Mr. Justice CLIFFORD
delivered the opinion of the court.
Compensation, as salvage, is claimed by the libellants for services rendered by them in saving the cargo of the ship Aquila, which was wrecked in a storm, and sunk in the harbor of the port of San Francisco, to which "she was bound, with all her cargo on board.
Such portion of the cargo as constitutes the basis of the investigation in this case consisted-of certain materials manufactured for the construction of an iron-clad monitor, and the armament for the same, which was to be constructed at San Francisco by the claimants, under a contract with the government. They manufactured the materials and armament in New York, and the ship, with the saíne on board, sailed from that port on the twenty-ninth of May, 1863, and arrived and came to anchor in perfect safety, on the tenth of November following, off North Point- dock, in the harbor of her port of destination, where she remained until the fourteenth of the same m.onth,
Aided by a steamtug she attempted, on that day, to proceed to the wharf where she was to'unload, but was obliged, by the state of the wind and tide, to come to anchor before she accomplished that object, and at midnight she encountered a heavy squall, which caused her to drag her anchors, and forced hdr into a more unfavorable position. Preparations were made on the following morning to get up to the wharf, and the wind having abated, the ship weighed anchor, and being again assisted by the steamtug, proceeded to the southern side of the wharf, where she was directed to discharge her cargo, and was there moored with her stem to the eastward and her stern towards the shore.
When she was moored the weather was good, but at ten o’clock in the evening the wind increased, and soou rose to a gale, from the southeast, which caused the ship to strike with such violence that she made a breach iii her aft-port quarter to such an extent that in. spite of any use which could be made of the pumps she -filled with water, and at three o’clock on the following- morning sunk in the dock, her stem lying in forty or fifty feet of,water, and her stern-
in twenty feet, and she lay with a list to the starboard at an angle of thirty-five or forty degrees.
Both the ship and the eargo belonged to the claimants, and they immediately abandoned the whole adventure to the underwriters, and the agent of the underwriters, though he declined to accept the offer of abandonment, commenced without delay to employ the best means in his power to raise the vessel and save the cargo, calling into requisition for that purpose all the nautical experience and mechanical skill, at his command, but his efforts were fruitless, except that he succeeded in dismantling the ship, and in saving a small portion of the cargo.
. ■ Apprised of the failure of the measures adopted by their agent to raise the ship and save the cargo, the underwriters at that juncture employed the libellants to undertake what their agent, with all the assistance he could command in the port of the disaster, was unable to accomplish.
Pursuant to their engagement, the libellants instructed their general agent to proceed to that port and take possession of the wreck, and they also dispatched with him a party of men, selected for the occasion and having experience as divers and wreckers, and provided them with the most approved machinery and apparatus to promote the success of the enterprise.
Chosen and qualified as described, the party, under the superintendence of the general agent of the corporation, sailed from the port of New York on the twenty-fourth of December, 1863, and took possession of the wreck, in -the port of the disaster, on the twenty-third of January following. Although the undertaking was beset with difficulties and dangers on all sides, they made no objection on that account, but proceeded at once to the examination of the wreck, and the plan which they adopted and executed was to get out the cargo by divers, as far as was necessary to prevent it from being injured, and to lighten the ship, so that she could be raised and secured, aud then to hoist out the remainder of the cargo by the apparatus and machinery prepared for the purpose.
They completed the work of securing the cargo, so far as it was necessary to lighten the ship, in less than three months, and when that was accomplished they were able to raise the ship, stopped the leaks, removed the mud (estimated at six hundred tons), pumped out the ship by means of steam pumps, and finally hoisted out the residue of the cargo and restored it to the owners in an undamaged condition, and the proofs show that the whole was accomplished with success in less than seven months from the time they were employed, by the insurance companies.
Payment of their claim being refused, they filed their libel against that portion of the cargo which consisted of the materials for the construction of the iron-clad monitor, and the armament for the same, as set forth in the record, and the District Court entered a decree in their favor for the sum of $28,428.44 as compensation for the salvage services rendered by them in raising the ship and saving the cargo. Appeal was taken by the claimants to the Circuit Court, where the decree of the District Court was affirmed; whereupon the claimants appealed to this court.
Argument to show that the libellants were entitled to compensation for the services which they rendered is hardly necessary, as the proposition is several times impliedly admitted by the claimants in their answer. They were the owners of the ship as well as of the cargo, and they admit that she sunk near the wharf where she was to unload, at the time and by the means and substantially in the manner alleged in the libel, and they also admit that the efforts made by the agent of the underwriters to raise- the ship and save the cargo were wholly unsuccessful, except as to a small portion of the cargo taken out while the men employed were engaged in dismantling the ship.
Implied admissions to the effect that important services were rendered by the libellants are contained in every article of the answer, but it is unnecessary to refer to those passages with more particularity, as the claimants expressly admit in the fourth article of the answer that the libellants secured
and saved all the cargo which was on board the ship when their general agent took possession of the wreck, and they also admit that the libellants raised the ship, but they deny that any of the services rendered were attended with much difficulty or danger, and they allege that the employees of the libellants, in accomplishing the work, unnecessarily damaged the ship, her tackle, apparel, and furniture, and insist that the salvage compensation to be allowed in the case ought to be greatly diminished on that account.
Apart from these disparaging allegations, the claimants do not set up in the answer any defence to the merits of the claim made by the libellants, except that they allege that the insurance companies have paid the libellants for all the services which they rendered as to thirteen-sixteenths of that part of the cargo described in the first article of the libel.
Most of the discussion at the bar has been addressed to topics other than those here enumerated, and much of it to questions not directly presented in the pleadings. Questions not raised by the pleadings, strictly speaking, are not before the court, but inasmuch as no objection on that ground was made by the libellants to any of the propositions submitted, by the claimants, they will all be considered in the order adopted at the argument. Briefly stated, they are as follows:
1. That the corporation libellants cannot maintain a salvage suit, because they are incapable as a corporation of rendering any personal services, and they insist that no party can be regarded as a salvor unless personally engaged in the service of saving the salved property.
2. That even if the corporation libellants may be regarded as salvors, still they were not the sole salvors in this case, and consequently that the decree rendered in the Circuit Court would not be a bar to a subsequent suit for the same services if instituted by their employees.
3. That the services rendered by the libellants were not salvage services, because they were rendered under and in pursuance of a contract with the underwriters.
4. That the amount allowed in the court below was exces
sive, and that the decree in that respect violates the established principles of admiralty law regulating compensation for salvage.
I. Objection cannot be taken to the first proposition submitted by the claimants, that the question is not presented in the pleadings, as it necessarily arises upon the face of the ■ record, and therefore if it is sustained, the decree must be reversed, as the compensation allowed is for salvage service, and not merely compensation
pro opere et labore,
as it should have been if the theory of the claimants is correct.
Decided cases are referred to in which it is said “that a party not actually occupied in effecting a salvage service is not entitled to a share in a salvage remuneration,” but the learned judge who is represented as having expressed that opinion, admitted in the same ease that the owners of vessels, who rarely navigate their own ships, constituted an exception to.that general rule.
Similar remarks were also made in the case of
The
Charlotte,
and it is supposed by the claimants that the case of
The Lively
is an authority to the same effect; but the question whether the owners of a vessel, when not personally engaged in a salvage-service, were entitled to a salvage compensation for assistance rendered in the case by their vessel was not in any way involved in that record.
. Examples where the suit for salvage was promoted by the owners of the salving vessel are quite numerous, in cases where the decisions were made before our judicial system was organized; and it was expressly determined in the case of
The Haidee,
that owners were by no means unfit persons to originate suits to recover compensation for salvage services. Strong doubts are entertained whether the court, in any of the cases before referred to, intended to decide otherwise, but the inquiry is of no importance, as all of the modern decisions in that country affirm the right, and support it by reasons both satisfactory and conclusive.
When steamers render salvage service th.e court held, in the case of
The Kingalock,
that they are entitled to a greater award than
any
other set of salvors rendering the same service, because they can perform such services, owing to the power they possess, with much greater celerity than other-vessels, and with m u'ch greater safety to the vessel in danger, and frequently under circumstances in which no other assistance could be effectual; Consequently the court having cognizance of-such cases looks with favor on the exertions of steamers in assisting vessels in peril, as they can render such assistance with greater promptitude .and with much more effect than vessels propelled in any other way.
Deported cases where the suits for salvage were promoted by the owners of steam vessels, and in many cases by the owners of steamers built for the special purpose of rendering such services, and devoted exclusively to that particular employment, are very numerous in the reports of decisions in admiralty published within the last twenty years. Indeed they have been multiplied to such an extent within that period that it would be a useless task to attempt to do more than to-refer to one or two of a class as examples tó illustrate the course of modern decisions upon the subject, but it may not be out of place to remark that many others to the same .effect v?ill be found in the very volumes from which the citations here made have been selected.
Take, for example, the case of
The
Albion,
in which the sum of £350 was awarded to the owners.
The Saratoga,
in which the sum of £600 was awarded, and it was wholly given to the steamtug.
The True Blue,
in which the suit Vas promoted by .the owners, master, and crew of a steamship, and the sum of £500 was awarded to the libellants.
Some discussion took place at the bar, in the case of
The
Abercrombie,
as to the relative claims of the owners of ships,
and of the masters and crews of the same, but the court said that the discussion was unnecessary, because the rights of such parties were so constantly under consideration that-the principles regulating the distribution of salvage in such cases were so well understood, that the only difficulty that ever arises is in ascertaining the facts so as to be able to apply the principles to the particular case.
Services were rendered to a sailing vessel in the ease of
The While Star,
and suitable remuneration for the services having been refused, the owners, master, and crew, instituted a salvage suit against the salved vessel and her cargo, whereupon the owners of the salved property appeared and pleaded that the services had been rendered under an agreement,' but it appearing that the undertaking was attended with greater difficulty and danger than the parties supposed at the time the agreement was made, the court held that the libellants were entitled to recover a certain sum beyond that tendered under the agreement.
So where salvage compensation was claimed by the master, owners, and crews of six luggers, a cutter, and a lifeboat, the court sustained the libel and awarded a sum equal to one-third of the salved property, including the ship as well as the cargo.
Proceedings in salvage were instituted in the case of
The Canova,
by the owners and crew of a steamtug, lor services rendered in towing the vessel from a place of danger to her dock in her port of destination, but it appearing that there was an agreement
to do the loork for an agreed price,
the court declined to allow any salvage compensation.
Modern text-writers, without an exception, uphold the right of the owners of ships and vessels, whether propelled by steam or otherwise, to claim salvage compensation when , such services are rendered by their vessels, whether they are present or absent at the time the service is
performed;
and the author of the latest work published upon the subject states that one-tenth of all the salvage awards collated in
the Digest of the Decisions in Admiralty by flic English courts are to owners and vessels, boats, tugs, and steamers. Assuming his estimate to bo correct, it appears that thirty-five cases collated in that work recognize owners as salvors, and twenty-five the vessels themselves as entitled to such compensation.
Owners of the salving vessel, says MacLachlan, arc entitled to remuneration, in the nature of salvage, in addition to expenses, when they show actual loss suffered, or risk in respect to their property encountered in the service, but charterers are not in the same position unless there is a stipulation giving them the control and benefit of the salvage, or unless the vessel is chartered and sailed on their responsibility.
Under ordinary circumstances the owners of the ship which rendered the service are allowed one-tliird of the amount awarded as salvage compensation, but they are sometimes allowed much more where the salvage service was of a character to expose the ship to peculiar danger, especially if she was.a steamer of large size and of great value.
Suppose it be conceded that the owners of a vessel may promote a suit for salvage and that they may be entitled to a salvage compensation, still the claimants insist that the libel in this case does not come within the operation of that rule of pleading, as the libellants are a corporation, but they assign no reasons in support of the proposition, which, if adopted and held to be sound, would not also require the court to hold that the owners of vessels are not entitled to salvage compensation, and are not competent to promote a salvage suit, which cannot be admitted.
Corporations, it is said, are not entitled to salvage remuneration, because no party, as the argument is, can be so entitled except such as actually engages in rendering the salvage service; but if that is the reason for denying such compensation to corporations, then it is clear that the owners of vessels must also be excluded from participating in any such reward, as they seldom or never navigate their own ships.
Remuneration for salvage service js awarded to the owners of vessels, not because they are present, or supposed to be present when the service is rendered, but on account of the danger to which the service exposes their property and the risk which they run of loss in suffering their vessels to engage in such perilous undertakings; and if that is the legal foundation of their claim it is difficult to perceive any reason why the same rule should not be applied to corporations as the owners of ships and vessels similarly employed and exposed.
No satisfactory reason for such a discrimination can be given, because it is believed' that the two eases are precisely analogous. But the question is hardly an open one in this court, as will appear by an attentive examination of the case of
The Island
City, which was elaborately argued by able counsel, and very carefully considered by tbe court.
Three libels were filed against the bark in that case in the District Court, but the district judge being concerned in interest, the three records were removed into the Circuit Court. By the original record it appears that one of the libels was filed by the owners of the steamer Western Port; another in behalf of the steamtug R. B. Forbes, which was owned by an incorporated company, and the third by persons oh board the schooner Kensington.
Sole salvage was claimed by the owners of the Western Port, and they denied that anything should be awarded to the steamtug, but the circuit judge held otherwise; and having determined that the property saved ought justly to
pay the sum of $1-3,000 to all concerned, awarded $5200 of that amount to the owners of the steamtug.
Dissatisfied with the decree of distribution, the owners of the Western Port appealed to this court. Even a slight examination of the decree in the case will show that the appeal involved the whole question under consideration, but this court affirmed the decree of the Circuit Court, which in effect established the rule that the owners of ships, whether individuals or corporations, may promote a salvage suit, and are entitled, in a proper case, to salvage remuneration.
Prior to that time the same point had been decided by the late chief justice and two of the associate justices of this court as then constituted.
Certain uni’eported decisions of the district judges are referred to where a contrary doctrine is held; but they appear to overlook the fact that vessels disabled, or otherwise in need of assistance from the shore, depend, everywhere at this time on our coast, almost entirely upon steamtugs, constructed and equipped for the purpose, and whose business it is to be always ready and at command whenever assistance is required. Such steamers are generally owned by incorporated companies, and having been built and equipped for the purpose, and being manned with officers and seamen having the requisite experience and skill, the interests of commerce cannot safely dispense with their services.
Considerations of the character suggested seem also to have induced the admiralty courts of England to adopt principles of adjudication and rules of practice consistent with the employment of these comparatively new and effective instruments of relief in cases of disasters upon the seas. Reference is made to a few cases as establishing that proposition,. and to. show that the course of decision in the two
countries is entirely coincident in every particular involved in this record.
Claim in that case was made for a salvage compensation, and the suit was instituted by the Liverpool Steamtug Company. Assistance in the case of
The Paul
was rendered to a ship and her cargo, and the salvage suit was commenced and prosecuted by the Anglo-Egyptian Steam Navigation Company. Libellants in the case of
The Collier
were the Brighton Bailway Company as owners of the steamship Lyons, and the master and crew, and the libel was sustained.
II. Next proposition of the claimants is that the libellants, even if they may be regarded as salvors, were not the sole salvors, and consequently that the decree of the Circuit Court ought not to be affirmed, as it would not be a bar to a subsequent suit for the same services if instituted by their employees.
Evidently the objection is in the nature of a plea in abatement, and should have been taken in the answer, or by a proper exception in the court below. Monition, in due form, was issued at the commencement of the proceedings, which was a notice to every one interested to appear and show cause, if any, why the prayer of the libel should not be granted.
Adjudged cases, besides those already cited, are quite numerous, where salvage suits have been instituted in the name of the ship or of the owners, without any allegation that the suit was prosecuted for the benefit of the master and crew, and no case is referred to where it has been held that the claimants, even in the court of original jurisdiction, can abate the suit on that account. All persons interested may appear, on the return of the monition, and become parties to the suit, or, by some proper proceeding, have cheir rights
adjudicated; and in many cases, even after the decree upon the merits is pronounced, they may appear at any time before the fund is-distributed and claim any interest they may have in the proceeds of the property libelled, if any, in tbe registry of the- court, but it is quite clear that the claimants in this record are in no condition to present for decision any such question as that involved in the proposition under consideration.
III. If the defence is not sustained on that ground, then the claimants contend that the services rendered were not salvage services, because, as they allege, they were rendered under an agreement for a fixed sum.
Three answers may be given to that proposition, each of which is sufficient to show that it cannot be sustained. (1.) No such defence is set up in the answer. (2.) Nothing was ever paid or tendered to .the libellants for that part of their claim now in controversy, and it is well settled law that an agreement of the kind suggested is no defence to a meritorious claim for salvage, unless it is set up in the answer with an averment of tender or payment. Such an agreement does not alter the character of the service rendered, so that if it was in fact a salvage service, it is none the less so because the compensation to be received is regulated by the terms of an agreement between the master of the ship or the owners of the salved property.
Defences in salvage suits, as well as in other suits in admiralty, must be set up in the answer, and if not, and the services proved were salvage services, the libellants must prevail.
Agreements of the kind suggested ought certainly to be set up in the answer, as it is not every agreement which will have the effect to diminish a claim for salvage compensation. On the contrary, the rule is that nothing short of a contract to pay a given sum for the services to be rendered, or a binding engagement to pay at all events, whether successful or unsuccessful in the enterprise, will operate as a bar to a meritorious claim for salvage.
(3.) But if the agreement had been set up in the answer, it would constitute no defence, as by the terms of the instrument the libellants were not to receive any compensation whatever, or be entitled to any lien upon the property, unless the materials and machinery were substantially saved, so that it is clear that the compensation was not to be paid at all events.
IV. Discussion as to the amount allowed in the decree is hardly necessary, as it is clear that it does not much exceed the amount the claimants agreed to pay for the services, in case the libellants wmre successful in raising the ship and in saving the materials intended for the construction of the monitor and her armament.
Attempt wTas made by the agent of the underwriters, at great expense, to pump out the ship, as before explained, but the record shows that he was unsuccessful, although the men engaged in the attempt were under the superintendence of one of the claimants. Expensive preparations became necessary before they could commence pumping, and in the course of those arrangements they were obliged to cut openings in the decks and through those openings they took out sixty or seventy tons of the cargo, but the attempt to pump out the ship proved an utter failure, from the intrinsic impracticability of raising the vessel by that plan.
Next attempt by that party was to lift the vessel, with the cargo on board, by means of chains, but the scheme as projected proved to be impracticable, as the bottom of the dock where the ship sunk was solid rock, and the divers found it impossible to get the chains under the vessel. Efforts óf a similar character were continued by the agent of the underwriters until he expended $38,000 in gold, but all his efforts to raise the ship or save the cargo, except the fractional part before mentioned, were wholly unsuccessful.
Complete success attended the efforts of the libellants, as is admitted by the claimants in their answer.
When the property in question was insured, it was valued at $400,000, for which policies were granted by the underwriters for the sum of $340,000; and under the contract between the claimants and the libellants they adopted the same valuation. Of that sum $60,000 was uninsured, arid $15,000 of the amount insured was never paid, and the record shows that the whole of the property on board when the agent of the libellants took possession of the wreck was rescued from imminent peril and was delivered to the claimants or their order.
Difficulties almost unexampled attended the undertaking, and the divers, in taking out the cargo to lighten the ship so that she coulcl.be raised and secured, were exposed to great danger. Expenses were incurred by the libellants exceeding $60,000 in rescuing and saving the property, including moneys paid out and loss of apparatus arid machinery. Considering the skill required to perform the work, and the expense incurred, and the time and labor spent in completing the enterprise, the court is not satisfied that the amount awarded is excessive.
Appellate courts are reluctant to disturb an award for salvage, on the ground that the-subordinate court gave too large a sum to the salvors, unless they are clearly satisfied that the court below made an exorbitant estimate of their services.
Judge Story said, in the case of
Hobart
v.
Drogan,
that the “ court is not in the habit of reversing such decrees as to the amount of salvage, unless upon some clear and palpable mistake or gross over-allowance of the court below.
Evidence to show any such errors in the case is entirely
wanting, and in view of the whole record the court is of the opinion that the decree of the Circuit Court is correct.
Decree affirmed with costs.