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What is adniitted by the answer in regard to the services rendered by the tug is entirely sufficient to prevent any doubt that they must be regarded as salvage services. Under circumstances such as are admitted, the contract implied from the acceptance of the tug's services could not be held to be an ordinary towage contract. Had her services not been successful, it is evident that no claim for compensation could have been maintained. It is not denied that they were, at least in some degree, successful. The stranded steamship did get afloat, assisted by the tug. The compensation for the tug's services must therefore be such as to include bounty or reward, in addition to pay for the time and labor expended.
In applying to the facts of this case the various considerations which govern the determination of the proper amount of a salvage award, I have come to the following conclusions:
1. The large value of the property saved, fixed at $800,000 by agreement as above, I regard as the feature of the case which tends more strongly than any other to enhance the amount of compensation. While it is well understood that salvage compensation is by no means to be increased in direct proportion as the amount saved is larger, a large value saved is still always a factor of importance. The St. Paul, 86 Fed. 340, 312, 30 C. C. A. 70. For reasons, however, which will below appear, I am obliged to regard this case as one in which, as in Baker v. Hemenway, 2 Low. 501, Fed. Cas. No. 770, “a very large value was saved, but under circumstances which do not contain other elements which should require the quantum to be large.” I do not, however, take the amount awarded in the case referred to as a standard by which to fix the amount of this award. It is obvious that the award here must be on a somewhat more liberal basis. The services there rendered were performed wholly within Boston Harbor, where the salving vessels belonged, there was no bad weather to be encountered, and the time occupied was only about one hour.
2. The degree of danger from which the property was saved is a question upon which the parties are most at variance. According to the libel, the steamship was hard and fast aground, and unable by any means at her command to extricate herself from her perilous position. But for the services rendered, both steamship and cargo would have suffered great loss and damage. She "was on a dangerous lee shore and upon a foul bottom, and at that season of the year there was every danger of her pounding to pieces.” According to the answer, she was very lightly aground at high water—she lay comfortably on a smooth sand and mud beach without pounding or damage-a very small amount of assistance was needed, if any, to get her afloat at high tide, and there were a number of craft at hand which would have supplied such assistance if the Patience had never been there at all.
I have no doubt that the place where the Devonian was stranded is as exposed, and in that respect as dangerous, as any to be found on the shores of Massachusetts Bay. It is unsheltered against wind and sea from the northward and eastward, and at the time of stranding there was a heavy northeast wind blowing and a heavy sea from the same direction breaking upon the shore. The season of the year was that at
which similar weather is most to be expected. Thus far the libelants' claim of imminent peril to the property saved is supported.
The wind, however, began to shift toward N. and N. W. almost immediately after the stranding. It was N. W. at 8 a. m., and, although still heavy, its force from that direction would tend to reduce rather than increase the force of the sea. It does not appear that any material damage was sustained by the steamship from the mere violence of the seas which broke upon her as she lay aground. From damage of that character her great size and strong construction appear to have saved her. For the same reasons also she “lay easy” at all times when aground, so far as pounding or working upon the bottom were concerned. She was thus comparatively safe from some of the dangers which ordinarily threaten a vessel stranded on an exposed shore.
It is true also that the bottom upon which the ship lay was for the most part hard sand, fairly smooth and even in slope, and that she did not rest at any point upon a reef or ledge. Moreover, at high water she was aground only from her bridge forward, and not very firmly aground even for that portion of her length, as was proved to be the case when she came off. But, however favorable the situation in these respects, the fact remains that at low water the steamship had to rest on her bottom throughout her entire length of 570 feet, and that no fully loaded steamship of such size can be subjected to the strain necessarily involved in thus lying aground without imminent risk of very serious damage, if not of damage amounting to total loss. The strain upon such a vessel, even under the most favorable circumstances, as in a dry dock where carefully adjusted and distributed support is provided for her hull, and upon which she would ordinarily be placed only after discharge of her cargo, is of a kind which she is not well calculated to resist. The precise results of such a strain as that to which the Devonian was subjected, even if continued for one low tide only, may be incapable of estimation in advance, but some structural damage would be almost certain. With each repetition of the strain after the structure had once .yielded in any degree, the probability of such damage would be much increased.
As has been stated, the Devonian lay aground through one low tide only. · No such damage was apparent after she was floated as to oblige her to dock at Boston or to prevent her from discharging her cargo and returning to Liverpool without repairing. The first opportunity of knowing by actual observation what injury, if any, had been sustained, was after her discharge at Liverpool; when, in the latter part of March, 1906, she was dry-docked for examination and repair. The extent and nature of the damage then revealed were such as to leave no doubt that it must have been mainly due to the vessel's experience at Scituate. Whether its principal cause was the original striking when the steamship first ran aground, or her subsequent grounding at low water, it was such in my opinion as to warrant the conclusion that very great risk of further and still more serious injury would have been incurred by permitting her in that condition again to settle for her whole length on bottom, during another low tide. The damage discovered at Liverpool, briefly stated, was: Plates on both sides buckled between frames to the number of about 60 in all, a leak developed under the engine room, floors and frames in seven out of nine ballast tanks buckled, and the stern frame cracked. In view of injuries thus extensive already sustained, I am obliged to regard the danger to the Devonian's structure and machinery involved in a second grounding as very serious, and as the principal danger from which she was relieved. Except for that danger, I do not see why she might not have remained where she lay in substantial safety during any time which I can suppose reasonably necessary for the purpose of getting her off. The danger referred to threatened the possibility of getting her off at all, still more the possibility of getting her off with her entire cargo on board and uninjured, as was the actual result.
But, although the Patience was in fact the only vessel which actually assisted in getting the steamship off, and in thereby rescuing her from that danger which I have considered the principal danger to which she was exposed, it can by no means be said that but for the Patience the Devonian would not have come off on the high water of that same afternoon. On the contrary, it is as certain as anything of the kind can be that she would have come off on that same high water had the Patience never gone to Scituate at all. I cannot doubt that the three tugs sent by the Boston Towboat Company would have done equally well all that the Patience did, and would have done it soon enough to avoid losing the opportunity of the same high tide. The necessity of making the attempt which they had been sent to make, during the high water of that afternoon was understood by every one in charge and control of those tugs, they had timed their arrival at the place accordingly, and they did arrive early enough for the purpose. They had been sent to work on the steamship together, and were accustomed to carry on such operations together. In the total power, appliances, and skill which together they were ready to bring to bear upon the task of floating the steamship they were superior to the Patience. To accomplish this task no very great amount of assistance from any source was in fact required, once the right time for making the effort had come; and this is true even if the libelants' testimony regarding the time spent and the force expended by the Patience in pulling be accepted as against that given on behalf of the steamship. All the assistance that was needed, conceding all the libelants' claims upon this point, the towboat company's boats could and would have afforded.
Nor were these tugboats the only other available sources of relief which must be taken into account. The United States Revenue Steamer Gresham, of about 1,000 tons burden, 205 feet long, having engines of about 2,500 horse power, a seaworthy and powerful vessel, drawing less water than the Patience, had been the first vessel of any kind to go to the Devonian's assistance. She had been at anchor close by, since about 1 o'clock that afternoon, waiting for the tide to rise sufficiently to warrant an attempt by her to pull the steamship off. She had already tried to throw a line on board by means of her Lyle gun, in order that a hawser might be passed from one vessel to the other. This effort had miscarried, and was about to be repeated when the Patience arrived. The regulations of the revenue service forbid its vessels to tow private craft when there is other and sufficient assistance at hand, although it is part of their duty to assist vessels in distress in the absence of such other assistance. Nothing was done therefore by the Gresham after the Patience arrived, except to offer that tug any assistance she could render in getting the steamship off; to which offer no reply was heard on board the Gresham. If neither the Patience nor the Boston tugboats had appeared, and if the Gresham had been left to render alone all the assistance that was rendered, there is every reason to believe that the steamship would have come off, and upon the same high tide. Without the occurrence of some accident of a kind not to be foreseen, the evidence affords no reason to doubt that such would have been the result. The Gresham was much superior in size and power to any one of the tugs present.
Danger to the property saved is to be regarded, for the purposes of a salvage award, as less in proportion as the probability of assistance other than that rendered by the salvors is greater. The George Gilchrist, 1 Low. 231, Fed. Cas. No. 5,333; The Monticello (D. C.) 81 Fed. 211; The Boyne (D. C.) 98 Fed. 414; The Werra, 12 P. D. 52, 54. In this case there was more than a mere probability of other effectual assistance. Such other assistance, it may be said, was practically certain. It was at hand and immediately available.
3. The libel alleges that the Patience, after her hawser had been made fast on board the Devonian, “kept pulling for about three-quarters of an hour” before the steamship came off. The allegation of the answer that the steamship moved astern as soon as the hawser became fairly taut has already been quoted. Whether the amount of effort expended by the Patience at this critical moment was in fact substantial, or was on the contrary so slight as to have no effcrt, is, of course, a question of importance. In proportion as the effort then made by her was greater, the greater must be considered the steamship's danger of not floating at that tide, and the greater also the claim of the salvors for labor performed in rendering the services for which they are to have compensation.
The statement above quoted from the libel was not supported by the libelants' own evidence at the trial. No witness from the tug testified that the tug's pull upon the hawser before the steamship moved lasted as long as three-quarters of an hour. Upon the tug's evidence, the most that could be claimed is that it was about 20 minutes in all from the time the lawser was made fast until it was cut, and that not over 15 minutes out of that time was spent in pulling before the steamship started astern. There was no actual observation on either side of the exact length of time in question. Upon the estimates of its length, on whichever side made, it is impossible to place much reliance. One witness called on the libelants' behalf, Stanley, captain of the Fourth Cliff Life Saving Station, said that "it didn't hardly seem as if (the tug) was pulling any” before she got the steamship off, and that it looked as if the steamship pulled herself off, instead of being pulled off by the tug. The respondents' evidence was to the same effect. It was given not only by persons who were on board the steamship, but by evewitnesses who were on board the Gresham or one of the Boston tugboats. This testimony has not, however, convinced me that the pull exerted by the Patience was so short or of so little value as they regard
it. The witnesses who were not on board the steamship were all observing what took place from a considerable distance. The Patience's engineer testified that, after she began pulling on the hawser, her engines were not worked ahead at uniform full speed until the steamship came off, but that twice during that interval they were slowed down enough to slacken the hawser and started up again in order to jump or surge on it, and thus render the pull more effective. While I consider it probable that the actual duration of the pull before the steamship moved was less than 15 minutes, I think it was, nevertheless, long enough to make it impossible to say that it was of no appreciable duration or of no substantial consequence. Notwithstanding the opinions of the Devonian's officers, I cannot regard it as clearly proved that she would have come off on that tide without any outside aid whatever. Whether she would do so or not was sufficiently doubtful before the event to make her send for assistance and afterward to accept it when offered first by the Gresham afterward by the Patience. That the Patience and her hawser were of material service in holding up the steamship’s stern after she did come off, while her engines were working astern, is conceded. The steamship's propeller was right handed, and its tendency in reversing was to throw her port quarter toward the shore. The Patience by her pull off shore upon the starboard quarter counteracted this tendency as soon as the steamship floated enough to swing. This, however, on the evidence, is not all that she did. Her pull upon the hawser before the steamship got afloat I find not to have been at right angles to the steamship, as some of the witnesses claimed, but in a direction varying not much from direct astern. To prevent the stern from swinging may perhaps have been all that the master of the steamship expected that the tug would accomplish when he accepted her aid, but I do not find it proved that the master of the tug was made to understand at the time that this and nothing more was what he was expected to try to do. Whether the steamship would come off or not was then unknown, however confidently it may have been expected. I cannot doubt that the Patience pulled at first in the direction best calculated to assist the steamship in trying to back off the beach, and that she contributed materially to the success of the attempt.
4. The Patience was new in 1901, and then cost $60,000 to build. She had been employed in towing coal-loaded barges between Norfolk or Philadelphia and Boston or other northern ports. She carried a derrick forward and an extra hawser, but nothing else which could be called wrecking appliances. I assume her value with all appurtenances to have been $55,000, an approximation which seems to me near enough to her true value for the purposes of the case, in which her value does not constitute a very important element. She had on board a crew of 14 men.
In rendering the above services to the steamship she had to navigate waters other than those with which her regular employment made her familiar, to approach a dangerous shore, and to come closer to a stranded steamship than she would have done had she consulted her own safety alone; and to do this in stormy and rough weather. There is therefore a sense in which she may be said to have incurred danger. Yet that danger can hardly have been greater than was frequently en