800
FEDERAL REPORTER,
vol. 40.
when this rule of compensation obtains, the value of the properly towed is but slightly, if at all, coqsidered by the courts. in determining the compensation to be awarded.' A case of this sort was Th6 Amerique, L. R. 6 ,P. C. 46a, cited on the brief of counsel for the underwriters. In that case the vessel\was found a few hundred miles out at sea, abandoned, with some little watE\r in her hold, aud was towed and navigated into port. It was a Frencp. steamer, thRt had been deserted in a panic. The fact of being aqandoned, and of having a little water in her hull, were the only salvage ingredients in case. In its prominent features it waaa case o( mere towage; of easy, safe, and inexpensive towage. The to have court below was,held, by the lprds of privy council On erred, hy gjving top much consideration to the salvage features of the the fact that it was little else than a case of case, and, by towage; and the lords reduced the award to about one-tenth of the value sav:ed. the,result of their decision; not its language. Neither does the case of Thetis, 3 Hagg. Adm. 14, 2 Knapp, 39Q, cited by underwrit,ers' c01.1n/rel, teach the doctrine of a discardal of proportions in esticases. ,There, the property saved was specie mating treasure ,which had been sunk in$ll inlet of navigation in a vessel of the The salvage service WaS performed by officers and men of the :navy, ,and consisted in Slow and deliberate measures, protracted ihrough ,more ,than ,a yea'r, for recovering the specie; no risk attending the work, except of disease in a tropical climate, and what is incidental to diving operatiqns. The amol,lnt recovered was the immense sum of '750,900. of An application ()f the rule of :proportion here would seem to have been' repelled by strong considerations of justice. Yet it in fa<;t if not in form; the of the case thus describing the IJ,ward:, ",One-fourth of the . gross value awarded. * * * quantity of treasure recovered, £1,57,000; the, whole sum deducted for salvage, admiralty claim, and for expenses being £54,000." In the of The, 14 Fed. Rep. 58.0, (the last one cited by underwri.ters'oounsel,Hhe bark saved was decided by the court .not to have l?een derelict;' whi9h eliminated from the case its principal element of and.renliered it a case mainly of towing,:-of towing a sail sel jp ice ,five miles off shore, and bringing her into port. p/flay,labor"antli sO,me.,difficulty attend,ed the servioe; lIolfldthe court ,that the qf that did not call for a large award. by proportions of value saved, and allowed $2,500 to a pl,lbUc ice-boat {or three days' towing. . On this E;lubject.()f propottions, t};1e 9a.ses show generally that the old of allowing, the salvors in every case, half the vlllues saved, no longer obtains. I,nfleed, that rule came at last to so revolt to it they went far tothe cqurts of admiralty that in their wa,rdE;l, tne:other and manifested a temper to discard the idea of theulselves too much in awards' to the nr8portjons, 8,nQi q'PJ4'!9$um merwit esthnate of salvage services. There has latterly, how\Io,recurrence, except in cases of t()wage,. from extreme views in ,dir!'lction, to the middle ground of adapting Uw amount llllQwed .- ' . ,. ! ·
KIMBERLEY.
301
to the circtlmRtances of each case; giving always the quantum meruit, and giving also, when the case calls for generous treatment, a liberal bounty, proportioned to the value recovered; taking into consideration, also, the value of property lost; giving a larger proportion where all the property is saved, and a smaller one where more orlessaf it is lost. In the case of the Kimberley, now under consideration, all the property was saved, and, on that score, would admit of a larger proportion in the award. In my decisions in the cases of The Sandringham, before cited, and of The Egypt, 17 Fed. Rep. 3.59, I discussed very fully the doctrine of bounties, and the rule of proportion by which they were determined. In the first case there was no appeal; in the second case, my decision was affirmed on appeal. They constitute, therefore, the law of this court on the subject of bounty and proportion, and I have only to renew now the application of the principles then proceeded upon. The most plausible objection to bounties is that, property saved is used as a fund to stimulate efforts to save life and other property in which the .owners that saved have no interest. This objection' cannot be urged :with any consistency by the real defendants in this ,case. The owner of the Kimberley is not hereby counsel. Though here in form, he is here in apassive only. The persons really contesting the cl.aim of the libelants are the board of underwriters. Now, the practice of iug bounties for salvage service is tile principleof .bution from the fortunate for the benefit of unfortunate, which is the principle on' which all in.surance rests. .dangers of the wild and stormy coast .from Delaware capes to the Gulf of:M:exico are so great that many vessels are lost in spite of the most arPuous tions of the wreckers, who lose their labor and property, and risk their lives, in fruitless attempts to save them. So much is this the case that the business of wrecking cannot be carried on at all on the .southernAtlantic coast by individuals, and can be proseauted only bY.<lPrporations thoroughly organized and equipped )Vith men ;and material; and,these are more frequently engaged' upon cases which bring no ,remunerlltion than upon those whitlh bring reward. When, therefore, a ship and cargois rescued from the jaws of destruction by men who haveheen engaged in numerous losing salvage undertakings, it would not seem reasonable to deprive theD;l of tlW benefit of an ancient principle of maritime reward, and confine their compensation to the quantum meruit opere et labore due them in that particular case. The salvors in the case under consideration were a corporation organized under the title of the Baker Salvage Oompany. It was argued at bar, though I do not find that the point is made in the underwriters' brief, that as salvage ,awards are personal" and the service personal, the libelants in this case, being a corporation, c.annot be recognized as salvors by the court.. point was considered a.nd emphatically overruled by the United States supreme court in the case of The Camanche, 8 Wall. 448, and by court in the cases of The Sandringhamand The Egypt, .and it may lawin the United that an incorporated combe accepted. as for the purpose of engaging. meritorious of ,pany,
I'EDEIUt 'R:E:PO:aTlliR,vol.
40.
saving ships in distress, and: 'devoting themselves assiduously and reputably to that, pursuit, may be gi1l.nted salvage rewards 'as liberally as natural persons so eng8gedmay'be.' , Underwriters'counsel make!l.ls() the point that the fact that the salvage services in the case at bar :were rendered under a contract precludes any claim foi'enhanced reward' on the ground of any supposed impracticability th,at might have existed in December last: of procuring the services of other wreckers in saving the Kimberley and 'her cargo. I have notltllowed that consideration into my view of the service rendered'in this case. It has neit been claimed on behaIfof the salvors that they are Eintitled to a'larger allo\"Vl1nce on anysttch supposed ground; and I do not tMink'the fact that' there were no other wre'ckers available but themselves', it it weres. fact, lshould enhance their compensation; I shall not allow it to influencerny'own award in the case. In their fifth point, underwriters' counsel remark: "Aside from the facitthat thecontracttliidenvhieh the services were rendered platedthat,the'libelants should re:ceive compensation for their services i11 ariy event," the proofs show that they had security always in hand, etc. 'The saine thought is suggested In other passages of the brief. The contract was, in express tertus, Ii. contract for 'salvage, made by the representatives ora/wrecked vessel'imd her cargo, while in imminent peril, 'With a "salvl\ge"company,to "save" the cargo; and to save the ship herself, ifpossible, :or, failing in this; to strip 'the ship, and deliver the cargo, or so mlt(Jh 'as should be sa.vel, at NJrfolk, and the ship, if saved, at Norfolk Ofother place. "It was a contract for saving. It contemplated the saving of property. It provided how the "'salvage" earned should be ?xed' and The comrensationprov.ided for was to be for savmg property, and was to be a salva.ge compensatlon. If the contract, in the use of these terms and expressii:ms, contemplated anything more distinctlythim another, it'wa5 that·therewas to be no payment except for saving propel'ty, and that this lisalvage" wail to be fixed by an admiralty colirt, 01' by arbitration,lls, the ,representatives of the ship and cargo might elect. Whilethere JSM express Clause declaring that nothing was to be ,paid unless f6r'something saved, the' terms used by the contract, in' theil' technical'purpd,tt,as well as hi their ordinary mean-ing, exclude the ideaofanythirlg'becoming dUIHo the salvors unless was saved. I cannot, therefore, entertain the suggestion that 'there wits salvage 'contract for a salvage serv(iee,upon a salvage' compensntioi:r, on whicH nothing would be due or learned' unless some of the property'in peril of the sea was saved. The supreme <lourt, in the (Jase, held, exp'resslyand with emphasis, 'that "nothing shott of a contrac'tto:pay a given 's11m 'for the services to "be ren:dered, ,or a bihding topaY'8:t all events, whether sue''Cessful or unsuccesSful hi tneentel'prise, 'will Its a bar to a meri''funous claiIl1;forsalvage." underconsideratio'n was 'not a ddtitractto pay:n sum. Itwas'nota l;>indingengagement to pay anything; tIiat beil1gleftto arbitration., It was not 'a,contract to pay at 'all' eVentS, whether ilil'c:icessfulor unsuccessful;: fdr'compensation was to