FEDERAL REPORTER,
vol. 40.
equallyMturalpresurription that; if a state a right · of nction against the vessel in rem, these men would furnish materials and· tepliirson the credit of the vessel,tather than of the owner. Hence the supreme necessarily held that the admiralty courts could properly, in states which give the prit--ilegium, "entertain libels in rem against domestic vessels. . It is hardly necessary for me to cite section 2963 oftheCode of Virginia nsshowing that this statenas given the right of action and lien under consideration upon steam-boats and other tafts and river craft, owned or found within the jurisdiction of Therp, are some credits due upon the account of libelants, filed with their libel. These admit of ea,sy lldjustment between counsel, otherwise I will refer the accounts to a cOmmissioner for settlement. I will then decree for the libelants.
INLAND
&
SEA-BOARD COASTING
Co.
t1. rHE CoMMODORE. \
(.DI.8trl.ct Court, E. D. Virginia. August, 19, 1887.)1 SHIPPING-LIABILITY Ol!' VESSEL l!'on TORT.
A steam-dredge, which negligentlY leaves its anohor in a naVigable channel where , it been at work, is .liable in admiralty for damages OAusQd. to a vessel which runs into the anohor. .
'In Admiralty. Libel for daihiiges.' Sharp & Hughes, for libelimt. . .. \ 'HarnuinsO'll & Heath, for respondent. I . HUgHES; J. On themorni.ng of the 21st December, 1884, a steamer ofthe libelant, the Jane Moseley, after backing out from the cut which has been dug from the wha,rves at Cape Charles City to the channel Of Cherrystone river, in rounding into the channel with bow to the southward,' strt\ckananchor which was lying on the bottom where she. was sunlt,andsustaineddamages, which are the subject of this· Ifq\ll.. The Moseley hall been pulled out through the cut from the wharf i,ntothechannel, by a tug, before upon the anchor. The an· c.b,or had been originally used at or near that place by the master of the Qre<;lge Commodore, for holding the dredge fast while at work there; was left there, with a buoy attached, to the southern side of the entrallCe of the cut into the .channel; and had not been remov.ed the ofpiles now standing there had been put in that place. Theancho!was,lying under the water, with or without a buoy attached, when the Jane Moseley ran foul of it on the morning which has been mentioned. 'l. Publication delayed
by fahure to obWin copy.
INLAND &
,@A,BTINGCO. II. THIll COMMODORE.
2059
The case turns upon two questions, viz.: (1) Whether the anchor was in l.t,.p)aceto obstruclnaviga,tion; and, (2) if so, whether the· dredge Commodore, is liable for the damages resulting from the accIdent in question. The clump of piles now marking the southern side of the entrance of the cut from Cherrystone channel was placed there before the accident, and.stood there at the time of it. Bowman, tlleengineerwho had charg'e of the w'ork at Cape Charles City, places this clump in eight feet water on the niap he has filed in the cause, and which I mark "Map B." He marks the spot where the anchor lay at the time of the accident in water of not less than eight feet, just north and north-west of the clump of piles. 'Indeed, the anchor must have been in nearly the position marked' oil Bowman's plat, in order to have been struck hy the Moseley. which cleared or was clearing the clump of piles at the time of the accident. It is impossible that it could have been some distance within and south-east of the clump of piles in five feet water, as stated by Turner, and marked by him on the plat which he filed, and which I mark "Map C." If itha,d been where Turner locates it, the Moseley would have been kept ofiby the clump of piles; and, even if the piles had not iiiterposed, it would have been difficultfor a vessel drawing seven feet ofwatflr, as the Moseley did, to have run upon all, anchor lying in five feet water. I am conclusively of opinion that the anchor lay where the Moseley struck it before striking the clump of piles lying beyond, and that it lay where any vessel navigating the water there was liable to run foul of it. As to whether the anchor was put where it was, or in that vicinity, by the direction of Field, the master of the Commodore, I think that point is settled by the testimony of respondents, especially of Colton. Field was responsible for the original deposit of the anchor there, for any removal of it subseq,uently by persons subject to his orders, and for its not having been taken up alfter the piles had been put up near it. It is quite immaterial whether the anchor was marked by a buoy. It ought not to have been there at all· ., The only question left to be considered is whether the negligence of Field, master of the Commodore, bound the dredge. Field is known in the transaction solely as the master of the dredge.. The,anchor that was negligently left at the bottom of ,tin important channel of navigation was a part of the apparel and outfit of the dredge, and was used by the dredge in the work she was engaged in. The tort was the tort of the dredge; the negligence which caused the tort was the negligence of the dredge. Respondent's counsel lay no stress upon this point, and I think they cannot 80 with reason or success. I will sign a decree for the libelant.
ao
260 Bco'l"r
J'EDERAL REPORTER,
vol. 40. CoAL.
tI. FOUR HUNDRED AND FORTY-FIVE TONS OJ'
(Oircuit Oourt, D. Oonnecticut. Ootober 80. 1889.) BALVAGB-CoMPBNSATION.
A schooner laden with ooal struok Bnd sank in very dangerous water Bt the entrance of Island sound. only the main rail being out of wBter. The looality was an exceptionally bad one in whioh to save either vessel or cargo. Libelant, the owner of a wreeking equipment, oftered to save the top-hamper for 50 per cent. of its value, if successful, and subsequently offered to save it for 40 per cent., if he could have 75 ,per cent. of the cargo also as salvage service. The agent of the vessel's owners accepted this proposition. The libelant communicated this offer to the consignees and· insurers. without receiving any reply. Libelant took a lighter, a tug, and 12 men, and in 2 days had. the top-hamper ashore safely. He seoured the servioes of a large steam wrecking vessel. having a foreman and 2 men, and with his.own lighter and tug prooeeded to pump the ooal out of the hull. After getting a small pa,rt out, by the aid of the ourrent the vessel was raised and. with difficulty, gotten ashore on the same day. Shortly afterwards the coal was removed. The top·hamper alone was worth $800 to $1,000, and the schooner and hamper were worth $1,200 to $1,500. and the coal was worth $1,575. The owners of the vessel paid libel. ant $600 more than 70 per cent. of his estimate of the value, and the insurers offered him their .interest in the for $600. The steam vessel usually earned $100 per day, and libelant paid her owners $600 for her serVlces, which were indispensable to the saving of the vessel and cargo. HeW, that $1,000 should be allowed ·to libelant for his'salvage service upon the cargo. Affirming 89 Fed. Rep. 285.
In Admiralty. On appeal from district court. 39 Fed. Rep. 285. Libel for salvage by Thomas A. Scott against Four Hundred and Forty-FiveTons of Coal; the China Mutual Insurance Company, claimant and appellant. . Sarnuel Park, for libelant. Walter O. Noyes, for claimant. LACOMBE,
not be disturbed except where some clear and palpable mistake or gross overallowance is shown. Hobart v. Drogan. 10 Pet. 119; The Oarnanche, 8 Wall. 448. In view of the situation of the vessel when the salvage service was entered upon, and thE) large amount of money (large in proportion to the value of the property sought to be saved) which the libelant put at risk, it cannot be seriously claimed that there has been any groils overallowance. It is argued by the that the district judge' by mistake took into cOllsideration items of charge for services rendered subsequently to the acceptance of the coal by the insurance company, and at their request, and for which, irrespective of the decision of this case, he. has a cause of action against the'insurance company. The record, however, does not disclose any such contract with the insurance company as would support an independent action for these items. Nor does it appear that the amount awarded by the district court was increased in consequence of the proof of these items. In the undisputed items of expense, and the situation of the vessel, there is quite sufficient to sustain the award. Nor has any different ratio of salvage for vessel and for cargo been assessed by the district judge. He has determined what was a proper compensation for the service rendered to the
J. The amount of salvage fixed by the dishict court should
·
BAKER SALVAGE CO. fl. THE TAYLOR DICKSON.
261
cargo, and declined to alter his finding becau8e it appeared that the vessel owner and salvor agreed out of court upon a different ratio for this vessel. Decree affirmed.
BAKER SALVAGE
fl. THE TAYLOR DICKSON.
(Dist4'let Oourt, E. D. Virg1.nia. Aprll18,l888.) 1. SALVAGE-RELEASE OF RIGHT TO COMPENSATION.
'.
SAME-SEAMEN.
But as the master and crew of the tug were employed for the ordinary business of the toWing company, when it authorized the tug to be sent out in stormy weather ,for the purpose of rescuing a vessel there arose an implied permission on the part of the owners to the crew to receive the usual proportion of the salvage award; and as, under Rev. St; U. s. § 4535, seamen are rendered inQapable of releasing their right to participate in the award, they are entitled to their proportionate share. viz., one-third, after deducting costs.
In Admiralty. On the intervening petitions of the owners and master and crew of the steam-tug Sampson. On the 25th of Decemher last, the steam-tug Sampson, Capt. Joseph Delano, pursuant to orders received from the Baker Salvage Company of Norfolk, left this port to go after the schooner Taylor Dickson, then lying off Chicamicomico, on the North Carolina coast, flying signals of distress, with main and mizzen masts carried away. The Sampson's orders were to proceed until she met the Victoria J. Peed, a strong wrecking steamer ofthe libelants, which they intended sending to the rescue of the Tavlor Dickson, and to receive the rescued vessel from the Peed and tow her into Norfolk. But the Sampson was ordered that, if the Peed should not have gone to the Taylor Dickson, then 'to go herself, say to her Illaster that the Sampson had been sent by the Baker Salvage Company to take charge of her, and bring her into port. The Peed was at the time lying off the coast between Cape Henry and Chicamicomico, waiting on the wrecked ocean steamer Kimberly; and the weather proved to be'such that orders could not be sent to the Peed, as contemplated when the Sampson left Norfolk, and the Peed did not go t6 the Taylor Dickson. It resulted that the Sampson went herself, took the schooner in tow, and brought her to Norfolk, where she arrived on the December. A libel was filed in this court on the 6th of January, 1888,. by the Baker Salvage Company against the Dickson for salvage.
262
.y.'r":""'.I'EDERAI.i REPORTER,
On/the) 20th lJ'anURl!Y the' American Towing Company of Baltimore, filed a. petition in the same cause, wl}ich;is::«>wn6r:ofthe tug claiming that, out of the proceeds arising from ,the sale olthe schooner Taylor Dickson and her cargo when sold, it should be paid "a liberal reward and compensation for having, with its tug and the officers and wen employed by it, saved the said schooner, her cargo and crew, from loss and destruction." On the 27th of January another petition was filed in. the same. .the master and crew of the tug Sampson pray that they may be allowed to intervene for the assertion of their rights, and claiming a POrtion of the reward and salvage which may be decreed by the court in compensation for their own services in savjng the said schOoner... :By consent between libelant and petitioners the' cause wasfiret tried on the question of salvage, and the amount to beawardep; and a. decree was rendered on the 9th of February allowing' a gross sum of $3,600, of which the salvage reward was at $3,000. See. 83 Fed" ,Eep. 886. The case is now heard on the question of the distribution oHhis award. cla.im ofthe American Towing Company, OWner ofthe Sampson, to.any partof .the award is resisted by the libelants, the Baker Salvage Company, on the ground that the Sampson was, at the time of rendertng the ,service to· the 'l'aylor Dickson, under a general contract of char. tel' with. the Baker Salvage Company to render general salvage service rate of $100 a day; that the Sampson had been engaged in such / service since the night of theSd of December, and continued afterwards to be so engaged until the 27th of January, charging $100 a day for the whole period; that in pursuance of such contract the Sampson, when ordel'Cd to t!:;le ,rescue of the Taylor Dickson by the wrecking company in whose service it was, obeyed the order without protest, informing the DiCkson, on l'Cachingher, that she was there by orders of Salvage COJDpany; and that when the Sampson brought the Dickson into the port of Norfolk she delivered her to the Baker Salvage Cqmpany. On the other hand, the American Towing Company insist thalthe service for which they contracted with the salvage company was aspecial servic.e of towing, to be rendered in connection with the wrecked ocean steamer Kimberly, then lying on the beach at False cape, and that alone; that the service rendered to the schooner Taylor Dickson w;as not embraced in their contract; and that they have a right to compElnsation for saving the schooner as a distinct and sepal'.<:tte service from that which they had contracted to render to the Baker Salvage Company with the Kimberly. . American Towing Company seem to have tried and .Counsel for on,the that, if the contract was for special argued the swvice to the Kimberly alone, then the Sampson has a right to special compensation for saving the schooner; and, on the other hand, if the contr:act:was that the Sampson should render service generally as it should required by tbe Bltker SalvlJ,ge COlDpany, then the$l00 a day, charged for 5p days, $oul4 be. treated as covering the cdrnpensl;\tion due for all sei'vice rendered by the Sampson. Let it be premised that about the
BAKER SALVAGE ,00. II. THE TAYLOR' DICKSON.
263
1st of December, 1887 ,the British steam-ship Kimberly, with a large cargo of cottOll and grain, was beached 011 the Atlantic coast south of Cape Henry, near False cape, and that the Baker Salvage Company was on the 3d and 4th of December, and until tne27th of January, engaged in taking off her cargo and bringing it to Norfolk, and in hauling the steamer off from her perilous position, and towing her into port. It may also be premised that the American Towing Company owned, among other property, two steam-tugs,-the Raleigh and the Sampson. They were differently constructed; the Sampson being adapted exclUsively to the purpose of towing, while the Raleigh was not only a seagoing towing steamer, but could also carry a. 'moderate amount of freight, and was well adapted to the purpose of lightering vessels of their cargoes. The business of the Baker Salvage Company was primarily that of general wreckers and salvors on the high seas, and they ing only as incidental to their wrecking and salvage operations. The business of the American Towing Company was primarily that of towing in Chesapeake bay, and adjacent waters; incidentally to which they' occasionally engaged in saving vessels in distress in those waters. Wheri the Baker Salvage Company found themselves, on the 3d ofUecember last, in charge of the wrecked ocean steamer Kimberly and her Cft,rgq, it became necessary for them to increase their force of steam and sail ves-, sels, and they addressed themselves at once to that necessity; Accordingly their secretary, MT. George McBIair, telegraphed to thtl'owners of two very strong steam-tugs in Philadelphia,-the Rattler tmdBllttler,and to the Americap. Towing Company in Baltimore, owners of the R3leigh, inquiring on 'what terms they could obtain the use of those tugs. The Raleigh was desired on account of its capacity to carry a moderate amount of as well as its capacity as a tug. On the same .day on which McBIair sent his telegram relating to the Raleigh,' tug Sampson had come into Norfolk for the purpose of'towing a raftoflogs from there to Baltimore; but the weather was unfavorable for such work, and Capt. Delano, master of the Sampson, was willing, while waiting for better weather, to engage in other work which might present its.elf. On the 3d day of December, 1887, H. H. Petze,secretary of the American Towing Company, re"iding in Baltimore, received the telegram which has been mentioned, as sent by McBIair, secretary of the Baker Salvage Company, saying: "Wire what price you win fur-, nish steamer Raleigh for lightering steamer Kimberly, quick." On the same day PetzEl answered by telegram that the Raleigh could not then be had. The master .of the Sampson, Captain Delimo, then in Norfolk, as has been stated, had telegraphed on the same day to Petze as follows, but without the knowledge of McBIair: "Raft ready this afternoon; wind ellst; cannot start; salvage company offer hundred 'dollars per da,Y to wnit on wrecked steamer. Answer." To this telegram of Delano,Petze answered next day, the 4th: "I woul4; advisetoaacept offer of !3alvage Company." On the same day, the 4th DecemQer, McBlairtelegraphed to Fetze as follows: will you charter
(
264
FEDERAL REPOltTER,
Sampsonfor, week or ten days? Put itlow. She is now towing schooner to wreck for us." Petze answered at once, "If Capt. Delano can arrange to have raft wait day or so for Hercules, will charter Sampson for $100. 1' Not hearing from i McBlair ob the 4th, Petze telegraphed him on the 5th: "Is Sampson engaged on wreck? Answer quick, so that I may arrange about raft." To this McBlairanswered on the 5th as follows: "Engaged bySalvage Company probably for some time. Send for raft." These three last telegrams, of the 4th and 5th December, viz.: the inquiry from McBlair, th", answer from Pe,tze, and the rejoinder from McBlair, determine whatever. contract there was between the two companies at the outset of the chartering of the Sampson, which lasted for 53 days. Before these telegrams ,had been sent and received, Capt. Delano, of the Sampson. and Mr. Turner, president of the Baker Salvage Company, had, on the afternoon of the 3d December, concluded a negotiation for a mere temporary service of the Sampson. Capt. Delano testifies substantially in regard to this negotiation as follows: "I cannot recollect exactlYithe words me and Mr. Turner bad. On the afternooll of the, .3d of December tbe office boy of the Baker Salvage Company came to the Sa,mpson and told me that Mr. Turner wanted to see me. I went lo the Old Dominion pier. and met Mr. Turner there. He asked me what 1 would tow tbe schooner Emily Johnson to the steamer on Currituck [the Kimberly] for. At first I asked him $12 an hour; but he said he thought that was quite steep. and he did not know there would be anything in it, but wanted to send the schooner down there. Then I told him that 1 came to Norfolk ,for a raft. and that ,the wind was blowing, and 1 did not think I could start itfortwo or three days. and that we had another tug. and that I would take this schooner down for him at one hundred dollars per until said it would probably last for a few days, and I got back. Then Mr. that he was satisfied at a hundred dollars; that that was what he had paid the Slater and others. 1 told him when he was ready to send orders; that I had steam, and.was ready to go any'Um·e. So that night, about ten or eleven o'clock. I left Norfolk with the Emily Johnson for, the steamer Kimberly, as it turned out to be, i sent the telegram, [allUding to the telegram heretofore sent f!'Om him to Petze in Baltimore on the 3d December, saying that salvage company offer $100 per day to wait on steamer.]" , Capt. Delano further testified that he considered he was engaged especially to work on the Kjmberly. Mr. Turner says. substantially, on this subject, as follows: ,"On or abo.ut the 3d December I found that the eXigencies of the service required that we should, have more tug-boat service. I understood that Capt. Delano's tug was in the harbor, and. knowing him from his having done other work for us at different times, I sent for him to come to the office, and told him that 1 needed extra service,-that is. morEl tug service: that the Kimberly was ashore, and, in conneetioil with that, we expected to have to tow and lighter her cargo. 1 asked him what he would charge me to enter into the service of the Baker Salvage Company. He said something about $12 an hour; but I said that wOtlld not do,-was too stiff,-and he finally agreed that he would hire himself to the Baker Salvage Company for one bundred dollars a day, boat and crew, and he was to furnish fuel. Then 1 said aU right; that the terms seemed satisfactory: and that I would engage him, and let bim know when ready, and as soon as we. ordered bim the pay
BAKER SALVAGE CO. 17. THE TAYLOR DICKSON.
265
will bellin. This was during Saturday afternoon. 3d December. I spoke about the schooner Emily Johnson, as I had already engaged her for lightering the cargo of the Kimberly, and about 11 or 12 o'clock that night, after the arrival of Mr. McBlair, th,e secretary, the tug was given the schooner Emily Johnson, and started for the Kimberly. I fUlly understood that tb,e steamer Sampson was chartered for the Baker Salvage Company, and would have unhesitatingly started her on any service. The Sampson was chartered by the Baker Salvage Company per day for an indefinite period. We could stop when we liked.-one or the other c0l11d; and I understood the charter was to do any service that we might direct it to do."
Such had been the negotiations under which the Sampson went'to work for the Baker Salvage Company. Between the 3d and· the 25th of December she was principally engaged in towing schooners out to the Kimberlyandill from there, bringing away cotton from the Kimberly. The season was stormy, and the Sampson did nothing on a number:(!jf days when wind and tide prevented the work of lightering the Kimberly from going on. Whenever the Baker Salvage Company had other work for the Sampson to do when thus disengaged, they called upon her 'th do it. She did the work,and the bills for such service were collected by the Baker Salvage Company. Several jobs of towing were thusdon'6 by the Sampson in Norfolk harbor. On one occasion she went below 'Lambert's point, and pulled the Old Dominion steamer Roanoke' 'off shore where she had grounded. She also towed a large vessel(the Harvester) from Lynnhaven bay, where she was in distress, to anchorage near Thimble Light in Chesapeake bay. She did· every job of this sott whenever called uponby,theBaker Company; making no objection that she had been employt;d only to on the Kimberly, and makingnb claim to the earnings which the Baker Salvage Company' were collecting for such jobs. On the 25th December the Baker Salvage Company receivediritelligence of the distress which the schooner Taylor Dickson was in off Chicamicomico. The Baker Salvage Company's wrecking steamer Victoria J. Peed was then off False cape; i pulling on cables from the Kimberly whenever practicable, and waiting on the Kimberly, engaged in the work of saving ship and cargo. Mr. McBlair, on heating of the condition of the Taylor Dickson, determined to orderth6 Peed to proceed from False' cape to Chicamicomico to her assistance, and then to bring her on up the coast until she should meet the'Sampson, when the Sampson should receive her from the Peed, and bring her .to Norfolk. Capt. Delano was sent for by Mr. McBlair on the 25th of December, informed of the condition of the Taylor Dickson, instructed as to McBlair's design of sending the Peed to the Dickson, and directed to get up steam and proceed out to sea until he should meet the Peed, and to receive the Dickson from the Peed and bring her to Norfolk. He was further directed that, in the contingency that the Peed should not go to the Dickson, he should himself go after her, and, on arriving where she was, to say to her master that the Sam pson was sent by the Baker Salvage Company, and to make no contract with her. . Capt.Delano accepted:these orders, at once set about executing them, was furnished with a'reliablehawser by the Baker Salvage Company,.(the
,Sampilon's hawser not being long enough ouafe,) went to the Dickson, infcmned 'her that be' was thereby orderE! of the Baker Salvage in 26th of Decembe!1 brought her in,t,i over, to :Saker Salvage The tel'¢il1fited on the 26th of 'January following, steamer'Kimberly was finally !brough't into thi!3port.. The master· of the tug,soon after presented his 'accohntto the Baker Sa]vageComparty for the service of the Sampson, 53 days from the 3d of Decerrioer, :at $100 per day. This bill was sent .hy. to ,fetze, but alf,h()\;Igh ,caUlld for was nQt produced in evi!By,:,the7th of of W9rk, by Petzehac;l for or..had been paid as much ,alJ'!,aJQt!lJ 9£;$,2,500t andseemed',tqba disposed draw for another iCorreSpQn<;lence. ,Petre m,ade no ,claim to share in the ·f\alvAge'fol'J.the, Dickson·. would bave been the compensat4m that time per -day, for B:period which included ,Q.ll,y:$,,¢, fJOn the 4th of Febi n!3ry;, ;Paiq an, I,l.ddW9nal: 8.1 ,000. to th!3 ,.82,,;5QO pfeviously' rethe owners petbe Sampson .. ,There .,no . of accounts two. cOmpanies. I Qom PllPiY n,ever: dad ucOO4 :the per diBms which 'The, ,W';Quld AAye.b,eene,llrpeq. if :the pad noLbeen in the seryOqp1panyd\;LTjngl1 er after the 'fay:lQr P.i!l. ,op. i 2f>.th,. :2.£$t .. . 2..7t.h ·O.f. D"ec,ember.. ..'" .. · ,: ; !I... ) HeaJlJ" Hunckle, for
.
hill , ... ':
.i'/ .,,;: :.) -,':", ·. '::" ..: . .
,; ".' j;
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:J!'ro.m,.this epJtoIlleQf the J of tlle that at the peginning iQf, Qf, tlwre ,werep"t t\YO' Qfcontract mut,VNly. i"greeQ., J.lppn,,,nd Salvage Company ,.,.....,.which that the was day, whetllerat work Qr not; pq.rty.,wasatJi»fll'tY1to, ,a,t.jts own at tlle .beginning tbequ!'lstjop exclqsively QutR-e'Kimberly joP, or Q9, the Cqwpany.shouldhav., for .her to lAA :the ;\l\i,y,. ,Wfl:lGldng, was upon I. 11m..of opinion, moreover, ,tMt,in.:tlte:pJ;Qgfess the MrviClil, and quite early in its prqgressl the @j:a.. oti,the: pa.rties:this unsettle§!. question; . I think Qf Sah:age COIlilPanyto Capt. D.elano that tQthe . K imperIYland his :woJ{'\r,>wit1;l.out ,9hjectjon during, a period .of three weeks beo( put au i"PteI'pretationupon the ,wpwpt I ,4weri.()an: !,rowing. Gompany cannotnQw bYithe acts of
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