Fells v. The C. G. Cranmer

34 F. 405, 1888 U.S. Dist. LEXIS 43

• Court: District Court, E.D. Pennsylvania
• Decided: February 29, 1888
• Status: Published

Opinion

Butler, J.

T find the material facts to be substantially as set forth in respondent’s statement, filed in the case. There is serious disagreement between the witnesses on the one side and the other. The burden of proof, however, is on the libelants; and their evidence consists entirely of their own statements. Without making allowance for their interest, and consequent bias, the weight of evidence seems to be clearly against them. Making such allowance, the preponderance is seriously increased. The witnesses on the other side are disinterested. They are in no respect responsible for the situation of the vessel, and no motive for falsifying can be seen. I do not feel any hesitation, therefore, in concluding that the material facts are substantially as detailed by these witnesses, and set forth in the respondent’s statement. Nor do I feel any serious hesitation in concluding from these facts that the libelants did not render a salvage service. Whatever may have been the vessel’s situation, as respects peril, before the libelants wefe picked up, she was not, in my judgment, in serious danger at that time, or afterwards. She had been so far pumped out that the water was reduced to about three feet; the deck-load (which had become unbalanced by losing a part in the storm, and thus caused the list, and shipping of water) had been so far thrown over that the vessel had righted. That, however, is not the period of time at which her situation is material to the question involved. Even if she had then been in peril, I would hold that the libelants — picked up from the sea, (for they were unable to get on board without help,) rescued from great danger, if not almost certain death, (for they were hungry and without provisions, wet, stiff with cold, and running out to sea, in the storm) — are not entitled to compensation as salvors for any work they performed. Thus rescued and taken care of, it was their duty to do all they did, prior to the time when the brig came by, — about 3 o’clock in the afternoon. Then they had an opportunity of leaving, and it was their right to embrace it. They proposed to leave, but remained, at the master’s request, to assist in working the vessel. This is the material period to which inquiry must be directed respecting the vessel’s situation. Bhe was then substantially freo of water; her deck-load was so far removed as not to present serious difficulty, and she was virtually out of danger. Her anchors were gone, but this was all, or nearly all, the loss her tackle had suffered. The hull had suffered none. She was in condition to sail for port, and did sail in about an hour. The loss of her anchors was not, therefore, serious. The fact that she declined the services of the brig, declaring that she did not need assistance, must be regarded as conclusive that she was not in peril, and did not apprehend difficulty in getting to port. Early in the morning (before libelants came aboard) she raised a signal on seeing the smoke of a passing vessel, —mistakenly supposed to he a steamer, which might tow her to port. The signal was left up in the hope of attracting a tug. Whether it is called a signal of distress or signal for a tug is unimportant. It is clear that when the master was informed of the brig’s approach he took it down, saying he needed no assistance; and that when the brig hailed, her proffered aid was declined. These circumstances seem to be conclusive on the subject of peril at this time. It is impossible to believe that if the vessel had been in peril, great or slight, the master would have so acted, and thus without motive or excuse have risked the lives of himself and crew, as well as the vessel and cargo. He desired the libelants’ assistance in working the vesssel. This, however, was because his crew had been overtasked during the storm, and were tired; and because the situation made the presence of such additional help a wise measure of precaution. The libelants are not, therefore, entitled to salvage com-pensa tion. They are, however, entitled to bo paid for the services rendered after the brig passed. They remained on board by request, with an understanding that they should be so paid. In determining how much they should receive, the circumstances existing at the time — the condition of the weather, the possibility of trouble and delay in reaching port —should he considered. The services (under the contracts) extended over a period of about three days. Twenty-five dollars each, in my judgment, is a fair allowance. Five dollars have been paid to each; for the balance, with costs, they must have a decree.