The West Mount

277 F. 168, 1921 U.S. App. LEXIS 1994

• Court: Court of Appeals for the Second Circuit
• Decided: November 16, 1921
• Docket: Nos. 7-8-9-10-11
• Status: Published

Opinion

HOUGH, Circuit Judge

(after stating the facts as above). It was asserted at bar that the decrees complained of were entered upon the consent or agreement of the advocates who tried (as a consolidatd case) these five claims for salvage. Alter calling for statements from ctll of said advocates, and from the trial judge, we are satisfied that, although the District Court believed that an agreement had been reached, it cannot be asserted as a fact that there was any concert of minds to the effect that (1) the services alleged were salvage services, and (2) that they were worth in the aggregate $85,000. That the court below believed itself to be merely registering counsel’s agreement is doubtless the reason why we have no considered decision, giving reasons for or seeking to justify the award. Under the circumstances, however, we are compelled to consider this appeal as from'a ruling of the court, that in its judgment the evidence showed that $85,000 was “reasonable and proper.”

Our opinion in The Niels Nielsen, 277 Fed. 164, filed with this decision, and in a case coming from the same court, dispenses with any lengthened consideration of the rules applicable to salvage generally and harbor salvage in particular. The service rendered the West Mount was of perhaps the most frequent type of harbor service; i. e., the selection in broad daylight from numerous applicants, all eager to earn salvage money, of a sufficient number of tugs to tow out of a berth potentially, if not presently, dangerous, a vessel of no remarkable size.

[1] Doubtless the service amounted to salvage. .This appeal relates to nothing but amount; and of such appeals it has been lately said that they are not to be encouraged, “unless there has been some violation of principle.” Oelwoerke v. Erlanger, 248 U. S. 521, 39 Sup. Ct. 180, 63 L. Ed. 399. The principles of harbor towage have continuously, and we think consistently, been illustrated in this court from The Bay of Naples, 48 Fed. 737, 1 C. C. A. 81, and The Hanchett, 76 Fed. 1003, 22 C. C. A. 678, to the very recent cases of The Geo. W. Elzey, 250 Fed. 602, 162 C. C. A. 618; The No. 92, 252 Fed. 117, 164 C. C. A. 229, and The High Cliff, 271 Fed. 202.

[2] A reference to these decisions is sufficient to show by an award of $85,000 for the service above set forth there' has occurred a violation of principle. Guffey, etc., Co. v. Borison, 211 Fed. 594, 128 C. C. A. 194, is perhaps the nearest case in the books to the present. In the nature of the danger, the kind of service rendered, and the elements to be considered, the opinion of Pardee, J., renders further consideration by us of the facts herein unnecessary.

It may also be noted, by way of comparison with skillful and difficult deep water salvage, that in The Varzin (D. C.) 180 Fed. 892, affirmed 185 Fed. 1007, 107 C. C. A. 398, and The Melderskin (D. C.) 249 Fed. 776, the values salved were almost identical with the stipulated value in this case; the services were on the high seas, and in each case extended over several days; the salvors displayed great skill as mariners, and the owners’ property was exposed to far greater danger of permanent injury than in this case; yet in each instance the award, after much consideration, was $45,000.

It- is, however, seriously urged that salvage awards should now be greater than they were at the time of most of the decisions hereinabove ■ referred to, because the dollars in which they are paid are not worth as much as they used to be. It is just as true that the dollars in which tip; salved ship’s value is expressed are similarly depreciated, and it is in consideration of such values, inflated because of depreciation, that awards are made. The relation between what is salved and what is paid for the salvage necessarily remains unchanged, as long as both value and award are expressed in the same monetary units. But the mere money value of what is salved is never the leading consideration in making award.

The award of $85,000 is reduced to $40,000, to be divided in the same proportions as was agreed upon by counsel below, and the decrees, as modified by this opinion, are affirmed.