THE G. W. JONES.

925

THE NEW YORK

G. W.

TONES.·

tl. THE

&: C.

MA.IL

S. B. Co.

G. W.

JONES.

(District Court, S. D. New York. January 12, 1892.)

L B.u.,VA<JE-NllOEBBITY POR AID-POWER OP MASTER TO CoNTRACT.

,,

I.

In an emergency the master of a ship is not required to obtain speclal authority flJ9m hiS owners entering into a contract to pay an agreed amount for salvage aid.
AMOUNT.

BA:M:E-ENFORCBMBNT OP

" An admiralty court, however, will look at the reasonableness of the amount

agreed on before enforcing a salvage contract.

8. SAM1!-ToWING 'VRBBEL OPl' BEACH-C,..SE STATED. A steam-ship; in getting under way from her wharf at Progresso, broke her an· chor, lind the wind, caused her to strand on the beach. She could not get oif by her own eiforts, but was in no danger unless a northerly storm should spring up. 1t being deemed dangerous to allow bel' to lie there overnight, a written contract wae made by her maeter with libelants' tug. the Qnlyone at ProgresBO, to get her oiffor $2,500, with $500 additional in case the tug or her hawser should receive any damage. The tug thereafter got the ship oif uninjured. On suit bronght to enforce the contract,the answer of the ship averred that the contract was signed under duress, and that the master did not communicate with his owners, as he might and should have done. The ship and cargo were worth $107,000; the tug $25,000. The latter was not hurt, but incurred some danger of injury. The time of her service wae short. Beld, that the tug should receive $2,000 for her serviceL

In Admiralty.' Suit to recover salvage award. Carter &: Ledyard, for libelants. Butler, Stillman &: Hubbard, for claimants.
13ROWN, J. In the afternoon of November 1, 1890, as the steam-ship G. W'. Jopeswas gl'ltting under way from the outer end and the westerly main wharf at,Progresso"the fluke of her anclior, on which .abe was heaving, broke; ,and" a strong wind from the catching hel'\lpon thestarboa):'Q, bow,she swung off, and strande.d broadside upon tpe,heach. Repeated: e,fforts were at once made, by heaving upon the lioos;lead,ing to the wharf, to pull her off the beach, but without success. Her winches were stranded, and severaUines "of the bestmauilla broken. ,The sea was choppy, the wind fresh, and it was near Jljgh water. There was no danger of wreck unless anorthedy storm should come up, but the master deemed it dangerous. to leave the vessel in that condition overnight, lest she should work higher up on the beach aO(tdeeper in the sand. After some negotiation, a written contract was, made with the master of the libelants' tug M. Moran to haul her off the beach to a safe anchorage place for $2,500, with $500 additional incase the tug should suffer damage to herhull,engines, rigging, hawser. This agreement was made about 7 P. M. The tug procured at work upon the steamer at about 8 P. M., and at 9 suchawsers, ceeded in getting her afloat, and thereafter. took her about three miles out into good anchorage ground, completing the service at about! A.. M. the

", tReportedbyEdward G. Benedict, Esq., of the New York bar.

926

FEDERAL REPORTER"

vol. 48.

same night. The next day being Sunday, the master of the steamer on the day following gave ll; dl'llfton: New'lYork for $2,500, the sum agreed on, which was not accepted or paid, and the above libel was filed ,,'t 'I'; to enforce:the oolltraet:fol'l the The answer admits the service, but avers that the ship was not in a dangerous position; that the 80·called'agre6ment"does not constitute a contract, in was sign paper, by hahad tlO aiithority dwnersofsaid$Mam-shipand6a.rgo to sign it, and hi that he did not communicate with the owners, ,Whi,ch he might easily have done." :Itdoesnot av.er that the' amount was unreasonable The testimony of the master, as 'thEllibel, shows that he'feared that the steamer might be driven up further on the beach during the night, was'immediately hauled off., The ,show that this apprehension was justifiable. ltwas his duty, therefore, to procure any aid at band that ,could be reasonably procured for the immediate relief of the steamer. His authority as master to secure this at once, without communication with .the ow-nel'll, is plain. The cIrcumstances did not admit of delay, nor is there any rule of .the maritime law that would require the master to obtain special authority in, order to secure relief of this kind in an emergency. The A. n. Patchin, 1 Blatcihf. 414. The evidence does not justily the defense ofduress or cOqlpulsion. The master was not at sea, but in port, and had the option of procuring any diflerent kind of relief that Progresso afforded. The tug was maintained there for special service, but this circumstance worked no constraint upon the steamer. On the other hand, it is a consideration of some importance in determining what is a reasonable compensation. The steamer and her cargo were of the agreed value of $107 ,000; the tug, of the value of $25,000. 'rhe witnesses for the tug testify that in rendering the service she necessarily encountered some danger, in working her engines to the utmost capacity, of straining both the boat and the machinery, and also of running upon the steamer's anchor. She received no injury, however, and the steamer was got off without suffering aoydamage whatsQever, and sailed for Boston on the second day after., . 1 cannot attaoh much weight to the evidence of the witnesses at Progressothat the steamer was not in peril. Doubtless she was not in immediate' peril of being wrecked, but the witnesses do not say that it was not perilous to leave heron the beach in her stranded condition, without attempting immediate relief. As above stated, I agree entirely with the opinion of the master, as expressed at the tinie, embodied in the contradt;und repeated by bim in his testimony. Although the answer does not deny the value of 'the services, yet a court of 'admiralty would not enforce a contract of this nature, either against th'e 0*ner8 or against their property, in a suit in rem, any further than it appeared to be reaThe Adirondack, 2 Fed. Rep. 387; The He8perl 18 Fed. Rep. 692; TheM. B. Stetson, 1 Low. 119; The Jolvn Ritson, 35 Fed. Rep. 663; The Schiedam, 4'8 Fed. Rep. 923. Considering that the tug was by the contract,to receive $500. additional if sbe incurred any damage to' her

THE P. I. NEVIUS.

927

machineryorhaw8el'$ in rendering the service, and that this risk was (',overed by that stipulation, I think that, inasmuch aa. no such injurY' was received, and ,the service was comparatively short, $2,000 will be a Bufficiently libtlral compeusatiQn, an<i a proper one, in the present case; certainly n(:)t more tb@ the courts oLEngland, to which. this ship .belonged, are accustomed to allow for similar services. See The Accomac, Law Rep. [1891,] Prob. 349. As no offer or tender of payment has been made, the decree should be for that sum, with costs.

THE

P. I.

NEVIUS.'

THE WIDE AWAKE.

ALBERTSON 11. THE

P. I.

NEVIUS AND THE WIDE

AwAU.

(District Court, S. D. New York. January 9,1892.)

1.

CoNT1l:JoIPT-RESISTANOlil TO PROCESS Oll' COURT.

Wbere the marshal had served process on tbe vessel-owner, who had read enough of tbe paper handed him to 1I:,Qow itsmjl&ning, and who thereafter refused " obey the orders of the ofllcer as to'where IIh01l1d go, and who, when the ofllcer 8..epped ashore to call a keeper, steamed away with his veB8el, he/,d. such acts cClnstituted a resistance and evasion of the process of the court, subjecting the vessel-owner to the penalties of a contempt. As it appeared possible. however. that the vessel-owner might not have understood the character of his act, the court would only impose as a fine the actual ex· penses incurred by the marshal in searching for and retaking the vessel.

!&.

SAME-FINB-AMOUNT-MARSHAL'S EXPENSES.

In Admiralty. On motion to punish for contempt. Alexander & Ash, for libelant. Owen, (hay & Sturges, for the P. I. Nevius. Goodrich, Deady & Goodrich, for the Wide Awake.
BROWN, J. Mr. Day, the owner of the Nevius. was regularly served personally with a notice of the attachment and the libel of his tug. The officer, coming on board, handed it to him, and I have no doubt that it was read sufficiently by Mr. Day to know its meaning, as the officer testifies. I am satisfied that Mr. Day refused to obey the orders of the officer to go to the new dock, insisted on going to Hoboken for water and coal; and, when the officer stepped ashore for a moment to call the keeper, who was near at band, he steamed off up the river. This constituted a resistance and evasion of the process of attachment, which, as against him, had been sufficiently served by the marshal, and subjects him to the penalties of contempt of process of the court. In re Higgins, 27 Fed.

JReported by Edward G. Benedict, Esq., of the New York bar.

928

48.

Rep. 443; In TeSowles, 41 Fed. Rep. 752. Ae it seems quite possible, however, from,Mr. Day's statement, that he may not have understood the character of his act, I shall impose DO' fine beyond the actual expenses incurred by the marshal in hiring a tug to search for and retake the veg.. sel. An order far the payment of that amount :may be entEfted.