Salvage. The brig
Hope, with a valuable cargo, had been
conducted in the evening by a pilot inside of Mobile Point, where
pilots of the outer harbor usually leave vessels which they pilot
inside of that bar. The pilot was discharged, and the
Hope
proceeded up the Bay of Mobile. The wind soon after changed, blew a
violent gale from the northwest, both anchors parted, and the
Hope was driven on a shoal outside of the point among the
east breakers. The gale increased to a hurricane and forced the
vessel on her beam-ends, and her masts and bowsprit were cut away.
The master and crew deserted her to save their lives. After various
fruitless efforts to save her, the libellants, all pilots of the
outer harbor of Mobile, two days after she was stranded and while
yet in great peril, succeeded, and she was brought up to the City
of Mobile by them, towed by their pilot boat, assisted by a
steamboat employed by them. On a libel for salvage, the District
Court of the United States for the District of Alabama allowed as
salvage one-third of $15,299 58, the appraised value of the brig
and cargo. The owners of the brig and cargo appealed to this
Court.
The amount of salvage allowed by the district court is certainly
not, under the circumstances of the case, unreasonable. This Court
is not in the habit of revising such decrees as to the amount of
salvage unless upon some clear and palpable mistake, or gross
overallowance of the court below. It is equally against sound
policy and public convenience to encourage appeals of this sort in
matters of discretion unless there has been some violation of the
just principles which ought to regulate the subject.
Suits for pilotage on the high seas and on waters navigable from
the sea as far as the tide ebbs and flows are within the admiralty
and maritime jurisdiction of the United States. The service is
strictly maritime, and falls within the principles already
established by this Court in the case of
Thomas
Jefferson, 10 Wheat. 428, and
Peyroux v.
Howard, 6 Pet. 682.
The jurisdiction of the district courts of the United States in
cases of admiralty and maritime jurisdiction is not ousted by the
adoption of the state laws by the act of Congress. The only effect
is to leave the jurisdiction concurrent in the state courts, and,
if the party should sue in the admiralty, to limit his recovery to
the same precise sum to which he would be entitled under the state
laws, adopted by Congress, if he should sue in the state
courts.
A pilot, while acting within the strict line of his duty,
however he may entitle himself to extraordinary pilotage
compensation for extraordinary services, as contradistinguished
from ordinary pilotage for ordinary services, cannot be entitled to
claim salvage. In this respect he is not distinguished from any
other officer, public or private, acting within the appropriate
sphere of his duty. But a pilot, as such, is not disabled, in
virtue of his office, from becoming a salvor. On the contrary,
whenever he performs salvage services beyond the line of his
appropriate duties or under circumstances to which those duties do
not justly attach, he stands in the same
Page 35 U. S. 109
relation to the property as any other salvor -- that is, with a
title to compensation to the extent of the merit of his services
viewed in the light of a liberal public policy.
Seamen, in the ordinary course of things in the performance of
their duties, are not allowed to become salvors, whatever may have
been the perils or hardships or gallantry of their services in
saving the ship and cargo. Extraordinary events may occur in which
their connection with the ship may be dissolved
de facto
or by operation of law, or they may exceed their proper duty, in
which cases they may be permitted to claim as salvors.
It is not within the scope of the positive duties of a pilot to
go to the rescue of a wrecked vessel and employ himself in saving
her or her cargo when she was wholly unnavigable. That is a duty
entirely distinct in its nature, and no more belonging to a pilot
than it would be to supply such a vessel with masts or sails, or to
employ lighters to discharge her cargo in order to float her. It is
properly a salvage service, involving duties and responsibilities
for which his employment may peculiarly fit him, but yet in no
sense included in the duty of navigating the ship.
This was a case where the libellants acted as salvors, and not
as pilots. They had at the time no particular relation to the
distressed ship. They proffered useful services as volunteers,
without any preexisting covenant that connected them with the duty
of employing themselves for her preservation. The duties they
undertook were far beyond any belonging to pilots and precisely
those belonging to salvors.
The ship
Hope was bound to Mobile from Havana in
January, 1832, with a cargo of fruit, sugar, coffee, segars, and
tobacco. She arrived off the port of Mobile on 24 January, 1832,
took a pilot, and was carried safely within Mobile Point to a place
at which the pilots are usually discharged; the pilot then left
her, and she proceeded some distance up the bay and came to anchor
about six miles within Mobile Point.
In the night, the wind rose to a powerful gale, in the course of
which the brig parted her cables and was driven by the force of the
winds and waves below Mobile Point, where she grounded. The master
and crew, in order to save their lives, took to the boat and left
the brig and cargo.
The vessel remained grounded for some time in great peril,
having bilged, and having four feet water in her hold. The
libellants, who were pilots of the outer harbor of Mobile, after
having, without success, made previous efforts to board her, at
length succeeded, and less than half an hour afterwards, the wind
having changed, the vessel and cargo floated off and the libellants
took her in charge. Had not the libellants been on board
Page 35 U. S. 110
the
Hope at the time the wind changed, she would have
been driven on the opposite shore and would, with her cargo, in the
opinion of the witnesses examined in the district court, have been
totally lost. She was towed by the boats of the libellants into the
port of Mobile.
The libellants proceeded for salvage against the
Hope
and cargo, and the district court awarded to them, as salvage,
one-third of the value of the ship and cargo. The total value of
the property saved was $15,299.58.
The owners appealed to this Court.
Page 35 U. S. 117
MR. JUSTICE STORY delivered the opinion of the Court.
This is an appeal from a decree of the District Court for the
Southern District of Alabama in the case of a libel for salvage
instituted in the court below by the appellees. That decree awarded
to the appellees one-third of the appraised value of the brig and
cargo as salvage, the appraised value being $15,299 58.
The material facts of the case are as follows.
The brig
Hope, belonging to Charlestown, near Boston,
being on a voyage from the Havana to the port of Mobile on 24
January, 1832, took a pilot (who was one of the libellants) about
ten miles W.S.W. from Mobile Point, by whom she was conducted
inside of Mobile Point to the place where the pilots at the outward
bar of that point usually leave vessels which they pilot inside of
that bar, about half past seven o'clock of the evening of the next
day, and he was then discharged by the master of the brig. The brig
then proceeded on her course up the Bay of Mobile, and came to
Page 35 U. S. 118
anchor about nine o'clock the same evening. About this time the
wind changed to the northwest, and in the course of the night it
blew a violent gale; the brig parted both her anchors and was
driven outside of Mobile Point about two miles, and then brought up
among the east breakers. At this time the gale had increased to a
hurricane, the sea broke over the brig in every direction and
forced her on her beam-ends. At five o'clock in the morning, the
masts and the bowsprit were cut away to relieve and right her for
the safety of the vessel, cargo, and crew, and a signal of distress
was hoisted. At noon, the flood tide making, the breakers
increasing, and the gale continuing, there being two feet of water
in the hold, and the pumps being choked with coffee, the master and
crew, to save their lives and the ship's papers, left the brig in
the longboat and made for the shore, and were taken up by the
custom house boat. On the evening of the next day, the master of
the brig made arrangements with the libellants, who are all pilots
of the port of Mobile, with their boats and the crew of the brig,
to make efforts to extricate the brig and cargo from their perilous
condition. Accordingly, the next morning an attempt was made by the
libellants and the master (the mate and the crew of the brig
declining to assist) to get on board of the brig, but it still blew
so fresh that it became impossible to board her. The master of the
brig then went on shore from the pilot boat, which anchored at
Mobile Point. About one o'clock of the same day, the brig shifted
her position and the libellants discovered her to be nearly afloat.
The pilot boats were then got underway, and in about three-quarters
of an hour afterwards the libellants, being then on board, and no
other persons, the brig floated. At this time the wind was blowing
fresh from E.S.E.; and if the brig had not been taken possession of
by the libellants, she would have been drifted on the west bank,
and have become a complete wreck. The brig was then towed by the
pilot boats and a steamboat, procured by the libellants, to the
port of Mobile, in the course of the two succeeding days. Such are
the material facts.
In the course of the proceedings in the court below, an
agreement was asserted to have been made between the parties that
in case the vessel and cargo should be saved, the compensation
Page 35 U. S. 119
should be fixed by the Chamber of Commerce of Mobile. That
agreement, however, is denied by the libellants to have been
applicable to the actual circumstances of the case, and no
compensation was in fact awarded by the Chamber of Commerce. That
agreement has not been insisted on here in the argument on either
side, and indeed, being to a mere amicable tribunal as arbitrators,
could not in a case of this sort be now insisted upon to bar the
jurisdiction of the court. It is wholly unlike the case where a
positive law has fixed the mode of ascertaining the
compensation.
No objection has been made to the amount of salvage decreed by
the court below if the libellants are entitled to any. And the
objection has been properly abandoned, for the amount under the
circumstances is certainly not unreasonable. Besides, this Court is
not in the habit of revising such decrees as to the amount of
salvage unless upon some clear and palpable mistake or gross
overallowance of the court below. It is equally against sound
policy and public convenience to encourage appeals of this sort in
matters of discretion unless there has been some violation of the
just principles which ought to regulate the subject.
Three objections have been made to the decree:
First, that it was the duty of the libellants, as pilots, to
give every assistance in their power to a vessel in distress within
the limits of their pilot ground, and that this, being a service
rendered in the discharge of their duty, forms no case for a claim
of salvage.
Secondly, that the act of Congress on this subject, Act of 7
August, 1789, ch. 9, leaves the regulation of pilots to the state
laws, and that by the laws of Alabama any extra allowance claimed
by these pilots must be fixed by the wardens of the port.
Thirdly, that the district court had no jurisdiction of the
case.
In respect to the last objection it has been urged in a very
limited form, not as an objection to the jurisdiction of the courts
of admiralty to entertain suits for pilotage generally, but only
for pilotage under circumstances like the present, where a fixed
compensation is established, under the authority of Congress, by
the state laws. We are of opinion that suits for pilotage on the
high seas and on waters navigable from the sea as far as the
Page 35 U. S. 120
tide ebbs and flows are within the admiralty and maritime
jurisdiction of the United States. The service is strictly maritime
and falls within the principles already established by this Court
in the case of
The Thomas
Jefferson, 10 Wheat. 428, and
Peyroux v.
Howard, 6 Pet. 682.
The other part of the objection is not in our opinion
maintainable. The jurisdiction of the district courts of the United
States in cases of admiralty and maritime jurisdiction is not
ousted by the adoption of the state laws by the act of Congress.
The only effect is to leave the jurisdiction concurrent in the
state courts, and if the party should sue in the admiralty to limit
his recovery to the same precise sum to which he would be entitled
under the state laws, adopted by Congress if he should sue in the
state courts.
The second objection has been met at the bar by an argument of a
grave cast,
viz., that the act of Congress, so far as it
adopts the future laws to be passed by the states on the subject of
pilotage, is unconstitutional and void, for Congress cannot
delegate their powers of legislation to the states, and that as
Alabama was not admitted into the union as a state until the year
1819, and its laws on this subject have been long since passed (in
1822), these laws are
ipso facto nullities. This question
was much discussed in the case of
Gibbons
v. Ogden, 9 Wheat. 207-208, and may not be without
difficulties. But we are spared from any discussion of it on the
present occasion because we are of opinion that the present is not
a case of pilotage, but of salvage, and Congress have never
confided to the states any power to regulate salvage on the sea or
on tidewaters, but the same belongs to the district courts in
virtue of the delegation to them of admiralty and maritime
jurisdiction.
Whether, indeed, this be a case of salvage or not is the point
involved in the first objection, and we shall now proceed to state
the reasons why we are of opinion that it is.
We agree to the doctrine stated in the cases cited at the bar
that a pilot, while acting in it in the strict line of his duty,
however he may entitle himself to extraordinary pilotage
compensation for extraordinary services, as contradistinguished
from ordinary pilotage for ordinary services, cannot be entitled to
claim
Page 35 U. S. 121
salvage. In this respect he is not distinguished from any other
officer, public or private, acting within the appropriate sphere of
his duty. But a pilot, as such, is not disabled in virtue of his
office from becoming a salvor. On the contrary, whenever he
performs salvage services beyond the line of his appropriate duties
or under circumstances to which those duties do not justly attach,
he stands in the same relation to the property as any other salvor
-- that is, with a title to compensation to the extent of the merit
of his services, viewed in the light of a liberal public
policy.
Sir William Scott, in the case of
The Joseph Harvey, 1
Rob. 306, speaking upon this subject where pilots were claiming as
salvors, said
"This is a petition praying salvage, and it is said by his
Majesty's advocate that it is impossible for these persons to claim
salvage, as there is little more than pilotage due, although it is
allowed that the court may, in cases of pilotage as well as of
salvage, direct a proper remuneration to be made. It may be in an
extraordinary case difficult to distinguish a case of pilotage from
a case of salvage properly so called, for it is possible that the
safe conduct of a ship under circumstances of extreme personal
danger and personal exertion may exalt a pilotage service into
something of a salvage service. But in general, they are
distinguishable enough, and the pilot, though he contributes to the
safety of a ship, is not to claim as a legal salvor."
From this language it is obvious that the learned judge had in
his mind the distinction between extraordinary pilotage services
and salvage services properly so called, the one clearly going
beyond the mere line of duty and the other going merely to the
extreme line of duty. In the case of
The Aquilla, 1 Rob.
37, where a magistrate, acting in discharge of his public duty,
demanded to be considered as a salvor, the same learned judge
said:
"This, however, is certain -- that if a magistrate, acting in
his public duty on such an occasion, should go beyond the limits of
his official duty in giving extraordinary assistance, he would have
an undeniable right to be considered as a salvor."
The same principle was fully recognized by Mr. Justice
Washington in the case of
Le Tigre, 3 Wash.Cir. 169, 170,
171, in which, after stating that ordinary official duties were not
to be compensated by salvage, he added:
"Of this class of cases is that of a pilot
Page 35 U. S. 122
who safely conducts into port a vessel in distress at sea. He
acts in the performance of his ordinary duty, imposed upon him by
the law and nature of his employment, and he is therefore not
entitled to salvage unless in a case where he goes beyond the
ordinary duties attached to his employment."
MR. JUSTICE THOMPSON, in the MS. case of
The Wave,
cited at the bar, maintained the same doctrine upon an elaborate
review of all the cases. It has been also applied to another very
meritorious class of cases -- we mean that of seamen who in the
ordinary course of things, in the performance of their duties, are
not allowed to be come salvors, whatever may have been the perils
or hardships or gallantry of their services in saving the ship and
cargo. We say "in the ordinary course of things," for extraordinary
events may occur in which their connection with the ship may be
dissolved
de facto, or by operation of law, or they may
exceed their proper duty, in which cases they may be permitted to
claim as salvors. Such was the case of the seaman left on board in
the case of
The
Blaireau, 2 Cranch 268, and such was the exception
alluded to in the case of
The Neptune, 1 Hagg.Adm. 236,
237.
* In this last
case, Lord Stowell, after saying that the crew of a ship cannot be
considered as salvors, gave what he deemed the definition of a
salvor:
"What [said he] is a salvor? A person who, without any
particular relation to a ship in distress, proffers useful services
and gives it as a volunteer adventurer without any preexisting
covenant that connected him with the duty of employing himself for
the preservation of that ship."
And it must be admitted, that, however harsh the rule may seem
to be in its actual application to particular cases, it is well
founded in public policy and strikes at the root of those
temptations which might otherwise exist to an alarming extent to
seduce pilots and others to abandon their proper duty that they
might profit by the distresses of the ship which they are bound to
navigate.
Such, then, being the rule, let us see whether it has any
application to the actual circumstances of the present case. In the
first place, none of the libellants were, at the time of the
service
Page 35 U. S. 123
performed, at all connected with the
Hope in the
character of pilots. The pilot had been regularly discharged at the
usual place after arriving at Mobile Point, and he became,
therefore, as to her,
functus officio until there was some
new call for pilot duty. Now the subsequent services, asked by the
master and proffered by the libellants, as the very agreement
suggested in the proceedings abundantly shows, was not understood
by either of the parties to be for mere pilot services, but for
services of a far different and more extensive nature and character
than belong to such an employment.
Indeed in no just sense can the services of these libellants be
deemed to fall within the scope of the duties of pilots. Lord
Tenterden, in his excellent Treatise on Shipping, part 2, ch. 5, s.
1, 148, has defined a pilot to be "a person taken on board at a
particular place for the purpose of conducting a ship through a
river, road, or channel, or from or into a port." His duty,
therefore, is properly the duty to navigate the ship over and
through his pilotage limits, or, as it is commonly called, his
pilotage ground. The case therefore necessarily presupposes that
the ship is in a condition capable of being navigated --
distressed, if you please, and laboring under difficulties, but
still capable, in point of crew, equipments, and situation, of
being navigated. No one ever heard of its being within the scope of
the positive duties of a pilot to go to the rescue of a wrecked
vessel and employ himself in saving her or her cargo when she was
wholly unnavigable. That is a duty entirely distinct in its nature,
and no more belonging to a pilot than it would be to supply such a
vessel with masts or sails or to employ lighters to discharge her
cargo in order to float her. It is properly a salvage service,
involving duties and responsibilities for which his employment may
peculiarly fit him, but yet in no sense included in the duty of
navigating the ship. Lord Alvanley, in
Newman v. Walters,
3 Bos. & Pull. 616, puts a case far short of that, which is
here presented as a clear case of salvage.
"Suppose [said he] a tempest should arise while the pilot is on
board, and he should go off in a boat to the shore to fetch hands,
and should risk his life for the safety of the ship in a manner
different from that which his duty required; in such a case it
seems to me that he would be entitled to a compensation in the
nature of
Page 35 U. S. 124
salvage, and I am glad that Sir William Scott appears to
entertain the same opinion."
Now in the case here supposed, the pilot had already acquired a
relation to the ship by having actually entered upon the service as
such, and yet the learned judge holds it upon principle a clear
case of salvage.
What were the circumstances under which the present service was
performed? The brig was stranded upon a bank, with the sea rolling
over her; her masts, and bowsprit were cut away; her pumps were
choked; two feet of water were in her hold; she was deserted by her
master and crew, and incapable of navigation by herself, and even
when gotten off, she was navigated only by being towed by two pilot
boats and a steamboat into port. At this time the libellants had no
official connection whatsoever with her as pilots. Where, then, was
the obligation on them to go on board and take charge of a wreck,
and to hazard their lives and property and to apply their labor to
deliver the brig and cargo from their present imminent perils, any
more than on any other persons? We know of none. We think the whole
enterprise was an enterprise of salvage, and not of pilotage. It
was a case where they acted as salvors strictly according to the
definition of Sir William Scott. They had at the time no particular
relation to the distressed ship; they proffered useful services as
volunteers, without and preexisting covenant that connected them
with the duty of employing themselves for her preservation. The
duties they undertook were far beyond any belonging to pilots and
precisely those belonging to salvors.
For these reasons, therefore, we are of opinion that the decree
of the district Court of Alabama ought to be
Affirmed with costs.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Southern
District of Alabama and was argued by counsel, on consideration
whereof it is adjudged and decreed by this Court that the decree of
the said district court in this cause be and the same is hereby
affirmed with costs and damages at the rate of six percentum per
annum on the amount decreed by the said district court as
salvage.
*
See 3 Kent Comm.Lect. 47, 199 (1st edition);
The
Two Catherines, 2 Mason 319;
Newman v. Walters, 3
Bos. & Pull. 612.
