THE HESPER. IRVINE and another v. THE HESPER and others.
122 U.S. 256 (7 S.Ct. 1177, 30 L.Ed. 1175)
THE HESPER.1 IRVINE and another v. THE HESPER and others.
Decided: May 27, 1887
This is a libel in rem, in admiralty, brought in the district court of the United States for the Eastern district of Texas, by Robert Irvine and Charles L. Beissner, owners of the steam-lighter Buckthorn and the steam-tug Estelle, against the steam-ship Hesper, in a cause of salvage.
The libel sets forth salvage services rendered to the Hesper by the Buckthorn and the Estelle, in pulling her off from the shore at Galveston island, about 25 miles from Galveston, Texas, where she had grounded on her voyage from Liverpool to Galveston, with a cargo of salt, in December, 1882. The answer of the owners of the Hesper avers their readiness to pay a reasonable compensation for the services actually rendered by the two vessels, but denies that more than compensation for actual services and time is due, and denies that the services rendered were salvage services.
Proofs were taken, and the district court, in April, 1883, (18 Fed. Rep. 692,) made a decree adjudging that the libelants were entitled to compensation in the nature of salvage, for the saving of the Hesper and her cargo, and allowing to the libelants, for the services of each of the two vessels, $3,000, and to the owners of the schooner Mary E. Clark, and men who had been employed to load upon her part of the cargo of the Hesper, and to jettison such cargo, $2,000; and, the claims of the owners of that schooner and of those men having been settled by the Hesper, it was ordered that the $2,000 should go to the Hesper.
Both parties gave notice of appeal from this decree to the circuit court. The libelants perfected their appeal, but the claimants of the Hesper did not perfect theirs. Some further proof was taken in the circuit court, and on the thirteenth of November, 1883, that court, having heard the cause, filed the following findings of fact and conclusions of law:
'This cause came on to be heard on the transcript and evidence, and was argued. Whereupon the court, being advised of the evidence, finds the following as the facts of the case:
'(1) That about 5:45 A. M., of the twelfth day of December, A. D. 1882, the steam-ship Hesper, bound on a voyage from Liverpool to Galveston, being out of her course, ran aground at the south-west side of Galveston island, about twenty miles south-west from Galveston, and nearly opposite the life-saving station. The Hesper was an iron propeller, and built in Hartlepool, England, in 1881, at a cost of twenty-two thousand pounds; her registered tonnage is, gross, 1,654 tons; net, 1,069 tons. Her freight capacity is 1,950 tons. She has powerful engines of 750 horse-power, with steam windlasses and winches, and on said twelfth of December was well found and well manned in every respect. She was laden with a cargo of about 900 tons of salt.
'(2) That, when the Hesper went ashore, her engines were slowed down and she was making about four knots per hour. She struck easily, without shock, and remained upright. Her draught was then thirteen feet nine inches. The sea was smooth, and there was very little wind. What there was was from the south, and the ship headed, when she struck, north-east by north. Kedge anchors were immediately put out to the east south-east, and efforts made to get the ship off in that direction, with the ship's engines heaving on those anchors. At the same time, a message was sent overland to Galveston, the nearest pr t, to the ship's agent, to send assistance.
'(3) That the agent of the ship applied to the agent of the tug Estelle, and procured that tug to go to the assistance of the Hesper. The Estelle was a long, narrow, deep boat, drawing about eight feet eight inches, and was the most powerful tow-boat in Galveston harbor, and had aboard the usual appliances of such boats. The Estelle reached the Hesper about 5 P. M. of the twelfth of December and reported. The master of the Hesper endeavored to bargain with the master of the Estelle as to the cost of pulling the Hesper off, but the master of the Estelle refused to make any agreement, on the ground that he did not know how much labor and time it would take. A line was then given the Estelle from the stern of the Hesper, which was then more off the shore than the bow, and the Estelle hauled on said line for about two hours, during which time the crew of the Hesper, with some four or five hands from the life-saving station, were throwing over cargo. No appreciable result came from this towing of the Estelle, and she desisted on the orders of the master of the Hesper.
'(4) That, in the mean time, the sea, which had been smooth, with very little swell, had become more turbulent, and there was a very decided increase in the groundswell from the south-east,not so much, however, but that small boats were flying around the Hesper, and life-boats were running easily to and from shore. At this time of stopping hauling by the Estelle, the master of the Hesper requested the Estelle to come along-side, and run a heavy anchor out seaward from the Hesper, both to keep the Hesper from drifting further in, and for the Hesper to heave on to pull herself off. This the master of the Estelle refused to do, on the ground that there was too much sea on, and that he would thereby endanger his own boat, and thereupon the Estelle, taking aboard the Hesper's agent, who had come overland, proceeded back to Galveston, to procure more assistance. It was then found that the Estelle was making some water from a leak caused by a defect in the staff of the stuffing-box, which was not tight enough, and was worked loose by the strain in hauling on the Hesper. However, the Estelle proceeded that night of the 12th to Galveston bar, where she laid until morning, reaching Galveston wharves about noon of the thirteenth of December. The Estelle lay at the wharves repairing until the morning of the fourteenth of December, when she took the schooner Clark, which had been engaged by the Hesper's agent to lighter cargo, in tow, and towed her down to the Hesper.
'(5) That, on the thirteenth of December, the ship Hesper was lively, though still aground, shifting her position slightly, but not affecting her safety, some 450 tons of water having been pumped into her ballast tanks to put her down, and keep her from going nearer in shore, and her crew being engaged in throwing over cargo while waiting for assistance. And on the same day the agent engaged the Buckthorn, a steam-lighter, belonging to libelants, of lighter draught and power than the Estelle, to proceed to the Hesper, which she did, taking down a heavy anchor and cables, and two new hawsers, (the latter purchased by the Hesper's agent,) and a gang of men employed by the Hesper's agent, to help lighter cargo and generally assist, and also provisions and other necessaries, arriving in the night and lying by until morning.
'(6) That, on the morning of the fourteenth of December, the position and condition of the Hesper was much the same as on the preceding day, the weather being calm and the sea smooth. About nine o'clock in the morning, the gang of men brought down by the Buckthorn, after breakfasting aboard the Hesper, commenced to jettison cargo, and the Buckthorn carried out seaward and dropped the heavy anchor brought down from Galveston, in about 18 feet of water, connecting the same, by hawsers and cables of about 210 fathoms in length, with the steam-winch of the Hesper. The Buckthorn then also took line from the Hesper, and pulled on her, while the machinery of the Hesper was heaving on the hawsers leading to the heavy anchors, but no relief was given. Towards noon on the 14th the Estelle arrived, with the Clark in tow. The Clark was placed alongside of the Hesper, and cargo was transferred to her by the crew and the gang aforesaid. This lightering was kept up until about four o'clock in the afternoon, when about one-third of the cargo was removed, and nearly all the ballast water pumped out, and then the Estelle took a line from the Buckthorn, and a general effort was made by the Buckthorn, the Estelle, and the Hesper's engines, to get the Hesper off, which succeeded, whereupon the Hesper, which was uninjured, steamed to Galveston.
'(7) Where the Hesper went aground, the slope of the ground seaward is gradual, and the bottom is sand.
'(8) The prevailing and probable winds on that shore, during the month of December, are from the south and south-east, sometimes of great violence.
'(9) During the three days the Hesper was aground, there was no wind nor sea of any danger to ships, large or small, and the services rendered to the Hesper, aiding her to get safely off, were not attended with any hazard or danger, or any circumstances unusual to the towage and lighterage business, as carried on in Galveston roads, when the wind is moderate and the sea smooth.
'(10) That the value of the Hesper, which was entirely uninjured by going ashore, was one hundred thousand dollars, and the value of her cargo saved was six thousand five hundred dollars. The value of libelants' two boats, the tug Estelle, and the lighter Buckthorn, was thirty-five thousand dollars.
'(11) That the Hesper, when aground as aforesaid, was in a condition of peril and distress, hardly likely to be able to get out of danger by her own efforts, even if the weather had been certain to continue favorable for many days, and certain to be wrecked if the weather should prove to be bad.
'(12) That the services rendered the Hesper by the libelants' boats, the Estelle and Buckthorn, were salvage services, but of the lowest grade, involving neither risk of property, peril of life or limb, nor unusual expense, nor gallantry, courage, or heroism, and the same will be fully compensated by double compensation, on the basis of towage and lighterage services.
'(13) The Estelle was engaged in these services three days and one night, and the Buckthorn two days and one night. The outside earnings of either of these boats, with their appliances, is 300 dollars per day, which, allowing as much for night work, would make the sum of twenty-one hundred dollars compensation, and double compensation is the sum of forty-two hundred dollars.
'And the court finds the following as conclusions of law:
'(1) The services rendered by the libelants' boats, the Estelle and the Buckthorn, and their respective masters and crews, were salvage services of the lowest grade.
'(2) That the court should award for said services the sum of forty-two hundred dollars.
'(3) That libelants should have judgment for the sum of forty-two hundred dollars, and costs incurred in the district court.
'(4) That the libelants should pay the costs of this court.'
Thereupon a decree was made by the circuit court in favor of the libelants for $4,200, and the costs of both courts. 18 Fed. Rep. 696. From this decree the libelants have appealed to this court. Their notice of appeal states that they claimed, as their compensation for the salvage services to the vessel and cargo, one-fourth of the sum of $106,500 found by the circuit court as the value of the Hesper and her cargo.
Eppa Hunton, for appellants.
Argument of Counsel from pages 261-264 intentionally omitted
John H. Thomas, for appellee.
It is assigned for error that the circuit court erred in deciding that the services rendered by the Estelle and the Buckthorn were salvage services of the lowest grade. This is found by the circuit court both as a conclusion of fact and a conclusion of law. Regarding it as a conclusion of fact, it is not reviewable here. Regarding ita § a conclusion of law, it is based upon the finding of fact that the salvage services involved 'neither risk of property, peril of life or limb, nor unusual expense, nor gallantry, courage, or heroism.' The Estelle having been engaged in the services three days and one night, and the Buckthorn two days and one night, the court, treating the whole service as a service for seven days, and finding that the outside earnings of either of the boats, with its appliances, was $300 per day, being $2,100 for seven days, doubled the compensation, and made it $4,200, stating that that would be a full compensation on the basis of towage and lighterage services.
The circuit court, in its opinion, (18 Fed. Rep. 698,) says: 'Proctor for respondents in this case admits in argument that, by reason of the service of the extra anchor furnished by the libelants, the service amounts to salvage service. But for this admission, I have grave doubts whether I could have found as a fact that the services ranked above towage and lighterage service, to be compensated on the principle of a quantum meruit. But salvage services being taken as established, the question is one solely of amount. As a fact in the case, I have found that there was neither risk of property, peril of life or limb, nor unusual expense, nor gallantry, courage, or heroism. The evidence shows there was no enterprise in going out in tempestuous weather, as the weather was moderate, and the libelants' tug only went out when called upon and employed so to do. The labor and skill furnished were of the ordinary kind, such as libelants' boats were seeking as ordinary employment. Salvage, then, is to be determined entirely by the distress in which the salved property was. The distress of the Hesper was the salvors' opportunity, and the amount of salvage, on this point, determines the whole case.'
The principle upon which the circuit court proceeded, as stated in its opinion, was that, although storms might have come which would have destroyed the Hesper, the services actually rendered to her by the tug and the lighter were ordinary services, and that if storms had come, the tug and the lighter might easily have sought safety.
We recently had occasion to fully consider the question of salvage in the case of The Connemara, 108 U. S. 352, 2 Sup. Ct. Rep. 754, where it was contended that the facts found by the circuit court did not constitute salvage service, and that, if a salvage service, it was salvage of the lowest grade, and the amount allowed was exorbitant. Holding the services to have been salvage services, this court, speaking by Mr. Justice GRAY, said, (page 359:) 'The amount of salvage to be awarded, although stated by the circuit court in the form of a conclusion of law, is largely a matter of fact and discretion, which cannot be reduced to precise rules, but depends upon a consideration of all the circumstances of each case.' It is further there said that, by the uniform course of decision in this court during the period in which it had jurisidiction to reverse decrees in admiralty upon both facts and law, the amount decreed below was never reduced unless for some violation of just principles, or for clear and palpable mistake, or gross overallowance; and that since the act of congress of February 16, 1875, c. 77, restricting the appellate power of this court within narrower bounds, and limiting its authority to revise any decree in admiralty of the circuit court to questions of law, this court may, in cases of salvage as in other admiralty cases, 'revise the decree appealed from, for matter of law, but for matter of law only; and should not alter the decree for the reason that the amount awarded appears to be too large, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case.' The decree appealed from in that case was affirmed, upon the ground that this court could not say, upon the findins of facts, that the amount awarded was so excessive as to violate any rule of law. The same principle was applied in The Tornado, 109 U. S. 110, 115, 3 Sup. Ct. Rep. 78.
These views are equally sound in the case of an alleged under-allowance. We cannot say from the facts found in the case at bar, that the circuit court did not properly exercise its discretion in making the allowance it did, even though that amount was less than the amount allowed by the district court.
The claimants not having appealed to the circuit court, it is suggested that they are liable for at least the amount awarded by the district court, and that the circuit court could not reduce that amount, but had jurisdiction, on the actual appeal, only to increase it. It is well settled, however, that an appeal in admiralty from the district court to the circuit court vacates altogether the decree of the district court, and that the case is tried de novo in the circuit court. Yeaton v. U. S., 5 Cranch, 281; Anon., 1 Gall. 22; The Roarer, 1 Blatchf. 1; The Saratoga v. Four Hundred and Thirty-Eight Bales of Cotton, 1 Woods, 75; The Lucille, 19 Wall. 73; The Charles Morgan, 115 U. S. 69, 75, 5 Sup. Ct. Rep. 1172. We do not think that the fact that the claimants did not appeal from the decree of the district court alters the rule. When the libelants appealed, they did so in view of the rule, and took the risk of the result of a trial of the case de novo. The whole case was opened by their appeal, as much as it would have been if both parties had appealed, or if the appeal had been taken only by the claimants.
The decree of the circuit court is affirmed, with costs, and without interest to the libelants on that decree.
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Affirming 18 Fed. Rep. 696. See, also, 18 Fed. Rep. 692.