THE PHOENIX.
487
master's act, became entitled, upon the plainest principles of law, to the freight earned. We fully agree with the views expressed in the opinion of the learned district judge as to the right of the libelant to recover the amount of freight. But the amount earned was $500, and not $950, and there is no evidence in the record which justifies a finding that the expenses incurred in earning the freight were not as stated in the testimony of the master. '1'he decree should be modified accordingly, and the cause remitted. with instruction to the court below to decree for the redncedamount, with interest and costs of the district court; the appellant to have costs of this appeal. Ordered accordingly. THE PHOENIX. PARSONS et al. v. ROCKWELL. of Appeals, Fourth Circuit. May 22, 1894.) , No. 68.
(Circuit
SALVAGE-COMPENsATION-REVIEW ON ApPEAL.
A stea.lliShip, worth, with her cargo, about $160,000, was disabled by the breaking of her shaft, far out at sea, and after drifting under sail sever;il days, changing position but little, was taken in tow by anotber stealller, valued at $125,000, whose cargo was worth $400,000, and whm,.. freight and passage money amounted to $13,000. No unusual troub:e occurred, and no unusual risk was involved in the towage, and the onl,\' storm encountered arose on the fourth day, when the vessels wel'e anchored in a place of comparative safety; and. on the next day the towage was completed. Held, that an award of $35,000 was excessive, and should be reduced to $20,000.
Appeal from the District Court of the United States for the Eastern District of Virginia. This was a libel by Cyrus O. Rockwell, master of the steamship Saginaw, against the steamship Phoenix, John J. Parsons and Thomas Linton, claimants, for salvage. The district court rendered a decree for libelant. Claimants appealed. The decision of the district court, rendered by HUGHES, District Judge, was as follows: Statement of the Case by the Court. The British steamship Phoenix (Philliskirk, master) left l\-:lacio, Brazil. on the 19th of January, 1893, laden with 2,100 tons of sugar, bound for New York. where the cargo was worth $98.953. The vessel herself was worth not less than $60.000. Her freight money on this cargo was $5,000. She was of two short masts, schooner rig, carrying foresail, square foresail, double topsail, fore and aft foresail, fore staysail, main stuysail, and jib. Her tonnage was 1,728 gross; her length, 256 feet; beam, 36 feet; and depth, 18 feet Il inches. On the 8th day of February her shaft broke square off in the thrust bearing. The steamer was then in longitude 70° 20', latitude 300 31'. All sails were set, and the ship headed to the northwest. She proceeded under sails until the afternoon of the 12th, making a total distance in the time of 117 miles. The engineers began an .attempt at repairing the broken shaft on the 9th by cutting out thrust collars, and placing in these two steel plates. on opposite sides of the shaft, fastened with bolt'l, as is shown by that portion or the shaft itself, which is exhibited in court. They worked at this job continuol1s1yfrom the 9th to the afternoon of the 12th, and now they say they could have completed the two patches and have fastened them in place in four or five hours longer. The job was never completed, and its efficacy was
488
FEDERAI,.,REPORTER,
vol.
the period ot a week and more before the arrival of the PboenlX'at New York; especially not in the,ten or twelve hours of the twelve whichelaplred after they had unnecessarily suspended their labors, and before thePhoenfll;,wasactually taken, in tow bya salvor, at 2 a' m. on the 13th. Previously .totbe, 12th, the Ph()j;lnix had put out signals of distress; but only two shlpsllad been seen (both sailing vessels) in the period of four days. 150 miles She waliJ out of. the track of vessels, in unfrequented waters; west of the usual track of vessels trading to South American ports, and 150 miles east ot :the track of those, bound to and from the GUlf, San Domingo, and Cuba. Between sundown and midnight of the 12th, the rockets she sent up as signlLlsOf distress attracted the attention of the American Clyde steamer SagInaw (Rockwell; master), which was bound from New York to Turk's Isialldand other West Indian ports. The Saginaw proceeded immediately to the. relief of the ship in distress, which proved to be the Phoenix, hailed her, and received her master, Philliskirk, on board, who came alone. The Saginaw is a freight and passenger steamer, plying between New York and ports of the West Indies on fixed schedule time, in conjunction with one or more other Clyde steamers, which also'sail on schedule time, arranged at intervals of ten days or two weeks, as one or two sister steamers of the Saginaw may be put on the lille. The Saginaw is a modern iron steamer, with a gross tonnage of 1,800, and length 260 feet. She is valued at $125,000, and had an assorted cargo; composed in part of perishable goods, and embracing $193,000 of speCie, all worth in total value about $400,000, her freight money being $13,000. She had a crew of thirty-nine men, and she had eight passengers. " ' As to what occurred on the night of the 12th' of February, 1893, when the Saginaw resphnded to the call of the Phoenix upon her for help, the two masters say as follows (I quote from their d,epositions): Philliskirk;' loqUitur: "Q. Whim he [Rockwell] came up alongside, what happened? A:'He asked me if I wanted assistance. I told him, 'Yes.' And the captain said, Well, hadn't better come on board. I said, 'Very well.' I put the boat out and went on board. Q. After you got aboard, whom did you see? A. I saw the captain [Rockwell]. Of course, he asked what was the matter. I told him the thrust shaft was broken. He asked if I wanted assistance. I said I did. 'Well,' he says, 'captain, I have got a perishable cargo aboard and passengers, and am bound to Turk's Island. I will tow you there.' I said that would not do me at all. Turk's Island is no use to me. I couldn't do anything or get anything there. So, after a little conversation" I said, 'You may tow us up the Chesape(lke,-the nearest place.' And he consented to the Chesapeake. Q. You refused to go to Turk's Island?A. Yes. Q. Did you inform him you were making repairs to your shaft? A. No. Q. Was al1.vthing said about that? A. Nothing said. Q. Did you inform him of the value of your cargo or freight or vessel? A. No; I don't think I said anything about the value of the cargo. He asked me what I had in her, and I told him sugar; * * * near about 2,100 tons." . Rockwell, loquitur at Norfolk: "About 9 o'clock p. m. of the 12th, we saw signals from the E. S. E. of rockets. We proceeded in that direction about an bour, and found the Phoenix broken down. I hallooed and asked him if he wanted assistance, and he said, 'Yes.' I asked him to come aboard, which he did, and he desired to be towed to the Chesapeake, which I did. Q. When he asked to,be towed to the Chesapeake, what proposition did you to him? A. I objected to towing him to the Chesapeake for several reasons, and oifered to tow him to Turk's Island, and then to Bermuda, and he objected strongly to that for several reasons, and wanted to come here very much; and, after thinking the matter all over, I agreed to take hold of him and tow him here if possible; if not, to such safe point as I could. Q. Did he express l;J.imself as to any trouble? A. I asked him his trouble, and he said his shaft was broken. I asked him if it could be repaired at all, and he said he could fix it; and I said there was no use of my fooling with him if l;J.e could fix it. But he objected strongly to my leaving him, but I told him, if he could repair his ship, I wouldn't want to trouble with him at all. Q. In other words, you were reluctant to undertake the service? A. Unless he was helpless. Q. And you only undertook it on account of his
489
saying that he was helpless? A. Yes, sir; he insisted upon my helping him into port, and insisted upon coming here to this port." In cross-examination Rockwell says: "Q. I understood you to say, when the captain [Philliskirk] came on board, he made some mention of these repairs? A. I don't remember. He said he had made some repairs, but he said it could be fixed, or words to that effect; and there was some mention made about repairs or fixing. Q. You said that you did not want to take him in tow if that was the case? A. In case he could repair his ship, I didn't want to take hold of him at all, and he objected strongly to my leaving him." Gerrie, engineer of the Phoenix, loquitur: "It was against my wish for them to take my ship, but, of course. I didn't care about refusing the assistance. Q. You mean by that- A. Of course, I told the captain to take the tow, you know. Q. You did not care about refusing? A. It was against my wish, certainly, for my own part, but still I wouldn't have refused it, you know. The captain asked me, and I told him, 'Certainly, take the ship;' because I did not know what it would have done. I just went on his own judgment." It may be added here that, previously to the Saginaw'S taking hold of the Phoenix, her master saw and spoke to no other member of the Phoenix's crew, and there is nothing in the evidence to show, and it is not at all probable, that either Capt. Rockwell or any of his men were on the Phoenix during the whole of this salvage service. Counsel for respondent admit that Capt. Rockwell took hold of the Phoenix for the purpose of securing the salvage award. The Saginaw took hold of the Phoenix and began to make for the Chesapeake about 2 o'clock on the morning of the 13th of February. The chart exhibited In the record shows that the place where the Phoenix was found was in latitude 32 0 30', longitude 71 0 approximately, about 475 miles due east from Charleston, and 360 miles from Chesapeake bay. The towage was done with a steel hawser 'belonging to the Phoenix. which was put aboard the Saginaw by the men of the Phoenix. It was at no time lost, and did not part. It was hitched to 35 fathoms of chain on the Phoenix, and was connected to the Saginaw by a bridle of manilla hawsers, in order that the line between the vessels should be springy and elastic, to enable the towing to be done without the jerk that would result from having so much dead weight to tow. The manilla hawsers belonged to the Saginaw, and were rendered useless In the progress of the towing by the chafing to which they were subjected by the heavy tow. The whole length of the toWing cables and the hawsers forming the bridle was upwards of 250 fathoms, and, if the lengths of the two ships be added, then the length of the whole tow was 336 fathoms, or more than one-third of a mile. The course of the towing laydirectly across the Gulf Stream, where heavy fogs are prevalent in };'ebruary. The fog and the length of the make-up rendered the danger very considerable of colliding with vessels· passing north and south along the Gulf Stream across the course of the procession in necessary Ignorance of the fact of one vessel being in tow of the other. Except two or three periods of gale, and except the fog, the weather during the towing after the 12th and before the 17th was favorable; but the towing was at all times difficult, and required the utmost care in the navigators of the Saginaw to prevent fouling of the cable with her propeller or rudder during the several intervals when it was necessary to stop or slow down to readjusf the bridle on the Saginaw. The sea, as usual in February. was rough, reqUiring a man to stand constantly aft on the Saginaw to watch the hawsers, which chafed continually, and requiring a man to stand much of the time at the engineroom door to pass orders by word of mouth to the engineer, In order to conform better the speed of the towing vessel to the exigencies of the work in hand and the movements of the ship in tow. Necessarily, there was a great deal of yawing by so large a body as the Phoenix, whose engines were disabled, especially in the early days of the towing. There were fresh gales of wind on the 13th, 14th, and 15th, not of long duration, but putting great strain on the cables; and, during the last days of the serVice, fog was encountered, rendering it often difficult for the Phoenix to be seen from the. Saginaw fur hours at the time, and creating much risk of collision with coastwise vessels them in the Gulf Stream. On the 16th the two vessels arrived in the Chesapeake bay. about three miles W. N. W. of Cape
,490
62. ,
Henry llgbt iu Lynnhaven,ll!lY', where they bad to come to anchor In conse.quenceotthe dense fog. '....h.Saginaw Illy by tbel'hoeUlx, waiting for betuntil the of the 17th, w1).en the Phoenix was again tow with difficulty,: while a strong northwesterly gale WiLS pre'V'/lUjIl$i; at about 4 o'cloc1r p. m. she brought to anchor ,in Hampton In approaching the Virginia· Capes on the 16th, a dense Itdifilcult get within the Capes without fog prevalled, which a. pilot ,would have made It necessary for almost.any other navigator to come to anchor outside, until a pilot could have been.procured; but Capt. Rockwell, ,,from his familiarity with those. waters, resolved to make his way in.: he did successfl,llly, by diligent sounding, and by cautiously regulating his. course by tb,e .moan of the Siren buoy off Cape Henry light. His good:fj)rtune in this ventllre, by which he· bI'ought th6two shipsinto safe anchoragelJ+, Lynnbaven ba.y,on the 16th, secured them from the hazard which w011ldhaveovertakeutbem o\ltside from the northeasterly storm which in and .for many hours. soon The salvage service lasted through all of the 13th, 14th, 15th. 16th, and 17t1J 'days of Febr,ual'Y. Although the weather was, In general, unusually favorable for season of tile yet mueh of it was rugged, and nearly all of the latter.:pRJ:t of It was ($l.lracterlzed by thick fog, which, liS said before, brought Wi"cb risk to, a tow more than oue-third of a. !}lile long of being . run int()by:.:,ooastWisevessels crossing, itl;l.course at right angles, unaware of thefMt that, the two ste.aqlers were fettered In their 'powers to maneuver ' constant risk, whenever it became necesby a sary tostop,or slow dow,n, of the cable becoming fOUled with the' propeller of.the,.S/lglnaw, ol'else with herru9-der. DnllSualprecaut!ons were taken ag-aiust this' risk bY,Cllllt. Rockwell, in haVing an. ample force of men and mecllanism ready at' 4ajld to keep the slack of the cable promptly hauled IUi.whenevor stop or slow down was mat;le. In this matter, and in his entire ,during ,this arduous service, Capt. Rockwell proved himself a SeamaJihof:the highest of skill an,d efficiency and provident intelligence. . : . ,., 'l'he towing service rendered it necessary for the ,Saginaw to replenish Jtsstore of fuel and provisions at Norfolk,. The time in the service was rather. mOl'e:,tblj.nseven 4ay.s. The towing of so heav,y an object as the 2,100 tons ofc:argo across the Gulf Stream into Hampton Roads, fQr·;solopg lit distanqe as 375 mjles, and for thl! protracted period of five dllJ1s,c,llubjected the Saginaw to much strain, which, though not reqUirlnglmml!!dlate repairs, entails a necessity fQr them in the future. Much dissatisfaction w,as caused to the shippers of freight on the Saginaw by the week'ildelay indeliverlllg it. Much of.. the freight destined for her on her In, the, West Indies which was awaiting her on the wharves had to be stored during the lost week, Ij.n<l other, freights sought other conveyances:to market. Great loss .andin(!()IlVenlence .also resulted to the Qwners of ,the Saginaw, by the Ilcxt trips of herself and her companion ship belng"throw,otagether; which prl\.cticallyca.used the loss of one trip out from the West:Ind1es ,toone or other of the twos4ips. The pecuniary 100;;ses resulting from. these several necessary, Incidents of the Saginaw's service to the Phoenix aroset forth by an estimate filed in the evidence. InascertalniIlg'the amount proper to bE! reeovered In this action by the libelant, the actual expenses, Incurred by the Saginaw In the performance of ,tlle service must be allowed. ;rhe accounts shown by Exbibit G of $570.89 for actual expenses are allowed. I think the evidenc\l shows that the use ,of the Saginaw, and her crew for seven days Is worth on the basis of quantum meruit fully. $40Q·a day, or $2,800. IJ1xhlblt H,· in the libelant's ,eVidence, Is lW. estimate of the Incidentala,nd resUlting cost to the Sai;dn,aw ot' the <leviation and delay Wh.ich the salvag4;l service caused. I regard it more as lUlargUI\lent: for a, Jil>eral award, t;ha:p. as recov:erable eo nomine. Comments.lmdConc1uslons by the Court. The be.tween on the Saginaw In the night of the ;12th of February was a distinc,tempJo;f,lIlent of the Saginaw by the Phoenix, which was belP1esil, In a salvage When something was meIlthe broken shaft (W):)ich.was of so little Importance that
to
THE' PHOENIX.
491
Capt. Philliskirk entirely forgot it in glv'lng testimony), Capt.· Rockwell at once .said: "If YO'u can fix your shaft; I will not fool with you;" whereupon Capt. Philliskirk 'incontinently dropped the subject, not to be resumed, and insisted upon being assisted. to port. The chief engineer of the Phoenix himself, who was the inventor of two flange plates which figure so largely in respondent's evidence, had advised his master to crave assistance and accept it. For four days, while the work in the two small flange plates was in progress, tlle ship was fiying and firing off signals of distress, calling for help. \Vhen, at last, rescue came, not one word wassaid of the 7 by 10 flange plates. not a word to render material the voluminous testimony which has been tal.en concerning those two pieces of steel and their screws. A.lthough it is now insisted that those patches could have been completed in four or five hours of the 12th, yet work upon them immediately and finally ceased as soon as rescue came. The interview between the two masters was. the time and place for these since tediously discussed plates to have been brought into the case; yet Capt. Rockwell heard not a word of them, and it was not until the testimony of the respondent was taken and its answer was filed that they loomed up as the prominent features of the defense. A.s these plates were not brought to the attention of Capt. Rockwell in the' interview of the two masters, and were not mentioned then and there, and as all' mention of them was then avoided, the question of the ability of the PhoeniX, by completing the patching of the shaft for which these plates were intended. to steam her way into the port of New York, is of very slight materiality in this cause. . If Capt. Philliskirk and his several engineers, who all tell the same stereotyped story of ability to complete the repairs in four or five 110urs,and of confidence in the sufficiency of the two little plates to bring them into port, really believed in that sufficiency, then a deliberate deception was practiced on Capt. Rockwell in concealing from him the grounds of that confidence; und, as to him, the case is the same as if the repairs had never been attempted. That the repairs were in fact puerile is almost apparent from the evidence of the engineers themselv-es. That a thrustshaft 10 inches in diameter, of solid wrought iron, which had broken square across in a smooth fracture under the strain or pressure or twist which it had to sustain, could be made efficient again in any degree by two steel plates 7 by 10 inches long and wide, and %, of an inch thick; bent over the cJ'lindrical shaft, and screwed to it by a few %, screws, simkan inch into the huge shaft, is tome incredible. If the sanguine engineer who devised this method of repairing a solid shaft really believed in its efficiency,' his infatuation calls. to. mind that of the schoolboy who had broken the big blade of his pocketknife in a square fracture, and thought he had 'made it all right again with two little drops of Spalding's glue. It is not case for mixed mathematics, but for plain common sense and practical judgment. When a vessel flies signals of distress in midocean in winter weather, and demands and accepts salvage service of a passing ship, and conceals from the salvor the fact of her ability to get to port without help,and then uses the fact of her not being helpless to reduce the salvage service to the grade of mere towage, pnblic policy and every consideration of fair dealing forbid an admiralty court from entertaining such a pretension. The relations between the salvors and the salved in the crisis of peril are too serious for concealments of such a character as I am dealing with. The utmost frankness is demanded of the vessel in peril. A full and complete revelation of all the circumstances of the ship in distress which are not visible to the naked eye is essential. Concealment of any material fact is absolutely intolerable. I will do Capt. Philliskirk and his engineers the justice to say that I do not believe they thought their vessel was otherwise than helpless, or that it really entered into Capt. Philliskirk's thought to deceive Capt. Rockwell in this matter. This pretense of ability to repair the shaft and to get to port with the ship's own engines and sails is an afterthought, resorted to as a means. of diminIshing as much as possible the reward due for the salvage service, which, by the Rkill, thoughtfulness, diligence,and good fortune of Capt. Rockwell, was, unexpectedly, so successfully and easily accomplished. The pretension does not commend itself to the favorable consideration of the court,and is rejected. It is because. it the Phoenix was really able to' get to port
492
FEDERAL ll;EPOR'.!-'ER,
vol. 62.
without ItW-as upon the So,g,"law, to, ask for and tQ obtaIn salvage aery-,Ice ,ti,-.,/ ? 8.1.1, ·this, abUlW,' ; and, secpnd, because, iithE;'.ab1l1ty did not eXiSt, wliJCl:vwits doubtles,sthe fact, the pretense of it now 18 an atterthought, which the court cannot entertain tq the prejudice of a meritorious salvor, after, an admirably conducted and exceptionally successful salvage service., ' Another elaborately discussed In the briefs, is, whether a salvor whota'kes upon hImself all risks in entering upon a dangerous service is entitled to reward if the casualties incident to the service do not actually happen., Is the salved alone entitled to the benefit of, the nonhappening of . expected "If all well, and ,. the seas, the winds, and the working are propitious, is the salvor to sink into a mere tow master, and'the salved, to "be sole, beneficiary of the go()d providence which attended the, service? These questions cannot be answered in the affirmative. Tbey are self-refuting. 'rhe question assumes a more concrete form, however,' when applied to a prOminent incident of the service under consideratio:Q. The two steamers neared tlle Capes of Virginia on the 16th February, In,' a thick fog. Capt. ,nockwell, did not come to anchor and wait for a pilot, as, would have been Ilroper In other vessels, but,trusting to his individual knowledge of those waters, resolved to come on and get inside the Capes at once. This knowledge and the skill he exerted In effectinghIS purpose gave success to his venture, and the two ships were thus in safe anchoragl;! inside the Capes when the northeasterly storm came on, which soon after' set in with' great force and violence. The salvage service was still in" progress when this storm prevailed. It would possibly have been disastrous to the Phoenix, unable to use engines, If she had remained outside, Waiting for a pilot. She was saved from this danger by the skill and resolution of Capt. Rockwell. A question discussed in the briefs, pro anll con, is whether the court may increase its award to Capt. Rockwell for saving the, Phoenix from the possible and threatened disaster which was avoided and escaped by having, been brought into the Capes before the storm set in. Whlle there are frequently cases in which admiralty courts may refUse, ,to take into consideration storms that have been fortuitously avoided anilescaped, yet I think that this case presents circumstances which call urgently upon this court to make up Its award with reference in part to Capt. Rockwell's sklllful and fOl,'tunate conduct in this particular matter. SumnHng,:up the case, I deem, this to have been a highly merItorious salvll,ge service. It was rendered In dangerous, waters, by a ship embodying values exceeding half a, milUon of dollars, to another ship embodying property worth $160,000. The Phoenix was picked up in the waters off Hatteras, Lookout; and It'ear, proverbially a nest and habitat of storms, and was towed for four days through: those waters, in a winter, month, for a distance of 375 miles, into Hampton Roads. The Phoenix was foUnd in unfrequented waters, moving under sail at the rate of 117 miles in four days, orrather more than a mile an hour, at which rate sbe was more than 15 days from anchorage, with disabled engines, which constituted an incumbrance rather than a help In those rough seas, preilenting a tempting and certain prey to winter storms Whenever an, evil fortune shoUld bring them upon her. At the distance at which she was ,found in the, waters off Hatteras, she was in a piteoUsly helpless condition with reference to the storms there prevalent and always prObable, and in which the two small steel plates so largely discussed in evidence would have been less llrominent in the minds of seamen on the ocean than they have been in the minds of witnesses on dry land. The unusual length, in miles of this, ,service distinguishes it cQnspicuously from nearly all the cases cited m the arguments of counsel. The long duration of the riflk il,nd the strain of the ,p.eavy draft on the salving ship Is another dIstinguishing feature. The length of the salvage expedition, more than one-third :a mile, stretching across the path of ships, ma,de the risk of corthe long nights and heavy fogs oftb,ilt/ileasonand of those waters. The steam navigator's terror of fouling h,iS"", prop,eller was alW,ays T,he complete success, without a single accident, and only one day's uelay from adverse weather, was a crowning diMingulshing merit of thiS: enterprise. This success is due in chief part tt:tbe rare resolUtion and COtlsc!pus skill qfCapt. Rockwell, but for which
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the Phoenix would not have been taken in charge at all In the dangerolll region of shipwrecks and storms in which she was found. Salvage services rendered in this region cannot be justly assimilated with such services reno dered In other regions of navigation. They will not be undertaken hert> at all unless under the stimulus of maximum rewards for maximum snc· cesses. It was a happy fortune of the Phoenix that fogs and adverse winds had driven the stalwart ship Saginaw, commanded by such a master of the sea as Capt Rockwell, In her Vicinity. Few other men would have taken hold of her at all at the risk of half a million ot values; and few other ships would have been stout enough to draw her over so long a distance for so protracted a time, into safe anchorage. The embarrassments which were brought upon his owners and the shippers ot the cargo, and on the schedule trips ot the steamers of the line to which the Saginaw belonged, by the bold action of Capt. Rockwell, cannot with any justice or propriety be overlooked by the court In fixing the salvage award in this case. I will give a decree for $35,000. and for amount of the account for outlay of $570.89, which has been mentioned.
J. P. Kirlin, for appellants. Robert M. Hughes, for appellee. Before GOFF and SIMONTON, Circuit Judges, and JACKSON, District Judge. JACKSON, District Judge. The master of the steamship Saginaw, on behalf of the owner, filed a libel for salvage, in the circuit court of the United States for the eastern district of Virginia, against the steamship Phoenix. The Saginaw was a passenger and freight steamer plying between the city of New York and divers West India ports. She left New York on her regular trip February 9, 1893, with an assorted cargo worth about '400,000, with a crew of 39 men, and 8 passengers. The value of her trip, including both freight money and the fares of passengers, was about $13,000. On the night of February 12th, in latitude 32° 35' N., longitude 71 Q W., the Saginaw was attracted by signals of distress, and, proceeding in the direction of the signals, about 10 miles distant found the British steamer Phoenix disabled with a broken shaft, and requiring assistance. The captains of the two steamers entered into negotiations for the towing of the Phoenix, which resulted in the libelant agreeing to undertake to tow the Phoenix into Chesapeake bay. When the shaft broke, the Phoenix was about 300 miles from the bay, in the open sea; the accident occurred February 8th, and the Saginaw took the Phoenix in tow about 2 o'clock on the morning of the 13th. Between those dates she was under sail and drifted about, changing her position but little. The libelant says, in his testimony, "the weather was generally fair, except at times strong gales .and heavy seas." The voyage commenced about 2 o'clock on the morning of the 13th, and during that day the evidence shows that there was a moderate breeze and cloudy weather. On the 14th, the weather was squally, blowing hard at times; the 15th "set in with moderate weather and light breeze blowing" until evening, when it became foggy, which condition prevailed until the vessels came to anchor on the morning of the 16th, and in consequence that night, of the fog, and the violent storms which set in remained at anchor until about 11 o'clock on the morning of the 17th, the storm abated and the voyage was resumed, and the
J'EDERA:r.;·
REPOltTIfi;"'vol. 62. ,
:
fl;:P,w,11;4\ijoi,l' of isbtit lIifact, 'any, ;oon:tlictIbetween the parties:totbis case as.,to· tbecharacter of, <luring ,ilie timeaC1:ually occupied -in the towingl at tpnes aud heaVYi,'seas," whieh the evidence ,discloses were of short durati:on; b'\1this. evidet1ceddes not, that of 'any taken upon the show;that or storm the ,vesi:\el.was actually. In: tow. It .IS uot to be demed ·that :there was more orlesstrouble,3.s is always the case under such it mustbe :tdIb.ittedthat no u:titilrual 'trouble"lYcCnri'ed,norwlis there atiy of any unusual risk taken by the Saginaw. I,n language ofone of the witnesses, the Phoenix "towed :PI;lj!tty.'eve.p.ly;. withO'qt1jerking." The weather, for the season of the";1e:\r;'was verjr good, and under its but Uttle>' danger or ,difficulty to' b'eapprehended. But little, if any, hazardous service was encou1'l.tered; g . . ... e 'Such we flnd to be the in.g. .J '. Ing . . l.·nl.Y,.Jhe. .Was.·ttie P911 of safety. q,u . re . of tho,esalvors.'. in.,.. pr..sub..
'Phoe.·. (' ', ..-A\.W. ·.d, i'W·.tli. tit' dtfficu.lt' 'iht.15. ' .." '"''' .{, /"'1:";'- "e ).,,0 - ,,... . .Y,,, -, "'.:Eiafu'ton. 'Ro.'a.dS·..;.'.A. ta,refnl. P , "'''.' · · "
:tpe
W
t.ant. .. . .,.'O.:f:'t.h . '. th.. e ·dist.n.c.t. court.. . : Its Judgtne'tt't,'a'tld .... awardediU.po q. ,the . $35,000 salvage. , ,rbtmded It rendered were not extraordinarynor.1inusua1.... unusuaJ Sea.s· .the vessels htulnB'illiimcan;'es"tb"hcmtend the Phoehix, ;the and, as'the sequd proved, . ''\\1eI1-gro1J.'nded .'apprehension of extrenie .danger. -only sttirM!: ett,cpuritere4;. the were anI:h,ored 1. ..e '.Of. .' . . . .· ,v.,. . ·'.'Plap.e. O.f.. ·. . pa . . .",.M.'Ch.'. co.nfinned' a das go mto'Hampt9u, Roa?s, where the t,owagt'1ceasea:'A,lth9ugli'1:he storm was vIOlent while tIies;teaIllerS renWllned 1sno' evidence of any pb:i.ltieulaf"peHli '<ir' of,nP'UElllllJ .risk tp the vessels. We tp ftfflrlll tbe judglilent of the dJ,stpct many cases peen .cited, not only' to aid the couTt in l'eaehJ,tig'iJtat c'onclusiori,.bti{'tllso to show that courts, in tlie ex'ercise Of illthis 'eharacter, are as Ii"general rule 'disposedltbbe liberal in allowances for com»'ehsation, and "flint a wore liberal allbw.an'ce should. be made in on}he south: Atlantic for the reasou'that navig'lltion along it' aang'erous perilous than on ili,e northern 'coast. An.Qthert,eason as§igned for the. support?f this proposition tiS 'that there not passing liloJlg that coast, :aA.q iIi this part ':,' .' ·.... . < , if' in fact, lll·tliIs,case,.and· isby the court IS exceSSIve. referre.d the court to a of to show, .not &ly the' flexibIlity- 'Of' the JudiCial mmd 'lD' regard to salvage re-
'.
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.. - .
THE l'I:IOENIX.
'495
,wards, but to it that the allowance in this case is ex, cessive, while the opposing counsel has cited many to sustain it. It is to be remarked that the elements that enter into an estimate are not always found to exist alike, and for this reason the award in each case must depend upon the cireumstances surrounding it, and hence "the elasticity of the law of salvage." FroiD. the many cases referred to, we have selected The Alaska, 23 Fed. 597, one of the largest passenger vessels afloat at that daY,notonly for the reason that the conditions prevailing at the time of her accident, and during her towage, were in many respects similar to those of the Phoenix, but for the additional reason that the allowance made in her case was the largest, under somewhat similar conditions, among the cases cited. She, with her cargo and freight, was valued at $1,041,542, and the Lake Winnipeg, which went to her assistance, was valued, including her cargo, at about $350,000. When found, she was 600 miles from New York, with a broken ruddel', having encountered "heavy weather," and had drifted for two days without aid when the Lake Winnipeg observed her signals of distress and took her in tow, arriving in New York on the fourth day of their During the voyage the weather became "boisterous, with thick snow," the cables which fastened the two steamers together parted, and many other difficulties were encountered. In her case, the character of the weather was much the same as existed in the case of the Phoenix. No supreme danger was encountered by either vessel during their towage, which called for heroic endeavor. The allowance in that case less, though there was nearly, if not, three times as much in value. involved. But it is claimed by counsel for the libelant that this and other cases relied upon by counsel for claimants as persuasive guides for the court in fixing the amount of the allowance are mostly, if not altogether, cases decided by courts on the north Atlantic coast, who are not inclined to be as liberal as courts on the south Atlantic coast, mainly for the reason that they are not called upon to consider cases which arise on that coast, and which to the mariner is one of special danger. Whether or not there exists upon that coast special danger is not a question of fact involved in this case, and cannot, therefore, be considered as an element in fixing the allowance, as the Phoenix was far out at sea, and for this reason we dismiss its further consideration. In our examination of the cases relied upon by counsel for the libelant, where the accidents to vessels have oc', curred on the south Atlantic coast, we reach the conclusion that the courts on that coast have not been more liberal than the courts on the northern coast, but that in a few instances they have had cases of extreme peril to life and property, which required heroic efforts upon the part of those who went to the assistance and rescue of vessels, that justified liberal allowances. The Akaba, which is relied upon to support the allowance in this case, and which is the strongest one cited, we think rests upon facts that do not exist in this case. The case of the Phoenix is one of meritorious towage, where no such SUpl'0ille necessity for aid und prompt action existed as in the case of the Akaba. This court, in reviewing that case,
496
J'EDERALREPOBTER;
vol. (\2.
used the following language, which we adopt, showing the extreme . peril of:the'vessel and all on board: 'iShe was found onia dangerous C()Rst, l'e'l'haps the most dangerous lofAmerican coasts, drifting to leewal'd,in. a heavy northeast gale, almost helpless," with a broken shaft, 10 miles off the coast at' Hatteras. "The vessel that went to her rescue had many' passengers and a valuable cargo aboard, much of which was perishable, rendered her successful assistance, rescued her from imminent peril,and after great toil and danger towed her to a place of safety." That was a case of supreme necessity, requiring prompt action and great effort upon the part of the crew of the vessel which went to the' assistance '.of the Akaba. In that case, the district court allowed $30,000, which, upon appeal, was approved by this court. 8 U. S. App. 316, 4 C. O. A. 281, and 54 Fed. 197; But that allowance was $5,000 less thain, in this case, and, as we have seen, under far different That is the only reported 'case we can find on the south Atlantic coast that approximates the allowance in this case. Numerous cases cited in appellants' brief tend to show that this allowance is in excess of the usual amounts for services of this character under similar conditions. Necessarily, no general rule can be laid down to regulate allowances in cases of salvage. The rewards to salvors largely depend upon the merits of their claims in each case; We would not be inclined to interfere with the decree complained of in this case, even if we were of opinion that the allowance was greater than we would have originally made, unless, under alltlie facts, we reached the conclusion tlat the allowanoewas excessi'V'e. I In the light of the 'precedents before us, as well as the fact of the abstmce of those essential elemEln.ts in this case that would justify so largeanalloW'ance as the district court made, we are of opinion that theresM1.1ldbe an ,abatement of $15,000, reducing'it to $20;000, which, we think, under the facts of the case, will bell. liberal reward. The deCree of the district court is modified to this,extent, and the case is remanded for that purpose, in accordance With this opinion. PetitioI\ for Rehearing by Appellee. (June 2, 1894.)
PER,CURIAl\!. Weh:a-ve carefully considered the petition for a rehearirig, and the points therefor pressed by the appellee. We 'see no 'reason to change' the conclusion reached by the court after a fulla:d"exhanstive argumentupori the merits of the appeal. Whatever ambiguities, if any there be, in the opinion filed, have'been removed in the mandate sent down by this court to the district court. In that court, a r ltpportionment can be made upon the change in the amount of the salvage award, where complete justice can be done to all parties. The prayer of the petition is refused. t ,i
FATTEN
v.
CILLEY.
497
PATTEN v. CILLEY. (Circuit Oourt, D. New Hampshire. July 6, 1894.) No. 400. ApPEALABLE ORDERS-DISMISSAL OF PETITION FOR REMOVAL.
The dismissal of a petition for removal on the ground of local prejudice stands on the same ground as an order of reIrulnd, and is not a final judgment from which a writ of error will lie. In re Pennsylvania Co., 11 Sup. Ct. 141, 137 U. S. 451; and In re Coo, 5 U. S. App. 6,1 C. O. A. 326, and 49 Fed. 481, followed.
This was an application for a writ of error to the supreme court to review an order dismissing, for want of jurisdiction over the subject-matter, a petition for removal of the cause from the state court, on the ground of local prejudice. 58 Fed. 977. Harvey D. Hadlock and W. L. Foster, for petitioner. Bingham & Mitchell and Streeter, Walker & Chase, for respondent. Before COLT, Circuit Judge, and ALDRICH, District Judge. ALDRICH, District Judge. At the August teI'Dl, 1892, this court remanded the probate proceeding in which Horatio G. Cilley was appellant in the state probate court, and which he removed to this court within the time in which a party may remove a proper cause as a matter of right. Such order was upon the ground that the court had no jurisdiction over the subject-matter of the contro· versy. Subsequently, the same party petitioned for the removal of the same controversy, on the ground of local prejudice; and such petition was dismissed December 11, 1893, for the same rea· sons, and the case is reported in Re Cilley, 58 Fed. 977. This is an application or petition for writ of error from such order of dismiss· al, to the supreme court of the United States. In re Pennsyl. vania Co., 137 U. S. 451·454, 11 Sup. Ct. 141; Patten v. Cilley (1892) 1 C. C. A. 522,50 Fed. 337; and In re Coe, 5 U. S. App. 6, 1 C. C. A. 326, and 49 Fed. 481,-would seem to settle this question against the petitioner. The case first cited was a petition for removal on the ground of local prejudice; and Mr. Justice Bradley, in denying the petition for mandamus, seems to have made no distinction between the dismissal of a petition for removal and a remanding order. In re Coedoes not suggest any distinction, and, indeed, the opinion in that case is based upon the idea that the order is not a final decision of the cause, but rather a refusal to hear and decide, from which there is no appeal. The dismissal of a petition for removal is as much a refusal to hear and decide a.s a remanding order, and we do not see our way clear to make the distinction which the petitioner claims. See, also, McLish v. Hoff, 141 U. So 661, 12 Sup. Ct. 118; Railroad Co. v. Roberts, 141 U. S. 690, 12 Sup. Ct. 123; Joy v. Adelbert College, 146 U. S. 355, 13 Sup. Ct. 186; Wauton Vo De Wolf, 142 U. S. 138, 12 Sup.Ct. 173; American v.62F.no.7-32