Under these circumstances the steamboat (i.e., tug) and the ship constitute but one vessel and that vessel was the ship. The tug was the mere servant of the tow, and both were under the control and direction of the pilot in charge of the latter. Admitting for a moment that a wrong has been committed, the owners of the Imperial, through their agent, the pilot in charge, are the wrongdoers, and their vessel is alone liable therefor. The owner of the Reed did not participate in the supposed wrong, neither by itself nor by its servants. As well say that the wrong of a person who recklessly rides another down in a public thoroughfare is the wrong of the liveryman from whom he hired the horse.
It is not denied that there may be and have been cases in which both tug and tow are liable for the damage sustained by a collision. But in such case both participate in the management of the vessel, and the negligence of misconduct causing the same.
A case in which both tug and tow were held liable is that of the Civilta and the steam tug Restless, 13 Otto 699. In this case the tow had on board a pilot and the tug was subject to his orders. The libellant's schooner was struck by the hawser, then by the tow. The court said that the tow and tug were, in law, one vessel, and the question was, which one? It was held:
The tug furnished the motive power for herself and the ship. Both vessels were under the general orders of the pilot on the ship, but it is expressly found as a fact that the tug actually received no orders from him. Being on the ship, which was two hundred seventy feet astern of the tug, it is not to be presumed that he was to do more than direct the general course to be taken by the ship in getting to her place of destination. The details of the immediate navigation of the tug, with reference to approaching vessels, must necessarily have been left to a great extent to those on board of her. She was where she would ordinarily see an object ahead before those on the ship could, and having all the motive power of the combined vessels under her own control, she was in a situation to act promptly and do what was required under the circumstances.
*****
We do not entertain a doubt that, situated as the tug was, in the night, so far away from the ship, it was her duty to do what was required by the law of a vessel under steam, to keep herself and the ship out of the way of an approaching vessel, particularly if the pilot of the ship did not assume actual control for the time being of the navigation of the two vessels.
Such being the case, we think it clear both vessels were in fault.
A decree was accordingly given against both the ship and the tug and the damage apportioned one-half to each with the provision that if either of the vessels should prove insufficient to pay its share the residue might be collected from the other.
If the wrongful act or breach of contract of either tug or tow occasions damage to the other, liability will follow and usually a maritime lien. The owners of the tug have a lien upon the tow for the price of the towage and the owners of the tow and its cargo have a lien upon the tug for failure to perform the contract or damages sustained through negligence.
An example is found in the Cayuga, 16 Wall. 177. There the tug Cayuga undertook a tow of thirty canal boats and barges from Albany to New York. The tow was faultily made up by the tug, libellant's canal boat being upwards of 1,000 feet astern of her. By reason of this faulty make-up and of the method of navigation adopted by the tug, libellant's canal boat was twice brought into collision with obstacles in the river, the first time with a lighthouse and the second with a submerged rock. The result of the second collision was the loss of the boat. The tug defended on the ground that the canal boat was unseaworthy and that her captain was negligent in cutting her loose from the tow immediately after the second collision.
Even where a contract of towage specifically provides that the tow is being conveyed at her own risk, the tug will be liable in admiralty if through the tug's negligence the tow is injured. The contract will not avail as a defense against negligence (The Syracuse, 12 Wall. 167).
In the case of the Wm. H. Webb, 14 Wall. 406, the owner of the steamship Shooting Star brought a libel in rem against the tug Wm. H. Webb for breach of contract to tow the Shooting Star from Portsmouth to New York, charging negligence and mismanagement in the towage, whereby the tow was grounded on Tuckernuck Shoal, which was more than three miles out of the proper course. The court held that the tug was negligent and, therefore, liable. Mr. Justice Strong said:
It must be conceded that an engagement to tow does not impose either an obligation to insure, or the liability of common carriers. The burden is always upon him who alleges the breach of such a contract to show either that there has been no attempt at performance, or that there has been negligence or unskillfulness to his injury in the performance. Unlike the case of common carriers, damage sustained by the tow does not ordinarily raise a presumption that the tug has been in fault. The contract requires no more than that he who undertakes to tow shall carry out his undertaking with that degree of caution and skill which prudent navigators usually employ in similar services.
The action for negligent performance of the towage contract may be either against the tug or its owner by the owners or underwriters of the injured property. The damages are those which naturally follow the breach; if the tow and cargo are totally lost, the market value, at the time and place of the loss, with interest, will be allowed as in cases of loss by collision; if the loss is partial then the expenses of repairs, with compensation for loss of use, or demurrage for the time which the work of rescue and repair occupies. Where the tow is old and unseaworthy, the admiralty sometimes apportions the damages. Where both tug and tow are at fault the damages will be divided between them according to the usual admiralty rule[23] (see the Civilta and the Restless, 13 Otto 699, supra).
Where a third party is damaged through the fault of a tug or the vessel which she has in tow, the party damaged has a right of action against the author of the injury. It is often said that the tug and her tow constitute a single entity. This is true to the extent that where through the negligent operation of the tug damage is done to a third party by one of the vessels in tow, the responsibility rests upon the tug, but responsibility in such cases will not ordinarily attach to the vessel in tow. The tow may be liable in such a case, on the theory that the tug is her agent, but if the tug occupies the status of an independent contractor no liability rests upon the tow. We have seen in the Clara Clarita, 23 Wall. 1, cited in § 5, supra, a case in which a tug was held liable for damage by the tow and in which the tow was held to be free from liability because the tug was not her agent. In the case of Liverpool &c. Navigation Co. v. Brooklyn Eastern Dist. Terminal, decided December 8, 1919 (U. S. Supreme Court Advance Sheets, 85), a car float was lashed to the side of the steam tug Intrepid, and through the negligent operation of the tug the float was driven into collision with the S. S. Vauban, the tug, herself, not coming into collision. It happened that the car float and tug belonged to the same owner. It was held that the responsibility was that of the tug alone; that she might limit her liability to her own value; that the float belonged to the same owner made no difference, and the float accordingly escaped liability. Mr. Justice Holmes said:
The car float was the vessel that came into contact with the Vauban, but as it was a passive instrument in the hands of the Intrepid, that fact does not affect the question of responsibility (citing numerous cases).
These cases show that for the purposes of liability the passive instrument of the harm does not become one with the actively responsible vessel by being attached to it. If this were a proceeding in rem it may be assumed that the car float and disabled tug would escape, and none the less that they were lashed to the Intrepid, and so were more helplessly under its control than in the ordinary case of a tow.
It is said, however, that when you come to limiting liability, the foregoing authorities are not controlling,—that the object of the statute is "to limit the liability of vessel owners to their interest in the adventure," and that the same reason that requires the surrender of boats and apparel requires the surrender of the other instrumentalities by means of which the tug was rendering the services for which it was paid. It can make no difference, it is argued, whether the cargo is carried in the hold of the tug or is towed in another vessel. But that is the question, and it is not answered by putting it. The respondent answers the argument with the suggestion that, if sound, it applies a different rule in actions in personam from that which, as we have said, governs suits in rem. Without dwelling upon that, we are of opinion that the statute does not warrant the distinction for which the petitioner contends.
In the case of Sturgis v. Boyer, 24 How. 110, the ship Wisconsin, which was being towed by the tug Hector, collided with the lighter Republic in New York harbor. The owners of the lighter libeled both the tug and the tow. The owner of the tug filed an answer, setting up that the tug was merely the motive-power to move the ship to the pier, that the tug and her crew were subject to and obeyed the orders of the master and other officers in charge of the ship, and prayed that in case the libellants should recover any sum against the ship and tug, that he, the owner of the tug, might have decree over against the ship. The owners of the ship admitted that she had a master and a full crew on board, but alleged that they were all under the direction and control of the master and officers of the tug. The Court was clearly of opinion that a case of negligence was made out by the owners of the lighter, and the only question in doubt was as to the relative responsibility of the tug and vessel in tow.
Cases arise, undoubtedly, when both the tow and the tug are jointly liable for the consequences of a collision; as when those in charge of the respective vessels jointly participate in their control and management, and the master or crew of both vessels are either deficient in skill, omit to take due care, or are guilty of negligence in their navigation. Other cases may well be imagined when the tow alone would be responsible; as when the tug is employed by the master or owners of the tow as the mere motive power to propel their vessels from one point to another, and both vessels are exclusively under the control, direction and management of the master and crew of the tow. Fault in that state of the case cannot be imputed to the tug, provided she was properly equipped and seaworthy for the business in which she was engaged; and if she was the property of third persons, her owners cannot be held responsible for the want of skill, negligence or mismanagement of the master and crew of the other vessel, for the reason that they are not the agents of the owners of the tug, and her owners in the case supposed do not sustain towards those entrusted with the navigation of the vessel the relation of the principal. But whenever the tug, under the charge of her own master and crew, and in the usual and ordinary course of such an employment, undertakes to transport another vessel, which, for the time being, has neither her master nor crew on board, from one point to another, over waters where such accessory motive power is necessary or usually employed, she must be held responsible for the proper navigation of both vessels; and third persons suffering damage through the fault of those in charge of the vessels must, under such circumstances, look to the tug, her master or owners, for the recompense which they are entitled to claim for any injuries that vessels or cargo may receive by such means. Assuming that the tug is a suitable vessel, properly manned and equipped for the undertaking, so that no degree of negligence can attach to the owners of the tow, on the ground that the motive power employed by them was in an unseaworthy condition, and the tow, under the circumstances supposed, is no more responsible for the consequences of a collision than so much freight; and it is not perceived that it can make any difference in that behalf, that a part, or even the whole of the officers and crew of the tow are on board, provided it clearly appears that the tug was a seaworthy vessel, properly manned and equipped for the enterprise, and from the nature of the undertaking, and the usual course of conducting it, the master and crew of the tow were not expected to participate in the navigation of the vessel, and were not guilty of any negligence or omission of duty by refraining from such participation.
*****
Unless the owner and the person or persons in charge of the vessel in some way sustain towards each other the relation of principal and agent, the injured party cannot have his remedy against the colliding vessel. By employing a tug to transport their vessel from one point to another, the owners of the tow do not necessarily constitute the master and crew of the tug their agents in performing the service. They neither appoint the master of the tug, or ship the crew; nor can they displace either one or the other. Their contract for the service, even though it was negotiated with the master, is, in legal contemplation, made with the owners of the vessel, and the master of the tug, notwithstanding the contract was negotiated with him, continues to be the agent of the owners of his own vessel, and they are responsible for his acts in her navigation.
*****
Whether the party charged ought to be held liable, is made to depend, in all cases of this description, upon his relation to the wrongdoer. If the wrongful act was done by himself, or was occasioned by his negligence, of course he is liable, and he is equally so, if it was done by one towards whom he bore relation of principal; but liability ceases where the relation itself entirely ceases to exist, unless the wrongful act was performed or occasioned by the party charged.
*****
Applying these principles to the present case, it is obvious what the result must be. Without repeating the testimony, it will be sufficient to say, that it clearly appears in this case that those in charge of the steam tug had the exclusive control, direction and management of both vessels, and there is not a word of proof in the record, either that the tug was not a suitable vessel to perform the service for which she was employed, or that any one belonging to the ship either participated in the navigation, or was guilty of any degree of negligence whatever in the premises.
There are port and sea pilots, the latter being a name for those of her officers who navigate the ship at sea and the former meaning those who take the ship in and out of harbor. Port or coast pilots are a class by themselves, exercising an office of great importance, and usually regulated by law. This is the class referred to in U. S. Comp. St. 1916, § 7981, where it is enacted that "until further provision is made by Congress, all pilots in the bays, inlets, rivers, harbors, and ports of the United States shall continue to be regulated in conformity with the existing laws of the States respectively wherein such pilots may be, or with such laws as the States may respectively enact for the purpose." The former class, or sea pilots, are dealt with by Congress in §§ 8204, 8205, 8206, 8207, 8208, etc., of the same volume. The several states may, therefore, regulate and license port pilots, that is, the class whose employment is to guide vessels in and out of their respective ports. They may make it a criminal offense for a pilot not duly qualified under their laws to take a vessel through their waters and make all requisite provisions in regard to qualifications, fees and licenses, so long as Congress refrains from further legislation on the subject. Most of the States on the seaboard have such statutes, different somewhat in detail but generally similar in effect. Ships are not absolutely bound to accept the services of such pilots but must pay their fees, in whole or in part, if services are tendered and declined.
The pilot is the servant of the owner, if voluntarily employed, otherwise not. Like other persons, he is answerable for any damage he may cause by negligence or default. Occupying a quasi-public position and the ship not being free to decline his services, it is his duty to render his services, when requested, to the best of his ability. If he refuses, he may be liable both civilly and criminally. The ancient sea-laws were stringent in this regard; the Laws of Oléron, for example, provide that if disaster is sustained by the ignorance of the pilot, he shall be obliged to make full satisfaction therefor, and, if he has not wherewith to make satisfaction, the master, or any one of the mariners or merchants may cut off his head and shall not be bound to answer for it. When a pilot takes charge of a vessel at sea, it is his duty to stay by her, unless discharged, until she reaches her destination or some place of safety. He is held to be able to anticipate the action of the wind and sea on boats in his charge. He must be thoroughly familiar with the topography and character of the waters for which he offers his services, and keep acquainted with all changes therein, both as to fixed and temporary landmarks and also as to the character of the bottom and presence of temporary obstructions therein.
While a pilot is on board he has absolute and exclusive authority in the absence of the master, and, probably, ranks the master when he is present. The authorities are not plain or satisfactory on this point, but there ought not to be any divided authority, particularly in such navigation as that for which the law requires the employment of a pilot. Unless the master retains, or reassumes, charge of the ship, the pilot has exclusive control and all are bound to obey his orders; he is an officer of the ship within the meaning of the statutes in regard to revolts and mutinies. But the master's authority is not annulled and it would be his duty to interfere in case of gross ignorance or palpable mistake on the part of the pilot.
Thus, in the case of the China, 7 Wall. 53, where the pilot was employed under a compulsory pilot law, the Court said:
It is the duty of the master to interfere in cases of the pilot's intoxication or manifest incapacity, in cases of danger which he does not foresee, and in all cases of great necessity. The master has the same power to displace the pilot that he has to remove any subordinate officer of the vessel. He may exercise it or not, according to his discretion.
In Ralli v. Troop, 157 U. S. 386, Justice Gray said:
To the pilot, therefore, temporarily belongs the whole conduct of the navigation of the ship, including the duty of determining her course and speed, and the time, place and manner of anchoring her. But the master still has the duty of seeing to the safety of the ship, and to the proper stowage of the cargo. For instance, the duty to keep a good lookout rests upon the master and crew. And it has been held by Dr. Lushington, in the English High Court of Admiralty, that, although a pilot is in charge, the trim of the ship is within the province of the master; as well as the duty, if two vessels entangled together, to cut away part of the rigging of his vessel, when necessary, in order to avoid a collision, or to lessen its effect, because the vessel, the judge said, "was not under orders of the pilot for this purpose; she was only under the pilot's directions for the purpose of navigation; and the master, in a case of this description, is not to wait for the pilot's directions, which would tend to create great confusion and delay."
Compensation of pilots is largely regulated by local statutes and where their employment is compulsory, an offer of service, if declined, will nevertheless create a liability for full or partial fees against the vessel. If no fees are fixed by local law, the amount will be measured by what is customary or fair and reasonable. By the general maritime law, the pilot has a lien upon the ship for services rendered which is of high rank and priority (but is junior to a "preferred mortgage given on an American ship pursuant to the Merchant Marine Act of 1920", see Appendix). By acting as master, he may waive his lien as pilot in those cases where there is no lien for a master's services; and, correspondingly, one who is engaged and ships as a pilot of a vessel, whereon another stands as registered master, has a lien on the boat for his wages although he may be in entire charge of her navigation.
The pilot is considered as the master for the time being and is answerable for any loss or injury caused by his want of skill. Such negligence may consist in lack of knowledge of the locality or failure to handle the ship with ordinary care. In general he must exercise the ordinary care and skill of his profession and failure so to do will render him liable for negligence. Harbor pilots, for example, are selected for their personal knowledge of the topography through which they take the ship and are deemed to know all its landmarks, channels, courses, constructions and local regulations. All these they must know and remember and observe. They must be expert in their business and each must furnish the same degree of care and skill commonly possessed by others in the same vocation. Thus pilots have been held liable for running a vessel against a pier freshly built into the channel; for failing to appreciate the significance of fixed lights; for towing in a gale; for hugging the shore on a dark night; they are answerable for the safety of the property in their charge and, in the event of damage or loss, will be released from liability only by showing that the causes were beyond their control, as by proving due care and skill or that the cause was an act of God or unavoidable emergency. Where a vessel in his charge is brought into collision and pays, either under a decree or through a reasonable settlement, the damages arising therefrom, the pilot may be held liable over to her owners for what they have been so compelled to pay. But members of pilots' associations are not jointly liable for the negligence of their members even if their earnings go into a common fund.
A case illustrative of the duties and responsibilities of a pilot is that of Wilson v. Charleston Pilots' Association, 57 Fed. 227. The master of the schooner Kate Aitken, which was in Charleston harbor and was about to go to sea in tow of the tug Relief, applied to the Association for a pilot, and Mr. Bringloe was assigned to him. When the pilot boarded the schooner he asked the master whether he preferred the pilot to be on the tug or on the schooner. It was the custom to put the pilot on the tug, unless the master wished otherwise. The master expressed his preference that the pilot should be on the tug. The Court remarked in passing "that if disaster occur because the pilot is on the wrong boat he cannot excuse himself by reason of any preference of the master. He is employed because of his supposed knowledge of all that is necessary to take a vessel to sea." The pilot took his place on the tug and gave direction with regard to the position of the hawser. He took his position on the top of the house and constantly directed the movements of both tug and schooner. Nevertheless the schooner went aground. The Court said:
Is the pilot responsible in damages for this accident? He was in control of the movements of the tug and of the tow. He was charged with the safety of the schooner, and of all that she carried, being bound to use due diligence and care and reasonable skill in the exercise of his important functions. He is answerable if the schooner suffered damage through his default, negligence, or want of skill, while her helm was under his control. He was not an insurer, and is only chargeable for negligence if he fail in due knowledge, care, or skill in avoiding obstructions known or which should have been known to him. If he used his best judgment and skill in avoiding known dangers, he cannot be held liable, although the result may show that his judgment was wrong. "It is settled that if the occupation be one requiring skill, the failure to exert that needful skill, either because it is not possessed or from inattention, is gross negligence." Curtis, J., in the New World v. King, 16 How. (U. S.) 469. An eminent text writer, whose name is authority, lays down the principle:
"Every man who offers his services to another, and is employed, assumes to exercise in the employment such skill as he possesses with a reasonable degree of diligence. In all these employments where peculiar skill is requisite, if one offer his services, he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretensions are unfounded he commits a species of fraud on every man who employs him in reliance on his public profession. But no man, whether skilled or unskilled, undertakes that the task he assumes shall be performed successfully and without fault or error. He undertakes for good faith and integrity, but not for infallibility; and he is liable to his employer for negligence, bad faith, or dishonesty, but not for losses consequent on mere error of judgment."
This is the law of this case.
*****
There is a total absence of evidence tending to show want of knowledge, want of care, or want of skill, or bad faith, except the fact of the accident itself. This is not a case in which the fact of the accident is conclusive of the cause. If the grounding arose from the act of the pilot, it was by an error of judgment. The distinction between an error of judgment and negligence is not easily determined. It would seem, however, that if one assuming a responsibility as an expert possesses a knowledge of facts and circumstances connected with the duty he is about to perform, and if he brings to bear all his professional experience and skill, weighs these facts and circumstances, and decides upon a course of action which he faithfully attempts to carry out, the want of success, if due to such course of action, would be attributed to error of judgment, and not to negligence. But if he omits to inform himself as to facts and circumstances, or does not possess the knowledge, experience, or skill which he professes, then, if failure is caused thereby, this would be negligence. But it does not appear that the accident was occasioned by an error of judgment on the part of the pilot.
The ship will be liable for damage done while in charge of a pilot unless there is a special exemption by local law.
Where the law requires the ship to take a pilot on board and to surrender the navigation of the ship to him, the master and owners are exempt from responsibility for damages resulting from the mismanagement of the pilot. The reason is this: The laws which establish such compulsory pilotage are intended to secure, as far as possible, protection to life and property, by supplying a class of men better qualified than ordinary mariners to take charge of ships where navigation is attended with unusual difficulty on account of local conditions; the master, however well qualified, is compelled under penalty to abdicate his authority in favor of the pilot, and, if so, it is unjust that either he, or the owner, should be personally answerable for the errors of an official in whose selection he had no choice. The responsibility of an owner for the acts of his servant rests upon the presumption that the owner chooses the servant and gives him orders which he is bound to obey and that responsibility ceases when the law supplants the owner's choice. Therefore neither the master nor the owner can be successfully sued at common law, or personally in the admiralty, for damage done by a compulsory pilot. This was held on a full consideration of the American and English authorities by Justice Gray in Transportation Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406, which is very instructive in this connection.
The ship, however, is liable for such damage, although in charge of a compulsory pilot. The reason is this: By American admiralty law, the ship is treated as a personality for many purposes and, in whosesoever hands she may lawfully be, is treated as the actual wrongdoer, irrespective of any question of agency or employment. Thus, in this country, the ship by whose fault a collision has occurred may be sued directly, although in charge of a compulsory pilot at the time the disaster occurred. In England the rule is different and the ship is not liable if the owner could not be sued. The leading American case on this point is that of the China, 7 Wall. 53. The China, while under the control of a compulsory pilot, was in collision with the brig Kentucky, which was wholly free from blame. On a review of the English and American authorities the Court (Swayne, J.) held:
The services of the pilot are as much for the benefit of the vessel and cargo as those of the captain and crew. His compensation comes from the same source as theirs. Like them he serves the owner and is paid by the owner. If there be any default on his part, the owner has the same remedies against him as against other delinquents on board. The difference between his relations and those of the master is one rather of form than substance.
*****
The maxim of the civil law—sic utere tuo ut alienum non laedas—may, however, be fitly applied in such cases as the one before us. The remedy of the damaged vessel, if confined to the culpable pilot, would frequently be a mere delusion. He would often be unable to respond by payment—especially if the amount recovered were large. Thus, where the injury was the greatest there would be the greatest danger of a failure of justice. According to the admiralty law, the collision impresses upon the wrong-doing vessel a maritime lien. This the vessel carries with it into whosesoever hands it may come. It is inchoate at the moment of the wrong and must be perfected by subsequent proceedings. Unlike a common law lien, possession is not necessary to its validity. It is rather in the nature of the hypothecation of the civil law. It is not indelible, but may be lost by laches or other circumstances.
The proposition of the appellants would blot out this important feature of the maritime code, and greatly impair the efficacy of the system. The appellees are seeking the fruit of their lien. All port regulations are compulsory. The provisions of the statute of New York are a part of a series within that category. A damaging vessel is no more excused because she was compelled to obey one than another. The only question in all such cases is, was she in fault? The appellants were bound to know the law. They cannot plead ignorance. The law of the place makes them liable. This ship was brought voluntarily within the sphere of its operation, and they cannot complain because it throws the loss upon them rather than upon the owners of the innocent vessel. We think the rule which works this result is a wise and salutary one, and we feel no disposition to disturb it.
Admiralty, Hughes, 117-124; 28-38.
Admiralty Reports, Brown, Williams, 208.
Sturgis v. Boyer, 24 How. 110.
Collisions, Marsden, Chapter VIII.
Webb, 14 Wall. 406.
[23] See § 9, Chapter XI, supra.
Salvage may be defined as a legal liability which is created by the rescue of maritime property from perils of the sea. It may be quite independent of contract or agreement and these do not affect its nature. The word also designates the reward or compensation for the rescue and, sometimes, the property which is saved. Its essentials are maritime property in peril and a voluntary successful effort to save it. From the standpoint of the owner of the property, it is the price of safety.
The ingredients of a salvage service are, first, enterprise in the salvors in going out in tempestuous weather to assist a vessel in distress, risking their own lives to save their fellow-creatures, and to rescue the property of their fellow-subjects; secondly, the degree of danger and distress from which the property is rescued—whether it were in imminent peril, and almost certain to be lost if not at the time rescued and preserved; thirdly, the degree of labor and skill which the salvors incur and display, and the time occupied. Lastly, the value. Where all these circumstances concur, a large and liberal reward ought to be given; but where none, or scarcely any take place, the compensation can hardly be denominated a salvage compensation: it is little more than a remuneration pro opere et labore (The Clifton, 3 Hagg. Adm. 14, 48 [quoted with approval in Cope v. Drydock Co., 119 U. S. 625]).
General Average is also the price of safety under different circumstances. It is the contribution required of the parties interested in a maritime venture to compensate the sacrifice of a part for the safety of the rest. The typical instance is the jettison of cargo in order that the ship may be saved; the loss is equalized by a general average.
The subject of salvage can only be vessels and property that is or has been on board a vessel. In Chapter I § 4, there is some discussion of what constitutes a ship within the meaning of the law. In Cope v. Drydock Co., 119 U. S. 625, salvage was claimed rescuing a floating drydock, which had been in collision with a steamship and was on the point of sinking. The Court held that the service performed was not salvage because the drydock was not a vessel and not a salvable thing. Justice Bradley said that a dock, though floating, was not used for the purpose of navigation and that "no structure that is not a ship or vessel is a subject of salvage," adding:
A ship or vessel, used for navigation and commerce, though lying at a wharf, and temporarily made fast thereto, as well as her furniture and cargo, are maritime subjects, and are capable of receiving salvage service.
*****
If we search through all the books, from the Rules of Oléron to the present time, we shall find that salvage is only spoken of in relation to ships and vessels and their cargoes, or those things which have been committed to, or lost in, the sea or its branches, or other public navigable waters, and have been found and rescued.
*****
There has been some conflict of decision with respect to claims for salvage service in rescuing goods lost at sea and found floating on the surface or cast upon the shore. When they have belonged to a ship or vessel as part of its furniture or cargo they clearly come under the head of wreck, flotsam, jetsam, ligan, or derelict, and salvage may be claimed upon them. But when they have no connection with a ship or vessel some authorities are against the claim, and others are in favor of it.
It was held by the Supreme Court of the United States (The Jefferson, 215 U. S. 130) that where a vessel, laid up in drydock in a shipyard for repairs, was saved from destruction by a fire, which was raging in the shipyard, by tug boats in the stream which played streams of water from the stream upon the endangered vessel, it was a case of salvage. The Court after remarking that a maritime lien for repairs existed against a vessel in drydock, said:
There is no distinction between the continued control of admiralty over a vessel when she is in a drydock for the purpose of being repaired, and the subjection of the vessel when in a drydock for repairs to the jurisdiction of a court of admiralty for the purpose of passing upon claims for salvage services, by which it is asserted the vessel, while in the dock, was saved from destruction.
Whoever performs a salvage service acquires a maritime lien of the highest rank upon the property saved for this compensation. This lien is quite independent of possession and will be enforced by a court of admiralty by a proceeding in rem, i.e., against the ship. Ordinarily it is the salvor's duty promptly to place the property in possession of the court by libeling it for salvage at his first opportunity for such an award as the court shall deem just. This will usually be his only remedy, in the absence of an express contract. There is no personal liability against the owner of the property saved unless he requested performance of the service or received the property with knowledge of the claim.
The amount of salvage is usually regulated by the value of the property saved and the value of that engaged in the operation; the degree of risk or peril and the time and expense of the salvors. The expenses of volunteer salvors cannot be recovered as such, though the court may take them into consideration in fixing the amount of the award.[24] Success is essential. There can be no salvage award for the most meritorious efforts if unsuccessful. It is the policy of the admiralty to stimulate efforts for the rescue of property in distress by liberal rewards and also to discourage exorbitant demands and inequitable behavior by correspondingly reducing them. In the case of the Sandringham, 10 Fed. 556, the court listed the factors involved in determining the amount to be awarded as salvage as follows:
(1) The degree of danger from which the lives or property are rescued.
(2) The value of the property saved.
(3) The risk incurred by the salvors.
(4) The value of the property employed by the salvors in the wrecking enterprise, and the danger to which it was exposed.
(5) The skill shown in rendering the service.
(6) The time and labor occupied.
(7) The degree of success achieved, and the proportions of value lost and saved.
Work of this nature is often performed by contract, by vessels and corporations equipped and organized for the purpose. This fact does not militate against their claims as salvors in proper cases but the courts will not hesitate to modify the contract if they consider it unjust. The case of the Leamington, 86 Fed. 675, contains a note giving many instances of amounts awarded under various circumstances.[25]
As a general thing salvage is not allowed in an amount exceeding 50 per cent of the value of the thing salved, although there are cases where as high as 75 per cent has been allowed. There was an old rule, "50 per cent for a derelict." This rule has been departed from in many cases. The amount to be awarded lies largely in the sound discretion of the trial court which takes into consideration all of the elements of labor, risk, value, time, expense, and any other features that may enter into the case. It is practically impossible to lay down rules for determining the amount to be awarded. The books, however, say that the award should not be so great that the salvage service becomes of no use to the owner of the thing salved. For example if the charges and expenses of the owner come to 50 per cent of the value of the thing salved, an award of 50 per cent will not be made to the salvors, no matter how perilous, arduous and meritorious their work may have been to the owners. Sometimes the award when computed on percentage of the value of the salved property is very small, in some cases only about 4 per cent. These are cases where the service performed was not extensive or highly meritorious and the salvage property was of large value, so that the amount of money received by the salvors was considerable, though the percentage was small. The amount awarded to salvors is not always calculated on the basis of a percentage or proportion of the value salved; in many cases the trial court fixes a flat figure which it thinks the service worth.
Generally, any one not under obligation to render the service, may rank as a salvor, and, conversely, those obliged to work, cannot claim any reward. Sailors on the ship in peril cannot be salvors until released from their engagement or an abandonment of the ship. A passenger cannot earn salvage by mere labor on a vessel in peril, for this is his duty, yet for extraordinary services he may have a salvage award. Such was the case of the Great Eastern when she had been disabled by a gale and was lying helpless in the trough of the sea. Among the passengers was a civil engineer who ingeniously devised and after twenty-four hours' labor carried out a plan for steering her so that she was able to make port. The court awarded him about $15,000. So, in the Fair American, captured by a French privateer and in charge of a prize-crew, her cook succeeded in recapturing and bringing her into port by exertions outside his line of duty, and ranked as a salvor accordingly.
A pilot acting within the line of his duty, however he may entitle himself to extraordinary pilotage compensation as distinct from ordinary pilotage for ordinary services, cannot be entitled to claim salvage, but a pilot is not disabled from becoming a salvor if he performs salvage services outside the scope of his duties. He stands in the same relation to the property as any other salvor (Hobart et al. v. Drogan, 10 Peters 108).
Cases have frequently arisen in which a vessel that has towed another into a place of safety has claimed salvage for so doing. Whether or not the service rendered amounts to salvage and entitles the towing vessel to a salvage reward, or is mere towage to be recompensed as such, is sometimes difficult to determine. There is no fixed guide. In the J. C. Pfluger, 109 Fed. 93, the Court said:
If the vessel towed was by this means aided in escaping from a present or prospective danger, the service will be regarded as one of salvage, and the towage as merely an incident. If, upon the other hand, the vessel thus assisted was not encompassed by any immediate or probable future peril, such service will be treated as one of towage merely, and compensated as such. It was said by Dr. Lushington (The Charlotte, 3 W. Rob. Adm. 68) that, in order to constitute a salvage service, it is "not necessary that the distress should be actual or immediate, or the danger imminent and absolute; it is sufficient if, at the time the assistance is rendered, the ship has encountered any damage or misfortune which might possibly expose her to destruction if the service were not rendered." In McConochie v. Kerr (D. C. 9 Fed. 50), Judge Brown, in pointing out the distinction between a salvage and towage service, said:
"A salvage service is a service which is 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."
In the case of the Emily B. Souder, 15 Blatch. 185, Fed. Cas. No. 4,458, Chief Justice Waite stated the law upon this point as follows:
"It is well settled that, if there is not actual or probable danger, and the employment is simply for the purpose of expediting the voyage, such service is towage and not salvage."
Under the plain and well-settled rule declared in the foregoing cases, whether a particular service was one of salvage or towage is always a question of fact to be ascertained from a consideration of the circumstances under which the court shall find the service was rendered; and, unless the evidence shows that the vessel towed was thereby assisted in getting safely away from some actual or apprehended peril, the case is not one in which salvage has been earned.
In the Reward, 1 W. Rob. 174, a distinguished English judge laid it down that,
Mere towage service is confined to vessels that have received no injury or damage; and mere towage reward is payable in those cases only where the vessel receiving the service is in the same condition she would ordinarily be in without having encountered any damage or accident.