THE EXCELSIOR.
749
courage to', decree; in view of its influence in future cases, a reward of less than $2,750, over and, above costs and 'expenses, to a costly steamer, laden with a valuable cargo, and having full 50 persons on board, for picking up ano bringing safely port an infected vessel, found far out at sea, with a crew. cut down by fever to ·three worn-out, emaciated men, demoralized by misfortune and fright, and drifting they knew not where, at the mercy of the-elements. I am sorry thllt a just award bears so large a proportion, as the one due in this case, does to the value saved, which is only $7,700. It is to be considered that this is the cash auction value at Norfolk, and much below the mercantile value both of the ship and cargo. The ship is foreign-built, and cannot obtain an Amtrican regIstry, and so her valuation here at only $4,000 is only half her insurable value in France. It is true that in salvage cases we are ,bl;>und to decree upon values in ,the port of the forum; but, Ua large proportion be awarded, the hardship in this case is only apparent. I repeat, therefore, that lam restrained in the present case, in fixing the amount to be allowed foithis meritorious service, by the inconsid..;, erable value of the property saved. The expenses of the Bellver incurred by deviating some three days from her course\ and incidental to theMrvice, were about $1,000. I think the reward due for performing this service ought to be at least' $2,750, besides expenses. And therefore I will award the rou,ndsumof $3,750" and the costs of this suit. As the counsel for the libelants represent all the persons claiming to participate in this award, I will leave to them the apportionment of the alnount awarded among the several claimants as they may think just, subject to revisal and correction by the court after conference with them.' .,,'
as
THE EXCELSIOR. FRENCH ". THE (Df.s1:rlct Oourt., E. D. l7'irg£nm
August
5, 1889.)
l.
SALvA-a_SUBJECTS OF
The large flat-1)ottomed steamer Excelsior grounded 1)roa<1side on nearhtgh tide, on the eastern shoal of Hampton bar at Hampton Roads. Shortly afterwards another steamer tried in vain to pull her off. ana at the next high tide the most powerful tug in those waters, aided by the ,steamer's own engines, was unable to move her. Thereupon a wrecking schooner in charge of a professional wrecker. and with powerful apparatus, was employed, and, with the aid of a tng, tried during one high tide to, move the steamer ,without SUC068S, but at the next sU\lceeded in draWing her ofl.'J;he tide there runs in strongly. and the evidence showed that a tide sufficient to float her would probably have carried ber further upon the bar. Held, that she walt a subject of BJ:Id the services rendered Wllre salvage sel'iVice!I. The, Excelsior was wortb $150,000. No danger was incurred by'thewrecking sohooner or tbe tug. There was no agreement as toeompensatio'n, but"tbeoaptain ot a.blll ,fol" ,f8PP. wllich was Be4i., wreckIng company was entitled to $700 as salvage. . " 'C
ON BAR.
750 S. S.um-EVIDENCE.
vol. 48.
On a hearing to determine' the amount of salvage to be awardell for' pulling a Ilteamer ott a bar, evidllnOB all to the sums paid in particular instanCBll for drawing .dftothe\" vBssels which had gone aground III inadmissible. . . ".' , 'I, :'
.' In. Admiralty. Libel by W. H. for salvage seM'ices in drawirig thesteartler Excelsior off from Hampton bar. Dllcreefor libelant. Sharp&: Hughe8, for. libelant. " . While (}p.rnett, for respondent. On the 1st day 'of 1881, about 2 o'clock A. tbelil,rge passenger and ste!1mer Excelsior, on her way from Norfolk to Washington city, while aiming for Old Point "'harfin n thick fog, ancl,eQdeavQring to. avoid the shipping then lying in Hampton Roads, and feeling her waycautiollsly, drifted with the strong tide then coming in" andgroV-I)ded on the,eastern shoal ofHampton bar,aboull,OOO yards from the suuth end of 'Old wharf. .She gr(mnded. broadside on, to the east. She tried for some time to get. off by putting her at work, but these efforts only served to plant her higher andJUore firmly upon the bar. She finally desisted, and lay solid agrolllld on the edge of the bar, some 20 feet the channel. She remainl\di,I1 that position about 28ihOlJrS; that is to say, until about 6 A. M. 9nthe 2dof when she finally got off. She was a vesse1qf 1. ,,9 50 tons, 240. fliet long. and 40 feet wide. She was a. steamer ?f ha.vinl? been as a ferry-boat for transp.ortmg trams of .cars from ]llIldmg tolandmg. buttom. was exceptlOnHat; and she laid flat,upon the bar, in spch a manner as to reqiuiritlin power to pull her off.' During her stranding, the weather was good, and there was no heavy wind or sea. The time ueing December. she was liable to the perils of both wind and sea, and to bilge, and to being strained and damaged, even in good weather, in the position in which she lay. Capt. Parrish, an aged pilot, and onf' of the to. examine pilots, says the bar is a hard, sandy bar, but not a shilting or quicksand. It is about three bare at low tide, and miles long. The bar drops off very steep towarus the channel; sinking from a few feet to five to be stranded. fathoms depth., ,It ie*oPf?}nta,t which,fe,llsels Soon after the aground, the steamer Westover ran upon the bar, bows on; but got9ff, and the.p<tried, to pull the Excelsior off, but Jailed.,: .Before the1jtitewar,an ei!r.erienced seaman; now agent of ·. ofl', two or three. vessels that had stranded on the, bar; and during the war he got off steamers which ,prdv:¢dtQ beinpcb Capt. Parrish, who is Tather ,eXUberant in his-statements"ssYs' he ,has been on the bar "often pfships Qh it. has assisted three vessels off that ball in ,late the I1st·()fDecember the wind wasfrom the which dimhlishes the tide on the bar; but ¢.Ilthe,night of tOQk,hold of the Ej(C0lsior, it had been ,S,; S; ,E. At a1)ou,tJ2 I on "tlJ,enight : "the lSt the of '. , L'.".': .; l ,,' ".,., :
M.;
her
'Sampson,
i ;
THE EXCELllIOR.
751
wind changed to'tbe eastward, which t1;le,'tidethere. The tide on the rnorning of the 2d was 'fuller thaQ it had been the day before at The: tide iii these ,waters vanes'6rdiriarily' only about three feet,'and does 'so at this point; when not reached by westerIywinds. Capt. Parrish has seen the bar bare just where the Excelsior lay. There seems to be a considerable difference between ,the time ofthe tide in thechaonel and on the top of the bar, say somewhere from an hour to an hour arid a half; but Oapt. Parrish says there iSIio difference ()f this sort near the edge ofthe bar, (though he seems ,to tradictthiS'Statement inarlswerto subsequent questions in his cross-examiIil!.tion;)' Capt. Orelliri says, in certain 'winds the place is a -bad one for veilselsgoing ashore on Roads 'side' of the bar;, and that a heavy on a'Hsing tide,'without using an anchor to vessel going ashore, hola her off, would be driven up on the bar by the tide coming flood ; andthatifthecurrent was strong enough to cutout the sand fromnrider its' bOttom, a heavy vessel' would wotk down' and become' JAore,or tess imbedded in the- Eland; vessel would not work dowril!lo much as onewitli a sharp bottom. 'It is sttong currentS a bottom ,of sand quick shifting'. ,In' of currents; may be very firm. a'sarid'y bottom,like that under the 1Hins been already'said that,soon aft!el'the Excelsior stranded. the steati'lel' Westover wlfut h'ead on upon the ,same bar, near by,but backed off ,and then, havinlr pulled at the success, gaveup the nndertl;tking. ,,'The'Excelsiot was next tttken hold of by the steamtug Sampson, 'of Bliltimore, a new hoat,stated to be the most powerful tug belonging to .The Sam pson came t6 the Excelsiorabc)\it i She got hold of day-break; or a little tiefore 6 o'clock i;' M.' on the the steRtnel"s hawser -without delay, and'tVl'lnt to pulling on her. The hawserwa.s an 8-inchone"and "was a preft)' good'rdpe," inthe opinion of Oapt. Starke of the BampSon. 'Repulled and on the hawser for sOIDe 'hours. At6o'clock,wnen'he began, the tide was ath1gh water." ;He broke the haws.er twice. After pullirig'6ne hour and n; half, the steamer; which had given aid with her own engines, blew the :water out of one' of her boilers in order to lighten herself, but kept steamin the other and' kept it ilt Wo'l'k, uritil within a few rr:tinutes before they told. the tug to stop. 'Capt. Starke says it was the power of the tbg that broke the' rope. The tope had been bought new in the preceding July. Capt: Starke says that, 1n his jUdgment, it was impossible for any tug to have pulled the steamer off'the bar as she lay when he got to her and when he left her; and that he told her master, CatJt.: Beacham, so; that she was too high, out of the water to admit 'of it, and was hard .aground fof-ward and aft; The -like testimony is given by seveial witnesses of experience irisuch cases.Oapt. Starke of the tug Sampson says that he returned' to' the steamer on the morning of the2d, betbre and that the tide then was worse than it had been on the previous'morning.· The testhnony is that tugs, in pulling at a vessel in the '{londltion ill which the Excelsior was, if she is largeand' hard aground, 8re#itllout sufficient purchase to draw it off; having none' other than
752 .
FEDERAL
yo1. 48.
the resistance of water; upon the Where an extraordinary of expower,has to be llPplied ,to the strandeq vessel, tugs are l;lJ;tingit; and the usualcou,rse,is to obtain the requisite power by plantmoreanchora out the water, and attaching between them and the grounded vessel the usual, Il1echanical apPfl>ratus for heaving her afloat..The tide having considerably subsided by the. time the Sampson ceased to pull at the Excelsior, on the morning of the 1st, nothing could pe done until the ensuing afternoon, and the approach of another high tJde. ' ,. ' . .' . On the morning oft,belst December, .the agent of tpe, Excelsior in .Mr. Keeling, ,an interview in that city with the libelant, If. a wrecker, on the subject of getting the . Capt. the oW,ner of the wrecking schooner JosephAllen, and was ..... mariner and professional diver and wrecker of ,years' and was known to Mr. Keeling a8such. After had passed, M;.r.Keeling and the agent of the Excelsior . Old. Point, Jl.nd per mll,ster, Capt. Beacham, a: telegram came fr<»p Old. Point, directing Capt. French to come. with schooner, anchor, cables,.anq a good strong tug-bQa,t,atonce, before 3 o'clock P. M. Capt. Frenc1l, (accordingly .to proceed, with no stipulation as to the compensatioq receive, but giving own assurance that :the charges should be "reasonable." At no time befo,re the service, w,hether in conversationwitb Mr. Keeling in Norfolk, or Capt. Beacham on board, the Excelsior, <:lid Capt. French mention any specific sum as his. charge, but said invariably it should be reasonable; .and refused to mentiQnanysum.· He did sayononeoccasion on the steamer, to Capt. that he would consu,lt Capt. Joaeph Baker ,(who is the the ,ship was oldest wreclter in Norfolk) as to what it should be. got off, and all the parties were Capt. Frenqh presented a bill $800 for his services. ·Ca,pt. French undet;took the job at the instance ofMr. Keeling,,some time after 11 A. M., on the 1st December, and at once. made ready the schooner Joseph Allen, which he provided with. tackle, wrecking apparatus, two Ilncpors, one a .very heavy ancho:' of 3,500 Ips., a strong 12-inch hawser., a chain cable, and a hoisting engine, the largest used by the. Baker Wrecking Company, &nd set out for B;ampton bar in tow steam-tug Olive Bakel', Capt. Chase, master, stated to, be the strongest .and best pulling tug in the harbor of Norfolk. ;Capt. French took along with him his mate, C. H. Godfrey, a profesdiver and ·wrecker; and four sional wrecker; Charles bon, a oI;five other men, besides the crew qf the Olive Baker. He arrived at with these vessels, wreckers, an.d wrecking appliances about .3 P.M., having left Berkley about 1 ,P·. M. On being asked by Capt. Beacham, Capt; French at once replied that he thought it would be impossible to pull the vessel off without laying anchor and cable. The anchor was laid S. E. of the steamer by the aid of the tug, and the cable from it was passed through the side chock of the ship, to the schooner on the starqoard quarter of the Excelsior. The cable was made taut in time for the tide. There was some delay in getting up steam in the
THE EXCELSIOa.
753
hoisting engine, from having to fill the boiler with water; and there was some interruption of work afterwards from leakage in the boiler. Capt. French say-sf that they got up steam in the hoisting engine about half past 4,:and that they first hauled on the cable to make it taut about that time. Resays: ' "Between 5 and 6 P. M. of December the 1st we were laying with steam 00 the hoister, cable taut; waiting for the tide to rise, so as to heave on the ca· ble; and abol;lt 6 o'clock we judged it to be high water, or a little after. At that time"',ewere pulling,as hard as we .could on our cable, and about halt cilptain of.tb.e Excelsior thought, if the tug would hold and help, w,e might start her. I didn't think there was lj.llY rse.We called her along-side. ' We gave Capt. Chase a line, and he took hold about 7 o'clock, and, we :1Vere 'heaving' on the cable all the time. 'He pulled steadily at flrst; but the captain thought;, by. backing up and 'snatching her,'he might moveber. ,lie tried that several times, and in the last pull parted the hawiler, nqt start her." ' , maden6 further effort that night, after parting ,the hawser·. MP-b}'qodfrey, of AllElI1, says: ' on the cable and pUlling on the tug at high water, and did notsllcceed in moving her 'with cable and tug;" , , :1":': : . ,
He says, the six-foot mark of the Excelsior was out of water at the o'clock,-'-that is to say, at high tide. The witnesses of the steanier say that one' end of the Excelsior was pulled around on the occasion abdut 11 feet on (he evening of the 1st. I think this statementis improbable. Therewas thus a failure on this evening to get the ship off by heaving upon the anchor and cable, pulling by the Olive Baker, and, from Capt. Beacham's testimony, heaving on a 1,250 pound anchor whieh the ship had out. So the effort was given over for the night,afterthe. tide had begun to subside. I do not think it worth while here to enter into any consideration of the difference of time between the tides on the bar and in the channel. I am sure that when the witnesses spoke of the tide in connection with their efforts to get this vessel off they meant to speak of them as they were at the particular place where the Excelsior lay, and where they were making their exertions to get her off. I cannot believe that they meant to speak of the tides anywhere else; and I feel it to be useless in this examipation to considerthe variation of the tides in different places. I caunpt believe that the'tide in the channel would be at high water many moments .earlier or later than on the edge of the bar shelving steeply and abruptly down into the channel. Capt. French, with his schooner Joseph Allen, lay by the Excelsior all night; and· ordered the Olive Baker, whioh went off to an inner anchorage, to return before daybreak the next morning. The Allen changed her position from the starboard quarter to the port quarter of the Excelsior, and grounded in the night. Her draught was four feet and a half. Mate Godfrey says: "On the ne:xt morning, at3 o'clock. we commenced pulling on the cable after getting up steam; we commenced first to pull on a triple purchase, and, when we found that we could not move her, we put an extra tackle and comv.48F.no.9-48
.
754 "'..
FEDERAL " ;' j '., ':' , , ' .'
RE1>OkTER, , '"! " '
vol. 48. ' ' '
menced
on that. As soon we com menced pulling on that, she couling off. about qual'terpast 5 that morning.:' We pUlled her 20 feet;'fls' guess llit, byca.ble, 'which :fl100kiedi at when it was puUedin. .The Olive Baker had come ",t 5.o'clock,tq8;tii JDorning..·Between 5 and 6 tbe Excelsior gave bel' a hawser by Capt. 9rders. She went ahead, and pulled the Excelsior's around."
Charles' !zon,· the confirms the on being Rsked whether, "durlng the timetbij Excelsior'was moving that twenty Jeet and the tug .were to get:hetofl', or. It. waS solely by Ae/:lvingon thee:aple,;; answered: 'Wiptogether ql.qle.The tug ,.was not pulling on her,nor were theengines<:>f moving," the timesbe.was 80 tn0ving. French Says:) , "i'cll.lled 'Childes lzorfto get steam 'sb'out 201' . Hurned out shortly afterwards, called ail hands, went aboard'the Excelsior, and got togo tQwQrk, 'Pulled onour faU that led our main pUl-ehluia on the hoister, puIleq all we.:could pUll well, andtlien put on a buff tackle and pulled awhile.'fJlen to wiilt tor the tide; Did nol move the. lwister ' again, her before ,We &topped.,:Iu..il few: minutes we and found she was coming.. This waa:abo:l,Jt half-past S, A. M. We pulled ller off about twenty feet. Got about twenty feet on our and found she was coming a little too 6l1'8y, for a buff'tackle. We toolvthat off, and led 'the mainpllrchl\S6 aboard cif the schooner again, then caUecLtbe Olive Baker to take a. lin", .. a.nd told the captAin oitlla iExcel,sior to work the port wbeel, that was On the. loshoresIde. We wentahealJ on OUl hoister as right off. .She was afloat about 6 fast as we could, and the o'clock, I jUdge. Olive Baker took hQld of her, and justabollthall time'to 'tighten her line when she wentright()ll'. The hour'of high 1ng; as near' 88 I can jUdge, was t'rom' half-past 6 to 7, with' that easterly wind. If· we had bad no: anchor or cable there, the: effect of a strong .north. easterly wind and swelling sea that day upon a stranded broadside on the outer ledge of the bar have been, ,not tl) take the off, but to put her' high",r up. ".", . . . :. . . .,Capt. Beacham sayll:" . "At 3 A.M. next morning the second offi<'er awoke:ind, and saId the tugboat Sampson was tberelJRnd wanted to:kIlOW if I wanted hi III to pull at: me l\tlligb watllr. I said.-No,' we wQuldeaaily get oft tug we had. ,I got up atbalf-pust 4. lind 9.n the The first man 1 saw was French. I him to take coffee. He said he bad had coffee. I asked him ifbe had steam. He said, -Yes.; I toltlhim 'he had,better pull oil her a little, which he did, to get the slack of his Iiawser up. I tlren measured the water ort our starboard side, (Which was the channel side.) and found Sfeet6 inches of water. Then t.he tug-boat Baker.came·. gave us his line by ,request of one of my 1 think, put it in our o.n tlwstarboardiljde. us the.line on NS,own accord,and I then mYllngiQe,erlj to .\york lUi engines one ahead and' one back tosbake her. I \yalited to EWe if she was afloat. I found shewas1atloat. French was then standlpg on'our starboard side with an oar oveli boal'd: AUel' the tug got steam: on us' I told my englneersto.go ahead on boih engines. The hoisting engine.wasnot at work at this " ·. Whtjn StH)t right ,a:head, the bow ·. went lihead',so t<¥it that the Joseph Alle,J;l broke awar.!roffi ·· We. off, the around to the hawaer of the Allen, and we then came to:Norfolk under out oWn steam." ". '.: , ( , !
755
I do not know that this evidence of Capt. Eeacham necessarily conflicts with. that of Capt. French. Izon. and Godfrey. They would seem to have got the vessel to moving, and to have brought her to the extreme edge of the channel, in 8 feet 6 inches of water, unconsciously to Capt. Beacham. She seemed to have moved so insensibly that Capt. French could not verify the fact except by putting an oar overboard to mark the It was after the Excelsior had been thus brought to deeper water that Capt. Beacham ordered both his engines to work, and that the ship" shot off." Capt. Beacham makes statements in his tevidence, doubtless in perfect good faith, which I find it hard to credit. He says the hawser of his ship, upon which he depended for the Sampson to pull him off on the first morning, and which he allowed the Olive Baker to use the first evening and second morning, was "very rotten anyhow." He says that he would have been lying with his fine ship on Hampton bar till now, before he would have consented to pay $800 to Capt. French to get her off. He says that the Excelsior could have lain where she was a year without reoeiving any injury,a,ld this, whatever might be the changes of weather or sea. After sending for a wrecking schooner, with anchor, cable, and other things,and brinKing professional wreckers and their appliances to his vessel's side and aid, he repret;ents that he did not wish to use them; speaks of, Capt. French's movements in planting his anchor and rigging his hoisting engine and cable as "fooling around" his ship; and implies finally, if not stating in terms, that the assistance rendered by the wreckers on the morning of the 2d was of no avail or efficiency, and that his vessel went off the bar easily when the tide came. for which· he had boon waiting; went off by force of her own engines. I can't help feeling that such statements, made in excellS of zeal, and no doubt made in good faith, impair the value of Capt. Beacham's .testimOP'J. Th9ugb he testifies, if not expressly, at least by implication, that Capt. French did nothing on the second for. the ship, yet Mr. Plant, one of his ship's stockholders, who was on board, and who was up and awake all night. says that he timed by his watch, and that Capt. French was at work an hour and fifty minutes b.;>fore the vessel mQverl. If she moved at half-past 5, then Capt. French had b.eenatwork .since 40 minutf:S lifter 3 A. M. If Engineer McDonnell testifies rightlYt when he says that his order to .his fireman was to have steam at5that morning, his engines could have had very little to do withgeUing the ship in motion; and this inlel'ence is the stronger from the thnt Capt. Beacham seemed unconscious of what Capt French was . My on a heavy prep9nderance of testimony in this case, is. that the Excelsior was stranded beyond the power of her own engines .and IUlchor and cable to pull her off; that the use of her own engines in jsuch aneflort could only ag:gravate her predicament; that she was planted on.the edge of that bal; so firmly that it was beyQnd.the ,capa,city of the most powerful tug .to get hel' off; that the use of.tpe most pQwerful hoisting engine, cables, aJ;ld
756'
FEDERAL' TIEPORTER,
tackle ,accessible in Norfolk was necessary to her relief; that application was made to a professional wrecker at Norfolk for wrecking appliances; and tbattheywere furnished by the libelant, and the wrecking service was reri'dered--successfully rendered-by him without previous stipulation fixing the amount of compensation for the service. Evidence was taken by the reflpondent, before the commissioner in this case, of Capt. Howes. master of the ocean steamer W. H. Crane, designed to show what Capt. Howes had paid for tug service and other assistance he employed when his flhip was on one occasion aground in the upper part of Chesapeake bay. Evidence was also taken, by the · respondent, of Mr. Plant, as to what he had paid for getting Bome other vesseloff that was, once grounded hear the mouth of the Potomac river. It would have been competent to ask either ofthese witnesses, as experienced steam-boat men, what price per day or hour was usually paid to powerfultugs employed in getting off vessels stranded on bars, and what was the usual costof labor, ahd what the hire of wrecking apparatus in work; but evidence (taken withoufprevious notice to the opposite party) of some of the particulars of such a service, and of but one witness as to that service, there being no pretense that the whole truth or facts are given, especially where most of the service seems to have been performed by contract, is not competel1ttestimony in any case under judiCial examinati(lO; and I db not feel at liberty to consider the testimony given by Capt. Howes, or that given by Mr. Plant, respecting the vessel or vessels which they respectively alluded to as stranded in the waters of the Chesapeake. . In the sketch of the evidence which I have thus given, I Have had reference almost exclusively to the question whether this was or not a case of salvage. It is u'lelesS' fot me, after the elaborate manner in which the question of salvage wa.s treated in the' recent cases of The Sandringham, 10 Fed. Rep. 1)56, and The Mary E. Darm, 17 Fed.,Hep. 353, to discuss here. at length the, law of salvage. That this was' a case of salvage ,is Clear. The ship was hard aground broadside on, upon a ledge of sand, where every exertion of her own engines would only tend to plant her more firmly upon the bar. She repeatedly tried these, with the assistance of a cable heaved upon her own large anchor of 1,250 pounds, and of the propeller Sampson and Olive Baker successively, the most powerful steam-tugs in these waters; but tried in vain. Even the use of the, large anchor and cable of Capt. French, aided by Her own heavy ancho):' and cable, and her own engines, and by the Olive Baker, was unava:iling to the Excelsior on the evening of the 1st December. I cannot entertain a doubt that it was by the agency of the libelant's anchor and cable on the mo:rningof the 2d December that she was finally drawn off. That she could not have got off with her own engines on that morning, ,against a higher tide than that which carried her on the bar on the morning of the lst, reinforced by a strong easterly wind,but would have been driven further on the bar, seems to meto be almost as certain as a. mathematical truth. It is clear. therefore, that· the vessel was beyond the reach of self-help and self-rescue. Shewns also in a situation be-
THE EXOELSIOR.
767.
yond the capacity of the most powerful steam-tugs to rescue her. Two of these and the steamer Westover had tried in vain to pull her off. She was therefore a subject for salvage. She employed wreckers to perform a salvage service. She was actually rescued by the wreckers, and the service performed in rescuing her was a salvage service. Being a salvage service, this is a case for a greater reward thah that of mere compensation for work and labor done. The libelant is entitled not only to such compensation, but also to a reasonable reward as bounty for his enterprise, and Jar. the use of expensive wrecking apparatus always liable to loss, wear and tea:t:, and deterioration. . As to the compensation, the respondent concedes that this may be $300, by the deposit of that amount in court. I think that on this score a .fait allowance would· b6$350. .As to reward. or bounty, the is not one to justify a large amount. A vessel ashore 00 Hamptoo.bar is probably less at risk than on any other ground on the Atlantic seaboard; and wreckers, wrecking vessels, and wrecking apparatus areeprobablyas.little at risk in hauling ships off that bar as from any othrshallow place in this part of the world. There is no element iQ this service which calls for more than a moderate award, except theextraordinary value of the vessel saved, (her value being proved to be $180,000,) and the success of the libelant in getting her off speedily and unharmed. I think, therefore, that in such a case as this the idea ofprecentage must be discarded, and that a lump Bum should be given as bounty, having no direct reference to the extraordinary value of the Excelsior. This may be the sameM the compensation which has been named. Iwill give a decree for $700 and costs. This amount is within the sum advised by Capt. Joseph Baker before the libelant rendered his bill for $800, expressing his own estimate of the value of his services, and but little within that estimate. I do not think I would be justified in this .ease in a higher award than the libelant's own original demand.
758 ,!
48.
THE .I t
i':
DAVIS Coun
v.
CARGO'OF CHALK
et
of Appeals, Second CirC'ltit. December Term, 1$91.)
1.
Illt:Hu1lBA,GE-CuARorER-RATE OF DISCHARGE OF CARGo-CUSTOHOF PORT.
The lcharter of a ship for a cargo :of.8,000 tons of chalk 'provided that (largo "all fast all sbe .candellver." She was capable of discharging more than 150 tons per day. WbUe the' carll:o wall being dillcharged, the consignee noti1led the ship "that the customary delivery of chalk at'this port Is not over 150 tons per day, " that he could Ilot take care of more, and that he ,would hold the ship respODllible for any over that amount put on the dock. Held, that the shIp, under her chllrter, was entitled to. deliver as: fast all she could, without reference to the custolll tlle ,port, and that the consignee, havlng provilied inadequate facilities for such rapid discharge, was liable for demurrage on account of the ship'. delay thereby caused. . .
B. SAM_PI$C;:HAKGE FlIOH SlNGLB HATOH. .' ' The liMp had two hatches, from which cargo could have been Intotwo lighten of' 'proper size on One side, but the consignee did not pl'ovlde lighters capabli,\ot cargo fl'9lJ1,bp\h tbe same time. Held, that the ship did DOt lose her right to demurrage byrlot breastingout, 110 as tc admit of diScharge from both sides ()f the venel. ' 42 Fed. Rep. 282, modifled.
Appeal from ,the .Circuit, Court of the United States for the Southern District of New York, In Admirolty. Libel by EbenezerH. Davis against a cargo of chalk, lately on board of the sbipGlenfinlas, and Howard Fleming, consignee, for demurrage. Decree.. .(or libelant; Respondents appeal. Modified. ST.\TEMEIfl BY TilE COURT.
The sbipmen6nlas am'ived at tbeportofNew York on July 5, 1889, with a cargo of 8,000 tons.of chalk consigned to Howard Fleming. She is a large'vessel i , 2,148:tons regiIlter, 280 feet long, and with four hatches. The cargo was brought under a charter which provided that she was "to discharge at two safe wharves, as ordered; any expense incurred * * * in shilting from first to second wharf to be paid by charterers, or so near thereunto as she may safely get, and there, always afloat, deliver the same." It also contained this provision: "Cargo to be supplied all fast as vessel can load, and to be discharged as fast as she can deliver. * * * If required, ten days on demurrage, over and above the said laying days, at four pf'nce per registl::red ton per day." This would be $175 per day. The Glenfinlas prom ptly notified her arrival to the consignee of the chalk, and asked for a berth, repeating the request on July 6th (Saturday) and July 8th. On the latter day the consignee asked the ship to select a dock where lighters could go along-side and rt::ceive cargo, promising to place lighters. along-side as soon as she gave notice she was berthed. The ship secured a berth lit Atlantic dock that same day, gave notice, was in her berth ,ready to dif:1charge at 6 A. M. Tuesday, July 9th, and rigged two hatches with tackle. No lighter came till 5:30 P. M. of the 10th, too late to commence discharging. Work commenced on Thursday, the 11th, and continued the rest