608 FROM
CARGO
WREOK
OF BARK EDWAltDS·
. (District'Oourt,S. D. Florida. April, 1882.) 1. SALVAGE-DERELICT-COMPENSATION-ExTRAORDINARY l'JEIlIT.
Salvage on derelict property is not limited to a moiety, as high as 70 per ceJit. being given in 8 case of extraordinary merit, where the labor is cOllsiderablEl aud the valmrof the saved property small. 2. SAME";,,,SWPWRECKED PROPERTY. ,
Such damage as results to propertyfrom being shipwrecked and submerged in sa1t water,with breaking and loss of boxes and cases, held not tosd change its condition as to exclude it from free enti-y, if'shown to lie produots ()rmanufBctures of the United States, under provisions,{)f section 2505 of the Revised Statutes. 3. SAME-IDENTITY OF PROPERTY.
The identity of such articles must be establislied in conformity with pre. scribed regulations of the treasury department, 'and not by ordinary testimony.
In Admiralty. Salvage. L. TV. Bethel, for libellants. G. Bowne Patterson, Dist. Atty., intervening for duties. No claimant. LOCKE, D. J. This property was .found in the bot.tom of a bark which had been wrecked on Ala-cran reef, abandoned and gOUE! to divers, in froll). two to two pieces. It was .saved by· diving by and a half fathoms of wate:r, and boated some seven miles, to where the salving vessel had been obliged to anchor; has been brought to llled for l3alvage by t.he salvors, who this portrover 500 miles and.lib are licensed wreokers of this district.: ", c. It appears to have been derelict in the fullest sense of,. the term, and its total loss cel'ta,in, except undertakipg a,s the libellants engaged ilk: The labor was severe and to ,a ce.rtain extent dangerous, both to the persons and property engaged, the services being repdel'ed inl111certaiu wettther, on an open, and dangerous reef. 'The actual diving .and, labor occupied ab<;>ul a. week of flxtra-long daYs, while the value of the property sayed; compared with the labor of saving it,is small, being,. after payment of expenses and duties, but about, $100. The ancient rule ofgiving a moiety for salvage in cases of derelict, and limiting it to that proportion of the value saved, has gl'adua,lly given way to one which has boon generally accepted as more equitable and just, namely, a fair compensation for actual services rendered and labor performed, although it may exceed a moiety, aQ<!, ,.when the amount justifies it, a liberal bounty in addition. The records of this district show numerous instances where it has 1
OARGO FROll WRECK OF BARK EDWARDS.
5011
been considered that a moiety would not reward the salvors as deserved, and higher rates been given: 60, 10, 15, and. even as. high as 90 per cent. has been awarded in some instances where the property has been seemingly lost, the value comparatively small, and the labor proportionately large. {i am well aw'are that these rates, as comparl3d with those given by other courts, may seem unjustly large; but when I consider that the services are rendered by persons who are specially licensed and under obligations not only to go to tbereliefof all ptb.perty in; distress without stopping to consider whether it will be remunerative or not, but also to surrender and report to fihis court all derelict property found by them,. of howsoever little value, and. the honesty with which these obligations are :fulfilled, I .am: pot satisfied that the rates heretofore given v.nder such circumstances as the preaent have been any too large; compensation for actual work and labor being the first point for consideration in awarding salva.ge, as well as in determining pa.yment for any other services. It is true that in rendering a salvage service the salvor risks of failure, and his salvage depends upon his success and the amount of property saved; yet when there is enough to fully compensate him for time and labor, and leave it reasonable proportion for the be awarded that, if the amount will allow owner, he should no more. I consider'some of the circumstances in this case of unusual mellit, and do not think-a moiety sufficient to pay tIle salvors for their tillie, .laborjexposure,and risk, while for .any residue the, owner IlJ,ay finally receive he will be indebted to their exertions, and, 10 per cent. of net, proceeds' of; sale, after payment of all costa, expenses, and dutiBs, will be allowed. i A petition has been filed by the United States' attorney, intervening for duties, amounting to $426.12,alleging that the articles being derelict are p1'ima facie dutiable l while the lihellants claim," and· ha'Ve endeavored to show by marks and ihe charactelu),f. some of the articles, that theY' were of the manufacture of the Unit-ed States, and therefore not subject to duties. The .property all having been for senue time under water was conside])ably. damaged, and the packages, boxes, and eases in many instances .destroyed, so that the district attorney denies that it was, "in the same condition" in which it was shipped, even admitting that it was the produet of. the' United Statea. What constrl1ction is tq be placed upon this term, "'in the same CQ]J.dition,as exported," as used in the acts of 18-61 and 1870, and e.mbod.ied' i1;djQ section 2505 of the Revised S,tatutesj is a questiQu upon
510
FEDERAL BEPORTER.
which there might be a difference of opinion, and which havebeel1 unable to find has been judicially decided. Several decisions of the 'treasury department have been made upon it, but no rule of tnination has, as far as I can ascertain, been fixed·.. Indeoision 2;252, several organs which; had' received damage in the sea voyage were permitted to entry duty free; as was also damaged powder whiQh had been rendered worthless by the absorption of moisture, decision 2,755; also worn-out 'car wheels, 4,289; but the materia!s; of an iron bridge which had been erected but, swept away by a, freshet before being used, and so damaged as to prevent its being used for the same purpose again, decision 2,498; steel engravings exported to receive the autograph of the artist, decision 4,105 ; and which had .been used as cotton ties, decision 2,525,-were held to be liable to duties upon reimportation.' ;I In market, if for sale, none of these. articles would, be 'considered to be in the same .eonrdition in . which it is presumed ,they were shipped; but I cannot believe it the intention of congress to exclude articles on account of . any damage. either by usual and ordinary means or extraordinary circumstances which has not changed their 'character as to their uses and employment. The act of March 2, 1799, that permittedtbe reimportation of the produce of the United States made no exception on account of its condition, and I .do not understand that the amendment of 1861 was with the inten.tion of reaching cases of ordinary or even extraordinary damage by sea voyage or shipwreck, whereby the character, nature, or possibility of use might not be changed, but was intended rather to apply to those raw products, the character of which may have been entirely altered as to their value and use. In this case not one of the articles-cotton goods, axes, hatchets, wire fencing, shot, etc.-have been so changed that they are not suited for the purposes originally intended, or are suited for any others. The packages, boxes, and original wrappings, when considered in this connection, become a matter of so small importance that I do not think that their total destruction could be held to affect the question of the condition of the property, if otherwise unchanged. It may be true that wheat in bulk may not be in the same condition as wheat in bags, or cotton loose, as that in bales, but the change in condition I consider too slight to be reached or intended by this statute. I do not think in this case the damage to the property by being under water, and by the breaking and destruction of the boxes and packages, has so changed its condition as to render it liable to payment
r
of'iiuties'if otherWise. shown· to be entitled ·to free: entry. But; not. liable to duties, when the ,identity of the: articles is properlyestablished this must be done under regulations pl:esc;ribed by-the: secretary of the treasury... Thi13 is a condition upon whic.h the property may be admitted duty free, and rno other testimony as to the ori:- . gin, character, or shipment of the goods oan entitle them to this benefit. The proof. of identity must be -,made fin the: diredtedbythe regulations of tpe treasury depatt1I\ent, (articles 375. and 8.76,) as far as the.ciroumstancespossibly,permit. Theproperty applirehtlyneter having been landed in a foreign port, it will be impo8sible::to furnillh the statement required in artiole 377, which "ill not·· therefore,. be:required. Time will be allowed the parties to. make 'such proof as the regula..; tiona, not exoeeding six time. given, il:dhe ,form Of bondprescribed,-and in the .meantime. the entire,amount o! dutieaelaimed will be xetainedriB.the registry. Of the court·
.. ;.'
.<
THE
J bUN
MITCHELL.
'/ L
(District 'Court, E. D. New York·· 1882.) COLLI8ION-CnOSSING COUHSES-MANEUVER IN ExTREMIS.
Where it was not possihleJor II pilot-boat, by holding her course land bel'ling out her tack, toeross the bows of a tug without collision"she is justified in attempting at the la.st moment to avoid the collision by keeping away, and lier failure to accomplish this'is no fault. 2. B.urn-CHoICE OF MANEUVERS. ' Where it was doubtful whethel:,shll :cQ\lIIi< have accQmpliR'hed such a ver in safety, it is no fault to declipe the hawser l.ietween the tug anll her tow. " . 3. BAME-ERROR IN ExTREMIS-NoT A FAULT. A mere error in the selection of means to avoid a danger cast upon a vessel erring :vessel by the fault of the other ve$Sel woulp. not render for the result.
HiU, Wing It Shoudy, for l i b e l l a n t . , Ohas. W. Sloane and Beebe, Wilcox It Hobbs, for
L
BENEDICT, D. J.This action.is brought to recover of the tug John Mitchell and the pilot-boat Alexander M. Lawrence. damages for a collision with the bark The place of oollision, was in the bay of New York, just above the Narrows. The tug "was towing the bark in from sea, on a hawser, intending to stop off the..bdarding station. The tide was flood, and the wihd from the s(mthwal'd." The pilot-boat was ·beatingdown the bay. On her port tack ahe crossed the bows.of