KING, Circuit Judge.
This cáse arises on a libel filed by Leopold Falk, chief engineer and a member of the crew of the tug Gorgona, in behalf of himself, the captain, and crew of said tug, against the United States Shipping Board Emergency Fleet Corporation and the steamship Olockson and its cargo, to recover as salvors for saving said steamship and cargo. Said steamship Olockson was a merchant vessel, the property of the United States, controlled by the United States Shipping Board Emergency Fleet Corporation, and being operated by [692]*692the Barber Steamship Lines, Incorporated. ' The ves'sel was claimed by said Shipping Board, and the cargo by the master of the Olockson as agent of the owners. The libel proceeded against the Shipping Board on the principles of a libel in rem, but seeking relief in personam under the provisions of the Act of Congress of March 9, 1920 (41 Stat. 525, 527), so permitting. The value of the cargo was agreed to be $178,000, and was released on bond.
[1] The tug Gorgona belongs to the United States as property of the Panama Canal, and is used in the assistance of vessels passing through the same, when in need, for compensation usually agreed on. ■Her usual compensation was $25 per hour for towing service. Said vessel Olockson, with a cargo of ga'soline and rails, bound for the Orient, after passing through the Panama Canal, was reported by wireless to be on fire by the captain of the United States cruiser Tacoma, which had her crew aboard. He also reported that he considered it unsafe to tow the Olockson with the Tacoma. The Olockson was reported to be 120 miles west of Panama and 24 miles southwest of Cape Malo. The tug Gorgona, of the Panama Canal, was sent to her assistance. On leaving thé port of Balboa, her master was given positive orders by. Marine Superintendent Sargent not to attempt to round Cape Malo with the Olockson. Rounding this cape was necessary to bring the Olockson to Balboa.- The only alternative was to tow her to shoal water and sink her, out of the path of commerce. The master and crew of the Olockson had abandoned her, and the master refused to order any one to go aboard to fix a towline. He thought she should be shelled and sunk, and had requested authority for the Tacoma to do this from the naval authorities. The captain of the Tacoma refused to shell the Olockson without such authority.
' The master of the tug was unwilling to order any of his crew aboard the burning Olockson, in order to make fast a towline. Hbwever, he maneuvered the Gorgona to windward of the Olockson and in touch with her, when two of the tug’s crew, of their own volition, without orders, sprang on board the Olockson and made fast a towline. The master of the tug Gorgona then of his own initiative sought permission by wireless, through the captain of the cruiser, to attempt to tow the Olockson, still on fire, to Balboa, where she couid be saved. He finally secured permission to use his discretion to carry out any request made by the master of the Olockson as to disposition of that vessel.
Prom the evidence it would 'seem that the idea of making salvage of the vessel or cargo originated with, and was due to, Capt. Howard, the master of the tug, and was accepted finally by the master of the Olockson, who. then requested it, and that the towage, and finally the salvage, was rendered possible by the gallantry of the two members of the tug’s crew, who acted on their own initiative after the crew of the vessel in peril had refused to do anything. Before this, the idea of every one seemed to have been the destruction of the vessel, in such a way as to prevent' her becoming a menace to commerce, and the necessary total loss of the cargo. The orders given by the marine superintendent did not contemplate towing the vessel to port, and his consent to withdraw his order not to round Cape Malo was due to the initiative [693]*693and request of the tug’s master, which the voluntary gallantry of the two members of her crew rendered possible.
In withdrawing this prohibition, the marine superintendent did not continue to direct the movements of the tug or its crew; he did not order that they should carry out the requests of the master of the Olockson; he committed to the discretion of the master of the tug, Capt. Howard, the entire responsibility for, and power to direct, the conduct of the Gorgona in this regard. After that the actions of the Gorgona and her crew were apparently undertaken by Capt. Howard on his own responsibility. Had he, in the exercise of this discretion, refused to tow the Olockson, he could have properly done so. If he improperly towed her and endangered the tug, it would have been his default, and not the carrying out of the orders of another.
[2] It is insisted that the Gorgona was proceeding to the assistance of the Olockson under an express contract fixing the compensation to be paid for all services of herself and crew. Upon the news of her condition being received, an official of the Panama Agencies, which company, as local agents, handled all Shipping Board vessels, called up the marine superintendent of the Canal and asked him to send the tug Gorgona to the assistance of the Olockson. There is some evidence that this official of the Panama Agencies said to the superintendent, “I suppose this will be $25,” and asked said superintendent whether there would be any salvage in the matter; the superintendent replying that as far as he was concerned he did not see there was. It was stated this was an off-hand inquiry, made jocularly and a laughing reply. The burden is on the vessel’s owner to prove a contract fixing the amount of salvage. 35 Cyc. 758.
Here there appears to have been no definite contract, except the statement of the marine superintendent that, so far as he was concerned, the usual charge of $25 per hour would be sufficient,1 and he would ask no salvage. While this might fix the compensation for the use of the tug for towage service, we do not think it amounted to a contract which would exclude the claim made by the crew in this case.
Even if it be conceded that the tug was sent out under an engagement for a fixed compensation, it would seem that the service which her master and crew rendered was far more than, and was different from what, was originally intended. When the Gorgona reached the Olockson, it found that, instead of being expected to aid that vessel, the vessel had been abandoned by her master and crew; that, instead of being called on to tow the vessel, her master and crew refused to take the steps necessary to tow her, and abandoned all efforts to save her to the tug and her crew. The situation thus existing was entirely different from the aid afforded by a tug to a disabled vessel, and. became one of saving an abandoned vessel.
“The true criterion by which it is to be ascertained whether the towing vessel has become a salvor is whether the supervening circumstances were such as to justify her in'abandoning the towage contract. Thus, an engagement to tow embraces the risk of ordinary weather only; and so, where a violent hurricane arises, so as to justify a tug in abandoning the contract, and she at great peril to herself continues to tow the vessel during the hurricane without interruption, though taking longer, prevents the vessel drifting upon [694]*694the shore, and brings her to her destination safely, the services are salvage. Negligence of the tow placing her in a position of peril transforms into salvage rescue services thereafter rendered by the tug.
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KING, Circuit Judge.
This cáse arises on a libel filed by Leopold Falk, chief engineer and a member of the crew of the tug Gorgona, in behalf of himself, the captain, and crew of said tug, against the United States Shipping Board Emergency Fleet Corporation and the steamship Olockson and its cargo, to recover as salvors for saving said steamship and cargo. Said steamship Olockson was a merchant vessel, the property of the United States, controlled by the United States Shipping Board Emergency Fleet Corporation, and being operated by [692]*692the Barber Steamship Lines, Incorporated. ' The ves'sel was claimed by said Shipping Board, and the cargo by the master of the Olockson as agent of the owners. The libel proceeded against the Shipping Board on the principles of a libel in rem, but seeking relief in personam under the provisions of the Act of Congress of March 9, 1920 (41 Stat. 525, 527), so permitting. The value of the cargo was agreed to be $178,000, and was released on bond.
[1] The tug Gorgona belongs to the United States as property of the Panama Canal, and is used in the assistance of vessels passing through the same, when in need, for compensation usually agreed on. ■Her usual compensation was $25 per hour for towing service. Said vessel Olockson, with a cargo of ga'soline and rails, bound for the Orient, after passing through the Panama Canal, was reported by wireless to be on fire by the captain of the United States cruiser Tacoma, which had her crew aboard. He also reported that he considered it unsafe to tow the Olockson with the Tacoma. The Olockson was reported to be 120 miles west of Panama and 24 miles southwest of Cape Malo. The tug Gorgona, of the Panama Canal, was sent to her assistance. On leaving thé port of Balboa, her master was given positive orders by. Marine Superintendent Sargent not to attempt to round Cape Malo with the Olockson. Rounding this cape was necessary to bring the Olockson to Balboa.- The only alternative was to tow her to shoal water and sink her, out of the path of commerce. The master and crew of the Olockson had abandoned her, and the master refused to order any one to go aboard to fix a towline. He thought she should be shelled and sunk, and had requested authority for the Tacoma to do this from the naval authorities. The captain of the Tacoma refused to shell the Olockson without such authority.
' The master of the tug was unwilling to order any of his crew aboard the burning Olockson, in order to make fast a towline. Hbwever, he maneuvered the Gorgona to windward of the Olockson and in touch with her, when two of the tug’s crew, of their own volition, without orders, sprang on board the Olockson and made fast a towline. The master of the tug Gorgona then of his own initiative sought permission by wireless, through the captain of the cruiser, to attempt to tow the Olockson, still on fire, to Balboa, where she couid be saved. He finally secured permission to use his discretion to carry out any request made by the master of the Olockson as to disposition of that vessel.
Prom the evidence it would 'seem that the idea of making salvage of the vessel or cargo originated with, and was due to, Capt. Howard, the master of the tug, and was accepted finally by the master of the Olockson, who. then requested it, and that the towage, and finally the salvage, was rendered possible by the gallantry of the two members of the tug’s crew, who acted on their own initiative after the crew of the vessel in peril had refused to do anything. Before this, the idea of every one seemed to have been the destruction of the vessel, in such a way as to prevent' her becoming a menace to commerce, and the necessary total loss of the cargo. The orders given by the marine superintendent did not contemplate towing the vessel to port, and his consent to withdraw his order not to round Cape Malo was due to the initiative [693]*693and request of the tug’s master, which the voluntary gallantry of the two members of her crew rendered possible.
In withdrawing this prohibition, the marine superintendent did not continue to direct the movements of the tug or its crew; he did not order that they should carry out the requests of the master of the Olockson; he committed to the discretion of the master of the tug, Capt. Howard, the entire responsibility for, and power to direct, the conduct of the Gorgona in this regard. After that the actions of the Gorgona and her crew were apparently undertaken by Capt. Howard on his own responsibility. Had he, in the exercise of this discretion, refused to tow the Olockson, he could have properly done so. If he improperly towed her and endangered the tug, it would have been his default, and not the carrying out of the orders of another.
[2] It is insisted that the Gorgona was proceeding to the assistance of the Olockson under an express contract fixing the compensation to be paid for all services of herself and crew. Upon the news of her condition being received, an official of the Panama Agencies, which company, as local agents, handled all Shipping Board vessels, called up the marine superintendent of the Canal and asked him to send the tug Gorgona to the assistance of the Olockson. There is some evidence that this official of the Panama Agencies said to the superintendent, “I suppose this will be $25,” and asked said superintendent whether there would be any salvage in the matter; the superintendent replying that as far as he was concerned he did not see there was. It was stated this was an off-hand inquiry, made jocularly and a laughing reply. The burden is on the vessel’s owner to prove a contract fixing the amount of salvage. 35 Cyc. 758.
Here there appears to have been no definite contract, except the statement of the marine superintendent that, so far as he was concerned, the usual charge of $25 per hour would be sufficient,1 and he would ask no salvage. While this might fix the compensation for the use of the tug for towage service, we do not think it amounted to a contract which would exclude the claim made by the crew in this case.
Even if it be conceded that the tug was sent out under an engagement for a fixed compensation, it would seem that the service which her master and crew rendered was far more than, and was different from what, was originally intended. When the Gorgona reached the Olockson, it found that, instead of being expected to aid that vessel, the vessel had been abandoned by her master and crew; that, instead of being called on to tow the vessel, her master and crew refused to take the steps necessary to tow her, and abandoned all efforts to save her to the tug and her crew. The situation thus existing was entirely different from the aid afforded by a tug to a disabled vessel, and. became one of saving an abandoned vessel.
“The true criterion by which it is to be ascertained whether the towing vessel has become a salvor is whether the supervening circumstances were such as to justify her in'abandoning the towage contract. Thus, an engagement to tow embraces the risk of ordinary weather only; and so, where a violent hurricane arises, so as to justify a tug in abandoning the contract, and she at great peril to herself continues to tow the vessel during the hurricane without interruption, though taking longer, prevents the vessel drifting upon [694]*694the shore, and brings her to her destination safely, the services are salvage. Negligence of the tow placing her in a position of peril transforms into salvage rescue services thereafter rendered by the tug. In no instance is it absolutely essential that the tug be also imperiled. So where, by the breaking of a ship’s hawser, the ship is placed in danger not occasioned or contributed to by the tug, a towage contract is so far suspended as to entitle the tug to a larger remuneration under the head of salvage.” 24 R. O. L. 1444.
[3] Whether the tug be strictly a merchant vessel or a quasi public vessel, her crew are not, by reason of any agreement as to compensation or her character, debarred a reward by way of salvage for the responsibility which the master assumed and efforts of himself and crew, which resulted in the sawing of the cargo and of the vessel, in its damaged condition, both of which otherwise would have been totally lost. It has never been held that the crews of public vessels are not to be compensated in any case by way of salvage. 35 Cyc. 736; Robson v. Huntress, 20 Fed. Cas. 1060, 1062, No. 11,971; The Josephine, 13 Fed. Cas. 1150, 1152, No. 7,546.
[4] But we think that this vessel, while owned by the United States, ■should be classed as a merchant vessel. She was engaged in the aid of commerce, for hire, and was under no duty to go to the relief of the Olockson, any more than a vessel owned by private persons engaged in the same line of business. She was wholly unlike a fire department extinguishing a fire, the very business for which it was maintained and paid.
[5] That a vessel has been employed for a service for a fixed compensation does not prevent her crew from being awarded salvage for meritorious services not contemplated by the engagement. The existence of the contract is but an element to be considered in fixing the amount to be awarded for the unexpected service. The Excelsior, 123 U. S. 40, 50, 8 Sup. Ct. 33; 31 L. Ed. 75; 35 Cyc. 720, 725. That, the crew are employed by their own vessel for fixed wages is a fact which exists in every case where salvage is allowed, and is not a barrier to an award of salvage, where the service performed was extraordinary as in this case.
The work was arduous, involved constant labor, and with more or less risk, for a long and continuous period, and resulted in the saving of cargo of the agreed value of $178,000, and of a vessel, which in the original answer of the claimant is admitted to be worth, in its damaged condition, $100,000. It is reasonably certain that, but for the action of the captain and crew of the tug, both would have been lost.
The award of $15,000, as against cargo and vessel, is not so excessive as to call for its reversal. The division between the cargo and the vessel is one of which the claimant of the cargo cannot complain. There is no proof which shows that the vessel in its present condition is worth any more than $100,000, and the court was warranted in adopting the figure originally fixed by the claimant of the vessel as its value.
[6] .That the United States is the owner of both the vessel and the tug does not prevent the claim of salvage. Rees v. United States (D. C.) 134 Fed. 146; Jacobson v. Panama R. Co. (C. C. A.) 266 Fed. 344, 346.
[695]*695We therefore conclude that the decree of the District Court should be affirmed.