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The trustee has brought to the attention of the court the fact that since the bankruptcy Mrs. Grandy has bought the house and lot from the bank, and that she is now the owner of the same in fee simple, and her dower rights thereby extinguished. I cannot see that this has any bearing on the question. If there is a suspicion that she bought the property with money obtained from her husband, another question might arise; but there is no such suspicion, for it appears that she has raised the money for the purchase by mortgage on the property itself. It is therefore adjudged that Mrs. Grandy is entitled to the policies of insurance described, and the trustee is directed to turn the same over to her, with leave, however, if he is so advised, to appeal from this order.
THE MYRTLE TUNNEL.
(District Court, D. South Carolina. July 3, 1906.)
1. SALVAGE-CONTRACT TO DELIVER STRANDED VESSEL-FAILURE OF PERFORM
A tug which was under a written contract to float and deliver a stranded schooner at a stated port, the contract otherwise to be void, but which failed to perform the contract, cannot recover compensation as salvage for services rendered in attempting its performance, as a result of which the schooner was subsequently floated by the wind and tide, and became a derelict, and exposed to greater peril than when on the bank, until rescued by other vessels after her abandonment by the tug.
[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Salvage, § 30.]
2. SALVAGE-AWARD OF COMPENSATION-RULE IN CASE OF DERELICT.
The ancient rule for the allowance of a moiety of the value saved in the salving of a derelict to the salvors, while somewhat flexible, and subject to change in extraordinary cases, is a safe and salutary limit upon judicial discretion, and not to be lightly disregarded.
[Ed. Note.-For cases in point, see vol. 43, Cent. Dig. Salvage, §§ 56, 65.
Salvage awards in federal courts, see note to The Lamington, 30 C. C. A. 280.]
3. SAME-FACTS CONSIDERED.
A large schooner became stranded on Frying Pan Shoals off the North Carolina coast in March. A contract was made with the owner of tugs to float the schooner and deliver her at a port, but the effort was unsuccessful. Ten days after the stranding, and after she had been abandoned by the master and crew, she was moved off the shoal by a high wind, and one of the tugs attempted to tow her to port, but was unable and abandoned her. Her hull was under water and her masts and rudder gone. Subsequently a tug from Savannah went in search of and found her, about 100 miles from Charleston, which was the nearest port she could enter owing to her draft. After going to Charleston, and obtaining the assistance of two other tugs, she was again found, and the three tugs towed her to that port nearly 10 days after she had gone adrift. Meantime the insurer had sent out a tug, which made a search for her, but not in the locality where she could have been found. She was sold with her cargo for $24.000. The salvage service was performed with skill, and at considerable trouble and risk, owing to her condition. Held, that she was a derelict, and that the salvors were entitled for their services to one-half the proceeds of vessel and cargo after payment of the expenses and costs.
In Admiralty. On libels for salvage.
Thomas Evans, for the Blanche.
Bryan & Bryan, for the Propeller Tow Boat Company.
Miller & Whaley, for claimants.
BRAWLEY, District Judge. The four-masted schooner Myrtle Tunnel, of about 1,400 tons burden, laden with cross-ties from the port of Brunswick, Ga., bound for Philadelphia, went ashore on Frying Pan Shoals, N. C., March 6, 1906. The steam tug Blanche, of Wilmington, went to her the next day, and offered assistance, but the same was refused by the master of the Tunnel until he could communicate with his owners. A telegram was sent by the mate of the Tunnel to George A. Tunnel, managing owner, Philadelphia, who immediately went to Wilmington, N. C., arriving there March 11th. W. A. Sanders, general manager of the Wilmington, Southport & Little River Company, owner of the tugboats Blanche and Isabel, met Tunnel at the railroad station, and arranged to carry him to the wrecked schooner. On March 12th the contract in writing was made by Sanders, representing the company above named, and George A. Tunnel, whereby said company agreed to "float and deliver the schooner Myrtle Tunnel to Southport, N. C.," the amount to be paid for such service to be decided by two practical men, one chosen by Tunnel and one by the tugboat company, and, if they did not agree, they were to choose a third, whose decision must be final.
Libels have been filed in behalf of the steam tug Blanche, of Wilmington, and in behalf of the steam tugs McCauley and Paulsen, of Savannah, and the steam tug Protector, of Charleston, which by order of the court were consolidated and heard together.
First will be considered the claims of the Blanche. After the signing of the contract referred to, which was made an exhibit to the libel, the Blanche went down to the schooner March 13th, carrying, in addition to her crew, about 17 men to assist in lightening the vessel. On their arrival it was found that all of the deck cargo of the Myrtle Tunnel had been jettisoned by the crew of the vessel, aided by the crew of the revenue cutter Seminole. The hands from the Blanche went to work, and jettisoned the cross-ties that were stowed between decks, and at high water on the afternoon of that day the Blanche, with a small tug, Isabel, owned by the same company, and the revenue cutter Seminole pulled on the schooner, but failed to move her off the shoal, and the Blanche and the Isabel returned to Southport. The revenue cutter Seminole took off the crew of the Myrtle Tunnel, her sails, ropes, and all of the personal effects of the crew, and carried them to Southport. Nothing further was done by the Blanche or Isabel until the 16th, when it appears that a high wind moved the Myrtle Tunnel off the shoal. The Blanche took hold of her about 11 o'clock that night, and pulled on her until 6 o'clock the next morning, when, according to the testimony of her master, it was blowing a gale of wind, and the schooner was carrying him off shore, when he cut adrift from her. The weather reports of Wil
mington show that the greatest velocity of the wind on March 16th was 15 miles, and the master of the Isabel testifies that there was no storm on the 16th, not more than a 20-mile breeze; that "it might not have been that much-might not have been over 15, or somewhere along there." there." The master of the Blanche testifies that he cruised around for the next day or two, looking for her, but it also appears that the tug was engaged in her ordinary avocation of towing vessels. The Blanche is about 94 feet long, but the witnesses did not know her horse power. She is allowed about 125 pounds steam. "Salvage services," says the Supreme Court in the Elfrida, 172 U. S. 192, 19 Sup. Ct. 148, 43 L. Ed. 413, "are either (1) voluntary, wherein the compensation is dependent upon success; (2) rendered under a contract for a per diem or a per horam wage, payable at all events; (3) under a contract for a compensation payable only in case of success." Under the written contract, libelants agreed to "float and deliver the schooner Myrtle Tunnel, now ashore on Frying Pan Shoals, to Southport, N. C." There is a supplemental stipulation that, if the schooner Myrtle Tunnel fails to float, this contract is null and void. That libelants failed to deliver the schooner at Southport in accordance with their contract is plain, and although courts of admiralty have a wide discretion in the awarding of compensation for salvage services, yet when parties entirely free to do so have made a contract, they are bound by its terms, and the case does not differ from that of any other contract wherein one party agrees to do something, for the doing of which the other party agrees to pay something. In all such contracts the party who is to pay is not compelled to do so until the thing to be done is performed. In Bondies v. Sherwood et al., 22 How. 214, 16 L. Ed. 238, it was held that when libelants by their own showing cannot recover under the contract, they cannot repudiate it, and libel the vessel for salvage. Here the libelants, although setting forth the contract which they have admittedly not performed, claim for a salvage service that in lightening the cargo they enabled the vessel to float, and inasmuch as being afloat she was afterwards saved by others, their services should be rewarded. The first effect of the lightening of the cargo, the wind being in the quarter where it was, would have been to move the schooner higher upon the shoal. The Blanche and Isabel were evidently tugs of no great power, not equipped with kedges or heaving cables, or other apparatus suitable for wrecking purposes, and, assisted as they were by the revenue cutter Seminole, their efforts to get the vessel off the shoal were ineffectual, and after pulling upon her for about an hour they left her, and returned to Southport. The vessel got off the shoal by reason of a change in the direction of the wind and of an increase in its velocity. After she was afloat, the Blanche took hold of her about 11 o'clock on the night of the 15th, and remained with her until the next morning, when she cut adrift, leaving the schooner without a crew, without sails, and without a rudder, to the mercy of the winds and waves. Thus adrift she was in greater danger than when on the shoal, a helpless derelict, at great risk of becoming a total loss, and a terror to all seafarers. It is of the very essence of a salvage service
that it has contributed to the rescue of the property in peril at sea. Success is an essential ingredient, and however meritorious the service, or benevolent the intentions, or arduous the labor, if it is not attended by beneficial results no reward can be given. Failure may be the result of conditions which may relieve the party from any moral blame therefor, and it may well be that in order to save themselves from being carried out to sea the master and crew of the Blanche were justified in cutting adrift and abandoning the schooner; but abandonment of the enterprise, from whatever cause, forfeits every claim to salvage. Even if it should be held that libelants are not estopped by their contract, and that they did some service in the nature of salvage which entitled them to compensation, it would be difficult to find any principle upon which such claim can rest in a case like this; for the salvors here who picked up the vessel after she became derelict and brought her safely into port did not do so in cooperation with, or in furtherance of, the first undertaking. Theirs was an entirely new enterprise, undertaken after the first was entirely abandoned; for I must hold upon the proofs that the Blanche abandoned the Myrtle Tunnel because she was unable to handle her— she had not sufficient power. As will hereafter appear, the steam tug McCauley, of incomparably greater power, was unable alone successfully to accomplish it. It was not the velocity of the wind, which according to the weather reports was 16 miles an hour, and according to the testimony of St. George, the master of the Isabel, "not more than a 20-mile breeze," but the deficiency in power, which led the Blanche to cut her adrift; but, whatever may have been the cause, the enterprise was abandoned sine animo revertendi. The cases are numerous and clear that the right to compensation as co-salvor or joint salvor applies only where the efforts of the second salvors are in connection with, and continuation of, the efforts of the first salvorswhere it is one and the same enterprise-and there is no such right where the first salvors have abandoned their efforts. The India, 1 W. Rob. 409; The Henry Ewbank, Fed. Cas. No. 6,376. The libel of the Blanche must therefore be dismissed.
As already stated, the schooner was turned adrift on the morning of March 17th. On the next day Capt. Avery, managing owner of the steam tug McCauley, of Savannah, having learned from passing steamers that there was a water-logged schooner in their path somewhere south of Frying Pan Shoals, left Savannah in the teeth of a severe Northeast gale, going up the coast in search of the schooner. The weather continuing severe, he went into the port of Georgetown Monday afternoon, remaining there until the storm abated, going out about daylight Wednesday morning, March 21st, to continue his search, and sighted the schooner at 4:30 Wednesday afternoon, March 21st, about 30 miles southeast of Frying Pan Light. She had drifted outside of the path of passing vessels, and nearer to the Gulf Stream. None of the passing steamers had undertaken to assist her. She was at a point on the south Atlantic coast where there are long barren stretches of shore and few harbors. The only haven south of Hatteras possible for her, with her 30 feet draft, was
Charleston, about 100 miles distant, at a season of the year when high winds prevail, invisible in the nighttime, and visible only at short range in the day, for her hull was submerged and all her sails gone, apparently a helpless waif upon the ocean, abandoned by her crew, and abandoned by those who had undertaken to save her at Wilmington, through the exhaustion of their resources. At the time she was found by Capt. Avery, the weather had become moderate, and he made fast to her, putting two of his men aboard, for although all of the midships of the schooner were under water, the stern and bow were a few feet out. He pulled on her until the next day, making some headway towards Charleston. On Thursday the revenue cutter Seminole came up and offered assistance, but it appears that he did not have a hawser sufficiently long to render any effectual aid, and as the weather at that time became threatening, and the schooner had been brought within the path of passing steamers, the master of the McCauley became despondent as to salving her, and, certain that he could not do so without assistance, which was not at hand, there was some talk of blowing her up; but as the Seminole had no explosives, nothing was done, so he took his men from the schooner, and proceeded towards Charleston to seek assistance. Meanwhile Capt. Igoe, master of the Protector, of Charleston, having received a message from the Seminole that the McCauley had found the schooner and needed assistance, after getting some extra men and an extra supply of coal, put to sea about 11 o'clock the night of March 22d. Failing to find the schooner, the weather being very heavy and raining, and it being impossible in those conditions to make a successful search, he put back to Charleston, arriving there about noon of March 24th, where he found the tug McCauley and the tug Paulsen, also of Savan nah, belonging to the same owners, and after conference and necessary preparations the three tugs put to sea about 2 o'clock on the morning of March 25th, and about noon of that day they found the Myrtle Tunnel, which had drifted considerably since she had been left by the McCauley. It was a problem of no little difficulty to handle this schooner, water-logged and rudderless as she was, and required a high degree of skill and seamanship. She was towed by the Protector and the Paulsen stern foremost, the tug McCauley going astern and backing, and acting as a rudder, thus producing an equilibrium of forces, and was brought safely to this port. Not the least difficult or dangerous part of the undertaking was the steering her safely through the narrow channel, drawing, as she did, 30 feet of water, the greatest draft that has ever crossed the bar, and putting her upon a shoal where she could safely lie. It is unnecessary to give at greater length the details of these operations. Much praise is due to Capt. Avery and his associates for the enterprise, skill, and seamanship displayed, and for the modest and straightforward way in which it has been related. The schooner has been sold by order of court and by consent of all parties, and brought $18,000, and the cargo brought $6,000, and all that remains is to award suitable salvage
Some question has been made as to whether the Myrtle Tunnel was a derelict. It appears in the testimony that the managing owner