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Western Insurance Co. v. Steamboat Goody Friends.

ment of both of these boats, and that it is a proper case for the division of the damages which resulted from the collision. The specific acts of unskillfulness and negligence fairly chargeable to each, may be briefly stated as follows:

The pilot of the South Bend was in fault : first, in crossing toward the bar on the Arkansas side, and attempting to descend at or near the place of an ascending boat, in violation of the signals which had been given, and of the usages of navigation applicable to that part of the river; second, if he misapprehended the signals and supposed them to have been different from what the evidence shows they were, he was in fault in not having sooner ascertained his mistake, and in not stopping his boat at once, and calling for a repetition of the signals to ascertain what was desired and intended by the ascending boat.

The pilot of the Goody Friends was also in fault: first, in not exercising a proper vigilance in correcting the

a apparent misapprehension in regard to the signals, by stopping his boat in time and repeating his signals until there should be right understanding between the boats ; second, in continuing under full headway until the boats were so near that a collision was inevitable, and neglecting to give the order to back until from the close proximity of the boats it was impossible to execute it; third, it is clear from the evidence, that there was no one on the deck of the Goody Friends for some time prior to, and at the time of the collision, charged with the special duty of keeping a vigilant lookout, and giving the pilot timely information of any obstruction, difficulty, or danger in the navigation of his boat.

A decree will therefore be entered on the basis of mutual fault. But as it appears there was some injury sustained by the Goody Friends, and also some detention resulting from the collision, in relation to which I am not aware that there is any evidence before the court, the court will either now hear the evidence, or refer it to a commissioner to ascertain the injury suffered by that boat. If, however,

Collins v. Steamboat Fort Wayne.

the counsel can agree upon the amount, it will supersede the necessity of either course. This amount will be deducted from the loss sustained by the libellants, and a decree will be entered against the Goody Friends for onehalf of the balance, with interest from the date of the collision.

(DISTRICT COURT.)

CHARLES H. COLLINS ET AL. v. STEAMBOAT FORT WAYNE.

A salvage service, in raising and preserving a steamboat sunk in the Mis

sissippi river, has a priority of lien over claims for wages earned and

supplies furnished before the accident. A salvor is favored in law, on the assumption that without his service the

res might have been wholly lost. If the salvage service is rendered under a previous special agreement, fairly

made, stipulating for a compensation contingent on the success of the salvor's efforts, it will be recognized in admiralty as creating a valid

lien. But if there are prior lien-holders, not parties to such agreement, they are

not concluded as to the amount of compensation agreed to be paid, and a court of admiralty may inquire into the reasonableness of the com

pensation, and make such allowance as may be equitable. The lien of seamen for wages earned prior to the accident is not absolutely

extinguished thereby, but continues subject to the salvor's lien. The salvage agreement having stipulated for a compensation of twenty

five per cent. on the value of the boat, assumed in the policy of insurance at $18,000, and it appearing that the actual value did not exceed $9,000, the sum claimed for salvage is unreasonable, under the circum

stances of the case, and subject to reduction by the court. An insurance company having paid their quota for the salvage service, and

having made advances for the necessary repairs of the boat after being raised, the owners having no means or credit by which to make the

repairs, have a maritime lien at least to the extent of such repairs. A due-bill given by the master in the name of the owners for the amount

of such repairs, reciting that they were necessary, and that the advances therefor were on the credit of the boat, is conclusive on the owners, unless impeached for fraud, and constitutes a valid lien.

Collins v. Steamboat Fort Wayne.

Claims for wages earned after the boat was repaired, have an equality of

lien with that for advances made for repairs. The Fort Wayne having been enrolled at Cincinnati as of that place, and

two of the owners residing in the State of Ohio, one of whom was the managing owner, the boat was properly enrolled there, and that was the home port of the boat, although a majority of the owners resided in the State of Pennsylvania, and claimants, therefore, for stores and

supplies furnished at Cincinnati have no lien on the boat therefor. Debts incurred in building a boat are presumed to be based on the personal

credit of the owners, and do not import a maritime lien. And this doctrine is not affected by the fact that such debts are declared to be a lien by the law of the State in which the boat was built.

Lincoln, Smith f Warnock, for libellants.

Dodd f Huston, for respondents.

OPINION OF THE COURT:

The status of this case, with the numerous and somewhat complicated questions involved, will be sufficiently intelligible from the following brief statement. On April 16, 1861, at the instance of Charles H. Collins, the libellant, the steamboat Fort Wayne, was arrested at the port of Cincinnati by process from this court. The claim of Collins, as set forth in his libel, is for stores and supplies furnished on the credit of the boat at Pittsburg, in the State of Pennsylvania, from June 20, 1859, to January 28, 1861. Subsequently to the seizure of the boat, numerous interveners have filed claims, which, without reference to any question of the priorities of their liens, may be classified under the following heads: 1. Wages earned before the sinking and repair of the boat; 2. Wages earned subsequently; 3. Stores and supplies furnished at Pittsburg, Cincinnati, Cairo, and St. Louis, both before and after the boat was sunk; 4. Lighterage, and the hire of a tow-boat at Louisville; 5. Building debts incurred at Pittsburg; 6. Salvage service by the Missouri Wrecking Company in raising the boat; 7. Repairs by the Eureka Insurance Company after the boat was raised.

Collins v. Steamboat Fort Wayne.

By an interlocutory decree of this court, entered April 23, 1861, the boat was sold at public sale by the marshal, at Cincinnati, for $3,650, which sum has been paid into the registry, subject to the order of the court for its distribution. And by agreement of the proctors of the parties, the claims for wages accruing after the boat was raised, repaired, and fitted for navigation, have been paid. There yet remains in the registry about $2,500, for distribution to the claimants as their rights and priorities may be determined by the court.

The first claim to be considered will be that of the Missouri Wrecking Company. And one of the questions involved in it is, whether it has a priority of lien over claims arising prior to the salvage service rendered by that company. In their libel, they allege, in su bstance, that on February 20, 1861, the Fort Wayne, in a trip from New Orleans to Cincinnati and Pittsburg with a large cargo, struck a log in the Mississippi river, near the foot of Island No. 16, and was so injured thereby as to sink and become a total wreck; that the owners and underwriters, being unable to save the boat or cargo, requested the Missouri Wrecking Company to take possession of the wreck and the cargo as salvors, and, if practicable, to save the same, agreeing to pay the company twenty-five per cent. on the value of the boat, estimated in the policy of insurance at $18,000; that the company, by its agents, immediately repaired to the wreck with their boats and machinery, and began their operations the 24th of February, and on the 6th of March had succeeded in raising the boat and a good part of the cargo, and on the 18th of March delivered the boat at Mound City, near Cairo, for repairs.

The libel of the wrecking company also alleges that the company is a corporation with a large capital invested in boats and machinery for saving wrecked boats and their cargoes; prepared, equipped, and manned for such service, and of litttle value for any other purpose ; and that the Fort Wayne could not have been raised or saved by any

Collins v. Steamboat Fort Wayne.

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other agency. It is also averred that the charge of the company is reasonable, and in accordance with their usage, and that there is now due them for their services the sum of $1,500, for which they ask a decree.

Without reciting the evidence proving the salvage service rendered by the wrecking company, it will be sufficient to say that it fully sustains all the material allegations of their libel. It is proved that one of the boats of the company, called the Submarine No. 7, fitted out with powerful pumps, diving-bells, and all other necessary appliances, with a full complement of officers and hands, repaired to the wreck of the Fort Wayne, upon the application of Capt. Barr, the master of that boat, and that a contract for raising the wreck, and saving the cargo, was signed by him in behalf of the owners and insurers, by which the company, if successful, were to be paid twenty-five per cent. on the value of the boat as estimated in the policy of insurance. It is also clearly proved that from the situation of the wreck there was danger of its immediate destruction, and the consequent loss of the entire cargo. The deck of the boat was badly twisted and strained, and there was a large hole or opening in its side; and as the current was swift, and the river rapidly rising at the time, the witnesses agree in saying the boat would have gone to pieces in a short time, and, with the cargo, would have been a total loss. It is also proved that the company were occupied in the service from the 24th of February until the 6th of March, and that the actual expense of raising the boat, and delivering it, with the cargo, at Mound City, was not less than $2,000. It also appears that the value of the cargo saved, from actual sale, was $6.761, and that by the contract the company were to receive thirty per cent. on the value, making $2,028, which, with the twenty-five per cent. on the estimated value of the boat-$18,000—made an aggregate for salvage service of $6,528. Of the $4,500 claimed by the company for raising the boat and taking it to Mound

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