United States v. Aslaksen

KNAPPEN, Circuit Judge (after stating the facts as above). [1] It was rightly considered by the District Judge, and is conceded by the government, that the elements to be taken into account in determining the amount of a salvage award include the labor expended by the sah vors, the promptitude, skill, and energy displayed by them in rendering the service, the value of the property employed therein, the danger to which the same is exposed, the risk incurred by the salvors, the value of the property saved, and the degree of danger from which the property was rescued. In reaching his conclusion the District Judge expressed the opinion that on the basis adopted in numerous cases, many of which were cited, a salvage award of $100,000 for the total services rendered by the Lake Ellenorah, including those of her mastef and crew, would not be excessive; that an allowance to the master and crew of one-third this amount would be sustainable, and that an award of one-quarter this latter amount to the master would not be out of accord with American practice. The government criticizes the basis of $100,000 as a theoretical total award; its counsel expressing the view that to allow it to go unchallenged would seriously prejudice the rights of owners of vessel property. Manifestly, each case must depend upon its own peculiar circumstances, as is illustrated by the cases cited by court and counsel. In some of them the towage was for a much greater distance than here; in others less. In some the dangers and difficulties were greater; in others, less. Manifestly, awards in fire and stranding cases do not furnish a satisfactory criterion. In the instant case the Avondale was not a derelict. Its power of propulsion and largely of steerage was gone. There was [448] fog and some sea, but the storm had ceased when the Lake Ellenorah arrived. Human life was apparently not immediately in danger. Under the modern wireless system the dangers of loss from attempted salvage are less than ever before in the history of navigation. In this case the Shipping Board was kept in constant communication with the salving vessel from the time the Lake Ellenorah reached the Avondale. This is not to discredit in the slightest degree the judgment, courage, and skill shown by appellee in bringing the Avondale into the harbor of St. Johns. While the service rendered was, at the last, largely in the nature of towage, it was performed under the weather conditions already stated, with the element of danger and risk necessarily present, as well as the inherent unsuitableness of the Lake Ellenorah for towage service. But, on a careful review of the more prominent precedents, taking into account all the circumstances, including the value of the property salved and that employed, the fact that so far as based on percentage of value the percentage should decrease as the value increases, and that the percentage basis does not seem in recent years to be followed as strictly as formerly, we think the government could justly complain of an award to appellee based upon a theoretical allowance of $100,000. The trial judge, however, 'did not make his award to appellee upon that basis. On the contrary, he adopted the award of $3,000 to the master as “modest, not liberal, compensation.” Manifestly, had the award to the master been upon a theoretical total award of only $50,000, a division on the basis of one-quarter of that amount to the master and crew, and one-quarter of that one-fourth to the master (as some of the authorities recognize as proper), would give him more than the $3,000 awarded by the District Court. [2] In the absence of adoption of erroneous principles or plain misapprehension of facts, the precise amount'of the award is committed to the judicial discretion of the trial court; and although this appeal brings up the case de novo, we think we should not disturb the exercise of this discretion, which plainly has not been abused. Oclwerke-Teutonia v. Erlanger, 248 U. S. 521, 39 Sup. Ct. 180, 63 L. Ed. 399; The Kanawha (C. C. A. 2) 254 Fed. 762, 764, 166 C. C. A. 208. While awards of this character are partly by way of compensation and partly as a reward for meritorious services, we think the latter consideration the more prominent; and we think the master, in view -of his ultimate responsibility for both his own boat and the tow, as well as the batter’s cargo, was entitled to a materially larger award than that given the first engineer (which was $932). It is also to be noted that appellee’s responsibility, and thus the credit due his accomplishment, was increased by the fact that the salvage was undertaken with the opposition of some of the Lake Ellenorah’s officers. The fact that both the salving and the salved vessels were owned by the United States does not necessarily affect the amount of compensation. Jacobson v. Panama R. Co. (C. C. A. 2) 266 Fed. 344. In our opinion the master is entitled to a substantially greater award than given by the Shipping Board. Just how much greater is mere matter of judgment, and we are content to accept that of the trial court. The order of the District Court is accordingly affirmed.