Lorenzen v. The "Clavering"

2 D. Haw. 32

• Court: District Court, D. Hawaii
• Decided: February 10, 1904
• Status: Published

Opinion

Dole, J.

Tire steamship “Clavering,” approaching the port of Honolulu on the night of Sunday, the 19th day of July, 1903, ran aground at about 9 :15 o’clock, a little way south' easterly of the channel; the captain thereupon reversed the engines and put them at full speed astern, showed red lights and blew his whistle.

The libellant, a regular pilot of that port, came alongside in his boat, at about half past ten o’clock the same evening, and was requested by the captain to inform his agents, AY. G. Irwin & Co., that the ship was ashore, and he thereupon proceeded to do so. He returned at about midnight and informed the captain that the agents would send out the tug Counselman. This tug arrived at about two o’clock in the morning of the-20th and proceeded to pull on the ship by a hawser fastened to the port quarter. At about half past four o’clock the same morning, the hawser parted and the Counselman returned to the wharf for a new hawser, returning at about five o’clock the same morning. This time her hawser was fastened to the starboard quarter, and she proceeded to pull as before. At about eleven o’clock the same morning, the tug Eeaxless came out and assisted in the xvork of floating the ship by a hawser fastened on the port quarter. This haxvser parted at about noon, and xvas immediately made fast again, and -the tug renexved its efforts. A little after txvo o’clock in the afternoon, the IT. S. Gun-boat Iroquois came to the assistance of the ship and pulled her) by a haxvser fastened to the starboard boxv. After pulling her about half an hour the haxvser parted and the Iroquois xx^ent into the harbor. During the time she was pulling, the Clavering moved astern several feet; the bow also swung seaxvard a little.

In the meantime, at about ten o’clock in the morning, a steam scoxv came out to the ship and a lot of deck cargo stowed aft xvas placed in her; then she moved forward and received cargo from' about amidship.

At about quarter past three o’clock in the afternoon, theClavering • xvas floated off, the tugs Counselman and Fearless, both being at xvork pulling her, and her own propeller xvorking; under reversed engines.

The libellant claims that when he returned to the ship, at. about midnight, after notifying the agents, the captain asked' him to board her, and that he did so and assumed charge of' her and directed the efforts thereafter made to save her, and. that when he took charge of her, she xvas- in great peril and in danger of destruction on account of her position on the reef,, and that his services required great personal exertion and skill' and were of great value, assisting materially in saving the ship,, and prays to b© alloxved Five Thousand Dollars as his reasonable salvage therefor.

The captain, as intervenor and claimant, denies that he requested the libellant to board the Clavering or that upon boarding her the libellant assumed charge of her and directed the efforts thereafter made to save her, and says that the truth is that the libellant volunteered to come aboard and that thereafter he advised and assisted him, the master of the Clavering, in his efforts to save her. This allegation is supported by the evidence of the master, who testified that libellant “asked if “he should come aboard, and I said yes if he liked to, or wished “to,” and by the evidence of the chief officer and the second and third mates.

In regard to the circumstances of his boarding the Olavering, the libellant testified that he asked the master “if he wanted “me aboard, he said, yes of course.” The weight of evidence supports the view that he offered to come aboard and that the master assented and that thereafter the libellant advised and assisted the master in his efforts to save the vessel.

I am unable to find from the evidence that the libellant upon going aboard the vessel “assumed charge of her and directed “the efforts thereafter made to save her.” It appears from the evidence of the three mates that in such operations they took their orders from the master and were not aware of any transfer of authority to libellant.

The counsel for libellee contends that no> proper basis for salvage is shown; that the libellant, being a pilot, was bound to render what aid he could and was not entitled to claim as a salvor for such services.

This is not the law except in those States where statutes have been enacted to that effect, which “generally require pilots to “render aid to vessels, if possible,' on their cruising grounds “whenever needed; and in cases when extraordinary risk and “danger is thereby incurred, provision is made for extra compensation.” (The C. D. Bryant, 19 Fed. Rep., 605.) The Oregon Act provides that such requirements “shall not affect '“any claim for salvage arising out of services involving extraordinary danger and risk.”

The principle of law applicable to this Territory, is stated in the following citations from Hobart v. Drogan, et al., 10 Pet., 120, and is supported by The Wisconsin, 30 Fed. Rep., 847:

“A pilot while acting in the strict line of his duty, however he may entitle himself to extraordinary pilotage compensation for extraordinary services as contra distinguished from) ordinary services, cannot be entitled to claim salvage;” and,

“A pilot as such, is not disabled, in virtue of his office from becoming a salvor. On the contrary, whenever hei performs salvage services beyond the line of his appropriate duties, or under circumstances to which those duties do not justly attach, he stands in the same relation to the property as any other salvor; that is, with a title to compensation to the extent of the merit of his services, viewed in the light of a liberal public policy.”

The ship being aground, the libellant’s duties as pilot were not required, and he, ■ under the circumstances, had the same right to perform salvage services as any other person, and he proceeded to do so. At the request of the master he notified the agents of the disaster to the ship. In connection with such mission, he hailed the tug Counselman and requested it to go out to the assistance of the Clavering. When he returned to the Clavering at about midnight, he went aboard either at the master’s request or his acceptance of the libellant’s own offer to do so, the latter of which alternative views is herein adopted, and from that time until the vessel was floated off at a little after three o’clock the next afternoon, he advised and assisted the master in his efforts to save the vessel.

The position of the Clavering, aground on the reef, was one of danger. Much evidence has been offered by the libellant to show that “she was in great peril and in danger of destruction by virtue of her position,” and by the libellee, to show that the danger was not imminent, and that the vessel had means of floating her without assistance.

It is clear to me that the position of .the Clavering, aground on the reef, was one of great, though not of extreme danger. The sea was smooth and the ground swell at the place the .vessel was lying was moderate, yet enough for some time after she went aground to cause her to roll considerably and to “pound” heavily or shake, as one of the libellee’s witnesses described it. The depositions taken in San Francisco where the ship was afterwards docked, show that she had received* considerable damage, costing to repair the same $42,662.01.

It is also clear that the instrumentalities effecting the rescue of the ship from her perilous position, were her engines by which her propeller was worked astern during the greater part of the time she was aground, the two tugs, Counselman and Fearless, the United States Gun-boat Iroquois and the lightering of the cargo into the steam scow. The Fearless, the Iroquois and the steam scow were operating by request of the agents, the same may be said of the Counselman, although the libellant independently, upon the master’s request that he would seek assistance", first informed her of the disaster and requested her to go, as soon as possible, to the assistance of tha Clavering. The ship’s engines were reversed and the propeller worked full speed astern by order of the master before the arrival of the libellant.

The proctor for the libellee earnestly contended that upon the showing of the evidence to the effect that the watchman at the pilot office was an elderly man, that the libellant, whose turn it was to be on duty, was at home abed and that his telephone was out of order, so that he had to be informed of the arrival of the ship off port by a boat boy on a bicycle, it would appear that the libellant was neglecting his duty at the time and that there was a general neglect of proper precautions under existing conditions, in consequence whereof the Clavering went ashore, whereby the libellant is precluded from taking advantage of the results of his own wrong by acting as a salvor. In support of this contention, the proctor for the libellee cited the local statute. (Penal Code, Sec. 1192), which requires that a pilot shall “continually hold himself in readiness to conduct “vessels safely into, and out of the port for which* he is ap“pointed.” But Section 1194 of the Penal Code provides that “upon tlie arrival of any vessel, making the usual marine signal “for a pilot, it shall be the duty of the pilot or pilots at the “port to immediately put off to such vessel,” etc.

It does not appear from the evidence in this case that the Clavering showed any signal for a pilot. Her master was not intending to come into the harbor in the night, but at the time of getting aground, was sounding for an anchorage, intending to anchor for the night.

Under the circumstances, I do not find that this contention has any important bearing on this case requiring further consideration. •

The evidence shows that the value of the ship and freight at the time she was floated off from the reef was as follows:

The value of the steamer “Clavering,” her hull, tackle, apparel and all equipment, including 1800 tons bunker coal on board, is............$107,400.00

The cost of repairing the damages sustained while the steamer was ashore, was................. 42,662.01

The value of the steamer in her damaged condition after she was floated off the reef, was........$ 64,737.99

VALUE OB BREIGHT.

Freight payable on Honolulu cargo............$ 1,095.81

Freight payable on San Francisco cargo........' 5,665.37

$ 6,761.18

Less:

Expenses incurred by ship subsequent to accident in earning above freight .....................$ 3,441.73

Net freight saved ......................$ 3,441.73

VALUE OF CARGO.

The value of the cargo on board the steamer “Clavering” while she was ashore and when she was gotten afloat was:

Cargo destined for Honolulu..................$ 17,100.00

Cargo destined for San Francisco ............ 77,200.90

Total value of cargo on board at time service was rendered by tug boats..................$ 94,300.90

From a careful consideration of all the evidence, I find that the libellant’s services were accepted by the master and were in the nature of salvage and were of some value in the work of floating the ship; that such services were rendered in connection with consultations had between the master who remained in charge of the vessel and the libellant, the conclusions arrived at being sometimes carried out byl the libellant and sometimes by the ship’s officers; that the services performed by the libellant did not require, in his capacity of master mariner, unusual personal exertion and skill; that the perform" anee of such services was without peril to himself; and that it does not appear from the evidence that the rescue of the ship from her dangerous position depended on the presence of the libellant.

After the conclusion of the libellant’s services he rendered a bill “To expert pilot services rendered in getting the steamship Clavering off the reef off Honolulu Harbor, from 11 h. “00' P. M. July 19th to 4 h. 00' P. M. July 20th., 1903, One “Hundred Dollars.”

This bill the master orally, in the libellant’s presence, agreed to pay. It was afterwards withdrawn from the agents of the libellee by the libellant who thereafter libelled the vessel for salvage services.

Although the presentation of this bill and the master’s oral acceptance of it, 'may not absolutely bind the parties to such agreement, yet the bill shows what the libellant’s deliberate estimate was of the value of his services. Calling them “expert pilot services,” does not change their character; they were salvage services, and without strong evidence to the contrary may be taken as a reasonable appraisement of their value; and I so decide.

“The amount of the bill which was presented by one of the owners, (of the tug Briggs) and which was made out by the Captain, indicated his and the owners’ estimate, at the time, of the value of the service.” Howard v. Manhattan, 20 Fed. Rep., 392.

“If it (the salvage service) has been rendered under circumstances which establish that the parties have voluntarily, and. without any controlling necessity on the side of the proprietors of the property saved, or their agents, entered into a contract for a fixed compensation, or upon the ordinary. terms of compensation for labor and services quantum meruerunt; in either case it does not alter the nature of the service as a salvage service, but only fixes the rule by which the court is to be governed in awarding the compensation. It is still a salvage contract, and a salvage compensation.” The Emulous, 8 Fed. Cas., 706; Case No. 4480.

In the case of the Howard Towing Ass’n. v. The J. E. Potts, 54 Fed. Rep., 539, subsequent to the services, the parties agreed on the amount of compensation and notes were executed in full payment thereof. The libellants afterwards sued for a larger amount. The court said:

“I think, however, that the acceptance of these notes, in the absence of proof to the contrary, shows that the amount agreed upon is the proper salvage.”

In the case at bar, it is .true that no notes were given, but under the master’s acceptance of the bill which the libellant presented, the case would appear to be governed by the authority of the Howard Towing Ass’n. v. The J. E. Potts.

The proctor for the intervenor and claimant filed, on August 3rd; 1903, an “offer to allow a decree to be taken against David “Barton, respondent and claimant, * * * for tbe sum of “One Hundred Dollars with costs to the date of this offer, to “be taxed.”

Rule 12 of this court provides that “at any time not less than “thirteen! days before trial the respondent or claimant may “serve upon the libellant’s proctor a written offer to allow a “decree to be taken against him for the sum of money therein “specified, with costs to the date of the offer, to be taxed, which “the libellant may within one day thereafter, accept and enter “judgment accordingly; if not so accepted, and the libellant “fail to obtain a more favorable decree, he cannot recover costs “from the time of the offer.”

The offer was not accepted by the libellant and he has not obtained a more favorable decree.

In less than thirteen days after this offer, to-wit, on the same day, the United States Commissioner began to take testimony in the case under an order of the court to take the same and report it to the court. This, the proctor for the libellant contends, was the beginning of .the trial, and therefore the offer above-referred to, with the libellant’s failure to accept it whhin one day after it was made, does not entitle the claimant to costs thereafter to accrue.

A trial is the formal investigation and decision of a matter in issue between parties before a competent tribunal. Steph. Pl., App. Note 29. If the Commissioner had had authority to report findings of fact, the proceedings before him might be regarded as the beginning of the trial; but as his duty was limited merely to taking testimony and reporting the same, the performance of such duty was not a part of the trial, though it was intimately related to it.

The proctor for the libellant also contends that inasmuch as the offer made was to allow a decree to be taken against David Barton, respondent and claimant, whereas this being a proceeding in ram against tie skip, tie offer skoulcl have been to allow a decree to be taken against tie skip.

Tie rule of tie court cited on tkis point provides tkat “tkd “respondent or claimant” may make the offer referred to, and the proctor for libellant urges tkat tie word “respondent” has a distinctive meaning from the word “claimant” in tie rule, and refers especially to tie skip, wkick is tke security for the decree. I do not find tkat tke word “respondent” is a technical one, but “is often used as meaning the defendant in a suit in “personam or tke claimant in a suit in remj and not unnaturally, “for any one who answers or responds may properly be called “a respondent.” Benedict, Adm., Sec. 363. Moreover,- the claimant representing the owners, has filed bonds for security of tke amount of decree and costs as a substitute for tke attachment of the skip, wkick has been accepted by tke proctors for the libellant. '

Decree may be entered for libellant in tke amount of One Hundred Dollars with costs to August 3rd, 1903, to be taxed; ‘subsequent costs to the claimant.