886
FEDEIthL REPORTER.
the master was entitled to someCOIQpensation. The learned judge said that "as.an effm,'t. w&S made in good;faith by the .master of the tug, and with were believed to be adequate, se",eralhours having been laboriously employed in his efforts to remove the vessel,-one cable beingbroket18i1}d. another cut in trying to accomplish the object,-he was inclined to think the master of the tug entitled to some compensation in the nature of a quantum meruit." Cqlppensation for the time employed and for the effort made that would be reasonable, and for which the law implied a promise on the part of the owner of the vessel to pay. It will beoQserveq; that there was no obligation resting on the master of the tug to m!lke:theeffort to assist the vessel, or to render the service. He had no .relation to the ship. .He was a stranger to her. Herein is the distinction between the case in 1 Brown, Adm., and the one under consideration. But besides this, a decree is not authorized for compensation, in tb,e naturePfa quantum 'meruit,without some proof of the reasonable value ofthe services rendered. Thera is none in this case. Again; where services are, at the tilI;le they are rendered, intended as a they cannot subsequently be made the basis ofaclaimforcomAn action for./3uch compensation must be based on a promor implied, to pay it. The evidence in this (lase satisfies me that, at the time the services were rendered by the libelants, they had nQin.t!'lntic:>n ofcha,rging fQr them. They were gratuit01.1sly rendered. The liqelantsshould be. commended the willing and meritorious spirit shown1;ly: their conduct on.the occasion, but, in my judgment, they are not entitled, under the I/l.W, to compensation for theservic!3B rendered,. whether they were efficient or trivial. The libel must therefore be dismissed, at libelants' cost.
TaETAYLOR DICKSON. 1 BAKER SALVAGE
Co.
tI. THE TAYLOR
DlcitSOR.
;(DiBtrlct Gout-t, B.D. Vt'rginia. February
1888.)
1.
B..u.VAGE-COHPBNSATION.
A worth Vli th her cargo $86,800, lost her maIn and mizzen masts, at sea, and; after running down the coast, anchored off Chlcamicomico beach. near Wimble shoals, on the North' Carolina coast,and hoisted a signal of distress, whicbremained ppJor several hours. The BakerSalviLge Company, a.. professional :wrecking company, with.headquarters. at Norfolk, Virginia, on. hearing of.the location. and condition onhe vessel by telegraph, sent a tug valuedat:$80,OOO, which. after great riSk, and in bad weather and heavy seas, took her·IH ow'. anQ., brougll..t her to Norfolk; the expedition t.a.k.in g about .two. days. The time In pecember. Held, that $8,600 we.s a proper salva.ge.. '. '. . awo.rd.·· . "" it.
I
Reported by.Robert M.: Bughes, Esq., of the Norfolk bar.·
THE TAYLOR DICKSOloi.
887
2. SAME-COMPENSATION-SoUTH ATLANTIC COAST. Salvage .services on the South Atlantic. demand specially lI:beral sal· vage awards, on account Of its peculiar difficulties and dangers, and the special necessity for skilled wreckers arising from such diftlculties and dangers.
In Admiralty. Libel for salvage by the Baker Salvage Company against the schooner Taylor Dickson. S1t4rp& Hughes, for libelant. . Walke & Old, for respondent. HUGHF.s, J. The Taylor Dickson is a three-masted schooner 570 tons measurement. She set sail from Philadelphia on the nineteenth December, last, bound for Savannah, having on board 800 tons of railroad iron; 500 tons of which were in the lower hold, and 300 tollS between decks; all well stowed, except, probably, that as much as 500 tons in the hold tended to produce too great a strain when at sea in rough weather on her masts and rigging. She drew about 16 feet of water aft. She was commanded by J. C. Selover, master. By the night of the twenty.:.fourtb December she was paSSing 3001'40 miles off shore ofNorth Cttrtllina, abreast of Body island light, under a stiff breeze, and on a heavy sea; when, about 2 o'clock in the morning, her main and mizzen masts broke short off near the deck, and fell, carrying down all their rigging,a:nddestroying the la'rge yawl-boat of the vessel. Masts, rigging, and boat,were so wrecked that all had to· be thrown overboard. The foremaat and its rigging were left intact. The band on,on that had encircled the mainmast,towbich much of its rigging had been attaehed,was found br()ken, among the debris on deck; and inspection of itahowed that it had contained a flaw; both the masts were found to have been rotten; but'it is not known whether the breaking of this band produced the fall and destruction of the masts, or Whether the breaking of the mastsd8.used the fra<:tute of this iron band. It is probable that the stress Of weather and of the heavy sea, aggravated by the extraordinary leverage exerted by the 500 tons of iron in the lower hold, put too great a strain upon the unseaworthytnasts and iron band, and caused the disaster which happened. The accident put an end, of course, to the further progress of the schooner 'on her intended voyage. Capt. Selover at once concluded that it was necessary to put back, as soon as practicable, to Philadelphia, for repairs. 'As soon, therefore,as the deck was cleared of the broken masts, towards ,boat, arid;rigging, Capt. Selover, with what sail he had, Body islalid;forthe purpose, ashe says, of getting a lee, and ofputting himself inrooch of the life-boats from the life-saving stations on that'coast. After thus heading towards land, and reaching within 7 or 8 miles of the beach, he proceeded some 20 miles further down alonJ:!: the coast, until he had crossed Wimbe or Wemple shoals; He anchored about 1 o'clock .on the 25th ata point within the shoals, about Smiles from the beach, and opposite a point about half way between the life-saving station at Chicamieotnico·and the· 'atationsix miles south of it. Soon 'after casting anchor,he hoisted a: flag of distress, and kept it flying the reSt of the
of
888
. FEDERAL REPORTER.
day. There is some conflict in the evidence as to the place of this anchorage. Capt. Selover insists that it was 5n eight fathoms water; but witnesses ofthe'libe}{mt say it was in not more than five. The life station's men, and all other witnesses, say that the schooner lay within the breakers prod\lced by Wemple shoals; while the witnesses of respondent insist she was outside. I conclude tha:tshe was inside. If Capt. Selover's object was, as he says, to get into a lee from the north and north-east wind, he could have attained that object only by getting to leeward of the shoals, or within them. If, moreover, his object was, as he says, to get within reach of the boats of the life-saving stations, he could have ,done so only ,by putting hiJ;nself within the line of breakers produced by the shoals. About a fortr;J.ight'before the accidl'lnt which befell the Taylor Dickson, ashore off False cape, on the ocean steamrship Kimberley the same coast; and the work oCta-king off her cargo and saving the ship 'Was going on, whenever weather and sea permitted, at the time the Taylor Dickson suffered her misfortune. A stiff wind from the north-east, and a heavy sea, prevailed during the night of the twenty-fourth December, and allday llnd into the night ofthEl 25th. The sea was too heavy during the 25th and on the 26th for life-boats to go out fromChicamicomico station to the. Taylor Dickson. It was too heavy for the salving operations on the Kimberley to be carried on. The weather was too thick, and seatoo rough, on the 25tldorco,mmunication to be made from the the shore, with the steamer Victoria J .. Peed, which .lay a mile,and a hlllf off shore abreast of the Kimberley,engaged in saving her cargo., Word corne to the Baker Salvage Company, in Norfolk,late op.the 25th, that a schooner with main and mizzen masts gone, was lying off Chicamicomico, under a flag of distress, that company at once dispatched the tug Sampson to the distressed vessel. . The Sampson isa steamer of, extraordinary power,valued at $&0,000, of 155 tons measurement and 430 borse-power. The Baker Salvage Company is organized, chartered, and conducted as a wrecking company; possesses the steamers, schooners, material, and appliances usual and necessary for that business; and has wrecking property costing $80,000, which; from the nature of its risks, cannot be insured. This company had under charter the Sampson to aid in saving the Kimberley and her cargo, at the tate of $100 a day, whether engaged in the salving operations or lying in,bad weather at the wharf. The Sampson left Norfolk in the afternoon 'oOhe 25th, and layoff the coast beyond Cape Henry during that night· .It; off ,early the next morQing, and reached the Taylor Dickson about noon. describe the Ilea, as very rough at the time; so much so, tbat the act of getting to the Dickson and getting a cable to her was dif¥cult, and involved extraordinary risk to the tug and her crew. After of more .than an hour, the tug's cable, was made fast te the ·. of the tug being unwilling vessel in'that place any than was absolutely necessary, directed the schooner to slip her cable, which shadid without objection, and with the, consent of Capt. Selover. The Sampson left Wemple shoals,with the Taylor Dick&
THE TAYLOR DICKSON.
889
son in tow, about 2 o'clock on the 26th, and brought her safely into the harbor of Norfolk in the forenoon of the 27th.'l;'he value of the Dickson and her cargo is appraised in round numbers at $36,800. . In the foregoing recital, I have,made no allusion to a good deal of evidence in the case. There is much conflict between the testimony of witnesses in behalf of the schooner and all the witnesses, including the lifesaving officers, who were examined on behalf of the libelant. The drift of the testimony for the respondent was to show that the schooner was lying safe and sound on or near Wemple shoals; and that the service rendered her was not a salvage service because of the fact, as they alleged, that the schooner was in no danger. I feel bound to reject this pretension as not only untrue, but unoandid. Why the flags of distress all the afternoon of the 25th? Why was the flag on the 26th hung in such a manner that the, steamer which passed in the offing stopped to send a boat to her to inquire her condition, and to offer assistance? Why the effort which was made by the other schooner that came near her on the night of the 25th, and again in the morning of the 26th, to render whatever ,assistancethe wind (lnd waves permitted? If the sea was not rough, why did the life-boat from Chicamicomico station not come off to her on the 25th, nor on the 26th? It seems, that every eye that saw her during ,the 24 hours that she lay at Wemple shoals regarded heras in extreme distres'l;l'!-nd so I conclude that she was. She had come out fromtpe port of Philaqelpllia in a sadly unseaworthy condition. The vessel was old. Her best cable was seven years old. Two of her masts were rotten; ',arid granting, for a;rgument's sake, that the sea and wind were as mild on the night of the 24th as Capt. Selover pretends, those masts and the iron band which encompassed one of them, were not equal to Jhe strahi of such weather and sea. Here, then, was a schooner with only the.foremast intact, laboring on a sea" which, in the same season of the year, in 1876, had engulfed the Huron; in 1887 had wrecked the German ship Elizabeth,and all on board; in 1880 had stranded the powerful steamer Sandringham; and in 1883 had beached the still stronger Egypt. By accident or by design, (I think by accident,) this unseaworthy and disabled schooner found herself, in the course of 12 hours, between the breakers of Wemple shoals and those of Chicamicomico beach. The sea was too rough for her to be reached from land. She was in a condition and position that attracted the sympathy and enlisted the endeavors of all who saw her. ' A tug from Norfolk went around on that dangerous coast, in that hazardous season of the year, over a distance of 115 miles, and brought her into port. It was a salvage ,service. It was a service in which Ii vessel in danger of the sea and in disabled condition was rescued. It was a service in which a valuable steamer, not built for the outside waters, and running extraordinary risk in going out upon them in midwinter, but which was the only one available, went to the schooner's succor, risking property worth nearly as much as the property saved, and risking the lives of her crew. It was a service of higher than ordinary grade. I repeat now what I said in the case of The Mary E. Dana, 5 Hughes, (U. S.) 362, 17 Fed. Rep. 353.
890
FEDERAl:- .;Rli1PORTER.
"SalvMe'servicfS, on the long anq1dangerous coast which stretches from the Delaw·arecapes to Florida, o"ught to be more liberally rewarded than on other coasts. His not a seaboard; studded with bax:bors and prosperous commercial cities and towns from wp'ichsalvors may run out short distances along shore, and render successful services in a few hours. It is a long coast, dangerous and barren, constantly swept by strong winds and currents; where the ordinarytide'Yaries only three feet j .and on which wrecking enterprises cannot be successfully accomplished by individual exertions and capital. Wrecking service here Can only be successfully performed by organized capital, enterprise,and skill; by capital, skill, and enterprise, so organized as to be capable ofmain,taining a constant proviSion of mariners, powerfUl wrecking vessels, and ample wrecking implements and material, ready at all hours for immediate service. The business cannot sustain itself in the l;tands of reputable men and companies, unless the admiralty courts shall give exceptionally liberal rewards in all cases of meritorious and successful service on this seaboard. surely it is in the interest of commerce to sustain the wrecking business in waters and For these reasons I repeat, sal· vors on this coast must be more liberaHy dealt with by the admiralty courts than on other coasts." Our courts are bound, in mercy to life and property, to pursue a Ii})" eral policy w.it4those iIi the salvage of property and lile on such a coast. . .I have felt I passed upoif the case of The Fannie Bruwn, SO Fed. Rep. 215; that my award there was illiberal and meager; but it was made without reference to the sto$which that vessel escaped by but a day, .and which destroyed Eliiabeth. If that event could have been llllowed any consideration, the award would have been nearer $5,000 thliti '$1,500. BrOlvnhad lost parts of two masts, she still had 55 feet of'C!lne Of them ,and 41 of another. She had lost was a new,' staunch vessel. Her crew, with rare pluck, had. improvised a rigging.rnuch more capable of keeping her out of harm's way than the meager rigging left to the Taylor Dickson. The value saved only half that saved in, present case. '. But the chief difference between the two cases consists:in the. important fact that the Fannie Brownwas fou.nd and brought in by the Victoria Peed, a wrecking steamer built for outside work, and which .encountered little risk COmpl\ratively ingoingout upon that cOast; while the Taylor Dickson was rescued by. a. 'tug, built for inland waters, and which cannot live in the alid seas that so on the coast from False cape to Hat· ,She,took the risk of that adventure, in. response to the Taylor :qickson's appeal of and el1rned a higher reward,than would have 1:leeri due to a steamer adapted to those waters. . - Xthirikthe quantum meruit value of the Sampson for the better part of three days' service, at $200 a day, should be assessed at $600, and that bounty should be $3,000, and I will sign a decree for $3,600· . ..
was
"EATON 'V. NEUMARK.
891
EATON
v.
NEUMARK
et al· January 21,1888.'
.. (District Oourt; S. D; NerD York.
(,AllRlERS-RESTRIOTlON OF LIAllILITy-NUlIBER Oll"PIECEs AND WEIGHT.
t.
A clause in a bill of lading which states that the vessel is not to be respon· sible for the number of pieces,or the weight, removes the ship's presumptive liability for the weip;ht stated in the bill of lading, and leaves her liable only for what is proved to have be,en actually put on board; and where different weightil are put in evideIlce by the consignee. the greater cannot be adopted without some preponderating proof in its support. A vellsel arrived of iron rails deliverable to two several consignees. The quantity delivered to respondents was short of that called for by their bill of lading. The discharge was made direct from the ship into cars Qfa railroad company authorized by t1).e consignees to accept delivery, and it appeared that the master of the vessel had indicated respondents' portion ot the rails as they were put on the cars, but that, owing to some mistake, in which respondents' agent participated. one car.load had been forwarded to tpe wrollg consignee. Held, that it was not the duty of the master to act as forwarder, and as the vessel had properly delivered the rails she was entitled to frei£l;ht without rebate. .
BHIPPING-CARRIAGE OF GOODs-DELIVERy-FORWARDING.
In Admiralty. Libelf'or freight. The libelant Eaton, sues to recover freight on a consignment of' rails. The respondents, Neumark et al., set up shortage in· the quantity delivered as an offset to the demand. Wing, Shoudy &; Putnam, for libelant. L. Edgar Aron, for respondents. BROWN, J. The master at Dantzig signed two bills of lading for iron rails shipped there by the same shipper, all deliverable at Philadelphia, to order,-the one for 1 ,825 pieces of iron flange rails; the other for192 pieces of flange rails, and 814 pieces of tram rails. The bills of lading were transferred to different consignees, both of whom provided for the delivery of the iron on their behalf at Philadelphia to the Reading Railway Company at its wharf. The iron was not allowed to be put on the wharf, but wa.s required to be put into the Reading Railroad cats direct from the ship, and was weighed by a. United States weigher in the cars, after it had been thus loaded. The master of the vessel and a United States inspector supervised the handling of the iron as it went from the ship to the cars, and counted the pieces. The weighers' returns specifiedthe amount forwarded by cars on account of each consignee, and made the respondents' iron fall short about 28 tons in weight, and 245 in number of pieces; a shortage which is set up as an offset j;o the libelant's claim for freight. The testimony, taken on commission at Dantzig, goes to show that the exact number of pieces and the weight given in the bill of lading were put on board the vessel there. The weigher's returns at Philadelphia. of the whole consignmetlt of rails under both bills of lading shows an excess of 243 pieces in the number of rails, and about 20 tons less of aggregate weight. The circumstances of the case, the excess of the