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December 1, 1869


APPEAL from the Circuit Court for California. The case was this: In November, 1863, in the midst of a violent southeast gale, the ship Aquila, then but a few days in port, sunk at her moorings in deep water, alongside her wharf, in San Francisco. She had just hauled in there to discharge her cargo, consisting of the materials and armament–shot, shells, guns, ordnance, stores, &c. of the monior Camanche, which was to be constructed under contract with the government by Donahue & Ryan, who owned both the Aquila and the whole cargo sunk. The materials, armament, &c., were valued at $400,000. Of this, $340,000 were insured by various companies, each having a certain part of the risk. This left $60,000 at the risk of Donahue & Ryan, the owners. The Aquila had been anxiously expected at San Francisco with her cargo. Her foundering in an exposed and difficult part of the bay, made the loss of the monitor highly probable. The public mind, excited by the civil war then raging, and by fears of attacks by hostile cruisers on a harbor and city inadequately defended, was shocked by the shipwreck of the only sure means of protection provided by the government for both; and this feeling extended itself throughout the country. Measures were promptly taken to save, if possible, the vessel and cargo. Donahue & Ryan, who owned her and the cargo, and had contracted to build the monitor, then in San Francisco, of which they were residents, made within a day or two after the Aquila sunk, an abandonment of ship and cargo to the agent of the underwriters at San Francisco. The agent did not accept, but took vigorous measures to save the property. The government superintendent for the building of the monitor was early on the ground and was active. The best mechanics of the city were contriving measures. A dry-dock was thought of, and plans were drafted. The first attempt actually made was by pumping out the ship. This was after full consultation. It proved unsuccessful. The next attempt was to lift the ship by chains under her bottom. Different modes of getting these under were tried by divers: by blowing a hole underneath, &c.; all in vain. This attempt, like the other, was abandoned. These efforts were continued several weeks, at a cost to the underwriters of $38,000 in gold, but were finally given up. Ryan, one of the contractors, bore a leading part in these operations; had charge of the pumping process, and received $1000 for his services. In this juncture, the efforts at San Francisco having proved abortive, a company called the Coast Wrecking Company, agreed at New York, with the underwriters, to undertake the recovery of the materials of the monitor. The peculiar character of this company, and their agreement in the case–matters, both of them, much discussed in the argument must here be stated. The company was an incorporated stock company, incorporated by the legislature of the State of New York, and invested by their charter with authority to hire or own vessels manned and equipped, to be employed in towing, aiding, protecting, and saving vessels and their cargoes wrecked or in distress, whenever such wrecks or distress occur, and to receive compensation or salvage for such services in like manner as private persons, and entitled to like liens and remedies. The location of the company was in the city of New York, and its chief business was with the cruising grounds of the large Eastern ports. Its business of wrecking or salvage was conducted exclusively by vessels, equipments, and materials supplied and paid for out of the corporate funds; and the officers and men executing the work done, did not participate in the losses or gains springing out of the services rendered on the occasion of their employment; but, of whatever rank and position, were paid by the corporation, and out of its funds, as in cases of pure contracts of hiring. The company was in the habit of paying to its agents and servants who were engaged in services of difficulty or danger, a rate of wages or salary proportionately high, and in case of injury to any of them while so engaged, its practice was to take care of them till they recovered, and in case of their death, to take care of their families, and to place them or their families, as the case might be, in a position to earn a livelihood. It also paid the medical bills of men hurt in its employment. The rate of wages paid was high in proportion, and above pay for mere work and labor. Merritt's (the captain) salary was $4500 a year, with primage (for the service in this case, about $1500 to $2000), besides all expenses paid. His assistant had $1200 a year, and $500 primage. He and the others who went out with the expedition had all their expenses paid from the time they left New York until they returned. The principal divers averaged $13 a day, for the same time out and back; their day's work being four hours; besides expenses paid. The divers regularly employed by the company were on half pay while not engaged in service. The agreement which the company made, was between itself and different insurance companies who had taken risks on the cargo, to raise it for $110,000, to be paid by the companies, each in proportion to its interest in the $400,000 valuation, insured; the Wrecking Company agreeing to complete the work in ten months, with a proviso, however, that if not completed in that time, the company should forfeit ten per cent.; and, also, that if there was no substantial recovery, the Wrecking Company should receive nothing. The proviso as to time was made because a cargo of the nature that this was, would, as to part of it, be injured by remaining long in water. The agreement being made, the Wrecking Company promptly despatched to San Francisco a party of men, divers and wreckers, specially selected from New York, Boston, and Providence, and fully provided with suitable apparatus and machinery; the whole under the command of Captain Merritt, the company's general superintendent, a man of twenty years' experience, and of admitted skill in his calling. The expedition left New York, December 24th, 1863, and arrived in San Francisco, January 17th, 1864. Captain Merritt on the 23d of January received possession of the wreck, and on the 25th of January, after examination and study as to the best plan, began operations. The winter had just begun, and there was reason to expect cold and stormy weather. The ship, as she lay, was exposed to the southeast gales of the season, one of which had sunk her, with the rake of the bay for thirty miles, and to its currents. She lay ten feet from the wharf, with a list to starboard (off-shore) of forty-five degrees; pitched by the head at thirty to thirty-two degrees. Her forward part, for one-third of her length, projected beyond the end of the wharf, with the bow exposed to the force of the tides and currents. Her bow was sunk in forty-eight to fifty feet of water; her stern in about nineteen feet. At low water about one-sixteenth of her deck was out of water; at high water she was submerged, except a space on one side, close astern. In effect she was at the bottom of the bay, and at such angles of inclination fore and aft, and from side to side, as to make it, independent of the depth of water and the darkness, somewhat difficult to stand on her decks, and even more difficult to work at getting out her cargo. Besides, she rested on a rocky bottom, shelving off shore; making her liable, if her fasts should part at any time, to slip off into deeper water. Besides the difficulties of the ship's position, the cargo was perplexing in its character and in its stowage. The materials of the monitor comprised a great number of iron pieces, from twenty-six tons to one hundred pounds in weight. The frame was of angle-iron, long, crooked pieces, very difficult to handle. Floor timbers, also of iron, were of irregular shape, and some very heavy and long. There were two main engines for propelling the monitor, and eight smaller engines. The guns weighed twenty-two tons each, and there was a number of shot and shell. The guns, as well as the other heavy pieces, as ex. gr., the pilot-house, twenty-six tons, were liable, in the progress of loosening and getting out the cargo, to break away and do great damage. There were also a multitude of construction tools, machinery for a machine shop, and small pieces, bolts, rivets, &c., by thousands. The weight of the whole was fourteen hundred tons. By reason of the very unusual nature, construction, value, and weight of the cargo, and to keep it from shifting, extraordinary means and care had been used in the stowage of it. It was 'stowed down solid,' 'firmly fixed in the hold,' shored by staunchions or joists, one end resting under the deck-beams, and the other resting on the cargo or the flooring over the cargo, in such angles and positions as required, and some of them tied with braces; the whole thoroughly wedged in. The stowage was such, as in the opinion of Mr. Ryan, one of the claimants, to make it impossible to remove the cargo with divers. After full examination, the plan adopted by Merritt and his company, was to get out the cargo by divers, as far as necessary, and then to raise the ship, lay her on the flats, and hoist out the remaining cargo. It was considered impracticable to raise the ship with the cargo in her. The first part of the work, getting out the cargo by divers, was commenced January 28th, 1864, and by unremitting labor from early in the morning until late at night, except two and a half days stormy and Sundays, it was completed about April 20th, 1864; somewhat less than three months. The risk of life and limb during this part of the labor, was testified to be 'great and constant.' 'The divers were obliged to work in entire darkness, and the inclination of the deck both ways, and the mud which rendered it slippery, made it impossible for them to walk, and compelled them to crawl by a line on the weather or upper side of the ship. Yet they had to follow up every piece to the hatchway. To find and hook on the pieces to be hoisted out, they had to grope their way in the dark, and feel with their hands all over each piece. This part of the operations was peculiarly dangerous. With the utmost care in breaking away the timbers which formed the stowage of the cargo, it was almost impossible to prevent the heavy pieces on the upper side of the ship from fetching away. One of the large guns, weighing twenty-two tons, fetched away in this manner. One of the long, crooked iron ribs, coming away, cut off a finger of an experienced diver, who had just hooked it on. He dived no more. Many of the pieces had sharp edges, so that if one of them had struck a diver in a vital part it must have killed him.' In getting out the cargo the ship was necessarily a good deal injured. Holes had to be cut in her. But her value bore no comparison at all to that of the cargo.*fn1 After the cargo was got out, the raising of the ship was undertaken. The attempt was first made to get chains under her. This failed, as she rested forward so heavily on the rock that the divers, after working two days with picks, &c., could not get the chains under her. Another plan was tried, and succeeded, that of lifting her with chains fastened to the deck-beams and other parts of the ship, and hove through pontoons, with levers worked by powerful hydraulic machines, until the bow was raised from the bottom, so that chains could be introduced under her whole length. The chains were worked in the same way through the pontoons About the 20th of May, after a month's incessant work, day and night, Sundays included, the ship was raised and floated upon the flats. Steps were then taken for pumping her out. By means of a large hole made in the mud under her, the divers stopped the leaks; the ship was pumped out by steam, the mud removed, and the remaining cargo hoisted out. Captain Merritt, with some of his men, returned to New York about the middle of June, 1864, and the last of the materials were landed July 3d. The duration of the salvage service, from the time of leaving New York until its completion, was about six months and a half, or until the return to New York, over seven months. The outlay made by the company in its work of recovering the cargo, was nearly $70,000; all of which, but $5300, was consumed in the enterprise. The Aquila, or vessel on which the cargo had been shipped, was raised by the Wrecking Company, though the main matter to which attention was directed was the cargo, which from the character of a part of it (fine machinery and polished metal), it was indispensable to get from under the water at once, and this necessity for expedition interfering somewhat, perhaps, with the recovery of the vessel itself in the best condition, and along with the cargo. All the insurance companies (except one which had a risk for $15,000 and had failed) paid the money which by the terms of their contract they were bound to pay; but there remained over and above their interest in the cargo, the $60,000 uninsured. For rescuing this, the Wrecking Company claimed salvage of the owners, Donahue & Co. These refused to pay. Thereupon the company filed a libel in the District Court for Northern California, to have salvage for this $60,000 saved, and for the $15,000 insured on the cargo by the broken company, and a monition issued in due form, to every one having anything to say, to come in. Donahue & Ryan answered, admitting in effect the recovery of the cargo, but denying the vast and unheard of peril, difficulty, and labor alleged; and setting up that the Wrecking Company had paid very little regard to what damage they did to the Aquila, and had seriously and lastingly injured her; without setting up, however, either as a fact of fear, that the individual men, who performed the actual labor, would make a claim for salvage. No tender of money for anybody was made. The District Court, regarding the service as a salvage service, awarded on the two items $24,062, and the Circuit Court affirmed the decree, with interest at seven per cent. from the beginning of the suit. And from this decree the appeal came.

The opinion of the court was delivered by: Decisions by district judges are, of course, of no authority here. Yet, on admiralty questions, they often deserve the highest respect. We therefore mention that in The Stratton Audley, where this very Coast Wrecking Company was the corporation spoken of, Judge Blatchford says, 'Nor can the corporation itself be a salvor. It cannot hire persons on wages and claim salvage for services rendered by those persons;' and this principle was also declared by Betts, J., in The Morning Star; Nelson, J., affirming him.

Mr. Ward, for the owners, appellants:

1. The libellant in this case cannot be a salvor. A salvor is one who renders personal service. In The Lively,*fn2 an agent, at a seaport where a vessel had run ashore, being applied to by the master, and having hired and employed persons to unload the vessel and get her afloat, sued as a salvor. It was held that his claim could not be sustained. Dr. Lushington, giving judgment, said:

'The whole records of this court show that a claim of this description cannot be allowed. ..... If I were to sanction a claim of this description, the inevitable consequence would be this, that in every case where an accident occurred in the neighborhood of the various seaports of this country, and any agent was applied to, to hire a steamboat or hire sailors to go on board to render assistance, he would be entitled to come to this court and sue as if he were himself a salvor, he personally doing nothing to effect the salvage. I believe, over and over again, when such attempts have been made–and there have been two or three in my experience every judge of this court has set his face decidedly against them.'

In The Charlotte*fn3 it was distinctly held that no claim for salvage remuneration, properly so called, can be maintained by parties not personally engaged in the service. Dr. Lushington, in giving judgment, said:

'I now come to the other point, namely, who are the salvors? Two of the persons by whom the claim is made are William and John Thomas. Why? On the ground that they had command over the boats and the command over the crews, and sent them out, but did not go themselves. Is that a salvage service? I apprehend clearly not, and that principle has been laid down. It is alluded to by Lord Stowell in The Vine, but though he merely alludes to it in that case, it is a principle which has been settled over and over again, from the earliest period of my practice in this court. The principle is this, that a party is not entitled to be considered as a salvor who stays on shore and sends his own boats and his own crews. . . . Lord Stowell laid down that in order to entitle a person to claim as salvor, he must have been personally engaged in the service; but he also laid it down that persons contributing to a salvage service by furnishing boats or other articles, should be entitled to remuneration, not as salvors, but for the use of the articles they supplied. That is the general principle, and from that principle I am not prepared, in the slightest degree, to recede.'

2. If this libellant can be a salvor, it is not the sole salvor; and payment to it would be no protection to the claimants against its employees.

In The Britain*fn4 an agreement was entered into between the masters of the salving vessel and the vessel salved:

'That it shall be left to the decision of arbitrators, to be named by each party, to fix the amount of remuneration that is due Sulling, the master of the Fortitude, as well for his vessel as for himself and his crew, for the services rendered and loss of time, and likewise what shall be due them in indemnification of the expenses incurred by having put into the harbor of New Deep; and both parties renounce the right of any higher appeal.'

The arbitrators awarded 420, which was paid by the owners of the salved ship. Yet upon a libel by the crew of the salving vessel, setting forth that they had not been paid for their services, Dr. Lushington awarded 383, 11s. 6d. (upon the basis of the arbitrator's award), to be paid by the owners of the Britain; and he said that 'they must recover from the owner of the Fortitude the sum which has already been paid by them into his hands.'

So in The Sarah Jane,*fn5 where salvage of 800 was paid to the master of the salving vessel, under an agreement between the owners and masters of such vessel and the owner of the vessel salved, action was successfully sustained by some of the crew of the salving vessel, dissatified with the distribution of the 800 so paid; Dr. Lushington concluding his judgment in these words:

'I regret much the hardship that will be experienced by the owners of the Sarah Jane, in thus being called upon a second time to pay a salvage remuneration. At the same time, I hope it will be a warning in future cases, that owners cannot safely enter into a compromise of this description, which includes the interests of all persons that have rendered service to their vessel, without procuring a release from all parties interested, or incurring a risk of the consequences. In the present instance the owners of the Sarah Jane have chosen to encounter the risk of these consequences, and these consequences they must bear, for I cannot, as a matter of indulgence to them, inflict legal hardship upon others.'

3. This is not a case of salvage service. A contract was made for a sum certain, in consideration of which the service was to be performed. Salvage means a compensation earned by persons who voluntarily assist in saving a ship or her cargo from peril. In The Calypso,*fn6 Sir Christopher Robinson said:

'All salvage is founded on the equity of remunerating spontaneous services.'

And again:*fn7

'Considering all salvage to be so founded on the equity of remunerating private and individual services, a court of justice should be cautious not to treat it on any other principle.'

In the case of The Neptune,*fn8 Lord Stowell defines a salvor to be 'a person who, without any particular relation to a ship in distress, proffers useful service, and gives it as a volunteer adventurer, without any pre-existing covenant connecting him with the duty of employing himself for the preservation of that ship.'
And in The Mulgrave,*fn9 he held that an agreement for a sum certain vitiates any claim for salvage; and would not consider the question where a contract existed.
In The Helen and George,*fn10 Dr. Lushington, in rendering the decision of the court, said:

'The principle on which the court acts is, that if satisfied that any agreement has been made, it will carry it into effect, inless totally contrary to justice and the equity of the case.'

In The Firefly,*fn11 upon a defence before the same judge, to a claim for salvage, a parol agreement was alleged to have been made by the master of a stranded vessel with the salvors, during a raging storm, and whilst both parties were on board their respective crafts. There was a total denial of such an agreement on the part of the alleged salvors, and the testimony pro et contra, was evenly balanced. Yet the agreement was sustained.
These doctrines of the English courts were adopted in the first circuit, where, in The Independence,*fn12 Curtis, J., said:

'In my judgment, a contract, to be paid at all events, either a sum certain or a reasonable sum, for work, labor, and the hire of a steamer or other vessel, in attempting to relieve a ship in distress without regard to the success or failure of the efforts thus procured, is inconsistent with a claim for salvage; and when such a contract has been failry made, it must be held binding by a court of admiralty, and any claim for salvage disallowed.'

4. The amount allowed in this case violates the established principles of law and justice regulating compensation for salvage.

The arrangement made in this case was made with the owners of the cargo, to get a large salvage at the sacrifice of the ship. Such agreements tend to fraudulent bargains, and are not allowed.*fn13

It is no answer to say that appellate courts do not encourage appeals from matters of discretion. Of course they do not. At the same time, this court and all courts will admit the perfect truth of what was said by Grier, J., delivering the opinion of this court in Post v. Jones:*fn14

'Where the law gives a party an appeal, he has a right to demand the conscientious judgment of the appellate court on every question arising in the cause.'

But in the present case we come with an objection founded on the violation of a salutary principle of law.

Mr. E. Casserly, for the respondents:

I. Is the Wrecking Company by the fact of its being incorporated, rendered incapable of being in law a salvor, and of receiving pay as such?

We submit that it is not.

An enlightened public policy strongly demands that the means of salvage service should be the most efficient possible, and to that end should be always prepared, prompt, powerful, and reliable. Hence the court of admiralty has not hesitated to accept all beneficial modes and instruments of salvage service, which from time to time are developed by the progressive forces of society, even though it may depart from a settled rule of decision.

Thus the old rule, that none can claim salvage reward who did not directly take part in person in the salvage service has been so often broken down, that it is now an exception, rather than the rule. As where a ship sends part of her crew on salvage service, the crew who remain on board are entitled to share in the salvage earned.

A still stronger departure, made after considerable opposition, at least in the English admiralty,*fn15 was, when salvage was allowed to the owner of the ship engaged in the salvage service, though he may have been absent and ignorant of the transaction. The same equity is extended even to the owner of the ...

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