The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1906-12-08
Cd.
WINS POINT
Gratuitous Service Plea
in Salvage Case
Not Valid.

L. 6. Judge Sanford B. Dole yester-
day allowed the exception of CONNER
cial Pacific Gable Co. to the answer OF
Pacific Mail Steamship Co, claimant
and intervenor, in the c. z. c. Co.'S
admiralty suit for $4,000 as salvage
money against the steamhip Manchu-
ria. Ballou & Marx represent the Ii
belant and Kinney. McCianahan &
Derby the libelee.
The syllabus thus states the law OF
the case:
THE answer alleged among other
matters that assistance furnished by
libeIant through its steamship to Ii
belize, while in a perilous situation, was
understood both by the claimant and
its representative and by the libelant
to be in the nature of a special and
personal favor to the claimant ana it's
representatives, and not as d render
ing of salvage services, and that such
matter is pleaded in mitigation of dam
ages.
Held, on exception, that such ale
cation offers no basis for mitigation of
damages"
Judge Dole says cit is a we'll estab-
lished principle in law and equity that
no financial obligation is incurred by
the recipient of services that are graz
tuitous-" Also:
4 do not know of any reason why
the principle of non-liability for gra-
tuitous services does not apply in adj
miralty. If this engagement of the
RGStnrpr a o1lpOad n a
or understanding for the gratuitous
services of the Restorer, the libelee
should have the right to allege and
prove it, as a defense in bar of the
suit 1t is not, however, pleaded in
bar but in mitigation of damages. Why,
if the theory of a gratuitous service
is relied upon at all, should it not be
relied upon as a complete defense?'
It will be remembered by readers of
the Advertiser that the p. NJ. S. Co in
it's answer represented that the cable
people in New York We're under obliga-
lions to Mr.. Hartman, its official head,
and that he and they understood when
the Restorers assistance was asked
for that it would be rendered as a
matter of friendship. Judge Dole says
in effect that such might have been
the understanding at first, before the
situation was fully known in New
York, yet later information might have
Influenced the claimant (P. NJ. S. Coz
not to take full advantage of such an
underst landing but, considering the ex-|
tent and danger of the services of the
steamer Retorer. was led to present
such statement in mitigation only
of damages. This is the courts con-
clusion, speaking of the claimant:
IF it had the right to plead the
alleged understanding as a full de-
I have been unable to find any prece-
dent on such question. If such al
legged understanding is pleaded in bar
of a suit, it raises a definite issue I'M !
der which the case may be disposed |
Of c. go to trial on the other allega- |
tons of the answer, accordingly as |
the plea should be sustained ca not; |
but as a plea in mitigation, if the al :
legation should be fully proved, what |
guide would it furnish to the court |
in its attempt to weigh the amount of |
which such an understand
ing might justify? I can find no an
swer to this question. Having de-
eided not to plead such understanding
as a bar to the suit, I do not see that
the claimant can plead it for the pur-
pose of mitigation. 1t has in effect
nave been entitled to of using it as
L complete defense, and cannot plead
t in mitigation of damages