The Blackwall

APPEAL from the Circuit Court of the United States for California; the case as it appeared from the opinion of the District Court, from which it had been taken to the court below was this:About 4 o'clock on the morning of the 24th of August, 1867, the British ship Blackwall, then at anchor in the harbor of San Francisco, was discovered to be on fire. Shortly afterwards the alarm was communicated to the shore, and the fire department of the city called out. As soon as the cause of the alarm was ascertained, the chief engineer of the fire department, with an officer of the harbor police, proceeded to the steam-tug Goliah, then lying at one of the city's wharves, and belonging to an incorporated towing company of San Francisco, and having aroused the person in charge, requested him to 'fire up' without delay, in order that the engines might be conveyed on the tug to the burning vessel. This, after a few moments' hesitation, arising it was plain from reluctance to act without orders, he proceeded to do. Messengers were despatched to the captain and engineer of the tug, who were asleep at their homes on shore, and every effort made to get steam on the tug as quickly as possible. The captain and engineer were aroused, and at once repaired to the wharf. It being found impracticable for the tug to go into the slip where the fire engines lay, two of the latter were brought around to the wharf where the tug was, and taken across the deck of a steamboat which lay between the wharf and the tug, and so on to the tug with promptitude and skill. About 6 o'clock the tug, with two engines on board, together with the firemen, &c., attached to them, moved from the wharf, and in a few minutes were alongside the ship. The fire had by this time made considerable progress. The house on deck between the fore and mizzen masts was on fire, and the flames were mounting nearly half way to the tops. The ship was also burning between decks, where the fire first originated. The officers and crew, though assisted by a party from the United States ship Lawrence, having found all attempts to subdue the flames abortive, had desisted from further efforts, and had a few moments before the Goliah arrived, left the vessel with their effects in small boats. Without speedy assistance the total destruction of the ship and cargo was inevitable. The measures of the firemen and officers of the tug were taken with great skill and energy. The hose of the engines was charged, as the tug approached the vessel, and as soon as she was near enough, four streams were directed upon her. The tug, without hesitation or delay, was made fast alongside the Blackwall. The firemen almost instantly mounted her rails, went thence to her forecastle, and from thence to her deck, sweeping the latter with four powerful streams, by which the fire was speedily controlled. They then descended to her between decks, and in a little more than half an hour the flames were entirely extinguished. Her anchor was then weighed by the advice of the captain of the tug, and the vessel was towed to certain flats near one of the city's wharves. The tug was then dismissed, and the engines were taken to the shore and landed.

As to the degree of danger incurred by the tug there was some conflict of testimony. That she was promptly and boldly laid alongside the burning vessel was undisputed. That she caught fire once or twice was proved, although this fire was instantly extinguished, and with the powerful appliances she had on board the danger from this cause was perhaps not great.

The chief risk incurred by her was from the falling of the masts or spars of the vessel. An accident of this kind, had it occurred, might have proved disastrous to the tug, and perhaps to many on board. The danger was not supposed to arise from the burning of the shrouds, for they were of wire, but from the fact of the mast seeming consumed by the fire, which had been burning between decks for several hours. As a matter of fact, it was found on subsequent examination that the mast was but little burnt, and was in no danger of falling. And the chief engineer of the fire department testified that he became convinced very soon after getting on board, that all fears of the masts falling were groundless. These fears were, however, entertained and expressed, not only by the officers of the tug, but by the pilot, and by the mate of the ship, so much so that axes were got in readiness to cut away the shrouds on the portside of the vessel, in order that the mast might fall to the other side.

It is also to be observed that the tug encountered the risk of the possible existence of explosive substances on board the vessel, and also, though this risk was slight, that of her own machinery or that of the fire engines becoming unserviceable, while she lay alongside the vessel.

The tug, however, was not the sole salvor. Without her assistance indeed the fire engines would have been powerless to save the ship, but without these engines on the other hand, the tug's aid would have been just as ineffectual.

In this state of facts the towing corporation, which was owner of the tug, and one Clark, her master, filed a libel against the ship and cargo, in the District Court at San Francisco, for salvage. The libel alleged that the ship was on fire; that the cargo as well as the ship was in great danger, and that both would have been destroyed had it not been for the exertions of the steamtug, her master and crew; that the master and crew went with the steamtug to the assistance of the ship, and that they succeeded, after great trouble and great risk to the tug, in quelling and subduing the flames, and that they then towed the ship to a place of safety. The fire department was no party to the libel: and in his testimony the master stated that his name was used in the libel only for the company owning the tug, and that he himself claimed no interest. The value of the ship and cargo, so far as saved, was $100,000; the value of the tug about $50,000. The District Court decreed 'that libellants do have and recover of the claimants $10,000 with their costs;' and this decree having been affirmed in the Circuit Court, the owners of the Blackwall now appealed to this court.

Mr. Goodrich for the appellant:

1. Clark having no interest, and having in fact disclaimed, cannot maintain suit for others, either in his own name or jointly with those in whom the interest may be. There is in fact a misjoinder; and the libel should be dismissed. The general rule of law and equity about parties must apply to admiralty cases.

2. The owners of the tug in their libel, aver that the boat, its master and crew performed the entire salvage service. They must prove this, or the libel, not having been amended or reformed, should on this ground also be dismissed. But they cannot prove it. The fire department did much more than the tug. Even if the owners of the tug were co-salvors, they do not aver themselves to have been so, and therefore, they cannot recover as such. The issue presented by the pleading is an entirety of service rendered by the libellants, when in fact only a slight proportion thereof was rendered by the steamtug; the value of this proportion is not distinctly in issue, and there is nothing before the court by which it can be apportioned.

3. The service by which the fire was extinguished was performed by the fire department of San Francisco, in the discharge of its public official duties. The vessel was in a position to be under the surveillance of the harbor police, by one of which the fire was discovered. The engineer of the fire department seized upon the tug (no resistance or objection being made), and used the same for the transportation of his engines and men, with and by which the service and extinguishment of the fire was accomplished. No compensation by way of salvage could be made to the fire department if it made a claim for it. But it made none originally; and it has never asked, nor does it now ask for a proportion of the money in the registry. The reason for this is obvious. It is that all persons who are under any legal obligation, express or implied, to render assistance, are not entitled to salvage. The fire department of San Francisco is, of course, paid by the city.

4. The decree of the district judge, affirmed by the Circuit Court, is joint in favor of the master and owners of the tug, and cannot be sustained, unless both make claim and are entitled to recover. The master disclaims. This objection is, indeed, included in the first one. So far as to preliminary objections.

But others remain.

A party not actually occupied in effecting a salvage service, is not entitled to share in a salvage remuneration. There is indeed an exception to this rule in favor of owners of vessels, which, in rendering assistance, have either been diverted from their proper employment or have experienced a special mischief, occasioning to the owners some inconvenience and loss, for which an equitable compensation may reasonably be claimed. But the libellants were incorporated for the purpose of owning and using boats for a towage service, and do not come within the terms or reasons of the exception from the general rule. The company is entitled to a fair compensation, a quantum meruit for its work and labor done. But clearly the sum of ten thousand dollars exceeds an equitable compensation for the service performed by the tug. Indeed the sum has not been allowed as such; for—

It is evident that the sum decreed as compensation for salvage includes the entire service, which was rendered by the fire department, as well as the transportation service of the tug.

Messrs. H. A. and J. S. Wise, contra:

1. Clark asserts his claim as a master and salvor. Whether his claim, which he asserts as a salvor, is to enure eventually to his benefit or not, is unimportant. It is asserted in the libel, and the decrees support it, they being joint for company and Clark. Opposite counsel need not exercise themselves as to the proportion due respectively to company as owners, and Clark as master. The decree is sufficiently certain to be good, as against them. The counsel will settle the respective proportions of company and Clark satisfactorily to the parties concerned, or they can have the proportions ascertained by the court. This disposes of the objection both to the form of the libel and to that of the decree.

2. The allegation of the libel as to what the steamtug did is in form; and is essentially true. The libellants were not bound to allege all the subsidiary, collateral, and instrumental aids that assisted to produce the fortunate result.

3. The service by which the fire was extinguished, was not performed by the fire department alone. How could landengines have got to the ship, if the tug had not taken them there? How could they have been used with effect if they had not remained on the tug? The tug did a great share of what was done. Indeed no towboat ever performed a more novel, skilful, and efficient feat than did this towboat.

4. The only question then is, was the tug a salvor? A salvor is one who, without any particular relation to a vessel in distress, proffers useful service, and gives it as a volunteer adventurer, without any pre-existing covenant that connected him with the duty of employing himself for the preservation of the vessel. Now the tug performed this exact kind of service. She was under no pre-existing contract, or in any particular relation to the vessel which made it her duty to risk her own safety in saving her. The engineer of the fire department had no right to seize her, nor did he seize her. Her service was voluntary and cheerful. It was bold also; and it was successful. Whether or not the fire department rendered any salvage service or not we need not inquire, for they make no claim.

5. The objection that the vessel was owned by a corporation, and that its owners rendered no personal service, is the same objection that was made by Mr. Ward at the bar, in The Camanche, conclusively answered by Mr. Casserly, opposing counsel, and overruled by this court.

6. As to the amount awarded. Plainly the decree is not meant to enure in any way to the benefit of the fire department, which makes no claim, and never has made any, for the reason (among others) stated on the other side, that it is paid by the city.

Then was the amount excessive for the tug alone? The ship was derelict. That is an immense feature in every case. The proportion for derelicts is from one-third to one-half.

In The Batimore, 800 out of  1900 was awarded. This would give us upwards of $40,000. In The Aid, a tenth was allowed to boats. In The Albion nearly a fourth, and costs. A fifth in The Branken Moor, a case in which the court said that the underwriters would not have underwritten for 50 per cent. In our case they would not have underwritten for 75. See also The Medora, which was a case of mere towage, where 600 was allowed. In the case of a derelict where a claimant appears, generally from a third to a half is allowed. The modern cases give about a third. But in the case of Jonge Bastiaan, two-thirds were allowed. See also The Isabella, which is a strong case; and The Thetis, where expenses, 29,000 out of  157,000 were allowed. These cases make allowances far in excess of the allowance made below, and that too, where the destruction of the property was not so certain.

In addition, this court declared in The Camanche, that it would not reverse a decree in salvage on the matter of amount, 'unless for clear mistake or gross over-allowance.'

Mr. Justice CLIFFORD delivered the opinion of the court.