The Thornley

98 F. 735, 39 C.C.A. 248, 1899 U.S. App. LEXIS 2772

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 12, 1899
• Docket: No. 841
• Status: Published

Opinion

After stating the facts as above, the opinion of the court was delivered by

PARDEE, Circuit Judge.

Pickles Reef is a well-known dangerous reef, being exposed to the full force of the sea from northeast and around to the south. The Oxford (D. C.) 66 Fed. 584, 590; Baker v. The Slobodna (D. C.) 35 Fed. 537. When the Thornley was aground on that reef, she was in a position of imminent peril. While the weather was clear she pounded, and from that and her violent grounding she was decidedly strained and set aleak. Such being her condition in ordinary weather, nothing but destruction was before her if she had remained aground to encounter the stormy weather that immediately followed her floating. Her release from this peril was entirely due to the services rendered by the libelant and his colleagues, which were onerous, faithful, continuous, and successful. Considering the consignment of explosives on board, supposed by the master, in accordance with popular .opinion, to be very dangerous, there was an element of risk and danger, if not of gallantry and heroism, attgndant upon the services. It is true there was no saving of life, but unquestionably, in the opinion of the master, there was great risking of life.

It is true that on the hearing evidence was brought forward tending to show that certain grades of dynamite, properly packed, are not dangerous, under ordinary circumstancés, nor liable to be exploded by concussion; but the evidence is not sufficient for us to be able to say that dynamite of a high grade, like that on board the Thornley, is not dangerous, nor liable to be exploded by concussion, nor through decomposition, from which spontaneous explosion is said to sometimes follow. The evidence shows that these explosives require for safety great precauiion in preparation, storing, handling, and shipping. They are not allowed to be carried on passenger ves-seis, nor on all railroads, nor on any railroad except under special regulations. Under these circumstances, the salvage services rendered to the Thornley cannot be classed as a low order oí salvage, to be sufficiently compensated on the basis of work and labor meritoriously rendtred; and. considering the services and attendant cir-cumsfauces, in connection with the stipulated value oí the property salved, we are not able to say fhat the amount of §19,500, salvage actually allowed by the district judge, was in violation of any correct principle applicable to salvage services, nor that it was exorbitant to any such extent as of itself to show reversible error.

We have just decided, in The Trefusis, 98 Fed. 314, that where the salvage compensation is based upon correct principles, and cannot be said to be exorbitant, this court will not interfere, although the amount actually awarded may be in excess oí the sum the judges themselves would have allowed. The contract for salvage was entered into after the salvage services had commenced. It was entered into at the express instance and request of the master of the Thornley. There was no intimidation, oppression, concealment, misrepresentation, nor other misconduct, on the part of the salvors. The master, who suggested the contrae!., was fully advised of the situation. Aside from his position of master, he was personally interns hid as an owner in the ship. Unless his mind was decidedly unsettled, through fear of danger on account of the explosives on hoard, he was in full possession of his faculties, able and competent to represent owners. By the contract, the salvors released any lien they might have on the cargo salved; limited their demands to $20,000 in case of success, no matter what their time and expenses for service might be; and, in case of failure to successfully float the ship, they abandoned all claim, even to cargo saved by them.

“We do not say that, to impugn a salvage contract, such duress must he shown as would require a court: of law to set aside an ordinary contract'; but, whore no such circumstances exist as amount to a moral compulsion, the contract should not be held bad simply because the price agreed to he paid turned out to be much greater than the services were actually worth. The presumptions are in favor of the validity of the contract (The Helen and George, Swab. 368; The Medina, 2 Prob. Div. 5), although, in passing upon the question of compulsion, the fact that the contract was made at sea, or under circumstances demanding immediate action, is an important consideration. If, whtm the contract is made, the price agreed to be paid appears to he just and reasonable, in view of the value of the property at stake, the danger from which it is to he rescued, the risk to the salvors and the salving property, the time and labor probably necessary to effect the salvage, and the contingency of losing all in case of failure, this sum ought not to be reduced by an unexpected success in accomplishing the work, unless the compensation for the work actually done be grossly exorbitant.” The Elfrida, 172 U. S. 186, 197, 19 Sup. Ct. 146, 43 L. Ed. 413. Taking an excerpt, from the same case (page 194, 172 U. S., page 148, 19 Sup. Ct:., and page 416, 43 L. Ed.), as follows: “It may be said, in this connection, that the American and English courts are in entire accord in holding that a contract which the master has been corruptly or recklessly induced to sign will be wholly disregarded/’ — the learned proctor for the claimant contends that the reckless proffer of a contract is a better reason for disregarding his engagement than the reckless signing of such contract; and, further, that, from the apprehensions which the master felt in respect to the dynamite on board the Thorn-ley, he was not in a proper frame of mind to make a contract imposing a serious burden upon his vessel, cargo, and owners. As we have already stated, the evidence in the record does not warrant the finding that, under the particular circumstances attendant upon the dynamite on board the Thornley, there was or was not any actual danger to the crew, salvors, or vessel. The apprehensions which the master felt and expressed appear to have been no more than the apprehensions that people not particularly informed as to the manufacture and explosiveness of dynamite feel in regard to the danger of explosion. In respect to such apprehensions, the master differed-in no particular respect from the other people who had to deal with the cargo of the Thornley. The evidence in the record shows that in all matters concerning the cargo and preservation and interests of the Thornley, except, perhaps, in running her aground by keeping too far in shore, the master was particularly careful and attentive, and the result, in our minds, is that the master, during the "whole time occupied in getting the Thornley afloat, was as fully advised and competent to take care of his own and his owners’ interests as could be - expected from shipmasters generally.

The suggestion of the proctor for claimants that the salvage contract does not bind the master nor the steamer to the full payment of $20,000, we take, as he says he makes it, seriously; but, seriously, we see no good reason for his making it.

The proctor’s further contention, that, under the terms of the contract, the specified amount wras only to be paid upon the vessel’s being delivered safely in the port of Key West, and that the word “safely” should be construed to mean intact, without damage or deterioration, is not well founded. At the time the contract was made, the vessel was on a reef, where she had been run with great violence, and was thumping and pounding. To hold, in this state of the case, that the contracting parties had in mind that the ship should be salved in such perfectly sound condition as she was before she ran on the reef is to do violence to the common sense of the case. “Safely delivered” meant delivered in a safe place, with no impending dangers, the same as “safely arrived,” “safely moored,” “safely anchored.” “Safely,” in such connection, does not mean that the ship is intact, without injury or damage resulting from her voyage.

It is assigned as error in this appeal that the court below erred in treating the libel as though it declared upon a contract, and was seeking recovery for the amount named in the contract. The contract for salvage was made after the salvage services had been commenced, and somewhat proceeded with, and the libel contains a statement of the entire case. The relief prayed for was for payment of the sum of $20,000, the same sum named in the contract as reasonable and proper salvage. There were no exceptions filed to the libel. It is not claimed there was any surprise or uncertainty. The answer expressly puts in issue tlie validity of the contract, asserting that the same was made under duress, and was out of all proportion to the value of the ship and cargo and the skill displayed, and the risk and danger of salvors.

In Dupont de Nemours v. Vance, 19 How. 162, 171, 15 L. Ed. 587, it is held:

“Tlie rules of pleading in the admiralty are exceedingly simple and free from technical requirements. It is incumbent on the libelant to propound with distinctness tlie substantive facts on which he relies; to pray, either specially or generally, for tlie relief appropriate to them; and to ask for such process of the court as is suited to the action, whether in rein or in personam. It is incumbent on tlie respondent to answer distinctly each substantive fact alleged in the libel, either admitting- or denying, or declaring his ignorance thereof, and to allege such other facts as he relies upon as a defense, either in part or in whole, (o the case made by the libel. The proofs of each party must correspond substantially with his allegations, so as to prevent surprise. But there are no technical rules of variance or departure in pleading, like those in the common law, nor is the court precluded from granting the relief appropriate to the case appearing on ihe record, and prayed for by the libel, because that entire case is not distinctly stated in tlie libel. Thus, in eases of collision, it frequently occurs that the libel alleges fault of the claimant’s vessel; the answer denies it, and alleges fault; of the libelant’s vessel. The court finds, on the proofs, that both were in fault, and apportions the damages.”

The rules here declared seem to be particularly applicable to the case in hand. We notice that it is common practice in the admiralty, in suits brought to specifically recover on salvage contracts, and the facts are all brought out, for the court, on setting aside the contract for cause, to at once proceed, without amendment to the pleadings, to award proper compensation lor services actually rendered. See Brooks v. The Adirondack (D. C.) 2 Fed. 887; The Young America (D. C.) 20 Fed. 926; The Elfrida, 41 U. S. App. 585, 23 C. C. A. 527, 77 Fed. 754; The Tornado, 109 U. S. 110, 3 Sup. Ct. 78, 27 L. Ed. 874. Reversing the rule, where all facts are before the court, can work no hardship.

Tlie learned district judge of the court below, in disposing of this case, said, among other things, as follows:

“The one important question in tills case is whether the agreement made by the master of the steamship Thornley with the salvor should be recognized as valid anti binding upon the owners. The contention that the agreement or contract entered into was but a unilateral contract; that the. one party was bound, but the other was not; that tlie salvors were bound t.o take the vessel off for $20,000, but that the master was not bound to pay that amount, — cannot be accept oil. By the tenns, tlie contracting parties were nmlually bound; the master certainly bound to something, and, if to anything, it must be to a payment of the amount named. The defense that such agreement could not be considered binding, because the master had no opportunity to consult with his owners or underwriters, can have no weight. A master is a representative of the owners, and his contracts bind the property, whether marie by their advice or not. The recognition of any other principle in the determination of admiralty liens would overthrow every ostabhshori rule upon the subject. The supreme court, in the case of Post v. Jones, 19 How. 150, 15 L. ED. 618, squarely declared that ‘courts of admiralty will enforce contracts for salvage services and salvage compensation, where the salvor has not taken advantage of his power to moke au unreasonable bargain’; and in the more recent case of The Elfrida, 19 Sup. Ct. 146, 43 L. Ed. 413, reaffirmed the doctrine therein laid down, approving the eases in which it had been recognized, and quoting from numerous of them. Examining this case In the light of the rule declared In Post v. Jones, supra, can it be said that the salvors took any advantage of their power to make an unreasonable bargain? On the contrary, they expressed themselves willing to render any assistance in their power, regardless of any contract. There wás no pressure brought to bear upon the master, — neither concealment, fraud, nor deceit of any kind. All the advice, aid, and assistance required was tendered. Nor was the amount so contracted for so exorbitant or extortionate as to demand an ignoring of the agreement. It may be, possibly, slightly larger than I should have given had no contract been made; but not only the supreme court, but the English courts, have frequently declared that, in the matter of a contract for salvage, the mere fact that it was a hard bargain will not justify setting it aside. The vessel was in a position of danger. It was impossible for the master to relieve her. Every hour she remained there was one-, of peril. The locality was one of the most dangerous on a dangerous reef, where the records of this court show that vessels have gone to pieces more than once, and the service rendered by the salvors the only assistance available. The work was well done, with as good dispatch as possible under the circumstances, and the’ property relieved without loss or damage, except the ,small value'of the coal jettisoned. The number of men rendered necessary on account of the character of the work, and the importance of’ its being continued without remission, gives personally no more than an ordinary salvage reward. A comparison with the numerous cases cited in the Elfrida, as well as with that case itself, will show that the amount of the contract was not so unreasonable as to demand that it be set aside on that account.”

In this we concur, and on the whole case we are clear that the decree of the district court should be affirmed, with costs; and it is so ordered.