lilch a condition that complete land'final justice to the'de£endailt will not have been done. Story, Eq. PI. § 83; Shields v. Barrow, 17 How. 130; Coironv. Millaudon, 19 How. 113; Barney Baltimme City, 6 Wall. 280; Ribon v. Rail'road Oompanies, 16 Wall. 446; Gray v. Schenck, 4 Vanderpool v. Van Valkenburgh, 6 N. 190. The decree is 1'6versed, without costs to either party, and the case remanded to the district court with directions to enter 'an order requiring the complainant to bring in the nQcessary parties defendant by amendment of the bill and proper process within a time to be limited;, and, if such parties are btought in, to take such furtherproeeedings in the cause as may be proper, but in default thereof to dismiss ' the bill.
l{OCONNOCRIN and' others
'V.
others. 1883.)
(Oircuit Oourt, 8. D. NmD Yark. SALVAGE-eO-SALVORS.
The receipt by the owner and captain of a vessel of the whole compensation awarded as salvage would necessarily import itsl'eceipt for the benefit of all other co-salvors interested in the 'same service, and so exonerate the owners' of the vessel, ,to which the service from any liabilitl to, others of the saving crew.
In Admiralty. On July 14; 1880, about 2 o'clock A. lIf., the iron steam-ship Pomona, while on a voyage from New Ydrk to!Montego bay, was attracted by signals from the iron steam-ship Colort, which was lying nearly in her course, and bore towards her. As she approached she -was met 'by a small boat from thaColon, a request from:the latter's captain for an interview. The Pomona's captain thereupon went abo,trCl the Colon, and was informed by the latter's captain that he wished to be towed to Fortuna. island to repair his machinery. The after crank-pin of the shaft of the Colon's engine wag broken, and the columns above the engine; the forward crank-shaft bent; and the condenser and low-pressure cylinder were cracked. . The highpressure engine could have been repaired without outside assistance in about seven days, but the low-pressure engine could not have been at all. The Colon was provided with a full set of sails, and with favorable winds, 'could have made anchor. She was in the track of vessels going through Crooked Island passage, and could made v.15,no.7-35 "f
ll>nchorat,Ql11sUe island, 81 'There' ,}fas a light easterly ;w:indat, the *ime, with have made about a knot .aI\hou:n 911t,:,t);lel'e wel1e; perio<J.slQf ,aalm. Fortuna island was the and and, directly beThe, galf)s incident ;tQ locality were apd JIur:\"icap.(jlB, an(lthe, Oolon'scaptain felt that the situation danger. The Colon !$ (}apta.in desired to agree with the clloptain for the price service", but tbf'llatter declined, an4 it ;be leH: to the owners W, :was tight, staunch, ing99d 40:n\litj.01V dis,abled. machinery, and well supplied. ' .' , of 391 tons, and not calculated for towing; of The Pomona was the value of about $60,000; with a full cargo, value not stated. A hawser was passed from the Oolon to the Pomona. The vessels got under way?1I.b6ut 4 ttttiiea ftit' about 8: 30 P. M. of the Sfl,me day, They sighted two other vessels on the way; and before reaching Fortuna island the wind hl;t,ddied aW:ly,and hecoD1e a The Pomona was 'Stboj1t a day 'on her voyage., impQsed on her crew ·was'very light. j 'About twb weeks after the' ocetirNlllcethl'Colon reached New York, and was libeled by the owner and captain of for salvage. The suit was settled by the payment of $8,000 by the ,of the Colon, and the costs oi $uit. This sum. was received by with .the understanding, as the owpar and captain .1::letween them and the oWner of thj:l.Colon, that tbepayment should cover the whole service rendered; to the Oolon; and it was received jnjoohalf of themselves and all,others to share in any saliv-age .reward. I. Upon the f,acte, one-fifth of the sum received is a sufficient com"pensation for the and crew of the Pomona for the services rendered. The PomOna had a ctew ofl5 offi'cersand men. .;Butler" Stillman &:·Hubbard,proctors for libelants and Jas. K. Hill, Wing d; Shoudy, pro:ctors for respondents and appellees. " WA.LLACE, J... The appellants, members of the crew of ,the steamj'Jhip fon;lOna, filed their libel against Kf7rr, the owner, and Mahlman, the captain of. the steam-ship, to recover theirsbare of $3,025.75, alleged to have been received by Kerr and Mahlman for salvage servo ices reudered by the Pomona to the steam-ship Oolon. The district
54:7 court dismissed the libel ielts'ohJtha.t reeei.ifedl by the' appellees was not paid to or reooived 'by' them. fbrLsalvage !a'erVic6s rendered by the Pomdna, but'fbt'oowage :aeritiees. i, .'" If the payment was reoeivl:lli assalv-age compeusatibn for' the en): tire service rendered by 'thePmnona, the '1ibelantsali'e 'entitleato recover. As is tersely sta.ted by the learneddistrict'judge inbi\! 6piriJ ion, "the receipt ufthe whote compensation &sflalvage wouldneces} sarily import its receipt'for, the benefit of all the othet co-saLvorS' interested in the saine service." '. ,. That the service was a salvage service,thouglf of an inferMr order of merit, seeins very clea.r. Bach'was the conclusion of the"aistricf the theOry of the ap" judge, and, as will hereafter' allpear,' such pellees and of the owner of the Colon when the former madeelaini against the Colon for compensation. That the payment received by the appellees was intended to be in fall (otthe-servioes the Pomona, is not disputed. f The case, then, is narrowed to the single .question whether the parties to the payment regarded it as a payment for salvage oras one for towage only. If it was intended to cover towage only,theril:<>fJ course, the crew of· the Pomona have no interest in it, because thair' rights as salvors were not in oontroversy and could not be affeetedby any settlement without their consent, and becaugeneither of theps.rties to the payment contemplated the adjustment of the rights of the crew. Whether the parties to the payment regarded it as made for 8al. vage depends upon the force of evidence, which may be brieflyatated :' About a fortnight after the services were tendered by the Pomona to the Colon, the latter arrived at New York, and a libel was'filea against· her by the appellees, "for themselves and all others for salvage. Process was issued, and the Colon was taken into custody by the marshal. Thereafter the owner of the Colon answered' the libel. ' The answer alleged that "the services rendered were only towage; and should not be ranked as salvage services of peculiar merit. " The answer also alleged that $1,000 would fairly compensate for the services, and that such sum was tendered and paid into the registry' of th'e l court. . , ' Shortly after the filing of the :answer, in order to settle the controversy without litigation, negotiations took place between the' owner of the Pomona and the owner of the Colon, which resulted in an agreement that a Mr. Dennis, the vice-president, of a marine inthe sum to be paid surance company, should act as arbitrator, and
548
by the Colon·. InforD;lal were made to the arbitrator in, behalfof both sid!=ls» and stating that he did not regard the service as anyt1;ling,:more than in the nature of a towing should consid,er $3,00.0 a yery liberal COJ11peusation, and servi96, was to award the. sum of $3,OODin full ,for the service, legal expenses inourred by ,the PomoJ:;la, which he directed bX the owner of the CoIQu. The t,erJ3ls 9f the award were to be cOIfl;Plied with by the ow.ner the Colon, andthf;3reuponareceipt was delivered to the owner of the Colon, entitled in the pending suit between and the CQloJ;l,:and s.igned by thepJ,'octors for the suit, reciting thepayment.of $3,Q25.75 as the libelants insettlem,t!li)trof. the action, exclusive of the. amount feeso.f the 9fi\cers. of, the court, which were to ,be paid by the claimant. that he u.nderstoCld he was to decide whether the service rendered by the Pomona was a salvage service, as well as compensation. Which should be paid; but neither of th,eparties ito the arbitration so testify, aJ;ld the captain of the wll:Q was when. the arbitration was agreed upon, states that it th/Lt Mr. Dennis sh.ould make an award as comiorthe salvage· . InasJIiluchasthe claim made against the Colon by the appellees. WM forsalv{tge;, !!ud,Was in behalf. ofthemselv audall others entils tied; as the owner of the Colon did not seriously dispute the theory tllat the sar:vice was salvage, ,but insisted that it "s:hould' not· be of peculiarmedt;" as the paramount question betwel:lA ,tqe parties to theeuit against the Colon was as to the amount ,to':which .,the: libelants were and Bs,.the amount finally' 'paid paid in settlement of the suit, and was for as so paid by therappellees,-the oonclqsion is reached that the pay-. ment was understood by the parties to it a's relieving the owner of thl:1 Colon .from all further responsibility for the service rendered by the Pomona, -and as shifting upon·t4e appellees the duty of satisfying all others who might be en.titled to a share in the reward. If' this was the contemplation of the parties it would be manifestly. unjust to subject the owner of"the Colon to liability to the appellants; and yet such would be the result if the conclusion of the district court should be approved, because the service was, in fact, a salvage service. , . The circumstance that the arbitrator incidentally decided that the service rendered by the Pomona was only in the nature of a towage
M'CONNOCIHN V. KERR.
549
service, is not controlling. The rea.l inquiry is, what did the parties tel. to the payment understand it wa.s intended to satisfy? If lieved the payment to be the reward of a sal'Vltgeservice,llnd as such was to include 'the claims of every person entitled to sha.re'in the reward, then the appellees received 'it with the obligatiilns wbich that understanding impressed upon the transaction. The OnIyitnportance of the l:I>rbitrator's "decision eonsists in the effeot It may havepfuduced upon the 'understanding ot ·the parties. If it led, that the Cl"ltW, of the Pomona,,had no interemin"tbeadJustment;then the decision was controlling; otherwise, not. If, notwithstanding, they understood that the rights of the crew were represented by the owner and cu,ptain, the libelants in the action, and that the owner of the Colon was to be absolved from all further responsibility for the services rendered, whatever their nature'may have been, the decision of the arbitrator was. not of J;t, is quite evident that, whatever the arbitrator may have thought, neither of the parties to the arbitration regardtld theservices as mere towage' sel'v-' What believed is apparent from the stateme,llts in their pleadings In the pending action, and the recitals in the; receipt by which the action was.acknowleclged to be, satisfied. Moreover;' the 'sum' awarded was utterly inconsistent with the theory of a mere towage reward. , . i· . The question whether the crew had any claim growing out of the service, was not suggested by the parties, or considered by the arpitrator. As the crew could not be bound by his decision, a.iid as he was to decide what should be paid f(Jr- the whole service rendered, and as the paramount object of the was that thisidecisionshould exonerate ,the 'ownef of the ObIon thechiim. for salvage made in their libel by the appellees, the'prEisumption is' cogent, if not irresistible" thatb6th parties intended that 'the latter sl10uld be exonerated oom:pletely; and if, incidt:mtally, that should quire the satisfaction of the l.Jlaims of the crew,that liability should rest upon the appellees. . The. large 'Compensation awarded seems tbhave been given upon the theory that, although the value of the Pomona's services to thE'!' Colon was of great value to the latter, in view of the of her situation, the efforts of the' Pomona involved no appreciable dangei;' hardships, or labor to herself or to her crew; nothing but the delay of It day, with its attendant expense, and the risk assumed by a deviation on her voyage. She 'probably. sustained the chance of loss by the derangement of her business engagements which a day's delay
from
550
. .fEDElU.L B.EPORTER.
might cause;aud. this seems to ha,ve been estimated as an element of the compensatio.p, to which she wa", entitled. The extra. labor imwas quittlincollsiderable. posed Upon all, {acts, one.·fifth of the whole salvage will adequately The decree is that $600, with interest reward the officers and at 6 per. October 4, 1880. be deposited in the registry of the court, Jobe distributed to the officers:*"ndcrew in the propodion their mouthly.,wages to, the whole monthly pay-roll. The libelants the, appea.l/and in the distric' court.
THE ANNIE
HENDERSON. February 23, 1883.)
, · (1Jtstrrct Oourt,n. Oonnecticut. 1. SALVAGE-REw. llID FOR. .
The reward given for salvage is based upon the danger,t<;»ife and property incurred' by the salvors, the value of the property saved, and the skill, labor, and duration of the services. 2. SAME-AMOUNT OF SALVAGE WHEN VESSEL IS DEllELICT.
The present state of the law does not allow a too-close discrimination, in regard to the amount of salvage, between property which has become derelict, and that which is not: the true principle is adequattl l'tlward, according to the circumstances. '
In Admiralty. Samuel Park and Au,gusf.us Brandegee, for libelants. John a. Dodge c/; Sons, for claimants. SJIIPMAN, J. This is a libel against the schooner Annie L. Henderson and for salvflge. On Sunday evening, September 10,1882, the three-masted schooner Annie L. Henderson, owned by the claimants, on her voyage from Apal,achicola to Boston with a full cargo of yellow-pine boards, struck on the Great rip,about 10 or 11 miles east of Sancotty head, Nantucket. She filled with water and lay on the bottom, unmanageable. .!.bout 275,000 feet of boards were under deck and about 100,000 feet were on deck., By order of the captain a of the deck-load was. thrown overboard. About half past 5 o'clock on the morning of September 11th, the captain, being of opinion that a storm was coming on. that the vessel would go to pieces, and that it was dangerous to life to remain on board, ordet'ed the sails furled, and with all his crew, eight in number, left the vessel in a boat, and landed on Nantucket about