STORY, Circuit Justice.
This is the case of a libel in rem for salvage of a part of the cargo of the ship Mercury of Boston, which was sunk on a reef called Pollock Rip, near Monomoy Point, at the extreme of Cape Cod, in -February, 1837. The libel asserts the salvage service to have been performed by the libellants, in recovering the copper now in controversy, under the express or implied sanction of the claimants, between the 24th of May, 1840, and the 9th of June following. The general outline of the leading facts is accurately stated by the learned district judge in his opinion in the case; and to that I gladly refer. The cause has been very ably and elaborately argued in this court, both upon the general topics of law and fact, and the more exact and minute details of fact belonging to the salvage service. In the view, which I take of the matter, it becomes unnecessary for me to advert to many, and indeed to most of these topics and details, because it seems to me, that the merits of the case, so far as the same are now proper for the consideration of this court, lie in a narrow compass, and, although very properly examined and considered by the learned district judge, are not necessary to be here reviewed.
It is well known, that in salvage cases the appellate courts of the United States, sit-r ting in admiralty, are not disposed to encourage appeals upon light or frivolous grounds, nor, indeed, in any case, except where there has been some plain, dear, and determinate mistake of law or fact, which has led to an erroneous and extravagant diminution or increase of salvage, beyond what the circumstances manifestly justify. The allowance of salvage rests in the exercise of the sound discretion of the court; and it would be most mischievous to the interests of all concerned, and would encourage protracted litigation, and in some cases ruinous expenses to the parties, if, where that discretion is fairly and reasonably exercised, the appellate court should entertain jurisdiction; and because it might not originally have arrived at exactly the same conclusion, as to the rate of salvage, in the exercise of its .own discretion, therefore it should reverse the decree of the inferior court. If there ever can be any class of cases, to which the doctrine most emphatically applies, interest reipublicae, ut finis sit litium, that of salvage constitutes the class. The merits of such services rarely admit of any definite and exact computation; and it would be delivering over the whole subject to interminable doubts, to encourage the efforts of the parties to gauge the discretion of different courts, and to run a race for victory upon the chances of the possible differences of judicial opinion, necessarily connected with the accidental views, or the complexional habits of thought of different minds. In matters of mere discretion, the mind of man must ever be varium et muta-bile. It is on this account, that it has become a general rule, I had almost said a fixed law, of our appellate courts, sitting in admiralty, not to change the decree of the court below, unless there is an exceedingly strong case made out of an abuse or palpable mistake in the exercise of its discretion in the decree of salvage.
Having made these preliminary remarks, [1196]*1196my duty then is to ascertain, whether there has been, in the salvage awarded bjr the present decree, any such palpable mistake; for there is no pretence to suggest, that there has been any abuse in the exercise of the discretion of the court. And here the case, in the aspect, which it has assumed at the argument in this court, is reduced to the narrower consideration; whether the salvage ought to be one moiety, or one third of the net proceeds. The learned counsel for the appellants have not contended against the allowance of one third, but have candidly admitted, that they shall make no struggle in opposition to it. In looking at the facts of the present case, we at once see, that it is one of the few and excepted cases, in which there may be a private contract, fixing the rate of salvage, which will be, and ought to be, obligatory between the parties. The situation of the parties, the nature of the service, and the absence of all controlling necessities, requiring immediate relief, on one side, at any expense and hazard, in order to escape from impending perils and calamities; and on the other side, the absence of any duty to lend the required assistance, or any motive to take advantage of the necessities and urgencies of those perils and calamities, to drive a hard and unconscionable bargain; these circumstances make it a case, where the court not only looks with indulgence upon such a contract, but endeavours to fortify itself against the exercise of mere discretion, by adopting and enforcing such a contract, as equally just, moral, and conscientious.
Now, in respect to the salvage service, here in controversy, there is not, in my judgment, any ground to assert, that any fixed or definite contract for the. service existed between the parties, as did exist in relation to other similar salvage services about the same property at prior periods between these salvors and other independent salvors. These latter contracts cannot, then, furnish a positive rule for the exercise of the discretion of the court upon the present occasion. They may furnish auxiliary grounds to assist the judgment of'the court, as to what the parties thought, at different periods, was a fair allowance for services of the like sort; but they cannot properly control or ■direct its judgment, since the circumstances might not, in all respects, be the same; or the parties may, upon a more exact review, have changed their opinion as to the relative value and difficulty of the service.
The present salvage was begun about the 24th of May, 1840, (the particular day is not very material,) under the sanction of the •claimants. As soon as it was made known to the latter, they at once promptly replied, and informed the salvors, that they should be willing to give one third of the value of all the property saved. This offer was not {as I think the fair result of the evidence shows) accepted; but it was deemed by the salvors too low. Still the salvors went on with their service, with the acquiescence of the agent of the claimants, expecting, without doubt, that subsequent negotiations would lead to an ultimate increase of the salvage. On the 7th of June following, the salvors were definitely informed, that no more than one third would be allowed, and that if they did not accede to the proposal, they might quit the service, and the enterprise would be carried on by others. The salvors refused to accept the proposal, and left the employment, and never afterwards resumed it. Their present claim is, therefore, limited to the mere question of a quantum meruit; there being no specific contract to regulate it. They certainly had a right to decline the offer of one third; and, on the other hand, the claimants had an equal right to refuse any increase thereof. The court is driven to the necessity of deciding, what is the proper allowance; not, indeed, upon the footing of a mere quantum meruit for labor, and services, upon the dry principles of the common law, but upon the footing of a quantum meruit, upon the enlarged principles and policy of maritime jurisprudence in salvage causes, where many other 'ingredients enter into the question. Many of these ingredients were adverted to by this court, in the case of The Emulous, [Case No.
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STORY, Circuit Justice.
This is the case of a libel in rem for salvage of a part of the cargo of the ship Mercury of Boston, which was sunk on a reef called Pollock Rip, near Monomoy Point, at the extreme of Cape Cod, in -February, 1837. The libel asserts the salvage service to have been performed by the libellants, in recovering the copper now in controversy, under the express or implied sanction of the claimants, between the 24th of May, 1840, and the 9th of June following. The general outline of the leading facts is accurately stated by the learned district judge in his opinion in the case; and to that I gladly refer. The cause has been very ably and elaborately argued in this court, both upon the general topics of law and fact, and the more exact and minute details of fact belonging to the salvage service. In the view, which I take of the matter, it becomes unnecessary for me to advert to many, and indeed to most of these topics and details, because it seems to me, that the merits of the case, so far as the same are now proper for the consideration of this court, lie in a narrow compass, and, although very properly examined and considered by the learned district judge, are not necessary to be here reviewed.
It is well known, that in salvage cases the appellate courts of the United States, sit-r ting in admiralty, are not disposed to encourage appeals upon light or frivolous grounds, nor, indeed, in any case, except where there has been some plain, dear, and determinate mistake of law or fact, which has led to an erroneous and extravagant diminution or increase of salvage, beyond what the circumstances manifestly justify. The allowance of salvage rests in the exercise of the sound discretion of the court; and it would be most mischievous to the interests of all concerned, and would encourage protracted litigation, and in some cases ruinous expenses to the parties, if, where that discretion is fairly and reasonably exercised, the appellate court should entertain jurisdiction; and because it might not originally have arrived at exactly the same conclusion, as to the rate of salvage, in the exercise of its .own discretion, therefore it should reverse the decree of the inferior court. If there ever can be any class of cases, to which the doctrine most emphatically applies, interest reipublicae, ut finis sit litium, that of salvage constitutes the class. The merits of such services rarely admit of any definite and exact computation; and it would be delivering over the whole subject to interminable doubts, to encourage the efforts of the parties to gauge the discretion of different courts, and to run a race for victory upon the chances of the possible differences of judicial opinion, necessarily connected with the accidental views, or the complexional habits of thought of different minds. In matters of mere discretion, the mind of man must ever be varium et muta-bile. It is on this account, that it has become a general rule, I had almost said a fixed law, of our appellate courts, sitting in admiralty, not to change the decree of the court below, unless there is an exceedingly strong case made out of an abuse or palpable mistake in the exercise of its discretion in the decree of salvage.
Having made these preliminary remarks, [1196]*1196my duty then is to ascertain, whether there has been, in the salvage awarded bjr the present decree, any such palpable mistake; for there is no pretence to suggest, that there has been any abuse in the exercise of the discretion of the court. And here the case, in the aspect, which it has assumed at the argument in this court, is reduced to the narrower consideration; whether the salvage ought to be one moiety, or one third of the net proceeds. The learned counsel for the appellants have not contended against the allowance of one third, but have candidly admitted, that they shall make no struggle in opposition to it. In looking at the facts of the present case, we at once see, that it is one of the few and excepted cases, in which there may be a private contract, fixing the rate of salvage, which will be, and ought to be, obligatory between the parties. The situation of the parties, the nature of the service, and the absence of all controlling necessities, requiring immediate relief, on one side, at any expense and hazard, in order to escape from impending perils and calamities; and on the other side, the absence of any duty to lend the required assistance, or any motive to take advantage of the necessities and urgencies of those perils and calamities, to drive a hard and unconscionable bargain; these circumstances make it a case, where the court not only looks with indulgence upon such a contract, but endeavours to fortify itself against the exercise of mere discretion, by adopting and enforcing such a contract, as equally just, moral, and conscientious.
Now, in respect to the salvage service, here in controversy, there is not, in my judgment, any ground to assert, that any fixed or definite contract for the. service existed between the parties, as did exist in relation to other similar salvage services about the same property at prior periods between these salvors and other independent salvors. These latter contracts cannot, then, furnish a positive rule for the exercise of the discretion of the court upon the present occasion. They may furnish auxiliary grounds to assist the judgment of'the court, as to what the parties thought, at different periods, was a fair allowance for services of the like sort; but they cannot properly control or ■direct its judgment, since the circumstances might not, in all respects, be the same; or the parties may, upon a more exact review, have changed their opinion as to the relative value and difficulty of the service.
The present salvage was begun about the 24th of May, 1840, (the particular day is not very material,) under the sanction of the •claimants. As soon as it was made known to the latter, they at once promptly replied, and informed the salvors, that they should be willing to give one third of the value of all the property saved. This offer was not {as I think the fair result of the evidence shows) accepted; but it was deemed by the salvors too low. Still the salvors went on with their service, with the acquiescence of the agent of the claimants, expecting, without doubt, that subsequent negotiations would lead to an ultimate increase of the salvage. On the 7th of June following, the salvors were definitely informed, that no more than one third would be allowed, and that if they did not accede to the proposal, they might quit the service, and the enterprise would be carried on by others. The salvors refused to accept the proposal, and left the employment, and never afterwards resumed it. Their present claim is, therefore, limited to the mere question of a quantum meruit; there being no specific contract to regulate it. They certainly had a right to decline the offer of one third; and, on the other hand, the claimants had an equal right to refuse any increase thereof. The court is driven to the necessity of deciding, what is the proper allowance; not, indeed, upon the footing of a mere quantum meruit for labor, and services, upon the dry principles of the common law, but upon the footing of a quantum meruit, upon the enlarged principles and policy of maritime jurisprudence in salvage causes, where many other 'ingredients enter into the question. Many of these ingredients were adverted to by this court, in the case of The Emulous, [Case No. 4,480.] To which ought to be added, the maritime policy of making the allowance liberal, in order to secure fidelity, honesty, and activity in the service, and to cut off the strong temptations to private plunder and embezzlement, in order to make up any supposed deficiency of compensation under the ordinary principles of the common law.
In a general sense, the highest compensation, which courts of admiralty are in the habit of awarding, in the most meritorious cases, is one moiety. There are exceptions, indeed; but they are, where the property saved is verj inconsiderable, and the gallantry, and danger, and difficulty of the service have been so great, as seemed to require an extraordinary compensation, hardly to be measured in value. But except in such peculiar cases, a moiety has rarely been exceeded. See The Jonge Bastiaan, 5 C. Rob. Adm. 322, where two thirds of the value was given. But there it was a case of derelict, and of great peril and extraordinary merit in performing the service, and the property saved was not large. And, indeed, even a moiety has rarely been given, except in cases of derelict. See The Aquila, 1 C. Rob. Adm. 37, 43-46. The present case, certainly, does not fall within that predicament. The property has never been treated either by the owners or by the salvors as derelict; but all operations respecting it have been constantly under the advice, sanction, and superintendence of the owners, who have in the strictest sense asserted, as they had a right to assert, a continual claim over it. We may, therefore, at once dismiss all considera[1197]*1197tion of it either as a case of derelict or of quasi derelict.
I agree, that in the present case, the onus probandi is on the appellants to displace the allowance of the moiety by the district court, by some clear and important grounds of mistake in the application of the facts or principles of law. But when the allowance is the highest rate, which is usually allowed in the most favored cases, it seems to me, that the facts ought to show, that the case in judgment belongs to that category. If the ease were one standing upon a fixed private contract, it would be wholly unnecessary to look to such considerations. But if the highest reward in ordinary cases is given, the court ought to see, that that reward was fairly earned by services, to which it is ufod-erly and usually applied; that is, to cases of extraordinary peril, or suffering, or gallantry, or long and continued services of an excessively exhausting and pressing nature. It is not enough to say, that the parties contracted at 'another period, and then estimated the value of the like services at the same high rate. If it were admitted, (and it has been denied at the argument,) that the circumstances were essentially the same, that fact would not govern the present case; because, the parties in matters of contract may agree according to their pleasure, and after-wards vary the same at their pleasure. If, in dealing with the same or with different salvors at one time, they estimate the value of the salvage services to be rendered at 27% per cent, of the value of the property, at another time at 50 per cent., and at another time at 75 per cent.; and at the time, when other and new salvage services are required, at 33 per cent., it is not necessary or a natural inference, that the higher sums approach more nearly to a just equivalent for them, than the intermediate sums. And, if the local position of the property is such, that it is liable to be buried up in the shifting sands of a reef, exposed to the whole storms of the ocean, which sands are several feet deeper at some times than at others, it is very obvious, that a sensible change of circumstances, as to the depth of the sands, might induce the belief, that the enterprise of rescuing the property would be far more laborious and uncertain, and worth far more at the unfavorable, than at the favorable periods. There is, also, great difficulty in affirming in cases of this sort, that, at distant intervals of time, all the circumstances are treated by both parties, as precisely in their substance similar, throughout. Many ingredients of despondency or hope, of active preparation, or languid effort, may vary the judgment of the owners at different times, even if there be no essential change in the local state of the property. There was much ground for fluctuation of opinion on this point, on the part of the owners, since the property was, as has been forcibly stated by the district judge, adopting the language of Loccenius, always treated by them, not as derelict, but as submerged, non in derelicto, sed in deperdito.
It appears to me, then, that the court is not at liberty to adopt the rate of salvage, fixed in the prior contracts, as a positive or controlling rule, but merely to examine them as adminicular circumstances, to assist its own judgment. With the greatest deference for the learning and ability of the district judge, 1 cannot but think, that these prior contracts had too controlling an influence over his judgment. As I understand his opinion, but for these prior contracts, he would have been satisfied with awarding the sum of two fifths of the value of the copper to the salvors, not, indeed, as an exercise of what Oleirae denominates judicium rustieum (although I am far from thinking that such a rule may not in some eases be properly resorted to); but as an apportionment, just and equitable, under the circumstances of the present case, and not unfrequently awarded in admiralty suits for salvage. If he had done so, I confess, that I should have seen no reason to complain of his decree, and should have declined to interfere with it.
But the allowance of a moiety certainly stands upon a different footing; and, as has been already stated, is rarely awarded, except in cases of extraordinary peril, difficulty, and distress. Do any circumstances of that sort constitute ingredients in the present cause? It appears to me, that they do not. There was, in fact, no uncommon peril, or exposure, or difficulty in this salvage service. There was no hazard of life; no storms were encountered; and no excessive and exhausting labors, which either endangered health, or required unceasing nocturnal vigilance, and abstinence from rest. The season was mild; and if the weather became boisterous, there was a safe and easy retreat to the main shore, within three or four miles. I do not mean to say, that the labor and services bestowed were of an ordinary sort, and merely such as might be commanded by the common daily pay in nautical business. Bar from it. They were of a much higher character, and are entitled to a more ample reward. The owners offered one third; the salvors demanded at least a moiety. It was clearly not a very tempting employment; for the salvors rejected the one third, and quitted it. The salvors, who succeeded them in the enterprise, under the auspices of the owners, were in effect paid one third; the crew of one of the salvor’s vessels receiving that rate from the beginning, by contract; and the crew of the other salvor’s vessel being at first hired upon daily wages, but, becoming dissatisfied with that compensation, they were after-wards allowed at the same rate. So, that I think, that I am at liberty to presume, that this was the lowest rate, at which any suitable persons could be hired to perform the like service. Indeed, I understand, from the argument, that under the contract of Davis [1198]*1198and others with the owners, for which they were to receive 75 per cent., in consequence of the greater depth, at which the other copper lay in and about the bottom of the vessel, these latter salvors did not, in fact, taking into consideration the length of time, which they were employed, and the quantity of copper, which they saved, receive a proportionate compensation approaching to that, which the libellants would receive, by a salvage of one third. I do not, however, dwell on this; because, being performed under a special contract for a more protracted service, Davis and others must take it for better or for worse. The events might have turned up in their favor; and then they would have received a much larger compensation. It is said, that, when the owners offered the one third, they did so, because they expected, that the libellants, if they accepted it, would continue in the service, as long as it could be useful, or should be required. But no such terms were contained in the stipulation; and, indeed, the offer was manifestly of one third, so long as they should choose to remain in the employment. It was one third of what they should save, without any condition as to the length of time, or the extent of labor, or the amount of the property saved. In this respect all the other contracts with the libellants, (as well as this offer,) may perhaps be properly distinguishable from the contract with Davis and others, who certainly engaged for some positive efforts, and incurred some expenses, to accomplish the object, although they were not bound to continue those efforts for any certain length of time. But the contract of Davis and others cannot, as has been already suggested, govern the present claim, even though it may have turned out to be a losing or inadequate bargain; since we are not to judge of this salvage service by after events, in which other salvors were concerned.
The view, then, that I take of the case is this, that the former contracts may, in a great measure, be laid out of the case, at least, so far as they' are supposed to furnish any positive rule for decision. In this respect I am compelled to come to a different conclusion from the district judge; and, as this seems to have formed the very foundation of his decree, I feel myself, with whatever reluctance, bound to state, that it is not maintainable. I cannot think, that the facts of the present ease, calling for the exercise of the sound discretion of the court, would justify me in the allowance of one moiety; since that would be to award the highest compensation, given only under extraordinary circumstances, to a case, where no such circumstances are presented. On the other hand the proffered allowance of one third was in the present case treated as a suitable, but at the same time, as a strict measure of compensation by the owners, and does not exceed, what they gave to others, and, indeed, to strangers. Now, it seems to me, that the libellants are entitled to a more favorable consideration, because they were employed, from time to time, during a considerable portion of two years, to watch the shifting state of the property, and to communicate to the owners whatever favorable changes might take place. They undertook, and they performed this duty; and, in my judgment, with entire fidelity to the interests of the owners; and they have received no distinct compensation therefor. They were the first to ascertain, and to communicate to the owners, the favorable change of the state of the property in May, 1840; and they promptly availed themselves of the opportunity of engaging in the service, without waiting for the results of a tardy negotiation for compensation. Under such circumstances, it appears to me, that they are fairly entitled to a more favorable consideration from the owners than others, who came in at a later hour, and had bestowed no like watchfulness and effort. It is somewhat of a stern and harsh exercise of right by the owners, to put aside the claims of persons, who have been prompt to communicate intelligence, and to act with spirit for thSir interests, and to deal with them with the-cold and reluctant caution of a bargain with mere strangers. I think, that the owners were bound to make a more liberal allowance, than one third, on account of these peculiar merits of the libellants. The sum of two fifths, which the district judge thought reasonable, independent of any contract, appears to me to reach the true equities of the case, not as a judicium rusticum, but as a just estimate of the aggregate merits of the libellants in the present case, under all the circumstances. I shall, therefore, reverse the decree of the district court, as to the allowance of a moiety, and shall allow two fifths of the net proceeds, as salvage to the libel-lants. The costs of the appeal ought, in my judgment, to be borne as a common charge on the whole property saved.