STONE t. THE JEWELL.

103

Edward MitcheU, U. S. Atty., and Henry O. Pzatt,'Asst. U. S. 'Atty., for defendant.
LACOMBE, J. The construction contended for by the defendant would probably be the sound one if the word "unmanufactured" were found, at the end of the 513th parap;raph. Inasmuch, however, as the word "unmanufactured" is inserted in the middle of that paragraph, the natural inference w'ould be that the phraSe "horn strips and tips" covers both manufactured and unmanufactured horn strips and tips, provided they are not so advanced in manufacture as to become something, else. Apart from that, however, the case here is entirely clear upon other prinCiple, to-wit, that ofoommercial designation. The evidence shows conclusively that articles exactly like the articles in suit here were regularly by the trade prior to March 3, 1883; that they were universally known in the trade as "hornstripsi" imported as suchiaind, under the free-list enumeration of the successive tariff acte then in force, paid no duty. In view of that fact, it is to ,be assumed that when congress passed the act of March 3, 1883, it must have known that these articles were recognized in the trade as horn strips, and legis!ated accordingly. When, therefore, it used the words "horn strips" in the free-list we' are to assume it was entirely familiar with these articles, and included them within that term. Verdict directed, for plaintiffs.

STONE '/1. /

Tn

'

JEWELL"

(Dt.8trlct OOWrt,S. D. Alabama. December 28,1889.)

1.

,

S:u.V..,GB-SERVIOE-DEFINITION.

I.

Salvage, as an act, is the relief of property from an impending peril of the lea by the voluntary exertions of those under no legal obligation to assist; and its merit varies with the peril of the property and difficulty of relief. .
. .

SAME:....COMPENSATION.

Salvage, as a compensation, is a reward for meritorious Bervice in saving proPr erty in peril on navigable and is allowed as an encouragement to Buch en, deavorll· '

.. SAME:""BASIS OJ!' AWARD.

4.

15.

Salyage oompensation Bhould be liberal, but not extravagant; and, where the,circumstances Bhow the Bervice to be of a low degree, it may be diminished tomera wages.
If the peril is not in fact implinent, but is thought to be BO by the master, andha requests assistance, the ship cannot ,refuse to pay for the services then rendered; on the ground that the vessel would have been saved without them.
,

SAME--'-REQUEST OF MASTER .PO:\!. ABSISTA.NCE.

SAME-VESSEL ,AND CARGO.

The vessel is not liable for the proportion of salvage due by the cargo; and,on Ii libel against the vessel alone, no award can be made agaiD.st the cargo for its pro'o portion. . ,

In Admiralty. Libel on a claim for alleged salvage serviceatOa Bteam-boaton the Alabama river.
IBeportedby Peter J. Hamilton,Esq., of the Mobile bar.

104

REP0ll-TER,

voL 41.

(J.fL.. &;,[I.T. Smith; for libelant. Pillans, ,Torrey &: Hanaw, for claimant. ,Tour,r;mt, J. Salvagel's defined to be "the relief of property from an'impending peril of the sea by,the voluntary exertions of those who areurider,ho legal obligation to render assistance, and the consequent ultinHtte safety of the property; It may be a case of more or less merit, accordinjfto the degree ofperil in which the property was, and the danger aml diffic'nIty of relieving it. But these circumstances affect the degreeof the service, and not its nature." The Alphonso, 1 Curt. 376-378; The Alaska, ,23 Fed. Rep. 607. l\'1r.Justice BRADLEY. in the case of Sonde;rburg v. Tow-Boat Co., 3 W60ds,,l46,says: ' "Sa\l'lig-e, is a reward for meritotious services in saving property on navigable waters. in peril, and which might otherwise be destroyed, and is ailowed as an encouragement to all persons engaged in business at sea, or on navigable waters. and otherS, to' bestow their utmost endeavors to save vessels and cargoes which are in Imminent peril. Viewed in ,this light, it is proportioned to the value of the property saved. as to sccuret,pe object intended." "
, , .," . ,1

I

And it is held that it is not necessary that the danger should be imminentand absolute. It is s.ufficient if, at tho time the assistance is rendered, the vessel has encountered any damage or misfortune which mi[!;ht possibly expose her to destruction if the services were not'rendered. If the vessel is in aHsituation of actual apprehension, though not in actual danger, and the assistance of the salvors is requested by and rendered to the persons oJ vessel., they cannot plead that they' are not bound to pay for the services rendered on the ground that the vessel wotild have been saved if left in her 2 Pars. Shipp. & Adm. 282, Such I consider the case at bar. The steamer Jewell may not have been ina situation of actual danger. But, from the weight of the evidence, I find' that she was in a situation of apprehension, and that, after a volunfury and repeated offer of Capt. Stone to render,hf?r assistance with his crew,(which was at first declined by themaster incliarge of her,) Capt. Stone ,Vas requested by and rendered to the said master assistance in discharging her cargo. The master of the Jewell cannot now'plead that the services r.endered ought not to be paid for on the ground that the vessel would have been saved if left as she was. But the master of the Jewell says he thought it was a gratuity on the of Capt. Stone, and so·understood it at the titne. On the other hand, Stone says it was not intended as a gratuity ,and he expected refor the services of himself crew, and that nothing was said ori his part to induce a contrary belief. I cannot find, from the evidence, that the services were intended as a gratuity, and particularly in view pr the fact that the Jewell and Stone's boat (the Moore) were rivals,-' were running in opposition to each other. But the claimant further says that there was a custom for vessels engnged in the river trade-the trade in which these steamers were engaged-to assist each other gratu-

STONE V. THE JEWELL.'

105

itously. My opinion is that the evidence of the fact of the custom set up is insufficient to justify me in pronouncing against the claim of libelants on that ground. Now, then, I think that the libelants are entitled to compensatioll al:'! salvors. But what compensation should be allowed is an embarrassing question. It has been one of much difficulty to me. Salvage is reo garded in the light of compensation and reward, but it may be diminished by circumstances to mere wages; and, in endeavoring to fix a imit· able salvage reward for the services rendered, all the circumstances have to be considered. The steamer, in her first position, was in peril,-in some danger of sinking. But this danger had been greatly diminished at the time the libelan.ts weuno work on her. She had been materially lightened by the discharge,. by her own crew, of some 20 pales of cotton and 200 sacks of cotton seed of her cargo; and her crew continued to work along with the libelants (and they were of about equal nul11 l¥Jrs, m1king a total of 35 or 36 men) until some 60 bales of cotton and about 600 sacks of cotton seed were discharged, being about 40 balesof cotton and 400 sacks of cotton seed by theit joint efforts. The stealllerwas at the time rpade fa!;'!t to the bank of the river b,y It was at a public landing, and where there were quite a. nUI11bernf .me!! on shore. The extent of the danger and the duration of t,heservice.s 'Were ineonsiderable. Indeed, there was no difficulty inrelievirfg the steamer,nb danger whatever to libelants, and thedpration oHheservic'e rendered was short. No special skill was required,' and the prospect of succor 'from other sources was near. The value· of 'ine v.essel as shoWl) by the sale by the marshal, .which I consider a fair test of her vaJ.ue,1fas $1,700. Now,ull thes6I1latters are to be considered in endeavoring to fix a suitable reward for th,e services rendered. The authorities say thllt the compensation should be liberal, but not extravagant. ::My opinion is· that the service rendered was a salvage service, a very low degree of salvage service; but I award what I consider a liberal compensation for it, "as an encouragement to all persons engaged in business at sea or on navigable waters, and others, to bestow their utmost endeav·ors to save vessels and cargoes which are in peril." I award $170. The veSsel is not liable for the proportion of salvage due by the cargo. The Alaska, 23 Fed. Rep. 597 ; and no award can be made against the cargo in this suit. . Tbeexceptiolls to the libel are in part sustained, and the libelants are taxed with the costs thereof, and of the proceedings under the libel the consignees of the cargo. The claimant is taxed with all other costs. The amount realized on the decree, after deducting' the costs taxed against the libelants, will be prorated, and paid to them on Qe entered accordingly. the basis of their respective wages. A decree

J .', I:'! (\ .
. !

f J

L.·

P.EAnCE V·. THE THOMAS NEWTON·

(Df.$trictOou'I't,.1).NorthOarolina. November 20, 1889.)

. Tile lien' upon . shipped . owners. ,.

6

vessel for <the at ,

TO ,CARGO.

and due transport1of goods to be delivery Qfsuoha-oo&s toher agElnts and
PERILS'.

:

2. SRIPPINa--D.urAGB TO

'\Vl,J,ere haye provide\! a place for the tllegoods, from allbilt elFtraordinary events, they are not liabl.e for damages resultmg from & tidal wave arid flood; such as had ooourred but tWice before in 40 years.

, , But tlley,'aI1'liable for the damage that, results from their failure to dry snch goods, " even where :they'could not do 80, if thai have refused to the, goods to :owner,Whoallll:ild for them,and thUfl alford him an OpportUlllty to dry t.hem him·
Belf. , , ' , , '

Starke&: for libelant. Sharp kHugMB, ..
, .

In Adnii'8.1ty:Libe!'

".

"

.

'lll 1 i

. " ' }.

'J

.'

_

':-',

it,,·.

four. of goods, which. by ,the on Marcb. g. 3 ...1st a.n4, rUj"t la.st, Ddr b.J..ll of lad.i.n . . .. gi. '. th eref!.pro . Th. .. ,Were C. The plydeHne runs .. 0 .. ffl.01.f,'.. .:"V to, the ..ere.,. as, a.. p.. p,ear.s., b..Y the b.ills,pf . '. '.' .th ,lading" :e . n.J. t.0,.,': Thomas. . .. Tlle is. 1II0,rfol1:t" through the Disma:) North Carolina, ,,RJ;1d viz., 'rh,ursdays, at 6.A.M. She property oI,the NQrfolk Swamp Steam:Boat to thisppmpanlY at nboqt ,Ho'clock ,late for the trip pi. t,he Newton for I, il.D.Q w,{l$. therefore. the company's to /lwi\.it the have. been ,QnMonday morning. sqstc;>r,eqa, stprx;n and. flood of water pccurred, which flooded., warehouse,butthe ,entire water front :of; Norfolk. '. : Its the evidence, tl- flood such as had 'occurred but twice during the previous 40 years. COI1l,paQY sllifel1ed, ,in wilP ,otllers who had' whal;ves on the river, j7-!J.mqng ,Whose agent, :14r to [ljl1erchandiseawaitingtranshad rooms on ,in ;which. these, gC)ods,were stored, which the rise. of,.the,flood.,was so sudden abd unexpected that it would have been impossible-occurring, as it did, late at night-to have moved the goods to these upper stories. The damage was done by the water on Saturday night and the following day, or resulted from the wetting then received by the merchandise. As a result of the storm, the steamer Thomas Newton was unable to make her
,

.4.

;r.,,'l'he