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Spencer 4. Steamboat Charles Avery.

maritime law. And this is the principal inquiry presented for the determination of the court.

It is very clear there was no apparent danger of the loss of life in the removal of the cargo. There was, indeed, a possibility that while the persons at work were engaged in removing the flour from the hold of the boat, it might have been torn to pieces by the pressure of the ice upon it; in which case they would have been in great danger. But as this result did not take place, there is no ground for assuming that there was any personal danger to the parties beyond the injury to health, which might result to those who worked in the water in the removal of the flour from the hold of the boat. It is, however, clear beyond all question, that a part, at least, of the cargo was in immediate and imminent danger of being irrecoverably lost. There is very little doubt, that if not removed, the flour upon the guards, and most probably all that was deposited on the deck, would have been carried away by the water. The river was rapidly rising when the boat sunk, and when labor was suspended in the evening, there was nearly four feet of water on the deck. It is equally certain that the injury to the cargo, from the action of the water, would have been somewhat in proportion to the length of time it was submerged. It would result that the damage was materially lessened by the promptness with which the property was remored from the boat.

Do these facts present a case which entitles the parties to a decree for salvage? It is a well-settled principle of the maritime law, that risk or danger of life is not a necessary element of a salvage service. It is true that where such risk or danger is incurred in saving property from destruction, it will place the salvors in a higher position of merit, and entitle them to a more liberal compensation for the service than would otherwise be accorded to them. But the controlling inquiry is, in salvage cases, was the property in peril of being lost, and was it saved by the efforts of those claiming to be salvors ? Salvage is defined

Spencer v. Steamboat Charles Avery.

to be, “the compensation allowed to other persons, by whose assistance a ship or its loading may be saved from impending peril, or recovered after actual loss.” Abbott on Ship. ed. of 1846, 659. In the case of Talbot v. Seaman, 1 Cond. R. 229, the Supreme Court of the United States distinctly recognize this principle. The danger to the property must be real and imminent, and not merely speculative. In 1 Conk. Ad. 279, the doctrine is stated thus: "If the case be one demanding assistance, and it is effectually rendered in saving the vessel or cargo, or any part of either, from impending destruction or loss, a claim for salvage will be maintained.” This doctrine was recognized by this court in the case of McGinnis v. Steamboat Pontiac, 5 McLean, 359. And it is also settled, that it is not material whether the salvage service was rendered spontaneously or by request, or whether with or without a previous contract between the owner or his agent and the salvors.

These principles, applied to the facts proved in this case, leave no reason for a doubt that the service rendered was a salvage service, for which compensation may be awarded by a court of admiralty. It is true the service rendered does not import the highest grade of merit. It lacks some of the elements necessary to give it this character. As before remarked, there was no apparent peril of life in the service; but it was promptly rendered, and laborious and exhausting while it continued, and effective in its results.

The measure of compensation in salvage cases depends wholly on the circumstances attending the service. Where there has been great personal exposure and risk, and it is certain that property has been rescued from inevitable destruction by the boldness and intrepidity of the salvors, a liberal allowance will be made. One-half of the property saved has been allowed in such cases. In others, a small per centum on the value has been deemed sufficient; and sometimes a sum in numero has been decreed. In a case before Judge Story, reported in 1 Mason, 372, that learned judge states the law on this subject as follows:

Spencer v. Steamboat Charles Avery.


“ Cases may occur of such extraordinary peril and difficulty, of such exalted virtue and enterprise, that a moiety, even of a very valuable property, might be too small a proportion; and, on the other hand, there may be cases where the service is attended with so little difficulty and peril, that it would entitle the parties to little more than a quantum meruit for work and labor."

The value of the property rescued is also to be considered in estimating the amount of compensation for a salvage service. The evidence in the case before the court is not explicit as to this value. In his answer, the master of the steamboat states the entire cargo to have been worth about three thousand dollars. It would seem, however, from the evidence of the deputy marshal who made the seizure under the process of this court, and of witnesses who have testified as to the market value of the property, that the part rescued by the persons employed was not of less value than $6,500. Of this, the proportion saved from entire loss may be safely estimated at about $2,500. And it may be assunied from the evidence, that the increased damage to that part of the cargo not in immediate danger of being wholly lost, which would have resulted from its longer continuance in the water, would not be less than $1,000. On this basis, the actual benefit to the owners of the property, from the labors of those who aided in its rescue, amounted to $3,500. This result is obtained without reference to the chances of the loss of the entire freight of the boat, if it had not been promptly removed.

There is some difficulty in fixing the sum to be allowed as salvage in this case. It is clear the facts do not warrant a very high rate of compensation to the salvors, but it is equally clear that they are entitled to something beyond a mere quantum meruit allowance for their labor. As before noticed, thirty-three of those who aided in this service have abandoned their right as salvors by receiving pay from the owners. It is obvious that the proportion to which they would have been entitled, if they had not thus given

United States v. Pickett.

up their right to salvage, can not be awarded to those having a right thus to claim. In settling a basis of a decree, the entire value of the salvage service is first to be ascertained, and from this is to be deducted the sum to which the persons paid would have been entitled, if they had not relinquished their claim as salvors. The balance will be the amount to be decreed as salvage. Upon the whole, it seems to the court that the equity of this case will be fully met by a decree for a gross sum of six hundred dollars to those who have not waived their rights as salvors by receiving payment for their services. A decree, finding this sum as the amount of salvage, and providing for its apportionment among the owners of the cargo, according to the interest of each, will therefore be entered. The distribution will be made in equal proportions to the libellant, and such other persons as within sixty days, by proper proceedings in this court, shall establish their right to a distributive share of said sum.



Where a defendant and another person signed a recognizance before a

justice of the peace, conditioned for the appearance of the defendant, before the District Court of the United States, to answer to a charge of stealing from the mail; and three days subsequently to said signing, a third person, whose name did not appear in the body of the recognizance, also signed the same: Held, that a joint action could not be sustained against all of said persons upon such recognizance, and that it did not, upon its face, import a joint liability on the part of all the

signers thereof. There is no statutory provision, either of the United States or of the State

of Ohio, requiring parties to sign a recognizance.

United States v. Pickett.

An acknowledgment, without the signatures of the parties, certified by a

justice of the peace, is all that is required to make a recognizance valid and obligatory.

D. O. Morton, District Attorney, for United States.

W. M. Dickson, for defendant Harding.


The declaration in this case avers, that on September 9, 1854, Sophia B. Williamson, and on the 12th of September, in said year, William Harding, together with one Pickett, as to whom the process is returned not served, entered into a recognizance before Nathan Guilford, a justice of the peace for Hamilton county, by which they acknowledged themselves jointly and severally to owe the United States the sum of two thousand dollars, on the condition that the said Pickett should fail to appear before the District Court of the United States, next to be held for the Southern District of Ohio, to answer to a charge of feloniously stealing from the mail of the United States. The declaration then avers that the said Pickett did not appear, and that the recognizance was duly forfeited, whereby the United States became entitled to said sum of two thousand dollars.

The defendant, Harding, appeared by his counsel, and having craved oyer of the recognizance, has demurred generally to the declaration. It is on this demurrer that the question now to be decided is presented. No brief has been filed, nor any authority cited, by counsel on either side. After a good deal of examination the court has not been able to find any decided cases bearing on the point raised by this demurrer.

The question presented is, whether the recognizance, as to the defendant, Harding, is valid and obligatory. The facts, as they appear from the recognizance, and as averred in the declaration, are that on the 9th of September, Pickett, the accused person, and the said Sophia B. Williamson, appeared before the justice and signed the recogni

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