FEDERAL REPORTER
vot 48.
at aU; thb:t not possible for the "COW to float, for the reason that she was in a sinking condition, and that she in fact sank to the bottom as soon as the chains of the derrick were loosed. Furthermore, those witnesses say that the positibnwhere the scow was left by them was carefully observed by them at. the time, that ranges were taken, and that they saw the scow when the derrick raised her, and she was then in the same position where she had been lelt by the Talisman. .In this conflict of evidence, the general rule that the libelant, in order to succeed, must prove his case by a preponderance of evidence, is ,to be applied. Here there is no preponderance of evidence in favor of the libelants, and the libel must therefore be dismissed, with costs.
THE
MARIE ANNE.
(l>tBtrf.ct Oourt, E. D. SALVAGB-TOWAGE SERVICES
February 10, .1888.)
An ocean steamer worth $150,000, with a valuable cargo, and about 50 men, as orew·and passengal's, wllUe·running on schedule time from New York to Carthagena and other Caribbean a brig, in a practically helpless condition. about 130 miles off CapeJ:ienry. Only three men were on the the captain and the restor the crew having died of yellow fever. It being considered unsafe to put men aboard her, the brig was towed into HaJIlpton Roads, during a high and dangerous wind, the steamer aeviating from her course about three days for that purpose. The trig and cargo were appraised at $7,645 as the auction value in Norfolk, whicb was milch below their commercial value. Held, that $2,750 should be awarded as salvage in addition to the expenses incurred by the deviation.
BY
OCEAN STEAMER-YELLOW FEVER-COMPENSATION.
In Admiralty. Libel for salvage services performed by the steamer Bellver and crew, in towing the brigantine Marie Anne into Hampton Roads. Decree for .libelants. .The other facts fully appear in the following statement by HUGHES, J.: The steamer Bellver, Antonio Planas, master, left New York on the 18th of October, 1882, for IJimon. Carthagena, and other ports on the on the morning of the 20th, she saw the Caribbean sea.At6 signals of distress, aud went Marie Anne, a"French brigantine, to her. Most of the crew of the Bellver were Spanish, but Rossello, the first mate, spoke French. At the direction of the captain, Rossello spoke to those on board the Marie Anne in their own language. He asked them what they wanted. They replied, "We want to be saved." He asked if their captain was· on board. They replied, he was dead. He asked if they had any They replied, "Nbne," adding, "wa are but three;" all. the rest of the crew and the captain were dead. They requested to be taken on board the Bellver. When denied, they requested that their vessel and themselves should be taken into port. Their caJr tain and the rest of their crew had died of yellow fever. The captain of the Bellver held.a conference with his officers and passengers, and it was decided to tow them into port. They were then about 130 miles off the The Bellverhad on board a crew of 40 men, 7 capes of the
THE MARIE ANNE.
743
cabin passengers, and probably other passengers. She had on a. very valuable cargo, paying $5,000 in freight. The brigantine had left San Domingo on the 16th of September, 1882, bound for Havre. Spe was a vessel of 222 tons. After having gone 300 leagues in the Atlantic, 011 her voyage, she had, on the 6th of October, changed her course, and had been muking for Delaware bay ever since. The three men found on her, when met by the Bellver, had neither of them had the yellow fever. According to the testimony of the libelants, and of the health-officer at Norfolk, they were feeble, emaciated, and more or less ill. They had all, from necessity, remained on deck night and day nearly the whole of the time since leaving San Domingo. When hailed by the Hellver the principal sails of the brigantine were up, but were most of them torn, and were badly trimmed. The vessel and sails indicated the possible condition of the crew, though the ship herselfwas in a seaworthy a11dsoundcondition. They had a short time before hailing the Bellver hailed a sail-vessel, but had received no relief. The the brigantine was first towed by the Bellver was one hawser of her own, lind soon broke under the growhtg power ofthe wind, which, already'stiff, blew harder and harder for 15 to 20 hours afterwards. When the first hawser broke; two hawsers were used, both belonging to the brigantine; 'but about 11 o'clock of the night of the 20th gale having hec6ine quite stiff and the sea quite heavy, both these hawsers broke. Afterwards, the Bellver used her own hawser in bringing the brigantine into Hampton Roads. During the night of the 20th, when the two ships had got separated, the Bellvf1r kept near the Marie Anne until three men on board the latter, having taken heart since morning. their rescue, managed their vessel very well during the' night aud the period of separation. The brigantine was brought into Hampton Roads on the 21st; and was anchored off Sewell's point. In a few days afterwards she was ta.kenu p to the quarautine station near Crany island. The health-officsr of Norfolk, Dr. Galt, found two of the men feeble and sick. to be taken frOID their to the city hospital; but he and was unable to gratify them in this respect because of their vessel being infected with yellow fever. They seemed very anxious to leave her. The testirnony of the witnesses examined respectively for the st.eamer and the brigantine is conflicting as to the helplessness of the crew of the: latter when she was hailed by the steamer, and as to the capacity of her crew to navigate their' vessel. ,,' The crew of the brigantine were not examined until a month after their rescue; when they had recovered their health, and courage.' When first seen by Dr. Galt, the health.. officer of Norfblk, they and vessel were in condition corresponding to the representations of the witnesses examined for the Bellver. On arriving at Hampton Roads, and when theiBellver was about to leave them, they had signed for Capt. Planas, at his request, a testimonial in French, of which the following is a translation: "We, the seamen of the brigantine Marie Anne, of St. Vaast, on a voyage' 'from Saint Dorningo to - - - , certify that on the morning of the 20th of October. af,six o'clock, we descried a steamer,ltond hoisted our llag, requesting
vol. 48. 3I'lsi/ftt\llce.{' sauvetage,"lan.d.said "essel, on bore down upon us. and asked what we wanted. to which W6,r;llplied. to take us aboard or M,p?npuctuR to we had, nO na;vigatot aboard, and did Il.ot know, our vessel. However, we sign this certIficate at the' the captain of the said Spanish steamer Bellver. in the port where we arrived, 'conducted by this vessel, on the 22d day of October, 1l:l82. "r,r hll'.lIeamen .,. ! .; '. COUESPEL. ' The second of the Mane Anne, LE ",'
, .
. :RASCHIERI. \. ,',' ,
-
',
MARCHAND."
La th,eidestimony, given a month aftE'rwards, in NorfQlk, Le Marchand and Couespel, admitting that they had read and unden;tood this testiThe monialbefore signing >it, yet denied the truth of its· tElnorlQftheir testimony is that they did not need when taken in tow,hy the :Sellveq that they could have easily brougl;rt their vessel in;tQiport;:ihat ,at no time haqthey,any thought of leaVIng her; that they never in need of service; that their its sails and were it) good and effective condition; that they;ther:\lselves were well ,$I)qistrongand hope{ul; that Le Marchand was an experienced navigator.'P(>llsessh1g a diploma as second mate from the college of St. Malo; taken' aU nece!$sary obs,ervations while the brigantine was at sea'j8nd)plew where.hj,s ves:;\el when rescued; and .that they in fact, inhoistlng a.flag of and hailing the BeUver, had no purpose of asking for help andfo,ltisalvage but wanted and asked for nothand vl:\getB,bles." The alleged diploma of Le ing hQt," MarohnndwaEl not produced, though called for. Their testimony proves fartooID1;mhiu this direction; anli I find myself unable to credit it on the two essential points,:-whether their vessel needed salvage service, asked itof the BeU:ver. The testimony of the libelants and Ie, positive to the effect that the vessel was without and of a navigl\tor:;that her crew had no intelligent conception of where they were; that a heavy gale .came on soon Mter she was taken in tow, in which she was likely to have been driven on the dangerous shore north south ofCape Henry; that they earnestly asked to be taken on board the.:ijellver; th'at .they required salvage service for themselves and vessel; and: that they, ,owing to tbeir own feeble condition, physical and mental, Were in exigent needofit. The brigantine was insured in France [or 40,000 francs, ($8,000.) She was appraised here under orders of this: court at $4,00() as her value in Norfolk. Her cargo, which consisted .oftnahogany and other woods and some dried fruits, was assessed as wOllth $3,645.22 in Norfolk. A l;>y items of the expenses of the l3ellver incurred by deviation is filed by her counsel, showing these tohav:ebeen $1,014. Butler, StillmanOc Hubbard, for libelants. Sharp Jc. HUGHE;8, J" (after atating thefactll.) .This is to he a case of salva.ge.. Anocean steamer, the Be}l:ver,bound from New York to a, tropics, having on board 3 largecrew,3 number of pas.
:"
745
sengers, and a cargo paying a freight of $5,000, came in sight, on the morning of the 20th October last, of a sail-vessel holding ont signals of distress. The steamer went to her relief and found that the vessel, which wl1s the French brigantine Marie Anne, was infected with pestilence; that within a few days past it had lost all except three men of its crew with yellow fever, including its master; that it was floating upon the ocean without chart or navigator; and that it had shortly before been refused relief by another ship; that the three men left on her were practically irnpotentwith long watching, fatigue, and despondency. These men begged to be taken on board the steamer. They demanded thatat least their vessel and themselves might be saved, and taken into They had sailed from San Domingo, 300 leagues, for Ravre, had then changed their course, and had now drifted to,within 130 miles of Cape Henry. Counsel for libelants well say that here was a case worse than one of derelict. If it had been merely a ship abandoned and, adrift, the master of the Bellver would have been at liberty either to put' a crew upon her whi} might navigate her into l'0rt,' or to leave her to her fate. But in this extraordinary case his duty as a sea-faring forbade either of these measures; He had no right to put any of his own men upon a vessel infected with ,one of the most deadly of diseases, and one peculiarly ,fatal at sea. He could not abandon to their fate three out, helpress human beings, begging, to be saved. Nor could he take these poor people on his own ship, crowded as it was with men, and bound within the tropics, where, if the germ 'of yellow fever were once planted upon his ship, it would surely fructify in disease, and destruction to his business. I think the master of the Bellver adopted precisely the course:imposed upon him by all the circumstances of the situation. In answer to the entreaty of the peop'e on the Marie Anne to be taken on board his own steamer, he did what the authorities of Norfolk did three days afterwards l ir. answer.to their petition to be admitted into the city hospital,--··he refused. Tbeprotection of many from pestilence is a higherduiythan that of gratifying even the moderate desires of a few who are' afflicted. His refusal was an act of duty, and not an act of cowardice. The master of the Bellver, taking great care to protect his own vessel from infection,and declining to subject any of hIS own crew to risk by putting them on board the infected ship, did the only thing he could do with safety to bis own vessel,-he towed the Marie Anne into Hampton Roads. I cannot concur with Judge CURTIS in his opinion intimated in the case of The ATphonso, hereafter cited, that a person may safely go upon the deck of a ship infected with yellow fever, if he take care not to go below into the hold. Experience has shown that remaining at night on deck of such a vessel subjects to the contagion as surely as going below decks either by day or night. An historical proof of this fact was given in the instance of The Ben Franklin, which was the ill-fated steamer that brought the yellow fever to Norfolk in 1855. This ship, after being, as was thought, thoroughly cleam;ed and disinfected, and after lying for a while down 'in the Roads, took on wood from a lighter. Owing to a rainstorm,
746
FEDERAL REPORTER,
vol. 48.
'which caine on late in, the afternoon, two laborers'fl1omthe lighter slept O\'ernight on the deck ,of the Frooklill. This was .their only exposure to the epidemicibuttheytook the fever, and both,died, from this single night on the deck of what had been supposed to ,be a. 'disinfected ship. By deviating fromms course in the, mannerwhiehhaabeen stated, the master of, theiLBellver 'incurred serious risk and cost. His own steamerw8S very'vaiblllible, as was also his cargo. .,The loss of three days' time to an ocean steli.mer:runnil1gon'a fixed schedule is :a1ways an important matter. 'GoDling: into any ,son of contact with a vessel infected with yellow fEWer isdttlostseriously perilous to a steamer plying within the tropiCs. Bringin,g,a.:vessel in tow into the capes ofthe Chesapeake, under a high wind Qlowing upon the land, is a hazardous adventure to one not regularly these waters. When we consider all these things, we avoid the conclusion thatthe steamer Bellver subjected herself to serious peril ll;lld cost in<undertaking thia salvage service. As to the Marie Anoe, she was Joundpiactically derelict. She had reversed her course in miJ..ocean, after qlakinga great part of. her voyage, and had floated tack before I the winds for hundreds of miles. She had no ',chart. No one' upon mer deck knew where she was,. except that it is probable that Le Marchand had an approximateapprehenflion of the latitude he was in·. :Her crew, ,were too feeble and too emaciated or despondent ,even to trim· sails. ,MtlSt of the sails were torn, audall were hangirlgon the rigging in a slovenl¥ manner, when the brigantine was spoken byl the Bell ; ,Consequently, in the gale;which soon after came on, she wasjn condition, to be .lost'. It is absurd; to contend that her voyage, before she was I spoken by: the Bellvell'., had demonstrated the proficiencyofber crew,asnavigato'rs. If it proves. anything, it shows only that a,vessel may live many days at sea addftwithouta navigator. La Marchlihd1the only man the crew with"any spirit remaining in him,had 'nothing but an ordinary map,toguide him; but he could not have any nautical use'of it, as he did not,know, until be was inforniedafter ,be had .got into harbol', ,that this .map had on it the lines oflongitude. It is- certainly true that one person m8iY take the longitude of ashipunassistepjbutit.is equally certainthat Le Marchand had nat performed, this office at all while on board the Matie Anne. . I think it. ullreasoMb1e to insist now that I.e Marchand was a navigator. When first spoken by the Bellver, and especially and particularlyasked whether she had a navigator on board, which was Ii ill,ost material inquiry, it was replied from the Marie Anne, with iteration, that she ba<knot·. After arriving in Hampton Roads; and when the Bellverwas about to leave the brigantine, and her master naturally desired to take with him to· his' owners, from "the saved crew. themselves, evidence of the service bEl had taken the responSibility of deviatingfrolll his coursetof6ndert!ulIu" Le Marchand, after a pnperwritten in his own' language,:which he,:signed find asked his companions to sign; (who' didl' sign ,it,} stated intbilL writing that the, Marie Anne had no navigator on: ,board. It was, clearly an afterthought when, Bomeweeksor'mo.re afterwards"hebagall to claim to be a navi lTlltill' ,
THE MARIE ANNlil.
747
vouching in proofa diploma from St. Malo, which has never been produced. Though lcan readily conceive how the procurement of a certificate from a saved crew by salvors may, as a rule, deserve severe reprehension, yet I can see nothing in the tenor of the certificate which was obtained by the master of the Bellver from the cre;w of the Marie Anne, or in the circumstances under which it was obtained, to reprehend. It was but a brief record of what were, up to the day of its date, a few undisputed facts. Returning to the main subject in hand, I think the preponderance of chances were that the Marie Anne would have been lost and cast away on the dangerous coast above and below the Chesapeake capes, during the gale which prevailed on the day and night after she was taken in tow by the BeUver, if she had been left to herself. I thibk, therefore, this was a highly meritorious case of andl. am restra.ined from allowing a maximum reward only by the circumstance of the comparatively small value of the subjects saved contrasted with that of the instruments which effected the salvage. In respect to vessels found helpless at sea,there are two classes of cases of salvage,-one, in which the Baving ship, usually a sail-vessel, puts one or more of her own crew Oil board, and leaves them to take the distressed vessel intoportj and the other, in which the saving ship, being a steamer, herself takes the distressed vessel in tow, and carries her into port. Where the former expedient is adopted, the salvage allowed by the adfor obvious reasons, as in cases of miralty courts has not been as the latter class. But when the latter method has been pursued, the salvage awarded has usually been large, sounding in thousands of dollars or pounds sterling. It may be remarked also, as to salvage. cases which have been decided in the. English high court of admiralty in later years, that the old rule of adjusting the amount of the award by proportions or of the values saved has been more and more disregarded; and I think it may now be assumed that the rule is in England obsolete. I admit, however, that in the United States we, are still bound to pay a sort of conventional deference to it. The tendency, nevertheless, 'here, as well is to cut loose from the old Procrustean. rule, and to as in award as salvage-Fir8t, the amount ,due on the principles of proaper, et labcrre and quantum meruit; and, second, to add to this a reward graduated to.the circumstances of each particularcasej this reward or bounty being diminished from a generousamount'onlyin cases where the value saved is exceptionally small compared with the values employed in the salvage, and the merit of the service rendered. In the case of The J(metMitehell, Swab. 111, the was£h200 (86,000) for furnishing a to iii distressed ship. In the case of The Roe, Swab. 84, the award was £200 ($1,000) for supplying additional seamen to a ship disabled by being short of hands. In t-he case oiTlie Golondrina, L. R. 1 Adm. & Ecc. 334, the·award was £1 1800 Jor furnishing a navigator to go from Chili to ,Swansea; In the case,of The Alphonso, 1 Curt. 376, where two 'vesselR were off shore, and one of: them supplied a seaman.to the other to bring her a few miles inw' pDrt,-.,.yellow fever. being on board the latter,-the award was 1750,
748
and would have been increased to.$1,050 if the master who furnished the seamal3. had been willing to receive the additional amount. In the case,ofPhe Czarina, 2Spr. 48, $5,.500 were allowed for bringing a ship from the middle of the Atlantic into Boston,. and furnishing her a navigator. In the case of The Martin Lttther, Swab. 287, £1,500 ($7,500) were allowed for rescuing a vessel· from distress under circumstances of considerable risk, by a service of 24 hours. In the case of The Andalusia, 2 Mar.. Law Cas. 215, £510 ($2.550) were allowed for towing a disabled steamer for eight hours undel' circumstances of danger. In the case of The J. L. Bowen, 5 Ben. 296, $3,000 were awarded for navigating a ship short of hands into port·, in fair weather. In the case of The Meg Merrilies, 3 Hagg. Adm. 346, £750 ($3,750) were allowed for towing a;dismasted vessel 105 miles for 17 hours. In the case of The Traveller, 3 Hagg. Adm. 370, £1,000 ($5,000) were allowed for a meritorious case of towing a helpless vessel. In the case of The Akbar, 5 Fed. Rep. 456, 83,600 were allowed for navigating.a brig with valuable cargo from Havana to New York. In the case ofTfte Cleopatra, 3 Pr6b. Div.145, £2.,000 ($10,000) were allowed Jor towing a derelict ship 90 miles into port, amid much danger. In the. case of The Skibladner, Id. 24, £900 ($4,500) were allowed for furnishing one navigator, who navigated a fever-stricken brig, with mostof her crew· ptostrate,3,000 miles, from the Gulf of Mexico to England. In the case of The D. W. Vaughan, 9 Ben. 27 j $1,140 were allowed for towing a disabled schooner from a few miles oft' Long Island shore to New York. In the case of The Minnie Miller, 6 Ben. 117, the steam-ship Pacific was allowed $2,250 for towing a disabled brig, found sailing with a jury-mast, 175 miles, into New YOl1k,in a salvage ser.vice. In the case of The Welifor.d, 6 Ben. 119, a pilot-boat was allowed $1,500 for towing a dismasted and distressed brig for nine days into port. The award would have been larger, but the amount saved was only $3,800. In the case of The Albert, 33 Law J. Adm. 191, £400 ($2;000) were awarded by Dr. LUSHINGTON, on appeal, for standing by and towing for nine days a schooner that had been damaged in a storm off the Dutch coast. Respondents denied that it was a salvage service, and the value saved :Was only £1,680. Most of these cases; it will have been observed, were cases in which the services of mere individuals, as sellmen or navigators, were thus liberally rewarded, but seldom with reference to the values saved, except where the amount was so inconsiderable.as to make a stinted allowance necessary·. Among those cited there are but few cases of ocean steamers\..rllnning upon fixed schedules, turning from their course, under the humanity, for the generous purpose of conducting distressed veseels into port. This llltter was the service rendered by the Bellver, undertbeappeal of humanity, and at the imperative dictate of duty. Hel' conduct deserves the most eillphatic' commendation of the court; and, sitting here in an admiralty court, at this central port between tha great marts of American commerce on one hand, and the tropicalportions of the continent on the other, which are no less fruitful in pesti. lence than in. all the elements of wealth, I dare not, I. have not, the .
THE EXCELSIOR.
749
courage to', decree; in view of its influence in future cases, a reward of less than $2,750, over and, above costs and 'expenses, to a costly steamer, laden with a valuable cargo, and having full 50 persons on board, for picking up ano bringing safely port an infected vessel, found far out at sea, with a crew. cut down by fever to ·three worn-out, emaciated men, demoralized by misfortune and fright, and drifting they knew not where, at the mercy of the-elements. I am sorry thllt a just award bears so large a proportion, as the one due in this case, does to the value saved, which is only $7,700. It is to be considered that this is the cash auction value at Norfolk, and much below the mercantile value both of the ship and cargo. The ship is foreign-built, and cannot obtain an Amtrican regIstry, and so her valuation here at only $4,000 is only half her insurable value in France. It is true that in salvage cases we are ,bl;>und to decree upon values in ,the port of the forum; but, Ua large proportion be awarded, the hardship in this case is only apparent. I repeat, therefore, that lam restrained in the present case, in fixing the amount to be allowed foithis meritorious service, by the inconsid..;, erable value of the property saved. The expenses of the Bellver incurred by deviating some three days from her course\ and incidental to theMrvice, were about $1,000. I think the reward due for performing this service ought to be at least' $2,750, besides expenses. And therefore I will award the rou,ndsumof $3,750" and the costs of this suit. As the counsel for the libelants represent all the persons claiming to participate in this award, I will leave to them the apportionment of the alnount awarded among the several claimants as they may think just, subject to revisal and correction by the court after conference with them.' .,,'
as
THE EXCELSIOR. FRENCH ". THE (Df.s1:rlct Oourt., E. D. l7'irg£nm
August
5, 1889.)
l.
SALvA-a_SUBJECTS OF
The large flat-1)ottomed steamer Excelsior grounded 1)roa<1side on nearhtgh tide, on the eastern shoal of Hampton bar at Hampton Roads. Shortly afterwards another steamer tried in vain to pull her off. ana at the next high tide the most powerful tug in those waters, aided by the ,steamer's own engines, was unable to move her. Thereupon a wrecking schooner in charge of a professional wrecker. and with powerful apparatus, was employed, and, with the aid of a tng, tried during one high tide to, move the steamer ,without SUC068S, but at the next sU\lceeded in draWing her ofl.'J;he tide there runs in strongly. and the evidence showed that a tide sufficient to float her would probably have carried ber further upon the bar. Held, that she walt a subject of BJ:Id the services rendered Wllre salvage sel'iVice!I. The, Excelsior was wortb $150,000. No danger was incurred by'thewrecking sohooner or tbe tug. There was no agreement as toeompensatio'n, but"tbeoaptain ot a.blll ,fol" ,f8PP. wllich was Be4i., wreckIng company was entitled to $700 as salvage. . " 'C
ON BAR.