Good Intent Tow-Boat Company v. Atlantic Mutual Insurance Company of New York

These were three libels of intervention filed in the district court of the United States for the district of Louisiana against the ship Tornado, her cargo and freight, and the proceeds thereof in the registry of that court, to recover for salvage services rendered by three steam-tugs, the Rio Grande, the Norman, and the Harry Wright.

The libel in the case of the Rio Grande alleges an employment of her owners on the twenty-seventh of February, 1878, by the master and agents of the Tornado, 'to pump out and raise said ship and her cargo,' with the pumps and appliances of the Rio Grande, for a compensation of $50 per hour, and claims $14,900, for 298 hours, from 6 o'clock P. M. on February 27th till 4 o'clock A. M. on March 12th. It alleges that the marshal of the United States seized the ship while the work was going on, and directed the libelants to proceed under the contract to finish the work.

The libel in the case of the Norman alleges an employment of her owners on the twenty-seventh of February, by the master and agents of the Tornado, 'to assist in pumping out and raising said ship and cargo,' by the use of the Norman and her appliances, for a compensation of $50 per hour, and claims $13,900, for 278 hours, from 6 o'clock P. M. on February 27th till 8 o'clock A. M. on March 11th. The libel alleges that the ship was under seizure by the marshal when the work was commenced, and that the marshal continued the services of the Norman till the saving of the ship and cargo was fully assured.

The libel in the case of the Rio Grande alleges an employment of her owners, on February 27th, to pump water out of the ship, and to remain near her afterwards, ready to render service, for a compensation of $50 per hour, and claims $11,200, for 224 hours, from 10 o'clock P. M. on February 27th till 6 o'clock A. M. on March 9th. The libel alleges that the ship was raised and saved, with her cargo, late in the afternoon of February 28th, and that the marshal, after he seized the ship and cargo, continued the employment of the tug under said contract.

The resistance to these claims is made by the underwriters on the cargo, to whom the cargo was abandoned. Their answer alleges that the ship and cargo and her freight were seized by the marshal about midday of February 27th; that the three tugs came about sundown on the 27th, but performed no effective service in pumping during that night; that effective pumping began the next morning; and that by noon on the 28th the ship was raised out of the water, and was free from all danger of sinking or again taking in water.

The district court awarded $1,000 to each tug, one-half to her owners and the other half to her crew. The owners of the three tugs appealed to the circuit court, and that court awarded to the owners of each tug $1,000, and they have appealed to this court. The circuit court found the facts and the conclusions of law on which it rendered its decree. There is no bill of exceptions, and our review of the decree must be limited to a determination of the questions of law arising on the record. The material findings of fact of the circuit court were as follows:

'The ship Tornado was a vessel of 1,720 tons burden, and had     come to the port of New Orleans for a cargo of cotton, which      she had shipped and stowed away, to the amount of 5,195      bales. She was almost ready for sea, and was lying along-side     the wharf in the third district of the city of New Orleans,      at the foot of Marigny street, when, on Sunday, the      twenty-fourth of February, 1878, at six o'clock A. M., smoke      was found coming out of the main hatch, and a number of the      crew were at once sent to the nearest fire-alarm box, and the      fire department of the city of New Orleans were quickly on      the spot. The main hatch having been opened, the fire-engines     immediately commenced to throw water down the main hatch,      which they continued to do until nine o'clock A. M., when the      main hatch was closed, and the steam gasboat Protector, being      provided with apparatus for the manufacture of carbonic acid      gas, commenced to attempt to extinguish the fire, which at      that time was raging quite violently in the hold, by      attempting to fill the vessel with carbonic acid gas. This     continued until nine o'clock P. M., when the main hatch was      opened, and it was found that there was less smoke than there      had been before the experiment with the gas had commenced. The engineer of the Protector went down the main hatch, and     having hooked onto some bales of the cotton they were hoisted      up and landed on the levee greatly charred. In the mean time the     firee-engines were pumping in water through the hatch hole,      and the smoke was increasing. A hole was then cut in the deck     abreast the main rigging on the starboard side, and some      fourteen bales of cotton were got out of this hole. At six     o'clock P. M. smoke was greatly increasing and the hatches      were again put on, and the hole in the deck covered, and the      Protector again commenced pouring carbonic acid gas into the      hold of the vessel, and continued doing so during the night. While these things were going on the harbor tug-boats, the     Continental, the N. M. Jones, the Belle Darlington, the Fern,      the Aspinwall, the Charlie Wood, the Ida, the Ella Wood No. 2, the Joseph Cooper, Jr., and the Wasp, had all got there,     hearing that the vessel was in peril, and were, with the fire      department, engaged in pouring water, with their more or less      powerful pumps, upon the fire, at all times when the gas      experiments were not going on. Arriving at the scene of the     disaster, some earlier than others, they were all there      during the whole of the first day.

'On Monday, the twenty-fifth of February, at six o'clock in     the morning, the main hatch was opened, and the hole that had      been made in the deck was uncovered, and the smoke was found      to be greatly increased; some thirty-two bales of cotton were      at this time taken out by the stevedores. The fire department     was hard at work pumping water, and several holes were cut in      the decks, trying to get at the seat of the fire. The main     pumps were taken up to allow the hose suction to be put down,      and the Protector and the steamengines were pumping out the      water part of the day, but the smoke kept on increasing. At     six o'clock P. M. there were twelve feet six inches of water      in the hold, and the draft of water aft was twenty-three feet      eight inches, and forward twenty-five feet six inches. At     eleven and a half P. M. the smoke was still increasing and      appearing, and the crew were employed in landing the sails      and new ropes, sizing stuff, and all that could be got at, on      the wharf. On Tuesday, the twenty-sixth of February, at six     o'clock A. M., Canby, the regular stevedore of the vessel,      and his men, came on board and landed the boats and      water-casks on the wharf, tore up the forward deck and      carlings, and commenced to save cargo. By noon the stevedore     Drysdale had 181 bales landed and Mr. Canby 100. The fire     department were pouring in water during the night and all the      forenoon, and still the smoke increased, and by noon the men were forced to      come up from the hold, and the fire brigade were set to work      to fill the ship with water, it having been determined by the      captain that the only chance of saving any part of the ship      or cargo was to fill her with water and sink her, it being      deemed impossible to stop the fire otherwise; and about 7      o'clock P. M. of Tuesday, February 26th, the ship sank, the      water being two or three feet above the main deck.

'On Wednesday, February 27th, Ellis, the master, and Schultz,     the agent, of the Tornado made a contract with the tow-boat      association to which the Norman, Rio Grande, and Harry Wright      belonged, to pump out the Tornado for a compensation of $50      per hour for each boat, to be continued until the boats were      discharged. After the making of said contract, and while the     Tornado still lay upon the bottom of the river, the Protector      filed a libel for salvage against the Tornado and cargo, and      by virtue of a warrant issued on said libel the United States      marshal seized the Tornado and cargo, when the said tow-boats      were about to begin pumping her out. After the seizure the     marshal took possession of the Tornado and displaced the      authority of the master, but permitted the said tow-boats to      proceed and pump out the Tornado. The said tow-boats     commenced pumping out the Tornado early in the evening of      February 27th, assisted by other tugs and the fire department      of the city of New Orleans, and succeeded with said      assistance, at 12 o'clock M. of Thursday, February 28th, in      raising the Tornado and placing her in a position of safety. The efficient work of pumping out the Tornado was done     between 6 A. M. and 12 M. of February 28th. The said pumping     service was done without serious danger to the tow-boats by      which it was rendered. The total valuation of the property     saved was $140,090.75. The value of the tow-boats in the     aggregate was $75,000; and their daily expenses were each      $100, when actually at work. The usual charge made by tugs in     the port of New Orleans is from $6 to $12 per hour for      pumping. The said tow-boats remained along-side the Tornado     after she was raised, ready to render her assistance in case      it was needed, for the period of about 12 days, but such      attendance was unnecessary and not required by any peril of      the Tornado and cargo, and the fire department of the city      was also at hand ready to extinguish a fire in the Tornado      should it again break out. The three tow-boats of the appellants, at     the time of making the contract, were out of service, laid up      on the other side of the river, without crews or provisions,      but were immediately manned and victualed and brought over      and laid along-side of the Tornado in the afternoon of      Wednesday, the twenty-seventh of February. At that time there     were no other tow-boats along-side of the Tornado. The said     tow-boats were provided with machinery and pumps for      extinguishing fires and pumping out sunken ships.'

The circuit court found the following conclusions of law from these facts: (1) The contract made by the master and agent of the Tornado for pumping her out was inequitable, and ought not, under the facts of the case, to be enforced; (2) the service rendered by the three tow-boats was a salvage service, but one of low grade; (3) each of them should be allowed $1,000; (4) the costs of the appeal should be paid out of the fund in the registry. The decree was that the owners of each tug recover $1,000 from the fund in the registry, and that the costs of appeal be paid out of that fund.

''Jos. P. Hornor and W. S. Benedict'', for Good Intent Tow-boat company.

P. Phillips, W. Hallett Phillips, and James McConnell, for Insurance Company.

BLATCHFORD, J.