THE G. BARBER.
269
well as the owners and charterer, and that, during the whole of the voyage they were obedient to the lawful commands of the master and Smedley. The evidence does not bear out this claim; and, under the pleadings and on the facts proven, the brig is exempt from liability. This conclusion makes it unnecessary to consider the claims for damages for a shortage of provisions and general bad treatment during the voyage, because the owners were not responsible to the libel· ants on account of these charges, even were they true. Neither can the owners beheld responsible for the alleged undertaking of the cap· tain to pay the libelants out of the proceeds of the sale of the cargo. The latter undertaking, had it been made, being without the scope of the captain.'s authority, could not bind the owners. The Norman, 28 Fed. Rep. 383. . The libels must be dismissed.
THE
G.
BARBER. l
S'tEVENS tI. THE
BARBER.
(Di8triet Oowrt, W. D. MiChigan, 8. D.
August 6, 1885.)
.SALVAGE-SERVICES RENDERED AT THE REQUEST OF CONTRACTOR-KNOWLEDGE . OF AGREEMENT-EFFECT OF. ·
One who declines to assist a stranded vessel when requested by her master, . but who SUbsequently, without any such invitation, joins in the undertaking at the request of one who, fora fixed price, has undertaken the work, with a full knOWledge of the relations of the parties, and the terms of their agreement, must look to the contractor, and not to the vessel or her proceeds, for payment. .
In Admiralty. Libel in rem for salvage. Orinck8haw &; Grier, for libelants. M. C. &; A. A. Krause, for respondents. WITHEY, J. The libel in this case is for the recovery of salvage per· form.ed by the tug Joseph H. Martin, of Charlevoix, upon the schooner G. Barber, while a wreck on the beach near Leland, on the west shore of Lake Michigan, in this district. The services were rendered in June July, 1884, for which $560 are claimed. Andrew Holmand, ter and managing owner of the .schooner, has. appeared and answered, setting up as a defense that libelant's services were not performed at the instance orrequest of either the master or owners of the vessel, but at the request of Eli Toulouse, who undertook to rescue the wreck, and take her into port, for a title to one-half of the vessel, and that libelant, at 1tnd prior to the time of the alleged had notice of such contract 1
by Theodore ]){. Etting, Esq., of the Philadelphia bar.
270
FEPERAL REPORTEU.
undertaking. The answer also states, by way of demurrer, that it appears on the face of the libel that libelant is the owner of but one-halfof the t.ug J. H. Martin, and the).'efore, cannot maintain the suit by reason of the non-joind,er of the, other owner. I shall dispose of the case on other grounds than the non-joinder ofthe owners as libelants. The matters set up in the answer as a defense to the merits of libelant's by, the evidence., There is no dispute claim of a lien are fully as to whether the services werel'endered, nor as to their value. The schooner went onto the beach ip April, 1884. No effort was made to relieve her until June, when Capt. Holmand applieq to libelant to go with his tug to her rescue, which 'he refused to do. Libelant says in his testimony that the reason of his refusal was he did not know the condition the ve"ssel was ip, was not acquainted Capt. Holmand,and was un· willing to go to work without a guarantyof payment. The captain then applied to Capt. Eli Toulouse. of the tug Payne, of Charlevoix, and of· fered him title to one-half of the schooner if he would release and take her into port: Toulouse finally accepted the terms, and entered upon the undertaking. He left Charlevoix for the wreck, and, at Leland, sent, June 11, 1884, a telegram to the tug Martin at Charlevoix to come that night to the schooner Barber with 100 oil barrels. Libelant received the dispatch about midnight, and at once proceeded to take on the barrels where the dispatch: inqicated they be found, and conveyed them to Leland. Here they were received by Toulouse, and the Martin returned to Charlevoix. A short time subsequent to freighting the barrels, the tug Martin was taken by libelant to the wreck, at the personal request of Toulouse, and there engaged her in dredging a channelto:where she lay on the beach; Before completing such work libel· ant returned with his tug to Charlevoix to tow out vessels, but soon sent back the, tug in charge of another captain, with Toulouse and a double erewupon her, and renewed with her the work necessary to rescue the wreck. On this occasion the vessel was moved into deeper water about 20 feet, but she settled down, her bottom resting on the sand, her decks . under water to her forward hatch. ' Capts. Holmand and Toulouse were present, as they had also been on the previous occasion, assisting in the work. It appears to have been opinion of both that the vess,el.'You1d not float in' her then condiexpressed a to abandon his undertak· and remove from the wreck his barrels. He even made an attempt to accomplish this; but some obje<>tionbeing made by Capt. Holmand, and it being suggested that additiona.l'barrels ought to. be procured and further effort be made to float the schooner, Toulouse con'cluded to, and did to Charlevoix with the tug .Martin and crew, with.out any definite what. further woule! b!'l qone., After wlj.iting at Leland Toulouse, Capt.lIolmand went for about 10 days, without hearing to Frankfort, and engaged the oithe tug Hall oithat port to go to rescue the vessel. ,On his return Jrom Frankfort he met Toulouse, on his way to the wreck for his barrels, and informed him of the dissuaded from his purpose of engagement of the
271
abandoning the wreck, requested Holml1nd to wire the Hall to come to the wreck"ltt ouce, which she'did; and in a few hours the schoouerwas afloat. Capt. Holmand then offered Toulouse, in case he would pay the charges of the Hall, and take the vessel into port at Charlevoix, to carry out the contract, and convey to him one-half of her. To this Toulouse consented, and the Payne towed the vessel into port. Capt. Holmand, within a short time, caused to be conveyed to Toulouse half of the schooner, and proceeded to make repairs on her at a cost of about $1,000, occupying about three months in fitting her up, when she was employed in freighting. Subsequently, some time during the following winter, I believe, she was libeled by the owners ofthe tug Hall.toenforce a lien for salvage; which service Toulouse had neglected to pay. A decree has been rendered in their behalf, and the vessel has been sold for $982, which sum is now in the registry of the court. At,the time the schooner was towed into Charlevoix, before the repairs weremade"she was of the value of not more than $300. When fully repaired, her value was about $1,300. Capt. Holmand paid for the entire cost of the repairs, except twenty or thirty dollars paid by Toulouse. The sum decreed in favor of the owners of the tug Hall is $245. Capt. Holmand is sole claimant before the court for the remnant, which will be considerable less than he expended on repairs subsequent to the time the claims accrued for salvage'., Such being the substantial and material facts of the case, it appears that Capt. Toulouse had a definite and explicit bargain with Capt. Holmand to release 'the wreck for title to one-half interest in her, and that libelant krtew of sncb bargain, and assisted in the work at the special instance and request of Toulouse, having previously refused to go tv work onth:e credit of owners or of the vessel. It is manifest, under thlfacts, Tgulousewould have no action in Tern, aI)d I think it equally manifi:l$t,thtlt libelant cannot maintain an action in rem against the ship, for the reason that the maritime'law gives no lien in such case. It was incumbent on the claimant to show that there was a definite bargain with Toulouse as to the compensation he was to receive, but this he has done. There is no foundation for claiming that libelant understood that he was rendering assistance at request of the master Of the vessel, or for saying that he understood his work was being done upon the credit of the vessel or of her oWners. His:refusal to work on her without first being secured, and subsequently assisting at the request of Toulouse with notice of the latter's uriderta:king, without any conference whatever with Capt. 'mand·on the subject, rendem it quite clear to an impartial mind that libelant had oosuoh· understanding. A reward for salvage is not generally participated in by those who. fail to effect a rescue, if they voluntarily and without justification abandon the wreck; and, when compensation is awarded, it is usually a share of the property/rescued. and npthing more.· In which case, if libelant's claim was enforceahle, as the value ofthe rescued ship '\\"asbut $300, this would be the compensation, at most, to be shared between all the salvors. The evidence sho\Vsthat libelant madE!. no' claim upon Capt.
272
FEDERAL REPORTER.
Holmand or the vessel until after the repairs were made, though they were made at Charlevoix, where libelant resided, and employed his tug in towing vessels in and out the harbor, and not until half the vessel had been conveyed to Toulouse in fulfillment of the contraot made with him. All the faotsgo to defeat all olaim of justice and equity on the part of libelant. Any other view than that I have eJrpressed would give to one so disposed, who contraots to relieve a vessel in distress for a definite price or specific payment, power to do great wrong to her owner. The owner, Capt. Holmand, and his original co-owner, are not liable in personam, under the facts presented by the evidence; whereas Toulouse manifestly is liable, and there would be barefaced injustice to allow libelant, upon the plea of a claim for salvage, to take funds belonging to the claimant, Holmand, by decreeing,a lien against the ship for a debt owing by Toulouse, and by him only. The usual decree will be entered, in accordance with this opinion, dismissing the libel of Hiram S. Stevens, and for costs in favor of claimant against libelant and the stipulators.
THE CLOUD.! BERGANTZ ,and others v. THE CLOUD. , (District OO'llA't, E. D. Pennsylioania. Decembe,r 8, 1886.) SALVAGE-TuG AT WHARF ON
FmE. A tug took fire while tied to 8. wharf. While the, fire was burning, and the firemen on shore were trying to put it out, the tug got loose, and was in danger of escaping beyond the reach of the firemen. Libelants secured the tug, made her fast, and aided in extinguishing the fire. Held, that thev had rendered a salvage service, and were entitled to cowuensation.
In Admiralty. Theodore Etting, for libelants. Flanders If Pugh·, for respondent. BUTLER, J. In view of the proofs, it must be held that the libelants rendered a salvage service. It is clear that they tied up the tug, which had beoome unfastened, with no one on board, and was so near the outer end of the dock as to be in some danger of esoaping, or passing beyond reach of the firemen on shore; they also did something towards extinguishing the fire, and preventing her destruotion. The services were not hazardous, nor of great value, and ocoupied but little time. They must be compensated accordingly. I believe the sum of $75 will be So sufficient and fair compensation, and this sum is allowed. A decree may be so entered. I
..
Reported by C. Berkeley Taylor, Esq., of the Philadelphia bar.