The Thornley

¶11. Salvage — Amount of Recovery — Nature of Services.

¶2Where a vessel, grounded on a dangerous reef, where she suffered injury from pounding, even during calm weather, was released, entirely through the efforts of her salvors, only in time to escape a gale, in winch she would certainly have been destroyed, and she lmd in her cargo a large quantity of dynamite, on account of which the services rendered were believed at least to be attended with considerable risk, they cannot be considered as of a low order of salvage services, to be sufficiently compensated by payment for the actual labor expended.

¶32. Same — Review on Appeal.

¶4Wlieie an award made for salvage services is based on correct principles, and is not clearly exorbitant, it will not be interfered with on appeal, although it may be greater than the appellate court would have allowed.

¶53. Same — Validity of Contract for Compensation.

¶6A contract for salvage services, made at the instance of the master of a. grounded vessel, who was also- a part owner, after such services had com ■ menced, and when the salvors expressed a willingness to continue such services, and allow the amount of compensation to be fixed by the courts, will be upheld, where there was no fraud, misrepresentation, or oilier misconduct on the part of the salvors, and it appeared that the master was as fully advised as any one of the situation, and as competent to act for himself and the other owners, and where by the contract the salvors relinquished any lien they might have had on the cargo salved, and agreed to accept a stipulated sum, the payment of which was entirely contingent upon the saving of the vessel.

¶7*7364. Same — Construction of Contract — Vessel to be Safely Delivered in Port.

¶8A salvage contract, by the terms of which no payment for the services rendered was to be made unless the vessel was delivered “safely” in port, does not require that she shall be delivered without injury, where, at the time the contract was made, she was grounded in such a position’that she was continually receiving injury, but only that she shall be delivered in a safe place.

¶95. Same — Actions—Pleading.

¶10Where a libel to recover for salvage services set out a full history of such services, including a contract for compensation made after the services had commenced, and prayed for the sum named in the contract, to which libel no exceptions were filed, but the answer expressly put in issue the validity of the contract,' under the liberal rules of pleading in admiralty, it is competent for the court, on finding the contract to be valid, to treat the suit as one based thereon, and to decree compensation to the libelants in accordance with its terms.

¶116. Same — Reasonableness of Contract.

¶12A contract for the payment of. $20,000 for salvage services, contingent upon their success, is not so exorbitant that it will not be enforced, where the vessel, which, with her cargo, was of the value of $105,000, was grounded upon a dangerous reef, where vessels had previously gone to pieces, where there was no other assistance available, and as a result of the services both vessel and cargo were saved, with slight loss.1

¶13Appeal from the District Court of the United States for' the Southern District of Florida.

¶14On the 1st of December, 1898, the steamship Thornley, Legg, master, bound from New York to Tampico, ran on the part of the Florida coast known as “Pickles Reef.” She had a cargo of about 3,800 tons of coal; also a quantity of dynamite, being four shipments, aggregating 3,350 cases, weighing net 79,-829 kilograms, nearly 80 gross tons weight, which was stowed in the stern of the ship. The ship grounded at a quarter past 8 in the morning, running at full speed, and she went upon the reef from her bow to amidships before she stopped. It was within an hour and a half of high water. There were two large boulders under the ship, one beneath No. 2 hatch. There is a slight difference as to the soundings around the wreck. Both sides agree that she was lifted by the reef forward over three feet. The character of the bottom— boulders, with sharp coral projections with sand holes — partly accounts for variations in the soundings. After the tide had receded about one-fourth, Oapt. Baker took casts of the lead as follows:

¶15Starboard Side. Port Side.

¶16Opposite stem.17 feet. 17 feet.

¶17Abreast fore chains. .14 19

¶18Amidships . 19 19

¶19Under engines...17½

¶20Under stern . .27 20

¶21The ship’s proper draft was 20 feet 6 inches forward, and 21 feet 9 inches aft. At this time Oapt. Baker says the ship was heading S. W. by W. ½ W. Oapt. Legg claims he was heading one point more to the southward, but he admits his compass was “out” throe degrees. His log book, on the day of the stranding, has an entry of a westerly deviation of 3° 20'. The wind was moderate from N. N. E. The diagram from the Coast Survey Chart, in the record, shows that the ship went on between Pickles and Conch Reefs, and had driven so far inshore as to be well to the westward of, and within, the range extending from the light on Alligator Reef +o Conch Beacon. Capt. Legg at once reversed the engines full speed astern, and then ordered his men to jettison cargo. Oapt. Baker, one of the libelants, a licensed wrecker on the Florida coast for 23 years, residing at Key Largo, observed the steamer aground, and *737went out in his wrecking schooner, arriving a.t the Thornley between half past 9 and 10. There were already other vessels alongside, — -two or three schooners, with small boats, four in all. Oapt. Baker hailed Oapt. Legg, and proposed to save his cargo being jettisoned, and offered to get barrels to take off the coal, and was finally permitted to take measures for getting the ship afloat. He then arranged to taire out the Thornley’s starboard anchor. The schooner was brought alongside, the lines of the other boats taken, and the steamer’s starboard anchor (4,200 pounds), with 15 fathoms of chain and 90 fathoms of wire, carried out astern of the Thornley, and a line made fast to the steamer’s winches. Subsequently the steamer Miami, a vessel of 1,500 tons, plying between Miami, Key West, and Havana, also took a hawser from the Thomloy’s port quarter, and brought all her power to bear, with the result that the Miami broke the hawser, and then went away. During the afternoon the crew was engaged discharging coal. Gapt. Baker and the salvors brought barrels from shore, cut some up into tubs, and at 1 o’clock began discharging the coal, with the salvors’ men also below filling the tubs. Later in the day an attempt was again made to heave on the anchor, aided by the engines full speed astern, but without effect. The salvors continued discharging coal throughout the night, working all the hatches except No. 8, which could not be used, as the winch at that hatch was required to heave on the anchor.

¶22In the beginning no arrangement was made for compensation, as the work had been proceeding on the usual salvage basis. On the first day there were more than a hundred men from shore working on the ship. In the afternoon of that first day, Capt. Legg requested Oapt Baker to come into the cabin to have a talk. As to this interview Oapt. Baker testifies as follows: “After all my men had gone to work, about one o’clock that same day, after I had come aboard of the ship, the captain said to me, T would like for you to go down in my cabin; I want to have a talk with you.’ I went down in this cabin, and he told me that he had eighty tons ’of dynamite in his number four hatch, and he would like for me not to tell my men; that he thought they would not like to work aboard the ship, because they would be scared, and would go away, and would not work; and I told him I would not tell the men. He says then, T would like to enter into an agreement with you to say how much you will take my ship off for.’ I then told him that I did not wish to enter into an agreement on the reef; that I had entered into several agreements, and found they were not worth the paper they were written on. If lie entered into an agreement, he must state that he entered into it freely and voluntarily, and that 1 was not taking any advantage of him. lie then asked me wliat I would take it off for. I told him that 1 would not make any offer, but what would he-be willing to give. He told me, under the circumstances, with the dynamite on board, he thought it was a great risk, and said that twenty thousand dollars would be enough, and be reasonable for all interested. Then he wrote the contract, — agreement,—and then called his first and second officers down in the cabin, and they witnessed, and I did also. … Q. At what time, captain, was it that the contract was made and signed? A. It was somewhere about one o’clock p. m. Q. How long had you been working then? A. Not more than a half hour. Q. Now, previous to the making of this contract, did you have any conversation with the master in regard to the value of your services being determined by the court? A. We did, sir; and I offered to do it, and would rather have it settled by the court; and he asked me what court we had here, and I told him, ‘United States admiralty court.’ Q. What did he say as to that? A. He said he would rather enter into an agreement, and know wliat it would cost to relieve the ship; that he and his two brothers owned a large portion of the ship.”

¶23On the subject the master testifies as follows: “Q. Is it the fact that Baker offered to do this on a salvage basis, and take what the court gave him? A. I understood him to say that when he camo on board at first. Q. But you preferred to do it by contract? A. After some trouble, some two or three hours considering the matter, I concluded it was better for the interests of all concerned that I should have an agreement with him. Q. And this agreement that, was drawn up was in whose handwriting? A. My own. Q. Is this copy that, is annexed to the libel (Exhibit A), — is this the copy of it? Just look at it A. Yes; I consider that is. I haven’t the original before me, but I consider *738that is a copy. Q. Did you consult with Mr. Welling, the first officer, and Mr. Landers, the second officer, at the time of the making of this agreement? A. No. Q. I see their signatures are on as witnesses. A. Yes; X read the agreement in their presence, and asked them to sign it. Q. As near as you can tell, what time in the day was it when this agreement was made? A. X should say about four o’clock in the afternoon. Q. That is, you had already been on the reef then? A. For eight hours. Q. Had any work proceeded before the paper was signed? A. Yes. Q. You say that Captain Baker didn’t really care for a written agreement of this kind? A. I don’t know that he cared. What the man said to me was this: If I preferred to sign an agreement— It was words to the effect that he didn’t consider it worth the paper it was written on. Q. Did you have any discussion before you reached the sum of $20,000? A. No; I asked him to sign the agreement, and he said this. Q. Who suggested the §>20,000? A. He, himself. Q. Then you were not obliged to make any such agreement, and it was rather your idea to have the agreement? A. It was my own idea.”

¶24The salvage contract entered into reads as follows:

¶25“S. S. Thornley.

¶26“It is this day mutually agreed between John Legg, master of the above steamer, and Capt. Enoch Baker, master wrecker, that the said Enoch Baker agrees to float the ship off Florida reef, and deliver safely in the port of KeJ" West, for the sum of $20,000 (twenty thousand dollars). If the ship is not floated off the reef, no payment to be made.

¶27“Dec. 1, A. D. 1898.

¶28“(Sd.] John Legg, Master.

¶29“lSd.] Enoch W. Baker.

¶30“Witnesses:

¶31“S. Waldo Welling, 1st Officer.

¶32“Frank Ellsworth Landers, 2d Officer.”

¶33At 7:20 p. m. the hawser was again hove taut, and engines went full speed astern, which was continued till 10:15, when the log shows the engines were stopped, “ship not moving.” From 11 p. m. till morning the discharge of cargo was continued. At 7 a. m. Friday the steamer’s stream anchor (2,000 or 2,500 pounds) was taken out by the wreckers’ boat Winfield, with 180 fathoms of 5-inch manila rope from tne port quarter, and another ineffectual attempt was made to heave the ship off. Between 9 and 10 a. m. the tugboat Geo. W. Childs came and pulled on the steamer. The log records: “Ship swinging slightly on center. Noon. Wind east. Sea raising. Ship rolling and grinding. Found 1 <& 2 tanks leaking; also starboard 1 & 2 bilge and port No. 2. Wind freshening.”

¶34Capt. Legg testified: “Q. What was the effect during Friday on the vessel? A. She was striking heavily on the reef, — rolling heavily and grinding. The more solid the ship was on the reef, she didn’t roll so much. Q. Did it have any effect upon your vessel in the way of showing leaks? A. Yes; she began to leak when she began to knock about. Q. When was that? A. During the early hours of Friday morning. Q. Whore was that leak indicated? A. She leaked slightly in the bilge,- — in the No. 2 hold and the bilges, — and she leaked considerably in the No. 1 and 2 tanks; No. 2 particularly. Q. How much water was there? A. I think during the night something like 34 inches of water accumulated in No. 2. Q. Were there any other indications of strain on the vessel besides this leak? A. Yes; I knew the ship was straining. I could see the effect of it on the cabin. The doors wouldn’t close, and the mantelpiece in the cabin was smashed, and the marble hearth was broken. Q. The mantel was of marble? A. Yes, sir; and the hearth marble tiles. Q. They cracked? A. Yes.”

¶35Naturally, this state of .things caused great alarm and solicitude regarding the dynamite, which was stowed aft between the cabin. Capt. Baker testifies: “On Friday morning, about two o’clock, the ship commenced to pound very heavily on the reef. I had gone down in the cabin to rest myself a little while, and I told the captain to call if he wanted me, and I would come immediately, and left a foreman to superintend the work. I hadn’t been there *739moro than twenty minutes when the captain came and spoke to me. and asked me if I was not afraid to lie down there; that the ship was pounding so heavily that at any time one of those cartridges might explode, and explode the entire amount, and not only the vessel, hut all the vessels around it, and possibly everybody would be killed, and the houses of Key Largo, too; that it would ho as bad as if the entire amount should explode. Q. What was done then? A. I told him, then, to let me take the cargo. 1 says, ‘I haven’t a vessel that is large enough to take tho vvhole of the cargo, hut 1 can take the small schooners alongside, and put it on their decks, and lake it out in the Gulf, and throw it overboard. He said, ‘Have you ever handled dynamite?’ and 1 said, ‘No.’ He said, ‘If you take that dynamite on your vessels, and go out in tho Gulf into fifty fathoms of water,’ and he says tho first case that strikes the bottom is likely to make a concussion that will explode all on the deck. Ho says then, says to me, ‘Can’t you send to Key West, and get a vessel large enough to take off enough to relieve the vessel tho next tide?’ 1 told him I thought I would relieve the ship the .next tide.”

¶36Tho master of the tug Geo. W. Childs was finally induced to proceed to Key West for this additional vessel to take off tho dynamite. On this occasion Capt. Legg liad a conversation with Capt. Ocasta, a pilot not interested. Capt. Ocasta testifies as follows: ‘‘That very day, about the time I was talking to him, the tide then was about to slack, and tho ship was pounding pretty heavily aft. and every time she would strike he would jar himself, and I says, ‘What is the matter, captain?’ and he says, ■Don’t talk about what is ilie matter; 1 am scared.’ ’We are standing here now,' he says, ‘and we don’t know what minute we may go up.’ 1 said, ‘You never heard of sailors going up; they always go down.’ And he stated right there that there was eighty or elglity-four tons of dynamite in the No. 4 hatch.”

¶37Tho log notes that there was “quite a roll on,” and that they continued discharge of cargo. At 8 p. m. another attempt was made to heave the vessel off, and at 12:15, shortly after midnight, they desisted, as the vessel did not move. Saturday morning they were again engaged casting over cargo, and found that tank No. 2'had leaked so as to fill 34 inches. At S): to again the attempt was made to heave the ship off and work the engines astern. The Thomley moved slightly, and then quickly, off the reef. Though the engines were stopped as soon as tlio motion astern was felt, they were unable to pick up the starboard anchor and chain, which had to be let go to allow the ship to go hack far enough to float in deep water. Some COO tons of coal had been taken out to lighten the ship. Except the occasional use of the ship’s donkey engines, all this shoveling, hoisting, and discharging- of coal was done by the wreckers. About 40 vessels were engaged, and after the first day some 204 men were employed in the day and night gangs into which this wreckage force was divided.

¶38The Thornley then proceeded to Key West. Her log entries during the stranding wore written up, and read over to the libelant, who, at the master’s request, signed his name at, the foot of each page, in attestation of the details recorded. On Sunday morning libelant arrived with tho Thomley at Key West, where she was safely anchored, and the salvage service then concluded. A11 that day Sunday it blew a gale, so severe that even in the port of Key West the master had considerable difficulty in getting ashore from his steamer.

¶39On December 7th a libel in admbalty was filed in the district court for the Southern district of Florida by Capt. Baker and Ms associate wreckers. It: averred the facts of the stranding; the wrecking operations, with the result; and alleged that the master requested an agreement, which was set forth, a copy being appended to the libel; which concluded with tho prayer “that this honorable court wiil be pleased to decree to the libelants the sum of ¾⅛5©,000 as a reasonable and proper salvage in proportion to the value of said steamship and cargo.” The answer denied that libelants had jettisoned as much as <>00 tons of coal; that the reason tho master sent the tug Geo. W. Childs to Key West “was for the reason that tho salvors would not work at discharging the dynamite, which comprised a part of his cargo, and, further, for the reason that salvors liad no vessel of sufficient tonnage to take the same.” Regarding the contract, the answer continued: “Twelfth. For further answer to this libel, respondent says that it is true that he entered into a contract with salvors to *740relieve his vessel for the sum of twenty thousand dollars ($20,000.00), but that said contract was made hy him while upon the reef, and without his having an opportunity to communicate with his owners or agents, and that the same was made under duress, and is out of all proportion to the value of the ship and cargo, the skill displayed, and the risk and danger of salvors. Thirteenth. For further answer to said libel, this respondent says that the services of the salvors were never especially meritorious nor skillful; that the service which they performed was an ordinary one, and consisted mainly of jettisoning cargo and running an anchor, and did not require the exercise of any great skill, nor were salvors or their vessel exposed at any time to any great risk.” It was stipulated that the Thornley was worth $80,000, and her cargo $25,000, making in all $105,000.

¶40The district judge (Honorable dames W. Locke) held (1) that there was no inconsistency in pleading the contract and averring the salvage services; (2) that the contract was entered into fairly, without fraud, concealment, or pressure, and the amount was neither exorbitant nqr extortionate. A decree was rendered for libelant for the sum contracted for, less $500, the value of the anchor and chain lost by the salvors, making a net recovery of $19,500. The claimant of the Thornley has appealed, and assigned as error the action of the court in treating the suit as on contract, and in sustaining the contract, and in decreeing the sum of $19,500 for the salvors’ services.

¶41■ Wilhelmus Mynderse, for appellant.

¶42Harrington Putnam, for appellee.

¶43Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.