The Kennebec

231 F. 423, 145 C.C.A. 417, 1916 U.S. App. LEXIS 1662

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 22, 1916
• Docket: No. 2880
• Status: Published

Opinions

WARKER, Circuit Judge.

The steamship Kennebec grounded at the mouth of the Brazos river near the jetties, about 40 miles from Galveston. S. E. Paul, the agent of the owner of the vessel, from Brazos Port, a place on shore near by, had a conversation over the long-distance telephone with Mr. Stoneburner, an officer of the owner of the steam tug, Senator Bailey, at Galveston, with reference to getting that tug to render the assistance required to get the Kennebec afloat. The result of that conversation was that Mr. Stoneburner, for his company, the libelant, agreed to furnish the services of the tug and equipment for $250 per day from the time she left Galveston until she returned. Following the making of that agreement the tug on the same day went to the mouth of the Brazos,' reaching there after dark, and the next morning pulled the Kennebec from where it was aground.

[1] If the contract made by Mr. Stoneburner and Mr. Paul was a. binding one, and the service mentioned was rendered in pursuance of it, though it was a salvage service, the only compensation recoverable for it is the one which was stipulated for, $250 per day, which was awarded by the decree appealed from. A valid contract by one party to pay at all events,'and by the other to receive 'a fixed compensation for a salvage service, is as conclusive as any other valid contract. The Elfrida, 172 U. S. 186, 19 Sup. Ct. 146, 43 L. Ed. 413; Elphicke v. White Line Towing Company, 106 Fed. 945, 46 C. C. A. 56.

[2] But it is insisted in behalf of the appellant that a binding contract was not made for the service which was rendered. Much stress is laid upon the facts that in the conversation between Mr. Paul and Mr. Stoneburner the former stated that the service desired was not a salvage or wrecking job, but was a towing proposition, while the service rendered was a salvage one. In view of the facts which were known ’to Mr. Stoneburner when he made the agreement and when he sent the tug in pursuance of it, we are not of opinion that the agreement was deprived of binding effect by the statement of Mr. Paul that the service required was a towing proposition, and not a salvage or wrecking job, though what was required and what was done was in fact a salvage service. At the time the agreement was made Mr. Stoneburner was distinctly informed that the Kennebec was aground at the mouth of the Brazos and needed assistance to get her off. When the conversation mentioned occurred, and for several weeks prior to that time, it was well known in Galveston that the Brazos river was in a swollen condition. It is not to be supposed that one engaged, as Mr. Stoneburner was, in doing towing and salvage work with a steam tug operating from Galveston, was in ignorance of the fact that the current at the mouth of the Brazos then was such as to add to the. peril of a vessel there aground, and to make the task of rendering necessary assistance to a vessel so situated more difficult than otherwise it might have been. At any rate, there was no misstatement or misrepresentation of the conditions prevailing at the mouth of the Brazos when the mentioned conversation occurred.

[3, 4] Though Mr. Paul stated that the service to be rendered was a towing proposition, what was desired and what Mr. Stoneburner agreed that the tug should do was so described that it was plainly disclosed to him that the service to be rendered was of a kind which the law declares to be a salvage one. “A salvage service is a service voluntarily rendered to a vessel needing assistance, and is designed to relieve her from some distress or danger either present or to be reasonably apprehended. A towage service is one which is rendered for the mere purpose of expediting her voyage, without reference to. any circumstances of danger.” McConnochie v. Kerr (D. C.) 9 Fed. 52, 53; The Flottbek, 118 Fed. 954, 55 C. C. A. 448. That the tug, the master of which received his orders from Mr. Stoneburner, was started from Galveston to render a salvage service, is shown by this entry on its log:

“Got orders to leave for Brazos to assist a steamer ashore. Belt Galveston 2:50 p. m.”

The next morning, when the situation was fully disclosed, without the master of the tug intimating that the service found to be required was in any respect different from the one the tug was sent to render, it proceeded to render the required assistance to the “steamer ashore.” In the absence of any misrepresentation or fraudulent concealment, of a material fact, the contract as made was not deprived of binding effect by an expression by Mr. Paul of an opinion as to the nature of the service stipulated for or the assertion by him of an erroneous legal conclusion. Mutual Life Insurance Company v. Phinney, 178 U. S. 327, 343, 20 Sup. Ct. 906, 44 L. Ed. 1088; Johansson v. Stephanson, 154 U. S. 625, appx., 14 Sup. Ct. 1180, 23 L. Ed. 1009; Upton, Assignee, v. Tribilcock, 91 U. S. 45, 50, 23 L. Ed. 203. He misstated, not the facts, which as a matter of law determine the nature of the service desired, but merely the name of it. We are not of opinion that it was made to appear that there was any such misstatement or fraudulent concealment of a material fact as to deprive the agreement which was made of its binding effect or to make it inapplicable to the service which was rendered.

In the case of The Flottbek, supra, it was held that a provision in a contract between the owner of a tug and the owner of a ship that the former would, during the period covered by the contract, render any towage required by the latter at specified rates, did not govern the compensation for a salvage service rendered by the tug. The decision, in that case is not opposed to the conclusion reached .in the case at bar that a contract for a service known by both the parties to be of a kind which the law denominates a salvage service is not vitiated by the fact that the party procuring the rendition of it stated to the other party that it was a towage service.

The decree appealed from is affirmed.