Phillips v. United States

19 F. Cas. 527, 33 Hunt Mer. Mag. 456, 1854 U.S. Dist. LEXIS 79

Opinion

HELD BY THE COURT (INGERSOLL, District Judge): That the weight of evidence is that the signal set was not a signal of distress, but a signal for a tow. In obeying this signal, the tugs went to .her aid, expecting and agreeing to engage in the business which the signal indicated. But, although the tugs started for the ship with the view to render a towage service merely, yet if the ship, when the tugs came to her assistance, was, in point of fact, in a condition where loss or serious damage was reasonably to be apprehended from her leaky condition, in connection with the boisterous state of the weather, — if she was encountering a threatened or impending peril, from which she was rescued by the tugs, — then, although the signal set by the ship was only one for a tow, and although when the tugs started for the ship, in obedience to the signal, they understood that they were wanted only for a towage service, they would be entitled to be compensated for a salvage service; for where a ship or its lading is saved from impending peril by the service of any persons, upon whom there is no obligation to render the service, then such service is to be compensated as a salvage service.

A mere towage service is confined to vessels which have received no damage which puts them in peril of loss. A mere towage compensation is payable in those eases only where the vessel receiving the service is in the same condition she would ordinarily be, without having encountered any damage or accident. And if a towage engagement merely lead to the rescue of a ship from an imminent danger, it should be remunerated as salvage. 3 Hagg. Adm. 428.

That the court does not find as a fact that the ship and cargo would have been lost, or greatly damaged, if she had not been rescued by the tugs, but does find that there was danger of such loss, or great damage, and that the ship was rescued from that peril by the tugs, and the compensation which the libellants are entitled to receive for their services, must be a salvage compensation.

That there was but little, if any, more labor and peril incurred by the tugs than would have been incurred in such weather, in performing a towage service; that they manifested promptitude in obeying the signal, but were not diverted from their proper and usual employment, but were engaged in it; that the libellants have experienced but trifling injury or loss by the service which they have rendered, no more than probably would have been sustained if the ship had not by her leaky conuiaon been exposed to impending peril, and that under all the circumstances the case demands only a moderate compensation.

Decree, therefore, that the libellants recover the sum of $1,000, to be divided equally between the two tugs.