The Levi Davis

9 F. 715, 1881 U.S. Dist. LEXIS 224

• Court: District Court, E.D. New York
• Decided: December 13, 1881
• Status: Published

Opinion

Benedict, D. J.

My conclusions in this case are. as follows: If, as asserted by the claimant and denied by the libellant, the Richards broke her contract by casting off the tow before the Levi Davis took hold of it, still such failure to perform her contract, if failure it was, did not create or tend to create the peril from which the Levi Davis was afterwards rescued. It would have been necessary'for the Davis to get hold of the tow if the Richards had not cast off when she did, and, as the tow was .situated, she could not have done so without danger of striking the bottom. The peril was caused by the Davis having taken the tow into shallow, and, under the circumstances, dangerous water, and it was in no way increased by the act of the Richards' in casting off the tow when she did, and after she herself had struck the bottom. The Davis was rendered helpless and in need of immediate assistance by the breaking of her rudder, and that misfortune is not attributable to any act or misconduct on the part of the Richards.

When the Davis thus became disabled by the breaking of her rudder, and liable to be driven ashore in the gale, the Richards was under no legal obligation, arising out of the contract or otherwise, to tow her out of danger or to render her any other service. It was, therefore, open to the Richards, when the Davis signalled for assistance, to undertake to assist her in the capacity of a salvor. At the time when the Richards undertook that service the. situation of the Davis was one of much peril. By the exertions of the Richards she was rescued from her peril and brought back to New York in safety. The service was valuable. It was voluntary, and compensation for it depended upon success. Bor such a service the Richards is entitled to a salvage reward.

In determining the proper amount of such reward I observe, among other'things, the peril in which the Davis was placed by the breaking of her rudder when so near Barnegat shoal in such a gale.- -The extent of the peril is shown by the act of the master in putting on a life preserver. The Davis was kept from going ashore by being taken hold of and held by the Richards during the whole of a terrible night. She was then, being still disabled in her rudder, towed by the Richards from Barnegat to the Hook, and then accompanied to Jersey City at her special request, because, although her rudder had been made available to a certain degree, the condition of it rendered her liable again to become helpless at any moment. I also take notice of the value of the Davis, some $6,000, and that of the Bicharás, some $22,000; that the Bicharás sustained no loss save that of labor and time; and, if she encountered any peril to herself in the performance of the service, it was not serious.

Upon the whole ease, I consider that the sum of $750 should be allowed as salvage. The allotment of this sum will be made after hearing counsel in respect thereto.