The Union Express

24 F. Cas. 574

Opinion

LONGYEAR, District Judge.

The first question that will be considered is, whether the service rendered by the tug was a salvage service. I think the barge and cargo were in a situation to have a salvage service rendered for them. They were adrift and utterly helpless, and night was coming on; and, although the barge came to anchor, she was in danger of being broken by any storm which might come on; the men were without provisions, and they had no small boat or other means of escape to the shore. It is true, there was no particular' peril to the tug or her crew, nor any special difficulty or enterprise in the undertaking; but those considerations do not necessarily determine the character of the service as a salvage service or not; they bear more directly upon the quantum or measure of compensation to be allowed, where more has been agreed on. I hold, therefore, that, the service being a salvage service, libellant has a lien therefor on both vessel and cargo enforceable in this court, independent of any effect that might be given to the contract between libellant and Holgate.

It is not important or necessary to consider whether Holgate’s agreement with libellant was valid or invalid, or whether, if valid, it bound both vessel and cargo, or cargo only if either; because, as already seen, a lien exists upon both independently of it; and for the further reason that I am satisfied that $7 per hour, the rate of compensation agreed on; is a fair and reasonable compensation on a quantum meruit. All that remains. therefore, is to determine the number ■of hours for which libellant is entitled to compensation. It was concluded that the draft given by Holgate was evidence of a settlement and of an adjustment of the amount in controversy. While that is correct, it is equally true that it is prima facie only, and it is not even that as to the vessel, for Holgate was interested in the cargo only, and he had no power to bind the vessel in that manner. And, in addition, it appears by libellant’s own testimony, that the data upon which Holgate made the adjustment were erroneous. He allowed the tug for 14 hours. The longest time that can be made by the testimony, is from 6 p. m. to 6 in the morning, which would be 12 hours. I think the most reasonable data, from the testimony, are 6% p. m. to 5y¡¡ in the morning— eleven hours instead of fourteen as allowed by Holgate. The distance was only 18 or 19 miles, and notwithstanding the tug' was obliged to run at a low rate of speed after she arrived in the vicinity where it might be expected the barge would be found, and also that she laid by the barge an hour or so waiting for the men to get supper, I think even eleven hours an unreasonable time. The only explanation of the extraordinaiy amount of time consumed isvthat, owing to some derangement of the tug’s boiler, a sufficient amount of steam could not be made to enable her to make better time. But the time lost on that account must be held to be the loss of the tug, and therefore cannot be charged to the vessel and cargo, especially in the absence of all proof that the condition ■of the tug was known to the parties interested when she was engaged and her services accepted. I think nine hours a liberal allowance as to time, and libellant’s recovery must be upon that basis.

9 hours’ service-> at 87 per hour. 8(53 00 Int. June IS, ’73, to date, Sept. 14, ’74, at 7 per cent. 5 48

Making a total of.$68 4S

For which amount libellant must have a decree, with costs. Decree for libellant.