FEDERiiLREPORTJEB; wI. 50.
JleWsbd'given for I10t producing him. ,His supposed oi'de'r to',the Spray is sufficientlyitcconnted (or by his hawser; and the weight of evidence is clear that the Spray did mst go side the Intrepid at all, the float and took chargE' of her management. Nor is it probable that if the master had ordered him away from the first, he would have offered to audit his bill after the service. The assistance desired was, however, comparatively slight; namely, some 10 or 15 minlites' service in keeping' the float straight and beaching her upon the flats, ,a little tothe If the servicE's had not been expected by thEr master of the Intrepid, his bargain with the pilot of the Curtis would evidently be a piece of cunning approaching iInp'Ositie'5u; ,iifs(), it was vlliuntarily compensated for by the owners afterwards,oy ihe, to the Curtiso£$125, for her services. It seems that the master of the Intrepid, seeing that the Spray Wilsgoingaloogside the float, bargained with the Curtis for $10 as for a merely additionalservice besides that of the Spray; for the weight of testim<;>ny shows that the Spray came up to the float first. 'fhe services oreitherboat alone would probably have been sufficient; but the circumstances were such that the master' might well have ,thought best to avail himself of the offEtr qf both. The Spray having arrived a little earlier, and having in reality as pdlicipal as between the two, should be allowed more than the Curtis. Two hundred dollars will, I think, be So"sufficient and appropriate compensation, (The Jas. R'lI,mse'!), 40 Fed. Rep. 909;) but as the libel was filed immediately, and without demand, and as security in the sum of $5,000 was required, decree must be without costs. ' ,
glite1tliose ordehH hli!1not been caUedasa
he,gt)bJ tWere. Th e master ofthe Intrepid,' 'wJlrii"it
the
1 HE ltOANOKE. LEATHEM:
et al.
'I).
THE ROANOKB.
(Dl.strict Court, E.
n. WiBconB'l:n.
May 16, 1899.)
1.
SA.LVAGg-CONTiu.cT.
A cQnl;l'alltto pay for'salvage service a fixed price absolutely, without respect to or failure, does tbe character of the service. It. remains a salvage setvice,but the measure of compensation is gauged by the contract, and not by the danger encountered, or the value of the property salved.
2. SA.LVAGE-J"URISllIOTION-LIBN.
4 can 1;ract to pay a 1i1ted ,price for a, salvl\ge service, in any eveIlt,does not affect thea'dmi'ralty jurisdiction, nor the lien granted by the maritime law for salvage service, CONlrItAOT. .
8.
A contract between the salvors and the owner of the ship, for a fixed sum payable in respect of the ship; and for a larger sum payablem respect of the underwriters, is tainted with fraud, and will not be enforced. . Settlemehtii by the master, deliberately and fairly made, are upheld. But sucb letJ,lemen¥l, made pursuant to and in furtherance of a contract to defraud nndel'writers, will not be sustained. CEBTI!'ICATE.,--FBAUD. ,
40.
THE ROANOKE.
575
II, B.iLVACUI-INBPPrOIENOY OJ' WRBOXtNG OUTPIT-HmING BY TlIB DAY. : . . .'Compenllationoaqnot be abated fOI" inefficienoy ofwreoking material hired at a 1lied the- day, and subjeot to disoharge at tpe will of w,aater. Retaining the service, the Contract compensation must be paid. <SyZl,alnur b1/ the Court.> .
In Adtrlihtlty. Libel by John Leathem and otheril'against the propeller .RottDoke for salvage.. Decree for libelants· .. M. C. Kra'lJ)je, for libelants. 'F; M. HOyt, forrespondeIit. !-,,'" " ;", '
JENKINS, The propeller}toanoke,Jaden with lumber, on ,the evening oCthe 8th dllY of August, 1891, set out on a voyage Mich., to the port ,of Chicago, Ill. Leavfront the port ing her dQck, and if!: winding to go out, ,she, struck upon 8r sunken ledge pf to: .the displacement· of a buoy; stove a hole 26x20 on the starboard side near the keel, and some 30 feetforward of her 'stern; and sank in i2 feet of water. The deck load was removed. and taken ashore. The master thereupon, olltlle9tq day ofAugust,hJred of the libelants a steam pump, which was placed upon the vessel, the libelant Leathem accompanying it and superintending its, operation. The vessel was floated, towed along!,ide the dock, whim, inconsequence of an obstruction in the hole getting filled..lilnd sank in 10 feet of water.. The one pump being insufficiellt, a secopd and smaller pump of the libelants was engaged, and, on the 10th ofAuguf>t, placed in positiop on the vessel. Both pumps proving inadequate to the task of raising the vessel, a third pump was procured of other parties on the 13th of August, .and, by the combined action of the thretf, the vessel was raised on the 14th day of August. The cargo was removed, and the hole battened up with bags filled and planks braced against the deck. The vessel then, on the 15th August, proceeded for repairs to Milwaukee, having the two pumps of the libelants aboard, and at work to keep her free. At mi<lnight,on the 15th August, when some three miles off Sheboygan, the WR.ter wasfound to be gaining, coming up nearly to the fire-hole door. The libelant. Leathem was aroused from sleep, took charge of the operation of the pumps, working them beyond their ordinary capacity, and succeeded in the water in the hold, and keeping it from the fires. , The vessel was headed for Sheboygan, and reached that port at 3 A. M. ontbe 16th August. She maqe fast to the dock, and about A. M. listed to starboard, and sank in 12 feet of water. This was caused by the plugging in some way escaping from the hole in the vessel. Various atteqlptsbetween the 17th and 26th August were maddo right the vessel. She was raised several times, but would at once list to one side and sink. Another pump was procured from Milwaukee, and placed on the vessel on the 26th August, and on the 28th of August the vessel was raised, but, while the dry dock was being made ready to receive her, she listed to the port side and sank, throwing the boiler of one of the pumps into the river and breaking connections. The boiler
'576
FEDERAL REPORTER,
vol. 50.
:wp.srecovered;the connections repaired, the put in operation, and, theboilt was finally rai!:led and placed in dry dock on the 5th day of September.' ' The libel was filed in rem, in a cause of salvage, to recover the reasonof .service. At the hearing it was compreable hend a contract in the nature o.f!;lalvage, and to assert II specific contract for the use of two puuips at an agreed rate of $45 and $35 per day, respectively. The libel also asserted an accounting with the master and the owner, and certification of the libelants' claim by the master with the consent of the owper. The answer, inter alia, asserts that at Sheboygan the libelants and claimant agreed upon compensation for the pumps at the rate of $45 and $35 per day, respectively, less 40 per centum; alJ<Hhatthe certification of libelants' claim was upon the express agreement that II deduction of 40 per centum should be made from the charges 'for the use of the pumps, and that, prior to the filing of the libel, the proper amount under such agreepleiit had been offered to and refused by the libelants. The answer also aSSerts unnecessary delay and miscandocton the part of the libelants, and that the pumps were inefficient and in bad order and condition, and unfit for the service (Jontemplated. The also insists that the contract service alleged in the amendmenno the libel is not a proper salvage claim, and not cognizable in the admiralty as a maritime lien; and also that the libelants and claimant are 'residents of the state of Wisconsin; that the contract for the services rendered was made at Sturgeon Bay, in the state of Wisconsin, and credit is therefore presumed to have been given the owner, and not the vessel; that alien for such services can arise only when the debt is created within a state jurisdiction other than that in which the owner resides or to which · the vessel belongs. -The proofs show that the contract was absolute to pay for the service of the, pumps in any event. The fight to compensation here is consequentlyllot affected by success or failure, nor is the amount thereof measlired by the dangers incurred. This is not, therefore, a case of salvage, pure and simple; 'for that is a service rendered spont:meously by a volunteer adventurer in the recovery of property from loss or damage at sea, under responsibility of restitution, and with II lien for his reward. The Neptune, 1 Hagg. Adm. 227, 236; The Thetis, 3 Hagg. Adm. 14, 48. The volunteer salvor has, in case hisetforts are unsuccessful, no recourse against the owner. There must be not only the attempt, but an actual rescue. The principle is that, without benefit, salvage is not payable. If the property be saved and restored to the owner, he may be held in personam, because by the restoration he has received the benefit of the salvor's servi,ces. The Sabine, 101 U. S; 384. The services here were not those of a'volunteer, bpt were rendered under contract; the right to compensation was not contingent upon success; the amount of compensation was absolute, a per diem remuneration payable in any event; the service could be ended at any time at the will Of the master. Within the rule stated in The Camanche, 8 Wall. 448,477, that a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will
577
Lar a daim for salvage, the demand cannot be considered a salvage claim pure and sifuple, for which compensation is to be awarded upon the considerations by which courts of the admiralty are in such cases governed. But, because the compensation was not contingent upon success, the cbaracter of the service rendered is not changed. The Emulous, 1 Sum. 210; TheOamanche, BUpra. The service rendered was a salvage service, but compensation is measured by another rule,-not by the danger encountered, or by the value of the property salved, but by the term ofthe contract, subject to the scrutiny of the court in prevention of fraud or undue advantage. Steamship Co. v. Anderson, 13 Q. B. Div. 651,662. That is the only change wrought by the right to compensation being made absolute, and not contingent upon success. The juriSdiction of the court of admiralty is not thereby affected. It is not open to discussion that the admiralty jurisdiction comprehends all marine contracts relating to the navigation business or commerce of the sea. Insurance Co. v. Durnham, 11 Wall.!. So those rendering services in the nature of salvage services, under contract, may proceed in the admiralty in personam against their employers for compensation, although unsuccessful in saving property, if by the contract the right to compensation is not made contingent upon success. The Sabine, supra. It is nevertheless insisted that, however it may be as to proceedings in personam, no proceeding in rem will lie upon such a contract, upon the ground that, where a service, which would otherwise be a salvage service, is performed by contract, the salvor has no right to retain the property, and so cannot proceed against it. The contract here was maritime in its nature. The service rendered was a salvage service, and meritorious. But for the fact that the compensation was, not contingent upon success, there could be no question that a maritime lien existed upon the vessel for the service rendered. But for the fact that the measure of compensation is limited by the contract, it would be gauged by the liberal standard adopted in the admiralty, having regard to the risks assumed and the value of the property saved. These circumstances do not impress me as availing to deny the lien. The contract was one within the scope of the master's authority. His action was essential to the preservation of vessel and of cargo from a peril of the sea. Kemp v. Halliday, 34 Law J. Q. B. 246. Such a contract binds the vessel. Every maritime contract made by the master within the scope of his authority under the maritime law hypothecates the ship, giving the creditor a lien thereon for his security. The Undaunted, 1 Lush. 90; The Paragon; 1 Ware, 322; The Williams, Brown, Adm. 208; The Louisa Jane, 2 Low. 295. It is true the salvor under a contract has no right to retain the property, but the right of retainer is one thing, and a lien another and different thing. Possession is not essential to the validity of a lien, and for salvage service there is a lien by the maritime law. Outler v. Rae, 7 How. 729. This conclusion renders it unnecessary to consider the further contention of the claimant that the contract for the service was made within the state of the owner's domicile, and therefore that no lien arises. The v.50F.no.7-37
by of any owner, ,pr oLt:b:e :positi,o,n .a,sserted in the state:9f,t,Pe . the home:pprt of the , JJqming,:noW,ito the ofthe,fact first one for CI?'ljliii,ratlon is to be IPa,id for the use of :Pv-mps.: is that the agreed the ,$45, and $35. of .theclaimant, $35 and disc\lsS the in I am satisfied is by the proofs; that the libel .1l'pon a fOr. the service is of in the conflict, ,I find, however, that the an engineer to operate the contract did not include the pumpll.1 r', ·)X do. ,not Jind that any agree,ment was reayh,ed between the parties Leathem, acc<;>mpanied the,pl,lxpps, as was his CUlitlil;nl,'sup, as he tQsee thattheY were used right, "the master furnish,an ·. Afterwards Leathem operated th!l $10 a day for each pump, al. thougg;,a,S ma,tter of was operated by the engineer o.r ,. ,Leathem was not a, engineer. He had some knowledge.of operatingeugines in mms",bpt was manifestly not an expert:li\ttJw the consent of the master the larger pump, and should receive a fair comJ¥lnsatiQo{or that 'service. I .seenQ reason to allQw him more than the ,qlilJ:llll r/lteshoWD to be, Piloid for such service, $5 a day I and that shou)d be limited to the days he so actually operated tb,atpqmp as . So nearly as I can eatimate the time from the evideijce,. ,which is the propf, I determine the was so employed at 18 and the libelants are allowed .' .,'. $90 torJh4t service. It if;llWserted by the claimant that at :Sheboygan .while the attempts ,,,b,i,p were in, progress,lj,nd llome eight days before she was to raise place<l. in 9.ry·dock, .it agreed .between the owner and Leathem, one of ,thattlw. bill for of: the pumps should be rendered Il!tthEl,rate $35. per day, respectiYely, and that there should l>ea1lowed tbeowner a deduction of 40 percent. from such charge. Tilevalued $30,000, and was not insured; the cargo at $3,800 or $3,900, and WIlS other words, that there was a llecret.arra,ngeW-ept, and the cargo waS to ,be charged in general average withtbeprices'stated, but the; owner was in fact to pay only 60 per cent. oftl\.e amount It was: testified Qy the claimant that at the time of the alleged agreement h,ep,ad discouraged at the repeated failures tol--eepthe ship afto8Jt, and. was negotiating with others to raise bel:Lthatthisfact. coming to the knowledge of Leathem, one of the libelants" hes1,1ggesteci that there was no need to pay the demanded price of $1,000' to raise the ship; that it should not cost, over $250 more to raiSQ her; ,that it ,was, "an insurance. job," and "we have got to get these bills, up qs high as we can;" and that the cargo would pay 91 per cent. ofth.a;Q9St. In this there is corroboration by the master, except