Atlantic Refining Co. v. Merritt & Chapman Derrick & Wrecking Co.

300 F. 901, 1924 U.S. App. LEXIS 3060, 1924 A.M.C. 712

• Court: Court of Appeals for the Third Circuit
• Decided: March 6, 1924
• Docket: Nos. 3072, 3074
• Status: Published

Opinions

DAVIS, Circuit Judge.

These three appeals were taken from decrees of the District Court awarding $25,000 to the Merritt & Chapman Derrick & Wrecking Company and $15,000 to the Pilots’ Association for Bay and River Delaware, against the Atlantic Refining Company for salvage services rendered to the oil tanker Herbert L. Pratt, on June 3 and 4, 1918. The Refining Company appealed on the ground that the awards to the Merritt & Chapman Company and to the Pilots’ Association were too large, and the Pilots’ Association appealed on the ground that the award to it was too small.

At about 3 :45 in the afternoon of June 3, 1918, the Pratt, loaded with a cargo of oil, bound from Tampico, Mexico, to Philadelphia, struck a submerged German mine about two miles southeast of the Over Falls Lightship and about three miles southeast of the Delaware Breakwater. The explosion tore a hole in one of the empty oil compartments in her port bow near the keel. She began to fill with water and her bow gradually settled until it rested on the bottom 1% to 2 miles from the Over Falls Lightship in 13 fathoms of water. She then swung around with the tide until she headed southward. The sea was smooth, with a strong ebb tide. She had a draft of only 9 feet. As the bow settled, her stern was raised, and when she finally pivoted on her bow more than one-half of the vessel was submerged. She swung around with each tide settling about 3 feet with a tide.

It was apparent that she was in imminent danger, and something had to be done, and that speedily, if she and her cargo were to be saved. Fortunately Lieutenant Commander Walter M. Davis, U. S. N., was on duty on the U. S. S. Garner, in the vicinity of Cape Henlopen. He was at that time Lieutenant Commander in the Navy, but had up until a short time before been with the Merritt & Chapman Company for 26 years. Besides being a man of rare judgment and unusual ability, he had had a wide .experience in just the kind of salvage service that was required at that particular time to save the Pratt and her cargo. Fortunately, also, the U. S. S. Tasco, a combination mine layer, sweeper, and wrecker, on that day lay at the Naval Base Pier at Cape Henlopen with fires banked. There was also at Lewes, Del., the wrecking boat Superior, belonging to the Merritt & Chapman Companywhich was equipped with a diving apparatus and crew. Connected with this crew was Carl Anderson, one of the best and most experienced divers in the United States, and his tender, Nick Remick. On that same day not far from there the pilot boat Philadelphia, owned and operated by the Pilots’ Association, was cruising between the Breakwater and Over Falls Lightship in the immediate vicinity of where the Pratt was wrecked. Lieutenant Commander Davis, upon arriving at the Base Pier at Cape Henlopen at about 7 o’clock that evening, saw the stern of the Pratt standing high out of the water. He immediately secured permission from the Base Commander to undertake the salvage of the Pratt. He ordered the Tasco to go to the wreck as soon as possible, and sent a coastwise power boat to the Garner for some copper steam hose, which he thought might he needed, and went out himself to the Pratt. The opinion of the learned District Judge contains a graphic account of what was then done:

“He went aboard, looked tbe situation over, and decided on what should! be done. This was that the Pratt must be lightened forward, by pumping out her cargo of oil until she recovered sufficient buoyancy to float. This involved several problems. The Pratt’s engine and boilers were in the stem of the ship. There was five feet of water in the starboard fireroom, and no water in the boilers, which required fresh water to get up steam. About this time (10 p. m.) the Tasco arrived, made fast on the stem port quarter of the Pratt, and pumped fresh water into the Pratt’s tanks, and about 11 p. m. steam was gotten up on the Pratt’s port boiler. It was also evident that a diver would be needed to open certain valves on the submerged forward deck before the oil could be pumped out, and to lengthen a bent pipe, then submerged, which ran up close to the foremast, so as to give the pipe an opening above water. Returning to the base pier at midnight, Commander Davis called Anderson on the telephone and arranged with him to get his diving gear and party together and make ready to go to the wreck; Davis telling Anderson that he would be responsible to the wrecking company for the remuneration of Anderson and his assistants. He also telephoned to Mr. Gabriel, the manager of the Atlantic Refining Company’s marine department, to send the required assistance to the vessel as soon as possible. Shortly afterwards the steam hose arrived from the Garner, and, having prepared one of the Pratt’s lifeboats for use as a diving boat, and having loaded the diving gear and hose into it, Davis started for the Pratt, with the diving boat and diving party, about 3 a. m. The diving party consisted of Carl Anderson, an experienced and capable deep-sea diver, his tender, Nick Remick, and two or three other employees of the wrecking company. The blueprints of the Pratt were under water, so the Pratt’s captain explained to Commander Davis and to Anderson the location of the valves that must be opened and the location of the vent pipe.

“About 5 a. m. Anderson went down, and after an hour and half work under water succeeded in opening the necessary valves. He went down again at 7:30 a. m. and made an effort to put an extension on the vent pipe, a difficult piece of work; but the tide was too strong, and he was compelled to desist for the time being. It was then found impossible to keep steam in the Pratt’s boilers; so the copper steam hose, which Davis had previously ordered, was run from the Tasco to the Pratt, and preparations were made for the Tasco to supply the Pratt with steam for all purposes. Davis then returned to the base pier to make further arrangements for pipe fittings, fresh. water, etc., and at 11 a. m. returned to the wreck. He then sent Anderson down again, and the diver succeeded this time in fastening an extension to the vent pipe, which extended it above water. At 1 p. m. (June 4th) the Tasco began pumping the oil out of the Pratt’s forward tanks. As the pumping proceeded, the Pratt began to list to starboard, and at 3 p. m. was listing heavily. All hands except Davis and the captain and chief engineer of the Pratt were ordered on board the Tasco, and life preservers were passed to the three officers who remained on the Pratt. Some of the Tasco’s crew were stationed with axes to cut the grappling lines in case the Pratt turned over. These precautionary measures proved to be unnecessary, but they illustrate the situation as it appeared at the time to those who were on the scene and in charge. About 3:30 p. m. the Pratt was listing about 40 degrees, and the captain and chief engineer protested to Commander Davis against further pumping unless the valves on the port side were closed, thus preventing the cargo of oil from flowing to starboard. It seemed impossible to close these valves, and apparently also Commander Davis considered this step inadvisable. At any rate, he continued pumping and told the Pratt’s captain that he would accept the responsibility.

“At this juncture the pilot boat appeared on the scene. On the previous day she had run over to the Pratt and brought some of her crew to Lewes, and had spent June 4th in cruising over her regular cruising ground close by. In the afternoon she again steamed over to the Pratt, arriving there about 3:40 p. m. A 4%-inch line was secured from the Tasco; one end was fastened to the stern of the Pratt and the other end to the towing bitts of the pilot boat, which then began tugging astern. Meantime the pumping continued. In 10 or 15 minutes the Pratt’s bow began to raise and she began to right herself. . The pilot boat then started to tow her stem first towards shallow water. As the pumping continued, the Pratt’s bow raised until there was only one foot of water on the forward deck. About this time the towline, an old one, parted, and a new line was hauled from below1 on the Pratt and given to the pilot boat. All the Pratt’s crew now returned on board from the Tasco and started to get up steam in the Pratt’s boilers. Commander Davis then decided to take the ship to the breakwater, so the pilot boat was shifted to towing ahead, and with the Tasco still lashed alongside the Pratt, she towed her in under- the outer breakwater, whére she wasi grounded in 40 feet of water about 7:30 p. m. Commander Davis then left with the Tasco and returned to the base pier. A few days later, the Pratt proceeded to Philadelphia Navy Yard under her own steam and went into dry dock.”

The saving of the Pratt and her cargo was the result of four principal factors — Lieutenant Commander Davis, The Tasco, Carl Anderson, and the pilot boat Philadelphia. The questions before us are the value of the salvage services rendered by Anderson and his helpers and the Philadelphia, there being no question as to the remuneration of Commander Davis and the Tasco.

The amount which may be justly awarded for salvage service depends upon numerous conditions, and the solution is never free from difficulty when meritorious service appears. In this case the difficulty is complicated by the absence of well-defined precedents, at least, so far as concerns the services of Anderson. A general rule is that a liberal award commensurate with the service rendered in the emergency should be allowed, such an award as will encourage and stimulate similar service by others. The Baker (C. C.) 25 Fed. 771.

The circumstances entitled to most consideration in all cases are: The value of the property saved, the extent of the service rendered, the degree of merit and gallantry displayed, and the danger to which the vessel was exposed and from which it was saved. The J. Emory Owen (D. C.) 128 Fed. 996; The Emulous, 8 Fed. Cas. p. 704, No. 4,480; The Mt. Washington, 17 Fed. Cas. p. 925, No. 9,887; The Blackwall, 77 U. S. (10 Wall.) 1, 18, 19 L. Ed. 870. It is morally certain that without Anderson, or some equally skillful diver, the result could not have been accomplished. Anderson is reputed to be one of the most skillful divers in the United States. Commander Davis said:

“I wanted a diver that could, first, locate himself under the water; and, second, handle himself, and I thought that the best was none too good, and that is why X got Anderson.”

His services were absolutely indispensable. It was admitted at the argument that the reasonable value of the Pratt and her cargo was $2,250,000. $25,000 is only l1/9 per cent.- of that value. When the value of the vessel is considered, the impending danger to which it was exposed, the loss from which it was< saved, and the unique character of Anderson’s services, $25,000 is the minimum recompense that should have been awarded to the Merritt & Chapman Company.

When the Philadelphia arrived, about 3:40 in the afternoon, the imminent and impending' danger of the Pratt and her cargo cannot be overstated. She was liable to capsize or buckle any minute, and so far as can be determined the service rendered by the Philadelphia was the'last necessary act which prevented a total loss. Without intending to compare the value of the service rendered by Anderson with the. award for which the Merritt & Chapman Company seem satisfied, and the Philadelphia, we are of the opinion that the award for her services was too small, and that it should have been $25,000.

At the argument we were disturbed by the fact that the Pilot’s association in this case did not have a record adequate for the consideration of a meritorious appeal. It had refused to enter into an agreement with counsel for the appellee to bear an equitable proportion of the expense of printing the record of the trial in the District Court. But since the argument the appellant has paid to the appellee one-half of the cost of printing the record, which in accordance with our statement at and before the hearing, made the record available for both sides.

It follows that the decree in the case of Atlantic Refining Company v. Merritt & Chapman Company is affirmed, with costs; the appeal in the case of Atlantic Refining Company v. Pilots’ Association is dismissed, and the decree in the case of the Pilots’ Association for Bay and River Delaware v. Atlantic Refining Company is reversed and a -decree awarding $25,000 to the appellant will be entered with costs.