C. Of Salvage.

1. WHAT SALVAGE IS.

This word has two distinct meanings in maritime law. It sometimes means that which is saved from wrecked property, whether ship or cargo; and questions respecting it in this sense arise under policies of insurance, and will be considered in the next chapter.

* It also means the compensation which is earned by 315 persons who have voluntarily assisted in saving a ship or cargo from destruction. This last sense is the more general, and the more important; and it is of salvage in this sense that we are now to treat.

The essential principle on which a claim to maritime salvage rests, is confined to the sea; being, as we apprehend, wholly unknown on the land. Some intimations have been thrown out, on high authority, that one who finds property lost on land and labors to save it, may claim of the owner compensation therefor. (e) But we believe there is no such rule or principle known to the common law.1 (x)

Not only is salvage in this sense confined to the law-merchant, but it is generally confined to admiralty jurisdiction. It is believed, that no action at common law would lie for maritime salvage, unless the salvor could prove a contract with the owner of the property saved. (f) (y)

Wakefield v. The Governor, 1 Clifford, 93; Pope v. R. B. Forbes, 1 Clifford, 331; The Scotia, 5 Blatchf. 227; The Island City, 5 Blatchf. 264; The Scranton and Wm. F. Burden, 5 Blatchf. 400; Amoskeag, &c. Co. v. The John Adams, 1 Clifford, 404; The Illinois, 5 Blatchf. 256; The Nellie D., 5 Blatchf. 245; The Chesapeake, 1 Benedict, 23; The Favorita, 1 Benedict, 30; The Empire State, 1 Benedict, 57; The Cayuga, 1 Benedict, 171;

The Electra, 1 Benedict, 282; The Havre and the Scotland, 1 Benedict, 295; The Jupiter, 1 Benedict, 536. Of the measure of damages. The Ocean Queen, 5 Blatchf. 493; The Heroine, 1 Benedict, 226. What is a proper look-out. The Parkersburg, 5 Blatch. 247.

(e) See ante, vol. i. p. *580.

(f) Lipson v. Harrison, 24 Eng. L. & Eq. 208.

1 See, however, Chase v. Corcoran, 106 Mass. 286. — W.

(x) Liberal compensation in the nature of salvage may also be allowed for contract services in law courts or in equity. The Roanoke, 50 Fed. 574; Sturgis v. Low, 3 Sand. (N. Y.) 451.

In apportioning salvage, the actual services rendered and risks run by individuals of the crew of the salving ship may be considered, and a discrimination

may be made between those working the ship and those attending on passengers or live stock. The Minneapolis, [1902] P. 30. All questions of salvage have recently been carefully reviewed in the notes to that topic in 24 English Ruling Cas. 516 et seq.; and see 3 Kent Com. (14th ed.), 245 et seq. and notes.

(y) The right to recover for services

Salvors have a lien on the property saved until the case is heard and a final settlement made, and this lien does not depend on possession. (g) Sometimes the property is sold under a decree, and the proceeds held to await the decree of distribution or return. But the property is always returned to owners, if they ask for it, and give bonds, or stipulations, as they are called in admiralty, with sufficient security to abide and satisfy a final decree.

2. BY WHAT SERVICES SALVAGE IS EARNED.

The ground upon which the liberal compensation usually granted in salvage cases rests, is three-fold. First: A marine peril. Second: Voluntary service. Third: Success.

It is necessary that the property be saved from extraordinary danger. This danger or distress must have been real, or appeared to be so in the exercise of a sound discretion, though it need not have been immediate, or certainly destructive. (h) If *316 the master, with his crew, might have saved it, the interference of the salvors would be presumed to be unnecessary; (i) they may, however, still make out their claim by proof that the master would not have saved it. It would be equally a salvage service whether it were rendered at sea, or upon property wrecked at sea but then on the land. (5) And a salvage service may be rendered either by seamen or by landsmen. (k)1

3. OF DERELICT.

The salvage service most liberally rewarded is that of saving "derelict" property. This word simply means abandoned. As a maritime term, used in salvage law, it means a vessel or cargo abandoned and deserted by the master and crew, with no purpose of returning to it, and no hope of saving or recovering it themselves. () If the master and crew remain on board, although

(g) Box of Bullion, Sprague, 57; The Missouri's Cargo, id. 272; The Amethyst, Daveis, 20; The Maria, Edw. Adm. 175.

(h) The Charlotte, 3 W. Rob. 71; The Strathnaver, 1 App. Cas. 58.

170.

(i) Hand v. The Elvira, Gilpin, 67.
(j) Stephens v. Bales of Cotton, Bee,

(k) Ibid.

(2) The Clarisse, 1 Swabey, Adm.

1 Persons who render service to a ship on fire at a wharf are salvors. The Florida, 22 Fed. 617. - W.

rendered upon request in rescuing a vessel subject to marine perils depends upon their rendition pursuant to the contract, and is not lost even though the subjectmatter is wholly destroyed. Such contract, being enforceable in personam,

a

may be sued upon in the State courts, which courts, however, have no jurisdic tion of a marine contract or service of salvage. Merrick & Chapman Co. v. Tice, 79 N. Y. S. 120.

they give up the possession and control to the salvors, it is not derelict. (m) On the other hand, if the master and crew have left the vessel, a mere intention to send assistance to her would not prevent the ship from being derelict. (n) And if the vessel be deserted, it will be presumed to be derelict, unless an intention to return be proved on the part of those who left her, or some of them. (o) A ship or a cargo sunk is considered derelict; but not if the owner had not lost the hope and purpose of recovering his property, and had not ceased his efforts for that purpose. (p) So are goods floating from the vessel out to sea; not, however, if the goods are on the water, and the master is endeavoring to save them. (q) At common law, a finder of property has title against all the world, except the owner. The admiralty practice, however, in one district of this country, in respect to *317 property derelict and saved, is to keep the balance of the proceeds a year and a day, that is, more than a year, after the salvage compensation is paid out of the proceeds: and then, if no owner appears, to pay the balance to the finder. (r) But if the case appears to demand it, the court may require from the finder bonds to restore this balance to the owner, whenever he appears and claims it.

4. WHO MAY BE SALVORS.

It is a general rule, that persons who are bound by their legal duty to render salvage services, cannot claim salvage compensation therefor. (s) Therefore the master or crew of the ship in peril cannot claim such compensation. (t)1 And the only excep

129; The Minerva, 1 Spinks, Adm. 271; The Watt, 2 W. Rob. 70; Rowe v. Brig 1 Mason, 372; The Amethyst, Daveis, 20; Mason v. Ship Blaireau, 2 Cranch, 240.

(m) Montgomery v. The T. P. Leathers, Newp. Adm. 421.

205.

(n) The Coromandel, 1 Swabey, Adm.

(0) The Barque Island City, 1 Black, 121; The Upnor, 2 Hagg. Adm. 3; The Bee, Ware, 332; Tyson v. Prior, 1 Gallis. 133; Clarke v. Brig Dodge Healy, 4 Wash. C. C. 651; The Sch. Emulous, 1 Sumner, 207; The John Perkins, U. S. C. C. Mass., 21 Law Rep. 94.

(p) The Barefoot, 1 Eng. L. & Eq. 661; Bearse v. Pigs of Copper, 1 Story, 314.

(9) The Samuel, 4 Eng. L. & Eq. 581. (r) Marvin on Salvage, 143, note 1. See M'Donough v. Dannery, 3 Dall. 188. In an early case in Massachusetts it was held, that after the salvage was paid the property belonged to the government, to be held in trust till an owner should appear. Peabody v. Proceeds of 28 Bags of Cotton, U. S. D. C. Mass., 1829, 2 Am. Jurist, 119.

(s) The Neptune, 1 Hagg. Adm. 236. (t) Miller v. Kelley, Abbott, Adm. 564; The John Perkins, U. S. C. C. Mass. 21 Law Rep. 87; The Steamer Acorn, same court, 21 Law Rep. 99; Beane v. The Mayurka, 2 Curtis, C. C. 72: Mesner v. Suffolk Bank, 1 Law Rep. 249; The Holder Borden, Sprague, 144.

1 For ordinary salvage services passengers of the saved vessel cannot claim compensation. But if their services are extraordinary, they may. Candee v. Sixty-eight Bales Cotton, 48 Fed. 479. The master is agent of the cargo as well as of the ship, and is not entitled to salvage for providing for the safety of the cargo. The

tions to the rule appear to be where the contract of the seamen is at an end, (u) or where the service is so entirely out of the line of their ordinary duty, that it may be considered as not done under the contract. (v) It would obviously be unwise to tempt the sailors to let their ship and cargo incur extreme peril, that by extreme exertion they might recover salvage compensation.

*

Those who may claim salvage compensation for salvage services may render these services against the will or even the resistance of the master or crew of the vessel in danger. But in such case it must be clearly shown, that their reluctance or resistance was wrongful, and that the interference of the salvors 318 was necessary. (w) If a part of a crew leave their own ship, and go on board another, and save it, those of the crew who remain behind share, though not equally, in the salvage claim; their share of the claim resting on the increase of their labor or exposure, by reason of the diminution of their numbers; and their share is greater if they were willing to go, than if they remained from an unwillingness to encounter efforts or perils for which others volunteered. (c)

(u) Where a ship is abandoned at sea by most of her crew, the contract of those who remain is considered at an end. Mason v. Ship Blaireau, 2 Cranch, 240; The Sch. Triumph, Sprague, 428; The Florence, 20 Eng. L. & Eq. 607. See Taylor v. Ship Cato, 1 Pet. Adm. 48. In Montgomery v. The T. P. Leathers, 1 Newb. Adm. 421, it was held, that where a steamboat, which was on fire, was surrendered by the captain to the master of another boat, the contract of a pilot was dissolved, and he might be a salvor.

(v) Le Jonet, L. R. 3 A. & E. 556. In The Mary Hale, Marvin on Salvage, 161,

the vessel was wrecked, and the mate and .four seamen crossed the Gulf Stream in an open boat, a distance of one hundred and eighty miles, to procure assistance to take off the passengers and cargo. They succeeded in accomplishing their purpose, and it was held that they were entitled to salvage, on the ground that their services exceeded the duty they owed to the ship.

(w) See The Jonge Bastiaan, 5 Rob. Adm. 322; The Bee, Ware, 332; Clarke v. Brig Dodge Healy, 4 Wash. C. C. 651; The Choteau, 4 Woods, 127.

(x) The Mountaineer, 2 W. Rob. 7; The Centurion, Ware, 483; The Balti

Aguan, 48 Fed. 320. Seamen, though ordinarily not entitled to salvage, are entitled to extra compensation for assisting in saving cargo after the ship is wrecked, the voyage broken up and the crew discharged. Ibid. A stevedore's crew engaged in stowing cargo in the defendant ship cannot be salvors, their relations to the ship being like those of the passengers and crew. Kidney v.. The Ocean Prince, 38 Fed. 259. Where a steam-ship loaded partly with live cattle towed a derelict ship to port, it was held that the men in charge of the cattle were not entitled to share in the award of salvage. The Coriolanus, 15 P. D. 103. See also The Persian Monarch, 23 Fed. 820. The owner of a vessel cannot acquire a salvor's lien thereon against the insurers to whom it has been abandoned. The Manitoba, 30 Fed. 129. But where the ship in distress and the ship rendering aid belong to the same owners, the master and crew of the latter are entitled to salvage if the services they performed are not within the contract into which they entered with the owners. The Sappho, L. R. 3 A. & E. 142; L. R. 3 P. C. 690; The Glenfruin, 10 P. Dr. 103. And the owners of two such vessels are entitled to remuneration against the cargo of the rescued ship. The Miranda, L. R. 3 A. & E. 56; The Cargo ex Laertes, 112 P. D. 187. It is not a bar to salvage remuneration that the same person is a part-owner of each vessel. The Glengaber, L. R. 3 A. & E. 534. — W.

A passenger on board a saving ship may render and claim for salvage services; (y) but it is said that the passengers, generally, at least, are so bound to render assistance to the ship they are in, that they cannot claim salvage compensation therefor. (z) This rule, if it be one, must be open to many exceptions. (a)

A pilot cannot claim as salvor, for any exertions or services rendered as pilot, and within the line of his duty. (b) 1

1

The owner of the saving vessel shares largely in the salvage claim, because his vessel usually incurs some peril by the rendering of the services, (c) and always by the deviation annuls its insurance, (d) unless that deviation be for the purpose of saving life. (e)

There may be two or more different sets of salvors. 319 But salvors of property derelict acquire, by taking possession thereof, a vested interest in the property, which is only lost by their abandonment of it. (f) Salvors saved by other salvors do

more, 2 Dods. 132; The Roe, 1 Swabey,
Adm. 84; The Janet Mitchell, 1 Swabey,
Adm. 111; The Ship Heury Ewbank, 1
Sumner, 400.

(y) Bond v. Brig Cora, 2 Wash. C. C. 80; McGinnis v. Steamboat Pontiac, 1 Newb. Adm. 130, 5 McLean, 359; The Hope, 3 Hagg. Adm. 423; The Connemara, 108 U. S. 352.

(2) The Branston, 2 Hagg. Adm. 3,

note.

(a) See Newman v. Walters, 3 B. & P. 612; The Two Friends, 1 Rob. Adm. 285; Clayton v. Ship Harmony, 1 Pet. Adm.

70.

(b) The Cumberland, 9 Jurist, 191; The Johannes, 6 Notes of Cases, 288; The City of Edinburgh, 2 Hagg. Adm. 333; The Jonge Andries, 1 Swabey, Adm. 229, 303. In England, pilotage is defined to be "the conducting a vessel into port in the ordinary and common course of navigation," and it is not simple pilotage "when a vessel from real danger, or from what may afterwards turn out to be an unfounded alarm, is seeking a port of safety, out of the course of her intended voyage." The Elizabeth, 8 Jurist, 365; The Persia, 1 Spinks, Adm. 166; The Industry, 3 Hagg. Adm. 203; The Hedwig,

1 Spinks, 19. The decisions in this country are conflicting. See Sch. Wave v. Hyer, 2 Paine, C. C. 131; Dulany v. Sloop Peragio, Bee, 212; Dexter v. Bark Richmond, 4 Law Rep. 20; Callagan v. Hallett, 1 Caines, 104; Love v. Hinckley, Abbott, Adm. 436; Hand v. The Elvira, Gilpin, 60; The Brig Susan, Sprague, 499; Hobart v. Drogan, 10 Pet. 108; Lea v. Ship Alexander, 2 Paine, C. C. 466; Hope v. Brig Dido, id. 243.

(c) The San Bernado, 1 Rob. Adm. 178; The Roe, 1 Swabey, Adm. 84; Evans v. Ship Charles, 1 Newb. Adm. 329; The Nathaniel Hooper, 3 Sumner, 542.

(d) See Bond v. Brig Cora, 2 Wash. C. C. 80; The Nathaniel Hooper, 3 Sumner, 578; Barrels of Oil, Sprague, 91. But in The Deveron, 1 W. Rob. 180, Dr. Lushington held, that in apportioning the remuneration in salvage cases every vessel was to be considered as uninsured, on account of the inconvenience of considering in each case whether a vessel had forfeited its insurance. See also The Orbona, 1 Spinks, Adm. 161.

(e) Crocker v. Jackson, Sprague, 141. (f) The Dantzic Packet, 3 Hagg. Adm. 383; The Glory, 2 Eng. L. & Eq. 551; The Samuel, 4 Eng. L. & Eq. 581.

1 But a pilot may be remunerated for salvage services when the services were such as he was not bound to render, as where a vessel was drifting in a storm upon the coast, and some pilots at the peril of their lives, being unable to board her, by preceding and signalling brought her safely to anchorage. Akerblom v. Price, &c. Co., 7 Q. B. D. 129. Or if a pilot has not assumed the duties of pilot. The Wisconsin, 30 Fed. 846. See also The Aeolus, L. R. 4 A. & E. 29; The Anders Knape, 4 P. D. 213.-W.