It cannot be doubted that a master has power to sell both vessel
and cargo, in certain cases of absolute necessity.
But this rule had no application to a wreck where the property
is deserted or about to become so and the person who has it in his
power to save the crew and salve the cargo prefers to drive a
bargain with the master, and where the necessity is imperative
because it is the price of safety.
No valid reason can be assigned for fixing the reward for
salving derelict property at "not more than a half or less than a
third of the property saved." The true principle in all cases is
adequate reward according to the circumstances of the case.
Where the property salved was transported by the salvors from
Behring's Straits to the Sandwich Islands and thence to New York,
the salvage service was complete when the property was brought to a
port of safety. The Court allowed the salvors the one-half for this
service, and also freight on the other moiety from the Sandwich
Islands to New York.
This was a libel filed by the owners of the ship
Richmond and cargo under circumstances which are
particularly stated in the opinion of the Court.
The district court dismissed the libel, thereby affirming the
sales.
The circuit court reversed this decree and declared the
Page 60 U. S. 151
sales invalid, but that the respondents were entitled to a
moiety of the net proceeds in the New York market of the articles
brought in their respective ships and sold by the said respondents
respectively, and that they pay to the owners of the
Richmond the other moiety of the said proceeds, with
interest, to be computed at the rate of seven percent per annum,
from the dates of the sales of the said articles.
The claimants appealed to this Court.
Page 60 U. S. 156
MR. JUSTICE GRIER delivered the opinion of the Court.
The libellants, owners of the ship
Richmond and cargo,
filed the libel in this case for an adjustment of salvage.
They allege that the ship
Richmond left the port of
Cold Spring, Long Island, on a whaling voyage to the North and
South Pacific Ocean in July, 1846; that on the 2d of August, 1849,
in successful prosecution of her voyage, and having nearly a full
cargo, she was run upon some rocks on the coast of Behring's
Straits, about a half mile from shore; that while so disabled, the
whaling ships
Elizabeth Frith and the
Panama,
being in the same neighborhood and about to return home, but not
having full cargoes, each took on board some seven or eight hundred
barrels of oil and a large quantity of whalebone from the
Richmond; that these vessels have arrived in the port of
Sag Harbor, and their owners are proceeding to sell said oil
&c., without adjusting or demanding salvage, unjustly setting
up a pretended sale of the
Richmond and her cargo to them
by her master.
The libellants pray to have possession delivered to them of the
oil &c., or its proceeds, if sold, subject to "salvage and
freight."
The claimants, who are owners of the ships
Frith and
Panama, allege, in their answer that the
Richmond
was wholly and irrevocably wrecked; that her officers and crew had
abandoned her and gone on a barren and uninhabited shore nearby;
that
Page 60 U. S. 157
there were no inhabitants or persons on that part of the globe,
from whom any relief could be obtained, or who would accept her
cargo, or take charge thereof, for a salvage compensation; that the
cargo of the
Richmond, though valuable in a good market,
was of little or no value where she lay; that the season during
which it was practicable to remain was nigh its close; that the
entire destruction of both vessel and cargo was inevitable, and the
loss of the lives of the crew almost certain; that under these
circumstances, the master of the
Richmond concluded to
sell the vessel at auction, and so much of her cargo as was desired
by the persons present, which was done on the following day, with
the assent of the whole ship's company.
Respondents aver that this sale was a fair, honest, and valid
sale of the property, made from necessity, in good faith, and for
the best interests of all concerned, and that they are the rightful
and
bona fide owners of the portions of the cargo
respectively purchased by them.
The district court decreed in favor in claimants; on appeal to
the circuit court, this decree was reversed, the sale was
pronounced void, and the respondents treated as salvors only and
permitted to retain a moiety of the proceeds of the property as
salvage.
The claimants have appealed to this Court, and the questions
proposed for our consideration are 1st, whether, under the peculiar
circumstances of this case, the sale should be treated as
conferring a valid title, and if not, 2d, whether the salvage
allowed was sufficient.
1. In the examination of the first question, we shall not
inquire whether there is any truth in the allegation that the
master of the
Richmond was in such a state of bodily and
mental infirmity as to render him incapable of acting, or whether
he was governed wholly by the undue influence and suggestions of
his brother, the master of the
Frith. For the decision of
this point, it will not be found necessary to impute to him either
weakness of intellect or want of good faith.
It cannot be doubted that a master has power to sell both vessel
and cargo in certain cases of absolute necessity. This though now
the received doctrine of the modern English and American cases has
not been universally received as a principle of maritime law. The
Consulado del Mare, art. 253, allows the master a power to sell
when a vessel becomes unseaworthy from age, while the laws of
Oleron and Wisby and the ancient French ordinances deny such power
to the master in any case. The reason given by Valin is that such a
permission, under any circumstances, would tend to encourage fraud.
But while the power is not denied, its exercise should be closely
scrutinized
Page 60 U. S. 158
by the court lest it be abused. Without pretending to enumerate
or classify the multitude of cases on this subject or to state all
the possible conditions under which this necessity may exist, we
may say that it is applied to cases where the vessel is disabled,
stranded, or sunk, where the master has no means and can raise no
funds to repair her so as to prosecute his voyage, yet where the
spes recuperandi may have a value in the market, or the
boats, the anchor, or the rigging are or may be saved, and have a
value in market; where the cargo, though damaged, has a value
because it has a market, and it may be for the interest of all
concerned that it be sold. All the cases assume the fact of a sale,
in a civilized country, where men have money, where there is a
market and competition. They have no application to wreck in a
distant ocean, where the property is derelict or about to become so
and the person who has it in his power to save the crew and salve
the cargo prefers to drive a bargain with the master. The necessity
in such a case may be imperative, because it is the price of
safety, but it is not of that character which permits the master to
exercise this power.
As many of the circumstances attending this case are peculiar
and novel, it may not be improper to give a brief statement of
them. The
Richmond, after a ramble of three years on the
Pacific in pursuit of whales, had passed through the Sea of Anadin
and was near Behring's Straits, in the Arctic ocean, on the 2d of
August, 1849. She had nearly completed her cargo, and was about to
return, but during a thick fog she was run upon rocks within half a
mile of the shore and in a situation from which it was impossible
to extricate her. The master and crew escaped in their boats to the
shore, holding communication with the vessel without much
difficulty or danger. They could probably have transported the
cargo to the beach, but this would have been unprofitable labor, as
its condition would not have been improved. Though saved from the
ocean, it would not have been safe. The coast was barren, the few
inhabitants savages and thieves. This ocean is navigable for only
about two months in the year; during the remainder of the year it
is sealed up with ice. The winter was expected to commence within
fifteen or twenty days, at farthest. The nearest port of safety and
general commercial intercourse was at the Sandwich Islands, five
thousand miles distant. Their only hope of escape from this
inhospitable region was by means of other whaling vessels, which
were known to be cruising at no great distance and who had been in
company with the
Richmond and had pursued the same
course.
On the 5th of August, the fog cleared off, and the ship
Elizabeth
Page 60 U. S. 159
Frith was seen at a short distance. The officers of the
Richmond immediately went on board and the master informed
the master of the
Frith of the disaster which had befallen
the
Richmond. He requested him to take his crew on board
and said, "You need not whale any more; there is plenty of oil
there, which you may take and get away as soon as possible." On the
following day they took on board the
Frith about 300
barrels oil from the
Richmond. On the 6th, the
Panama and the
Junior came near; they had not
quite completed their cargoes; as there was more oil in the
Richmond than they could all take, it was proposed that
they also should complete their cargoes in the same way. Captain
Tinkham, of the Junior, proposed to take part of the crew of the
Richmond, and said he would take part of the oil,
"provided it was put up and sold at auction." In pursuance of this
suggestion, advertisements were posted on each of the three vessels
signed by or for the master of the
Richmond. On the
following day, the forms of an auction sale were enacted, the
master of the
Frith bidding one dollar per barrel for as
much as he needed and the others seventy-five cents. The ship and
tackle were sold for five dollars; no money was paid and no account
kept or bill of sale made out. Each vessel took enough to complete
her cargo of oil and bone. The transfer was effected in a couple of
days, with some trouble and labor but little or no risk or danger,
and the vessels immediately proceeded on their voyage, stopping as
usual at the Sandwich Islands.
Now it is evident from this statement of the facts that,
although the
Richmond was stranded near the shore upon
which her crew and even her cargo might have been saved from the
dangers of the sea, they were really in no better situation as to
ultimate safety than if foundered or disabled in the midst of the
Pacific ocean. The crew were glad to escape with their lives. The
ship and cargo, though not actually derelict, must necessarily have
been abandoned. The contrivance of an auction sale under such
circumstances, where the master of the
Richmond was
hopeless, helpless, and passive -- where there was no market, no
money, no competition -- where one party had absolute power and the
other no choice but submission -- where the vendor must take what
is offered or get nothing -- is a transaction which has no
characteristic of a valid contract. It has been contended by the
claimants that it would be a great hardship to treat this sale as a
nullity, and thus compel them to assume the character of salvors,
because they were not bound to save this property, especially at so
great a distance from any port of safety and in a place where they
could have completed their cargo in a short time from their own
Page 60 U. S. 160
catchings and where salvage would be no compensation for the
loss of this opportunity. The force of these arguments is fully
appreciated, but we think they are not fully sustained by the facts
of the case. Whales may have been plenty around their vessels on
the 6th and 7th of August, but, judging of the future from the
past, the anticipation of filling up their cargo in the few days of
the season in which it would be safe to remain was very uncertain
and barely probable. The whales were retreating towards the north
pole, where they could not be pursued, and though seen in numbers
on one day, they would disappear on the next, and even when seen in
greatest numbers, their capture was uncertain. By this transaction,
the vessels were enabled to proceed at once on their home voyage,
and the certainty of a liberal salvage allowance for the property
rescued will be ample compensation for the possible chance of
greater profits by refusing their assistance in saving their
neighbor's property.
It has been contended also that the sale was justifiable and
valid because it was better for the interests of all concerned to
accept what was offered than suffer a total loss. But this argument
proves too much, as it would justify every sale to a salvor. Courts
of admiralty will enforce contracts made for salvage service and
salvage compensation where the salvor has not taken advantage of
his power to make an unreasonable bargain, but they will not
tolerate the doctrine that a salvor can take the advantage of his
situation and avail himself of the calamities of others to drive a
bargain; nor will they permit the performance of a public duty to
be turned into a traffic of profit.
See 1 Sumner 210. The
general interests of commerce will be much better promoted by
requiring the salvor to trust for compensation to the liberal
recompense usually awarded by courts for such services. We are of
opinion, therefore, that the claimants have not obtained a valid
title to the property in dispute, but must be treated as
salvors.
2. As to the amount of salvage.
While we assent to the general rule stated by this Court in
Hobart v.
Dorgan, 10 Pet. 119, that "it is against policy and
public convenience to encourage appeals of this sort in matters of
discretion," yet it is equally true that where the law gives a
party an appeal, he has a right to demand the conscientious
judgment of the appellate court on every question arising in the
cause. Hence many cases are to be found where the appellate court
have either increased or diminished the allowance of salvage
originally made even where it did not "violate any of the just
principles which should regulate the subject."
See The
Thetis, 2 Knapp 410.
Page 60 U. S. 161
Where it is not fixed by statute, the amount of salvage must
necessarily rest on an enlarged discretion, according to the
circumstances of each case.
The case before us is properly one of derelict. In such cases,
it has frequently been asserted as a general rule that the
compensation should not be more than half nor less than a third of
the property saved. But we agree with Dr. Lushington,
The
Florence, 20 E.L. & C. 622,
"that the reward in derelict cases should be governed by the
same principles as other salvage cases -- namely, danger to
property, value, risk of life, skill, labor, and the duration of
the service,"
and that
"no valid reason can be assigned for fixing a reward for salving
derelict property at a moiety or any given proportion, and that the
true principle is adequate reward according to the circumstances of
the case."
See also The Thetis, cited above
The peculiar circumstances of this case which distinguish it
from all others and which would justify the most liberal allowance
for salvage is the distance from the home port, twenty-seven
thousand miles; and from the Sandwich Islands, the nearest port of
safety, five thousand miles. The transfer of the property from the
wreck required no extraordinary exertions or hazards, nor any great
delay. The greatest loss incurred was the possible chance that
before the season closed in, the salving vessels might have taken a
full cargo of their own oil. But we think this uncertain and
doubtful speculation will be fairly compensated by the certainty of
a moiety of the salved property at the first port of safety. The
libellants claim only the balance, "after deducting salvage and
freight," conceding that under the circumstances, the salvors were
entitled to both. When the property was brought to a port of
safety, the salvage service was complete and the salvors should be
allowed freight for carrying the owners' moiety over twenty
thousand miles to a better market at the home port. As this case
has presented very unusual circumstances, and as we think the
claimants have acted in good faith in making their defense, all the
taxed costs should be paid out of the fund in court.
The case is therefore
Remitted to the circuit court to have the amount due to each
party adjusted according to the principles stated.
Order
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Southern
District of New York, and was argued by counsel.
Page 60 U. S. 162
On consideration whereof, it is now here ordered and decreed by
this Court that the decree of the said circuit court in this cause
be and the same is hereby reversed, and that this cause be and the
same is hereby remanded to the said circuit court with directions
to have the amount due to each party adjusted according to the
principles stated in the opinion of this Court, and that all the
costs of said cause in this Court, and in the circuit and district
courts, be paid out of the fund in the said circuit court.