#### REID WRECKING COMPANY (LTD.) v. THE UNITED STATES.

[No. 33743.

Decided June 21, 1920.]

*On the Proofs.*

*Contract; quantum meruit.*— Where a contractor, without agreement as to compensation, has been employed by the Government to raise a sunken dredge and tow it into a dry dock, and the contractor has performed the work without fault or negligence, such contractor is entitled to payment upon the basis of *quantum meruit.*

*The Reporter's*statement of the case:

*Mr. II. Stanley Tlinrichs*for the plaintiff. *Mr. Franje 8. Bright*was on the briefs.

*Mr. Assistant Attorney General Franle Davis, jr.,*and *Mr. F. E. Soott*for the defendants.

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

I. The plaintiff is a corporation duly created and existing under and by virtue of the laws of the Province of Ontario, Dominion of Canada, and as such is engaged in the business of towing and wrecking on the Great Lakes and their connecting waters, including Lake Erie in the vicinity of Cleveland, Ohio.

II. The Dominion of Canada and the Province of Ontario and the Empire of Great Britain are at peace with the Government of the United States, and citizens of the United States have a right to prosecute claims against said Governments in their respective tribunals.

III. On October 4, 1911, the dredge Mawmee, belonging to and operated by the United States, defendant, sunk in Lake Erie near the breakwater at the city of • Cleveland, Ohio, and became a wreck in need of salvage service. It was a square, flat-bottom boat with a dipper attachment operated by a chain. The bottom where it sank was covered with loose rock, at the outer edge of and near the breakwater. *454When it sank one end was lower than the other, and only around the edges and for a small space under was it possible for divers to work or make examinations. This breakwater was composed of an extended pile of loose rock thrown up to protect the harbor from the current of the water and the pounding of the waves. It rested in shallow water and in an exposed position near this breakwater, threatened with entire destruction and constituting a menace to navigation. The weather was threatening and rendered it imperative that the utmost despatch be used in the raising of the said vessel and removing it to a place of safety, at least inside of the harbor, to prevent its being pounded to pieces by the rocks or the breakwater, which was near by. The necessity and importance of this was fully appreciated and stated by the representatives of the Government in conference with the plaintiff.

IN. On October 5, 1911, the defendant, through the authorized officers and agents of the War Department having • jurisdiction over the harbor of Cleveland and the breakwater thereof, and in charge of the said dredge, employed the plaintiff by means of telephone and telegraph to come to Cleveland with its wrecking equipment and attempt to float said dredge and remove it from its place of danger to a place of safety. No sum or rate of compensation was fixed. The case was one of emergency and the defendant urged the plaintiff to act with dispatch. The plaintiff consented to this employment but did not guarantee or promise results.

Y. In accordance with said employment, the plaintiff on October 6, 1911, sent at once to the wreck all the necessary machinery, together with its tugs, *S. M. Fischer and James Reid,*its scow, Phoenix, and also steam pumps, hydraulic jacks, hawsers, lines, and the necessary men to operate the same, including two divers. Its machinery was suitable and in proper condition and repair, and the men operating it were experienced and capable in their respective lines of work. The plaintiff also sent timber, canvas, oakum, and other materials necessary to be used and expended in raising said dredge, and purchased other. similar materials, all of which were necessary and used for that purpose and in the *455effort to raise and save said dredge, and on October 21, 1911, the dredge was raised and placed in the defendant’s dock in the harbor of Cleveland. The defendant accepted said services as completed and fully performed and expressed satisfaction with and complimented the plaintiff upon its work and the result.

VI. When the plaintiff arrived upon the scene on October 6, 1911, the weather was such for two days that little could be done. A cofferdam was built but it was not possible imtil October 14, 1911, on account of weather conditions, to send down divers or to complete the necessary work of covering openings and sealing up the dredge as far as possible in order that it might float after the water had been pumped out of it. As late as October 13 a storm had broken down the cofferdam. The divers went down on the night of October 14, 1911, and completed the work of calking and closing up the openings so far as they were discernible, and examined its bottom as far as it was possible to do so. Two pumps were then placed upon the wreck and put to work to withdraw the water from the interior of the dredge. After this had been accomplished as far as it was possible the dredge did not float. A derrick had to be put in use and by means of it the dredge was floated, and the operation of towing it in by attachments to tugs immediately began. Two pumps were used to keep it free from water, the steam for these pumps being furnished from tugs near by. After it had proceeded a short distance in the movement it was halted by the chain attachment to the dipper of the dredge catching upon the bottom. It does not appear that this was due to any want of care upon the part of the plaintiff. It then became necessary for a diver to go down and' cut the chain in two, which consumed almost an hour. The dredge in the meantime was kept afloat by one pump. After the chain was cut the movement was again begun with two pumps in action. In a little while the dredge began to sink and did sink within 5 to 8 minutes.

When the dredge sank it had been towed within the breakwater and out of the position of danger where it had formerly rested. The representative of the plaintiff reported to the representative of the defendant the fact of the sinking and *456asked for further instructions. He was told to proceed with the work, and at once began with renewed efforts to float and tow in the wreck. This was successfully done and completed on October 21, 1911, by placing it in the defendant’s dry dock.

An inspection of the bottom of the dredge showed it to be so full of holes that it was thought it would be necessary to put in a new bottom. One of the holes was 20 inches long and 12 inches wide, making an opening of 240 square inches, and showing that it had been knocked in from the outside.

VII. Where the dredge originally rested on the rocks it was not possible for divers to examine or work upon but a portion of its bottom around the edges. On account of the construction of the dredge it was not possible for divers to examine its bottom from the inside. After it had been floated, on account of the condition of the weather, the risk to divers, and the necessity for towing the wreck from a place of danger, it would not have been wise to have delayed to examine or safe for divers to have attempted to examine the condition of its bottom. It took four and one-half hours to float the dredge with two pumps, and two hours and a half to bring its deck above water after it was floated. The plaintiff had on hand a 12-inch Worthington pump which was not used in floating the wreck and had not been connected with the wreck at the time it sank. It could not have been placed upon the wreck until it had been floated, and it would have required from 30 minutes to 2 hours delay in moving the wreck to connect it. It has not been satisfactorily shown that it would have prevented the sinking had it been connected or that the plaintiff failed to use due care in not connecting it. When the wreck began to sink it was discovered that the water was rushing and boiling into it for some unknown cause and in such volume that all three pumps could not have kept it afloat.

The plaintiff’s equipment, including pumps, was adequate, of proper design, and in good repair. Its employees were experienced and suitable persons. Those in charge supervising the work were experienced and capable.

The breaking down of pumps in work of this kind is not unusual, and particularly where they are being operated to *457the limit of capacity. Wrecking operations are hazardous and speculative; the peril is great, and the demand for hasty action is usually paramount. The wrecker does not guarantee specific results. It is not uncommon in operations of this kind for a wreck to sink several times before it is salvaged. It is one of the hazards incident to the business and employment. It is not an occurrence which persons engaging in business similar to the plaintiff’s undertake as a part of the employment to avoid. There is no direct evidence or satisfactory proof of what caused the sinking of the dredge, nor has it been proved that it was due to want of proper care or caution, under the circumstances, on the part of the plaintiff.

YIU. The reasonable cost to the plaintiff of raising this dredge twice and finally delivering it to the defendant’s dry dock was $16,289.60. This sum was based upon the customary charges for work of this character, there being no specified sum or rate of compensation agreed upon. The defendant paid to the plaintiff the sum of $9,761.20, the defendant’s estimate of the cost of raising the dredge the first time, alleging negligence on the part of the plaintiff in allowing the vessel to sink after it had once been raised, thus leaving in favor of the plaintiff an unpaid balance of $6,528.40.

Graham, Judge,

delivered the opinion of the court:

This case grows out of a contract of employment by the defendant of the plaintiff, a wrecking company, to float and tow to safety a wrecked and sunken dredge. The facts as they appear in the findings are sufficiently full no't to require a general discussion of them.

The contract was made by telegraph and telephone. The dredge had sunk on the rocks on the edge of a breakwater. This breakwater was an extended pile of loose rocks. The weather was threatening and there was danger of the boat pounding to pieces on the rocks of the breakwater and those *o:\*which it rested. No fixed sum or rate of compensation was named. It was a contract of service for compensation on a *quantum meruit*basis. There is no question here as to *458the suitableness, adequacy, and condition of repair of the machinery supplied, or the sufficiency in number or the fitness and experience of the plaintiff’s employees, or of an injury to the property by reason of careless and inefficient handling either in method or detail.

The weather was threatening from the commencement of the work and continued with rough water up to the day that the wreck was floated. The wreck was successfully floated, and it sank again after having been towed out of the place of danger, where it had rested, to a safe location within the breakwater. It had to be floated again, which was done with due expedition, and it was then promptly towed without event to the defendant’s dry dock. The defendant refused to pay the plaintiff the cost involved in floating it a second time after it had sunk, upon the ground that the second sinking was due to the failure of the plaintiff to exercise proper care and caution, and it is to recover this sum that this suit is brought.

The plaintiff completed the ultimate purpose of its employment in floating and moving the vessel to a place of safety where it passed into the control and possession of the defendant. The representative of the defendant accepted it and expressed satisfaction and complimented the plaintiff’s representative upon the result of the undertaking. At that time no question was raised as to the plaintiff’s right to full compensation. The claim by the defendant that the plaintiff was not entitled to the cost of floating the dredge the second time after it sank came later. The court finds that there is no direct evidence or satisfactory proof of what caused the dredge to sink a second time, nor is there satisfactory proof of negligence or lack of care and caution ^n the part of the plaintiff which caused or permitted the dredge to sink.

In the light of this finding the plaintiff is entitled to recover. Judgment should be entered for the amount claimed by the plaintiff in its petition — $6,528.40—and it is so ordered.

Hat, *Judge;*DowNet, *Judge;*Booth, Judge, and Campbell, *Chief*Justice, concur.