l A libel for salvage may be filed in the name of the master and
owners of the salving vessel, although the master may make no claim
in his own behalf, but, contrariwise, may disclaim.
2. A tug towing, under the direction of the fire department of a
city, fire engines commonly used on land from a wharf into a harbor
where a vessel is on fire, and laying alongside of the burning
vessel while the engines throw water upon her, is entitled to
salvage, the fire being successfully extinguished.
3. The owners of the tug will not be deprived of salvage because
the representatives of the fire department have not made a claim as
co-salvors.
4. A vessel owned by a corporation may be entitled to salvage,
the vessel being otherwise a salvor.
The
Camanche, 8 Wall. 476, affirmed on this point.
5. One-twentieth part of the value of the property saved allowed
to a tug carrying fire engines, and laying beside a burning vessel
while the engines, under the management of the fire department of
the town, worked them and extinguished the fire. This reversed a
decree which had allowed a tenth for her salvage service, the fire
department having presented no claim, no allowance having been made
to it, and the tenth allowed having apparently been an allowance
for the whole salvage service.
6. Non-prosecution of their claim by one set of salvors enures
to the benefit of the owners of the vessel, and not to that of
other salvors who do prosecute their claim.
Page 77 U. S. 2
About 4 o'clock on the morning of the 24th of August, 1867, the
British ship
Blackwall, then at anchor in the harbor of
San Francisco, was discovered to be on fire. Shortly afterwards,
the alarm was communicated to the shore, and the fire department of
the city called out. As soon as the cause of the alarm was
ascertained, the chief engineer of the fire department, with an
officer of the harbor police, proceeded to the steam tug
Goliah then lying at one of the city's wharves and
belonging to an incorporated towing company of San Francisco, and
having aroused the person in charge, requested him to "fire up"
without delay in order that the engines might be conveyed on the
tug to the burning vessel. This, after a few moments' hesitation,
arising it was plain from reluctance to act without orders, he
proceeded to do. Messengers were dispatched to the captain and
engineer of the tug, who were asleep at their homes on shore, and
every effort made to get steam on the tug as quickly as possible.
The captain and engineer were aroused, and at once repaired to the
wharf. It being found impracticable for the tug to go into the slip
where the fire engines lay, two of the latter were brought around
to the wharf where the tug was and taken across the deck of a
steamboat which lay between the wharf and the tug, and so on to the
tug with promptitude and skill. About 6 o'clock, the tug, with two
engines on board, together with the firemen &c. attached to
them, moved from the wharf, and in a few minutes were alongside the
ship. The fire had by this time made considerable progress. The
house on deck between the fore and mizzen masts was on fire, and
the flames were mounting nearly half way to the tops. The ship was
also burning between decks, where the fire first originated. The
officers and crew, though assisted by a party from the United
States ship
Lawrence, having found all attempts to subdue the
flames abortive, had desisted from further efforts and had, a few
moments before the Goliah arrived, left the vessel with their
effects in small boats. Without speedy assistance, the total
destruction of the ship and cargo was inevitable. The measures of
the firemen and officers of the tug were taken with great
Page 77 U. S. 3
skill and energy. The hose of the engines was charged as the tug
approached the vessel, and as soon as she was near enough, four
streams were directed upon her. The tug, without hesitation or
delay, was made fast alongside the Blackwall. The firemen almost
instantly mounted her rails, went thence to her forecastle, and
from thence to her deck, sweeping the latter with four powerful
streams, by which the fire was speedily controlled. They then
descended to her between decks, and in a little more than half an
hour the flames were entirely extinguished. Her anchor was then
weighed by the advice of the captain of the tug, and the vessel was
towed to certain flats near one of the city's wharves. The tug was
then dismissed, and the engines were taken to the shore and
landed.
As to the degree of danger incurred by the tug there was some
conflict of testimony. That she was promptly and boldly laid
alongside the burning vessel was undisputed. That she caught fire
once or twice was proved, although this fire was instantly
extinguished, and with the powerful appliances she had on board the
danger from this cause was perhaps not great.
The chief risk incurred by her was from the falling of the masts
or spars of the vessel. An accident of this kind, had it occurred,
might have proved disastrous to the tug, and perhaps to many on
board. The danger was not supposed to arise from the burning of the
shrouds, for they were of wire, but from the fact of the mast
seeming consumed by the fire, which had been burning between decks
for several hours. As a matter of fact, it was found on subsequent
examination that the mast was but little burnt, and was in no
danger of falling. And the chief engineer of the fire department
testified that he became convinced very soon after getting on board
that all fears of the masts falling were groundless. These fears
were, however, entertained and expressed not only by the officers
of the tug, but by the pilot and by the mate of the ship, so much
so that axes were got in readiness to cut away the shrouds on the
port side of the vessel in order that the mast might fall to the
other side.
Page 77 U. S. 4
It is also to be observed that the tug encountered the risk of
the possible existence of explosive substances on board the vessel,
and also, though this risk was slight, that of her own machinery or
that of the fire engines becoming unserviceable while she lay
alongside the vessel.
The tug, however, was not the sole salvor. Without her
assistance, indeed, the fire engines would have been powerless to
save the ship, but without these engines, on the other hand, the
tug's aid would have been just as ineffectual.
In this state of facts, the towing corporation, which was owner
of the tug, and one Clark, her master, filed a libel against the
ship and cargo in the district court at San Francisco for salvage.
The libel alleged that the ship was on fire; that the cargo as well
as the ship was in great danger, and that both would have been
destroyed had it not been for the exertions of the steam tug, her
master, and crew; that the master and crew went with the steam tug
to the assistance of the ship, and that they succeeded, after great
trouble and great risk to the tug, in quelling and subduing the
flames, and that they then towed the ship to a place of safety. The
fire department was no party to the libel, and in his testimony the
master stated that his name was used in the libel only for the
company owning the tug, and that he himself claimed no interest.
The value of the ship and cargo, so far as saved, was $100,000; the
value of the tug about $50,000. The district court decreed "that
libellants do have and recover of the claimants $10,000 with their
costs," and this decree having been affirmed in the circuit court,
the owners of the Blackwall now appealed to this Court.
Page 77 U. S. 8
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Salvage is claimed by the libellants, as owners of the steam tug
Goliah, for services rendered by the steam tug, her master
and crew, on the twenty-fourth of August, 1867, in saving the ship
Blackwall and her cargo, then lying at anchor in the
harbor of San Francisco. They allege that the ship was on fire,
that the cargo as well as the ship was in great danger, and that
both would have been destroyed had it not been for the exertions of
the steam tug, her master and crew; that the master and crew went
with the steam tug to the
Page 77 U. S. 9
assistance of the ship, and that they succeeded, after great
trouble and great risk to the tug, in quelling and subduing, the
flames, and that they then towed the ship to a place of safety.
Information that the ship was on fire was communicated to the
master of the steam tug by one of the deckhands of the tug, and he
went immediately to the slip where she was lying in order to give
directions to the men on board to kindle up the fires and put on
steam, but he found on arriving there that one of the harbor police
had been there before him, and that he had made a similar request,
and that the firemen of the tug had started the fires for the
purpose of putting on steam.
Two persons were sent to the ship, which was lying at anchor in
the harbor some seven or eight hundred yards from the wharves, to
see if there was any chance to extinguish the flames, and they
reported that the ship might be saved. She was an English ship of
twelve hundred tons burden, and she was ready to sail for her port
of destination with a cargo consisting of thirty-eight thousand
five hundred and one sacks of wheat, valued at sixty-thousand
dollars, and she was lying at anchor where the water was eight or
ten fathoms in depth. They discovered the fire at four o'clock in
the morning, and at six o'clock or a quarter past that hour they
proceeded to the ship in the steam tug, having previously taken on
board two steam fire engines, each weighing five tons, with the
engineer and several firemen belonging to each engine, and the
chief engineer of the fire department, making twenty persons,
including the master and crew of the steam tug. Both engines were
well supplied with hose, and they had on board a considerable
supply of fresh water. When the steam tug reached the ship, those
on board had become discouraged, and there were ten or twelve boats
around the ship taking off the crew, but the boats were utterly
unable to do anything towards extinguishing the fire.
Commanded, as all on board the steam tug were, by her master,
their first act, after running alongside, was to fasten a stern
line to the main chains of the ship so as to lie across
Page 77 U. S. 10
the tide on the port side of the ship. At that time, the fire
seemed to be between decks, but the houses of the ship on deck were
also on fire. Great apprehension was felt lest the foremast should
fall, as it was on fire between decks, and the flames had extended
to the deck and twenty feet up the mast. Her bulwarks were also on
fire, and the master of the tug deemed it necessary to cut away the
port rigging attached to that mast to prevent it from falling
across the steam tug. They put the engines in operation promptly,
putting four streams of water on to the ship, and by those means
extinguished the fire in an hour, the firemen working the engines
under the command of their respective engineers. Some of the
persons present advised the master of the steam tug to unshackle
and slip the anchor, but he insisted that it could be saved, and it
was hoisted on board the ship by the windlass.
Promptness and efficiency characterized the conduct of all
engaged in performing the service throughout the transaction, and
the steam tug, as soon as the fire was subdued and extinguished,
took the ship in tow and proceeded with her to the adjacent flats,
and left her there in safety in charge of her master and crew.
I. Certain preliminary objections are made by the appellants to
the maintenance of the suit, which will be first considered before
proceeding to examine the merits. Those objections are as
follows:
(1) That the master, having no interest in the claim, is
improperly joined in the suit.
(2) That the libellants have no just claim to compensation, as
the salvage service was performed by the members of the fire
department.
(3) That the service having been performed by the members of the
fire department in pursuance of a public duty, they are not
entitled to any compensation as salvage.
(4) That the decree, inasmuch as it is joint, in favor of the
master as well as the owners of the steam tug, is erroneous because
the master makes no claim to recover any compensation for his
services.
1. Salvage suits are frequently promoted by the master
Page 77 U. S. 11
alone, in behalf of himself and the owners and crew, or in
behalf of the owners and crew, or the owners alone, without making
any claim in his own behalf, and the practice has never led to any
practical difficulty, as the whole subject, in case of controversy,
is within the control of the court. Much examination was given to
the question as to proper parties in a salvage suit decided at the
last term, in a case where the owners of the steamer rendering the
service were an incorporated company, and by reference to the
authorities cited in the opinion of the Court in that case, it will
be found that the suit is frequently promoted in the name of the
master, or of the company and master, as in this case. [
Footnote 1]
Many other cases of like import might be referred to, but it
must suffice to say that the Court is of the opinion that the suit
is well brought. [
Footnote
2]
2. Service undoubtedly was performed by the members of the fire
department, but it is a mistake to suppose that service was not
also performed by the steam tug, as it is clear that without the
aid of the steam tug and the services of her master and crew, the
members of the fire company would never have been able to reach the
ship with their engines and necessary apparatus or to have subdued
the flames and extinguished the fire. Useful services of any kind
rendered to a vessel or her cargo exposed to any impending danger
and imminent peril of loss or damage may entitle those who render
such services to salvage reward.
Persons assisting to extinguish a fire on board a ship or
assisting to tow a ship from a dock where she is in imminent danger
of catching fire are as much entitled to salvage compensation as
persons who render assistance to prevent a ship from being wrecked,
or in securing a wreck, or protecting the cargo of a stranded
vessel. [
Footnote 3]
Page 77 U. S. 12
Salvage is the compensation allowed to persons by whose
assistance a ship or her cargo has been saved, in whole or in part,
from impending peril on the sea or in recovering such property from
actual loss, as in cases of shipwreck, derelict, or recapture.
Success is essential to the claim, as if the property is not saved,
or if it perish, or in case of capture if it is not retaken, no
compensation can be allowed. More than one set of salvors, however,
may contribute to the result, and in such cases all who engaged in
the enterprise and materially contributed to the saving of the
property are entitled to share in the reward which the law allows
for such meritorious service, and in proportion to the nature,
duration, risk, and value of the service rendered. [
Footnote 4]
Salvors are not deprived of a remedy because another set of
salvors neglect or refuse to join in the suit, nor will such
neglect or refusal benefit the libellants by giving them any claim
to a larger compensation, as the nonprosecution by one set of
salvors enures not to the libellants prosecuting the claim, but to
the owners of the property saved. [
Footnote 5]
Cases may also be found where co-salvors who neglected to appear
and become parties to the suit until the decree was pronounced were
allowed to petition the court for such compensation out of the fund
in the registry of the court, and where their claim received a
favorable adjudication. [
Footnote
6]
3. Important service unquestionably was performed by the members
of the fire department, but as they are not parties to this suit,
it is not necessary to determine whether they would, under the
circumstances of this case, be entitled to a salvage reward.
Pilots, under some circumstances, may become salvors, and cases may
be imagined where firemen perhaps might come within the same rule,
but, the question not being before the Court, no opinion is
expressed upon the subject.
Page 77 U. S. 13
4. Comment upon the form of the decree is unnecessary, as it has
already been determined that the joinder of the master with the
owners of the ship was not error for which the decree should be
reversed, as the distribution of the fund is within the control of
the court. Exceptions of the kind, if the claimant intends to rely
on the same, should be made in the district court, where the
pleadings may be amended. [
Footnote
7]
5. Objection is also made that the owners of a vessel cannot
promote a salvage suit unless they participate in the salvage
service; or if they may promote such a suit, that they cannot
participate in the reward decreed for the salvage service except
for the risk and damage to which their property was exposed in
rendering the salvage service. Such an objection was made in the
case of
The Camanche, before cited, but the court
overruled the objection, and that ruling is adopted and applied in
this case.
Beyond doubt, remuneration for salvage service is awarded to the
owners of vessels on account of the danger to which the service
exposes their property and the risk which they run of loss in
suffering their vessels to engage in such perilous undertakings,
but it is not admitted that the amount of the allowance must be
reduced on that ground. Corporations, as the owners of vessels,
whether sail vessels or steamers, may promote a salvage suit, and
it makes no difference in that respect whether they were present or
absent, provided it appears that the vessel employed was well
manned and equipped for the service. [
Footnote 8]
II. Nothing remains to be considered but the question whether
the amount awarded in the court below to the libellants was
correct. Steam vessels are always considered as entitled to a
liberal reward, not only because the service is usually rendered by
a costly instrumentality, but because the service is in general
rendered with greater promptitude and is of a more effectual
character. Courts of admiralty usually consider the following
circumstances as the main ingredients
Page 77 U. S. 14
in determining the amount of the reward to be decreed for a
salvage service:
(1) The labor expended by the salvors in rendering the salvage
service.
(2) The promptitude, skill, and energy displayed in rendering
the service and saving the property.
(3) The value of the property employed by the salvors in
rendering the service, and the danger to which such property was
exposed.
(4) The risk incurred by the salvors in securing the property
from the impending peril.
(5) The value of the property saved.
(6) The degree of danger from which the property was
rescued.
Compensation as salvage is not viewed by the admiralty courts
merely as pay, on the principle of a
quantum meruit, or as
a remuneration
pro opere et labore, but as a reward given
for perilous services voluntarily rendered, and as an inducement to
seamen and others to embark in such undertakings to save life and
property. [
Footnote 9]
Public policy encourages the hardy and adventurous mariner to
engage in these laborious and sometimes dangerous enterprises, and
with a view to withdraw from him every temptation to embezzlement
and dishonesty, the law allows him, in case he is successful, a
liberal compensation. [
Footnote
10]
Minute description of the circumstances attending the service
rendered by the libellants is given in the opinion of the district
judge, which is exhibited in full in the record, and we refer to
that as a satisfactory statement of all the material facts in the
case, and we concur with him in the conclusion that without speedy
assistance, the total destruction of the ship and cargo was
inevitable; that the measures for relief taken by the officers of
the steam tug, and by the firemen were characterized by great skill
and energy, but the repetition of the details of those measures
beyond what has already been stated is unnecessary. Suffice it to
say the flames were extinguished in an hour or less and the
property to the value of one hundred thousand dollars, including
vessel and cargo, was saved. Success attended their efforts, and it
is evident that the services were in a high degree
Page 77 U. S. 15
meritorious, as a total loss of the ship and cargo must have
been the consequence of any considerable additional delay. Those
who embarked in the enterprise incurred considerable danger from
the fire in laying alongside of the burning vessel and also from
the risk that the mast would fall in consequence of the fire
between decks. Dangers of the kind were apparent, and there were
others apprehended which proved not to be real.
Viewed in the light of all the circumstances, as they are
exhibited in the record, our conclusion is that the amount allowed
is no more than a just salvage compensation for the entire service
performed by the firemen and the steam tug, her officers and crew,
but it must be remembered that the libellants, to-wit, the steam
tug, her officers and crew, were not the sole salvors, and it is
clear that the sum decreed is for the whole service. Whether the
fire department might or might not have been joined in the libel is
not a question in this case. They were not made parties to the
libel, and consequently their claim, if any, was not before the
court, and the decree must be reversed on that ground.
Our conclusion is that a moiety of the amount allowed as salvage
belongs to the libellants, and we express no opinion whether the
other moiety may or may not be claimed by the fire department; but
if not, then it enures to the shipowners.
Decree reversed and the cause remanded with directions to
enter a decree for the libellants in the sum of five thousand
dollars with costs in the district and circuit courts and with
interest from the date of the former decree.
[
Footnote 1]
The
Camanche, 8 Wall. 470.
[
Footnote 2]
The
Commander-in-Chief, 1 Wall. 51;
Houseman
v. Schooner North Carolina, 15 Pet. 49;
The Propeller
Commerce, 1 Black 574;
McKinlay
v. Morrish, 21 How. 343; 2 Parsons on Shipping
370.
[
Footnote 3]
The Rosalie, 1 Spink 188;
Eastern Monarch,
Lushington 81;
The Tees, ib., 505; Williams & Bruce,
Admiralty Practice 92.
[
Footnote 4]
Norris v. Island City, 1 Clifford 220;
The
Bartley, Swabey 198;
Pride of Canada, Browning &
Lushington 209; 2 Parsons on Shipping 279.
[
Footnote 5]
Ship Charles Newberry 329; 2 Parsons on Shipping
301.
[
Footnote 6]
Henry Ewbank, 1 Sumner 400; Roberts on Admiralty 85;
The
Camanche, 8 Wall. 476.
[
Footnote 7]
The
Camanche, 8 Wall. 476.
[
Footnote 8]
Island City, 1
Black 121;
S.C., 1 Clifford 210, 219, 221; Roberts's
Admiralty 104.
[
Footnote 9]
Williams & Bruce, Admiralty Practice 116; 2 Parsons on
Shipping 292.
[
Footnote 10]
Island City, 1 Clifford 228.
