652
81 FEDERAL REI'ORTER.
of the hmd [which is the subJect of controversy, and· for damages. During the trial, upon a motion for nonsuit by the defendant company, the court announced that the action could not be maintained in the form in which it tl).en was; and that, unless an application for leave to amend was made and allowed, the motion for nonsuit would be granted. Thereupon the defendant in error made application for leave to file his second amended complaint, which motion was allowed, and the complaint in its present form was filed. The defendant in error e,Xcepted to the ruling of the court to the effect that ejectment would not lie, and he now requests a review of this ruling, in the event of a reversal by this court of the judgment in his favor; and to this end he relies upon a stipulation by which "it is stipulated and agreed that plaintiff's exceptions upon the trial to the rulings of the court, as shown by the transcript upon defendant's writ of errol', may be considered upon the hearing in the circuit court of appeals with the same force and effect as if a writ of error had been allowed upon plaintiff's part, and duly certified by the court upon the trial." The decision already announced is decisive of the question. the objection· was waived by the defendant in error, by his election to amend his complaint and proceed as he has done. It was open to him to have stood upon his right to proceed in ejectment, or to adopt the course he has taken. He was at liberty to take one of two roads, but not both; nor can he at the same time accept and, reject the judgment under review. It follows that the judgment of the court below should be, reversed, and the ca.se remanded for further proceedings in accordance with this opinion. . THE (CircuIt Court of Appeals, Fourth CircuIt. May 3, 1898.)
No. 25S. 1. ADMIRALTY ApPBALS-FINDINGS OJ' COURT BELOW.
The circult.CQurts of appeals, In reviewIng admiralty cases, are not limited to questIons of law; but it Is the settled practice of these courts to give great weight to the conclusions of, fact by the trial judge" unless they are based on evidence manIfestly ·Insufflcient, and In cases of conflicting testimony, apparently Qf equal merIt, tQ follQW the concluslonlil reached below.
2.
SALVAGE..l.:AMOUNT OJ' COMPENSATION.
An ilward of $500 upon a salved. value of $1,522.50 held, excessive for servIces relldered by the first to arrive and most efficient ofa number of tugs which pumped water Into a burning barge; the time occupied being about 6112 hours, and there being no' danger to life or property. '.rhe award should be reduced on appeai to $250.
Appeal Distr.ict Court of the United States for the Eastern District of RobertM. Hughes, for appellant. T. S. Garnett) for appellee. SIMONTON, Circuit Judge. This is an appeal from a decree of the district court of the United States for the Eastern district of Virginia. It is a ease of salvage:'The barge Brandywine, on the
.THE BR,.\.NDYWINE.
653
morning of 20th April, 1897, was lying at the pier of Lambert's Point, near Norfolk. She was a large barge, some 190 feet in length, drawing when loaded 231 feet, engaged in carrying coal, and with a capacity of about 1,800 tons of coal. She had two decks. She had. no propelling power of her own, but was equipped with an engine used in the hoisting apparatus. This engine was forward in the between decks, in the forward part of the deck, in an engine room the whole width of the vessel, about 30 feet from the stem, back where the bulkhead comes. The engine room was entered by what was calIed the "companion 'way hatch," not the "fore hatch." The crew of the barge consisted of four men. Between 4 and 5 o'clock of this morning, the master of the barge was aroused from sleep by the calI of a watchman on the pier that the barge was on fire. Calling his men, he got out, and found the fire was in the engine room, and getting some assistance from the crew of a four-mast schooner near, he began to get the fire hose from the pier aboard his barge, and to put it in the hatch of the companion way. Just at that time, the tug, Emma Kate Ross, which was lying some distance off the pier with scows in tow, discovered the fire, and leaving her scows at anchor, went at once to the Brandywine. Placing her bow opposite the bow of the barge, she put on two streams of water, one from a pipe on her oW'n bow, the other from the deck of a pile driver alongside of her. Her deck was 10 feet below the deck of the barge, and the deck of the pile driver about on a level with the barge's deck. The Emma Kate Ross is a large tug, equipped with a powerful fire apparatus, her pump having the capacity of 6,000 gallons a minute. With these two streams she played water on the barge, chiefly on her deck and bow. After the Ross had been at the barge about a half or three-quarters ·of an hour, another tug, the Little Nell, came to the assistance of the latter, and began pumping water into her, followed in rapidsuceession by the Pocahontas, Louisa, Alvah Clark, and E. B. McCauly, alI tugs more or less suitably equipped for extinguishing fires, but none as well equipped as the Ross. For some time no men from the Ross went aboard the barge. But, after men from one or more of the other tugs boarded the barge, the master and crew of the Ross did so also. The testimony is very conflicting as to the amount and effectiveness of the assistance rendered to the barge by the Emma Kate Ross. She stood by the barge as long as she was at the pier, pumping water on and into her. About 9 o'clock two of the other tugs towed her away to some flats near. The Ross accompanied them, and, as soon as they reached the flats, rendered efficient service in turning the head of the barge to the wind. But the witnesses differ very much in their testimony upon the point who put out the fire. The court below, although no specific findings of fact are given, evidently solved this conflict in favor of the Emma K. Ross, by awarding her $500 as a salvage award. This court is not limited, as the supreme court was under act of 1875, to the review of questions of law only in an admiralty appeal. It can also review the findings of facts. The Havilah, 1 U. S. App. 1, 1 C. C. A. 77, and 48 Fed. 684; The State of Caiifornia, 7 U. S. App. 20, 1 C. C. A. 224, and 49 Fed. 172; 'l'he Philadelphian, 21 U. S. App.
654
00,:9'0; '6:1; 54: '423.' ,: Yetitis practice oft1;Us court tbgive greatweight t'Q tIle con(llllsions ,of fact by the tdal'judge, unless they based upon evidence manifestly insuffi· cie:r;tt, and incases of confiictingtestimony, apparently of equal merit, to.,follow the conclusions reached below. The Wilhelm, 16 U. S. App. 356,$ C. C. A. 72, and ,59 Fed. 169; The Alejando, 15 U. S. App. 98,6, C. C. A. 54, and, 56 621; The Lucy, 20 C. C. A. 660, 74 ,In subsequent ,discussion of this case, we assume that the services rendei'ed by tM Emma K. Ross were salvage services of meritorious,. character ; and the only remaining question is as to the amount of the award. '" The barge Brandywine, after was extinguished, was sold at auctiop., owners being present; and was bc;mght by a third person for, This is theg-ross value of the salved property to her owner, and the award mustbe ascertained with thissuni as a factor. As been seen,tbe-,jlistrictcourt awarded to the Emma K. Ross a,lon,e: $500, a tb,ird, ot:fhifisum. The services of the other to have entered into the estimate. We think this tugs do not, allowance The services'of the Emma K. Ross had some of theelemeptsof sa1vage se..yice,-promptness lmdefficiency. They had no element 9f danger to life Or property. Nor were they rendered to a Of aid from', aJ;1Y 'other quarter than the saJviIig vessel. Nqr ,were'they reIidered' alone. '.!:he other tugs were with her, rendering aid, if not asefIective as that by the Ross, certainly contributing materially in making Mr 'assistance success· f,pl,: lind efficiency of those other tugs, are demonstrated pythe fact the Emma,:r<:: Ross had left,tbebarge, the fire be· it broJ.{eout they ,her aiQaQle to extinguish it "For their services tlieil,'"owIiers are conteptwith]50 each. The Emma K.Ross was at IIi. tp,11 a: W:j"the Little Nell from about 5. a. m. ,t()abqut 3 Ii, 'ill.j,and the tligs left about an hour befor ;ber. the cases intMs circuit of rescue from fire are very few. ,Tlle Alice:M:inot, 30 Fed. 212" was a case in which a cotton vef;isel aflrewas tow¢l)py a tug-' into water, away from her wharf, and there by her crew 'fV1;l0 scuttled her. The court of the East· ern, distri,dof, Virginia awarded, the tug for salvage $50Q,., In that ,case the value of the saved was $72,00Q. In Cherokee, 31 Fed.. :167, of the Clyde Line, with a full ca,rgo, 'Was found to .very soon, leaving her ,dock. The tug Monarch went to began pumping on her with p0'rerful pumps, and towed her afil,'¢to herwliarf. Then, the fire department took charge ofher, the: flames. 'The district cour1; for the district Carohna $'850 for servICe. The prop· erty at peril was vlIlued at $272,500. , The S. B. ,:Baker, 23, Fed. 109, district of New York, is a case which li!olnewhat resembles tM,case at hal'. A fire broke out '4o.dng a l4n0n{ftM G9tlon bales whiclleomposed the cargo of tlie,li,ghterB,aker., , UPOl'( a: sIgnal from the superintendent 9£ the, wharves, ,It tug ,tow,@ hel' with her burning ca,rgo, from arid played' upon the fire with her small hose un· the slip into
BUTLER V.UNITED STATES.
655.
til the arrival of two city fire department tugs.
The tug then towed the three vessels (the lighter aIid two steam fire department tugs) to a place convenient for taking out the burning cotton. The vl;llue of the cotton saved was $20,000; of the lighter, $3,000; and of the tug, $14,000. Held, that $750 was a proper salvage award. This award was reduced on appeal in the circuit court to $350. It is true that new evidence in the higher court influenced this reduction. It is evident, however, that the court thought that the award of the district court, without this new evidence, was high enough. See, also, The Alice Clark, 39 Fed. 621. In the light of these cases, and taking into consideration the number of tugs actively engaged in the same work and at the same time with the Emma K. Ross, we think that $250 is a liberal reward to her for her salvage services on that occasion. Let the case be remanded to the district court, with instruction to modify its decree in reducing the salvage award to this sum of $250.
BUTLElt v. UNITED STATES.
(District Court, D. Indiana. No. 5,796.
June 15, 1898.)
1.
FEES 01.1' COURT OFFICERS-ATTENDANCE AND PER DIEMS.
Rev. St. §§ 574, 638, declare that the circuit and district courts sitting in equity or admiralty shall be deemed "always open" for the transaction of certain business. The act of March 3, 1887, forbids payment of per diems or attendance fees except for days "when the court Is opened by the jUdge for busineSS, or business is actually transacted in court," etc. Held, that the clerk Is entitled to attendance fees for days between regular terms on which he is required to attend, and does attend, on the transaction !>f business by the judge. . 'When, after docket entries, Indexes, etc., have been made, a criminal easels transferred from one place of holding the' district court to another, and then discontinued in the former place, the clerk Is entitled to his docket and Index fees therefor, although the costs have not been taxed at the place to which the case is removed. Where the witnesses for ,both parties are sworn at the same time, purSUllllt.to an order of the judge, the clerk Is entitled to have his fees th,erefor paid by the gOVernment.
BAME-CLERK'S FEES-DOCKETS AND INDEXES.
8.
SAME-SWEARING WITNESSES.
4. SAME-AFFmA,VITS OF INDIGENT DEFENDANTS.
The clerk Is entitled toa .fee'of 10 cents each for filing and entering af· fidavits of indigent defendants In criminal cases,on Which the court ,makes an order for summoning witnesses in their behalf. ' The clerk is entitled to fees for taking the affidavit of the marshal provo proofs are for the convenience Ing the accounts rendered by him, since and Protection of the government.
5.
SAME-AFFIDAVITS TO MARSHAL'S 'ACCOUNTS.
The facts in the above·entitled cause areatated in the finding of the court as foHows: (1) The court finds that the materIal averments of the petition and the facts alleged therein are true. ,,, " ,."., " ' (2) And ,the court finds thatNQbleC.Butler, the,petitioner, was on the filing ()f the petition; and ;now. a, Rll«:lresiden't ()f the city of Indianapolis