#### JOSHUA E. GONZALES v. THE UNITED STATES.

(No. 26316.

Decided April 1, 1907.)

*On the Proofs.*

The charter party of the Dorothy provides that the Government shall pay a monthly rental; that the owner shall furnish the master, crew, fuel, and equipment; that only a single crew shall be furnished; and that no payment shall be made for her services for any time lost because of damages. She is assigned" to service through the daytime only. After her day’s work is done she assists in saving a caisson belonging *300to the Government which has broken away from a Government vessel to which it was lashed for the purpose of .being transported to another place. The principal question in the case is whether a caisson so lashed to a vessel for transportation can be deemed cargo so as to entitle salvors to remuneration.

I.Salvage relates only to vessels and their cargoes or to those things which have been committed to or lost in the sea and have been found and rescued. *

II.The term “ *ship or vessel ”*can not be construed to include a dry dock, a floating bridge, a meeting-house moored to a wharf, a lighted buoy or a steamboat which has been dismantled and fitted up as a hotel.

III. Salvage is compensation allowed to persons by whose assistance a vessel or her cargo or the lives of persons belonging to a vessel are saved from danger or loss.

IV. A caisson lashed to a vessel for transportation to another place may be considered cargo, though not actually on board, and therefore the subject of a salvage claim.

V.It is not necessary to entitle the salvors to remuneration that the loss be inevitably certain; but it must appear that the property was exposed to damage or destruction. The remuneration is in the nature of a reward for the risk run and is to be awarded with a discrete liberality which will encourage others to like undertakings.

VI.When the charter was substantially for the day service of the vessel and when after her day’s work was done she saved property belonging to her employer the salvors were strangers to the owners of the property and may claim as salvors.

VII.The fact that the salvors are assisted by others who are hot strangers to the property saved does not accrue to their benefit even though the others make no claim to salvage. They are entitled only to the reasonable pro rata share of the remuneration which would be ordinarily awarded to all parties.

VIII.Injuries suffered and time lost while undergoing repairs and the risk taken and the value of the property saved may all be considered in determining the amount of salvage.

*The Reporters1*statement of the case:

The following are the facts of the case as found by the court :

I. The claimants herein are citizens of the United States, residing in Houston, Tex.

II. On June 11, 1904, the defendants owned and had in their possession in the Sabine Harbor, Texas, a caisson in*301tended for use in the construction of the Sabine Bank light station. This caisson was a metal cylinder 32 feet in diameter, drawing 16 feet of water, and projecting 14 feet above the water, ballasted with concrete. It was lashed to the port bow of the U. S. light-house tender *Arbutus,*a steam vessel of 2l0 horsepower. The caisson was prepared for and was being carried to the site of the Sabine Bar light-house, 16 miles distant. On the evening of 'said June 11,1904, about 1.45 o’clock p. m., and during a hurricane, the caisson broke from its moorings on the bow of the *Arbutus*and floated down the Sabine Pass in the direction of the sea.

III. The drifting caisson collided with the steam tug *Dorothy*which was at that time tied up at a wharf below the *Arbutus,*and the claimants, who were then on board the said steam tug, saw the caisson, and after procuring a hawser be-loging to the light-house department, upon their own motion immediately proceeded to the rescue of the same and overtook it about the time it passed the United States barge *Eugenia,*lying at anchor about 6,000 feet from the Southern Pacific dock. The captain and crew of the *Eugenia*had discovered the caisson soon after it broke away, and, watching the progress of the caisson and the *Dorothy,*seven of the crew in a yawl proceeded toward the caisson as it passed down the stream. The captain of the *Dorothy*shouted for help as he passed the *Exigenia.*The night was so stormy and dark that objects could only be seen a short distance, except during flashes of lightning. The claimants located the position of the caisson during the flashes of lightning, and came up with it and succeeded in getting a line around the caisson and made it fast to the after-bits of the *Dorothy.*

IY. At a point near the United States life-saving station where the channel of the Sabine Pass makes a turn, the claimants towed the caisson to a mud bank in the vicinity of the point made by the turn in the channel, and held the caisson in that position. Captain Peterson and six men of the crew of the *Eugenia,*in the yawl, reached the caisson after it grounded on the mud bank as aforesaid, at which time the *Dorothy*was attempting to control said caisson. The crew of the yawl and the claimants made a line fast to a cluster of piling near the life-saving station. After this, or about 8.45 *302p. m., the light-house tender *Arbutus*reached the point where the caisson was tied up, and Superintendent Thompson, who was on the Arbutus, then took charge of the work, and the *Arbutus,*together with the Dorothy, towed the caisson back to the Southern Pacific dock and tied ,up for the night, about 1 a. m., June 12, 1904.

V. At the time the *Dorothy,*reached the caisson it was drifting downstream toward the sea, and but for being beached was in danger of drifting on the stone jetties lining the pass a short distance below the life-saving station. ■ At the rate it was traveling, it would have taken probably ten minutes for it to reach the stone jetties, and half an hour or more to have drifted out to sea.

The value of said caisson at that time was $14,000.

VI. In trying to rescue the caisson from damage and from going out to sea, the *Dorothy*sustained slight injury in running aground in a mud bank, scraping her bottom and springing a leak, but such injury did not prevent'the *Dorothy*from continuing her engagement under her contract with the defendants. After the termination of the contract, June 16, 1904, the *Dorothy*was repaired. The expense thereof, together with the amount paid the crew of said vessel during the time of such repair, was $524, no part of which appears to have been paid to the claimants; but what part of said sum was paid to the crew and what amount was paid for the repairs for the damage so caused by rescuing said caisson does not appear.

The claimants were paid for the services performed by them during the month of June, 1904, in accordance with the terms of their agreement.

VII. At the time the *Dorothy*was engaged in the rescuing of said caisson, as aforesaid, she was chartered to the Light-House Establishment of the United States under a contract, a copy of which is as follows:

“ This agreement made and entered into this 20th day of April, 1904, by and between Gonzales .& Kennedy, a firm of Beaumont, Tex., and the Light-House Establishment, seventh and eighth districts, represented by Oapt. W. E. Craighill, Corps of Engineers, light-house engineer, witnesseth:

“ That the said Gonzales & Kennedy have rented to the Light-House Establishment, for use in connection with the *303construction of Sabine Bank light station, off Sabine Pass, Gulf coast of Texas, at a monthly rental of $1,500 per month, the steam tug- Dorothy, 81-foot length, 18-foot beam, 8-foot draft, with master, crew, fuel, and equipment as tugboat complete. • Single crew to be furnished.

“ The time of payment for services of this tug shall begin on the date she reports for duty to the Light-House Establishment at Sabine, Tex., and shall cease when the LightHouse Establishment shall no longer need the services of the boat, upon her return to Sabine, Tex., and release from duty there.

“ The Light-House Establishment shall not be responsible for any damage by accident or otherwise- to said tug while under charter, nor shall payment be made for her services during any time lost because of any damage or disablement sufficient to cause her to be laid up for repairs.

“ The crew and master of the boat being employed by the owner, the Light-House Establishment will be held for no damage arising from accident or otherwise while this agreement is in force.

“All fractions of a month will be paid for at monthly rates.

(Signed) “ *W.*E. Ceaighill,

“ *Captain, Corps of Engineers,*

“ *Engineers Seventh and Eighth Districts.*

*“*GONZALES & KENNEDY,

“ J. E. Gonzales,

“ A. Kennedy,

“ *Owner Tug*Dorothy.”

VIII. After the execution of the foregoing contract the *Dorothy*was assigned to the duty of towing the Government barge *Eugenia*from Sabine Harbor to the proposed site of the Sabine Bank light station and back to the harbor from day to day as required by the defendants’ officer in charge. On the 11th of June, 1904, the day the caisson broke loose, as hereinbefore stated, the *Dorothy*had towed the barge *Eugenia*from the Sabine Harbor to the Sabine light station, and on her return trip, not being able to tow her back to said harbor, the *Eugenia*was anchored about 6,000 feet from the Southern Pacific wharf, the *Dorothy*returning and anchoring for the night inside said harbor a short time before said caisson broke away.

IX. If the claimants are entitled to recover, a .pro rata share of salvage for the services rendered by them with the *Dorothy,*her master and crew, in checking the caisson from *304drifting and in aiding the *Arbutus*to tow the same back into the harbor, as set forth in the findings, 20 per cent of the value of the caisson, or $2,800, would be reasonable therefor.

*Mr. J. H. Ralston*and *Mr. W. E. Richardson*for the claimant. *Mr. F. L. Siddons*was on the brief.

*Mr. Malcorn, A. doles*(with whom was *Mr. Assistant Attorney-General Van Orsdel)*for the defendants:

In the case at bar the terms of the contract are such as to distinguish it from the nature of the contract referred to in the case of the *Kaiser Wilhelm der Grosse.*It should be borne in mind, however, that in the case cited there was no dispute with regard to the subject-matter of the salvage claim, it being for services rendered to a steamship. For this reason, if for no other, the case relied upon does not constitute an authority in support of the present claim. Counsel for claimant appear to have realized the weakness of their claim upon this point and have cited only two cases, presumed to relate'thereto, *Wells*v. *Gas Float No. %*(1897), A. C., 337, and *Moores*v. *Louisville Underwriters*(14 Fed. Kep., 22G-236).

An examination of these two cases will disclose the fact that neither one of them sustains the contention of counsel that the caisson is a proper subject for a salvage claim. On the contrary, in the first case the court distinctly rules against such a contention, and counsel appear to have confused the argument of counsel with the opinion of the court.

The other case cited by counsel for claimants (14 Fed. E,., 226 and 236) was an action to recover on a policy of insurance and was not a salvage claim in any sense. It therefore has no direct application to the case at bar, and the opinion of the court (pp. 228-236) shows there was no question as to a salvage claim before the court.

It is respectfully submitted, however, that while the case of the gas float No. 2, cited by claimants, fully sustains the position of the defendant in the case at bar, yet it is not necessary to rely upon English authority alone in suj)port of the proposition here advanced on behalf of the defendant, because the question has been fully discussed and settled by *305the Supreme Court of the United States in the leading case of *dope*v. *Vdllette Dry Dock Go.*(119 U. S., 625).

In *The Hendrick Hudson*(3 Benedict’s District Court Reports, 419), which was a case in which a steamboat had been dismantled and stripped of her boiler, engine, and paddle wheels, and fitted up as a saloon and hotel, and used as such for some months, and was being towed to another place, to be there used in a similar way, and, while so being towed, got ashore, and it was necessary to lighten her by ¡jumping, and a steam propeller was employed for that purpose, whose owner afterwards filed a libel against the hulk, to recover compensation for such pumping,- as a salvage service, the court held that the hulk was not, at that time, engaged in commerce and navigation, in such a sense as to be liable *in rem,*in admiralty.

In Carver’s Carriage by Sea, third edition (p. 310, sec. 323), the following principle is also clearly stated: Services rendered to floating property, although on the sea, are only rewarded by the court when the property is or has been a ship, or her cargo.

It also states that the right to salvage is, generally speaking, confined to persons who are strangers to the vessel in distress, and thus the evil is avoided of holding up inducements which may lead men to produce disaster in order to reap gain from it.

In Hughes on Admiralty (p. 12) it is stated:

“ The character of craft included in the admiralty jurisdiction is anj»- movable floating structure capable of navigation and designed for navigation.”

This learned author, who was for a number of years judge of the United States District and Circuit Court for the Eastern District of Virginia, and delivered many opinions in admiralty cases arising at Norfolk, Va., clearly sets forth the principle here contended for by the defendant, that no claim for salvage can be properly regarded as coming within the court’s jurisdiction unless the subject-matter thereof be a ship or her cargo, or some structure which is designed for navigation.

*306On page 13 this learned .writer, referring to the case of *Cope*v. *Vallette Dry Dock Co.,*above cited, says:

“ The leading case on this subject is *Cope*v. *Vallette Dry Dock Co.*There the court held that the jurisdiction did not include a floating dry dock permanently attached to the shore at New Orleans and not intended for navigation.”

It will be noted that the author accounts for an apparent difficulty which might arise in reconciling the above case with the case of *Woodruff*v. *One Covered Scow*(D. C.) (30 Fed. Rep., 269), by calling attention to the fact that the decision of the Supreme Court in the case of *Copé*v. *Vallette Dry Dock Co.*had been rendered less than a month previous to the writing of the opinion in the latter case, and hence the former case was not known to Judge Bennett when he decided the latter. (30 Fed. Hep., 269.)

It is also interesting to note that this learned author (p. 14) refers to the case of *Wel>b*v. *Cas Float No. £,*cited by counsel for claimant (Record, page 103), and in construing said case takes the same position with regard thereto as is taken by the defendant herein, which is directly opposite to the version of said case suggested by claimant’s counsel. The court’s attention is invited to the following authorities, which clearly define what are the requisites of a salvage service, the nature thereof, and the parties who are entitled to make the same. *Fannie Brown*(30 Fed. Rep., 215-220). (See also Hughes on Admiralty, p. 127; A. & E., vol. 24, p. 1181; The *Island City*(1861), 1 B. L., 121; 23 Wallace, 16-17.)

The property must have been in danger and must have been successfully saved by the salvors. (Meyers Federal Dec., sec.- 1596; *Spencer*v. Chase, Avery & Bond, 117; *Lagg*v. *E. M.*Bieknell, Id., 270; Desty’s Shipping and Admiralty,' sec. 315.)

The record shows that it is problematical whether, in the case at bar, the caisson was really in danger.

3. It is respectfully submitted that the authorities cited sufficiently demonstrate* that the subject-matter of his claim is of such a nature as to preclude the claimants from judgment on account of salvage. If the caisson were, however, the proper subject of a salvage claim then the claimants in the *307case at bar did not occupy such a position with reference to the subject-matter of this claim as to entitle them to compensation.

The authorities seem clear upon the point that in order to entitle parties to a salvage claim they must be in no way connected with the property saved in any relation which would require of them the performance of such service as a duty to it.

In the case at bar the claimants were employed with their vessel at $1,500 a month, which included a complete compensation for said vessel and crew for the services to be performed by them.

The contract clearly covers the services here alleged to have been performed, and the clause in said contract, which distinctly provided that the Government, shall not be liable for any injury to the *Dorothy*while engaged under that contract relieved the Government from any responsibility in the case at bar. In Carver’s .Carriage by Sea, third edition, section 323, it is stated:

*“*On the other hand the right to salvage is, generally speaking, confined to persons who are strangers to the vessel in distress, and thus the evil is avoided of holding up inducements which may lead men to produce disaster in order to reap gain from it.”

Section 335:

“ Further, services in order to entitle to salvage must have been rendered by persons who did not owe any public or private duty to render them. So that public officers whose duty it is to render assistance can not claim salvage for services which are within the scoj)e of those duties. Thus, officers and crew of a ship of the royal navy do not receive salvage unless the services performed by them are beyond that protection which it is their duty to afford.

“ On this ground the crew and officers of a ship can not generally claim salvage for helping to save the ship or cargo from wreck, or after being wrecked. These acts form part of their duties under their contracts of service.” .

See also Marvin on Wreck and Salvage, sec. 138. *(The Davis*(1869), 10 Wall., 15; A. & E., vol. 24, p. 1189; The *Digress*case, 3 Wash. (TJ. S.), 567).

It is respectfully urged that such a contract as here existed between the claimants and defendant is a complete bar to *308any salvage claim on behalf of the claimants. (See Desty’s Shipping and Admiralty, sec. 329.)

4. The court’s attention is invited to the following authorities, which show the distinction between the service or towage and that which constitutes a claim for salvage. Concisely stated, the law is, that “ where all is fair a towage agreement can not be held to give the party a claim for salvage.” *{Bol-linger,*20 E. L. and Eq., 461; *Graces,*2 W. Rob., 294; *White Star,*Law Rep. 1 Ad. and Ec., 68; *The Banner,*14 Law. Rep., 465; *Irene*v. *Ilesfer,*122 U. S., 256-265.)

5. The existence of an express contract excludes the probability of an implied contract. *{Hartman*v. *United States,*40 C. Cls. R., 133.) It is respectfully submitted that the contract governing the services of the claimants and their boat is sufficient in terms to cover the alleged services which the claimants may have rendered in connection with this caisson, and the court is requested so- to hold.

In order to invoke the doctrine of *quantum meruit*on account of an implied contract it would be necessary to show that the services out of which said implied contract arose were requested by the defendant. The claimants herein are expressly estopped from making any such contention, because in their testimony they distinctly averred that the services were *voluntary,*and counsel has so treated them in endeavoring to support a claim for salvage. Parsons on Contracts, pp. 4, 5, 14,T5. *{Garey*v. *Curtis,*3 How., 247-8-9; *C. P. R. II. Co.*v. *U. S.,*48 C. C. R., 427.)

Peelle, Ch. J.,

delivered the opinion of the court:

This is a claim for salvage by the steam tug *Dorothy*in checking a metal caisson, belonging to the United States, from drifting out to sea.

The caisson, 32 feet in diameter, drawing 16 feet of water, and projecting 14 feet above water, ballasted with concrete, was lashed to the port bow of the United States light-house tender *Arbutus*for carriage to the site of the Sabine Bar light-house, some 16 miles distant. On June 11, 1904, at about 7.45 p. m., after the *Dorothy,*then under contract with, the Government, had moored in the harbor for the night, and during a hurricane, the caisson broke away from the *Arbutus**309and floated down the Sabine Pass toward the sea, and was in danger of drifting on the stone jetties lining the pass a short distance beyond the light-house station.

The Dorothy, after procuring a hawser belonging to the Light-House Department, overtook the caisson and succeeded in towing it on a mud bank and held it there until the arrival in a yawl of Captain Peterson and six men of the crew of the Eugenia, and they, together with the crew of the *Dorothy.*made a line fast to a cluster of piling and thereby held the caisson until the arrival a few minutes later of the *Arbutus*with the superintendent of the light-house státion for that district on board, who thereafter took charge, directing the work. The *Arbutus*and the *Dorothy*together towed the caisson back and tied it fast at the Southern Pacific dock, about 1 o’clock a. m., of June 12, 1904.

The *Dorothy*was at the time under contract with the Government, through the Light-House Establishment, for use in connection with the construction of the Sabine Bank light station off Sabine Pass, for which she, with her master, single crew, fuel, and equipment, complete, was paid $1,500 per month.

The contract, among other things, provided that—

“ The Light-House Establishment shall not be responsible for any damage by accident or otherwise to said tug while under charter, nor shall payment be made for her services during any time lost because of any damage or disablement sufficient to cause her to be laid up for repairs.

“ The crew and master of the boat being employed by the owner, the Light-House Establishment will be held for no damage arising from accident or otherwise while this agreement is in force.”

The claimants’ contention is that their timely interposition was the proximate cause of extricating the caisson from its perilous position and that, therefore, notwithstanding their contract with the Government, as aforesaid, they are entitled to recover their expenses and a reasonable compensation for the time employed, together with a reward given as a matter of public policy to persons for rendering such service; or, if not entitled to recover on the basis of salvage, that they be allowed to recover on an implied contract for the reasonable value of the service performed — i. e., in *quantum meruit.*

*310The defendants’ contention is that, even if the caisson was the subject of salvage, the clauses of the contract set out above exempt the Government from any liability for damage by accident or otherwise to the *Dorothy*while under charter; and, further, that the caisson rescued was not the subject of a salvage claim, not having been constructed for purposes of navigation and not being the cargo of any vessel.

Assuming that but for the timely interposition of the *Dorothy*the caisson would have drifted on the stone jetties, and thereby at least have been injured, or would have drifted out to sea and been lost, was the property so rescued such as to charge the Government with a salvage claim?

In the case of *Cope v. Valletta Dry Dock Co.*(119 U. S., 625), the court, in speaking of a floating dry dock permanently moored which was rescued from sinking by the master and crew of a tugboat, which the circuit court had held was not salvage service, said:

“ We have no hesitation in saying that the decree of the circuit court was right. A fixed structure, such as this dry dock is, not used for the purpose of navigation, is not a subject of salvage service, any more than is a. wharf or a warehouse when projecting into or upon the water. The fact that it floats on the water does not make it a ship or vessel, and no-structure that is not a ship or vessel is a subject of salvage. A ferry bridge is generally a floating structure, hinged or chained to a wharf. This might be the subject of salvage as well as a dry dock. A sailor’s floating bethel, or meetinghouse, moored to a wharf, and kept in place by a paling of surrounding piles, is in the' same category. It can hardly be contended that such a structure is susceptible of salvage service. 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. ‘ Salvage is a reward or recompense given to those.by means of whose labor, intrepidity, or perseverance a ship or goods have been saved from shipwreck, fire, or capture.’ (2 Bell’s Com. Laws of Scotland, § 638, Yth ed.; ib., Principles of Laws of Scotland, 7th ed., § 443.) ‘ Salvage ’ says Kent, ‘ is the compensation allowed to persons by whose assistance a ship or its cargo has been saved in whole or in part from impending danger, or recovered from actual loss, in cases of shipwreck, derelict, or recapture.’ (3 Kent, 245.) * * *

*311“ If we search through all the books, from the Rules of Oleron 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.”

Then, in defining the terms “ ships ” and “ vessels,” the court, quoting from the case of *The Mac*(7 P. D., 126, 130), wherein the court respecting the use of a hopper barge, used in carrying men and mud, had said:

“ Perhaps this case goes as far as any case has gone in extending the meaning of the term ‘ ship ’ or ‘ vessel.’ Still, the hopper barge was a navigable structure used for the purpose of transportation. We think no case can be found which would construe the terms to include a dry dock, a floating bridge, or meetinghouse, permanently moored or attached to a wharf.”

It has also been held that a lighted gas buoy, though used as a signal of danger and to direct the course of vessels, was not a subject of maritime salvage, because it was unfit for the purpose of being navigated as a vessel and was never so used or intended. *(Wells*v. *Gas*Float, Whitton No. 2, 1897, A. C., 343, 348.)

And so it has been held that a steamboat which had been dismantled, stripped of her boiler, engine, and paddle wheels, and fitted up as a saloon and hotel while being towed from one place to another for the same purpose, was not a subject of salvage, because it was not engaged in commerce and navigation *(The Hendrick*Hudson, 3 Ben., 419).

Other cases might be cited to the same effect, but we do not understand that the claimants are seeking recovery for salvage on the theory that the caisson was rescued as a ship or vessel used or intended for use in commerce or navigation. But they rely upon the last case cited to support their theory that the caisson was cargo, because under the control of a navigable vessel — that is, that the caisson should be considered *in pari materia*as cargo — and as such subject to salvage.

In the case of the *Fannie Brown*(30 Fed. R., 215-220) the court in defining salvage said:

“ Salvage is a reward decreed by a court of admiralty for services successfully rendered in saving property from mari*312time danger by persons under no obligation of duty to render the services and who voluntarily enter upon them. * * * Danger, peril, and a, successful deliverance from it by voluntary effort — that is what constitutes a case of salvage; and the court apportions the reward with reference to the degree of peril, the success of the service, and- the circumstances of each particular case.”

In the case of the *Clarita*and the *Clara*(23 Wallace, 1, 16) the court said:

“ Salvage is well defined as the compensation allowed to persons by whose assistance a ship or vessel, or the cargo of the same, or the lives of the persons belonging to the ship or vessel, are saved from danger or loss in cases of shipwreck, derelict, capture, or other marine misadventures.

“ Other jurists define it as the service which volunteer adventurers spontaneously render to the owners, in the recovery of property from loss or damage at sea under the responsibility- of making restitution, and with a lien for their reward.” (Maud and Pollock on Shipping, 419; Machlach-lan on Shipping, 569; The Neptune, 1 Haggard’s Admiralty, 236; The *Thetis,*3 Id., 48.)

In the case'of *Cope*v. *Valette Dry Dock Co. (supra)*respecting goods lost at sea and found floating on the surface, the court said:

“ There has been some conflict of decision with respect to claims for salvage services 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. Decisions in favor of the claim in reference to rafts of timber found floating at sea were made by Judge Betts in the New York district, *A Raft of*Spars, 1 Abbott’s Adm., 485, and by Judge Lowell in the Massachusetts district, *50,000 Feet of*Timber, 2 Lowell, 64, and against it by Chief Justice Taney, in the United State circuit court for the district of Maryland, *Tome*v. 4 *Cribs of*Lumber, Taney’s Dec., 533, and by the English court of exchequer, in *Palmer*v. *Rouse,*3 H. & N., 505.”

In Carver’s Carriage by Sea, third edition, sections 335 and 337, the same principle is announced. That is to say, services voluntarily rendered by persons strangers to the *313vessel in distress or to the property floating on the sea are only rewarded by the court when the property is or has been a ship or her cargo or some floating structure capable of and designed for navigation.

The writer of that same text-book says, section 321:

“ But, whether in a river or at sea, the property saved must be a ship, or her apparel, or cargo, or the wreck of them. The right does not arise on saving property of other kinds which may have been moored afloat and have got adrift, such as a raft of timber, a buoy, or a floating dry dock.”

The author cites in that paragraph the *Gas Float Whitton No. 2 (supra)*; *Nicholson*v. *Chapman*(2 H. Bl., 254) ; *Palmer*v. *Rouse*(27 L. J., Ex., 437) ; *Raft of Timber*(2 W. Rob., 251) ; *Cope*v. *Vallette Dry Dock Co. (supra).*

Rescuing the boilers of a vessel by pulling them out of a river has been held salvage service. The *Silver Spray*boilers, 1 Brown Adm., 349. •

The caisson was in no way used or intended for use in navigation! It was not the apparel of the *Arbutus*or her cargo, in the ordinary meaning of cargo, nor was it the wreck of either, but as it was lashed to the bow of the Arbutus, for the purpose of transportation, from which the caisson broke away, we think it may fairly be considered akin to, if not in the category of, cargo, and therefore the subject of a salvage claim.

The caisson had not broken away from permanent moorings, but was being transported by the *ArbuPus*by the way of towage from one place to another. It was more convenient to tow than it was to load it on the vessel, even if the latter could have been done. Therefore we think it is clearly distinguishable from those cases referred to which exclude floating dry docks permanently moored, as a sailors’ floating bethel, or meeting house, moored to a wharf, a lighted gas buoy, etc., and we must therefore hold that the caisson was the cargo of the vessel to which it was lashed.

Where the property is saved by the masters and crews of different vessels, those materially contributing thereto are entitled to share in proportion to the risk and value of the services rendered. Nor will the failure of one set of salvors *314to prosecute their claim, for any cause, inure to the benefit of those who do. *(Norris*v. *The Island*City, 1 Cliff., 219; *The*Blackwall, 10 Wall., 1; *The Island*City, 1 Black, 121; *Coffin,*v. *The John Shaw,*1 Cliff., 230.)

' The owners of the salving vessel may share in the salvage awarded though not present at the time the property was rescued. *The Ottawa*(1 Low., 274), *The Charles Henry*(1 Ben., 8).

But if the salvage awarded to the owners of the salving" vessel include the services of the master and crew as well, as it does in this case, because the owners of the tug have the general charge of the claim for salvage, such owners upon receipt of the salvage will be held accountable to them for their share of the same. *(Roff*v. *Wass,*2 Sawy., 538.)

In the present case, but for the timety assistance of the *Arbutus,*the *Dorothy*would doubtless have been unable to tow the caisson back into the harbor. However, it must be conceded that but for the immediate interposition of the *Dorothy*the caisson would have drifted on the stone jetties or out to sea, but whether said drifting would have resulted in damage or loss is necessarily problematical. While it must' appear that the property was shbject to something more than the ordinary perils of the sea, it is not necessary that the loss should be inevitably certain, but it must appear that the property was exposed to damage or destruction. *(The Saragossa,*1 Ben., 551.) Nor will the fact that the peril was slight and the duration of the service brief prevent the recovery of salvage if the claimants are otherwise entitled thereto. *(Coffin*v. *The John Shaw,*1. Cliff., 230.)

There can be no doubt but that the services rendered by the *Dorothy*contributed immediately to the rescue of the caisson in peril, and to that extent a benefit resulted to the defendants for which the claimants, in the absence of any contract to the contrary, are entitled to recover salvage. *(Clark et al.*v. *Brig Dodge Healy and Cargo,*4 Wash. C. C., 651; *The Sailor’s Bride,*1 Brown Adm., 68; *Jackson*v. *The*Magnolia, 20 How., 296; *The Williams,*1 Brown Adm., 216.)

*315But if for want of benefit accruing to the property the claimants had no right as salvors and, therefore, no remedy *■in*rem, still, having acted in good faith with the vessel believed to be adequate to rescue the property in peril, they would be entitled.to recover in *quantum meruit*even though their efforts had been unsuccessful. *The Sailor’s*Bride, supra, *The*Williams, supra, *Allen*v. Newberry, 21 How., 244, and other authorities hereinbefore cited. Salvage, however, is a reward upon the basis of the risk to life and property to be awarded with that discreet liberality which will encourage others to like undertakings. *Taylor*v. *The Cato*(1-Pet. Adm., 48, 65) ; *The John E. Clayton*(4 Blatchf., 372) ; *The Emulous*(8 Cranch., 110) ; *The M. B. Stetson*(1 Low., 122). Upon the latter 'basis the claimants are entitled to recover in this case unless they are precluded therefrom by reason of their contractual relations with the Government. •

Let us now look at the contract between the parties and see if anything therein prevents the claimants from being held strangers to the property saved. The Dorothy, with her master, crew, fuel, and equipment complete, with a single crew, was chartered to.the Government through the LightHouse Establishment “ for use in connection with the construction of the Sabine Bank Light Station, off Sabine Pass, Gulf of Mexico,” at a monthly rental of $1,500 per month so long as might be needed. By the terms of the contract the Government was not to be responsible for any damage by accident or otherwise to said tug while under charter. The boat was chartered with a “ single crew to be furnished ” and paid by the claimants; and as the vessel and crew were to remain under the control of the claimants they alone were responsible for whatever damage might result to the vessel from accident or otherwise while under charter.

After the charter the *Dorothy*was assigned to the duty of towing the Government barge *Eugenia*from the Sabine Harbor to the proposed site of the Sabine light station and back to the harbor from day to clay, so that the Government officers construed the charter as a contract for day service, or for such service as contemplated by a single crew; and the claimants having performed the clay’s work assigned -to them, arid *316moored the tug for the night, can it be said that they would have violated their contract had they neglected to steam in pursuit of the drifting caisson? We think not. The officers of the Government could not have required them to perform exceptional services under their contract, thereby compelling them to assume exceptional responsibility for injuries to their vessel, as such exceptional service was not within the terms or scope of their contract, and therefore not contemplated by the parties when the contract was entered into.

The damages for which the claimants agreed to be responsible were such as might result to their vessel from accidents or otherwise in the performance of the duties assigned them by the Government officer, and it can not therefore be held that their contract deprived them of the status of strangers to the property saved.

Even if the claimants had been under contract — other than extraordinary — to tow the caisson, exceptional services, requiring extraordinary aid from the vessel, might have given them the right to abandon such contract and claim salvage. That is to say, if after the towage service began the caisson had been placed in exceptional danger, such as sudden violence of wind or waves or other unforeseen accidents not Avithin the scope or contemplation of the parties when the agreement was entered into, they would be entitled to additional remuneration for the additional service rendered if the property be saved, or they might claim as salvors instead of being restricted to the contract price for the mere towage. *(Collius*v. *The Fort*Wayne, 1 Bond., 476 and 481; *Carver’s Carriage by Sea,*sec. 339, and authorities there cited.)

Had the caisson been rescued at a time when the *Dorothy*was under charter to perform other service for the Government, *i.*<?., during the time when she was subject to the order of Government officers, that Avould not have deprived the claimants from claiming salvage for the exceptional service unless, by the terms of the charter, the salved property was in the possession of the owners of the salving vessel *(Carver's Carriage by*Sea, sec. 343). “ On the other hand,” as stated in that section, “ the fact that the owner of the salving vessel has at the time chartered her to the owner of that which is *317salved, does not disentitle him from claiming salvage ” *(The Maria,*Jane, 14 Jur., 857; *The*Waterloo, 2 Dod., 433, and other authorities therein cited; *Roff*v. *Wass,*2 Sawy., 389.)

It must therefore be held that at the time the service was rendered by the claimants they were strangers to the property saved, and such service having contributed immediately to the rescue of the vessel from the extraordinary peril caused by the sudden violence of the wind and waves, they are entitled to recover reasonable salvage therefor; but the fact that they.were assisted by those who were not strangers to the property saved can not be held to accrue to the benefit of the claimants even though such strangers make no claim to salvage, and therefore the claimants are only entitled to recover the reasonable *pro rata*share for the sacrifice which they with the master and crew of the vessel made, which the court finds is 20 per cent of the value of the property saved, or $2,800. *(Tyson*v. Prior, 1 Gall., 133; *Roff*v. Wass, *supra.)*

No allowance can be made to the claimants for injuries to their vessel, as the loss sustained by them'in rescuing the property was one of the risks they ran and for which they seek indemnification for the sacrifices they madé. But while this is true, such injuries, together with the time during which the vessel was undergoing repair, the risk taken, and the value of the property saved may all properly be considered in determining the amount of salvage, and to that end such elements have been taken into consideration by the court in this case. *(Carver's Carriage by*Sea, secs. 344, 345.)

Judgment is therefore ordered in the claimants’ favor for $2,800, being the reasonable pro rata share of salvage for the Dorothy, her owners, masters, and crew, as hereinbefore set forth, upon the receipt of which the claimants herein are to be accountable to the master and crew of the *Dorothy*for their respective interests to be hereafter determined.