I
286
FEDERAL. R1i:P.O:RTER,
vol. 40.
trial; whether he is satisfied t()complete the purchase,oortaitlly the courts cannot refuse to enforce theaweement as the parties. have: made it· . What, then, is the construction to be pJaced upon the contract signed by the parties to the present action ? It appears that the defendants were speculating in lands in Missouri and Arkansas. They claimed that they had perfected. the titles to about 22,533 acres, and claimed the ownership Of some 39,694 acres additibnal,.tbe titles to which were yet unsettled. !talso appears that it WAS their. purpose to continue the business of buying up tax and other titles to other lands, and to seH the same at a profit. The busineSB was llot that of buyinglands for cultivation and improvement,but that of buying and selling with a view to a money profit. It was proposed that the plaintiff should become interested in these purchases to the extent of taking an .undivided one-third share, paying therefor the sum of $11,000. The interest to be acquired by Giles, and the amount to be paid therefor, were agreed upon; but there was reserved to Giles the privilege of making "a further investigation of the ('ondition of the property aforesaid, and also the titles thereto; and if, upon such examination, it is not found satisfactory, and that the representations as made by the parties of the first part are substantially correct, then said Giles has the pl'ivilege of declaring said contract null and void,» etc.; it being further provided that, in case he concluded to complete the contract of pur-chase, he should give notice thereof to the other parties. When this paper was signed, in effect it conferred upon Giles the right to become a purchaser of an undivided interest in the' lands named. From the recitals of the paper, it is apparent that Giles had not fully committed himself to the. purchase. but had reserved to himself the right to make further· investigation into the condition of the lands, and the titles thereto. Counsel for defendants admit that Giles was not absolutely bound, and that, if sufficient reason therefor existed, he had the right to refuse to proceed further, and to recover back the money already paid; but their contention is that it was not for Giles to determine finally the question whether the condition of the property and the titles was or was not satisfactory, but that he was bound to be satisfied if the condition of the property-: and titles. upon examination, were found to be such that he ought to.have been satisfied. The time within which Giles was to make the investigation, and determine whether he would nullify or complete the proposed purchase, was limited in the contract. He was required to make the investigation, and reach a conclusion thereon, within a given time, and to give llotice thereof to the other parties. No criterion for reaching the conclusion, nor tribunal for deciding it, other than Giles' own judgment. is provided in the contract; and hence it is clear'thatit must have been the intent of the parties. to leave the decis-. ion of the question to Giles' own judgment. It is urged in argument that the principle should be applied that, if Giles .ought to have been satisfied,.the law will hold him bound. The facts of the ease show that it would be impossible·toapply this princi-
one party shall have the right to.decide, after a furthetexamJnationor
thull ·thl'own· thereon, if it is clea.rthat the parties haJve' agreed,· that the
GILES t1. PAXSON.
287
pIe in the way contended for. What criterion could a court apply in determining whether Giles was bound to be satisfied? The property dealt with is real estate; and the contract itself provides that Giles is not bound to complete the purchase unless the titles are, upon investigation, found to be satisfactory. If the ordinary rule touching realty is applied, then Giles would not be bound to complete the purchase, unless the otheriparties furnish good titles to the entire property; for a title cannot be said to be, inlaw,satisfactory, unless it is sufficient to convey the ptopertyto the grantee. The defendants do not claim that the evidencesof title that they furnished for Giles' inspection were such as to show a good title to the entire body of the land; and the agreement on its face shows that, as to the larger part of the lands, the titles held by the defendants were imperfect. Upon the argument it was said that all Giles could demand was that the other parties should furnish merchantable titles; that is. titles that could be dealt in as matter of speculation. It is apparent from the contract and the evidence that the parties understood that the titles in question, and the interest of the defendants in the lands, was of a purely speculative character. Now. when Giles was asked to become a purchaser, it was not expected or represented by the defendants that they would be able to show that they held good titles to the entire number of acres. They claimed to have sufficient interest in the lands to make it an object to Giles to purchase an undivided interest therein for the price named; but it was a matter of speculation, and, before Giles would agree·to finally become interested, he reserved the right to further investigate, not only the titles, but the condition of the lands, in order to determine for himselfwhether he would purchase an interest or not. The suggestion that all Giles· could demand was merchantable titles, in the sense of titles that might be dealt in as a matter of speculation, is illusive. for it furnishes no criterion for determining whether Giles ought to have beensatisf1ed or not. There is a no market rate for titles, nor is there any rule for determining what would constitute merchantable titles. Construing the contract, then, with reference to the subject-matter, no force can be given to its provisions giving the privilege of fufther investigation to Giles unless it be held that he had thereby reserved to himself the right to investigate the condition of the lands, and the titles thereto, and, baving made such investigation. to then determine whether be would complete the purchase or not. 'It is further urged that the right to nullify the contract does not exist in favor of Giles unless tlle representations made by the parties of the first part are not substantially correct. Viewing the contract as an entirety, it must still be held that the rightto examine into and determine this question was reserved to Giles himself. The contract requires the entire. investigation to be made within a limited· time. and requires Giles to decide whether he will proceed or retract. The question reserved for Giles' decision was whether he would complete the purchase of the undivided one-third, interest or not; and all the matters to be ill. vesti.gated,'w.-betheras to the condition altha lands, the state ()fthe
288
REPO;nTER,
vol. 4.0.
titles, or the representations of the defendants, were to be investigated, in order that he might understandingly exercise the judgment reserved to him of deciding whether he would or would not proceed with the proposed purchase. All the questions to be investigated were reserved for his judgment, or none of them were; and, according to the fair construction of the contract, the privilege of declaring the contract null and void is reserved to Giles if, upon investigation, he should determine that the representations made were not substantially correct, or that the conditions of the property or of the titles were not satisfactory. That. this was the understanding of the parties at the time that the contract was into is further shown by the fact that no conveyance was executed to Giles of an interest in the property, but, on the contrary, it was provided that if Giles, after investigation, decided to proceed with the purchase, he was then to give notice of sucn conclusion, and complete the payment of the sum specified, and then the conveyance to him was to be· executed. Taking all the provisions of the agreement into consideration, it is clear that both parties understood that it was left to Giles to decide, after due investigation, whether he would proceed or not; and as it appears, from .the evidence, that Giles made the investigation he was privileged to make, decided that he was not satisfied to further proceed, and gave the notice in of such conclusion, as provided for in the contract, no good reason is assigned why the court should hold that he is still bound as a purchaser of an undivided interest in the lands described in the contract. It further appears in evidence that, the decision of the question whether Giles would complete the purchase named, he bought certain lands known as the "Bradshaw Purchase," and Williams contracted for certain other lands. In the written agreement already referred to, it is provided that, "in the event of any further purchases or interests in Arkansas by any of the parties hereto, it shall be at the option of all parties to take a pro rata share in the same at net cost." When Giles sent the notice to defendants of his conclusion not to proceed further with the purchase of the lands described in the contract, be also llotified the defendants that he had made the Bradshaw purchase, and that they could become interested therein by paying twothirds of the COgt. thereof, and, further, that he might wish to take a third interest in the lands contracted for by Williams. It is now claimed that by this action on part of Giles he nullified the notice not to prooeed with the purchase named in the contract, upon the theory that the contract was an entirety, and that he could not refuse to proceed with the purchase of the named lands, and yet treat the contract as in force. The plaintiff is not claiming the right to rescind the contract on the ground of mistake, fraud, or other like fact. On the contrary, he is seeking to enforce that part of the contract which gives him the right to demand the repayment of the $5,000 in case he should not decide to proceed in the purchase of an interest in the lands named. The right reserved to both parties to participate in the benefits of any other lands purchased in Arkansasis not, in terms, made dependent upon the qUe&"
THE KIMBERLEY.
289
tion whether Giles should or should not complete the purchase of an interest in the lands named; and hence his statement to the others, that he conceded to them the right to take an interest in the Bradshaw pur chase, and claimed a like right in the Williams contract, cannot affec; his right to refuse to complete the purchase of, an interest in other lands. It certainly cannot be true tbat if, during the time Giles was investigat. ing the titles to the 62,000 acre" of land, the other parties had concluded to take 'an undivided two-thirds interest in the Bradshaw purchase, and Giles had conveyed it to them, thereby Giles could have lost the right to 'refuse to proceed in the purchase of an interest in the other lands. The fact that the other parties were satisfied to take an interest in the Bradshaw purchase would not affect the actual condition of the titles of the 62,000 acres, and could not deprive Giles of the right to investigate ·their condition, and, upon such investigation, to determine whether he would complete the purchase of an interest therein or not. The same is true· of the corresponding right reserved to Giles of pating in the benefits of other lands purchased by any of the parties of the first part. These respective rights are merelyoptions reserved to the respective parties, not obligations compelling them to purchase interests in other lands; and they do not limit or modify the right reserved to Giles to determine for himself, upon investigation, whether he would complete the purchase of an interest in the other named lands. This being the correct construction of the contract, it follows that Giles had the right to determine, upon investigation, whether he would complete the purchase or not.. Having decided not to complete it, and having given notice of such decision to the other parties, then the latter became bound to repay him tbe$5,000 received from him. Haying failed to repay the amount, plaintiff is entitled to judgment therefor, with 6 pel <;ant. interest from May 15, 1887, and also for costs.
THE KIMBERLEY. BAKER .SALVAGE
Co.
11. THE KIMBERLEY.
(DlBtr£ct Oourt, E. D.Virgm1a. June 16, 1888.)
\
,. SALVAGE-AwARD, The steamship K" valued, together with her cargo, at 1490,000, was stranded On December 1st oJ! False Cape shoals, Atlantic coast. The vessel was 350 feet long 8,760 gross tonnage, and had been driven 8,000 feet from deep water, and thrown high upon the shore. broadside to the sea, and imbedded in the qUicksand,-a most perilous position. The libelants came at once to her rescue, and finally succeeded in the vessel oJ! on January 26th. Some nine vessels, valued"at $164 000 were employed in the service. The vessels and men incurred serious .andcontiIiued risks on account of storms oJ! that coast. A large part of the cargo was moved 2,000 feet In surf-boats; it being impossible to get a larger vessel near the K. The K. was so filled with wate.r as to render her e)lgines useless, and very little assistance was received from her. The libelant's actual outlay was 146,000. Held that, in addition to the quantum meruit allowance, libelant was entitled to one-fifth of . the,value sav¢, viz.. $98,000.
vAOF.no.5-19
290
FEDERAL
REPORTER, vol. 40. ,
2. Snm-INooRl'oItATlm' SALVAGE, COMPANlt!:!K
An incorporated wrecking and salvage COUlpallY may be granted salvage awards . as li1:lerallyas natIlral persons so engaged.'
8. SA:M:E':":':RELEA8E o!!"RrGHT TO'MERITORIOUS AWARD.
An agreement. between the.salvors and the agentsot the vessel in distress that the salvors Shall proceed to save the cargo and vessel, if possible, the compensation to be sUbsequentlyftxed by arbitration or thecoul't, at the option of the vessel, will not bar. the salvor's right to receive a meritoriolls award.
In Admiralty. On a libel for salvage. Sharp & Hughes, for libelant. Butler, Stillman & Hubbard, for the underwriters. HUGHES, J. The steam-ship Kimberley, a British vessel bound from New OrleanR to Liverpool, by 'Way of 'Hampton R9ads, for coal, laden with 8,000 of cotton, 15,086 bushels of .com, and 24,lM bushels of Wheat,: ,vas' stranded,. near ITlidnight on Thursday;'December 1,1887, ill a heavy storm, on the Atlantic. beach, at False 'Cape shoals, off CurrittlCkcounty, N. C., aboutH miles'south of the Virginil1 state lirie, near the United States life-saving station No.6, 30 miles south of Cape Henry. The ship was 350'feet long, 41 feet wide, and 33 feet in depth of hold. Her gross tonnage was 3,760, and net tonnage 2,464. She had beendriveri by force of wind and tide, when beached, 3,000 feet from deep water, across two reefs of sand, and thrown high upon the shore., where she lay, out of the.wnter as to her bow, and in only five feet of water asto her stern, but imbedded ihthe sand 15 feet 6 inches aft, and 17 feet 6 inches forward. She lay broadside, heading southward, at an an.gle of 16 deg. ",:it'h ihe She lay on l:t. bottom of quicksand, which at False cape is commixed with a broken layer of yellow clay and roots of trees, which' Once formed 'Ii. promontory ofland that has been undermined and sunk by the sea, and forms a lumpy bed, frotn which the extrication of a: ship of large size is more difficult than from a bed of unmixed sand. The danger of going to pieces in 8uch a position was very great to the ship. It was a season of the year when high seas were constantly running in, and breaking upon the beach,. These coming against the broadside of the ship, along a space of 350 feet, would part, and rush with great force around e,ach elld of. the ship, washing the sand and detritus from under the ends, aria leaving a: bank under the middle parts. This action of the wa,ter. onthl,\J, cOllstsubjects a loaded ship to great strain, and to the strain, of hogging, breaking up, and going to pieces. The strain upon the Kimberley was very great, as explained, inth'e:evidenCe. I went Iriyself ,aboard of her when she waS lying at a wharfin Norfolk, and observed, besides the evidences of stmingiven by ",itriesses, that the upright solid iron posts, some fourinches in diameter, whieh stand one above the other between the different decks amidships, are several of themverlll1.uch bent froh.1 £l:1e pressure which they sustained. Nothing but the extraordinary strength of this strongly built iron vessel prevented ,her.frOl;t1 erealdng in two when lying at, the beach. The presence of roots of trees and Jumps of clay under the Kimberley lessened the danger of hogging, but made it much more diffi9ultfor'the
"
291
salvors, wffi:ln. fhey toolr hold;,()f tbeship with theill' cl:!-blesand wililGlpeS, to slue; her ar.ound, stem or bQ:W to sea, an.d to draw her seaward from her. perilous position.· When the ship was, beached, all her crew,abandoned menher, and sought safety in the life-saving tioned, except her master, her mate, and two engineers, who, except the master, afterwards entered into the service of the salvors. Such is the physical condition of the country in shore at False cape that saving the cargo by landiQgiton shore was not practicable, or fora moment thought stranding was given froQ] the life-saving station of. Information of by t!:llegraph to Norfolk, and was by the signal service officials of. the communicated to: the salvors on Friday, December 2d, the day after the disaster, after 11 A. M. Thereupon the salvors'steam-tug, the Victoria J. Peed, was dispatched to the help of the under command of Capt. Charles L. Nelson, a skillful and experienced wreck-m,aster and mariner, with a full complement of seamen and wreckers and wrecking implements and appliances. On board the Peed were also Capt. Lauder, agent of the underwriters at Norfolk, and a clerk in the office of the British consul at Norfolk. The. Peed duly reached the vicinity of the stranded steamer, and Capt. Nelson at once reported to the salvage company at Norfolk the situation of affairs, and indicated the measures necessary to be taken. The sea was too heavy, and the water of too little depth, the Peed to approach within 2,000 feet of the Kimberley then, or at aJ;ly time during the salvage service. On the 3d December, Saturday, the, following contract of salvage was signed at Norfolk between the Baker Salvage Company and Mr. Barton Myers, " agent of the:Kimberley and her owners. "It is. this day agreed between Barton Myers. agent for the steam-ship . "NORFOLK,
VA.. Dec. S, 1887.
Kimbl'rleyarid owners, and the Baker Salvage Company, that the said Baker Salvage Company shall proceed to save the cargo of the said steamer Khnberley, and to save the vessel, if possible, and, failing this, to strip her and deliver the cargo, or so much thereof as may be saved. at Norfolk, and the vesBaltimore or Philadelphia, whichever port the sel, if saved,at Norfolk owners of said steamer elect: for which services it is that the said salvage company shall recei ve such compensation as may hereafter a warded them by the United States admiralty court. or by a board of disinterested arbitrators, composed of three men familiar with maritime affairs; one of said board to be chosen by the Baker Salvage Company, one by the owners or agents of Said steamer, and a third selected by the other two members; the said arbitrators. or any two of them, to be final and binding on both parties to this agreement. And it is agreed that the owners of the said steamer Kimberley shall have the right to elect whether the salvage shall be fixed by the United States court, or by said board of arbitrators. as above. It.is further agreed that said salvage company shall employ such of the crew of .the said steamer as may be suitable and qualified for laborers, and pay the steamer for them the same rate of wages as paid unskilled labor, and afford free transportation to the. crew to Norfolk on the salvage steamer's coming up·.. "Given under our hands and seals at Norfolk on the date above written. "BARTON MyERS, Agent S. S.Kimberley. -[Seal.] "THE BAKER SALVAGE COMPANY,'
c.
"By D. J. TO'Rmm,Jr., Prest. {Seal.]"
FEDERAL REPoRTER,
From the time of the stranding until December 7, 1887, the weather was exceptionally severe, and the state of the weather and of the sea did not permit any operations under the contract. There were communications by signal between the Kimberley and the steam-tug Peed, and the Peed returned to Fortress Monroa temporarily. The salvors soon dispaiched the steam-tug Sampson and the'schooners Emily Johnson and Annie Collins to the place of the stranding, and the salving enterprise was put in charge of Capt. O. S. Baker; Capt. Nelson commanding the Peed. On the morning of December 7, 1887, the Peed towed the schooner Collins to within 2,000 feet eastward of the steam-ship, and anchored her there; and thereafter the following named steam-tugs and schooners were engaged in the operations hereinafter described: The Victoria J. Peed, value $30,000, owned by the salvors, continued in service until January 26,1888; the steam-tug Sampson, value $30,000, chartered by the salvors; the· steam-tug Slater, value $30,000, chartered; the schooner Emily Johnson, value $10,000, chartered; the schooner Bengal, value $2,500, chartered; the schooner E. G. Irwin, value 86,000, chartered; the schooner John R. Fell, value $24,000, chartered; the schooner Minnie and Gussie, value $18,000, chartered; the schooner Annie Collins, value $2,500, owned by the salvors, served until the 26th of January. All the schooners, whether chartered .or owned by the salvors, served as lighters. The hire of the chartered vessels covered the pay of their crew and their running expenses. The salvors also used, from time to time, as occasion required, surf-boats, l:lteampumps, anchors,and other equipment belonging to themselves. On the 7th of Capt. Nelson; of ithe Peed, proceeded with some of and found her headed in a southerly direchis mentothe tion, lying nearly broadSIde to the be,ach, her bow being nearer to the ],and than her as heretofor!" described. She lay in a mixture of clay and sand, and was so high On the beach that at low water her starboard side, from the stem half-way to the bridge; had no water against it, her stern lying in about five feet of water. She was considerably to the sea. The method pursued by the libelants in saving the as that which they had successKimberley and her Cargo was the fully adopted in, the numerous instances in which they had saved vessels and cargoes on the dangerous sea-board of Virginia and the Carolinas. . Their first aim is to relieve the stranded vessel from the danger of breaking up, and thumping to pieces on the bottom, by planting anchors at suitable distances out to sea, connecting the ship in distress to them by strong cables or hawsers, and then, by drawing or heaving hard upon these by means of engines and winches on board, holding the ship firm again§t the beating surf, and bringing her around as soon as practicable, stern or bowto seaward, placing her in a posit'ion of the least danger from the action. of the waves.· In the case of the Kimberley, the , salvors lost uo time in planting 'anchors, and getting out one or more hawsers, and thereby securing control of the ship, and r.elieving her from the more serioqs dangers from the waves incident to her position; but so high up upon the beach had the Kimberley been cast, 80 deeply imbedded had she become in the sand, clay, and roots, and so great were
her size and her weight, from carg') and water in the hold, thatit proved. a tedious and difficult task ta slue her around with stern to sea. This operation, as it was one of the most important, was also one of the most difficult and tedious, in the salvage operations. The plan of operations usually pursued by these salvors, after thus securing control of the vessel with anchors on the hawsers, is to lighten the vessel by pumping out the water she may have shipped, and getting out her cargo as rapidly as possible, all the time heaving upon the cables, until the ship, gradually lightened of her cargo, and gaining deeper and deeper water, is finally floated and taken into harbor. In regard to the character of the danger which besets vessels stranded upon our southern Atlantic sea-board. I repeat in substance here what I -said in the case of The Sandringham, 10 Fed. Rep. 562, and 5 Hughes, 316. a large British steamer which was stranded in the winter of 1880-81 on the beach south of Cape Henry, a few miles distant from False cape, the site of the Kimberley's disaster: "All the Atlantic beach, from Cape Henry to the capes of Florida, is quicksand; that is, a' fine-grained I loose sand, into which a ship sinks by her own weight as soon as the water retreats from her bottom,-retreats from under it by the action of the current,s of the ocean,-leaving a bed, into which a ship sinks deeper and deeper the longer it remains in position. There is no possibility of any substance which, in specific gravity, is too heavy to float upon the surface of the water, being lifted out of bed in this sand and floated, except by outside appliances. All the vessels that are beached upon the sands of this long coast invariably continue to sink deeper and deeper, until they disappear from sight under the sea into the sand. Sueh quicksand, while it promotEjs the sinking out of sight of.a vessel stranded upon it, also facilitates salvors in hauling the ship off Ifhe beach,soas to float her in deep water; which operation is most facile during heavy seas. The agitation of the sea, and of the movable sand, when gales and ocean swells are rolling upon reefs, forming breakers, and 'mingling the sand with the water, tends to lift the ship to some extent dock, surrounded by sand, and lessens resistance to the operation of heaving on the cables. At the same time, such restless condition of the sand and sea greatly endangers the ship, as long as she is not afloat, by causing her to thump and pound heavily upon the hard sand bottom, and thus to leak badly, and eventually to break to pieces,.:-a danger from which her only escape is through the skillful exertion of expert salvors, with their wrecking apparatus and appliances." Butth-e texture of the beach off and to southward of False cape near the shore, at the point where the Kimberley was found by the salvors on the 7th day of December, 1887, differs from that which I have described,and is peculiar. False cape was originally high land. From it the stormy seas had gradually abraded and washed away the top soil, leaving the clay bottom shoals, called "False Cape Shoals," into which stumps and roots of forest trees still penetrate. Ofcourse , such an exceptionally'stiff and tenacious bottom aggravated the difficulty of hauling the ship· seaward, and it further increased the uanger, since it invoh'ied heaving on thedable in and winds; since such abed or bottom, byt'-&ason' of
its
vol. 40. i;ts .teQ,p:altY-j'llfl little agitated JIl that is generltlly' IpOfe safely adapteq ,tQ a vE!!jsel,offt4elquicksaJ1,d. " ' 'J,'he ):>ytpe salvors on was fouJ1,<l, t.o have a very serious leak, which was undisp<>verable. One of th.e to a strll:t;ldedvessel and her cargo is water from leakage. " It ,tends, by its weight, to break the ship in two, and thus to scatter the f<8tlg9"fI,ndfill it with sand aJ1,d grit. Itlllakes the ship heavierand'hltrderto"wove. rrhe, very, Jarge water ballast tank of the Kim1:)etley, locll<tedbenea,th the general cargo, was filled with cotton,--,a fact which rendered it impracticable to lighten the ship py. pumping the thetllnk, and whichpnt,the salvors at a great and unusual ",When they first boarded the ship, the salvors were (ormed that.the water ;had bee:t;l 16 feet deep amidship. Further examination sho\Ve(U;bat it .waR as much as ;14 feet deepip the engine-room after the on bOfl,rd.On Baker comweDced to up his steam-putnp No.1, brought aboard on the 7th, and to clearouUlle engine and boile;rrooms. On and after December 10th, the pumps weft') kept running, day and night, continually, and every day. On the 9th, Capt. Baker's pump cleared the water away Jrom, the donkey-pumps, which were set up in the boilerDoom,. On. DecelUber 12th t Capt. Baker's steam-pump No. 1 reinforced the shi'p's donkey-pumps, and cleared the water out of engine l/-ml.boiler: room!;!. ' On the 25th December, on 27th December, and on .ta.nuary 1,.1888, Capt. Baker's steam-pump No.1 pumped out the Ilhip. On Jhnuary 2d, the water rose,to within two inches of the gratebars of :thes,hip's donkey-boiler"and the first Baker pump then pumped out the ship. On! January 3d, the second Baker steamipump was set npinthe No. 1l:bold,fI,nd pumped the water four feet down. After t,hat pump No.2 was .worked continuously in the hold; and more disoharging the water, as cargo would be removed from On January 16th, Baker's steam-pump No.3 was also set up in hold No. 4, continuously afterwards. These two pumps disebargedthe.water.from No.4 hold, and from No.3 hold as well; and thus:reinforQed the ship's donkey-pumps, operating in engine and boiler rooms. /1'he pumping of water out of the ship's hold went on in this near the end of the enterprise; own engines being unavailable throughout for the purpose. The ship's engines, in many cases of salvage, give very material aid to the salvors, in heaving on the cable, ltUd thus assisting in drawing the ship out of her sand bed into deep wateJ:1;. but th,e Kimberley's engines were wholly ineffectual for this purpose until aftenhe had been floated into deep water; and then only for·thepurpQse of helping the Peed and Sampson in towing her into harbor., werl'l the KiI;nberley's pumps as effectual in rendering to ,the .as is usual. The KimberleN's pumps were not adequa,te to di$chl'lirging the water in her hold without being reinforced by,the pumps, even after the, salvors, with their pumps, had the engine f),nd boiler roomS of water which had previously submerged the shipls ! Onboa;rding,the. ahip, the salvors, pursuing the plan of operations
'l'1IEKIMIlERLEY.
295
which has been described, laid anchors out to sea, connected with a' hawser from the port quarter of the steamer; and OIl the 12th December laid other anchors out, and connected with themgtihawser from the ateamer'sstarboard quarter. There were two reefs.of thisbeach,-one of them about 50 fathoms out· from the low-water line, and another a. few hundred yards beyond; each of them about 500 feet in width.. The rolling of the sea over these reefs in stormy weather made a rough and dangerous surf. There was not depth of water enough on either reef to float any of the ·schoonerswhicb were engaged in the salvage service, and the cargo had to be taken in surf-boats from the steamer to the schooners at anchor oft' the reefs, about 2,000 feet ,frorn the Kimberley. These surf-boats could not be navigated with 001'&, nnd were moved back and forth by theircrew8 taking hold of lines stretched between the Kim.;,; berleyand the schooners. This was a rough and dangerous procedure in. all the weather and seas that occurred between tha7th December and the 26th Jaauary, the period during which this salvage work was performed. There were frequently recurringstormg and. gales, more or leas severe, while the salving operations under consideration were going OIL These would have heen fatal to the Kimberley, but for the fast and firm hold upon her which Capt. Bakermaintained with his hawsers, and bywhieh the ship was held firmly to the sea. During these high winds and seas the men might have lived while working the surf-boats, but the Cargoes would have been lost, and the work was for that reason periodically susperided. The surf-boats were actually at work for 18 days in· Decem-ber,and for 10 days in Jamiary. As many as never with room for oars, always over 2 long lines of breakers, and over a continuous space of 2,000 feet, except as the distance was lessened by the gradual progress of the Kimberley seaward from the· beach. This work of discharging .cargo continued from December' 7th until the 15th of January, during which time 7,408 bales of cotton, and about 740 bushels of wheat, were in that way brought up to Norfolk. The cotton reached Norfolk as follows: Decembed.Oth, 250'bales; December 14th, 560 bales; December 15th, 421 bales; December 17th, 209 bales; December 19th, 50 bales; December 20th, 539 bales;' December 21st, 138 bales; December 22d, 275 bales; December 23ti,· 618 bales; December 24th, 150 bales; December 29th; 500 bales; January 2d, 525 bales; January 5th, 833 bales; January 9th. 1,317 Jan.; uarylOth,374 bales; January 14th, 187 bales; January 15th, 456briles. The cargo had been surf.boated from the Kimberlev into the schooners on such days in December and January, up to .January 15th, as 'the weather and sea would permit the work to be done with safety to the cargo. As the'cargo was taken out and the vessel lightened, the ;libelants, by means of the steam-ship's steam-winches, hauled on the cables which had been extended from the port and starboard quarters. On the 2d of January they hauled the steamer astern about 40 feet. Prior to that date, owing to the difficulties which haV'e been described, the location of the vessel: had not been materially changed from that occupied when the libelants came aboard on De.cember7th,though very strenu-
296
FEDERAL REPORTE'R,
ous efforts had been made at timeS" to move her. On the 13th January she was agt\.inbauled a few feet, and on the 14th she was hauled 27 feet. On tbe lath of January she was hauled 13 feet, on the 16th 40 feet, and ontljte :17th about 80 feet. On the 18th of January she was hauled 100 feet, and on the 19th 70 feet. On the 21st of January, and thereafter almost daily , she was hauled material distances, until on the 26th 'of January, during an exceptionally high tide, she was and then proceeded in tow'to, Norfl)lk, assisting with her own engines, and taking, with her 58·5 bales of cotton, about 15,000 bushels of wheat, . and about 5,000 bushels of corn. ,As before stated,the schooners were not able at any time to go alongside the, Kimberley to take cargo from her, but lay at anchor about feet froro shore; The steam-tugs assisted in the schooners to Norfolk;one or the other of the tugs, however, remaining almost constantly at the) place of anchorage for the protection of the schooners. The salvors employed such serviee as was necessary for discharging and the cargo to Norfolk, and in doing such surf-boating and ether work as their contract called upon them to perform. Inclttding the crews of the chartered vessels, they had ,132 men in service.. ' The amount paid by the libelant for labor'was $11 ,394A4,and besides this they paid the wages of the crew of the steam-tug Peed and schooner Annie Collins. The libelants also expended, in addition to the charter hire above noticed, and the labor bille, $4.658.66 for supplies, tools, and materials used in their work. Some of the tools and materials were not used up. and remain in the hands of the libelants. The total cash ex· penditures of the libelants for the chartered vessels, labor, and supplies waEl$26,039. ,Add to this expense those incident'to the Peed, the Annie Collins, and 'to other service than that performed by the chartered vessels, and the quantum meruit outlay of the salvors reached $46,000, as hereafter indicated. The Kimberley arrived .atan anchorage in Norfolk on the ,26th of January, and thereafter discharged such cargo as remained in her. Later, the master of the steamer, under the rights secured to him in the contract made with the libelants, took delivery of the steamer at Norfelk, and 'elected to have the amount of the libelant's oompensation determined by this court, and not by arbitration. The value of the Kimberley, her freight, and her cargo, as saved, has been fixed by consent of parties at $490,000. The determining and distinguishing features of this case are numer· ous,-the great size of the Kimberley; her draught of water; the weight of her cargo; her length; the remarkable depth she was imbedded in the sand and clay,exceeding that of any other ship within my knowledge or reading, similarly stranded j her proximity to the shore, and partly on dry land, while drawing 23 feet of water aft, and 20 feet forward; the great distance from deep water; the level shore; the lumpy bottom; the clay shoal, and the fact of two parallel lines of: reefs or breaker lines, to obstruct and imperil the surf-boating; the unusual quantity of water in the ship, and ,all of it aft of the engine-room, with its exceptional depth, which rendered the ship's pumps ueelessby submerging her
297
donkey-engines; the character of the weather, which, OD that cOllst, made often a continuous line of breakers from the to deep water,-a space of 3,000 feet and more; her bearing to the beach, nearly broadside, and the unexampled difficulty attending the sluiPlg her aronnd, on clay, roots, and sand; the unusual number of cotton bales in the ship, and the necessity for surf-boating them 2,000 feet, through continuous lines of breakers,-always over two breaker lines, each of them wide; an unusual number of "severe storms and gales," more or less endangering life and property; the small assistance from the ship's company; the fact that the salvors received no assistance from the ship's engines until lifter she was floated off the shoals into deep water; the most tempestuous season of the' year; length of the transportation line for lighters, protracted by the necessity of removing 80 large a cargo, while the weather did not permit a schooner ever to come along-side; the extent of the leak, involving constant pumping; the skill manifested in making a perfect success, when not even the brave master of . the ship had the hope or expectation of saving her. It is hardly necessary to speak specifically.of the dangers which attended this service. That the Kimberley and her cargo was in danger of utter and irretrievable loss is attested by the fact that all of her numerous crew, except four brave men, abandoned her to. save lives. There was danger on the Kimberley to numerous lives in ilie event of her breaking to pieces in any gale; in which case the salvors l:ould not have reached the shore or the Peed in surf-boats. There were many days in ·which a surf-boat could not make a single trip without danger, in receiving, transporting, or delivering the cotton bales and bags of grain. There was.danger on the Peed, which lay outside nearly two months, in all weather, to move lighters inshore and out to sea, to hoist cotton bales on the lighters, and, in case of storms, to take care of the lighters, and as a place to keep extra men and relays. There is al. ways risk on this beach. The supreme court (8 Wall. 454, in the Camanche Case) declared the "risk to be great and constant" in the ha*bor orBan Francisco, in a harbor wrecking case, because divers did the work. Much more perilous is surf-boating on the ocean in midwinter. It is useless to urge that no lives or even property were actually lost. Nobody was killed on the Camanche; yet the, court held" the lisk to be great and constant." The fact that no one was killed on the Kimberley does not show, any more than in the Camanche Case, that the danger was not great, nor the work difficult. But it does show the skill and expertness of the salvors; their perfect success in achieving one of the .most difficult salvage operations recorded in the proceedings of courts. In the (Jmnanche Case the court held that the bounty alloweu by the court below was not excessive, considering the skill required to perforin the work l the expense incurred, and the time and labor spent; all inferior to what WllS done here. In illustration of another important feature of this case, I will· repeat what I said of salvage services on this coast in the case of The Taylqr Dickson, 33 Fed. Rep. 886, 'which I do, not only with reference to surf-
FEDEftAL
vol., 40.
boating [Of the JUll1su,al distanQe of[.2,OOO feet of break!ers l of copstllJilt hardship to lllen,and exposure to men, boats, .and cargo, in severe winter, but with reference f@ the the steamers, and engaged in this off that coast for the long period of 54 <.lays, taking the risk of Budden, storms, ,ll.S had surprised and seized ,the grea.tship Kimber!f:lY; and driven her 8,000 feet over two grea.t sand-bllN" fand stranded, her up.on the edge of thebeachi such as yearsagOj. overtaken. :a.nd surprised. the scientifically navi$tearpel',H\,lron, States destroyed her, onpoardi and&uchafll.had, a year before, taken unawares the large Gerrpflon,ship driven heushore, destroying ship and cargo., !lind, got, only all cre\v, .but severql brave men also who had gone to. her ,assistancE! from a. life-saving station just above that near which tbe :was, stranded. "Thislsnotia studded:withbarbors and prosperous commercial cities and towns. frotll whicbsalvorll may run put short distances along-shore. ,and hOUfS.' ,It coast, dangerous willl1s and""9:urrents, where the orditi<iElvariea'onl't three on: which wrecking enterprises are atwith l'isksknd peCl.aUardiftlculties.Wrecking service her:e (jan only be Buc<:essfully'performed by'orgallized capital,,"fmterprise, and skill, 'SQ, organized as, tlili be capable 8Justaiillnga: constant pt'ovision of 'experienced ;ml\rlners, 'powerfl\l, wreckingvEJs$CJ(i, ll<;l)d;lmple, WrtlpkiQg implement!! a.ud ready !l,\t,1'ltIh!>urs for serVice.: ; business cannot susta,i:p, itselUn tbe4au!ls 9f reputableroen and corppames the admiralty ':coiJltB .sllal! (lJtcepitonally liberal rewards in Jan caRes of meritorious setvicedn . !Ang Butely !tis in'the interest of commerce to sustain ' buainess[in !toose· waters .and latit'udes. I earnestly 'maintain that !18lvorson thiscoastishouldbe more liberally dealt with by adcourt!!: tlU,lRpn pf :us,."
Hf'suhA1:ance,of fideclaratiQnofwhibh I was 'lri'ade bythil late MARVIN; or the district, a 'itndone of th'e .sbundest· admiralty jurists which our ·country:: has is found in: {:ohen, Adm. 131. .JuQ'ellARvnnlaid: .','; ,. ; .Tbiswa.s then i'-':'>!
than reasonablEl on tbiscoast, whe,re, tMas81stance of so feW tralis'lent ortratUng vesselsCi\n bltcl1t& save the property, and' where, eonseqn'ently, the employwl'eckingvessels.has,bt'ietl, fQuhd necessary for tbatpurplJ8i; might be unreaso.riably! large in' tbe,·neighborb,ood of :COlllmer.iCtal ; o( 9r the United Statea." or, in any ,where 'Yli re :wrer!ts we!e ,?r ves,seIscouldpe .more eaSIly
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the place:wbere the. was.60.miles; QfVirgin.ia th,e' distanQe,: Schooners could not be got tOgO! o1,1,t. ,upon that conHnually.'by steamers.' H\is a .eQa£lt of ever-recul:fing, 1dangers, an9s!llvll.ge ,seryice. 1'.en.:deredtltpPlJdt IMnl).pt,.j\... t,he: ,f110m: miles.
tneruitwork.' It would not be ,in the" to'lIo$b. COunsel for the Association of Underwriters, who: 6tmduct thedefensd in this case,seem to treat the saving of the Kimberley ahdhercnrgq' as if it had been a work of mere labor andtimi:l,,' attended by no oth8\ circumstances of danger, risk, or merit than woul'(fhl1ve belonged to it if it had been performed in Hampton Roads, or i,tl'3the lower harboro! New York,-performed ona theater of absolute seeu:rity. I cannot lookj at the case in such a light. I consider such a vii:J\v"of it as whQlly iti,; admissible. Not to rank the saving of the Kimberley and her cttrgo that coast, in the perfectly ski1lful and successful manner in it was done, as a case ofextradrdinary merit, deserving of the highest commendation, would be to ignore all that has been said' in of courageous and successful salvage enterprise since the beginlling of the' admiralty Jurisprudence. ' , , " ., Having stated in detail the facts which constitute the distinguishing features of this case, I come to consider it in its .iegal aspects,and'with direct reference to the award proper to be made by the court.. Salvage cClnsists-Ji1irst, of an' adequate remuneration for the actual outlay 'of laborand expense made by the salvors; and, 8econdj of the reward? as bounty, allowed from motives of public policy, as a means of endouraging extraordinary exertions in the saving of life and property ill peril of the seas. The first of these items of award admits ofcompufution;'the second does not, and is usually determined with Illore or lessre/erence to the value of the property saved. In respect to the first branch 6f the award, I have no, difficulty, and have previouslY'stated 'it to have been $46,000. I ,,' It remains to determine what should be the· "amount 'of' bonntyaccorded to the salvors in this case. Their service was one of extraordinary merit.. There were (1) great danger. from which the proj>ertysaV'ed was rescued; (2) greatvallle ($490,000) in the property saved; (3) ousand continual risk incurred by the salvors and their property; (4) great ($164,000) in the property that was put at risK;/(5). ex'trn'4 ordinary skill and perfect success in rendering the service; a,nd (6)tnuph time and labor spent in the enterprise. These six ingredients, usually held. to constitute a salvage service of the highest merit, allen'tE\red'conspicuously into the enterprise under consideration. I have said that thebolluty awarded to salvors is usually determined with moJj, or less refereMe to the value of thepl'operty sa\ted. In most cases a propor'; tion is awarded, larger or smaller, according to the merit of the serVice; for it is ri6ttrue, as contended by counsel for the underwri'ters, that the rule of percentage or proportion has been abandoned by the in cases. 'of salvage service. It is true that in II certain class or cases which come into the admiralty courts-which, indeed, is a very largeC::ltie-these courts refuse' to estimate rewards by proportions. But this: disposition is confined to cases which, while containing spme ingrediertts of salvage service, are, in their main features, casas' hf niere towage. Towage is riot salvage; and, when considered by itself, is nevercomperisated except on the basis of quantum. meruit pro opere et labore. . Ot'cburse,
on
800
FEDERAL REPORTER,
when this rule of compensation obtains, the value of the properly towed is but slightly, if at all, coqsidered by the courts. in determining the compensation to be awarded.' A case of this sort was Th6 Amerique, L. R. 6 ,P. C. 46a, cited on the brief of counsel for the underwriters. In that case the vessel\was found a few hundred miles out at sea, abandoned, with some little watE\r in her hold, aud was towed and navigated into port. It was a Frencp. steamer, thRt had been deserted in a panic. The fact of being aqandoned, and of having a little water in her hull, were the only salvage ingredients in case. In its prominent features it waaa case o( mere towage; of easy, safe, and inexpensive towage. The to have court below was,held, by the lprds of privy council On erred, hy gjving top much consideration to the salvage features of the the fact that it was little else than a case of case, and, by towage; and the lords reduced the award to about one-tenth of the value sav:ed. the,result of their decision; not its language. Neither does the case of Thetis, 3 Hagg. Adm. 14, 2 Knapp, 39Q, cited by underwrit,ers' c01.1n/rel, teach the doctrine of a discardal of proportions in esticases. ,There, the property saved was specie mating treasure ,which had been sunk in$ll inlet of navigation in a vessel of the The salvage service WaS performed by officers and men of the :navy, ,and consisted in Slow and deliberate measures, protracted ihrough ,more ,than ,a yea'r, for recovering the specie; no risk attending the work, except of disease in a tropical climate, and what is incidental to diving operatiqns. The amol,lnt recovered was the immense sum of '750,900. of An application ()f the rule of :proportion here would seem to have been' repelled by strong considerations of justice. Yet it in fa<;t if not in form; the of the case thus describing the IJ,ward:, ",One-fourth of the . gross value awarded. * * * quantity of treasure recovered, £1,57,000; the, whole sum deducted for salvage, admiralty claim, and for expenses being £54,000." In the of The, 14 Fed. Rep. 58.0, (the last one cited by underwri.ters'oounsel,Hhe bark saved was decided by the court .not to have l?een derelict;' whi9h eliminated from the case its principal element of and.renliered it a case mainly of towing,:-of towing a sail sel jp ice ,five miles off shore, and bringing her into port. p/flay,labor"antli sO,me.,difficulty attend,ed the servioe; lIolfldthe court ,that the qf that did not call for a large award. by proportions of value saved, and allowed $2,500 to a pl,lbUc ice-boat {or three days' towing. . On this E;lubject.()f propottions, t};1e 9a.ses show generally that the old of allowing, the salvors in every case, half the vlllues saved, no longer obtains. I,nfleed, that rule came at last to so revolt to it they went far tothe cqurts of admiralty that in their wa,rdE;l, tne:other and manifested a temper to discard the idea of theulselves too much in awards' to the nr8portjons, 8,nQi q'PJ4'!9$um merwit esthnate of salvage services. There has latterly, how\Io,recurrence, except in cases of t()wage,. from extreme views in ,dir!'lction, to the middle ground of adapting Uw amount llllQwed .- ' . ,. ! ·