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was very great; and she was certainly in danger of possible destruction from a rough sea, if one had set in, which, by thumping up under her very wide guards, might have lifted and ripped up her main deck, and broken up and wrecked all that was above it. Possible danger, which chanced not to have actually occurred, to a vessel in danger, may always be considered as interpreting the spirit with which the salvors worked, and illustrating the merit of their conduct; but is seldom made, of itself, the ground of materially increasing their reward. As to the danger in which the Resolute and her crew were during the rough part of the night of the fifth of December, I do not think it was actually great. That there was ground for apprehending danger is proved by Capt. Baldwin having requested that the Resolute should lie close along-side of him; and that the Resolute was by Capt. Stoddard willingly subjected to the risk of taking that position, shows that the salvors were ready and prompt to encounter the risks incident to salvage service.
to salvage service. On the whole, I think this was a meritorious salvage service, deserving high commendation for the spirit, skill, and success with which it was rendered; but not of high grade when considered with reference to the risks und dangers incident to it; yet of sufficient merit in both respects to justify a graduation of the reward in some degree by the value of the property saved.
Except for the stress laid by claimants' counsel upon the matter, it would hardly be worth while to indicate the marked distinction between this case and the case of the same steamer Excelsior, when, in December, 1881, she was by accident run on Hampton bar, not far from where she was beached by Capt. Baldwin. For the first case see 5 Hughes, 416. There is in fact no similarity between the two cases, except that the vessel was the same and the bar on which she was grounded the same. In the former case, the Excelsior was merely aground, though so fast aground, by reason of her bottom being ex. ceptionally broad and flat, that she could not be pulled off by tugs, and resort had to be made to wrecking anchors and cables. It is true that the services of a wrecker were called for, and the apparatus of wreckers employed. By the use of these means, and by taking advantage of the tides, which were waited for, the steamer was floated, and then proceeded on her voyage. She had been merely delayed. I believe none of her cargo was removed. On the authority of abun. dant precedent, I held that the case was one of salvage, but of salvage of a very low grade. It was more than a case of tugging and towing. It was a case for the use of wrecking anchors and cables, and for wrecking services. On this ground alone, I allowed, in addition to compensation by the rule of quantum meruit, a reward of $350. It was not a case for the reward to be made to bear any relation to the value of the property saved, which then was $180,000.
In contrasting the present case with that, it is unnecessary to advert further than already done to the circumstances under which the present libelants found the Excelsior in Hampton roads,-sunk to her main deck on the bottom; full of water; with a hole in her hull, graphically described by one of the witnesses as "big enough for a street car to pass through ;" with $10,000 worth of cargo on board nearly reached by water, on the main deck; with this deck and all above it liable to be lifted off and broken up by a heavy sea from the eastward; and with injuries inflicted by collision upon her hull to an extent then painfully and apprehensively unknown, but since discovered to be more than $10,000 could repair. The only elements of safety in the condition of the Excelsior were that she was squarely bottomed on one of the bars which skirt Hampton roads, and that she was within 12 miles of Norfolk, on the border of one of the safest anchorages and most capacious roadsteads for shipping in the world. The success with which she was saved, with all her cargo, was due to two causes, viz.: First, to the accident that no heavy wind or sea arose during the 42 December hours when she lay on the bottom; and, second, to the consummate skill with which the salvors performed their work. Though the former accident, that of good weather, may go to the diminution of the salvage reward, the latter should not. It is the characteristic of these salvors that, whenever success is possible, they perform their work with such facility and perfect success as to produce the impression on those who are benefited that their labors have not been difficult enough to deserve a liberal compensation. Such an objection is faulty both in its logic and justice, and I cannot accede to it.
As to what claimants' counsel say of "harbor service," Hampton roads is rather an inland sea than a harbor. It is an anchorage and roadstead, into which sea-going vessels put for safety by hundreds, without a thought of going into port. It is surrounded by headlands, flats, and bars, and there are but two wharves on its entire boundary, and these run out far from land in reaching the channel.
The services rendered by the libelants to the Excelsior in this case were of the same character, though not as tedious, laborious, or difficult, as those which were rendered within the harbor of San Francisco in the case of The Camanche, 8 Wall. 448, where the award was onethird of the value of the property saved, where only a part of the property at risk was saved, and where the service was what counsel calls "harbor service.' The work there was divers' work, and that of powerful lifting machinery. It was done in the harbor, and in perfect safety, except as to the accidents ordinarily incident to diving and the handling of machinery. Yet in that case, where there was no sea danger, nor much danger of any sort, the award was, as before stated, one-third of the value of that portion of the sunken property which was saved—$25,000 for $75,000.
The case of The Blackwall, 10 Wall. 1, was also a notable case of harbor service, in which for a half-hour's work with city fire-engines on board of a harbor tug, a fire on a ship was put out, and $10,000 awarded for saving property worth $100,000.
Salvage services are rewarded in proportion to the danger attending them, to the peril from which the property was rescued, and to the energy, promptitude, skill, and success with which the salvage is affected. When of the requisite grade in these respects, the amount awarded is fixed with some reference to the values saved. In this case I will give a decree for 3 per cent. of those values, or $5,600. In the second libel filed I will give a decree for the amount claimed, or $470.70.
The libelants claimed in argument 10 per cent. of the value of the property recovered, or $16,000; but as a compromise, to avoid the necessity of suing, reduced the amount of the bill presented to $10,000. I do not, in view of all the circumstances of the case, feel jus. tified in awarding a larger amount than $6,000, as above stated.
BLOWERS V. ONE WIRE ROPE CABLE.
(District Court, s. D. New York. January 18, 1884.)
1. SHIPPING-FREIGHT, LIEN FOR.
A barge has presumptively a lien for her freight upon the goods laden on board, which is not waived by any provisions of the contract of hire not abso
lutely incompatible with the enforcement of the lien at the time of delivery. 2. SAME_CONTRACT TO TAKE ON BOARD WIRE CABLE.
A contract to take on board wire cable in New York to be laid in the Erie canal, freight, the hire of the barge, at a per diem rate, to be paid as soon as the cable is laid, is not incompatible with such a lien, and with proceedings to en
force it at once in default of payment as agreed. 3. SAME-PRIVATE ARRANGEMENT BETWEEN MANUFACTURER AND OWNER.
Where wire cable was laden on board a barge by the manufacturer, pursuant to an agreement between the shipper and the owner of the barge, of which the manufacturer was chargeable with knowledge, held, that the barge had a lien upon the cable for her freight pursuant to the contract, and that such lien was not affected by the private arrangement between the manufacturer and shipper, not known to the libelant, that the cable should be paid foron delivery, por by the fact that the manufacturers, upon completing the lading of the cable, kept the shore end fast upon their premises, so as not to permit the departure of the barge with the cable abroad. Held, also, that the cable, as hetween the man. ufacturers and the libelant, must be regarded as laden on account of the libel. ant's contract, and as the goods of the shipper, and that the manufacturers were estopped from denying this, as respects the libelant, although, as between
the manufacturers and the shipper, the title may not have passed. 4. SAME-LIEN ARISES, WHEN.
A maritime lien for freight arises from the time the goods are laden on
board. 5. SAME-LIEN AS AGAINST MANUFACTURER.
As the barge under her contract with the shipper would, as against him, be entitled to a lien on the goods during the time the vessel was detained by reason of his not fulfilling his contract with the libelant, held, that the lien existed to the same extent as against the manufacturers, who, for their own benefit, had held the vessel fast by the shore end of of the cable until they removed the ca. ble under the stipulation given in this suit.
The libel in this case was filed by the owner of the barge E. M. Greenman, to recover freight under an agreement for the transportation of some 15 miles of wire rope cable from the city of New York, to be laid in the Erie canal. The charter was executed on September 10, 1880, between the New York Steam Cable Company and the libelant, whereby the latter agreed "to furnish the canal-boat E. M. Greenınan, of Buffalo, for the purpose of taking on board and laying in the Erie canal a quantity of cable of the parties of the second part, the boat to be maintained in good condition and sufficiently manned, at $5 per day from the time of commencing to load until reaching the Erie canal at West Troy, after which $6.50 per day, until fully unloaded;" and the cable company thereby agreed “to pay the sum above mentioned upon performance of the agreement. At the time the charter was signed the cable company had agreed with the Wire Rope Manufacturing Company, by verbal contract, for the manufacture at its factory, near the wharf at One Hundred and Fiftieth street, Harlem, of the cable in question, to be delivered along-side the wharf, on board of a boat to be sent by the cable company, as the cable was manufactured; and upon delivery to be paid for by the cable company, one-half in cash and the other half in stock of that company. The manufacturing company also agreed, as part of the contract, to pay to the cable company one-half of the expense of the boat during the time it lay at the wharf taking the cable aboard.
The president of the cable company, after this agreement, procured the libelant's boat to be sent to the wharf under the above charter, where it arrived on the thirteenth of September, 1880. The cable was manufactured and put on board by the manufacturing company, at the rate of about a mile a day, and the lading completed on the third of October, 1880. The cable lay in a single coil extending the whole length of the barge, fore and aft, but running ashore into the manufacturing company's factory and there connected with the machinery, but was not cut off or let loose so that the barge could depart. The manufacturers thereupon demanded pay for the cable according to the terms of the contract with the cable company, but not obtaining the cash payment agreed on, continued to hold the shore end of the cable fastened to their premises. ·Numerous interviews took place between the agents of the two companies and the libelant, having reference to the payment of their respective demands. The cable company, during the three or four months following, paid the libelant, as his boat lay at the wharf, some 10 payments, amounting altogether to not quite $200, and the agent of the manufacturing company, at the request of the president of the cable company, paid the libelant the sum of $52.50, on account of its one-half part of the expenses of the boat while lying at the wharf and receiving the cable on board, pursuant to the agreement between the two companies. The cable company became insolvent, and went into the hands of a receiver, who declined to interfere in the matter.
In the spring and summer of 1881, the barge remaining all the time at the wharf, and the shore end of the cable still fastened in the manufactory, the libelant or his attorney, in several interviews and letters, required payment of the amount due the boat under the agreement, and that she be released by the removal of the cable, and threatened to remove it himself if this was not done. The vice president and superintendent of the manufacturing company always objected to this, and throughout this long period encouraged the libelant in the expectation that all difficulties would be settled through the action of the cable company or its president, Mr. Foote, and frequently forbade removal of the wire from the barge. On the nineteenth of July, 1881, the present libel was filed against the cable for the libelant's claim. The manufacturing company appeared as claimants, and thereupon removed it from the barge, and, in their defense to the action, claimed that under the charter no lien attached; and, second, that there was no such delivery of the cable on board as subjected it to any claim of the libelant.
J. A. Hyland, for libelant.
BROWN, J. It is claimed that no lien could attach under the char. ter in this case, because the provision that the freight was not to be due until the vessel had performed her contract, that is, until the cable had been laid in the Erie canal, shows that no lien on the cable was contemplated, and that none could have been enforced by action if the freight or hire of the barge had not been paid according to contract as soon as the cable had been laid. It is undoubtedly true that where the express stipulations as to payment of freight are incompatible with a claim upon the cargo, the lien will be deemed waived. Ruggles v.Bucknor, 1 Paine, 363; Raymond v. Tyson, 17 How. 53, 61. But in this case payment was due upon performance as in the ordinary cases of the transportation of goods on freight; nor do I perceive anything in the fact that the cable was laid in the canal incompatible with the right of the libelant immediately to proceed to libel the cable, as it lay, by a suit in rem, and to attach and seize it through the marshal, as in other cases, if the charterer had failed to pay the contract price upon the delivery being complete. I understand, the law, as generally administered, to be that the lien of the vessel upon the goods, and of the goods upon the vessel, attaches from the moment the goods are laden on board, and not from the time only when the ship breaks ground. The Bird of Paradise, 5 Wall. 545, 562, 563; Bulkley v. Naumkeag, etc., Co. 24 How. 386, 393; The Yankee Blade, 19 How. 82; 1 Pars. Shipp. & Adm. 174, and notes; The Hermitage, 4 Blatchf. 474; The Eddy, 5 Wall. 481,
This objection, therefore, cannot be sustained. The situation of the barge, with 15 miles of cable on board, but made fast at the shore end upon the manufacturer's premises, is doubtless a peculiar one. The manufacturing company did not in