usage or"custom op'beportof or if the f!1?tsnecessaryfor the consideration of the case had to be proved by testimony to be taken in that port, there might be rea-aons for remitting the libellants to the courts of their own country; but as the facts necessary for the determination of the question raised are not disputed, .and as the meaning of the contract seems to me perfectly clear and favorable to the party objecting to the jurisdiction, I have considered that in this case justice will be promoted by my exercising the jurisdiction which undoubtedly this court has, and by now disposing of the case. Other questions, as t() the form of the libel, have been raised by the claimants, but in the view I have taken of the controversy, on its merits, it is not necessary to pa.ss npon these questions. Libel dismissed.
THE
STEAMER ADIRONDACK.
Court. 8. D. New York. Deceinber 29,1880.) L' BALVAO:m-.-ApPORTlONMENT-EXPENSES-SHARE OF STEAUER-ENGm.. EER-TAJl;lNG ASSIGNMENT Oil' SEAMAN'S SHARE.
011 apportionment of a fund awarded by the court as salvage, which . is applied for by t1w master and part of the brew of the steamer rendering the service: Helfl, that the owners are entitled to $750, to be re-imbursed out of the fund before it is apportioned, as indemnity for all the expenses' IIJ)d loss by reason of the salvage service. That law expenses, incurred in the trial of the suit in which' the amount of salvage was awarded, should not be included, as they were rendered mainly unnecessary by the claimants having tendered, in their answer in that suit, and paid into court, all that was properly due for salvage service. That, follOWing the principle of admiralty courts favoring the claims of a steamer employed in a towage salvage service, a proper apportionment in the present case will be three-fifths of $6,750-the fund remaining after deducting the owners' expenses of salvage service-to the owners of the steamer, as principal salvor, and two-fifths to the master and crew, as follows: $300 to the master, and the residue among the officers and crew, including the master, in proportion
I'BDERAL lUllPOBTEB.
to their respective ,wages ; the shares of the master and crew to be free of all charges and expenses incurred by the owners. That no sufficient ground is shown for giving the engineer of the steamer an extra share. A.lso held, that the owners cannot extinguish the claims of seamen for salvage who have not appeared to claim their shares by taking an assignment frOm them. The amounts actually paid the seamen may be considered as paid on account of their shares, and re-imbursed to the owners,-the residue of the seamen's shares to remain in the registry to await their application therefor.
In Admiralty. L. Ullo, for master and seamen. J. E. Parsons, for owners. CHOATE, D. J. This is an application by the master and part of the crew of the steam-ship Plainmeller for an apportionment of the salvage in the case of The Adirondack, 2 FED. REP. 387, 872. It is shown, on the part of the owners of the Plainmeller, that they incurred some expenses, by reason of the salvage service. which should be first re-imbursed to them out of the amount paid. They are: For port charges in New York, about $215; extra coal, $250; captain's expenses, $60; and some other trifling expenses. They ask to be allowed, also, for law expenses in the trial of the suitsome $750 ; charges of their agents for attending to the business of the suit; and some $400 for repairs. As to these expenses, it was not shown upon the hearing. and is not now shown, that the towage service made any repairs necessary, and the law expenses incurred were, in my judgment, mainly unnecessary, as the Adirondack offered to pay aU that was properly due for the service rendered. These charges ought not, therefore, to Le taken into account in apportioning the salvage; and, under all the circumstances, I think that $750 will be a full indemnity to the owners of the vessel for their expenses and loss by reason of the salvage service. This is all for which they have any just claim on the master and erew for re-imbul'sement. Deducting this sum, there remains $6,750 to be apportioned between the vessel and the master and crew. The owners of the vessel urge that the vessel was the pdncipal salvor, and that the service of the master and
TilE STEAMER ADIRONDACK.
215
<Jrew were attended with so little risk and additional labor that they should recieve only n. small proportion-perhaps one-quarter part of the amount. The claims of a steamer employed in a towage salvage service are very favorably COllsidered by the courts of admiralty, because, without her powerful aid, the master and crew could not save the property, and the use of the steamer is the use of the capital of the owners, and their property is necessarily put at some risk in the enterprise. Yet, while this consideration has received full recognition, it has been generally thought just to divide the award in nearly equal parts between the vessel and the actual salvors, the variations from this distribution depending on the particular circumstances of each case, affecting the merits of their respective claims. The Perla, Swa. 230; The l!ow, 3 IIngg.25G, note; The Earl Gray, ld. 364; The Himalaya, Swan, 515; The Spirit of the Age, ld. 28fi; The St. Nicolas, Lush. 29; The Princess Helena, ld. 197; The True Blue, L. R. 1 P.C. 259; The Sir Ralph Abercrombie, ld. 461; The Kingalock, 1 Spk. 267; The Aifen, Swa. 190; The Leip.sic, 5 FED. REP. 108. A proper apportionment in the present case will, I think, be three-fifths of the $6,750 to the owners of the steamer, as the principal salvor, and two-fifths to the master and crew, as follows: Three hundred dollars ·to the master, and the residue among the officers and crew, including the master, in proportion to their respective wages; the shares of the master -and crew to be free from all charges for law expenses or other charges incurred by the owners. extl'a share is asked for the chief engineer, but I Bee no sufficient ground for giving it. It appears that the owners have taken assignments from .some of the crew, who have not yet appeared to make a claim for their share,S. The amounts actually paid these men may be considered as paid on account of their shares, and re-im. bursed to the owners. The residue of their shares will remain .in the registry to await their applicatiQn for it. The owners .cannot thus extinguiSh the claims of seamen. Decree accordingly.
216
Two
HUNDRED AND FIFTY TONS OF SALT LADEN ON BOARD THE SOHOONER BARBARA
F.
LATHlIER.
(Distrzct Oourt, B. D. New York.
December, 1880.)
L PRACTICE-ATTACHING GoODS IN POSSESSION Oll' COLLECTOR OF Cus. TOMs--AmURALTY JURISDICTION--REV. ST. 2981--SALE ON VEND. SUBJECT TO DUTIES.
Ex.
Where a libel in rem to recover freight was filed against a cargo of salt which the consignee had refused to accept, and the collector of customs had taken it into his custody to secure payment of duties, and while in his possession the monition was served on him by the marshal by exhibiting to him the original process, leaving with him a copy and delivering a notice of attachment to the keeper of the United States public store where part of the salt was and whither the rest was in course of removal from the vessel, and the marshal made return of the monition that he" was unable to take said property into his ·custody otherwise than as aforesaid for the reason of the custody of said collector," and an interlocutory decree on default having been entered, and the amount of the libellant's claim and lien for freight ascertained, the libellant applied for a final decree and order that a writ vena. ex. issue for the sale of the salt, subject to the payment of the duties and expenses due the United States. Hela, ex parte, that the court acquired jurisdiction over the property by the service of the process as made, and could order the goods sold, subject to the claims of the United States for duties and expenses. Taylor v. Carryl, 20 How. 583, and HOI/Til v. Dennie, a Pet. 292, referred to.
In Admiralty. W. R. Bebee, for libellant. D. J. This is a libel in rem for freight against the cargo which the consignee has refused to accept. The marshal, in attempting to serve the process, found the cargo partly on the vessel and partly in the United States public stores, whither it was in course of removal by the collector of the port, who had taken possession of it for the enforcement of the rights of the United States to the duties upon its impor'ation. The process was served by a notice of the attachment delivered to the storekeeper, and by exhibiting to the collector the original process and leaving with him a copy of it. The marshal, in making return of this service, adds that he "was unable to tal{8 said property into his custody othCHOATE,