The Senator , 21 F. Cas. 1076 ( 1872 )

LONGYEAR, District Judge.

The only question in this case is as to the amount the libellants ought to receive. Claims for salvage services are among the most meritorious known to the admiralty, and hence are viewed with favor. Such services are to be encouraged, and although the degrees of merit vary widely in different eases, yet in no case should the allowance be so small as to operate as a discouragement. The amount to be allowed, however, depends entirely upon the peculiar circumstances of each case; and while it should not be made so small as to operate as a discouragement to like efforts in the future, on the one hand, it should not be made so large as to operate oppressively to owners on the other. These remarks are especially applicable to a case like the present, where the property saved or aided was not derelict. There is some conflict between the testimony of the crews of the respective vessels as to whether the Senator was actually at anchor when discovered by the Mayflower; but I think there is a clear preponderance of proof that she was at anchor. Although the wind was blowing quite briskly from the land, and the swells were considerable from the effects of the then recent storm, and there were islands a few miles to leeward upon which the vessel might drift if she were to break from her moorings or drag her anchor, yet there does not appear to have been any imminent danger of her going to pieces, breaking from her mooring, or dragging her anchor, and from the buoyancy of her cargo there was no immediate danger of her sinking. The cargo, however, was actually escaping, and was liable to the loss of a considerable portion of it; the weather was unsettled, and the storm might be renewed at any moment, endangering a total loss of vessel and cargo; and there being no one on board, she was, considering the distance from land, prima facie abandoned and derelict. It was therefore highly proper for the master of the Mayflower to do as he did — save the cargo from loss, which was then actually taking place, and to take vessel and cargo to a place of safety. In other words, the vessel and cargo were in a condition to have a salvage service performed. I think Mr. Parsons lays down the rule correctly when he says: “If a ship or property be left, though not derelict, one who in good faith takes possession as salvor, is not a trespasser, but has his reasonable claim for salvage, according to the good he actually does.’’ 2 Pars. Shipp. & Adm. 283, 291. See, also, Talbot v. Seeman, 1 Cranch [5 U. S.] 1.

See The C. S. Butler, 2 Mar. Law Cas. (N. S.) 237.

There are not, however, in this case any of those elements which lie at the foundation of large compensation to salvors, such as peril to life, or even of great hardships and dangers to the salvors, or to the safety of the salving vessel; no detention from any voyage, nor detention of freight on the part of the salving vessel; and not so far from shore but safety from storm could be sought at any time. Add to this the fact that the vessel was not in fact abandoned, but that succor had been applied for and was even then on the way, and arrived so soon that no great additional loss could have occurred beyond a few thousand feet of lumber, and I think libellants fail to make out a case for compensation much beyond what would be full, liberal pay for the time, work and labor actually spent and performed. I think, however, that something beyond mere compensation ought to be allowed, in consideration of the fact that a portion of the cargo was actually saved which would evidently have been otherwise lost, and also that efforts of this kind, when made in good faith, as they were undoubtedly in this case, ought to be encouraged. In this case the time actually spent was about six hours. . The proof shows the value of the services of the Mayflower and her crew, on ordinary occasions, to have been $10 per hour. Although, in cases of the peculiar circumstances like the present, salvage is seldom, if ever, awarded at a percentage or proportion of the value of the-property saved or benefited, yet value very properly has its influence in fixing the amount. In this case the value of the vessel and cargo was about $5,000, that of the vessel being $3,500, and that of the cargo $1,500.

Under all the circumstances of the ease, I think $75 is a fair salvage compensation. From this, however, must be deducted $10 for damage done to the sails of the Senator by burning, in consequence of being negligently left exposed to the sparks from the Mayflower while towing the Senator alongside.

Decree for libellants for $65 and costs.