Phillips v. M'Call

WASHINGTON, Circuit Justice. The advocates for the appellant have relied upon two grounds, on one or both of which, they have endeavoured to maintain the claim for salvage. The first is the management and address by which the possession of the vessel and cargo was obtained from the captors; the second, the labor and peril encountered by the libellant in her subsequent navigation to Philadelphia. 1. The address practised for the purpose of recovering possession of the ship was, as the captain has related the transaction, almost entirely of a negative character; for he swears, that the only circumstance which induced the captors to restore the ship was the acquiescence of himself, the two supercargoes, and the libellant, in the offer made by the captors that they should sign a ransom bill, agreeing to reserve for the captors one half of the cargo at any port where it [519] might be sold; and as soon as this agreement was signed, the captors left the ship in the long boat. It is true they remonstrated against the threatened destruction of so valuable a cargo, and even went so far as to declare the desperate resolution of remaining on board, and participating in the fate of the ship. Whether the captors placed much confidence in the sincerity which dictated this heroic threat of self devotion, or cared very much whether it were carried into execution or not, is more than I can say. But one thing is perfectly clear, that if they felt a wish to prevent it, it was entirely in their power to do so, as the captain swears that no other resistance was, or could have been made, as the prize crew were all on deck, and the prisoners dared not to make any show of ¡orce. I strongly suspect, therefore, that the captors were as little influenced in their conduct by the threat, as they were by the remonstrances of those persons, and that, looking exclusively to their own interest, they thought it would be better to secure one half of the cargo, than to hazard the loss of the whole by a re-capture. I pass over the plans which were formed by these persons to retake the ship, with this observation, that as they were not successful, and indeed they were not even evidenced by any overt act, they had no other merit than that of good intentions. The only question then is, whether the signing of the ransom bill can be considered as a salvage service performed by any of the parties to it? That the owners derived a benefit from the act, may readily *be admitted; but where is the merit which can entitle the signers of that instrument to a reward? They recovered their liberty, preserved the half of their own property on board, and had possession of the ship and cargo for their complete indemnification. Tranter v. Watson. 2 Ld. Raym. 931; Yates v. Hall. 1 Term R. 73. The ransom bill does not oblige them to pay a gross sum, which by any accident might exceed the value of the cargo; but merely stipulates that the proceeds of one half of the cargo should be reserved for the captors, in case of safe arrival at some port in the United States. The argument most relied upon by the li-bellant’s counsel was, that the capture put an end to the contract between the owners, and the officers and crew of the vessel; and, consequently, that their subsequent acts to save the property were merely voluntary, and not enforced by any duty which bound them to the owners. I admit the effect of a capture to be, to a certain extent, such as is contended for; but I cannot as easily yield my assent to the conclusion which the counsel would draw from this admission. Wiggins v. Ingleton. 2 Ld. Raym. 1211. It is strictly true, that capture, so long as it continues, puts an end to the claim for wages; but if the ship be recaptured, and performs the voyage, by which she earns freight, the right to full wages is revived. So, if the vessel be taken in by the original captors for adjudication, the master and crew cannot, without a breach of duty, abandon the ship to her fate. The master, in particular, although his duties, as such, ceased by the capture, continues, by intendment of law arising out of the necessity of the case, the agent of the owners, and in that character duties are imposed upon him which he is not at liberty to decline; and although his claim to wages is defeated, he is nevertheless entitled to a reasonable compensation for his services as agent, even although the vessel should be condemned. Abb. Shipp. 2S5; Bergstrom v. Mills, 3 Esp. 36; Smith v. Gilbert, 4 Day, 105. As to the seamen, it has been decided by the judge of this district, that they are bound to await the sentence of the court in the first instance, and if the ship be acquitted, to rejoin her, in which case they will be entitled to full wages upon the termination of the voyage. The Elizabeth [Case No. 1,657]. If, instead of a recapture or acquittal, the vessel is ransomed, the owner is considered as a purchaser, and the right to antecedent wages is gone. Wiggins v. Ingleton, 2 Ld. Raym. 1211; Yates v. Hall, 1 Durn. & E. [1 Term R.] 79. In like manner shipwreck puts an end to the contract between the owners, and the master and crew, so far as it concerns their claim to wages; and yet the latter cannot, without a breach of duty, abandon the property, as if they were entire strangers to the owner, and aliens to his interest. On the contrary, it is the duty of the master, to whose care the safety of the ship and cargo were confided, to employ all his courage, skill, and industry in their protection and preservation; and of the seamen, to use their best endeavours to save what they can of the merchandize; and, in proportion to their success, they will be entitled to wages out of what is saved, or to a reasonable compensation for their labour and exertions to save the property. Abb. Shipp. 277; 2 Marsh. Ins. 527. But I can find no authority in support of a dictum by Abbot (Shipp. 27S) that the seamen are entitled, as well as other persons, to a- compensation by way of salvage. By the La ws of Oleron, the master is bound to allow them a reasonable consideration for preserving a part of the cargo, so as to enable them to return to their own country; and it is pretty clear, that the allowance made to the seamen by the different ancient ordinances, is not as salvage, but as a reasonable compensation for their labour and exertion in saving the whole or part-of the cargo, or as wages for their past services, Upon the whole, it would seem, that, although the contract between the owner, and the master and crew is put an end to by capture or shipwreck, in respect to wages, the latter are not discharged from certain obligations in respect to the safety of the property. If the master, acting for the bene [520] fit of his owner, can regain possession of the ship by a ransom, or by a purchase after capture and condemnation, he has full authority to do so, and, in the exercise of such authority, he is strictly within the line of his duty. If, by such acts, or by personal labour in ease of shipwreck, the master and crew render a service to the owner, it is not a meritorious service: their conduct on such occasions being such, and such only, as the owner had a right to expect from them. As to the physician or surgeon, although he is not, strictly speaking, an officer or seaman, he is a member of the family, placed on board by the owner, engaged in the service of the ship, and bound by contract to perform certain duties; and although he might not have violated any positive obligation which the uature of his employment imposed upon him, by refusing to sign the ransom bill, his signing it was, nevertheless, an act which the owners had a right to expect from him, particularly as he assumed thereby no possible risk, either to his person or property. If such an act could possibly be exalted into a salvage service, it is much to be wondered at that this is the first attempt which has been made to obtain a reward for having rendered it. TS'e find cases of suits brought upon ransom bills, and by hostages, to compel the owner to discharge them, or to enforce agreements made with them by tne master, to induce them to become hostages; but I have met with no case, where even an hostage, who had Suffered a long confinement, in consequence of the ransom, and of a voluntary act of his own, has set up a claim for a reward, beyond what may have been promised him by the master. If the libellant is not entitled to salvage, on account of his conduct, up to the time when the ship and cargo were ransomed and restored to the master; the second inquiry will be, is he so entitled because of the assistance which he afterwards afforded in navigating the Ship to the United States? Whatever may have been the legal effect of the capture, while it continued, upon the contract between the owners, and the officers and crew of the vessel, it must be admitted, that all their rights and duties revived after she was restored; and I hold it to be quite immaterial to the present question, whether the old contract was revived, or whether the officers and crew were to be considered as impliedly entering into a new contract with the owners, to complete the voyage to the United States. In the case of The Harmony [Case No.'2,871], the learned judge of the district court decided, that the contract with the master and crew was merely suspended by the capture. Hr. ÍS uller, in the case of Yates v. Hall, 1 Durn. & E. [1 Term R.] 79, states the rule of law to be, that by capture, the wages are lost; and he considers the ransom as a new purchase of the vessel and cargo, the consequence of which would be, that the claim to subsequent wages would rest upon an implied new contract for the residue of the voyage. But however this may be, it seems quite clear, that the relation of the master and crew to the ship, and their duties, are precisely the same as they were previous to the capture. No extremity of labour or of peril in the navigation of the ship, can entitle them to a reward beyond their wages, because the nature of the service in which they engage exposes them to extraordinary peril and labour, in particular emergencies; and they contract to encounter them in consideration of the wages stipulated to be paid them. They have, therefore, no merit in making such exertions, because they do no more than what their duty requires of them; besides which,'as their wages depend upon the arrival of the vessel, and her earning freight, they have an interest in making them. If the vessel should be attacked by pirates, or by an enemy, by means of which, or of some pestilential disorder, two-thirds of the crew should be swept away, it surely could not be contended that the increased peril and labour to which the survivors would thereby be exposed in navigating the vessel, would entitle them to an extra reward, in the nature of salvage. I am aware of no case, in which such a claim has been upheld. Salvage, in the case of rescue, proceeds upon the ground before mentioned, that the contract was put an end to by the capture; and consequently the service rendered, besides being voluntary, and ultra the duty which the rescuers owed to the owners, is one of very éxtraordinary merit, in which human life was jeoparded. In the case of Mason v. The Blaireau, 2 Granch [6 U. S.] 240, Tool, one of the crew of the vessel saved, was allowed salvage, upon the ground that he'was discharged from his contract as a seaman, by the abandonment of the vessel by the master and the rest of the crew: and consequently, “those principles of policy,” to use the language of the chief justice, “which deny to the mariners of the ship salvage for saving the ship, however great the peril may be. do not apply to this mariner.” In Newman v. Walters, 3 Bos. & P. 612, the passenger was allowed salvage, because, by assuming the responsibility, and performing the duties of the master, he went beyond what his duty required of him; and Lord Alvanley observes, that if the mate had performed the same service, he would not have been entitled to salvage. The claim of a pilot to salvage, for safely conducting the ship into port, is placed by Sir William Scott (The Joseph Harvey, 1 C. Rob. Adm. 307), and by Lord Alvanley (Newman v. Walters), upon the same ground, namely, services performed beyond what his duty as pilot required of him. It was insisted in this case, that the libel-lant was not bound to perform the duties of a seaman, being employed exclusively for another purpose. But 1 conceive that what [521] Lord Alvanley says, in respect to the duty of •a passenger, who is bound by no contract to remain with the ship, but may leave her whenever he pleases, applies, a fortiori, to the libellant, who was so bound, and who could not, without a breach of his contract, have abandoned the ship. The observation alluded to is, “that a passenger who is found •on board in time of danger, is bound to do works of necessity, for the preservation of the lives of all on board.'* Now in this case, the services of the libellant were necessary for the common safety; or they were not. In the first case, it was his duty to render them, and he must seek his reward in the conviction that he faithfully discharged that duty. In the other branch of the alternative, he rendered no beneficial service for which he ought to be rewarded. But if it were necessary to estimate the quantum of service performed by the libellant, which, for the above reasons it is not, he would be found to be totally destitute of merit. It appears from •Captain O’Connor’s testimony, that his services rather fell short, than exceeded what he had the ability to render; and which, therefore. his duty required him to render." My •opinion being that the libellant never had a well founded claim to salvage; there is no need to decide, whether it was abandoned by his acceptance of the piece of plate, and his forbearing for so many years to prefer his claim. I shall affirm the decree of the district court with costs.