620
I'EDEBAr,. .
vol. 62.
of the boats to charge and collect such rates of towage for the service· of the ice. boatlil under· their care as they may best. And· another ordinance, similar in effect, provides that it shall be lawful for the trustees of the city ice boats to allow vessels to be used in the Delaware river and bay, and authorizes the trustees to IILake such charges therefor as they may deem adequate. Under such circumstances the city of Philadelphia cannot plead that iUs entitled to immunity. When a municipality enters upon private enterprises, transacting private business, it assumes all the responsibility that attaches to individuals under like circumstances. Where a cQrporation engages in things not pUblic, it acts as any other private individUal would act, and under the same responsibilities. The decree of the court below is affirmed. e=
THE WRIGHT et a!. v. THE FELIX.
(DIstrict Court, E. D. Pennsylvania. No. 18 of 18931. SALVAGE COMPENSATION-EXPENSES. A salvage undertaking Is It speculative
July 20, 1894.)
venture in which there is no reward if nothing is saved to the owner; and hence, if It claimant appears, the salvors are not entitled to the entlJ:e proceeds, even if they have necessarily incurred expenses exceeding the same. .
2. SAME.
A steel vessel moored alongside It vessel laden with oil was withdrawn from It burning wharf by tugs, but sank immediately afterwards. The tug owners then claimed a right, by virtue of their salvage service, to raise the vessel, .which they did at an alleged expense of $20,000. besides their services. The vessel sold under order of cow·t for only $10,560. Held, that the salvors should receive but two-thirds of the proceeds, although this fell short of thelJ: expenses necessarily incurred.
This was a libel by Wright and others against the bark Felix to recover salvage. Biddle & Ward, for libelants. Flanders & Pugh, for respondent. BUTLER, District Judge. On October 30,1892, the bark Felix, a vessel of near 1,000 tons, was at the Atlantic Refining Company's wharf, Point Breeze on the Schuylkill, awaiting a cargo of oil. An explosion occurring near by, the flames which followed set fire to the wharf and bark, and also to the Elena G, another vessel moored outside her, laden with a cargo of refined petroleum. Both vessels were in danger of destruction, and while burning were pulled out from the wharf by the efforts of several tugs which came to their aid. The rigging of the vessels was so entangled that it was dUncult to separate them. It was however accomplished, and water
THE FELIX.
621
was thrown on the fire until it was under control. When the Felix reached the opposite side of the channel the ballast shifted, and from this cause, and the influence of a high wind, she sank in about 30 feet of water, lying nearly across the channel, where it was narrow. She thus remained, in the way of navigation, until the following Monday, when the libelants proposed to raise her, claiming a right to do so because of what they had previously done on her behalf. The o;fficer in charge assented. There was no contract of employment, or request on behalf of the bark that the libelants should do the work, but simply an assertion of right by the libelants to do it, and an assent that they should, on behalf of the bark. I do not mean to intimate that the result would be different if this were otherwise. The condition of the vessel, the extent of her injuries, and her value at the time, were unknown. Subsequently it was ascertained that her plates were warped, some of them broken, and that she had filled with water and was of comparatively little value. After the expenditure of much time, cost and labor, she was raised. At a sale under an order of the court she produced $10,560. The libelants claim to have expended over $20,000 about the work, independently of the time and labor devoted to the service. Whether this claim is just, or too high, need not be determined. I am satisfied the proper and necessary expenditures exceed any award that can be made the libelants. The respondent charges that the libelants were unskillful, occupied much unnecessary time, and rendered the work unnecessarily expensive. I do not think the libelants were unskillful. They had experience in such work; and although the means first employed by them proved ineffectual it could not be known i.n advance that they would do so. In judging of the wisdom or propriety of what they did the situation must be viewed as it appeared at the time, and not in the light of subsequent events. If unnecessary expenses were incurred or unnecessary time occupied in doing the work, (and I am not satisfied there were,) no loss can resuit to the respondent therefrom, for the reason before stated, that the largest sum that can be awarded from the proceeds of sale will fall short of even the expenses necessarily incurred. It is conceded that the libelants are entitled to salvage compensation. The controversy is about the amount. The libelants claim to be reimbursed in full for the expenses incurred, and consequently to be awarded the entire proceeds of sale. In determining the question thus raised the principles on which the right to salvage compensation rests must be kept in mind. A statement of these principles may be found in any elementary work on the subject. They prevail only in the admiralty. To the common law the doctrine is unknown. Voluntary services rendered to the property of another on land afford no ground for a claim of compensation; while similar services rendered for the preservation of property at sea are entitled to a liberal reward. As said by Mr. Kennedy in his work on Civil Salvage (pages 4, 5): "The origin of the salvor's right is to be found tn the Roman law, whicn gave to one who preserved or improved the property of another without his
FEDERAL
vol. 62. to from the
owner·. '" i.··.;,;:.
even I :' J
Inth.e; <Ulse ,of. T·he Calypso, 2 Hag,g., ,Adm... 209, SIr Chrii;ltopherRobinlilonsaid':! ' "'It will be' found, I think,' !fhat both these forms of salvage (civil and military) resolve themselves Into the equity 'of rewarding spontaneous services, rendere,d .I:u t1).e protection of .Ule lives 'and property of others. This is a general PrinciJlle of natu.val equltYian{J, It was consIdered as giving a cause of.4ction .in the Roman law;anl1' from that source It was adopted, by jurisdictions of thisnll.ture(the !l:d1Dl.ralty) in the different countries of Europe: This is the account which Sir !Wm.. Wiseman, who was a judge of this,' cour,t, gave of theoj.'igtn of , He SaYS 'Upon the equity clearly justified, whereby, hereof is that proceeding in. tb,e if a ship, being set upon by pirates or .by .enemies, shall be rescued by another ship seasonably coming to her rescue, it charges the ship that is then re.deemed 'with salvage money to the other;'" ... ... that recompense being but !u lien, ofli;ll;!lllmages therebysustain,ed,and for future encouragement of thosej4att1).eysee assailed.' Considering to others to fight in the all salvage, therefore, to be founded on the equity of remunerating private and individual serVices, it coUrt of just!ceshoutd be cautious not to treat it on any other, p'rinciple," .
But what is is no certain all. <:ai;les. TJ;le expenditures, risks the time, and skill emplOYed, are to and lossef;l be considered; !J.p.d where the property saved justifies it a liberal 0llly to .l'eimburseand comallowance js· to be made, sufficient bllt to. encourage such services and undertakings. Tb.erlil.-is ·a' ij[m,it \Vhich the cP,urt cannot transcend. The entirepropepb Gannot ibe i'J.warded; benefi,t isconfelTed by. the, and. af;! have seen, /iluch benefit aJ,qp.e confers. .tb, rigb.t.;tp' ,compensatipn. .If nothing is saved ,no compensation ,iEl earned; is saved, ,but' insufficient to (lQll;lpensate tlW salvor, andleave a:qluterial part' for the owner, the fOl'Ill.er.mn.stsll!J.re the loss,with the la,tter, He assumes the risk,of auch loss in· consideration ,of the compensation ,he will receive if,successful. ,The undertaking is a sPecp.lative venture, which may result in great protitj ,or/ile;n()us loss. Mr. Kennedy says at pages "Therei:allo absolute Tuleor fixed scale of,remuneration.. The amount of tQe,award.unlesl'lit has beenal;lcertaiued.. as, it may be, by agreement. is dependent on the discretion of the court. and"Inust from the nature of the case, always be more or Jess 'rusticum judicium." The amount of salvage award, sliid Dr. Lushlngt6n In The Cuba, Lush. 14. is not to be determined by any rules; It is a matter of discretJi.on; andp/.'()pably in this or any other case no two ,tribunals would agree, There is no jUl'isdiction known which is so much at large as the jurisdiction. to award salvage compensation. There Is none in, which so many circumstances are to be for the purpose of de'termining theatDoul1t. It may: be taken Mwev-el' as a general rme that in case; wbere .the· owner, lOt ithe'salVed ,property appe8.l1s. will the ,court more than IllXloiety value. ;1 do not know a case,' said Sir John sah:age of king,'s ships, or where the property is small and unclitimed). Where the court has exceeded a moiety.' In 1884, Brett, M. R., in The Clty'of Chester, 9 Pr6b> Div. 186, stated the practice in these, terrps:.,'Eyeh In, tl:\e <If! derelict the aQ,m\ralty has scarcely ever, any (and luno. case of l;\?nderelict has ever) awarded>
"
n0
623
for salvage more ttan one.half the property saved.' In The Erato (1888) 13 Prob. Div. 163, which was not a case of derelict, Butt,'J., awarded salvors £2,000 out of a fund of £3,500. But this was very exceptional."
Carver on Carriage by Sea (section 345) says: "'Where the salving vessel has su,>tained injury, or her owner has lost earnings, through rendering services of value to the owners of the property saved, and where that property is ample, not only to defray the losses thus sustained by the owner, in addition to a proper sum for the services of the master and crew, but also to leave a substantial surplus, then the amount awarded to the owner of the salving vessel ought to be enough to cover his actual loss, and also whatever additional risk he ran. "But regard is always paid to the value of the property saved; and an award will not be made of such an amount as to deprive its owners of the benefit of the service, with the view of recouping to the salvors their losses. It is one of the risks they run, that they may not be indemnified for their sacrifices. It is said that the cow't of admiralty has hardly ever, and then only in the case of a derelict, awarded as salvage more than half the value of the property saved."
See, also, the remarks of J., in The City of Chester (court of appeals, 1884) 9 Prob. Div. 182. The libelants concede that only a part of the property saved can be awarded forserviqes rendered in saving it, but draw a distinction between compensation for time, labor, skill and other personalservices, and compensation for expenditures made in performing the work. I do not however find anything either in reason or the authorities to sustain this distinction. In ascertaining what is a proper allowance in a given case the court examines these two sources of claim separately, not because there is any diference in their respective merits or character, but because it leads to greater certainty. The proper remuneration for expenditures can be ascertained with exactness, while that for the personal services referred to, risk, etc., cannot. It is therefore wise thus to consider them. There is however no other reason for distinguishing them. The one is of no higher equity than the other. No authority is found for the distinction set up. No elementary work recognizes, and no decision found rests upon it. What is said in Murphy v. Dunham, 38 Fed. 503, is unimportant. A part is inapplicable here while the remainder is but a passing observation of the judge, which does not enter into the decision; it does not indeed arise out of the case presented, but out of a supposed case which might have been presented. The decisions in derelict cases cited are inapplicable. They rest on an exception, confined to such cases, where no claimant appears. The distinction set up here did not enter into them: the award was for the personal services as well as the expenditures, and rests alone on the fact that the property was very small and that no claimant appeared. The circumstance that these cases establish an acknowledged exception to the general rule, which has been steadily confined to the facts on which they rest, presents of itself a persuasive argument against the libelants' position. The argument is reinforced by the fact that the question has not heretofore been presented. Numerous cases must have arisen which would as well have justified its presentation as this.
624
FEDERAI,REPORTER,
M1";J!enlJiedy at '138 and 139, in summing up the result of the 'deciSions respecti.n.g compensation, says: "The effect of these judgments, fairly read together, appears to be that whilst the amount of damage, expense, or loss of profits, ought not, under any circumstances, to be taken as 'fixed figures' or 'moneys numbered,' to be added to the amount of the a ward for actual services, the fact that such damage, expense or lo,ss has been caused in performing the service Is a fact which the court ought never to disregard in ascertaining the amount of the award. But all the circumstances, of which this is only one, must be considered together; and it does riot follow, necessarily, that because the salvor proves such damages, e:q>enlles or losses, the court should fix the sum awarded high enough to cover them. On the contrary the service may itself be so'trivial as to make It unjust, or the property saved may be so small in value as to make it impossible to cast the burden of such an Indemnity upon the owner; and if the court sees that this is the case it may properly refUse to receive evidence as to the particulars of damages, expenditures, and loss of earnings 01." profits, incurred 1:>Y' the salvor. Where however meritorious salvage services have caused the salvors serious pecuniary loss, and where the property saved is ample not only to defray this loss sustained, in addition to an adequate sum for salY/l.ge proper, but also to leave a substantial surplus for the owner of the property saved, the salvor should be remunerated with a sum sufficient both to reward him for his lllsk, labor, skllland conduct, and also to cover damage, expenses, and losses incurred in rendering the services."
Disregarding the distinction which the libelants have set up, whatltpmpen::;ation should be allowed in this case? The circumstanceS' are extraordinary. After considering them fully I believe the libelants should have two-thirds of the proceeds of sales less costs. While this sum falls short of a full compensation, it is much as the value of the property saved will justify the court in awarding. The libelants'Ioss is the consequence of risk which they voluntarily assumed. on undertaking the work. It is a proper source of regret; but not more so than the loss sustained by the respondent.
WILLARD
'V.
SERPELL.
625
WILLARD v. SERPELL et at (Circuit Court, W. D. Pennsylvania. July 2, 1894.) No.lL TAXATION OF COSTS IN
The Pennsylvania statute which provides that in the taxation or costs In all cases of partition there shall be included a reasonable allowance to the plaintiff for counsel fees, as expounded by the supreme court of the state, will be followed by the circuit court of the United States.
STATE PRACTICE.
lams & Brock, for complainant. Shiras & Dickey, for defendants. ACHESON, Circuit Judge. This is a motion to include in the taxation of costs "a reasonable allowance to the plaintiff" for counsel fees to be paid (out of the appraised valuation) by all the parties in proportion to their several interests, agreeably to the Pennsylvania act of 27th April, 1864, "relative to costs in cases of partition." In Snyder's Appeal, 54 Pa. St. 67, 70, it was declared: "The design of the law was to place the parties upon an equality as to the expenses of effecting partition among them." The court further said: "Owing to minority, coverture, and other causes, the proceeding in partition may be indispensable; and yet, the party, no matter how small his interest, may be compelled to pay attorney's fees for conducting them to a conclusion as beneficial to others as to himself. The law was intended to remedy this injustice." In Grubb's Appeal, 82 Pa. St. 23, 29, 30, it was said: "In proceedings in partition a common benefit is secured to all the parties. The natural and obvious object of the statute was to enforce a contribution from each, proportioned to his share of the common service rendered to them all. Each of the parties would thus pay for the aid he had reo ceived." There the court laid down the rule of allowance as this: "The services for the performance of which the statute was meant to provide were searches, formal motions, the preparatiop of papers and conveyancing; in a word, for such professional duties as would properly enter into a bill of costs of an attorney under the English practice." To the like effect are the views of the court as expressed in Fidelity Ins., etc., Co.'s Appeal, 108 Pa. St. 339.1 The statute, as thus expounded, adopts a principle analogous to that sanctioned by the supreme court of the United States in Trustees v. Greenough, 105 U. S. 527, and Railroad Co. v. Pettus, 113 U. S. 116, 5 Sup. Ct. 387, where it was held that one jointly interested with others in a common frind, who recovers it for the general benefit, or maintains a suit to save it, and secures its proper application, is entitled in equity to the allowance of costs as between solicitor and client, including reasonable counsel fees. In equity the costs of the commission and of making out the title in partition have always been divided among the parties in proportion to the value of their respective interests. Adams, Eq. 389; Cannon v. Johnson, L. R. 11 Eq. 90. As the Pennsylvania act establishes a just rule applicable to proceedings 11 At!. 233.
v.62E.no./j·-40
