#### ATLANTIC TRANSPORT CO., LTD., v. THE UNITED STATES

[No. C-1087.

Decided April 7, 1930.

Motion for new trial overruled December 1, 1930]

*34
      *Mr. Eugene Underwood-*for the plaintiff. *Mr. Ghauneey I. Olarh*and Burlingham, Veeder, *Masten c& Fearey*were on the briefs.

*Mr. J. Franh*Staley, with whom was *Mr. Assistant Attorney General Herman J.*Galloway, for the defendant.

*45Graham, Jixdge,

delivered the opinion of the court:

This case involves, first, the question whether it is one of salvage or contract, and, second, whether, if it is a case of salvage, it was, finder the facts, one in which as a part of the award there should be allowed a sum to make the plaintiff whole for losses and damage to its vessel, the Bardic, incident to its unsuccessful effort to tow the defendant’s ship, the *Powhatan.*

The question whether a case of assistance rendered at sea by one vessel to another is one of salvage or contract depends upon the facts in each particular case, and the burden is upon the party asserting that it was a contract to establish that fact. *The*Camanche, 8 Wall. 448, 477; *The Independence.,*2 Curtis 350, 357; and *The*Excelsior, 123 U. S. 40, 49, 50. We are of opinion that the proof in this case does not establish a contract. On the contrary, it shows that this was a case of salvage — a consent upon the part of the plaintiff to stand by and to tow, no consideration being mentioned and no method fixed by which a consideration was to be determined, no meeting of minds in a contract. It was not what could be called a towage contract or arrangement such as tugs specially equipped for salvage and engaged in that business make, or mere towage of a vessel out of port by a tug. It is

> “ * * * in the interest of commerce and navigation that where a vessel gives á signal of distress and another goes out with the bona fide intention of assisting that distress, and, as far as she can, does so, and some accident occurs which prevents her services being as effectual as she intended them to be, and no blame attaches to her, she ought not to go wholly unrewarded. I think it is for the interests of commerce and of navigation, and also for the encouragement of salvage services generally that some remuneration should be given.” *The*Melpomene, L. R., 4 Adm. and Ecc. 129.

*46In *Santa*Rosa, 5 Fed. (2d) 478, the court said, practically-upholding the same principle:

> “ * * * it will not do, either because it was not possible to extricate the ship earlier from her perilous position, or because the tugs rendering service at the beginning had not met with success, or that it was believed necessary to call in more powerful and better equipped wrecking vessels, to whistle down the wind the claims of those who diligently performed their duty and happened unaided not to be successful.”

While there are cases which hold that success in the effort to salvage is necessary to an award, there are cases also which hold that it is not. Pro and con the cases are very numerous and it will serve no good purpose to attempt to harmonize them. It is therefore necessary to invoke some general principle of salvage and see how far it can be applied to the instant case. The court looks with favor upon salvage. It is in the nature of a reward for meritorious, services rendered in laborious and perilous enterprises.. *Bull Insular S. S. Co. et al.*v. *United*States, 62 C. Cls. 338, 350, 351. Where a vessel is in distress, in peril and danger, as here, or where the sea is rough and the weather unfavorable and the wind high, or where other facts which usually attend a vessel in distress exist, there is always a risk and danger in rendering assistance. It is easier for another vessel to stay out of the way or to pass by and not attempt to render assistance than it is to undertake the risk of doing so and incur a risk of injury to itself and a possible loss of life and cargo in connection with the effort. It has therefore been the policy of the courts in order to encourage salvaging and the saving of life and property at sea, to be liberal in the matter of salvage where the vessel has made an honest effort to be of assistance or has joined with others in doing so, whether its efforts resulted in the final saving of the vessel or not, provided the failure or final success was not due to any lack of honest effort and willing purpose to assist.

In *The I. W.*Nicholas, 147 Fed. 793, the rule was stated to be that “entire” success was not necessary to establish the right to salvage, and in that case it appears there was *47some service rendered. So in *The New*Orleans, 23 Fed. 909, some service was actually rendered. The same situation prevailed in the case of *The Annie*Lord, 251 Fed. 157, where the rule is stated:

> “ It is not necessary, in order to establish a claim to salvage, that the salvor should actually complete the work of saving the property at risk. It is sufficient if he endeavor to do so, and his efforts have a *causal*relation to the eventual preservation of it.” (Italics ours.)

And in *The*Alcazar, 227 Fed. 633, there appeared to be services rendered which placed the imperiled vessel in a position of “greater comparative safety.”

So with *The*Strathnevis, 76 Fed. 855, it was said that complete success was not necessary, but that a *contribution*to success would entitle to salvage. See also *The*Flottbek, 118 Fed. 954.

In *The Veendam,*46 Fed. 489, in distinguishing between mere towage and salvage, it is said:

> _ “ Such services are treated as salvage when rendered to a disabled ship with the obvious purpose of relieving her from circumstances of danger, either present or reasonably to be apprehended, and not merely to expedite her passage.” Citing cases.

In that case the towing vessels actually rendered a service so long as it was necessary.

In *The Pendragon Castle,*5 Fed. (2d) 56, the salvor acted as convoy and lent men to jettison cargo, and this was held to constitute salvage service. The convoyed vessel was not very leaky and made port otherwise unassisted. The essential service was convoying.

The *Santa Rosa*case, *supra,*is more nearly in point. Here salvage was allowed tugs that were not sufficiently powerful to float the. stranded vessels and whose efforts were without avail. The vessel was later pulled off by a more adequate vessel, a wrecking tug, assisted by two others. Notwithstanding the efforts of the first tugs were unsuccessful, they in fact rendering no contribution to the salvage, salvage was awarded them.

*48The last case is very much like the plaintiff’s case. In fact, plaintiff’s case is stronger, because the lack of actual salvage was not due to lack of power or facilities, but due merely to accident incident to service that could not be forestalled.

*The Manchester*Brigade, 276 Fed. 410, throws some light upon the rule that allows salvage for the encouragement of the service. *The Manchester Brigade*stood by the distressed vessel and got a towline aboard, but it was slipped later on account of the danger of parting the cable due to heavy seas. When the weather moderated preparations were made to get the line aboard, but *The Manchester Brigade*was dismissed in favor of another vessel which had been ordered up by the distressed vessel’s owners to take it in tow. The court awarded salvage, stating:

> “ * * * where the services of the salvor vessel have been accepted and she is able and willing to do everything that is necessary to complete the salvage, but is dismissed or superseded for reasons of convenience or economy on the part of the vessel in distress, the services rendered are salvage services and should be rewarded to the same extent and in the same degree as though the service were completed, having regard, of course, as in all salvage cases, to the risks actually encountered in the service and to the time and expenses incurred. That this rule should obtain is in the interest, not alone of commerce, but to encourage assistance to life and property when either are in danger, and requires, no citation of authority to sustain it; for otherwise, having regard to the frailties of human nature, there would be little inducement to the masters of vessels to engage in such undertakings and to imperil their own vessels and endanger their own lives if the reward were contingent, not only upon success, but also upon the whim of the owner or master of the vessel in distress.” *Id.*413.

If the reward were also contingent upon absence of a disabling accident, the contingency would resolve itself into a mere chance of success. The contingency of success should be construed as the sort of success that is dependent upon equipment, ability, personal effort, not the -success that depends upon accident.

In *The Manchester Brigade*case, *supra,*the award was moderated by the availability of the wireless. *Id.*414. If *49such a rule be sound, the bringing in of another salvor through wireless assistance would logically be in the nature of salvage.

In *The Flottbek, supra,*it is said:

> “ There is a marked and clear distinction between a towage and a salvage service. When a tug is called or taken by a sound vessel as a mere means of saving time, or from considerations of convenience, the service is classed as towage; but if the vessel is disabled, and in need of assistance, it is a salvage service. In cases of simple towage, only a reasonable compensation is allowed, as upon a quantum meruit. In case of salvage, the award is upon a broader and more liberal scale, * *

In *Huasteca Petroleum Co.*v. *United*States, 27 Fed. (2d) 734, the trial court made no allowance for damage to the *St. Heliers*by grounding her stern while rendering assistance. However, the Circuit Court of Appeals held:

“ It is clear that damage sustained by the salvaging vessel without negligence on her part is a proper element to be considered in determining the award to be given her,” citing *The*Alabama, 280 Fed. 738; *The Edith L. Allen,*129 Fed. 209; *The Apalachee,*266 Fed. 923; *Kennedy*v. Crane, 215 Fed. 897.

See also *The Elkridge,*24 Fed. (2d) 147.

In the instant case the *Bardic's*assistance was solicited and it was notified by the *Powhatan*that it was ready to take the line, and it attempted to do all that it was asked to do, all that it could do, and its success was prevented by an accident incurred by its effort. It was not a tug engaged in the salvaging business. It first answered the SOS call, was the first ship to arrive in sight and in the neighborhood of the disabled ship, and offered to use what facility it had for towing the *Powhatan*to a place of safety. The offer was accepted. It was requested to stand by and wait until the weather moderated. This it did. In the meantime it relayed messages which brought other ships upon the scene. When the weather moderated, at a signal from the distressed ship, it undertook to attach to it the steel hawser which it had on board for the purpose of towing. This steel hawser was attached to a manila rope or hawser used for the pur*50pose of drawing it aboard. The *Bardic*maneuvered and after several efforts was able to place the end of this manila hawser aboard the *Powhatan.*The *Poiohatan*began to draw in the manila hawser by passing it through the chock on the port bow side, while the *Bardic*was on the starboard side. The boats were 500 feet apart and the sea was rough. The *Powhatan*having more of its body above the water than the *Bardic*was more easily moved by the wind and the sea and thus moved faster and ahead of the *Bardic.*By this overlapping of the ships and the pushing forward of the *Powhatan*a nip or catch was caused on the bow of the *Powhatan*which impeded the hauling in of the manila hawser and thus caused a slackening of the line. By reason of this and the plunging of the ships the fastenings which secured the hawser to the *Bardic*deck broke and about 20 or 80 fathoms of steel towing wire suddenly slipped overboard from the *Bardic*and fouled the port propeller which was operating at that time.

At this time none of the steel hawser had as yet reached the *Powhatan.*The port engine was stopped on the *Bardic*and efforts were made during several hours to release the propeller from the hawser, without success, when the *Bardic*signalled the *Powhatan*to pull in the manila hawser that was attached to the steel hawser and cut the steel hawser loose. This done, the *Bardic*in its crippled condition pro-ceded to the port of Halifax, using her starboard engine and propeller alone, in order to have her port propeller cleared. After having made this and other repairs due to the accident, the *Bardic*was towed to Halifax by another boat.

The court has found that the breaking of the fastenings holding the steel hawser on the *Bardic*which caused the accident and the consequent fouling of the propeller of the *Bardic*was not due to any want of care upon the part of the management of the *Bardic.*Whether the accident was caused by the attempt by the *Powhatan*to heave in the hawser through its port bow chock instead of hauling it aboard first and then attaching it, or whether it was due to the heavy wind and sea, or a combination of both, what happened might have been avoided if the hawser had first been partially pulled aboard the *Powhatan*before attempt*51ing to pass it through the chock. However, it appears that the accident was not due to any want of care by the *Bardie.*It does not appear that the action of the wind and the sea had changed during the attempt to put the hawser aboard from what it was before the effort began.

After receiving temporary repairs at Halifax the *Bardie*proceeded to London and went into dry dock, where further repairs were made, and was in dry dock there two days for this purpose. The court has found that the repairs so made were made necessary by reason of the accident. We therefore reach the conclusion that a salvage award should be made in favor of the plaintiff in the sum of $9,000 plus the sum of $21,682.46 for expenses, repairs, etc., making a total of $30,682.46, to be distributed to the parties entitled thereto as follows: To the officers and crew of the *Bardic*the sum of $2,250 and 37i^ Per cent, or $3,375, each to the Atlantic Transport Company, Ltd., charterer, and the Oceanic Steam Navigation Company, Ltd., owner, their respective shares of said $9,000, the balance, $21,682.46, to be paid to the plaintiff. The latter sum .is made up of expenses incurred as shown by Findings XII, XY, and XYI, of additional cost of new propeller guard as shown by Finding XVII, and of the loss of profits as shown by Finding XVIII. Judgment should be entered accordingly, and it is so ordered.

Williams, *Judge;*LittletoN, *Judge;*GeeeN, *Judge;*and Booth, *Chief*Justice, concur.