeal by the owners of the Etna from the ratio of distribution of the $9,500. There is no allegation in the petition of appeal that the decree below is erroneous because it did not give to the owner of the Etna a larger prQportion of the $9,500 than $4,375, and no allegation that the master and crew should not absolutely have had as much as $5,125, or as much of the $9,500 as $5,125. The ratio of distribution adopted by the district court, if applied to a sum large enough to give to the owners of the Etna $25,000 in place of $4,375, would require that sum to be $54,285.73, sO as to give to the master $4,285.78 instead of $750; .and to the master and crew $25,000 instead of $4,875; and, adding to this the $1,856.65 and the $2,200.28, would make a total of $58,342.66, exclusive of costs. But the owners of the Etna really contend, on this appeal, that the compensation to them, relatively to the compensation of the ship's company, should be as 4.87 to 1.

4:76

FEDERAL REPORTER.

Complaint is made that the ship's company receive $750 more than the owners of the Etna i that the ship's compauy were in the employ of such owners and paid by it, and did little work as compared with the Etna, and little increased work; and that the substantial service was rendered by the steamer, and not by individual exertions. It is also said that the meager character of the award to the vessel wi'll prevent owners of vessels from rendering salvage service ; that the employes of the vessel are allowed to use the product of the investment of the' capital of 'the ship-owner to benefit themselves i that if the decroobelow is allowed to stand as :fixing a just measure of compensation to the ship-owner, shipowners will instruct their masters to no longer attempt to save property in peril at sea; and that, in consequence of the decision below, this has already been done by one of the steam-ship lines from the port of New York. These are not commendable suggestions, and it is not to be supposed that other Ship-owners will follow the example set in this case of making such unfounded and exaggerated claims as are made in the libel, culminating in a demand for $150,000. If, on the real facts of this case as they appeared to the district court, and as they appear to this court, the consequences intimated shall be arranged for by those who threaten them, they will undoubtedly hesitate to carry them out, if from no other motive, from that of self·interest, lest they themselves may at some time be in the peril with their property to which they propose to abandon the property of others. The consid. erations suggested are of no force except to injure those who procure their advocates in court to put them forth, and can meet with no favor from disinterested and impartial persons. It is, undoubtedly, the policy of the law, and it will be the aim of the court, to give a proper salvage remuneration to powerful and well-equipped steamers which render service in saving property that is in peril at sea. But the true character of the individual service must, under the circumstances of each particular case, be looked at. In the present case, the acts of the master of the Etna at the time show most dis·

ATLAS STEAM-SHIP CO.

v.

STEAM-amp COLON.

(477

tinctly what he understood the exigency to be. The agreement signed voluntarily by him, and under no stress, pressure, or compulsion, shows his view of the situation of the Colon, and of the service required of the Etna. There is no claim that the situation was misrepresented to him, or was misunderstood by him. The Colon was disabled as to her machinery, but was in other respects tight, staunch, and strong, and needed no assistance but towage. . The Etna. towed her to the port to which the Etna was bound. For the time occupied in the towage the compensation of $4,375 is at the rate of over $33 an hour. The delay to the Etna was 36 hours: It is speculation and conJecture to assume that disaster would have overtaken the Colon because of her location, or of her drifting, or of a change of weather, or of her being deprived of the use of her steam machinery, or of any shortness of provisions. Anything may happen, but there is no evidence on which to found a reasonable belief that disaster would have happened to the Colon Of her ,cargo from anyone of those causes. The evidence does not show any serious risk to the Etna, with proper management of her machinery. It is to be assumed that her machinery was properly managed. She was not asked to improperly manage her machinery in towing, or to tow at too rapid a rate, with injury to the machinery, when the machinery could have been properly managed, and the towing could have been done at a less rapid rate without injury to the machinery. Improper use of the machinery, when it could as well have been properly used, is not to be laid to the account of the Colon. The evidence as to the actual results of the towing on the machinery of the Etna. shows that the risk of breaking it down by the towing was very small. On the evidence the risk of the Etna exhausting her fuel was very small. As to the risk of the Etna's receiving nothing if her machinery had given out, or her coal been exhausted before reaching New York, it is clear that, as the service by the agreement was towage towards New York, the

478

WEDERAL

Etna. would have been entitled to compensation for such towage as she gave, if she had been compelled by either of the causes named to give up the towage, provided the Colon had reached New York safely. There is no reason to suppose she would not have reached New York safely The amount awarded by the district court for the service seems to be fully adequate, in view of the amounts awarded in the various cases cited on the part of the libellant as well as of the claimant, under the circumstances of those cases as compared with the circumstances of this case. As to the distribution made by the district court, if $10,. 000 is the proper total sum, as it is, the owners of the Etna can have no larger share of it (besides the $500) than the $4,375, as they do not appeal from the award to the master of $750, and to the master and crew of $4,375, and those sums have been paid. It was proper for the district court to refuse costs to the owners of the Etna because of the exorbitant and unfounded claims they brought forward, and the expense and trouble to which they wantonly subjected the claimant. The owners of the Etna should have a decree for the same amount as in the district court, without the costs of that court, and should pay to the claimant the costs of this court.

LANDS t1.

A

CARGO OF

227

TONS OF COAL.

(District C01JI1't, D. New Jersey. November 9, 1880.)
L AmaRALTY .JURISDICTION-MOTJON.-A court of admiralty will ordinarily refuse to decide a jurisdictional question upon a mere motion. Uushing v. Laird, 4 Ben. 88. Dtmnistoun v. Draper, Ii Blatchf.336. The Othello, 1 Ben. 43.

2. MONITIPN-INsUFFIcmNT DESCRIPTIoN.-An objection that the moni. tion did not sufficiently describe the property to be attached, is insufficient, where the marshal has not been thereby misled, and attached the wrong property.