DocketNumber： No. 56
Judges： Hale
Filed Date： 5/7/1903
Status： Precedential
Modified Date： 11/3/2024
On Sunday morning, February I, 1903, the four-masted schooner Lyman M. Law, of New Haven, Conn., of the burden of 1,154 tons net, with a cargo of 1,935 tons °f Pocahontas coal, was lying at anchor about halfway between Nauset and Chatham lights, off the coast of Cape Cod, between two and three miles from the beach, with both anchors down, in about 20 fathoms of water, and with no crew on board. She had cleared at Norfolk, Va., on a voyage to Portland, Me., carrying a crew .of 11 men all told, namely, Capt. John E. Blake, master, a mate, second mate, steward, engineer, and six men before the mast. She was fitted with a boiler and engine located near the bow for hoisting sail, weighing anchor, and operating the wrecking pump in the engine room and the steam pump aft; she also had two hand pumps amidships. About noon of the preceding day, January 31st, she had struck on Orleans Beach, near the southern end of Cape Cod. Upon hoisting the flying jib and lowering th’e( mizzen and spanker sails, she immediately came off. She was kept
The schooner Lyman M. Law laid at anchor through Saturday night, namely, the night of January 31st, without any crew aboard. She was seen late in the afternoon and in the evening of January 31st by the Palmet River Life-Saving Station crew, some four miles distant, on the shores of Cape Cod. Early Sunday morning Capt. Cole, the keeper of the station, observed the schooner still lying off his station. He immediately launched his surf boat, with six men, and proceeded towards the schooner, and arrived alongside of her about 8 o’clock in the morning. The entire life-saving crew immediately went on board the schooner, and found her abandoned, her boats gone, her davit falls hanging in the water, and her whole appearance showing that there had been a hasty departure of her crew. The life-savers at once concluded that the crew of the schooner had been taken off by some of the steamers whose search lights they had seen thrown upon the schooner the previous evening. The testimony shows that the
The steamship North Star, on her voyage from New York to Portland, first sighted the schooner Lyman M. Law about 9 o’clock Sunday morning, February 1st, and reached her about 10 o’clock. The North Star is a steamship owned and run by the Maine Steamship Company. She is a steel vessel, constructed in 1901, of 3,159 gross tons and 1,999 net tons. She is 300 feet long, 46 feet beam; and 17 feet draught when loaded, and carried at this time a crew of 49 men, all told. Her value is testified to be $375,000. She then had on board a general cargo of the value of $82,000. Her freight on the trip was of the value of $2,667, as the testimony 'shows—making her total value, with cargo and freight, $459,667. She sailed Saturday, the 31st day of January, 1903, at 5 :3o p. m., from her pier in New York on her regular passage to Portland, with her usual passenger list and full cargo.. As she approached the Lyman M. Law about 10 o’clock Sunday morning no one could be seen on board. .The schooner appeared low in the water, and with no signs of life. The master of the steamship, Capt. Bragg, gave several blasts of the whistle to see if anybody was on board. Nobody appeared, the steamship stopped, and a boat was put in readiness to lower. At this time the Cahoon Hollow LifeSaving Station crew were observed coming off from the shore. Capt. Bragg waited until the station boat got near the schooner, and then asked those in the boat to go on board and ascertain the situation of the schooner and what assistance she needed. About this time the schooner Hope Sherwood was observed a little distance to the southwestward of the Lyman M. Law, and it was seen that in attempting to lower a boat from the stern davits of the Sherwood the boat had capsized and three of her men were in the water. The life-saving crew at once proceeded to rescue these men, and after rescuing them the crew returned to the Lyman M. Law with the rescued men in their boat. In the meantime the North Star continued to lie near the Law, waiting for the station crew to get back to her. When the life-saving station crew reached the Law they went on board. The three men belonging to the Hope Sherwood who had been taken from the capsized boat also went on board. They were followed by two other men from the
In order to keep the services of the North Star and the Hope Sherwood distinct, we will now follow the action of the North Star and her crew. After going aboard the schooner, the men from the North Star made a thorough examination of her condition, and found the water was coming in through the scuppers upon the deck forward of the poop; that her forward pump had been taken apart, and left so, and that there was no water in her boiler; that her hand pumps were choked, and the windlass was so situated that the chain would not run out. They thought it necessary to cut the schooner’s chains. They had taken their hack saws with them, and under the direction of Mr. Sault, the chief engineer, some of them were set at work sawing the chains, while Mr. Sault was carried back to the steamer to report the schooner’s condition. Capt. Bragg immediately gave orders to get rid of the chains as quickly as possible, as all agreed it was necessary to lighten the schooner forward, and as he was anxious to get into Provincetown with the schooner as. speedily as he should be able to do so. Mr. Sault immediately returned to the schooner with the necessary tools, and with the assistant engineer, Joseph A. N. Wells, he gave directions to the North Star crew to connect up the. schooner’s pumps and fill the boiler. They continued at that labor until 2 o’clock in the afternoon, at which time the chains were cut.. There being no hawsers aboard the Law, the steamer’s two hawsers, were run to the schooner by the life-saving station crew. Mr. Sault and the assistant engineer, Mr. Wells, returned to the steamer, leaving four of the crew of'the North Star on board the schooner, namely,. Colbeth, ■ Semple, O’Keefe, and Anderson. The life-saving station, crew and two of the men from the Sherwood were still on board the.schooner. During the time the North Star men were, at work upon the Law no steam vessel appeared until just as the steamer was starting ahead, when a large steamship called the Kershaw, and of about the same tonnage as the North Star, came alongside, and inquired' as to the trouble with the schooner, but made no offer to take her in tow. About two o’clock the North Star started to tow the schooner to Provincetown. The weather looked threatening. From the time the crew of the steamship and of the Hope Sherwood went aboard the Law, up to the time of the start for Provincetown, the schooner had settled in the water, so that there were eight inches of water over her deck forward Of the poop when she started. The life-saving station crew were still on board at the time of the start. As soon as the schooner was taken in tow, the forward pump was started, and continued to run throughout the night. Owing to her waterlogged condition, the schooner steered badly while in tow, and .required two men constantly at her wheel. After going ahead a short distance she was found to be settling at the bow, and it became neces
On arrival at Provincetown Capt. Bragg and the engineer called up the company’s agents in New York and Portland to determine what action should be taken. Mr. Bartlett, the general agent of the libelant company at Portland, inquired of various shipping men the name of the consignees and the destination of the vessel, and, being unable to obtain the required information, he thought it best to have her taken into shoal water, so that if she should sink during the night she could be readily raised. She had no ground tackle, and it was doubtful whether her own pumps would keep her free, so that this seemed the proper course to pursue. Thereupon Capt. Bragg arranged with the tug Juno, of the Boston Towboat Company, to take the schooner in nearer the shore, and placed his second officer, Colbeth, and two men who had run the engine, in charge of the schooner. At 10:46 that evening, February xst, the steamship sailed for Portland without any second pilot, Capt. Bragg and his first pilot performing extra duty. Monday morning, February 2d, arrangements were made by the Maine Steamship Company with the Boston Towboat Company to send a diver, steam pumps, chains, and anchors to the Lyman M. Law. On the same day Capt. Humphrey was sent by the libelant company to look after the schooner, and relieve the men from the North Star, so that they could return to the steamer. February 3d the Boston Towboat Company was notified to make such further arrangements for the care of the schooner as the towboat company and the owners thought advisable. Capt. Blake, of the Law, reached Provincetown Harbor on the afternoon of February 3d, and took command of the schooner. It does not appear that-he made any objection to what had been done in regard to slipping the chains or placing on board the anchors and the steam
During the time the steamer North Star was rendering the services which we have above described, the Hope Sherwood, with her officers and crew, was also rendering service. The Hope Sherwood is a four-masted schooner of 522 tons burden, carrying at the time of rendering the salvage service a crew of eight men, all told, and then had on board a cargo of 1,080 tons of coal, of the value, including freight, of about $12,000. At about daylight Sunday morning, February 1st, her watch observed the Lyman M. Law.at anchor, apparently abandoned. At that time no other vessel was in sight. She at once altered her course, and passed under the stern of the Law, which appeared to be in a water-logged condition, but she passed on without boarding her, because the Palraet River Life-Saving crew were then seen to be on board. She had not proceeded very far up the beach, when about 9 o’clock her watch observed that the LifeSaving Station crew had placed a flag in the Law’s rigging and left her. The Sherwood then wore about, and headed for the distressed vessel. She lowered a boat when under the Law’s stern, containing three of her crew. This boat capsized, and the men were picked up by the Cahoon PIollow Life-Saving crew, as we have described. The life-saving crew placed the Sherwood’s men on board the Law, and these men, with others who followed in a small boat, five in all, were on board of her before the men from the North Star. Two of them remained on board the Law during the time of the salvage service. They testify that they thought there was a reasonable prospect that they could have started the pumps; controlled the water coming on board, got the vessel under way, and sailed her into Provincetown. The Sherwood, with her other men, was standing by to render such assistance as she was able to render. The men of the Hope Sherwood, however, assented at once to the arrangement which insured quicker relief to the Law; that the North Star should tow her to Provincetown, the Sherwood’s crew co-operating in that work, sc* far as they were able, a part of them by actual work upon the Law, others by standing by with the Sherwood ready to assist. Capt. Gilbert, of the Sherwood, appears to be a prompt, efficient young officer. He did what he could by standing by with his schooner to render assistance. The work of getting the schooner ready to be towed to Provincetown was shared between the crew of the North Star, the crew of the Sherwood, and the life-saving station crew. As the crew of the North Star had their hack saws and other implements, they rendered perhaps the most efficient service, but all did faithful work, so far as they were able. When towage to Provincetown began, Stanton and Johansen remained upon the Law. The Sherwood, with
It is now the duty of the court to apply the principles of the law of salvage to the facts of the case which have been briefly recited, and to decide what should be awarded to the salvors for their successful service.
In the case of The Sandringham (D. C.) 10 Fed. 556, Judge Hughes, in a masterly and exhaustive opinion, reviews the principles upon which cases of this character should be decided. He very aptly observes that, although the amount lies within the discretion of the court, yet a judge-is not at liberty to render an arbitrary judgment at his own individual discretion or caprice, but must be governed by the teachings of precedents and principles of the law of salvage. He uses the familiar definition of salvage, namely: “Salvage is a reward or bounty, exceeding the actual value of their services, given to those by means of whose labor, intrepidity, and perseverance, a ship or her goods has been saved from shipwreck or other dangers of the sea.”
Chief Justice Marshall, very early in our judicial history, stated the policy of the law in regard to salvage in The Blaireau, 2 Cranch, 266, 2 L. Ed. 266:
“If the property of an individual on land he exposed to the greatest peril, and he saved by the voluntary exertions of any person whatever;, if valuable goods be rescued from a house in flames, at the imminent hazard of life, by the salvor—no remuneration in the shape of salvage is allowed. The act is highly meritorious, and the service is as great as if rendered at sea, yet the claim for salvage could not, perhaps, be supported. It is certainly not made. Let precisely the same service, at precisely the same hazard, be rendered at sea, and a very ample reward will be bestowed in the courts of justice. If we search for the motives producing this apparent prodigality in rewarding services rendered at sea, we shall find them in a liberal and enlarged policy. The allowance of a very ample compensation for these services, one very much exceeding the mere risk encountered and labor employed in effecting them, is intended as an inducement to render them, which it is for the public interests, and for the general interests of humanity, to hold forth to those who navigate the ocean.”
Judge Story adopts the same line of definition in The Henry Ewbank, 1 Sumn. 400, Fed. Cas. No. 6,376:
“The law does not stop short with a mere allowance to the owner of an adequate indemnity for the risk so taken. It has a more enlarged policy and a higher aim. It looks to the common safety and interest of the whole commercial world in cases of this nature, and it bestows upon the owner a liberal bounty to stimulate him to a just zeal in the common cause, and not to clog his voyages with narrow instructions which should interdict his master from salvage service. * * * The law offers not a premium of indemnity only, but an ample reward, measured by an enlightened liberality and forecast.”
Judge Hughes in The Sandringham, supra, in referring to the leading considerations to be observed in determining the amount of the
(1) The degree of danger from which the lives or property are rescued.
(2) The value of the property saved.
(3) The risk incurred by the salvors.
(4) The value of the property employed by the salvors in the wrecking enterprise, and the danger to which it was exposed.
(5) The skill shown in rendering the service.
(6) The time and labor occupied.
And Judge Hughes adds a seventh consideration:
(7) The degree of success achieved, and the proportions of value lost and saved.
We will now comment upon these principles as applied to the salvage service rendered by the North Star.
First. The degree of danger from which the property in the case at bar was rescued: The Lyman M. Law was a large, deeply laden coal schooner, anchored off the shore of Cape Cod, in the winter, in a sinking condition, abandoned by her crew, her pumps, unable to reduce the water in her hold. The steamer Grecian had refused to render any salvage service, and other vessels passing by had given the schooner no heed. From the evidence the court must believe that the services of a steamer were necessary to relieve the schooner from her perilous situation. We believe that the Lyman M. Law and her cargo must have been a total loss but for the relief offered by the North Star. The master and the crew had left the ship for their safety. The master, to be sure, when he left her, had a general intention of coming back with a tow to relieve the schooner if she should be afloat when he returned. But it has been held that, if the master and crew leave their ship for the safety of their lives, a mere intention of sending a steamer back for relief does not take away from a vessel the character of a legal derelict. The Coromandel, Swabey, 205. It is not necessary, however, to discuss the technical question whether or not the schooner was a derelict, or to consider all the old learning upon the subject of derelicts. The question to be decided is in what peril the vessel was found, and what reward should be given for the services rendered by the salvors. It cannot be doubted that the crew abandoned the schooner in great haste, in fear of their lives, the seamen taking with them their personal effects. As bearing upon the question of the danger in which she was lying, the testimony of the captain and members of the station crew is very important. Capt. Bowley testifies that the schooner was “in a sinking condition.” He and his crew wore their life belts during the whole time they were on board. They regarded the vessel to be in some danger of sinking at all times during the salvage service.
Second. The value of the property saved: The testimony shows that the value of the schooner herself was $23,500, and the value of
Third. The risk incurred by the salvors: As to the risk of the individual salvors who were on board the schooner, we have already commented upon the fact that the vessel was in a sinking condition, lying very low in the water, that the life-saving crew had instructions to keep on their life belts, and that there was some danger at all times of sinking. This danger was not very great, as the lifesaving crew were present with their boat; but it is an element that should have some weight with us in estimating the salvage service. The North Star assumed a very great risk in taking the schooner in tow on this dangerous coast and towing her to Provincetown. Judge Hughes, in The Great Northern (D. C.) 72 Fed. 678, says:
“Towing a disabled vessel on tbe bigb sea is always a salvage service, owing to tbe latent dangers from multiform accidents to wbicb ships are constantly liable. * * * After getting under way and commencing tbe towing service, there is constant danger on tbe open sea when the disabled ship has no power of self-control. * * * It is the latent danger from tbe multiform accidents to which ships are constantly liable wbicb makes' a towage service on tbe open sea rendered to a disabled ship always a salvage service.”
The North Star was not fitted for towing vessels. She was in constant danger of the propeller getting afoul of the towing hawser. If such fouling had taken place, she might well have herself become disabled. Capt. Bragg was apprehensive of this danger. The schooner, on reaching Provincetown Harbor, owing to her unmanageable condition, struck the North Star, crushing her boat, injuring her rail, and breaking her ash ejector. Capt. Bragg testifies that the steamship at the time of this collision could not be moved, as the hawser was liable to foul the propeller. It has been well urged that if this difficulty had occurred at sea, and the steamer had become unmanageable, there was great danger to herself—a danger for which the owners of the steamship would have no redress. The risk is one which the Grecian would not undertake, and which the other passing vessels avoided. Judge Benedict in The Gallego (D. C.) 30 Fed. 271, is governed by these considerations. He comments on the fact that four steamers in succession passed in sight of the Gallego and did not stop.
Fourth. The value of the property employed by the salvors in the wrecking enterprise, and the danger to which it was exposed: The value of the North Star, her cargo and freight, is testified to be $459,667. She was a large steamer on the line between Portland and New York. The danger to which this vessel was exposed we have already commented upon under the third consideration.
Fifth. The skill shown in rendering the.service: The testimony-shows that a fair and competent amount of skill, at least, was exhibited by the captain of the North Star and her crew in the important service which they rendered.
Under items fifth and sixth, in discussing the skill shown in rendering the service, and the time and labor occupied, we must consider the faithfulness of the captain and crew of the North Star in standing by the disabled schooner from the moment they saw her until they
Seventh. The degree of success achieved, and the proportions of value lost and saved: The success of the salvage service was perfect. The Lyman M. Law, with her whole cargo, was brought to a place of safety. The cases all agree that the element of saving the whole of a vessel and her cargo is a very important consideration in estimating salvage service. In the case of the Isaac Allerton, referred to in Marvin on Wrecks & Salvage, p. 122, the court says that “a proportion of the property lost must enter into consideration. In a case in which, out of property worth $200,000, in danger, only the value of $50,000 was rescued, I would give a smaller percentage for salvage than I would in another case where, other circumstances being equal, property worth $50,000 was in danger and was all saved.”
In the consideration of the services of the Hope Sherwood, the same reasoning applies with reference to the first two items as in the case of the North Star. In reference to the third salvage ingredient, namely, the risk incurred by the salvors, it is enough to say in regard to those upon the deck of the disabled schooner, and of those conducting her to Provincetown, that the same considerations inhere as in the case of the North Star.
In reference to the fourth item of salvage service, namely, the value of the Hope Sherwood, we find the value of the Hope Sherwood to be $40,000, and that of her freight and cargo to be $12,000. She was not a steam vessel, and was not in position to render so effective service as that rendered by the North Star, but she did render efficient service, and while other vessels passed by, not heeding the danger of the distressed vessel, Capt. Gilbert showed himself to be a young man of great courage, energy, and promptness. We do not depreciate the value of his services in standing off upon that dangerous coast, while he and his vessel could be made effective in relieving a disabled schooner. He assumed a very decided risk in allowing his vessel, in the winter time, to leave her voyage and remain in that dangerous situation.
In regard to the fifth, sixth, and seventh salvage ingredients as applied to the Hope Sherwood, we may fairly say that while the time and labor occupied in the salvage service was not so much in the Hope Sherwood as in the North Star, it was all the time and labor that was required of the Hope Sherwood and her crew, they using all the skill that was necessary. While they believed that, if no steam vessel had appeared, they could have performed the whole salvage service, they at once yielded to a service which offered more hopes of success. The courage of-Capt. Gilbert and his crew shown in daring to enter upon a doubtful service, and doing their best with the means in their power, should be encouraged. What Capt. Gilbert did was bravely undertaken, and perseveringly and faithfully pursued.
The case at b:. • has pretty much all the salvage ingredients contained in the books. It is not the case of a sewice of a steamer whose regular pursuit is to tow and relieve vessels. It is the case of vessels engaged in entirely outside pursuits coming to the rescue of endangered property.
In the case of The Swiftsure (D. C.) 4 Fed. 463, the court says:
“The allowance in such cases is intended to be sufficiently liberal to make every .one concerned eager to perform the service with promptness and energy, and also to encourage the maintenance of steam vessels sufficiently powerful to make the assistance effective. It would be contrary to the spirit of the maritime law to reduce the salvage compensation below the standard of liberal inducement, and it would equally frustrate its purpose if the allowance should be so large and so out of proportion to the services actually rendered as to cause vessels in critical situations to hesitate or decline to receive assistance because of its ruinous cost.”
In the case of The Gallego, supra, Judge Benedict says;
“The rule of the maritime law in respect to salvage is not so much compensation for work and labor performed as to hold out to those who sail the seas a strong inducement to volunteer their aid to vessels in distress. The importance attached to this consideration by the English admiralty is shown by the remark of the court in deciding the case of The Rio Lenia, 24 Mitch. Mar. Reg. 628. * * * In that case Sir Robert Phillimore says: ‘It has been impressed on the mind of the court that there seems to be a growing dislike on the part of owners of ships to allow their vessels to render assistance, even when no jeopardy of life is concerned. That must be met by a liberal allowance on the part of the court, whose duty it is to consider all the circumstances of the case.’ * * * This remark deserves emphasis from the fact proved in this case, that four steamers in succession passed within sight of the Gallego’s signals and did not stop.”
Judge Benedict, in the case of The Anna, supra, says:
“One reason for a liberal award is stated to be that, the property all having been abandoned as lost, it does not lie in the mouth of its owner to com plain of the reward paid to strangers who return his property to him, and this consideration has been adverted to as having equal force whether the vessel abandoned is in a sound or' in a wrecked condition. * * * For the taking in charge and saving of a wreck so situated, the reward should be such as to insure at all times the rendering of any amount of labor, the incurring of any risk, and the deviation of any vessel from any voyage in order to supply the wreck with a crew and make her presence safe. If in this case one of the ocean-bound steamers had fallen in with The Anna, and turned about to tow her to a place of safety, I should not have hesitated to award*827 liberal compensation for tbe detention, expense, and importance of sucb service, without much reference to tbe amount of tbe property absorbed thereby.”
In the case at bar, as in the case of The Gallego, steamers had passed the distressed and abandoned schooner, and had either refused to render any salvage service or had paid no heed. The thing did happen which the court adverts to in the case of The Anna—a regular liner did deviate from her course, did assume all the detention and all the risks necessary to do an act which should have the encouragement of the courts. A sailing vessel, also engaged in commerce, turns from her voyage and renders good service.
In fixing an award which will induce a great steamer, upon a regular passenger line, and with a passenger list, to depart from her voyage, and undertake to rescue a disabled vessel, there must, in the judgment of the court, be a limit to which the doctrine of The Anna, which we have above referred to, should be allowed to go. On this subject Judge Benedict, in the Agnes Manning (D. C.) 59 Fed. 481, comments on the duty of encouraging steamers to incur the hazard of towing vessels which lie in the pathways of commerce, so that commerce will not be endangered by floating wrecks. The presence of wrecks in the regular track of vessels, without lights, in the nighttime, especially in thick weather, with no one to give warning of their location, may justly cause alarm, for they are liable to occasion great loss of life and of property. But the court is not justified in carrying this consideration to the extent of encouraging a passenger steamer, even under the stress of so weighty considerations as this, to expose her own passengers to danger in attempting a salvage service. We do not think that the North Star, in doing salvage service in the case at bar, did imperil her own passenger list, but we think she went to the full extent of taking such risks as she needed to take in order to render such services as were necessary in order to do meritorious service.
In coming to the conclusion as to the amounts, the court has tried to follow the principles cited in this opinion, and has studied in that regard all the decisions of that great and learned pioneer in admiralty law, Judge Ware, of our own district, while trying to fix such an award as shall be suitable for public policy and the proper encouragement to vessels in commerce and to ocean liners to turn from their paths and assist the distressed. Our endeavor has been not to make an exorbitant estimate of awards, having in view that the Supreme Court has said that appellate courts are reluctant to disturb an award unless clearly satisfied that the court has made an exorbitant estimate.
In fixing the amount of salvage, we exclude, of course, the crew of the life-saving station from any award. While they rendered most valuable and effective service, they were in duty bound to do this in the performance of their duty as life-savers and under the statutes of the United States. In view of the services rendered by the steamship North Star and the schooner Hope Sherwood, and their respective crews, keeping also in mind the damages sustained by the steamer North Star in rendering the salvage service, and the ex
Let a decree be entered in accordance with this opinion, with costs.
1. Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.