52 F. 495 -

SHELDRAKE

V.

THE CHATFIEI.D.

495

SHELDRAKE v. THE CHATFIELD.'

In re Petition of T:ttE MERRITTS.

(DtBtrlct Oourt, E. D. Virginia.

JUly 18, 1892.)

1.

SALVAGE-PROCEDURE-CONTRIBUTION. BETWEEN SALVORs-JURISDICTION.

Under the admiralty rules, a suit must be brought al/;ainst the thing saved, or the person at whose request and for whose benefit the service was performed. Hence a proceeding by a salvor against a fund in court already decreed to another salvor, to secure cOntribution thereof under an alleged contract, cannot be maintained in admiralty.

2.SAlIlE-SUXTS. BETWEEN SALV'ORs-QoNTRAOT.

The ship B. had rendered salvage services to the ship C., and employed petitioner's vessel to assist her in completing the work. The master of the B., in enga. ging petitioner's velilsel, acted as agent for the C., and the terms of the contract of employment were disputed.. Petitioner's veBBel rendered no assistance, the service.haVing been. by a third vessel. This court having granted salvage to the B.,for the work performed by her, petitioner commenced this proceeding, claiming a share of the SU);jl awarded the B. on the alleged contract. Held, both on th&'evideirce as to the alleged contract, and also on the fact that a proceeding must. be brought against the vessel saved or the person requesting the that the petition 8houl(j. be dismissed.

In Admiralty. Salvage. Ex parte the Merritt Wrecking Organization, ona petition claimhig half of a: salvage bounty, which had been sued for as a chose in action by the libelant. T. S. for petitioner. 'Whitehurat &; Hughes, for the Brixham., HUGHES, District Judge. The case in chief was decided by tMs court oil the 14th of March last. 1 This petition had been filed on the 25th of February preceding. Upon the facts shown by the record, this court awarded the sum of$12,500 to the Brixham for salvage services rendered to the steamship Chatfield, of which $5,500 was 'intended in remuneration for expenses and damages incurred by the Brixham, and $7,000 as meritorious salvage service. This sum of $7,000 is now in the registry of the court. The service was rendered bythe Brixham to the Chatfield on the 27th of October, 1891, in taking hold of her when well out to sea, with a broken propeller, in a heavy gale, towing her the part of the day to an anchorage 40 miles southeastwardly from Cape Henry, and lying by her all nightof the 27th, until the next mortling, when the wind had abated, but the sea was still running high. The service of the Brixham to the Chatfield .was completed on the morning of the 28th, and was ne\'er resumed. For this service the award of salvage which has been described was made by this court. On the morning of the 28th, Capt. McFee, master of the Chatfield, deputed Sheldrake'll1aster of the Brixhdm, to come into Norfolk for the purpose of enga.ging a strong tug to go out for the Chatfield, and to give aid in towing her into port. Capt. Sheldrake came to Norfolk with the Brixham, in pursuance of these instructions of Capt. McFee, and engaged the Rescue, & strong
... J4911'ed. Rep. 479.

496

FE:pERAL REPORTER,

vol. 52.

tug, owned by the Merritt Wrecking Organization, to go to the assistance of the Chatfield. Wpat ,was said between Capt. Sheldrake, agent of the Chatfield, and Thadeus Gray, agent of the Merritts, in Norfolk, in the negotiation which secureq the Rescue's services, is hereafter detailed. The petition of the Merritts, now to be considered and passed upon, claims, on the basis of that negotiation, one half of the salvage bounty which should be received by the Brixham; that is to say, as matters haye turned out, hnlfoffhe $7,000 now in the registry of this court. As,a nllitter of fact, the expedition of the Rescue in search of the Chat, An ,ho,11r or two after 9apt. Sheldrake left the Chatfield' field olf Cape Henry, on the morning of the 28th of October, another coming in sight. was signaled by the Chatfield, took her in her into Hampton Roads, where thei arrived before the,Reseueand Brixhll.ID had set out from Norfolk, ·011 the night of the of t1;le ChatfieldjRnd the Rescue, ip, point of fact, rendered. no beneficial service to the. Chatfield whatever, ,either in the nature:',:,QIsid;vage or ,As already sUi.,fed, this petitionis.'bronghtto subject half of the"salvage bounty,'Whioh, since its filing, has been awarded to the Brixhain,'to the payment of the Merritts for the )p\eIldeq serviqe of the R,escueto the Chatfield, as described; uJJ,der an between Gray, agent of tlie Rescue, and Sheldrake,llgerit i:>f the Chatfield, on the night of the 28th, whatever that agreement was. On that the testimony is substantially as follows: Capt. Sheldrake,came to Norfolk on the Brixham, as instructed by the master of the Chatfield. He arrived in port on the of the 28t1;l, aQd at 011ce sOl,lght the office of William Lamb, merchlilIit, who, had on a previous occasion as agent oLthe .. ,.O()l. Lamb'bemg absent, Capt. Sheldrake requested his clerk or cilsbler to advise ,him in procuring a tug of the kind search of. ',' This clerk's name is Hugo Arnal. Through Gray, agent of the Merritts, was sent for, with whom, it was agreeq that the tug Rescue should forthafter some set with the Brixham, to the assistance of the Chatfield. The ste,amers did accordingly, set out at once. and reached the point at which the Brixham had left the Chatfield early on the morning of 29th. As a matter of course, they failed to find herj the Chatfield; as. stated, having been brought into Hampton Roads on 28tb, by another vessel. The two steamers., therefore, had nothing else to day's useless search, but to return to Norfolk without the C,hatfield. , As to the agreerplmt that was made between Sheldrake ,and Gray, the following, some"j'hat abridged, is what the latter says 011 the s.ubject: messagll C3 1ll11 to me from Col. Lamb's office that OaptaLn Sheldrake of the BriXham. warited to em ploy, a tug to go to the assistance of a steamer outside, forty miles off the' 'Capes Oli going to Col. Lamb's office, Captain Shlildtakestated1 ,that; tbroughauthorlty of the captain of the steamer outside, he camein:to gets tug to aid him in tOWing her in, and be asked me what I would go for. I couldn't give him any reply to that, and I asked him then what he. would give. He made an offer of half of what, he would get for

SHELDRAKE tI. THE CHATFIELD.

497

towing her in from the position where she was. · Well,' I says to bim, ·Captain Sheldrake, a vessel lying out there anchored, though you may think she will stay there until you get back, it is very unlikely she will do so; for some coasti ng vessel will come along and pick ber up;' and I didn't make him any answer for some time, and discussed the situation with him, and was about to take my leave, and he tben spoke up, and, said be, -Well, I'll tbrow in the twelve hours' towing that I have done.' Tben I said, · In consideration of that, I will do it.' 'rhen I started out of the door. We met Captain Nelson io the hall. and I remarked to Captain Sheldrake that he was to go in full halves in all that he got, and called Captain Nelson's attention to it, and Captain Sheldrake says, - Yes; in full halves of all we get.'" In regard to this interview, Capt. Sheldrake says: "We tbere and then made the agreement that they would send a tug with me to the assistance of theGhatfield; that they should receive half of what we might earn. It was distInctly stated that what I had already w:as mine. I also informed them that I was sent there, and was acting s01ely and entirely as the agent for the captain of the Chatfield. and entirely under his instructions. Under these circumstances. they accompanied me, and we went in search of the Chatfield, but didn't find her." Capt. Nelson, who went out on the Rescue, says, in regard the occurrence il?- the hall of Col. Lamb's office in his presence. that" it was stated by Gray that the .Merritts were to have full half of what ShelSheldrake replie<i 'full half;'" but Capt. Nelson drake was to get, does no.t /3ay, and did not seem to know, what it was that was .to be halved; whether it was what was to be earned by their joint services. or what had already been earned by the .Bfixham alone, added to what should be earned jointly. . Two witnesses, who should have been indifferent between the parties to the controversy, testify in the case. Baker, in his testimony, relates what he heard in one room of a conversation between Sheldrake and Gray in another. He is so inaccurate in what he says of matters in that conversation known to the court as to render what he testifies as to the compensation which the Rescue was to receive unreliable in point of accuracy. The relation of Hugo Arnal to the case, and the partisanship manifested by him in behalf of the petitiuners, and in prejudice of the party who had gone to him as an adviser and friend, divest his testimony of any special weight with the court. The issue stands as between Gray's understanding and Sheldrake's; as between Gray's claim that his employers were to receive half of what the Brixham should receive for its whole service to the Chatfield, and Sheldrake's/tverment that it was to be half of what they should jointly earn in the $erV'ice which they were about to undertake. It is an issue upon thecreQ.ibiliiy of Gray and Sheldrake. The extraordinary reason given byGr,ay for insisting uppn the extraordinary bargain which he claims to have made with Sheldrake makes it incredible that .Sheldrake could really have intended to enter into such a bargain. Gray says that, because it was feared the Chatfield would be brought in by some coasting vessel, it was for that reason that Sheldrake threw in half of the v.52F.no.5-32 .

498
Rescue J?e, ,tit; 111lj' that to tlie, :Bescue was npt :Nmler. 8.Ay service to the at all" thel:efore Sheldrake flgreed,lto:pay more than the most,beneficial salvage service would .r : ,. chief, SheldrakeV'. Thl·(jhO,tfield, 52 Fed. Rep. 479, court"hrwi).at he by the evCapt. 40ne the and by bis, own testimony under severe cross-examiQli1tion, as a skillful mariner, a,truthful witness, and a sensible, practical man of business. The court knows nothing of Gray, except by his testimony now under review, in connection with a contraot oo:elaims to havEl secured, extraordinary in its terms, paradoxical ·tothe reason on whichitis daimed tol}ave been based, 1I.nd in its; (lharacter. : issue offllcthetween these two such a I aW,not disposed to" credit Gray and to Sllel:drake. .A.s. i t to make it is plain to me that the minds of .these two uontracting parties '.did not meet in common agreement, and that there was really no bal:gain made that WIlS mutuallya.sented to;" , ,." " , · :, Another' Jverysingular feature in this claim 'is that it is, asserted service'was fofthe benefit of against field. on of the 28th of Octobet'Wa,s ,rpadebyGray, the agent of the wIth Sheldrake; 'of the Chatfield;'for ,'!tssistancb' to .' be render,ad' to the Chatfield the Of salvage; ;, The contraet 'of the was made with, the in the Chatfield,at the request9f the Chatfield, for of the Chat'field, and'impliedly at the charge of the Chatfield. It constituted V, lien in rem bffavor of, the Rescue against the entitled the ownerkof the Rescue' to COlne into this court to assert that fieri against the 'Chatfield;! either by original libel or by petition under the The proof is this was a valId marrtltnll claIm agaInst the CM'tfieIl1. Gray's testImony, already quoted, is to the 'effect that' Sh61drake was acting as agent of the Qh,ittfleld',"charged with the mission to procure assistance for steamsbip;'ahd that Gray negotiated with him iil that charactei', Hugo Arn111 says that Gray thoroughly'understood tha.t it was 'aLthe itlstance of the captain of the Chatfield,and by his express order, that to Norfolk 'to get further assistance for the Chatfield." The"petition of the Merritts; ,now under,co1l'sideration, alleges that the Chatfield Shelll'rake to "depart for Norfolk, and' employ a, tug, to his relief, ,'and had repeated hiE!! that, in performance of this request; the Brixham had left the Chlttfteld, steallledto Norfolk; 1'and immediately employed petitioners to'g<i. to of the Chatfield.» It wa.s not only known to- G1'l11 alld Arnlll, but to all 'bystanders, thatthe chill'acter in which was thl!-t of the Chatfield's agent, It foIlowEi that whatever' oompensation was stipulated to' ,be paId for the service which the Rescue was to render was a compensation payable by the

:Was

!,

". '

s$LnRAKEl,t1.THE' CH,A.TF;UlIJD.

Chatfield. Upon the facts thU& prellentedpythe J:ecord, a vl:Lriety of questions arille for considemtioll" .". . This proceeding. is anomloUous ;in, seeking to enforceagain8t one, veS!lel 8 claim for service rendered to vessel. It is not shown how the Brixham could be, or was expected to be, benefiteli by the service which was to be rendered to the Chatfield,. That is left wholly to inference. The consideration for which the Brixham was to pay for such a service is not shown in the evidence.. On the pleadings and proofs, if there is any agreement shown to have been entered into by the Brixhamto pay for services to the Chatfield, it is nudum pactum. Nor is there any evidence that the credit in the transaction was given by the agent qf the petitioners to the Brixhalll. Thatahip was hardly mentioned at all in the conference between Gray and Sheldrake. If credit was given to other thl:Ln the Chatfield, it was to the salvage money w,hich the Brixham was believed to have earned on the day and night of the 27th of October, which Was yet but a chose in ,action. If given 'on the faith of thi8 chose in !,ction,fofwhich the Brixham afterwards filed a libel in.the suit in chief, it was not given to the ship herself, and, as against the Brixham, is not a maritime. claim, enfQrceable in this court. If Sheldrake had acted, in his negotiation with, Gray, as master of the Brixham, and not as agent of the Chatfield, it might have been competent for him to have made a contract for such a service as that under consideration on the faith oLhis own ship; in which case an express stipulation to that effect would have been necessary. But in his negotiation with Gray his chara,eter as agent of the Chatfield was constantly asserted and unqualifiedly recognized. Under these circumstances, is it competent for this court to imply an obligation upon the Brixham, and to ignore altogether, as the petitioners have done, the obligation of the Chatfield to remunerate the Rescue for whatever is equitably due for the trip in search of her, for which the Rescue was employed by Sheldrake? But the most important question ,in this caseis whether a proceeding like this is within the cognizance of the admiralty court. To be so it must fall within the purviE!w either of rule 19 or 43 of the rules in admiralty. The first provides that "in all suits for salvage the suit may be in rem against the property saved, or the proceeds thereof; or in per80nam against the party at whose request and for whose benefit the sal-' vage service. has been performed." In the case of the Rescue no salvage service was rendered, and therefore no claim for salvage can be entertained. But if it could be, this is not a proceeding in fern against the Chatfield, or the proceeds of the Chatfield, nor is it a proceeding in personam against Sheldrake or, McFee, at whose request the service was rendered. The proceeding of these petitioners, therefore, is not within 43 provides that" any person having an the purview of rule 19. sha.ll have a right t intere8t in allY. proceeds in the registry of the by petition and summary proceedillg, to pro. i'Y),tereBfje. 8UO for a delivery thereof to him." This rule was plainly intended to allow persons, like mortgagees, part owners, or other persons having an interest in a vessel libeled in admiralty, to come into the main suit, and get the

500
remDl':nt8 of the proceeds left'after satisfying tHe libelant. Under this -rule, it is not competent for one having a mere personal claim against the owner 6fthe vessel libeled to come in and liquidate such claim. In order that a third person may come in by petition, he must have an interest of some sort in the ship libeled, or in the proceeds arising from her sale in the .registry of the court. Claims of any third person, not against the ship, but only against her-owner, must be the subject of an independent suit at common law:, with the privilege of jury trial, if it be not within the cOKnizance of admiralty, or of an independent proceeding in personam in admiralty, if it be a claim over which admiralty has cognizance. The petition under consideration is not brought against the ship that waS libeled in theohief suit, nor against its owners, nor against any proceeds of the Chatfield in the registry' of the court. It is not brought on the lDltritime contract which petitioners had with the Chatfield. It is brought against a .fund in court that has been decreed in favor of :the Brixham,'the libelant in chief, upon an allegation that the Brixham-olVes:the petitioners money which she' had contracted to pay thetth It was never contemplated by the ftamers of rule 43 'to allow any person no interest in a ship libeled in' an admiralty court to file a petition claiming an interest in what the court may decree in favor of the libelant, and i to have his claim litigated by the summary method of admiralty between himself and the libelant. If this petititm of the Merritts could be entertained, then,if John Doe should have a claim against them, and should file a petition to be paid what the court should decree to the Merritts, it would be competent for the court to entertain that petition also; and then, if Richard Roe should hav.e a claim against John Doe, aforesaid, he could file his petition, claiming to be paid' out of what tbe court should decree to Doe; and so on ad infinitum; and one admiralty suit would be made the mother of a brood of petitions, without numbe'r and without limit, in endless catenation. If the first petition couId be entertained, then, on the same principle, all would have to he entertained. The absurdity of such a principle is apparent. Under rule 48, none can file petitions except such as have an interest lin the vessel libeled, or in such surplus proceeds of the sale of her hi the registry of the court as shall remain after satisfying the originaliibelant. If thltt libelant himself owes debts, it is not competent; for the admiralty 'court to adjudicate upon them between him and his creditors. Such claims must be litigated in originalahd' independertt stiits,either at common Taw or in admiralty, according as the claims are civil or maritime. On aU the grounds suggested, this petition must be dismissed, with costs, but chiefly on the ground that the petitioners cannot 'litigate in this prod'eediJng in any claim they may have against any other debtbr than the' ship 'Chatfield. I will so decree.
, . ' ·. :... 1",

THE MICHIGAN.

501

THE MICHIGAN. PRINGLE

et al. v.

THE MICHIGAN.

(Circuit Court, E. D. Michigan. December 8,1891.)

1.

COLLISION-BuRDEN OF PROOF-VESSEL AT PIER-ST. MARY's CANAL.

It is not negligence or an obstruction to navigation for a vessel which has passed through the St. Mary's canal, and is necessarily detained at its western entrance awaiting to tie up to the north pier, where the canal is 300 feet wide, at a place designated by the cana.1 superintendent, in pursuance of the authority given him by rules 8 and 12 of the re/il'ulations prescribed by the secretary of war for the government of the canal; and If, while thus moored, she is struck by an incoming vessel, the presumption is that the latter is in fault, and the burden is on her to show that she is free therefrom, or that the collision was the result of inevitable accident.

I.

SAME.

It appearing that incoming vessels usually moor to the south pier, and that in order to do so safely, and avoid a prevailing tendency to sheer towards the north pier, they oustomarily come in slowly, and send out their lines for the south pier when abreast of the lighthouse at its western end, a vessel which moves in at the rate of 4 or 5 miles an hour, and does not send out its yalVl until it has passed 750 or 800 feet beyond the lighthonse, is negligent; and if she sheers·so as to prevent the line from reaching the pier, and ie thus carried against a vessel properly moored at the north pier, she must be held liable for the collision. ..

In Admiralty. Libel by Thomas Pringle and others, owners of· the schooner Delaware, against the schooner Michigan, for collision. The district court found that the collision was the result of inevitable ac.cident, and dismissed the libel. Libelants appeal. Reversed. H. a. Wisner, for libelants. R. T. Gray and Jt', H. Canfield, for respondents. JACKSON, Circuit Judge. In this case libelants and appellants seek to recover the damages sustained by the schooner Delaware from a collision with the schooner Michigan, w.hich occurred about 2:40 or 3 P, M. on April 30,1890, at the westerly entrance of the St. Mary's Falls canal. It is alleged in the libel, and established by the proof, that the schooner Delaware, havin!! no cargo aboard, was bound on a voyage from Buffalo, N. Y" to Ashland, in the state of Wisconsin; that on the 29th April, 1890, she was locked through the St. Mary's Falls ship ·canal at Sault Ste. Marie, Mich. That, upon getting through the canal, she was weather bound, and unable to proceed on her voyage without the aid of a tug or steamer to tow her; that the only assistance she could obtain was from the steamer Ohio, which also came through the canal about the same time, having in tow the schooner Sheldon, on which her cargo had to be lightered in order to get through; that being unable to proceed alone, and having to await the departure of the steamer Ohio, wbich was detained the greater part of Apfil30, 1890, transferring her cargo from the schooner Sheldon, the Delaware lay moored to the north pier of the west end of the canal, nearly abreast of the Dummy ,or Skeleton light, and just astern of the steamer Ohio, which had her tow (the Sheldon) outside and alongside of her; that the Delaware tied