THE BAKER.
771
peal and reversal, which were made on granting the rehearing. Let decree be entered dismissing the bill of comp.laint without prejudice to the accounting had, in case of reversal on appeal. Bo
WINSLOW
and others v.
THE BAKER,
her Cargo, etc.
(OUrcuit OOU1't, 8. D. New York.
November 12,1885.)
1.
BALVAGE-AwARD-A.!'PEAL TO CmCUIT COURT.
The allowance of salvage is necessarily largely a matter of discretion, which cannot be deterJllJ.ined with precision by the application of exact rules, and appellate courts are not disposed to interfere with decrees in salvage cases merely because the sum allowed the salvors is larger than the appellate court would have allowed. '
2. SAME-AMOUNT OF AWARD, HOW DETERMINED.
a.
Neither the value of the property imperiled, nor the exact quantum of servo ice performed, is a controlling consideration in determining the compensation to be made. The peril, hardship, fatigue, anxiety, and responsibility encountered by the salvors in the particular case, the skill and energy exercised bv them, the gallantry, promptItude, and zeal displayed, are all to be considered, and the salvors are to be allowed such a generous recompense as wIll encourage and stimulate similar services by others. TUG TOWING BURNING Scow LOADED WITH COTTON FROM SLIP INTO
SAME RIVER.
Under the circumstances of this case, held, that a tug that towed a burning scow, worth about $3,000, loaded with cotton, valued at about $29,000, from a slip where she caught fire out into the river, and to another pier, where thl' fire was extinguished by the fire-boats, was sufficiently recompensed by,al lowing the sum of $350, of which $150 should go to the owner of the tug, anjl the remainder be apportioned among the master and crew.
Appeal from District Court. S. C. 23 Fed. Rep. 109. Wilhelmus Mynderse, for appellants. Alexander J: Ash, for appellees. WALLACE, J. Upon the circumstances in this case it should be held that the salvage services for which this suit was brought will be fairly compensated by a very moderate award. The lighter Baker, a scow with motive power, was discharging her cargo, consisting of bales of cotton, upon the dock of the Cunard Steam-ship Company when a fire broke out in her' cargo. She lay in a slip crowded with other vessels, with the steam-Ship Servia at her port side, and another lighter, also loaded with cotton, along-side and made fast to her starboard side. The fire occurred about noon. Appliances were at hand for extinguishing the fire, and were immediately brought to bear. The dock was equipped with a stationary engine capable of throwing 350 gallons of water a minute in several streams from 1,300 feet of hose, besides five hydrants for Croton water, with necessary hose, and three lEtna fire extinguishers, and three dozen hand grenades. There were also appliances for signaling the fire department,
772
FEDERAL REPORTER.
and the signal had been given before the libelants appeared upon the scene. The steam-s4ip Servia was equipped with a steam-pump and ample hose for extingushing fires. As soon as the fire was noticed the stationary engine on the dock was started, and two streams of water were put upon the lighter, and two other streams were likewise brought upon her from the Servia's apparatus. Although the fire was measurably controlled by these appliances it was not subdued, and the superintendent of the dock, fearing, doubtless, that the fire would be communicated: to the other vessels in the slip, hailed the tug Lyndhurst, then lying near by, with directions to remove the lighter from the slip. The libelants are the owners, master, and crew of the Lyndhurst. The tug immediately hauled the lighter out into the river and held her there for a few minutes, playing upon. her in the mean time a stream of water from her deck hose, until the city fireboats, the Zophar Mills and the Havemeyer, arrived. As soon as the fire-boats arrived they went along-side the lighter and emptied upon her 10 or more streams of water while the Lyndhurst towed her to Fifty-seventh street, at which place her cargo was removed. A cotton fire can be smothered, but will remain in a smoldering condition until the bales are removed and treated separately. It was necessary, therefore, to take the lighter to Fifty-seventh street. The value of the cotton saved was $2g,000; the lighter was worth about $3,000. It is quite clear that the fire had not been satisfactorily subdued at the time the libelants were called upon to remove her from the slip, but was bnrning so vigoronsly as to excite the apprehension of spectators for the safety of the surrounding shipping. The master of the lighter was absent at dinner, and the only hand on board assisted the crew of the tug in their efforts to remove the lighter from the slip. It wa.s a prudent and necessary act, in view of the danger to the other vessels in the slip, to remove the lighter as speedily as possible. It may be doubted, however, whether the lighter and her cargo were much benefited by the service, beyond the towage, which was necessary in order to effect their removal to a suitable place for the special treatment of the cargo. In the interval which elapsed before the arrival of the boats of the fire department, the lighter was beyond the range of the fire apparatus by which she was protected measurably while in the slip, and no' protection was afforded to the lighter and her cargo except by the inadequate appliances of the tug. During this interval the fire doubtless increased, and the cargo sustained a corresponding injury. When the boats of the fire department did arrive, however, they were enabled to act more expeditiously and advantageously than they could have done if the lighter had remained in the slip, surrounded by other vessels and comparatively inaccessible. So, also, while the lighter was being towed to Fiftyaeventh street, during a period of about two hours, the men on the boats of the fire department, instead of being occupied partly in tow-
773
ing her, were able to give more exclusive attention to the work of ex· tinguishing the fire. For these reasons it is probably fair to assume that the ultimate loss to the cargo was less than it would have been if the lighter had not been assisted by the Lyndhurst. Although compensation for salvage services does not innre to persons who are under a legal duty to perform them, and none, therefore, can be claimed by the officers and employes of the fire department, nevertheless, the value of their services, as well as the value of the services rendered by those engaged in suppressing the fire before the tug was called, must be taken into account as though the reward was to be apportioned among the different salvors according to the merit of each. The diminished loss which resulted from the services of the libelant is the proper basis for their compensation, so far as the value of the property saved is an element of an award for salvage. How much that is in the present case it is difficult to determine; but obviously the services of the libelant contributed in a comparatively insignificant degree to the total salvage. These services were promptly and zea.lously rendered, but they were of short duration, and, after the arrival of the fire· boat, were not materially different from those incident to an ordinary towage service. During the two hours occupied by the services the libelants exerted themselves faithfully, but what they did did not involve any appreciable danger or hardship to themselves, nor even any unusual responsibility, except for the few moments before the fire-boats arrived. For usual towage services the tug and her crew received compensation at the rate of from $10 to $15 per hour. The tug was somewhat blistered by the heat, and somewhat bruised by contact with the Zophar Mills, hut her injuries were inconsiderable. Some of the men got more or less wet in the service. The district court decreed for the libelants the sum of $750. New testimony introduced upon this appeal modifies somewhat the aspect of the case as it was presented in the district court, more especially in regard to the extent of the peril to which the lighter and her cargo were exposed at the time the tug came to their assistance. Were it not for this testimony, the award made by the district court would be reduced reluctantly by this court, if reduced at all. The allowance of salvage is necessarily largely a matter of discretion, which cannot be determined with precision by the application of exact rules. Different minds, in the exercise of independent judgment upon the same evidence, seldom coincide exactly in their view of the facts, or give the same prominence to the varied elements which make up the case. An approximate concurrence is all that can be expected. For this reason, appellate courts are not disposed to interfere with decrees in salvage cases, merely because the sum allowed the salvors is larger than the appellate court would have allowed; and the circuit courts of the United States are influenced by this view. The Emulous, 1 Sum. 214.
774
It is urged for the libelants that the decree of the district court awarded a much smaller percentage to the salvors upon the value of the property than is usually allowed according to the decisions. Courts do, "to a certain and limited extent," to quote the language of Dr. LUSHINGTON, "take into consideration the value of the property saved, in assessing salvage compensation, with the view of making the general rate of compensation sufficient to induce persons to undertake salvage service, and, as it were, making up in cases of large value for the impossibility of giving a complete and adequate reward in cases of small values." The Henry, 2 Eng. Law & Eq. 567. As is said by BRADLEY, J., in The Suliote, 5 Fed. Rep. 99, 102: "The allowance of anything like a uniform percentage on the value saved in such cases would be attended with inequality and injustice." Neither the value of the property imperiled nor the exact quantum of service performed is a controlling consideration in determining the compen. sation to be made. The peril, hardship, fatigue, anxiety, and responsibility encountered by the salvors in the particular case; the Bkill and energy exercised by them; the gallantry, promptitude, and zeal displayed,-are all to be considered, and the salvors are to be allowed such a generous recompense as will encourage and stimulate similar services by others. Each case is distinguished from others by circumstances peculiar to itself, and reported adjudications seldom meet the facts of the particular case before the court. As has been said, although the value of the property menaced by the fire was quite considerable, the amount of loss saved to the owners by the ex· ertions of the libelants was small. Although it was very desirable, in the interest of others whose property was more or less exposed to danger by the fire, to remove the lighter immediately, the risk incurred by others is not a fair element of the value of the services rendered. The salved property is not to be charged upon the theory of benefit to third persons. Under all the circumstances it is considered that the libelants will be liberally recompensed by allowing them the sum of $350, of which $150 should go to the owner of the tug, and the remainder be appor. tioned among the master and crew. A decree is ordered accordingly, with costs to the libelant in the district court, and. without costs to either party in this court.
THE
ROCKAWAY. ROOKAWAY. THE
775
SLOOOMB v.
ROOKAWAY.
«(Jircuit Oourt, 8. D. NeJUJ York. November 12,1885.) 1. COLLISION-EAST RIVER-FERRy-BOAT AND BARGE AT ANCHOR-SUDDEN SNOW-
A ferry-boat that had knowledge of the position of a brig at anchor held liable for an injury caused by a collision with the brig. notwithstanding the fact that after she left her slip on the trip during which the collision took place a snow-squall occurred, which rendered objects and lights upon the river indistinguishable at any appreciable distance, and that while she was pursuing her way she was obliged to reverse her engine to allow another ferry-boat to cross her bow, and while backing sagged with the wind and tide afoul the brig, which Was not discerned until it was too late to prevent collision; following The G'regory, 6 Blatchf. 528. 2. SAME-DuTY OF VESSEL AT ANCHOR TO RING BELL.
In such a case, where there is no usage or statutory rule requiring the ringing of a bell or equivalent fog signal by a vessel at anchor, if reasonable care required her to give such signals. a failure to give such signal will entitle the vessel at fault to an apportionment of damages. Where the case is one in which the evidence presents a difficult and nicelybalanced question of fact, depending on the credibility of the witnesses, the circuit court will not interfere with the decision of the district court, when the witnesses were examined in person before the court.
3.
BAME-APPEAL-QUESTION OF FACT-CONFLICTING EVIDENCE.
Appeal from District Court. See 19 Fed. Rep. 449. Henry T. Wing, for appellees. Wm. G. Choate, for appellant. WALLAOE, J. It is not controverted upon this appeal that when the Survivor was run into by the Rockaway the brig was lying at anchor on the usual anchorage ground for vessels in the East river off Nineteenth street, in the city of New York, with her anchor-light Pl:'0Perly set and buming. As the pilot of the ferry-boat had been making trips every few minutes for several hours prior to the collision, passing the brig on each trip, he had notice of her location. It cannot be doubted that under such circumstances it was incumbent upon the steam-boat to ex1merate herself from fault by satisfactory proof of exculpating circumstances,-some extraordinary or unusual occurrence which nautical men conld not anticipate or prevent by the exercise of all reasonable precaution. The Granite State, 3 Wall. 310; The Batavier, 2 Rob. Adm. 407. The excuse offered is that just after the ferry-boat left her slip on the trip during which the collision took place a snow-squall occurred, which rendered objects and lights upon the river indistinguishable at any appreciable distance, aud that while pursuing her way cautiously she was obliged to reverse her engine to allow the ferry-boat Martha to cross her bow, and while backing sagged with the wind and tide afoul the brig, the brig not being discernible until too late to prevent collision. Within the authority of The Gregory, 6 match£. 528, this excuse, if proved, does not exoner-
776
FEDERAL
REPORTER.
ate the terry-boat. If the weather became so thick by reason of a snow-squall that she could not proceed without sudden and peril to vessels properly anchored in or near the track of her usual trip, taking into consideration the contingencies ordinarily to be encountered in crossing a river dividing commercial ports, it was her duty to stop, or return temporarily to her slip. CLIFFORD, J., said, speaking of such a case, that such an excuse will afford no justification for a collision. The Adams, 1 Cliff. 404. She had no right to take any chances when the property of others might be endangered by doing so. The defense of inevitable accident cannot prevail when, under the circumstances of the case, there is a reasonable probability that a collision may occur. The Europa, 2 Eng. Law & Eq. 557, 56!. It is urged for the appellant that in view of the state of the weather it was the duty of the brig to apprise other vessels of her whereabouts by fog signals. If by the custom of the port or by statutory regulation that duty was incumbent on the brig, or in the absence of these if reasonable care required her to give such signals, then, even if the ferry-boat could not insist upon her right to rely on the observance of such cautionary measures, she could at least insist that failure was a fault which should lead to an apportionment of the loss. Concededly there was no usage, nor at the time in question any statutory rule, requiring the ringing of a bell or equivalent fog signals by a vessel at anchor. The proofs as to the state of the weather a.nd the duration and density of the snow-squall are conflicting. The witnesses were examined in the presence of the district judge, and he came to the conclusion that the weather was not so thick for any appreciable length of time as to require fog signals to be given by the brig. There are discrepancies or improbabilities in the testimony of the six witnesses produced for the ferry-boat which justified the district judge in assuming that they intentionally or unintentionally exaggerated the facts, and in treating their positive testimony and their favorable opportunity for accurate observation as less convincing than the opposing testimony. A careful reading of the proofs shows the case ta be one in which the evidence presents a difficult and nicely-balanced question of fact depending altogether upon the credibility of the witnesses; and this court should not interfere with the decision of the judge who has observed the witnesses in person, and had an opportunity to test their intelligence and candor. The Sampsvn, 4 BIatchf. 28; The Florida, ld.470; The Heroine, 6 BIatchf. 188. The decree of the district court is affirmed, with costs.
:rHE O.
M.
HITCHCOCK.
II 7"''''
THE O. M. HITCHCOCK. 1 COFFIN and others v. THE O. M. HITCHCOCK. (District OOU'l't, 8. D. New YO'l'k. November 16, 1885.) 1. SALVAGE-FIRE IN CARGO OF COTTON-SUEORDINATE SERVICE.
The lighter H. was lying at Martin's Stores, in the East river, loaded with about $30,000 worth of cotton, when fire broke out in the cotton. The lighter was towed out into the river, where libelants' tug C. approached her and pumped fresh water from her tanks on the burning cotton. Three or four Other small tugs were pumping at the same time, the C. being the third to are rive, When the C. discontinued pumping the fire was not under control, but was finally extinguished by the city fire-boats. Libelant claimed $2,500 as salvage for the services of the C. Held, that while the tug's services were small in the whole work of extinguishing the fire, nevertheless they were of some value in assisting to check the fire pending the arrival of the tire-boats, and that, under the circumstances, $50 was a reasonable compensation. Costs were withheld in consequence of the extrawagance of the claim presented.
2.
SAME-COSTS.
In Admiralty. Edward H. Hobbs, for libelants. Butler, Stillman et Hubbard, for claimants. BROWN, J. The libelants are the owners of the steam water-boat Croton, who claim $2,500 for salvage services rendered to the lighter O. M. Hitchcock, on the twenty·fifth of September, in extinguishing a fire which broke out in her cargo of cotton·. The value of the lighter was $3,000. The cotton saved was worth $30,OUO. The Hitchcock had been lying at Martin's Stores, Brooklyn, and when the fire burst out she was towed into the East river by other vessels. The Croton came up unsolicited, and played upon the cotton for a certain time with fresh water from her tanks; when this was exhausted she left. There is great difference in the testimony as to the time during which the Croton played upon the fire. Her witnesses make it some two hours; but their testimony is upon estimates only. The specific data given by the persons on board the city fire-boat Patrol, which came up and played upon the fire after the Croton had left, show pretty certainly that the Croton could not have been in attendance more than an hour at most, and probably considerably less. There were three or four other tug-boats that were playing upon the Hitchcock at the same time with the Croton. The Croton was the third to go to her assistance. All that can be said is that the Croton did what she could to check and subdue the fire by playing upon it until her fresh water was exhausted; that she then left the Hitchcock still attended by several other small tugs, and that the raging of the flames was kept subd.ued for the time being by all these tugs combined. The city boats, the Pa1 Reported
by R. D. & Edward G. Benedict, Esqs" of the New York bar.
