COMPAGNIE COMMERCIALE DE TRANSPORT, ETC., V. CHARENTE S. S. CO.
921
the statute, I believe, from ita language and the usual definition of the word, that she was "engaged" in violating the law at that time, but I prefer to base my decision upon the broader facts and principles already stated. A decree of forfeiture in accordance with the prayer of the libel therefore be entered against the Alexander, her boats, tackle, apparel, furniture, and cargo.
COMPAGNIE COMMERCIALE DE TRANSPORT A VAPEUR FRANCAISE et 81. v. OHARENTE STEAMSHIP 00., Limited, et al. (Circuit Oourt of Appeals, Fifth Circuit. December 12, 1893.) No. 144. L SALVAGE-WHAT CONSTITUTES SALVAGE SERVICE.
A steamship broke her propeller shaft while on her way from Tampico to New Orleans. A strong norther had been blowing the day before, but both wind and sea were moderating. Her sails were set, but, owing to insufficient Wind, it was difficult to keep her upon her original course, and she was consequently kept off to the eastward. Her captaIn was confined to the cabin by an accident, but he had efficient officers, and th sails, rudder, and steering gear were in perfect condition. Under these Circumstances, a passing steamship was asked for towage, and, at some risk to herself, a wire hawser and heavy chaIn cable were got aboard, and the vessel towed to New Orleans. The towing vessel was delayed two days in arriving at that port. 'Heir!, that while the danger to either vessel was not extreme, yet the service was a salvage service requiring a liberal reward. A salved vessel was insured for fl,400,OOO, but her value, as fixed by a survey after arrival in port, was $110,000. The district judge accepted the full amount of the insurance as her value, Which, added to the value of the cargo, gave $379,800. Of this amount. one-twelfth was allowed as salvage. 'Held, that it was error to accept the amount of the insurance as against the positive valuation, and that sufficient compensation would be given by taking the latter amount, and allowing the same rate, which would give $18,716. Cargo carried by a salving vessel is not entitled to share in the salvage when it receives no damage or injury because of the service; nor does any implied agreement to share therein arise from the acceptance of a bill of lading in which the right to render aid to vessels in distress is specially reserved. The Persian Monarch, 23 Fed. 820, followed. The giving of a liberal proportion of the salvage awarded to the officers and crew, the direct actors in the service, is considered the better policy, and of $18,716 given as salvage $5,275 was decreed to them.
2.
SAME-COMPENSATION.
8.
SAME-DISTRIBUTION-CARGO OF SALVING VESSEL.
4.
SAME.
Appeal from the District Court of the United States for the Eastern District of Louisiana. This was a libel for salvage filed by the Charente Steamship Company, Limited, and others, against the steamship Dupuy De Lome, of which the Compagnie Commerciale de Transport a Vapeur Francaise and others are claimants. There was a decree for libelants, finding the salved property to be worth $379,800, and awarding onetwelfth thereof as salvage (55 Fed. 93), and the claimants appeal.
922,
'"
J
FEDERAL
vol. 60.
De to tbellllpellant company" 0p<a, v91age from 4ntwerp, to New Orleans, at about half-past 2 on tbe morning of May" 22; 1892, and wblIe 97 mlles on bel' course" from Tamploo'towards New:Orleans, broke ber propeller shaft. There bad wen' a ,strong norther blowing at TIlmpico the day befOre, causing quite a consultation of his officers and the principal members of tbe crew, and it was determined to endeavor to reach Tampico under sall. All sail was made, but from insufficient wind it was dlfUcult to put bel' on her course to the westward, she keeping off to the eastward. At about 8 o'clock a. m. the steamship Engineer, belonging to the appellee company, wbicb had left Tampico'ti.Uo'tit:alx hom's after the Dupuy De Lome', bound also to New Orleans, hove' lin 'sight, "a bOat was 'lowered" from appellant'slOte!l-lllsbip and sent, on board, and towage asked. The only underst.·mding had was that the Engineer was:wtake the disabled ship In !to':WtoNew Orleans,. the compensation to be settled by arbitration. Tbegreater part of the day was spent in getting hawser and chains run betweEmtbe vessels, one wire haw,,"r having been parted, and one of the heavy chains of the Dupuy De Lome run in place... At apout half-vast 4 that"afternoop they got under way, and Pass Thur!!day, the 26th, having occupied two days longer, on, .accoUnt of' the towing,' than was USltl1lly required for the voyage. In a"dditli.>,llto tbe libel for filed by the appelleeS, an intervening libel was liled by RoussElau, Latour & Co., owners of a portion of the cargo of the E,ngtneer,tlle llalving $teatl;lshlp, wlW claimed a pOrtion of any salvage oftM rfsk" which their property l;Iad incurred on account of sue!).. service. i The district ,court found tbevalue of the property to" be $379,800,,, and .l\.warded one-twel:f'tl;l of it for salvage, and dlsmlssed,the intervening libel. . Frolll the judgment, the "claimant company and the interveners have appealed.
W.W. Howe and s'Prentiss, for Compagnie Commerciale, etc. John D. Rouse and William Grant, for Rousseall, Latour & Co. J. McConnell, for Charente Steamship Co. Before and McCORMICK, Circuit Judges, and LOCKE, District JUdge. , LOCKE,I)istrictJudge(after stating the facts). This steamship was so far disabled as to be in need of assistance to enable her to complete her voyage, and,although not in immediate peril, was so in distress as to justify the use of the term "salvage" in designating the We fail, though, to find anything in her condition or PQsitionthat would justify the belief that she was in dan· ger of being driven ashore, as is claimed. It was remarked by the learned judge in the case of The Colon, 4 Fed. 469: "It IsllPeCllw,1;1on and cunjecture to assume that disaster would have overtaken the Colon beCause of her location, or of her drifting, or of a change or weather, or of' her being deprived of the use of her ..team machinery. Anything may hapPen, but there Is no evidence on which to founl a reasonflble belief that disaster wunld bave happened to the Colon or her cargo from any of these c a u s e s . " "
We consider such language is peculiarly applicable to the case at bar. "i\lthough the master was, for the time, COnfined to his room, it appears: that he had. efllcient officers. and his holding a consultation witb them: and the crew as to what was most advisable to do underthe,.eircumstancesj.instead of being an evidence of his knowl·
COMPAGNIE COMMERCIA.LE DE TRANSPORT, ETC., V. CHARENTE S. S. CO.
923
edge of the danger to which they were exposed, was but in com· pliance with the marine law of his nation. The rudder and steer· ing gear of the vessel were in perfect order, as were also the sails, and with the weather that is shown to have followed for the next four days we do not consider there would be a question of her ability to .avoid any dangerous place on the coast until she could come to safe anchorage or procure other assistance. Although there has been some question as to the course in which she was moving, we are satisfied that the rec(}rd shows that she was making to the eastward, and going further fr(}m the coast, at the time, which was the reason of taking in the sails. She could have unquestionably continued . that c(}urse until a change of wind, which is shown to have soon taken place, would have enabled her to either make Tampico or some other safe anchorage. The norther which had been blowing had greatly both wind and sea had in a great degree sub· sided, and a small boat had no difficulty in carrying the lines back and forth between the vessels. But although it does not appear that the peril was great or im· mediate, yet the future was uncertain, and it was the part of wis· dam to procure aid as soon as possible. The danger encountered by the Engineer in lying by the Dupuy De Lome while taking the hawser and cable on board and in the towing, was more than that of ordinary navigation, and a risk that steamship owners should not be called upon to encounter without a liberal compensation. The Daniel Steinman, 19 Fed. 918, and cases there cited. The size of the chain cable in this case which had to be taken in over the quarter necessitated extra diligence, skill, energy, and labor to avoid disaster, and it was carefully and successfully handled. There is no question regarding the value of the cargo of the Dupuy De Lome, but in regard to her value there appears to be one of importance, particularly as the salvage awarded has been a proportionate amount of the entire value of the property saved. Upon that question there are two items of evidence: First, the fact stated by the master that she was insured for £1,400,000, of which the owners took f350,000, or one-fourth; and, second, the evidence of the valuation placed upon her by a board of survey after her arrival in this port, and the testimony of Conway & Baker, sur· veyors, upon that point. The two amounts so testified to differ by a large amount, the surveyors finding the value to be but $110,000. It is the value of the property which is restored to the owners that is to be considered, and of which a proportion is to be awarded as salvage in salvage cases, and not the original value imperiled. While the amount for which a vessel may have been insured may be considered as a circumstance in arriving at its value after marine disaster, it is not direct testimony to that effect, nor can it be can· sidered as conclusive as against a positive valuation. There was no appraisement asked of the court by libelants, nor did they in· traduce any evidenhe to show a different value of the property, at the time when it became subject to salvage, than that stated by the witnesses. In accepting as the true value of the vessel the full
·924
FEDERAL REPORTER,
amount of .the original policy of insurance (o,fwhich the owners .bore olile-fourtb:, and which must have covered all prospective earnings for the voyage, ·as they were not permitted to further insure the freight), and ignotingithe testimony of their surveyors, we consider the learned jUdge below inadvertently erred; It is true, as contended, that appellate courts dislike to disturb· salvage awards in amount, yet it has always been held that, where there has been any clear and palpable mistake, it lsthe duty of such court to correct it. The, Blackwell, 10 Wall. 1; The Bay of Naples, 1 O. 0. A. 81, 48 Jred.737. Perhap$·the true' value of the vessel exceeded that put upon it by the board, qf'survey, but, if so, we consider that the very liberal rate given would bean ample award for the service rendered, even though theFe' might be an increased value beyond that. The exact value of the property saved, where large, is but a minor elementinoOmputing salvage, and, as it increases, th.e rate per cent. given is rapidly reduced. It is a compensation for actual service rendered, and a reasonable gratuity for the benefit of commerce, that is contemphited, and not a fixed percentage of the property saved. In considering an amount to be awarded herein, cases of similar dass and character to this one are not infrequent, and precedents are numerous. Wherever the very large amounts, as cited in behalf of libelants, have been awarded, there have been peculiarcircumstanees'to justify them that are not found in this case. In, the case of TheOity of Berlin,Mitch. Mar. Reg. April 28, 1882, where £8,000 was given; the value, of the salved property was £237,198, . the 'sa'!-vor ship £881000, and there was a detention of 10 days. In the',case of ,The Oityof Richmond, Td. Feb; 27, 1880, where £;7,000 was awarded, the value of the property aided amounted to £509,929, and the rdisabled steamer had nearly 500; passengers on board. In the' case·ofThe. Silesia,. Id.June 25, 1880, where £7,000 was likewise given ona value of £108,000, the salving vessel had on' board a large number Of passengers,.'and deviated from her course' six days; In The OamoRa; Ship. & Mer. Gaz. Feb. 20, 1885, the disabled vessel had on boardl'ftS apart of her cargo, more than 800 head of cattle, with provisions; for but a few days, and it had been decided to throw a large number overboard if help did not soon appear. ·The salving vesselhad on board 350 passengers, and the towage was a distance of 700 'miles. In that case £6,000 was given on a value of £64,000. In The Daniel Steinman, 19 Fed. 918, the disabled vessel had 335 steerage passengers, with a crew consisting of but 14 all told. She had but two masts, and could spread but a small amount of canvas for a· vessel of her size. The opinion of Judge Benedict shows plainly that the presence of the large number of passengers was considered by him an element which entered largely into his determination of that case,and a salvage of $25,000 was given. In The Italia both steamships, the salved and the salvor, were carrying a large ,number of passengers. The value of the Halia was $473,421, and that of the salving vessel $400,000.. The weather, at the time of towing,wasat times stormy, and the path over which
COMPAGNIE COMMERCIA1.E DE TRANSPORT, ETC., V. CHARENTE S. B. CO.
925
they had come subsequently swept by severe gales. The towage 00cupied the same time as in this case. .42 Fed. 416. In the case of The Severn, which, after having been driven about the ocean for 35 days with her main shaft broken, and mail and passengers on board, was picked up and towed into port with some difficulty, a salvage of £3,500 was given on a valuation of £66.700. Mitch. Mar. Reg. July 28, 1882. The Bywell Castle, with her shaft broken, was towed into Halifax in five days,-a distance of 876 miles. The salvor steamship had upwards of a thousand persons on board as crew and passengers. £3,000 was given on a valuation of £31,118. Id.Aug. 12, 1881. In The Colon, 4 Fed. 469, where the time occupied in the towage was the same as in this, but the actual detention was 12 hours less, and where the valne of salved vessel and cargo was $480,000, a salvage of $10,000 was given, with a further amount of $2,200 for damage sustained by the salving vessel. In the case of The Gallego, 30 Fed. 271, valued at $476,764, towed into Havana with some difficulty, $2,500 was given, and in that of The Alaska, 23 Fed. 597, $26,039, or2i per cent. of the value of the salved vessel and cargo. Numerous other instances are found where amounts have been given much less than we think may be allowed in this case; but it is unnecessary to review or compare them, as each has its peculiar circumstances which have tended to increase or diminish the amounts awarded, in the view of the tribunal deciding it. IIi this case we find· none of the elements of what may be termed a high grade of salvage service, and we think the judgment of the court below should be modified, certainly to the extent that we consider an error was made in determining the value of the property saved. We consider the rate given sufficiently liberal to compensate fully for any excess in value that there may have possibly been. The rate allowed in the court below upon the value, as testified to by the witnesses, would give $18,716, which is as much as we consider the cir· cumstances of the case will justify. in the court below the amount awarded was distributed, five-sixths to the steamship, and to the master and crew. Salvage after the compensation for the actual service rendered is a bonus-a gratuity-for the benefit of commerce, as an encouragement for like services and efforts, and, as was forcibly declared in the case of The New Orleans, 23 Fed. 909, "no amount of reward to owners and machinery will so stimulate and encourage efforts to save life and property in peril on the high seas as will moderate rewards to masters and crews who are on hand to control the ship and machinery, and are the effective agents to Bet the machinery in motion;" and we consider public policy is better served by a larger proportion given to the direct actors. We find from the very convenient compilations of the amounts of sal· ¥'ages awarded steamers for rendering services in towing other steamers when disabled, found in Pritchard's Admiralty Digest (volume 11, pp. 2119, 2120), that in the distribution of such awards the portion given the officers and crew has varied from a fourth to a third,-very seldom less than the former proportion, and more frequently the latter. In this case we consider that the one-third
i,'28
,::. >:
60.
",would not lie ,an but in this ease there has been . Do,;appeai; Qn behalf of the officers and crew from the, decree fixing QIQ.ounte,: and, although we consider a larger 'proportion might well given them, we do not desire to increase' the amount :them by the court below. The sum of '5,275 (the same amount: gtven in, the former ,deeree) will be awarded' to the officers andcJ'ew.:oftbe steamship Engineer in the sattl.e proportions aa . were therein, and the sum of '13,441 to the Charente Limited,owners of the stea:rnship Engineer. In the llu1tter of the intervening libel of Rousseau, Latour & Co. et al., 'we ,e«>neider the 'reasoning' «>f 'the learned judge in the case of The Persian Monarch,'23 Fedl $20, which we cordially approve, is conchlldve.",:'Tbeproperty of the interveners in DO way assisted in rendering the service, nor received any damage or injury from it. It strongly against public policy, upon which salvage is founded,' to permit the owner Of every shipment in a cargo to claJm a. POrtion of any salvage award earned by .the efforts of the officers aad crew, and the use of the machinery and power of the ship in, ,which it was carriecLThe accepting a bill of lading in which ;was,spe<:ially reserved the right to rendet aid to vessels in distress was no such consent on their part to the rendering of such serviceuicould entitle them to a portion of what was so earned. The PerSian Monarch, 23 Fed. 820; The· Nathaniel Hooper, 3 Sumn. 542, Fed. Cas. No. 10,032; The Waterloo, 1 Blatchf. & H. 114, Fed. Cas. No. 17,251;, The Colon, 10 Ben. 6{}, Fed. Cas. No. 3,024; The Brixham, 54 Fed. 540. The decree dismissing the intervening libel is so far aftlrmeQ. . It is ordered that the decree upon the libel below be reversed, and the cause be remanded with directions to enter a decree for the libelants for the sum of '18,716; with costs, and of said amount '5,275 be awarded to the' officers and crew of the steamship in the proportion of.their rank and pay, as before decreed, and the sum of '13,4:41 tathe Charente Steamship Company, owners of the steam· ship Engineer; and that appellees pay the costs of the appeaL
. TmD ALFRED 1'. MURRAY: AJ,[ERIOA:N TOWING & LIGHTERING CO. v. THE ALFRED 1., MURRA.Y.
(.District Court, ,. D. Maryland. L
March 9, 1894.)
..
One, \Yh9 takes a ba,J."ge In payment of a debt Is not an Innocent purchaser, so as, to entitle him to the be.\lefit of the rule that, when the business tn' which a vessel is engaged Is divided Into distinct seasons of activity; old claims must be enforced before the debts growing out of the ne;x:t ,are Incurred. SAME-EXTJNGUJSHMEN'l'-TAXING NOTE. The taking of a note does not extinguish the lieD, unleu such waa the undentanding' of the parties. .
MARITDt:B LtENll-INNOCENT PURCHASERS-TAKING VESSEL I'OR DBBT.