De Leon v. Leitch , 65 F. 1002 ( 1895 )

PARLANGE, District Judge.

This is a libel in personam by the testamentary executor of one of two salvors, on a bond given to secure the payment of salvage. The original libel averred that tbe specie saved was delivered to the consignees, and that thereafter, the salvors having communicated' with the consignees, the latter signed the bond. Under such allegations, it may be that libel-ant could not recover in this court. Cutler v. Rae, 7 How. 729; Railway Co. v. Swan, 111 U. S. 384, 4 Sup. Ct. 510. The libel was amended so as to aver that the bond was signed prior to and as a condition of the delivery of the specie. Subsequently, a further amendment was made to the libel, so as to aver that, prior to the delivery of the specie to the consignees, they agreed to give the bond. 1 am satisfied that the last amendment sets out the real facts. The receipts which the consignees gave when they received their specie, state that they agree to sign a bond when called upon to do so. The bond was doubtless postdated, but I do not see that such action was objectionable, under the circumstances. The specie was delivered under a written promise to sign a bond, and subsequently the bond was executed by all parties, dating it back to the date of the delivery. No one complains of this. Under the allegations of the second amendment to the íibel and the facts which support them, the court has jurisdiction. Coast Wrecking Co. v. Phoenix Ins. Co., 7 Fed. 236; Maury v. Culliford, 10 Fed. 388; The John M. Chambers, 24 Fed. 383; L’Amerique, 35 Fed. 835; Olivari v. Insurance Co., 37 Fed. 894; Sweeney v. Thompson, 39 Fed. 121. See notes foot of page 166, Ben. Adm. (Ed. 1894). That a passenger, in a proper case, may recover salvage, is settled. The Connemara, 108 U. S. 353, 2 Sup. Ct. 754.

The total amount of specie saved was about $21,244. Only two of the consignees who signed the bond are before the court,—James Leitch, for whom $3,700 were saved; and the firm of Lefebvre, Krug & Oswald, for which $1,288.25 in Mexican dollars, worth $950 in American money, were saved. The services rendered were highly meritorious. The bond, signed by all the parties, recites that the salvors “have incurred considerable expenses, disbursements, and charges, and have encountered considerable risks and dangers to their lives, and have been put to considerable hardships and trouble." Under the circumstances, I consider that an allowance for salvage of one-third of the sums saved is just and proper. Of course, the libelant can recover but one-half of the salvage; the other salvor, Norich, not having sued. There will therefore be a decree in favor of libelant against James Leiteh for one-sixth of $3,700, or $616.66|; and against the firm of Lefebvre, Krug & Oswald for one-sixth of $950, or $158.33),, and costs.

Let W. B. Schmidt, the attorney in fact of Herman Krug, be notified of the rendition of the decree.