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·. LoPEZ
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v.
SAME.
,(DiBtrict .Court; D; Soutlo Carolina. March SO, 1889.) 1. ,A French steam-ship, briniof steel, of 2,540 tons burden, 346 feet in length; worth about $200,000. with a cnrgovalued at $103,000,' while on It voyage from Rio to New York, lost her rudd.er.on the 29th of Jauultry. about 250 miles E. S. E.:of'Cape Hatteras. By the of atempor!.lry steering appl.lratus, anc! by going under steam, sometimes with all her engines, sometinies witli only a. part, she arrived, FebrUllry 5th, about 1, A.M., off St. Helena 'bar, South Caro. lina, displaYing signals of a disabled steam·ship. A pilot-boat, having on board two full pilots and an apprentice, while cruising on he!-,pilotage ground, sighted 'her'about 5 A. :M., and went to her, displaying the' light of 'a pilot. The,mltster informed her thltt he watited It port, and was told that he could not enter Chndeston, because of his draught, but could enter Port Royal, whete the master expressed a desire to be taken, and requested the pilot to send for· two tugs.. One of the pilots boarded the ship, and the other wentoff in the pilot-boat into Coosawriver, about 25,rniles, for the tugs. There were no tugs in that neigh borhood engag(;ld inse.a towing, but a phosphate mining company, at work in the Coosawri'ver, owned five large tugs, which were constantly in use in its business. When the pilot-boat arrived two were absent, two were.!Ltwork, and the other was at the company's establishment. After some parleying 'the manager of the company, on hearing that the steam-ship was 8 passenger vessel, consented to let the two tugs go, and telephoned for tbethird,tocome on at once, On the arrival of one of the tugs at the stell.m, ship, and afteraull.ttempt had been made to adjust the compensation. with., out result, the tug Was placed behind the steam-ship, to act as a rudder, and the , steam-ship" under her own steam, and with a pilot in charge, proceeded to Port Royal, about 20 miles away. Shortly afterwards another tug came up,' and a,pilot put aboard her, and a line taken from the bow of the steamship. They arrived 011 the entrance of the port about 6 o'clock, where the Tesselanchored, the going on to a coaling station, where they spent the night.. The· next mornmg were Joined by the.third tug, and the vessel was taken into port. The value of the tugs was $liO,OOO. Held, that the service of tne 'tugs was a salvage service; but, in view Of the minimum risk, an award of ,only $750 would be made to each of the tw'O tugs that first arrived, and $300 to the third. BAME-SERVIOlll OF. PILOT. '1'UG-:-AWARD... ..'. . '
S.
The service of tbe pilots In procuring the tugs was a salvage service, for which they are entitled to $200. but the subsequent service was in the line of their d1lty all. pilots. for which,in view of the extrj\ordinary skill displayed in taking the vessel through a difficult channel, they are entitled to aIt allowance of $150 eaCh, ail e:lrtra compensation. . ' ,. ,
In Admiralty. Libels for salvage. Libels by Lopez, owner of the tugs Catherine, Cecilia, and Reliance, and by Santos and others, owners of the pilot-boat Charleston, for services rendered the steam-ship Cachemire. Smythe &; Lee, for Lopez. McCrady, Sons &- Bacot and W. J. Verdier, for Santos et al. J. N. Nathan8, for claimant. SIMONTON,
J. These libels, claiming salvage, were consolidated at the The Cachemire, a French steam-ship, propeller, built of steel,
,'l'HECACHEMIRE.
519
being in length atleast 346 feet, and of 2,540 tons burden, was on her voyage from Rio to New York, laden with coffee. ' Her cargo was valued at $103,000,. Her freight was $1,050. She herself wasinsured at $150,000, and was worth about $200,000. On 29th January last, after a gale of some violence, in longitude 72° 40', latitllde 34°, she lost ,her rudder, being about 250 miles E. S. E. of Cape Hatteras. With great skill and ingenuity the master of the steam-ship prepared a temporary steering apparatus. He rigged out two booms, forward and aft, projecting over opposite sides of his steamer. To the end of the forward boom, star.. board, he attached, by ropes a barrel used as a bucket, and to the end of the boom 'aft, port, he attached, in the same way, a similar barrel or bucket. These were moved by machinery on the deck. By lowering these buckets, alternately and making use of their resistance in the water, he could change her course to starboard or port as he desired. This apparatus served in great measure the purpose of a rudder. But it was of little service in a rough sea, and in a strong current. Being thus disabled, the master determined to make his course for the United States,seeking to reach somewhere on the coast of Georgia or South Carolina. Going under steam with his engines, using sometimes all four of his boilers, sometimes only two of them, on the morning of the 5th of February last he camein sight of the Hunting Island light, off St. Helena bar, about 1 A.. M. From the time she lost her rudder the steam-ship had up the signals required by the International Code for a disabled steam.shipj-' three red lights at night, one above another,-and three' black' balls:by day. Artiale5a.When she approached this coaSt she had;,up these lights. The pilot-boat Charleston, with two pilots, one ninefoot pilot, one apprentice, and three of the crew on board, was crnising at this time on her pilotage gro.und off the bar. She observed the lights of the steam-ship about 4 or 5 o'clock, and mistook them for signals of tress., She boredown to and hailed the steam-ship, having at her foremast head a white light, the distinguishing mark of a pilot. The master of, the informed her that he was on a voyage to New York, and wanted aport. The pilot replying to him that he could not enter Charleston because of his draught of water, (19 feet or 191 feet,) or any other neighboring port but Port Royal, he expressed the desire to go into that port, and requested the pilot to send his boat in for two tugs to tow him in!. Murray, a full-branch pilot from the Charleston, boarded the steamship, and the other full-branch pilot, Santos, went off at once in the pilot schooner up St. Helena sound into Coosaw river for the tugs,adistance of.80me 25 miles. There is Borne conflict of testimony upon the point whether the steam.. ship was at anchor when the pilot hailed her. The. master, officers, and crew swear that she was. The pilots and their apprentice say she was Dot., There is no doubt tha,t she was perfectly stationary, and there is also rio doubt that she waited for the tugs at anchor. There are no tugs in ,that neighborhood employed exclusively in ,the business of sea towmg.: Thenealest tUjl;S were those of the libelant Moses E. Lopez. He is the'head of ,a company engaged in mining phosphates in the bed of
520
FEDERAL REPORTER,
vol. 38.
Coosaw river. This and Bull river are broad estuariAs emptyirig into St. Helena sound. The operations of the company are conducted by large dredges,with washers and lighters, valuable and costly property, afloat, and ,without any means of locomotion whatever in themselves. For the purpose of protecting th.ese li1achines and lighters, of conveying the rock dug to· the works of the company, of loading vessels coming for rock, of guarding and protecting this floating property from dangers of the winds and waves and changes of weather in these broad and exposed estuaries, there are employed constantly five tugs,and one dispatch boat. These are kept on duty all the time. On the day on which the pilot went for' tnetugs, one of them was absent on a trip to Charleston, one was in Beaufort river, some 15 ,or 20 miles from Coosaw, two were at work inCoosaw river, and one was at the works of the company, up the river. One of these tugs, the Cecilia, was near the ,entrance into St. Helena sound when the pilot-boat met.her. The pilot stated his request for two tugs to relieve a steam-ship in distress off St. Helena bar. The nJaster of the tug, persuaded thathe had no authority to act in the matter, referred the request to Mr. Lopez, who was at the time on his way down the Coosaw river in the dispatch boat ,Ida. Upon reaching the pilot-boat, and hearing the request, Mr. Lopez first thought that his tugs were too busy togo, but the pilot having stated that the steam-ship was a passenger vessel, he at once' ordered the Cecilia to go to her assistance, communicated similar orders to anothertug.,....theCatherine-which, was higher up the' river, and went himself in the Ida1ipBull river to the Oak Point, mines, arid from that point telephoned to the tug Reliance, in Beaufort river, to proceed to the assistance of the steam-ship. The Cecilia, with Pilot Santos aboard, went down St. Helena sound at her ordinary speed, and reached the steam-ship about 1 o'clock. Some short parley was had between her master and the master of the steam-ship as to the compensation to be paid for the service,without any sort of suIt, and this·was finally left for· future adjustment. The Cecilia placed herself behind the steam-ship, to act as a rudder. She topk up her chor, and under her own steam proceeded towards Port Royal entrance, some 20 or more miles away. This was about 2 or half past 2 o'clock 1>.M. Pilot Murray was aboard the steam-shipf in command. About 40r half past 4 o'clock the-tug Catherine canieup. Pilot Santos. by direction of Pilot Murray, was put upon her, and a line taken from the bow of the steam-ship. The progress towards Port Royal entrance was resumed, the tug Catherine leading, stearn-ship following, and the Cecilia behind as.a rudder, the steam-ship under her own steam, at moderate speed, the tugs being used to keep her head straight. Between 6 and 7 o'clock they arrived off the entrance, the steam-ship anchored, and the tugs went across the bar into Beaufort river, some seven or eight miles up, and spent the night at the coaling station wharf of the United States. The next morning, very early, they were joined by the Reliance, the third tug, and went out to the steam-ship. When the Reliance came the master ofthesteam-ship expressed some surprise; as he had sent for only two tugs. He was quieted by the reply of Pilot Murray that they
'tHE CACHEMIRE.
'521
all belonged to the same owner, and that it would make no difference. Reaching the steam-ship, the Cecilia resumed her position astern, and the other two tugs went ahead, one on the port and the other on her starboard bow; and, with lines attached, the steam-ship and the tugs-the former under her own steam-proceeded over the bar. The channel which theytised goes from the sea in the course W. ! N. until it gets abreast of the north-east breakers, when it abruptly changes to N. W. by N: ! N. At this point it is comparatively narrow, having this breaker on the right, and rapidly shoaling towards Martin's Industry on the left. When they crossed the bar the tugs came along-side, and they went up the Beaufort river to th'e quarantine ground, where the steam-ship Wal! safely anchored. The tugs returned to their business. One of these carriedthemaster of the steam-ship to Beaufort, so thll,t he could communicate with his agents. TheCachemire lay at anchorage until 25th of February, when she was taken to sea, and towed to New York by two large tugs specially engaged for that purpose. Santos piloted her and was paid both the inward and outward pilotage. The libel of Lopez and others was· filed on the 9th. That of the pilots was filed on the 15th of February. The pilot-boat is owned by the pilots and their apprentice, and is worth about $7,000. The tugs are worth about 000 in The claim is for salvage on the part of .the tugs, and for salvage also on the part of the pilots. The two'setsofclaimant's have no connection with each other. The cases have been consolidated for the sake of convenience. First, a8 to the Tugs. Were their services salvage services? These were employed in the private business of their owner. They were regulatly and 'fully occupied in thatbusiuesf!. They were not general towboats. They had under their charge and sole protection floating property of great value. When Mr. Lopez was informed that their serviceS were asked ,he would not consent. When he was fnrther informed that a passenger steam-ship was in peril, short-handed as he was, he sent three of his tugs at once, abandoning their business. Judge BRADLEY, in The Suliote, 5 Fed. Rep. 99, says that one of the purpolles of the' traordinaryaward of salvage "is to insure the most prompt, energetic, and Jaring effort of those who have it in their power to furnish aid and is given for the succor of persons or property in danger, by the sacrifice or risk of property, of persons, or of time. Lopez sent this assistance promptly and energetically, risking his property-, deprived of the protection of the tugs. Was the steam-ship in danger? She had lost her rudder. She was seeking a port. She had' but 85· tons of coal,-a supply scarcely sufficient for four days. In a tempestuous aeason, on alee shore, she was expof:'ed to a possibility of grave peril. Services rendered under such circumstances are salvage services. Williams & B. Adm. Jur. 117. It is pressed earnestly that the services of the tugs were mere towage services. "Mere towage service is confined to vessels that have received no injury or damage, and mere towage reward is paylibte in these cases only when the vessel receiving the aervice is in tile: same condition she would ordinarily be in without having
ex-
522
FEDERAL:lUl1PORTElh
or Th.e Rewarq,; 1 W.;Rob. 177; The ,4liC(1,3 :W. Rob. ;l38; jJfp(lotl11,ochieVl. Kerr, 9 Fed. 50; .The . Fed. Rep. 607. case had sustained a.s, ren<lf'lli'eq ital.:most1jfnot quite, impossible 'for hel; to get .across a bar intQ a ,harbor of a tug. ,having a channlillwith the abrupt Especia.lly,so at Port Royal, t4e in above, in which a ship of Qer length and size could wiihgreat diijiculty change direction. This,tllerefore, was a salvage seryice, but of no high .grade. ,The Bolivar; '1 WOQds, .397. ,There was ,no· to was mj.nimum danger to the .property in the salvage, Even: at night Jwtugs went for safety into the TlJ,e weather. wlls,calU1 and ..· The. time consumed was part&,tQf.,two days. must belIlaqeqponthecalculation of for time and trouble, (The qttp.Her:nw:fl:n:, 33 .Law J. with thesalya,ge Let the Cecilia have $750, the a.nd the :B.e1iance, $300.. . ,', . . The Pif,¢,a. r.he services rendeJiedby these were oftwo whiqh brollghtthe. tugs, and tne services renderedQY: thl'lpilots. The .first is a salvage serv,ice. (The New Orleans, 23 Fed. Rep. 901);) and of a low grade. Let itb!,!, at $200; See TheC1aB.BlJ,ndr(l, Ad(l,ms,80 Fed. Rep. 379. What of the pilots? ThtlY Oli their pilotage looking9utforemployment,'Baw ;tllis and her., They were attracted, it is true, by what they supposed were her signals of distress. EVEI.tl;s,o, ,as pilots they WElJ,"e bound, to go to her" ,and offer services. This daring and valUl;tble .Q9dy !tHowed lit, monopoly:ofpi!\>,tage. ll.+ld can Gompel the RQ.. of their, service in Qrder tp/lte;xperil3llCedmariners; sh0l;11d, :8,1:ways he; ,at ,hf\.pd to, aid by;,theiz: llkill and knowle9ge seeking a 'W4iJell.<Yf;ang in the strict line their. d,u,ty: theY cannot be salvors. Pet.·W8;The.£olus L L. R,4.Ac:lm. & ;E.2,9;.The longe,Andries,,$vvab. 226, 808. ,T() to sa,lvage reward they ,lAust be, renq13red bythpse underD;o legal obligati<;lll to. rep.der. theW. '!!he 1 Cllrt. 376. " "The pilot'l:l obligatiqn,tp the public is to cruise off ,pornor which heis commissioned; to qfferhis seJ;'vicesto "'hi9l:l, .he may suppose bound vessel. in distress ,fil'8t"though. Elhemay be more distant thal),.ap.other; and in many ca,ses of, his ,reJation begins and }Vith no, more than the:setv,iqe of a; p,ilQt. Wh!'lre the sh,ip Ie in distress,' beingdislllasted.,: sprung a Leak, ..other j}asua,lty"butcan still be nll,vlgatCild with whatever ,mIltY. 1:)e hel!drallght of w:at,erli tt ,will be a, case of ordinary :pilotage." .Lea),.· 4f.exa,nder,.2 "The Cuohemire was. abe :hadi>eep., uI)der steaP,l,JoI'l five.:.days, I10nd had come frpm ,!When C!l:lIle to her she again, under her,oW:l1 ,steam,using ;the to on her. :way into port. wa:;; So she,was qomplete in' l1'e.ljpect.·. Fed.' Rep. 603. In The Grid,,2J Fed. Rep. 425, .': #l4l, knowledglJ 'of a pilot is as to the depth of water, ll,n\!strep.gtP-jQUhe tides; and, wher\:ltl.!;J;ese items. of
knowledge only are used, or orders given based them, it can at no time be considered more' than, pilOtage 'service. It is also the duty of a pilot at any time, in order to prevent a vessel in his from grounding, to let go an anchor ; nor could sucb-an act be' considered beyond ra; what might be demanded of him as a pilot, or entitle him to ward." When Murray, therefore, went aboard of Cachem,ire; he went as a pilot. He took charge of her as a pilot. If it betrltle,as he alleges, that· he ordered the anchor out, he did soas a pilot. When ,the tugs came, and he remained on the Cachemire, his par;tner, Santosjwent into the leading tug. They acted as pilots. When they took the ship over the bar 'they were still in the strict lineof,their,duty, be , It would be contrary to public policy, to ,encourage pilots in converting.their duties into salvage services. The Grid,21 Fed. Rep.'425. But they rendered extraordinary services,and displayed extraordillary skill. They took over the bar, in a difficult channel, the disabl(!d ship, 346 feet in length, steered in an unusual way, without accident' or delay. They certainly are entitled to extra comperisation.Hobart,v. Drogan,10 Pet. 108. A pilot who brings iIi 'a disabled vessel iserititled to additional compensation, on account of the superadq.ed feElponsibility, hazard, .andrisk. The Warren, 12 N. Y. Leg. Obs. 257; Dexter v;'1'he: Rich7itond" 4 Law Rep. 20 ; Lovev. Hinckley, 1 Abb.' Adlll.'436; TM Grid, supra;: The doctrine is we11laid down in Hupev. The.' Dido; '2 Paine, 243. Pilots may become salvors ; but theY',mustnrststrictly discharge 'their duty as pilots. ' Thecil'cumstancE:!s tHider which they may claim' to' be considered as salvors Dlust, be such' as require' efforts,' peril to be· IIDcountered, labor or skill outside'; the line of theird Uti. When, however, there has been extraordinary personal merit or effort,' or unforeseen exertion or hazard,inthe performance of the 'service; even: though it be in the line of their duty , a court ofa,omiralty, in'its dig.:; cretion, may grant an extra allowance." . Under the circuillstances of this case; I give to these pilots-the two of them engaged-an tlxtia: allowande of $150 each. The services having been given, neitqef thJ claimant nor his insurers made any offer of any compensation w'hatevet to the tugs, nor of extra compensation. co the pilots I and no acknowledg"; ment of the services of the The cost,s, therefore, will follow the decree, and fall on the claimant respondent. Let a decree be entered 111 accordance with this opinion.
i
., Ii ,I.
'j
,il -;,;
"i-,(:
c24
vol. 88.
SPRECKLES
et ale v.
THE BRUSSEUI.
(DUltrict Oourt, N. D. OalifO'l'nia. February 28, 1889.) SALVAGE-COMPENSATION.
On an alarm of distress being !fiver. by the bark B., which proved to be on tire, tbe tug A. proceeded immedIately to the assistance of the bark, and duro ing a period of'about a balf an bour. and until the city tire'boat came up,fought the flames; and. while not succeeding in sUbduing them, apparently pre· vented the tire from spreading to a quantity of oil constituting a part of the, cargo. Aftervo:ards, when it was foundimpossibleto extinguish the fire with· out flooding the bark with such a quantity of water as would expose her to the danger of sinking, the A. towed the bark to certain flats, where it was haUled upon the mud and the tire was' extinguished. The vessel was valued inher dam,ag-ed condition at $15.000. the cargo at $55,312.56. Held, that the sum of $1,500 would be allowed the tug. . '., I
. " In "¥ilton Andro8"for libelants. claimant. ' evidence inthis case, in some pal'ticulars,is con,l;>ut,it)s not difficult, I thi,nk, to arrive at 8, the facts. 11 9f.the night an alarm was given along the city front, indicating that some vessel in the harbor was ,either QIJ. fire or in need of assistanCE!' The steam-tug Alert; which ,was. then engagfld in" carrying mails to, the steam-ship...Alameda" instantly got under way, ,and went in search of the vessel in distress. She was directed to thElharl,( Brussels, then lying in the stream, which proved tQ J?e on fire, kindled, as was afterwards ascertained, by incendiaries. nense volumes of sI,Doke were issl,ling from her indicating ihat the fire. was' raging with great violence. She instantly attached herhqse, and QOrnmenced playing two streams into the hatch,-one of them through '.4\ hose known as the" Regulation,Hose," and the other ihrougha hOlile o{smaller dimensi<.>ps.. She succeeded in so far subdu.. ih(lfire Joprevent the flames from rising through The however, still continued very dense, anl;l the fumes, probably ,of were of a peculiarly acrid and ter. The heat was also so intense that themenhanqIing the ,hose; had: to be relieved at short intervals. After a time, 'variously estimated at from 20 to 40 minutes, the city fire-boat arrived. She at once passed on board four lines of hose, and commenced playing down the hatch. It soon evident, however, that the water could not reach the seat of the fire, and that the latter could not be extinguished except by flooding the vessel with a quantity of water, which would expose her to the imminent danger of sinking at her moorings. It was then suggested-. I think by Capt. Douglas-that she should be taken to the Mission flats, and hauled up on the mud. This was done, the Alert performing the effective part of the towage service. Capt. Douglas states that before the fire-boat came up he had the fire under control. In this,