Martin, J.
This is an action for money, had and received. The defendant, as owner, and J. W. Brown, as master, of the brig Ceylon, filed their answer and claim, stating that the money claimed was saved at sea, from imminent danger and total loss, by the exertions and assistance of capt. Brown, and that they have a lien thereon for salvage. The district court allowed eight per cent. for salvage, and gave judgment for the balance in favour of the plaintiff; the defendant appealed.
The facts appear by a number of depositions.
Helot deposed, he was passenger on board of le Navigateur, of which the plaintiff was master, which was lost on the 6th of March last, on Chandeleur island s, about 2 a. m.; and he, the other passengers and some sailors, left the wreck at eight o'clock, in the long boat; and about four descried three vessels, among which was the brig Ceylon, on board of which they were received. A sloop, the foremost of the three vessels, appeared to avoid the long boat, while she made for her, but layed-to in [101]*101order to enable the boat to reach her. The boat, from the moment she left the wreck, leaked very much, and they kept one man constantly bailing her, and sometimes two; the sea was rough. After they reached the Ceylon, the weather grew bad, and continued so during the next day. He believes that had they not met the Ceylon, they must inevitably have been lost; the boat, in the opinion of the officer who commanded her, having avoided the shore, lest she should fall on the breakers.
He, and most of his companions, remained on board of the Ceylon, from the 6th to the 20th of March, 9 o'clock A. M., when he left her with some of them, others remaining. When she reached the Balize, the wind grew back, and she broke her cable; and the wind blowing on land, she ran the risk of going ashore.
The deponent, one hour after he got on board of the brig, took notice that the boat in which he came was almost full of water, and three hours after she disappeared. Capt. Brown informed him that when the boat got alongside the brig, she might have reached the Balize in two or three hours.
Hottine, Le Francais and Bressiere, deposed, that they were sailors on board of [102]*102le Navigateur, which was lost near the Chandeleur islands, on the 6th of March last, at 2 A.M.; and after uselessly trying to save her, the people took to the portemanteau and long boat, in order to save themselves; the deponents, mate and passengers, got on board of the latter, and left the wreck at half-past seven A. M. They sailed along the islands, till they were compelled by the apprehension of falling on the breakers, to push off. At four P. M. they saw a sloop at anchor, and two vessels under sail. The sloop soon after sailed in such a direction, as induced the belief that she sought to avoid the long boat; the other vessels approaching, one of them the Ceylon, shortened sail, and afforded the boat the opportunity of reaching her; and the deponents, and their companions, got on board, and the Ceylon continuing her rout, cast anchor about half an hour afterwards, in seven fathoms of water. The Balize was about four miles distant when the boat reached the Ceylon. During the night it blew very fresh from N. E.; and at 10 o’clock P. M., the cable broke, and the Ceylon went adrift. The weather continued bad during the following day, and the deponents believe that had they not met [103]*103with the Ceylon, they could not have reached land before night, and they cannot tell what would have been the consequence. They believe they would have reached the Balize at dark. There were oars and a hawser.
Bribert, Le Villain, Quintin, Robillard and Cavet, deposed, they were passengers on board of le Navigateaur, cast ashore on the Chandeleur islands, on the 6th of March, at 2 A. M.; that after pumping a long while, and endeavouring to save her, they forsook her. The mate, three sailors and the passengers, at half after seven got into the long boat. The passengers could take but a small part of their goods, as 600 lbs. of silver were put on board; the seams of the boat were not well closed, she made water, and one hand was constantly employed in bailing her. They sailed towards the island, but on approaching they were compelled to push off lest they should fall on the breakers. At 4 o'clock they perceived a sloop at anchor, which on seeing the boat, sailed, as if avoiding the boat, which perhaps was mistaken for that of some pirate. There were also two other vessels, one of which the Ceylon, shortened sail to allow the boat to reach her. They got on board at about five; [104]*104the weather was cloudy, and it grew quite dark about one hour after. The anchor was cast about half an hour after the deponents reached the Ceylon, but no land could be seen. During the night the wind freshened, and the Ceylon went adrift. The weather continued bad on the following day. There was neither chart nor light on board the boat, but there was a compass. The captain of the third vessel hailed the Ceylon, and proposed to receive part of the people off the long boat, which the captain of the Ceylon declined, having a sufficiency of provisions. The deponents saw the plaintiff, master of le Navigateur, take a bag of money from the Ceylon. They are ignorant of the amount; from the bulk, they suppose, that if the bag contained silver only, there might be from $11 to 1200. From the condition of the long boat, and the state of the weather during the night, they believe that had not they been taken up, they would have inevitably perished. From the difference of opinion between the mate and one of the sailors on board of the boat, as to the bearing of the Balize, the deponents believe that their information was very incorrect, and they very little knew where they were.
[105]*105B. Brown deposed, that he is the master of the Vigilant; he was sailing for the Balize in company with the Ceylon; at about 4 P. M. he discovered a boat steering about. S. E., the Ceylon, being nearer to her, bore down, as did the Vigilant. The Ceylon soon came up with, and boarded the boat, and when the Vigilant came near, the people of the boat were getting on board of the Ceylon, and he understood they belonged to a French ship, cast away on the Chandeleur islands. In all appearance the boat was in great distress, and the people employed in bailing her. He thinks that when he first discovered her she might be at the distance of fifteen miles from the Balize. The wind had been blowing very fresh in the morning, and the day before, but moderated a little. After the captain of the Ceylon, had taken the people of the boat on board, he hailed the deponent, requesting that he might remain in company till the morning, as he was short of provisions, and might perhaps be able to send some of them on board of the Vigilant. Within half an hour, the wind began to increase and blow very fresh. The sea was running very high, even at the time the boat was taken on board, a fresh gale blew. [106]*106The opinion of the deponent (a very experienced seaman, who has been at sea for seventeen years) is, that the boat could not have survived an hour longer, had she not been received by some vessel. When the boat reached the Ceylon, the land was not to be seen. The weather was dark and cloudy, but even, had it been clear, he believes it was at too great a distance to be seen.
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Martin, J.
This is an action for money, had and received. The defendant, as owner, and J. W. Brown, as master, of the brig Ceylon, filed their answer and claim, stating that the money claimed was saved at sea, from imminent danger and total loss, by the exertions and assistance of capt. Brown, and that they have a lien thereon for salvage. The district court allowed eight per cent. for salvage, and gave judgment for the balance in favour of the plaintiff; the defendant appealed.
The facts appear by a number of depositions.
Helot deposed, he was passenger on board of le Navigateur, of which the plaintiff was master, which was lost on the 6th of March last, on Chandeleur island s, about 2 a. m.; and he, the other passengers and some sailors, left the wreck at eight o'clock, in the long boat; and about four descried three vessels, among which was the brig Ceylon, on board of which they were received. A sloop, the foremost of the three vessels, appeared to avoid the long boat, while she made for her, but layed-to in [101]*101order to enable the boat to reach her. The boat, from the moment she left the wreck, leaked very much, and they kept one man constantly bailing her, and sometimes two; the sea was rough. After they reached the Ceylon, the weather grew bad, and continued so during the next day. He believes that had they not met the Ceylon, they must inevitably have been lost; the boat, in the opinion of the officer who commanded her, having avoided the shore, lest she should fall on the breakers.
He, and most of his companions, remained on board of the Ceylon, from the 6th to the 20th of March, 9 o'clock A. M., when he left her with some of them, others remaining. When she reached the Balize, the wind grew back, and she broke her cable; and the wind blowing on land, she ran the risk of going ashore.
The deponent, one hour after he got on board of the brig, took notice that the boat in which he came was almost full of water, and three hours after she disappeared. Capt. Brown informed him that when the boat got alongside the brig, she might have reached the Balize in two or three hours.
Hottine, Le Francais and Bressiere, deposed, that they were sailors on board of [102]*102le Navigateur, which was lost near the Chandeleur islands, on the 6th of March last, at 2 A.M.; and after uselessly trying to save her, the people took to the portemanteau and long boat, in order to save themselves; the deponents, mate and passengers, got on board of the latter, and left the wreck at half-past seven A. M. They sailed along the islands, till they were compelled by the apprehension of falling on the breakers, to push off. At four P. M. they saw a sloop at anchor, and two vessels under sail. The sloop soon after sailed in such a direction, as induced the belief that she sought to avoid the long boat; the other vessels approaching, one of them the Ceylon, shortened sail, and afforded the boat the opportunity of reaching her; and the deponents, and their companions, got on board, and the Ceylon continuing her rout, cast anchor about half an hour afterwards, in seven fathoms of water. The Balize was about four miles distant when the boat reached the Ceylon. During the night it blew very fresh from N. E.; and at 10 o’clock P. M., the cable broke, and the Ceylon went adrift. The weather continued bad during the following day, and the deponents believe that had they not met [103]*103with the Ceylon, they could not have reached land before night, and they cannot tell what would have been the consequence. They believe they would have reached the Balize at dark. There were oars and a hawser.
Bribert, Le Villain, Quintin, Robillard and Cavet, deposed, they were passengers on board of le Navigateaur, cast ashore on the Chandeleur islands, on the 6th of March, at 2 A. M.; that after pumping a long while, and endeavouring to save her, they forsook her. The mate, three sailors and the passengers, at half after seven got into the long boat. The passengers could take but a small part of their goods, as 600 lbs. of silver were put on board; the seams of the boat were not well closed, she made water, and one hand was constantly employed in bailing her. They sailed towards the island, but on approaching they were compelled to push off lest they should fall on the breakers. At 4 o'clock they perceived a sloop at anchor, which on seeing the boat, sailed, as if avoiding the boat, which perhaps was mistaken for that of some pirate. There were also two other vessels, one of which the Ceylon, shortened sail to allow the boat to reach her. They got on board at about five; [104]*104the weather was cloudy, and it grew quite dark about one hour after. The anchor was cast about half an hour after the deponents reached the Ceylon, but no land could be seen. During the night the wind freshened, and the Ceylon went adrift. The weather continued bad on the following day. There was neither chart nor light on board the boat, but there was a compass. The captain of the third vessel hailed the Ceylon, and proposed to receive part of the people off the long boat, which the captain of the Ceylon declined, having a sufficiency of provisions. The deponents saw the plaintiff, master of le Navigateur, take a bag of money from the Ceylon. They are ignorant of the amount; from the bulk, they suppose, that if the bag contained silver only, there might be from $11 to 1200. From the condition of the long boat, and the state of the weather during the night, they believe that had not they been taken up, they would have inevitably perished. From the difference of opinion between the mate and one of the sailors on board of the boat, as to the bearing of the Balize, the deponents believe that their information was very incorrect, and they very little knew where they were.
[105]*105B. Brown deposed, that he is the master of the Vigilant; he was sailing for the Balize in company with the Ceylon; at about 4 P. M. he discovered a boat steering about. S. E., the Ceylon, being nearer to her, bore down, as did the Vigilant. The Ceylon soon came up with, and boarded the boat, and when the Vigilant came near, the people of the boat were getting on board of the Ceylon, and he understood they belonged to a French ship, cast away on the Chandeleur islands. In all appearance the boat was in great distress, and the people employed in bailing her. He thinks that when he first discovered her she might be at the distance of fifteen miles from the Balize. The wind had been blowing very fresh in the morning, and the day before, but moderated a little. After the captain of the Ceylon, had taken the people of the boat on board, he hailed the deponent, requesting that he might remain in company till the morning, as he was short of provisions, and might perhaps be able to send some of them on board of the Vigilant. Within half an hour, the wind began to increase and blow very fresh. The sea was running very high, even at the time the boat was taken on board, a fresh gale blew. [106]*106The opinion of the deponent (a very experienced seaman, who has been at sea for seventeen years) is, that the boat could not have survived an hour longer, had she not been received by some vessel. When the boat reached the Ceylon, the land was not to be seen. The weather was dark and cloudy, but even, had it been clear, he believes it was at too great a distance to be seen. After having run about eight hours from the time of meeting the boat, the deponent fell in with a schooner, from which he learned that they had seen land that afternoon, and that they judged the light-house to bear S. E. and by S. The deponent had been running an hour and a quarter to make these eight miles, and have about to inform the captain of the Ceylon of what the schooner said. They agreed to come to an anchor. The wind kept increasing all the time, and during the night blew an extraordinary gale. It was so strong during the night that the deponent was obliged to pay about seventy-five fathoms of cable to his anchor, and still dragged it, and from thirteen fathoms he drifted into live. There was a current setting out, which broke up a sea over the deponent's vessel: not having a single man [107]*107dry on board. The boat of the le Navigateur would not have lived five minutes in that sea, and from the course she was steering, when she was picked up, she must have gone into it. The gale still continued on the following day. The deponent remained at anchor during the night, so did the Ceylon, at the distance of three quarters of a mile; on the morning of the 8th, the deponent set sail with the Ceylon, to get into the Balize. The wind was so strong, that the pilot could not come out, and both vessels were driven to sea. The deponent remained out six or seven days, and came to anchor inside of the Balize, the same day as the Ceylon, viz. on the 19th, having remained some days at anchor outside of the bar. As the deponent was bearing for the boat, he met with a sloop, which had been laying at anchor, and was making sail. He heard from her, that she had not dared to board the boat, being afraid the people were pirates, although stated to have been cast away. About the time he was speaking to the sloop, the Ceylon was bearing to for the boat. He has been a regular trader out of this port since 1817; at the time the boat was picked up, he had not had a good observation for [108]*108four days, and did not know where he was, owing to the cloudiness of the weather.
On his cross-examination, deponent said his ship’s company consisted of seven, including himself and a boy. The Ceylon may be a brig of about 120 tons, he knows not what was the number of her crew. When he first descried the boat from his fore-yard, he took her to be the light-house; the weather was hazy, and he thinks he was about four miles from her. The boat was making sail towards the Ceylon, which bore down upon her. He perceived the distress of the boat, when he came up with the Ceylon, along side of which she then was. He inferred her distress from the number of persons on board, and the quantity of baggage passing on board of the Ceylon, and the bailing of the boat; she had one or two sails, but he saw no oar, and thinks from the quantity of people on board, none could be used. The Ceylon was detained a quarter or half an hour in taking on board the contents of the boat, and she came to an anchor that night, on account of the shortness of her provisions, as the captain stated, and in hope of being able the next morning to send some of the people on board of the Vigilant. [109]*109A wish to assist the Ceylon in that object, induced the deponent to come to an anchor that night, which, in the deponent’s opinion, was a deviation from the voyage. It was about six P. M. when both vessels came to an anchor.
The deponent thinks they must have been about eight miles from the nearest land, when the boat was picked up, and he believes they were sailing at the rate of five miles an hour.
Hallowells deposed, he was a passenger, and acted as master on board of the Ceylon; about 4 P. M. of the 7th of March last, they discovered a boat, about fifteen miles from land, which was making signals, they stood towards her, and took the people on board. They proved to be the passengers, and part of the crew of the French brig le Navigateur, wrecked on the Chandeleur islands; that at the time they received the people on board, the weather was thick and rainy, and land was not in sight. In the course of the night it came on to blow a violent gale of wind, and the deponent is certain that the boat could not have lived after the men were picked up. The Ceylon parted her cable that night in the gale, which continued three or four days. From the nature of the coast, or the direction [110]*110in which the boat was sailing, even if they had reached the shore, they could not have saved themselves. The boat had a compass on board, but the glass was broke so as to render it nearly useless. The Ceylon was short of provisions at the time they received the crew of the boat, and was obliged to purchase before she reached the port; she was eighteen days from New-York. The people of the boat were fed by the captain of the Ceylon, while they were on board of her. The deponent judges that when they took up the boat, the Ceylon was sailing S. W. by W. The passengers of the boat said, at the time they were taken up, they did not know where they were going. The wind was N. E., the boat was veered astern of the Ceylon, by a hawser, and sunk that night in the gale. The light-house at the Balize is two leagues from the sea.
M‘Clintock deposed, that on the 6th or 7th of March, he was in the schooner Caroline, which he commanded, standing in for the Balize; at night it came on to blow a violent gale of wind, which considerably damaged his sails. He does not think that a long boat could have lived in the gale, and even if she [111]*111had been driven ashore, she must have been stove, and the persons on board must have perished. In standing in for the land, the deponent spoke two vessels, one of them a brig, having a large boat in tow. They inquired of him where they were, and the deponent having made the land, directed them as to the course they should steer, to the best of his judgment, as he was not certain himself. The weather had been thick for two days before, and he had not been able to take an observation.
This concluded the testimony for the defendant and appellee.
Heuze deposed, he was mate on board of the French brig le Navigateur, lost on the 6th of March, on Chandeleur islands, and took the command of the long boat, in which all the passengers, five sailors, and a raw hand, embarked. She was provided with two suits of sail, five oars, one of which was used as a mast, caulking irons, tar and every thing necessary to repair her, in case of accident; two anchors, fifty fathoms of three inch rope, entirely new, and half a piece, or sixty fathoms of string, new also; twelve gallons of water, half a barrel biscuit, a whole cheese, twenty [112]*112bottles of wine, a compass and a sextant.— A barrel, four boxes and nine bags of money were put on board. The boat left the wreck about 8 A. M., the weather was fair, and the sea calm, the wind at N. He steered S. W. till about 2 P. M., then alternately S. and S. W.; at about half after three he descried a sloop at anchor, and steered for her, i. e. S.S.E.; when the boat was within a quarter of a league from her, she started, in order to avoid the boat. The deponent finding himself unable to overtake her, lay-to for two vessels which were behind, sailing towards him, with a fair wind; one of them, a brig, passed within hail without stopping: the deponent made a signal of distress, and she shortened sail in order to enable the deponent to reach her. He did so in ten minutes, and found her to be the Ceylon of New-York, the master of which consented to receive the people and contents of the boat, and took the money under his care. He was informed by the master, that the Balize was, according to his reckoning, four miles distant. The Ceylon continued her rout till about 5 o'clock, when she cast anchor in eight or nine fathoms. The wind rose during the night and she parted her cable. The [113]*113master appeared uneasy on account of the vicinity of the land, and sailed off and on. In the moment the deponent saw the light-house of the Balize, at the distance of half an hours sail. The wind having changed, the Ceylon could not enter the river, and put to sea, where a calm retained her for several days, so that she did not reach the bar before the fourth day. He cast anchor, and entered only four days after. The deponent is a stranger to the country, and never sailed in these seas. The glass of the compass was broke when the boat reached the Ceylon, but might still be used. There were in all twenty-one persons in the boat. The deponent is master of the vessel, twenty-five years of age, and navigator since he was nine years old; he has no doubt, that he would have reached the land before night, had he not met the Ceylon, as the boat, went at the rate of four knots an hour.
He knew what course he ought to have taken from the Chandeleur islands, to reach the land, it was S. S. W .; when they were taken up by the Ceylon, it was fine weather. He made no allowance for the current, thinking the distance too short to require any. He considered he was about two leagues from the land. [114]*114He had not seen it for two hours, but had followed it. The land he had seen two hours before was Chandeleur islands, and Grand Gozier.
Dumont deposed, that he was lieutenant on board of le Navigateur, and left her with the captain, in the small boat, about 10 o’clock. There were about eight persons in this boat, and it had but one seat. They landed at about 6 P. M., on Breton island, distant about ten leagues from the wreck. They passed the night there. The small boat was deeper loaded than the long one, and had only six inches out of water, while the long boat had a foot at least. The weather was bad when they landed, and the sea grew high soon after they entered the river, at Plaquemine. On board of the long boat there were two persons acquainted with the coast.
Thimothy Dawes deposed, he has been at sea thirty years. A compass in an open boat, with the glass broke, in stormy weather, is unfit for navigation.
The quantum of salvage is, in every case, left to the discretion of the court, and in the present, it does not appear to me that the district judge exercised his improperly. The judgment should be affirmed.
Moreau for the plaintiff, Carleton for the defendant.