1. A corporation is not disqualified, by the simple fact of its
being a corporation, from maintaining a suit for salvage. Hence,
where a service, in its nature otherwise one of salvage, was
performed by a stock company, chartered to hire or own vessels
manned and equipped to be employed in saving vessels and their
cargoes wrecked, and to receive compensation in like manner as
private persons, and where the persons actually performing the
service had no share in the profits of the company, but were hired
and paid under permanent and liberal arrangements and rates of pay
-- the net profits being divided among stockholders -- such service
was held to be a salvage service, and the corporation to be
entitled to pay as salvors accordingly.
2. A suit for salvage cannot be abated on the objection of
claimants that others as well as the libellants are entitled to
share in the compensation.
Page 75 U. S. 449
The remedy of such others is to become parties to the suit, or
to make a claim against the proceeds, if any, in the registry of
the court.
3. The defense that the services for which salvage is claimed
were rendered under an agreement for a fixed sum payable in any
event is waived unless set up in the answer, with an averment of
payment or tender.
4. Nothing short of a contract to pay a fixed sum at all events,
whether successful or unsuccessful, will bar a meritorious claim
for salvage.
5. A salvage service is nonetheless so, because it is rendered
under a contract which regulates the mode of ascertaining the
compensation to be paid, but makes the payment of any compensation
contingent upon substantial success.
6. Decrees in salvage will not be disturbed as to their amount
unless for a clear mistake or gross overallowance of the court
below.
The case was this:
In November, 1863, in the midst of a violent southeast gale, the
ship
Aquila, then but a few days in port, sunk at her
moorings in deep water, alongside her wharf, in San Francisco. She
had just hauled in there to discharge her cargo, consisting of the
materials and armament -- shot, shells, guns, ordnance, stores
&c. -- of the monitor
Camanche, which was to be
constructed under contract with the government by Donahue &
Ryan, who owned both the
Aquila and the whole cargo
sunk.
The materials, armament &c., were valued at $400,000. Of
this, $340,000 were insured by various companies, each having a
certain part of the risk. This left $60,000 at the risk of Donahue
& Ryan, the owners.
The
Aquila had been anxiously expected at San Francisco
with her cargo. Her foundering in an exposed and difficult part of
the bay, made the loss of the monitor highly probable. The public
mind, excited by the civil war then raging, and by fears of attacks
by hostile cruisers on a harbor and city inadequately defended, was
shocked by the shipwreck of the only sure means of protection
provided by the government for both, and this feeling extended
itself throughout the country.
Measures were promptly taken to save, if possible, the vessel
and cargo. Donahue & Ryan, who owned her and
Page 75 U. S. 450
the cargo, and had contracted to build the monitor, then in San
Francisco, of which they were residents, made within a day or two
after the
Aquila sunk, an abandonment of ship and cargo to
the agent of the underwriters at San Francisco.
The agent did not accept, but took vigorous measures to save the
property. The government superintendent for the building of the
monitor was early on the ground and was active.
The best mechanics of the city were contriving measures. A
dry-dock was thought of, and plans were drafted. The first attempt
actually made was by pumping out the ship. This was after full
consultation. It proved unsuccessful. The next attempt was to lift
the ship by chains under her bottom. Different modes of getting
these under were tried by divers -- by blowing a hole underneath
&c.; all in vain. This attempt, like the other, was
abandoned.
These efforts were continued several weeks, at a cost to the
underwriters of $38,000 in gold, but were finally given up. Ryan,
one of the contractors, bore a leading part in these operations,
had charge of the pumping process, and received $1,000 for his
services.
In this juncture, the efforts at San Francisco having proved
abortive, a company called the Coast Wrecking Company, agreed at
New York, with the underwriters, to undertake the recovery of the
materials of the monitor.
The peculiar character of this company, and their agreement in
the case -- matters, both of them, much discussed in the argument
-- must here be stated.
The company was an
incorporated stock company,
incorporated by the Legislature of the State of New York, and
invested by their charter with authority to hire or own vessels
manned and equipped, to be employed in towing, aiding, protecting,
and saving vessels and their cargoes wrecked or in distress,
whenever such wrecks or distress occur, and to receive compensation
or salvage for such services in like manner as
private
persons, and entitled to like liens and remedies.
Page 75 U. S. 451
The location of the company was in the City of New York, and its
chief business was with the cruising grounds of the large Eastern
ports. Its business of wrecking or salvage was conducted
exclusively by vessels, equipments, and materials supplied and paid
for out of the corporate funds, and the officers and men executing
the work done, did not participate in the losses or gains springing
out of the services rendered on the occasion of their employment,
but, of whatever rank and position, were paid by the corporation,
and out of its funds, as in cases of pure contracts of hiring.
The company was in the habit of paying to its agents and
servants who were engaged in services of difficulty or danger a
rate of wages or salary proportionately high, and in case of injury
to any of them while so engaged, its practice was to take care of
them till they recovered, and in case of their death to take care
of their families, and to place them or their families, as the case
might be, in a position to earn a livelihood. It also paid the
medical bills of men hurt in its employment.
The rate of wages paid was high in proportion, and above pay for
mere work and labor. Merritt's (the captain) salary was $4,500 a
year, with primage (for the service in this case, about $1,500 to
$2,000), besides all expenses paid. His assistant had $1,200 a
year, and $500 primage. He and the others who went out with the
expedition had all their expenses paid from the time they left New
York until they returned. The principal divers averaged $13 a day,
for the same time out and back, their day's work being four hours,
besides expenses paid. The divers regularly employed by the company
were on half pay while not engaged in service.
The agreement which the company made was between itself and
different insurance companies who had taken risks on the cargo to
raise it for $110,000, to be paid by the companies, each in
proportion to its interest in the $400,000 valuation, insured, the
Wrecking Company agreeing to complete the work in ten months, with
a proviso, however, that if not completed in that time, the company
should forfeit
Page 75 U. S. 452
ten percent, and also that if there was no substantial recovery,
the Wrecking Company should receive nothing. The proviso as to time
was made because a cargo of the nature that this was would, as to
part of it, be injured by remaining long in water.
The agreement being made, the Wrecking Company promptly
dispatched to San Francisco a party of men, divers and wreckers,
specially selected from New York, Boston, and Providence, and fully
provided with suitable apparatus and machinery, the whole under the
command of Captain Merritt, the company's general superintendent, a
man of twenty years' experience and of admitted skill in his
calling.
The expedition left New York, December 24, 1863, and arrived in
San Francisco, January 17, 1864. Captain Merritt on the 23d of
January received possession of the wreck, and on the 25th of
January, after examination and study as to the best plan, began
operations.
The winter had just begun, and there was reason to expect cold
and stormy weather. The ship, as she lay, was exposed to the
southeast gales of the season, one of which had sunk her, with the
rake of the bay for thirty miles, and to its currents. She lay ten
feet from the wharf, with a list to starboard (off-shore) of
forty-five degrees, pitched by the head at thirty to thirty-two
degrees. Her forward part, for one-third of her length, projected
beyond the end of the wharf, with the bow exposed to the force of
the tides and currents. Her bow was sunk in forty-eight to fifty
feet of water, her stern in about nineteen feet. At low water,
about one-sixteenth of her deck was out of water; at high water,
she was submerged except a space on one side, close astern. In
effect, she was at the bottom of the bay and at such angles of
inclination fore and aft and from side to side as to make it,
independent of the depth of water and the darkness, somewhat
difficult to stand on her decks and even more difficult to work at
getting out her cargo. Besides, she rested on a rocky bottom
shelving off shore, making her liable, if her fasts should part at
any time, to slip off into deeper water.
Page 75 U. S. 453
Besides the difficulties of the ship's position, the cargo was
perplexing in its character and in its stowage.
The materials of the monitor comprised a great number of iron
pieces, from twenty-six tons to one hundred pounds in weight. The
frame was of angle-iron, long, crooked pieces, very difficult to
handle. Floor timbers, also of iron, were of irregular shape, and
some very heavy and long. There were two main engines for
propelling the monitor, and eight smaller engines. The guns weighed
twenty-two tons each, and there was a number of shot and shell. The
guns, as well as the other heavy pieces, as
ex. gr., the
pilot house, twenty-six tons, were liable, in the progress of
loosening and getting out the cargo, to break away and do great
damage. There were also a multitude of construction tools,
machinery for a machine shop, and small pieces, bolts, rivets
&c., by thousands. The weight of the whole was fourteen hundred
tons.
By reason of the very unusual nature, construction, value, and
weight of the cargo, and to keep it from shifting, extraordinary
means and care had been used in the stowage of it. It was "stowed
down solid," "firmly fixed in the hold," shored by staunchions or
joists, one end resting under the deck beams, and the other resting
on the cargo or the flooring over the cargo, in such angles and
positions as required, and some of them tied with braces; the whole
thoroughly wedged in. The stowage was such as in the opinion of Mr.
Ryan, one of the claimants, to make it impossible to remove the
cargo with divers.
After full examination, the plan adopted by Merritt and his
company was to get out the cargo by divers as far as necessary, and
then to raise the ship, lay her on the flats, and hoist out the
remaining cargo. It was considered impracticable to raise the ship
with the cargo in her.
The first part of the work, getting out the cargo by divers, was
commenced January 28th, 1864, and by unremitting labor from early
in the morning until late at night, except two and a half days
stormy and Sundays, it was completed about April 20th, 1864;
somewhat less than three months.
Page 75 U. S. 454
The risk of life and limb during this part of the labor was
testified to be "great and constant."
"The divers were obliged to work in entire darkness, and the
inclination of the deck both ways, and the mud which rendered it
slippery, made it impossible for them to walk, and compelled them
to crawl by a line on the weather or upper side of the ship. Yet
they had to follow up every piece to the hatchway. To find and hook
on the pieces to be hoisted out, they had to grope their way in the
dark, and feel with their hands all over each piece. This part of
the operations was peculiarly dangerous. With the utmost care in
breaking away the timbers which formed the stowage of the cargo, it
was almost impossible to prevent the heavy pieces on the upper side
of the ship from fetching away. One of the large guns, weighing
twenty-two tons, fetched away in this manner. One of the long,
crooked iron ribs, coming away, cut off a finger of an experienced
diver, who had just hooked it on. He dived no more. Many of the
pieces had sharp edges, so that if one of them had struck a diver
in a vital part, it must have killed him."
In getting out the cargo, the ship was necessarily a good deal
injured. Holes had to be cut in her. But her value bore no
comparison at all to that of the cargo. [
Footnote 1]
After the cargo was got out, the raising of the ship was
undertaken. The attempt was first made to get chains under her.
This failed, as she rested forward so heavily on the rock that the
divers, after working two days with picks &c., could not get
the chains under her. Another plan was tried, and succeeded, that
of lifting her with chains fastened to the deck-beams and other
parts of the ship, and hove through pontoons, with levers worked by
powerful hydraulic machines, until the bow was raised from the
bottom, so that chains could be introduced under her whole length.
The
Page 75 U. S. 455
chains were worked in the same way through the pontoons. About
the 20th of May, after a month's incessant work, day and night,
Sundays included, the ship was raised and floated upon the
flats.
Steps were then taken for pumping her out. By means of a large
hole made in the mud under her, the divers stopped the leaks; the
ship was pumped out by steam, the mud removed, and the remaining
cargo hoisted out. Captain Merritt, with some of his men, returned
to New York about the middle of June, 1864, and the last of the
materials were landed July 3. The duration of the salvage service,
from the time of leaving New York until its completion, was about
six months and a half, or until the return to New York, over seven
months. The outlay made by the company in its work of recovering
the cargo, was nearly $70,000, all of which but $5,300 was consumed
in the enterprise.
The
Aquila, or vessel on which the cargo had been
shipped, was raised by the Wrecking Company, though the main matter
to which attention was directed was the cargo, which from the
character of a part of it (fine machinery and polished metal), it
was indispensable to get from under the water at once, and this
necessity for expedition interfering somewhat, perhaps, with the
recovery of the vessel itself in the best condition, and along with
the cargo.
All the insurance companies (except one which had a risk for
$15,000 and had failed) paid the money which by the terms of their
contract they were bound to pay, but there remained over and above
their interest in the cargo, the $60,000 uninsured. For
rescuing this the Wrecking Company claimed salvage of the owners,
Donahue & Co. These refused to pay. Thereupon the company filed
a libel in the District Court for Northern California to have
salvage for this $60,000 saved, and for the $15,000 insured on the
cargo by the broken company, and a monition issued in due form, to
everyone having anything to say, to come in. Donahue & Ryan
answered, admitting in effect the recovery of the cargo, but
denying the vast and unheard of peril, difficulty, and labor
alleged, and setting up that the Wrecking Company
Page 75 U. S. 456
had paid very little regard to what damage they did to the
Aquila and had seriously and lastingly injured her,
without setting up, however, either as a fact or fear, that the
individual men who performed the actual labor would make a claim
for salvage. No tender of money for anybody was made.
The district court, regarding the service as a salvage service,
awarded on the two items $24,062, and the circuit court affirmed
the decree, with interest at seven percent from the beginning of
the suit. And from this decree the appeal came.
Page 75 U. S. 466
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Compensation, as salvage, is claimed by the libellants for
services rendered by them in saving the cargo of the ship
Aquila, which was wrecked in a storm, and sunk in the
harbor of the port of San Francisco, to which she was bound, with
all her cargo on board.
Such portion of the cargo as constitutes the basis of the
investigation in this case consisted of certain materials
manufactured for the construction of an iron-clad monitor, and the
armament for the same, which was to be constructed at San Francisco
by the claimants under a contract with the government. They
manufactured the materials and armament in New York, and the ship,
with the same on board, sailed from that port on the twenty-ninth
of May, 1863, and arrived and came to anchor in perfect safety, on
the tenth of November following, off North Point dock, in the
harbor of her port of destination, where she remained until the
fourteenth of the same month.
Aided by a steam tug, she attempted on that day, to proceed to
the wharf where she was to unload, but was obliged, by the state of
the wind and tide, to come to anchor before she accomplished that
object, and at midnight she encountered a heavy squall, which
caused her to drag her anchors, and forced her into a more
unfavorable position. Preparations were made on the following
morning to get up to the wharf, and the wind having abated, the
ship weighed anchor, and being again assisted by the steam tug,
proceeded to the southern side of the wharf, where she was directed
to discharge her cargo, and was there moored with her stem to the
eastward and her stern towards the shore.
When she was moored, the weather was good, but at ten o'clock in
the evening the wind increased, and soon rose to a gale from the
southeast which caused the ship to strike with such violence that
she made a breach in her aft-port quarter to such an extent that in
spite of any use which could be made of the pumps she filled with
water, and at three o'clock on the following morning sunk in the
dock, her stem lying in forty or fifty feet of water and her
stern
Page 75 U. S. 467
in twenty feet, and she lay with a list to the starboard at an
angle of thirty-five or forty degrees.
Both the ship and the cargo belonged to the claimants, and they
immediately abandoned the whole adventure to the underwriters, and
the agent of the underwriters, though he declined to accept the
offer of abandonment, commenced without delay to employ the best
means in his power to raise the vessel and save the cargo, calling
into requisition for that purpose all the nautical experience and
mechanical skill at his command, but his efforts were fruitless,
except that he succeeded in dismantling the ship and in saving a
small portion of the cargo.
Apprised of the failure of the measures adopted by their agent
to raise the ship and save the cargo, the underwriters at that
juncture employed the libellants to undertake what their agent,
with all the assistance he could command in the port of the
disaster, was unable to accomplish.
Pursuant to their engagement, the libellants instructed their
general agent to proceed to that port and take possession of the
wreck, and they also dispatched with him a party of men, selected
for the occasion and having experience as divers and wreckers, and
provided them with the most approved machinery and apparatus to
promote the success of the enterprise.
Chosen and qualified as described, the party, under the
superintendence of the general agent of the corporation, sailed
from the port of New York on the twenty-fourth of December, 1863,
and took possession of the wreck, in the port of the disaster on
the twenty-third of January following. Although the undertaking was
beset with difficulties and dangers on all sides, they made no
objection on that account, but proceeded at once to the examination
of the wreck, and the plan which they adopted and executed was to
get out the cargo by divers, as far as was necessary to prevent it
from being injured, and to lighten the ship, so that she could be
raised and secured, and then to hoist but the remainder of the
cargo by the apparatus and machinery prepared for the purpose.
Page 75 U. S. 468
They completed the work of securing the cargo so far as it was
necessary to lighten the ship in less than three months, and when
that was accomplished they were able to raise the ship, stopped the
leaks, removed the mud (estimated at six hundred tons), pumped out
the ship by means of steam pumps, and finally hoisted out the
residue of the cargo and restored it to the owners in an undamaged
condition, and the proofs show that the whole was accomplished with
success in less than seven months from the time they were employed
by the insurance companies.
Payment of their claim being refused, they filed their libel
against that portion of the cargo which consisted of the materials
for the construction of the iron-clad monitor and the armament for
the same, as set forth in the record, and the district court
entered a decree in their favor for the sum of $28,428.44 as
compensation for the salvage services rendered by them in raising
the ship and saving the cargo. Appeal was taken by the claimants to
the circuit court, where the decree of the district court was
affirmed, whereupon the claimants appealed to this Court.
Argument to show that the libellants were entitled to
compensation for the services which they rendered is hardly
necessary, as the proposition is several times impliedly admitted
by the claimants in their answer. They were the owners of the ship
as well as of the cargo, and they admit that she sunk near the
wharf where she was to unload, at the time and by the means and
substantially in the manner alleged in the libel, and they also
admit that the efforts made by the agent of the underwriters to
raise the ship and save the cargo were wholly unsuccessful except
as to a small portion of the cargo taken out while the men employed
were engaged in dismantling the ship.
Implied admissions to the effect that important services were
rendered by the libellants are contained in every article of the
answer, but it is unnecessary to refer to those passages with more
particularity, as the claimants expressly admit in the fourth
article of the answer that the libellants secured
Page 75 U. S. 469
and saved all the cargo which was on board the ship when their
general agent took possession of the wreck, and they also admit
that the libellants raised the ship, but they deny that any of the
services rendered were attended with much difficulty or danger, and
they allege that the employees of the libellants, in accomplishing
the work, unnecessarily damaged the ship, her tackle, apparel, and
furniture, and insist that the salvage compensation to be allowed
in the case ought to be greatly diminished on that account.
Apart from these disparaging allegations, the claimants do not
set up in the answer any defense to the merits of the claim made by
the libellants except that they allege that the insurance companies
have paid the libellants for all the services which they rendered
as to thirteen-sixteenths of that part of the cargo described in
the first article of the libel.
Most of the discussion at the bar has been addressed to topics
other than those here enumerated, and much of it to questions not
directly presented in the pleadings. Questions not raised by the
pleadings, strictly speaking, are not before the Court, but
inasmuch as no objection on that ground was made by the libellants
to any of the propositions submitted by the claimants, they will
all be considered in the order adopted at the argument. Briefly
stated, they are as follows:
1. That the corporation libellants cannot maintain a salvage
suit because they are incapable as a corporation of rendering any
personal services, and they insist that no party can be regarded as
a salvor unless personally engaged in the service of saving the
salved property.
2. That even if the corporation libellants may be regarded as
salvors, still they were not the sole salvors in this case, and
consequently that the decree rendered in the circuit court would
not be a bar to a subsequent suit for the same services if
instituted by their employees.
3. That the services rendered by the libellants were not salvage
services, because they were rendered under and in pursuance of a
contract with the underwriters.
4. That the amount allowed in the court below was excessive,
Page 75 U. S. 470
and that the decree in that respect violates the established
principles of admiralty law regulating compensation for
salvage.
I. Objection cannot be taken to the first proposition submitted
by the claimants that the question is not presented in the
pleadings, as it necessarily arises upon the face of the record,
and therefore, if it is sustained, the decree must be reversed, as
the compensation allowed is for salvage service, and not merely
compensation
pro opere et labore, as it should have been
if the theory of the claimants is correct.
Decided cases are referred to in which it is said "that a party
not actually occupied in effecting a salvage service is not
entitled to a share in a salvage remuneration," but the learned
judge who is represented as having expressed that opinion admitted
in the same case that the owners of vessels, who rarely navigate
their own ships, constituted an exception to that general rule.
[
Footnote 2] Similar remarks
were also made in the case of
The Charlotte, [
Footnote 3] and it is supposed by the
claimants that the case of
The Lively [
Footnote 4] is an authority to the same effect;
but the question whether the owners of a vessel, when not
personally engaged in a salvage service, were entitled to a salvage
compensation for assistance rendered in the case by their vessel
was not in any way involved in that record.
Examples where the suit for salvage was promoted by the owners
of the salving vessel are quite numerous in cases where the
decisions were made before our judicial system was organized, and
it was expressly determined in the case of
The Haidee
[
Footnote 5] that owners were
by no means unfit persons to originate suits to recover
compensation for salvage services. Strong doubts are entertained
whether the court in any of the cases before referred to intended
to decide otherwise, but the inquiry is of no importance, as all of
the modern decisions in that country affirm the right and support
it by reasons both satisfactory and conclusive. [
Footnote 6]
Page 75 U. S. 471
When steamers render salvage service the court held, in the case
of
The Kingalock, [
Footnote 7] that they are entitled to a greater award than
any other set of salvors rendering the same service, because they
can perform such services, owing to the power they possess, with
much greater celerity than other vessels, and with much greater
safety to the vessel in danger, and frequently under circumstances
in which no other assistance could be effectual. Consequently the
court having cognizance of such cases looks with favor on the
exertions of steamers in assisting vessels in peril, as they can
render such assistance with greater promptitude and with much more
effect than vessels propelled in any other way. [
Footnote 8]
Reported cases where the suits for salvage were promoted by the
owners of steam vessels, and in many cases by the owners of
steamers built for the special purpose of rendering such services
and devoted exclusively to that particular employment, are very
numerous in the reports of decisions in admiralty published within
the last twenty years. Indeed they have been multiplied to such an
extent within that period that it would be a useless task to
attempt to do more than to refer to one or two of a class as
examples to illustrate the course of modern decisions upon the
subject, but it may not be out of place to remark that many others
to the same effect will be found in the very volumes from which the
citations here made have been selected.
Take, for example, the case of
The Albion, [
Footnote 9] in which the sum of
�350 was awarded to the owners.
The Saratoga,
[
Footnote 10] in which the
sum of �600 was awarded, and it was wholly given to the
steam tug.
The True Blue, [
Footnote 11] in which the suit was promoted by the
owners, master, and crew of a steamship, and the sum of �500
was awarded to the libellants.
Some discussion took place at the bar, in the case of
The
Abercrombie, [
Footnote
12] as to the relative claims of the owners of ships,
Page 75 U. S. 472
and of the masters and crews of the same, but the court said
that the discussion was unnecessary, because the rights of such
parties were so constantly under consideration that the principles
regulating the distribution of salvage in such cases were so well
understood that the only difficulty that ever arises is in
ascertaining the facts so as to be able to apply the principles to
the particular case.
Services were rendered to a sailing vessel in the case of
The White Star, [
Footnote 13] and suitable remuneration for the services
having been refused, the owners, master, and crew, instituted a
salvage suit against the salved vessel and her cargo, whereupon the
owners of the salved property appeared and pleaded that the
services had been rendered under an agreement, but it appearing
that the undertaking was attended with greater difficulty and
danger than the parties supposed at the time the agreement was
made, the court held that the libellants were entitled to recover a
certain sum beyond that tendered under the agreement.
So where salvage compensation was claimed by the master, owners,
and crews of six luggers, a cutter, and a lifeboat, the court
sustained the libel and awarded a sum equal to one-third of the
salved property, including the ship as well as the cargo. [
Footnote 14]
Proceedings in salvage were instituted in the case of
The
Canova, [
Footnote 15]
by the owners and crew of a steam tug, for services rendered in
towing the vessel from a place of danger to her dock in her port of
destination, but it appearing that there was an agreement to do the
work for an agreed price, the court declined to allow any salvage
compensation.
Modern text writers, without an exception, uphold the right of
the owners of ships and vessels, whether propelled by steam or
otherwise, to claim salvage compensation when such services are
rendered by their vessels, whether they are present or absent at
the time the service is performed, and the author of the latest
work published upon the subject states that one-tenth of all the
salvage awards collated in
Page 75 U. S. 473
the Digest of the Decisions in Admiralty by the English courts
are to owners and vessels, boats, tugs, and steamers. Assuming his
estimate to be correct, it appears that thirty-five cases collated
in that work recognize owners as salvors, and twenty-five the
vessels themselves as entitled to such compensation. [
Footnote 16]
Owners of the salving vessel, says MacLachlan, are entitled to
remuneration in the nature of salvage in addition to expenses when
they show actual loss suffered or risk in respect to their property
encountered in the service, but charterers are not in the same
position unless there is a stipulation giving them the control and
benefit of the salvage or unless the vessel is chartered and sailed
on their responsibility. [
Footnote 17]
Under ordinary circumstances the owners of the ship which
rendered the service are allowed one-third of the amount awarded as
salvage compensation, but they are sometimes allowed much more
where the salvage service was of a character to expose the ship to
peculiar danger, especially if she was a steamer of large size and
of great value. [
Footnote
18]
Suppose it be conceded that the owners of a vessel may promote a
suit for salvage and that they may be entitled to a salvage
compensation, still the claimants insist that the libel in this
case does not come within the operation of that rule of pleading,
as the libellants are a corporation, but they assign no reasons in
support of the proposition, which, if adopted and held to be sound,
would not also require the court to hold that the owners of vessels
are not entitled to salvage compensation, and are not competent to
promote a salvage suit, which cannot be admitted.
Page 75 U. S. 474
Corporations, it is said, are not entitled to salvage
remuneration, because no party, as the argument is, can be so
entitled except such as actually engages in rendering the salvage
service; but if that is the reason for denying such compensation to
corporations, then it is clear that the owners of vessels must also
be excluded from participating in any such reward, as they seldom
or never navigate their own ships. [
Footnote 19]
Remuneration for salvage service is awarded to the owners of
vessels, not because they are present, or supposed to be present
when the service is rendered, but on account of the danger to which
the service exposes their property and the risk which they run of
loss in suffering their vessels to engage in such perilous
undertakings; and if that is the legal foundation of their claim it
is difficult to perceive any reason why the same rule should not be
applied to corporations as the owners of ships and vessels
similarly employed and exposed.
No satisfactory reason for such a discrimination can be given,
because it is believed that the two cases are precisely analogous.
But the question is hardly an open one in this Court, as will
appear by an attentive examination of the case of
The Island
City, which was elaborately argued by able counsel, and very
carefully considered by the court.
Three libels were filed against the bark in that case in the
district court, but the district judge being concerned in interest,
the three records were removed into the circuit court. By the
original record it appears that one of the libels was filed by the
owners of the steamer
Western Port; another in behalf of
the steam tug
R. B. Forbes, which was owned by an
incorporated company, and the third by persons on board the
schooner
Kensington.
Sole salvage was claimed by the owners of the
Western
Port, and they denied that anything should be awarded to the
steam tug, but the circuit judge held otherwise, and having
determined that the property saved ought justly to
Page 75 U. S. 475
pay the sum of $13,000 to all concerned, awarded $5,200 of that
amount to the owners of the steam tug. [
Footnote 20]
Dissatisfied with the decree of distribution, the owners of the
Western Port appealed to this Court. Even a slight
examination of the decree in the case will show that the appeal
involved the whole question under consideration, but this Court
affirmed the decree of the circuit court, which in effect
established the rule that the owners of ships, whether individuals
or corporations, may promote a salvage suit, and are entitled, in a
proper case, to salvage remuneration. [
Footnote 21]
Prior to that time the same point had been decided by the late
chief justice and two of the associate justices of this Court as
then constituted. [
Footnote
22]
Certain unreported decisions of the district judges are referred
to where a contrary doctrine is held, but they appear to overlook
the fact that vessels disabled, or otherwise in need of assistance
from the shore, depend, everywhere at this time on our coast,
almost entirely upon steam tugs, constructed and equipped for the
purpose, and whose business it is to be always ready and at command
whenever assistance is required. Such steamers are generally owned
by incorporated companies, and having been built and equipped for
the purpose, and being manned with officers and seamen having the
requisite experience and skill, the interests of commerce cannot
safely dispense with their services. [
Footnote 23]
Considerations of the character suggested seem also to have
induced the admiralty courts of England to adopt principles of
adjudication and rules of practice consistent with the employment
of these comparatively new and effective instruments of relief in
cases of disasters upon the seas. Reference is made to a few cases
as establishing that proposition, and to show that the course of
decision in the two
Page 75 U. S. 476
countries is entirely coincident in every particular involved in
this record. [
Footnote
24]
Claim in that case was made for a salvage compensation, and the
suit was instituted by the Liverpool Steam tug Company. Assistance
in the case of
The Paul [
Footnote 25] was rendered to a ship and her cargo, and
the salvage suit was commenced and prosecuted by the Anglo-Egyptian
Steam Navigation Company. Libellants in the case of
The
Collier [
Footnote 26]
were the Brighton Railway Company as owners of the steamship
Lyons and the master and crew, and the libel was
sustained. [
Footnote 27]
II. Next proposition of the claimants is that the libellants,
even if they may be regarded as salvors, were not the sole salvors,
and consequently that the decree of the circuit court ought not to
be affirmed, as it would not be a bar to a subsequent suit for the
same services if instituted by their employees.
Evidently the objection is in the nature of a plea in abatement,
and should have been taken in the answer, or by a proper exception
in the court below. Monition in due form was issued at the
commencement of the proceedings, which was a notice to everyone
interested to appear and show cause, if any, why the prayer of the
libel should not be granted.
Adjudged cases besides those already cited are quite numerous
where salvage suits have been instituted in the name of the ship or
of the owners, without any allegation that the suit was prosecuted
for the benefit of the master and crew, and no case is referred to
where it has been held that the claimants, even in the court of
original jurisdiction, can abate the suit on that account. All
persons interested may appear, on the return of the monition, and
become parties to the suit or by some proper proceeding have their
rights
Page 75 U. S. 477
adjudicated; and in many cases, even after the decree upon the
merits is pronounced, they may appear at any time before the fund
is distributed and claim any interest they may have in the proceeds
of the property libeled, if any, in the registry of the court, but
it is quite clear that the claimants in this record are in no
condition to present for decision any such question as that
involved in the proposition under consideration.
III. If the defense is not sustained on that ground, then the
claimants contend that the services rendered were not salvage
services, because, as they allege, they were rendered under an
agreement for a fixed sum.
Three answers may be given to that proposition, each of which is
sufficient to show that it cannot be sustained. (1) No such defense
is set up in the answer. (2) Nothing was ever paid or tendered to
the libellants for that part of their claim now in controversy, and
it is well settled law that an agreement of the kind suggested is
no defense to a meritorious claim for salvage, unless it is set up
in the answer with an averment of tender or payment. Such an
agreement does not alter the character of the service rendered, so
that if it was in fact a salvage service, it is nonetheless so
because the compensation to be received is regulated by the terms
of an agreement between the master of the ship or the owners of the
salved property. [
Footnote
28]
Defenses in salvage suits, as well as in other suits in
admiralty, must be set up in the answer, and if not, and the
services proved were salvage services, the libellants must prevail.
[
Footnote 29] Agreements of
the kind suggested ought certainly to be set up in the answer, as
it is not every agreement which will have the effect to diminish a
claim for salvage compensation. On the contrary, the rule is that
nothing short of a contract to pay a given sum for the services to
be rendered, or a binding engagement to pay at all events, whether
successful or unsuccessful in the enterprise, will operate as a bar
to a meritorious claim for salvage. [
Footnote 30]
Page 75 U. S. 478
(3) But if the agreement had been set up in the answer, it would
constitute no defense, as by the terms of the instrument the
libellants were not to receive any compensation whatever, or be
entitled to any lien upon the property, unless the materials and
machinery were substantially saved, so that it is clear that the
compensation was not to be paid at all events.
IV. Discussion as to the amount allowed in the decree is hardly
necessary, as it is clear that it does not much exceed the amount
the claimants agreed to pay for the services, in case the
libellants were successful in raising the ship and in saving the
materials intended for the construction of the monitor and her
armament.
Attempt was made by the agent of the underwriters, at great
expense, to pump out the ship, as before explained, but the record
shows that he was unsuccessful, although the men engaged in the
attempt were under the superintendence of one of the claimants.
Expensive preparations became necessary before they could commence
pumping, and in the course of those arrangements they were obliged
to cut openings in the decks and through those openings they took
out sixty or seventy tons of the cargo, but the attempt to pump out
the ship proved an utter failure from the intrinsic
impracticability of raising the vessel by that plan.
Next attempt by that party was to lift the vessel, with the
cargo on board, by means of chains, but the scheme as projected
proved to be impracticable, as the bottom of the dock where the
ship sunk was solid rock, and the divers found it impossible to get
the chains under the vessel. Efforts of a similar character were
continued by the agent of the underwriters until he expended
$38,000 in gold, but all his efforts to raise the ship or save the
cargo, except the fractional part before mentioned, were wholly
unsuccessful.
Page 75 U. S. 479
Complete success attended the efforts of the libellants, as is
admitted by the claimants in their answer.
When the property in question was insured, it was valued at
$400,000, for which policies were granted by the underwriters for
the sum of $340,000, and under the contract between the claimants
and the libellants, they adopted the same valuation. Of that sum
$60,000 was uninsured, and $15,000 of the amount insured was never
paid, and the record shows that the whole of the property on board
when the agent of the libellants took possession of the wreck was
rescued from imminent peril and was delivered to the claimants or
their order.
Difficulties almost unexampled attended the undertaking, and the
divers, in taking out the cargo to lighten the ship so that she
could be raised and secured, were exposed to great danger. Expenses
were incurred by the libellants exceeding $60,000 in rescuing and
saving the property, including moneys paid out and loss of
apparatus and machinery. Considering the skill required to perform
the work, and the expense incurred, and the time and labor spent in
completing the enterprise, the court is not satisfied that the
amount awarded is excessive.
Appellate courts are reluctant to disturb an award for salvage,
on the ground that the subordinate court gave too large a sum to
the salvors, unless they are clearly satisfied that the court below
made an exorbitant estimate of their services. [
Footnote 31]
Judge Story said, in the case of
Hobart v. Drogan,
[
Footnote 32] that the
"court is not in the habit of reversing such decrees as to the
amount of salvage, unless upon some clear and palpable mistake or
gross over-allowance of the court below. [
Footnote 33]"
Evidence to show any such errors in the case is entirely
Page 75 U. S. 480
wanting, and in view of the whole record the court is of the
opinion that the decree of the circuit court is correct.
Decree affirmed with costs.
[
Footnote 1]
The testimony did not, so far as the reporter saw, show what
would have been the value of the vessel independently of what she
suffered in the process of getting the cargo away. She was worth
$30,000 when she left her port of departure, New York, and after
being raised sold for $4,900. But she had apparently been injured
by another vessel after she sank.
[
Footnote 2]
The Vine, 2 Haggard 2;
The Mulgrave, ib.,
79.
[
Footnote 3]
3 W. Robinson 73.
[
Footnote 4]
Ib., 64.
[
Footnote 5]
1 Notes of Cases 598.
[
Footnote 6]
The Waterloo, 2 Dodson 443.
[
Footnote 7]
1 Spinks 267.
[
Footnote 8]
The Alfen, Swabey 190;
The Mary Anne, 9 Irish
Jurist N.S. 60;
The Raikes, 1 Haggard 246;
The
Merchant, 3
id. 401;
The Perth, ib.,
416.
[
Footnote 9]
1 Lushington 282.
[
Footnote 10]
1
id. 318.
[
Footnote 11]
4 Moore Privy Council, N.S. 96.
[
Footnote 12]
Ib., 380.
[
Footnote 13]
Law Reports 1 Adm. and Eccl. 71.
[
Footnote 14]
Ib., 50.
[
Footnote 15]
Ib., 54.
[
Footnote 16]
Roberts' Adm. 103; 2 Pritch.Dig. 727 to 909; 2 Parsons on
Shipping 277, 278;
The
Blaireau, 2 Cranch 269;
The Embank, 1
Sumner 426.
[
Footnote 17]
MacLachlan on Shipping 529; Maude & Pollock on Shipping 423;
Abbott on Shipping 571.
[
Footnote 18]
2 Parsons on Shipping 299;
The Waterloo, Blackford
& Howland 114;
The Rising Sun, Ware 385;
The
Beulah, 1 W. Robinson 477;
The Martin Luther, Swabey,
287;
The Enchantress, 1 Lushington Admiralty 96;
The
Splendid, 2 Mar. Law Cases 216;
The N. Hooper, 3
Sumner 578.
[
Footnote 19]
The Bark Edwin, 1 Clifford 326.
[
Footnote 20]
The Island City, 1 Clifford 210, 219, and 221.
[
Footnote 21]
The Island
City, 1 Black 121.
[
Footnote 22]
The Caroline, 6 American Law Register 222;
The
Independence, 2 Curtis 351;
The William Penn, 1
American Law Register 584.
[
Footnote 23]
The Perth, 3 Haggard 416.
[
Footnote 24]
The Pericles, 1 Browning & Lushington 80.
[
Footnote 25]
Law Reports 1 Adm. & Eccl. 57.
[
Footnote 26]
Ib., 83.
[
Footnote 27]
The Minnehaha, 1 Lushington 335;
The Annapolis,
ib., 355;
The Pensacola, 1 Browning & Lushington
306;
The Fusilier, 1
id. 341, 349;
The
Bartley, Swabey 198;
The Galatea, ib., 349.
[
Footnote 28]
The Emulous, 1 Sumner 210.
[
Footnote 29]
The Boston, ib., 328.
[
Footnote 30]
The Versailles, 1 Curtis 355;
The Lushington,
7 Notes of Cases 361;
The Centurion, Ware 477;
The
Foster, Abbott Admiralty, 222;
The Whitaker, 1
Sprague 283;
The Brig Susan, ib., 503; Parsons on Shipping
275;
The Phantom, Law Reports 1 Adm. & Eccl. 61;
The White Star, ib., 70;
The Saratoga, 1
Lushington 321; MacLachlan on Shipping 531;
The John Shaw,
1 Clifford 236.
[
Footnote 31]
The Fusilier, 1 Browning & Lushington 350;
Hobart v.
Drogan, 10 Pet. 119.
[
Footnote 32]
35 U. S. 10
Pet. 119.
[
Footnote 33]
The True Blue, 4 Moore Privy Council, N.S. 101;
The
Emulous, 1 Sumner 214.
