50
FEDERAL REPORTER.
witnesses do not agree, and there is great doubt and obscurity. Whatever there was, there were no guiding grooves and no sharp nothing adapted to pick up pills which were to be coated and then stripped so as to leave no material trace of the puncture. Even if Cauhape knew of all that was ther.e at the time, there was inventionin what he patented. The assignment from to the plaintiffs is satisfactorily proved as a valid assignment. The testimony of Wickham fully explains the interlineations. All the views urged on the part of the defendant have been carefully considered, although only the material ones have been commented on. There must be a decree for the plaintiffs as to the second claim of the patent, in this suit, and also in the suit against Neynaber.
MOCONNOCHIE and others v. 1. ADIDRALTy-JURISDICTION-Co-SALVORS.
KERR
and another.
(District Oourt, 8. b. New York. ,August 26, 1881.) vourts of admiralty have jurisdiction of an action to compel distribtition by one co-salvor, who has obtained the entire 'sIlJ\'age compensation,' among the other co-salvors entitled. 2. SALVAGE AND TOWAGE SEUVICES.
Tue steam-ship Colon, bound from Aspinwall to New York, became disahled in her machinery in the Bahamas. She had a 'full set of sails,' but was ,. at the mercy of the winds," and a hurricane, whieh was Dot unusual in those watets, "would have put the ship in jeopardy." .Being nearly becalmed, she employed the Pomona, bound for Jamaica, to tow her to the ;nearest anchorage, 57 miles distant, for repairs. Held, that the service rendered was in the nature of· salvage, and not a" mere towage service." Bemble it is not within the proper discretion of a master to deviate from his voyage to render,a mere towage service for the simple can" venience of another vessel in expediting her passage, unattended b'y any, circumstances of dilnger; and if such circumstances exist the service is salvage, for which officers and crew are entitled to share in the compensation. 3. SALVAGE-ARBITRATION-AWARD-BINDING ON PARTIES ONLY.
The owner and captain of the Pomona, having filed a libel against tue Colon, claiming salvage" in behalf of all lmtitled," the respective owners, after answer and before submitted to arbitration the question whether the service was salvage, and the amount of compensation. The arbitrator decided that the service :ivas not salvage, an,d awarded $3,000 to the .owner of the Pomona as for a towage service,which amount was paid to him,and the suit discontinued. Thereupon the present libel was filed by three of the crew to compel distribution of that money among the co-salvors. ' . Held, that as the $3,000 was awarded on the lJasis of a to"{age service only,
M'C()NNOOBIE V. KERR.
51
and not as salvage, and received by the owner as fOf towage, he was entitled to retain it to his own use. The officers and crew not having been parties to the former suit, nor to the award and the settlement under it, their rights and remedies I,lgainst the Colon are in no way affected by it. 4. EsTOPPEL.
Semble, upon a libel filed .. in behalf of all entitled," the libellant, so long as no others have become actual parties and no decree had, is not estopped from settling the suit for his own interest and retaining the proceeds, according to practice in analogous suits in equity. 2 Sim. & fltu. 196, note. See Stet1en8 v. The Raz"lroad8, 4 FED. REp. 97, and note, p. 110.
In Butler, Stillman a: Hubbard, for libellants. Hill, Wing « Shoudy, for respondents. BROWN, D. J. The libellants are three of the crew of the steamship Pomona, who filed this "libel and petition," in behalf of themselves and all others interested, to recover their share of $3,025.75, ll,lleged to have been received by the respondents Kerr and Mahlman, the·former as owner of. the Pomona and the latter as its captain, for salvage servioos rendered to the steam-ship Colon on July 14, 1880. The answer admits the receipt of the money, but alle/Ses tha.t the service rendered to the Colon was not a salvage, but a mere towage service, in which only, as o)'Vner of the Pomona, had any legal interest. If the money. in question was paid to and received by Kerr as salvage compensation, and for the entire service, as substantially alleged in the libel, I have no doubt of the jurisdiction of this courtto compel contribution to the libellants"in this action. The receipt of the whole compensation as salvage' wquld necessarily import its receipt .for the ·benefit of all other co-salvors interested in the same service; and the determination and apportionment of the several interests of co-salvors in the gross sum received by one of them would present questions peculiarly within the cognizance of a court of admiralty. Its jurisdiction in such 6ases has been frequently exercised in this country during the last half century. The Centurion, Ware, 477; Roffv. Wass, 2 Sawy. 538; Watljrbury v. MY1'ick, 1 B.& H. 34. Numerous other instances of this kind are cited by Judge in the careful opinion given 'by him in the case of Studley v. Baker, 2 Low. 205, which renders further references here unneces. sary. The questions .presented for decision are, whether. the service rendered to tb Colon was a salvage service, and, if so, whether the libellants have any claim for contribution from the moneys received
52
by the respondent Kerr on account of the'service rendered. facts relating to the nature of the service are as follows:
The
The Pomona was an iron steam-ship of 391 tons gross tonnage, valued at about $60,000. She was upon a voyage from New York to Montego bay, Jamaica, with three passengers, a full cargo of assorted merchandise, (value not stated,) and a crew of 15 persons. The libellants are the first and third engineers and one of the seamen. At about 2 .\.. M. of July 14, 1880, when in the Bahamas, she noticed signals from the Colon, which was lying nearly in her course, and bore towards her. As she approached she was met by a small boat from the Colon, bearing a request from Capt. Griffen for an interview with the captain of the Pomona. Capt. Mahlman thereupon went aboard the Colon, and was informed by Capt. Griffen that the after crank-pin of the shaft of his engine had been broken; that he desired assistance in getting to aD: anchorage, and wished to. be to Fortune lsland, to repair his machinery. That was the nearest safe anc1).orage, 57 miles distant, nearly north, and directly back of the Pomona's course. Capt. Mahlman replied that his "])bat was light and not calculated for towing, butthat he would do the best hecould." Capt. Griffen desired to agree' upon a, lump sum for the service, but this Capt. Mahlman declined, and it was agreed that the question of compensation shonlq be left to the owners. A hawser was accordingly run out from the Colon and made fast to the Pomonllo by the crew of the latter. They got un,der way at about 4, A, M. and arrived at Fortune bay at about 3:15 P. M. of the same day, where the Pomona left the Colon in safe age, and thence proceeded upon her voyage. The towage to Fortune bay was withOut difficulty, in a smooth sea, with alight, favorable wind for most of the way, and with the sails of both vessels set. .Th,e Colon was an iron steam-ship of about 2,680 tons, one of the line of ,the United States Pacific Mail Steam-ship Company, plying between New York and Aspinwall. She was upon one of her regular trips from Aspinwall to New York, and was tight. staunch, 'and strong, and in good condition except the disabling of her machinery. Besides the breaking of the after orank-pin, the columns above the engine were broken, the forward crank-shaft bent, and the condenser and the low-pressure cylinder cracked. These damages were considerable.. The low-pressure engine could not be repaired by any means at the command of the ship; but the high-pressure engine, with which she could proceed by steam, could have been repaired in about seven days, and was repaired in that time at Fortune island, when the Acapulco, of the same line, appeared and took her in tow to New York, without the use of this engine. Capt. Griffen testified that the Colon, at the time of the accident to lier machinery, was provided with a full set of sails; that she was then 31 miles S. t W. from Castle island light tower; that there was a slight current to the south-west; that the wind at the time was a light easterly trade, with periods of calm; and that as the wind then was he could have made, under sail, about a knot an hour. When asked if he could not have worked himself into some port, he replied: "We were at the mercy of the winds. If we had good winds
M' OONNOCHLE'Q. KERR.
58
we could ha.ve gone a.nywhere. We could have reached anchor and sent parties for relief." He also test,ifi,ed that the gales incident to that region were "northers and hurricanes j" that" in a northerly gale the ship was in a good berth;'; but that "a hurricane would have placed the ship in jeopardy." Before reaching Fortune island the wind had died down to perfect calm. While on their way thither two other vessels were sighted going to or from New York.
Upon these facts I must hold the service rendered to the Colon to have been nota mere towage service, but in the nature of salvage, within numerous decisions of this court in analogous cases, some of them of quite recent date. The Steamer Leipsic, 5 FED. REl'. 108, 118 j Brooks '1. The Adirondack, 2 FED. REP. 887; 872; Atlas Steam"ship Co. v. Steam.ship'Colon,.4FED. HElP. 469; The Sarago8sa, 1 Ben. 551; TheE1nily B. Souder, 15 Blatchf.,185;, See, a:lso,Mayo v.Clark, 1 FED. REP, 785; ;Corwinv. ,The Barge Chase,' 2 FED'. RJl1P. 268; Ehr1lU1,n·v.i 1'/w.SwijtBure, 4FEDi REP. 468; TM'Athenian, 8 J£w:>. REP. 248; The Reward, 1 W. Rokl7:4; The Charlotte; 3 W.: R9:b. 71. ,4. salvage service is a service which is voluntarily rendered to"Hi vessel needing, assistance, and ,is designed to relieve het from 'some or flanger either present or to be reasonably apprehended. A towage service- is one which is. rendered for the mere purpose of expediting her v.oyage, without reference to any circumstancesM dan.' ger. "Mere towage service," says Dr. Lushington, (The Reward, -1 W.Rob.177,) "is confined to vessels that hav:ereceived no injury or 4amage j and there towage reward is payable in those cases only where the vessel receiving the sexvice is in the same condition she would ordinarily be in without having encountered any damages or accident." And in The .princess Alice, 3 W. Rob. 138, he says: "It is the employment of one vessel to expedite the voyage of another." To constitute a salvage service it is "not necessary that the dis. tress should be actual or immediate, or the danger imminent and absolute; it is sufficient if at the time the assistance is rendered the ship ha,s encountered any damage or misfortune which might possi. bly expose her to destruction if the service were not rendered." The Saragossa, 1 Ben. 551, 558; The Charlotte, 8 W. Rob. tl8, 71. So, if a yessel is "in a situation of actual apprehension. though not of actual danger." The Raikes, 1 Hagg. 247; The Phantom, L. R. 1 Adm. 58; The Joseph C. Griggs, 1 Ben. 81. . And "the degree of dan. ger," says Dr. Lushington, "is immaterial in considering the nature of the'service." The Westminster, 1 W. Rob. 232.
But if the evidence shows that the vessel was free from all circumstances of danger, present or apprehended; that ordinary towage servo' ice, at ordinary rates, could have been shortly obtained, so that salvage compensation could not be presumed to have been intended; and that the towage was rendered for no other purpose than to expedite the completion of the voyage,-the service will be deemed to be a towage service only. The, Emily B. Soude,r, 15 Blatchf. 550. Had the Colon, in this instance, been in no apprehension of danger; had she been able, in the judgment of her master, to continue her voyage under sail without any reasonable fear of hazard beyond the, ordinary perils of navigation, as in, the case last cited,no reason appears why he should not have continued on his voyage, instead of interrupting. it and proceeding to Fortune island for repairs. Nor would the master of the Pomona, under these circumstances, have been justified in going back upon his course, involving a delay of nearly a day in his Own voyage. That was a plain deviation, involving, presumably, a violation of the vessel's contracts with everyone oIlts seamen, insurers, and freighters. By the maritime law the master has an implied discretionary authority to make such deviations in the interest of commerce and humanity, in order to save endangered life or property. The Centurion, Ware, 490-; The Hooper, 3 Sumn. 542,579. In the award of salvage pensation, account is taken of the increased obligations resulting from such deviations. But I have not been referred to any authority, nor do i find any, holding that it is within the lawful discretion of a master to make such a deviation from' his own voyage as was made in this case, merely for the convenience of another ve8sel, or simply to expedite its progress, in the absence of all circumstances of danger. Ordinarily, deviations of that character would be plainly opposed to tho interests of commerce, and deserve censure rather than reward. It is not to be presumed, therefore, that such a departure from the voyage of the Pomona was either, asked for or assented to, except upon the ground that the Colon was in actual need of assistance, through circumstances of apprehended danger, and that some salvage compensation was expected to be paid. The Colon, at the time this assistance was rendered, was not, like the Emily B. Souder, in the same condition as to her ,motive power in which she was when she left her last port; nor did. she seek merely to expedite her voyage, but to get to safe anchorage as speedily as possible fol' repairs. The nearest safe anchorage was 57 miles distant, and 6be was nearly
55 heahned at the time the help. of the POD;lc,wa was procured. There \\,'b 1t breeze of but one knot. an hour, with. periods of calm; and it was quite uncertain how soon she would'be able to reach any port or 'safe anchorage, unassisted.. If he had me£ no vessel to assist him, the captain says he would hi:loVe sought anchorage and sent out parties {or relief ; that the vessel was "at the mercy of the winds," and that a.hurricane, which, with "northers," were the ordinary storms of tHose waters, "would have put the ship in jeopardy." Through the disabling of her machinery she was, therefore, no longer prepared to the ordinary contingencies of navigation in the Bahamas, proceeding on her yoyage' or in seeking a place of safety. These were circumstances of danger, though not of immediate peril, which justified the' Colon in. asking help of the first vessel, thll:t appeared.. They justifiedthecapt8lin of the Pomona, under his iD:1pHed authority, to deviate ·for purposes of salvage, in departing ftomher own voyage to io"the Colon to a safe anchorage, and conPomopA. and her crew too. IX).oderate com pensation.· .' , .. .' .. . By the accident to the: Colon she had. become unseaworthy. for navigation in those waters.. If the'interests of COIlllIlerce, of freighters; and ofihsurersall "require that'no unnecessary risks be taken by a vessel's continuance at sea in a dlsabled and tinseaworthy condi. tion, (Padelford v. Bordma,n, 4 the sdme interests dema.nd that encouragelllents be. to captaIn and crew, as incases of strict salvage,toassist aU vessels so situated, whenever desired, into port or to' a safe anchorage, as truly as ,in cases of immediate and present peril. And,' whatever 8utnS are allowed for the service in such a it is obvious that all extra cornpensaJtion, over and above an actual to the salving vessel. for the increased cost, expense, risk, and, liability incurred through her devi. ation to render such· assistance, ought in justice to he shared between the ship and her cOlllpany, upon the s.amepl:lP-ciples on .which sal. vage is distributed, and not awafded to 'the vessel alone; and all such service should held and, treated as in'the nature of . sal·vage. '\', 'The qnestion rernait19 the 'libeHants,'beingantitled to shar?in salvage compensation, have any Kerr for the moneys paid to him on account of the service renderad. The facts in relation; to thep,a.Yinent of 'the money' are the : · . . ' . I
56
On the twenty-seventh of July, 1880, shortly after the arrival of the Colon in New York, the respondents filed a libel against the Colon and her cargo, "in behalf of themselves and all others entitled," claiming salvage compensation, but not stating the amount claimed. The vessel and cargo were attached, and bonds in the sum of $50,000 executed for her release. An' answer was filed on September 7th by the Pacific Mail Steam-ship Company, as owner and claimant, which concluded by alleging that" the service rendered was only towage, and should not be ranked as salvage service of peculiar merit," and tendered $1,000 as "ajust compensation for the services rendered." Though the libel purported to be "in behalf of others entitled," it did not state the or the number of the. officers or ,crew, or make any other reference to them, or pray for any reli(;jf in their behalf. No other persons were made co-libellants, and there were no other actual parties to that suit. ' It does not appear that any citation was published, nor that any of the officers or crew of the Pomona, except the captain,who was one of the libellants, had. any knowtedge of the suit or of the subsequent proceedings. Pomona, and Mr. Houston, On October 2, 1880, Mr. Kerr, the owner of of the claim to agent of the sFeam-ship company, ',arbit,ration. The submission was oral, and the award, madeon the same day, was also oral. Mr. Dennis, the arbitrator, was ca.lled as a witness in this action. From his testimony it appears that at the hearing before him Mr. Houston and Capt. Griffen were present in behalf of the Colon, and Mr. Kerr and his agent, Mr. Wessels, of the Pomona; that Capt. Mahlman was not present, nor these libellants, nor any other member of the officers or crew of the Pomona; that the questions submitted to the arbitrators were-"First, whether it was a salvage service; second, as to compensation; " that the parties present" agreed to abide by his award, whatever it might be;" that Capt. Griffen made a statement of the condition of the vessel and her general exposure,and submitted his private log; that Mr. Kerr and Mr. Wessels made a statement of what they had. received from Capt. Mahlman; and" whether it was a salvage case" was pretty thoroughly discussed. He says: "I made my award in these words: that 1 did not regard the services as anything more than in the natl-ue of a towing service. and that I should consider $3,000 would be a very liberal amount for compensation, and my decision was to award $3,000 in full for the service; the owner of the Colon to pay the legal expenses that had been incurred by the Pomona." He also testified: " I did not intend, in the $3,000, to provide or include any compensation for anyone other than the owner of the steam-ship Pomona. I did not consider the crew as entitled to any portion. That question was not raised, but it was considered in my mind. I regarded this exclusively as a towage service. It was compensation awarded to the Qwner of the vessel for the service. The gross freights usually earned by the Pomona, on a regular trip of 25 days, would be about $4,000. In awarding $3,000 I did not go on the basis of ordinary towage rates. I did not consider such services ordinary towage. I had regard to the position of the vessel, her capacity to make harbor herself, and the danger to which she might be exposed. In my jUdgment, compensation for the diversion of sucb a vessel from bel' regular business for such ser, vice cannot be measured by the daily earnings of her regular busiIwss." The respective owners expressed themselves satisfied with this r-ward, and
M'CONNOCHIE
v.
KERR.
5'1
on October 4th the $3,000, with $25.75 for costs, were paid to the proctors of the libellants in the former action, and the following receipt therefor was given np0l1 discontinuance of that action: . [Title of cRnse.] "Received from the Pacific Mail Steam-ship Company the sum of $3,025.75, the amount agreed upon in settlement of the aboveenti tIed action j the fees of the officers ot the courts to be paid by the claimants. "New Yorl" Odober 4, 1880. JAB. K. HILL. "'YING & SnOUDY, Proctors for libellants."
From these facts it appears unmistakably, by the very terms of the award,-(l) That the claim of salvage was disallowed, and that, by consequence, all claims of the crew upon the moneys awarded were excluded, and intended to be excluded; (2) that the aWll,rd of $3,000 was made to the sole use of Kerr, as owner of the vessel, and as compensation for a towage service only, and not for salvage; (3) that the allowance of $3,000 was made upon the basis of this lower grade of service as towage, and not upon the more remunerative basis of salvage; (4) it also appears that the terms and intent of the award were made known to the parties to it, that they acquiesced in it, and that the moneys in question were paid to Kerr in execution of it.. A settlement thus made is binding upon the parties to it. Neither side, as against the other, can afterwards legally or equitably assert any claims at variance with its intent or legal effect. Though the service rendered might be subsequently adjqdged to be a salvage service, in proceedings by other persons interested, Kerr could claim no benefit from any share in the compensation that would have been awarded to him as owner, though it might be much larger than that. received in his settlement; nor could the owners of the Colon claim any protection or indemnity from Kerr against the claims of any other . persons not bound by the award and settlement. Nor can the court vary the amount of compensation awarded; but, as it was made upon the basis of a towage service only, it must be presumed to have been much less than would have been awarded to Kerr upon the basis of a salvage compensation. The Emily B. Souder, 15 Blatch!. 185.
As this court cannot directly set aside or vary the terms of the award and settlement, so it cannot do so indirectly at the suit of others by compelling Kerr to share with them the money which was paid to him for his own separate interest as owner, unless others have a clear legal right in the fund, and no other legal remedy exists. For if they still have other adequate remedy against the Colon for their compensationl the right of Ke,rr to the full benefit of the settle-