
    Sturgis v. Law and St. John.
    In the absence of an express agreement, the question whether services in assisting to save a vessel are to be compensated on a quantum, meruit, or on salvage principles, depends upon the circumstances of the case.
    Where a steamboat struck and became fast upon the rocks, in a river or narrow strait, in tide water, the plaintiff was employed by her owners to aid in relieving her (she being in great danger), and took the principal superintendence of the same, but the vessel remained in the owners, possession and control, she was at no time derelict, it did not appear that the plaintiff’s compensation was risked upon the.success of his efforts, and there were other circumstances indicating that he was to be remunerated according to the value of his services; it was held, that his claim could not be enforced as for salvage or upon salvage principles.
    Where valuable services are rendered upon the employment of the owners, to a vessel in imminent peril, by one having great skill in rescuing wrecked vessels, and unusual means adapted to such exigencies, but under circumstances which prevented him from being compensated on the principles of salvage; it was held that he was entitled to recover a very liberal allowance for his services, to be measured, as well by the extent of such skill and means, as by the time and number of men employed. Courts of common law have no jurisdiction to enforce a claim for salvage. Per Paine, J.
    The jurisdiction to enforce claims for salvage considered on principle and on the English authorities, by Paine, J.
    (Before Oakley, Ch. J., and Sandforb and Paine, J.J.)
    Jan. 7, 8;
    Feb. 16, 1850.
    Motion to set aside the report of referees. The declaration .contained several counts. The first. count alleged, that the defendants, on the eighteenth day of April, 1846, at the city and county of New York, were the owners and possessed of a certain steamboat or vessel, called the Oregon, and which said steamboat or vessel had, on the day and year aforesaid, at Hell Gate, in the East River, to wit, at the city and county of Hew York aforesaid, struck upon a rock or rocks, and was, on the day and year aforesaid, lying thereon and leaking very badly, and in a very dangerous condition, and liable to go to pieces or be destroyed or very seriously injured. And the said plaintiff, having great skill, knowledge, and experience in the business of raising, floating, removing, and saving steamboats and other vessels, which had been wrecked, stranded, or run upon rocks, did, at the special instance and request of the said defendants, to wit, on the day and year aforesaid, at the place aforesaid, bestow great labor, care, and diligence, and paid, laid out, and expended large sums of money, and did, at great expense, employ many persons and laborers, and various pumps, machinery, rigging, and apparatus, and laid out great skill and toil in and about the raising, floating, and removing off from said rock or rocks, and in saving the said vessel for the said defendants, and did, on to wit, the 23d day of April, 1846, at the city and county aforesaid, raise, set afloat, and remove the said steamboat off from the said rocks, and deliver the same to the said defendants. And, in consideration thereof, the said defendants, afterwards, to wit, on1 the same day and year, and at the place last aforesaid, undertook, and then and there faithfully promised the said plaintiff, well and truly to pay unto the said plaintiff, so much money as the said plaintiff reasonably deserved to have of the said defendants for the same, when the said defendants should be thereunto afterwards requested; and the said plaintiff avers, that he reasonably deserved to have of the said defendants for the same, the sum of twenty-five hundred dollars, lawful money of the United States of America, to wit, at the place aforesaid, whereof the said defendants, afterwards, to wit, on the same day and year, and at the place aforesaid, had notice.”
    There were counts in indebitatus assumpsit for the same services, but not in any respect varying the nature of the claim.
    The cause was referred to three referees, who made a general report in favor of the plaintiff for $2062 59.
    It appeared, on the trial before them, that the Oregon struck and grounded on the rocks at Hell Gate, a narrow strait, in tide water, between New York Bay and Long Island Sound, on Saturday, the 18th of April, 1846, and lay there until the following Wednesday afternoon, when she was got off, and was towed into the city by two steamboats. After she struck, she was in a very perilous situation, the rocks having pierced her side or bottom, so that it was difficult, if not impossible, to prevent the water from flowing freely through her; and as she lay about midships upon the rocks, and her bows and stem were considerably depressed, there was danger of her breaking in two. The plaintiff was requested in this city by Mr. Law, one of the defendants, to go up and assist in getting off the Oregon, and take charge of the work. He accordingly went up on Saturday, and remained with the Oregon until she was finally got off. There were other persons also employed by the owners, to assist, and capable of superintending the work; but the principal charge was committed to the plaintiff, who was at the time in the general employment of the board of underwriters of New York, for the purpose of assisting and getting off vessels insured by them, at a salary of one thousand dollars per annum; and it was proved, that he was exceedingly competent for the business. Whenever the plaintiff was in the employment of the underwriters, which he was not on this occasion, he received from the parties interested ten dollars per day for his services, in addition to his salary. Hie plaintiff, under the owners’ control, had the principal charge and direction of getting the Oregon off. This was effected by the use of two steam pumps to free her of water, and by means of empty casks, and canal boats, applied under her guards, so as to raise her out of the water.
    It appeared that the plaintiff’s opinion, in the first instance, was, that she could have been got off, simply by heaving upon her, when freed by the pumps, and hauling her off. But this mode was strongly opposed by the owners and several of those engaged, and not attempted; and the evidence showed, that the attempt would have torn the steamboat in two, as the rocks projected into her a foot or two through her side.
    Besides his own services, the plaintiff paid out $62 59 for labor and materials engaged by himself. He also procured from the board of underwriters, and used in the work, a steam pump, belonging to the board, which they had refused to let the defendants have; it beipg their rule not to permit it to go out of the charge of their own agents. Their usual charge for such a steam pump, was two hundred and fifty dollars, and they charged this sum to the plaintiff. It was not proved that he had paid it. The plaintiff, in addition, founded his claim partly on the ground that his situation as agent for the board of underwriters, and constant employment in similar undertakings, gave him facilities in obtaining the necessary men and means for such enterprises, and for these he was entitled to compensation.
    The value of the Oregon was proved to have been about one hundred thousand dollars. Some of the plaintifPs witnesses testified that his services in the premises were worth from one to five thousand dollars ; other witnesses estimated the value at five hundred dollars ; and some, on the footing of a daily compensation, made it much less. The owners were at all times in jDOSsession of the steamboat, and controlled the operations for her relief. They paid the men, boats, and vessels employed, and there were other circumstances tending to show that the plaintiff exjDected a condensation, irrespective of the success of the efforts to get the steamboat off of the rocks.
    The referees allowed to the plaintiff two thousand dollars for his services in removing the Oregon from the rocks at Hell Gate, and for the use of the steam pump, and the $62 59 paid for cordage, &c., used in the work, making $2,062 59. The defendants moved to set aside the report as against law and evidence.
    
      & Sherwood, for the defendants.
    I. The allowance of two thousand dollars for four days work, and the use of a pump about two days, is neither reasonable nor justified by the testimony, and induces the belief that the report is founded upon misapprehension. (McConnell v. Hampton, 12 John. 237.)
    It is manifest that the referees have mistaken or exceeded their authority, and given damages as in a case of tort, instead of “ depending in any wise upon calculation,” in assumpsit. (Duberly v. Gunning, 4 T. R. 656.)
    II. The plaintiff was only entitled to pay for the ordinary services of the captain controlling a gang of men.
    His plan of “ hauling off” was not adopted, and if it had been, would have proved ruinous. The canal boats, not suggested by plaintifl) were most effective. The highest estimate of the plaintiff’s services, upon the supposition of his skill, was for himself $1,000, and $250 for pump. The average estimate would have been much less; and if paid as other captains, not over $10 or $12 per day. The plaintiff, by his bill of particulars, shows, that as salvage service he only claimed for himself $500, and for pump $250.
    IH. The facts in the ease do not present a case of salvage, oían action in the nature of salvage, the plaintiff not being in possession as salvor, but merely acting under the employment and in the aid of the owners.
    He was acting under a contract, and not as a volunteer, risking his whole compensation on his success. If it were a case of salvage, the exclusive jurisdiction is in admiralty. (10 Peters R. 108, 102; 3 Kent’s Comm. 244.)
    
      J. 8. Woodward and F. B. Cutting, for the plaintiff,
    insisted that the referees were justified by the evidence in determining-the sum of two thousand dollars to be a reasonable compensation to the plaintiff, for his services as such superintendent, and for the use of the steam pump. And on a question of fact, the court will not interfere with their report, unless there be a preponderance of evidence against their finding, so great as to satisfy the court that there was either an absolute mistake on the part of the referees, or that they acted under the influence of passion, prejudice or corruption. (Cohen v. Dupont, 1 Sand. S. C. R. 260; Doyle's Adm'r v. St. James Church, 7 Wend. 198; Winchell v. Latham, 6 Cow. R. 682.)
    The service was in the nature of a salvage service, and to be compensated according to its value considering the peculiar circumstances of the case; such as the great value of the steamboat, and her very critical situation requiring immediate use of powerful apparatus and skilful men. The plaintiff by his great experience had acquired means which no one else possessed. He had gangs of very skilful, disciplined and obedient men, set apart and devoted to this pursuit; and he had the means of procuring the steam pump of the underwriters, which was indispensable. He also had at hand all the other requisite apparatus. The referees were to decide it as a question of salvage, and they had jurisdiction. (Cashmere v. De Wolfe, 2 Sand. S. C. R. 379.)
    Mr. Cutting also cited Duke of Clarence, 1 Rob. Adm. R. 346; Newman v. Walters, 3 Bos. & Pull. 612; Abbott on Shipp. [556, 557,] 660, 662; 8 East. 70; 2 Chitty’s Pl. 68; 3 Hagg. Adm. R. 117; 1 Sumner 328; 1 Story’s R. 414.
   By the Court. Paine, J.

Although we cannot regard the declaration as setting up a claim for salvage, yet the plaintiff’s counsel on the argument attempted to sustain the referees’ report upon the ground that the plaintiff was entitled to compensation upon salvage principles. And although the report gives us no light as to the views of the referees in this respect, yet we are inclined to suppose from the amount reported by them, that they must have regarded it as a case of salvage. Did it clearly appear that the referees had so treated it, we should feel ourselves obliged to set aside their report upon that ground. .

The services rendered by Captain Sturgis have undoubtedly a resemblance, at least, to salvage services, and if presented for compensation to a court competent to grant it, would have been entitled to full consideration. But we think that a want of jurisdiction prevents this court from inquiring into their merits as salvage services.

Strange as it may seem, there is no instance which we are aware of, where the question has been raised, whether a court of common law has jurisdiction to award a salvage compensation. It is generally supposed that courts of common law have concurrent jurisdiction, in eases of salvage, as they have in many other cases with courts of admiralty; and undoubtedly there are one or two instances, where courts themselves have acted upon the supposition. How far it has been acted upon, however, and whether to a sufficient extent to establish the jurisdiction, can only be learned from an examination of the cases and the weight of the objections to the jurisdiction.

Salvage, although applied by the Romans to cases coming under the jus-jyostlimmii, appears not to have attracted notice at an early period in modern times, except in cases of wrecks. The statute of 27 Edw. HI. ch. 13, is probably the earliest men? tion of salvage, which provides that goods coming to land shall be delivered to their owners on payment of sal/vage. The only remedy in use for its recovery, appears to have been a detention of the goods until it was paid; and this gave rise to a tender of the salvage, and an action of trover for the recovery of the goods, in case the tender was not. accepted and the goods delivered up. The courts of common law were then, as they are now, perfectly competent to administer this remedy; and we find several actions of trover in the books, where, if the tender was sufficient, the owner recovered his goods, if it was not, the salvor still retained them. The first of these cases reported, (although probably, in practice, others had occurred,) is that of Hartford v. Jones, 1 Ld. Raym. 393; S. C. 2 Salk. 654; 3 Ibid. 366. The remaining cases of this description to be found, are Baring v. Day, 8 East. R. 57; Sutton v. Buck, 2 Taunt. 302; Clark v. Chamberlain, 2 Mees. & Wels. 77.

This right to demand and receive one’s goods, upon paying the possessor of them his just claim for salvage, seems to be founded in necessity, and has always been permitted both by courts of common law and courts of admiralty. If the tender is sufficient, there ought to be no litigation, unless among those entitled to the salvage; and to this the owner of the goods need not be a party. He has been able, as every one ought to be, by doing all that justice demanded of him, to extricate himself, merely, from a law suit; and he could have done it in no other way.

But a very different question is presented, when a salvor is to select a tribunal to decide upon his rights. If there is a court of ancient and acknowledged jurisdiction in such cases, which is peculiarly adapted to apply those extraordinary and anomalous principles of justice which govern salvage cases; which has facilities for bringing all the necessary parties before it, however unconnected and difficult to be reached, and of adjudicating upon all their rights, however conflicting and difficult to be reconciled and adjusted ; which has a system, of practice and of equitable rules admirably adajDted to such cases, and which have grown up from the constant, unquestioned, an'd long continued exercise of its jurisdiction; it deserves consideration 'whether the salvor should not be required to select such a court, rather than one which possesses none of these qualifications, and which can lay no other claim to the jurisdiction, than that in the course of centuries it has once exercised it in a single case.

In the first place, the principles which govern salvage compensation have no analogy to any principles acted upon in courts of law or equity in other cases. There is no possible form of action, in which it could ever be recovered, except in the general form of assumpsit; an action in which one may recover what in strict justice is his own-, but no more. For services, he can recover no more than their ordinary value. And it was never heard of that courts in such cases could have any regard to public policy in estimating the compensation.

Very’different are the principles applied to cases of salvage. “ If we search,” says Oh. J. Marshall (in the case of The Blmreau, 2 Crunch R. 266,) for the motives producing this apparent prodigality, in rewarding services rendered at sea, we shall find them in a liberal and enlarged policy. The allowance of a very ample compensation for those services, (one very much exceeding the mere risque encountered and labor employed in effecting them,) is intended as an inducement to render them; which it is for the public interests, and for the general interests of humanity, to hold forth to those who navigate the ocean. It is, perhaps, difficult on any other principle, to account satisfactorily for the very great difference which is made between the retribution allowed for services at sea and on land; neither will a fair calculation of the real hazard or labor be a foundation for such a difference; nor will the benefit received, always account for it.” Certainly these are unusual grounds of recovery, under a quantum meruit, or indebitatus assumpsit

In estimating salvage, the ordinary quantum meruit is almost, if not entirely, lost sight of. The elements. of salvage service which are principally regarded are, the enterprise, alacrity, intrepidity, and spirit of adventure of the salvor; the damages and difficulties he has to encounter; the fatigue, exposure, anxiety, and suffering which he endures; and the value of the property and degree of peril from which it is rescued. And an indispensable requisite, is, that he should be successful; for unless successful, he can make no claim for his services.

But the greatest objection to a common law action for salvage is, the unfitness of a jury to deal with it. The principles which govern its allowance can never be familiar to jurors, for they have no resemblance to the ordinary principles xipon which justice is administered. In most cases of salvage, there are many claimants among whom distribution is to be made according to rules which are only known to a coiut of admiralty, and which it requires great judicial ability to apjDly. There is one rate for the owner, another for the master, another for the mate, another for the seaman, another for the apprentice; all varying according to relative degrees of merit. There are sometimes different sets of successive salvors, whose respective claims are governed by well-established rules in admiralty. There are also well-settled rules, governing the proportions allowed in cases of derelict, and cases not derelict; in cases of great value, and cases of little value. In truth, there are often in cases of salvage, fifty different issues to be tried and decided, instead of the one or two single and simple issues, to which the wisdom of the common law has confined the function of a jury. Had not the subject of salvage been confided to the court of admiralty, it must have been assumed by a court of equity. The English chancery, which was wisely allowed to circumscribe the common law actions, would never have devised a writ for so complex and difficult a subject; but would, as it did in other similar cases, have itself afforded that relief which could- not safely be intrusted to a jlu7-

■ A court of admiralty has also the means of bringing before it all claimants of the property saved, or of barring their claims if they cannot be found or brought in. .It may also have plaintiffs before it whose claims are conflicting; and if all the salvors are not before it, or represented in court, it may reserve and set aside their shares until called for. Such are some of the advantages and facilities, which a court of admiralty possesses for doing justice to all parties, and maiding a complete and final disposition of the whole subject in a single suit for salvage.

The difference between a court of admiralty and a court of common law in this respect, is well illustrated by the case before us. There were altogether some 50 men, probably, employed in the undertaking to get off the Oregon. There were also several steam-boats, vessels, and canal-boats engaged in the business, and two valuable steam pumps were used on the occasion. Several of those employed in getting her off, appear to have exercised a judgment quite as good as the plaintiff’s, and possibly rendered nearly as valuable services. At all events, every one employed, and every owner of property used to get her off, were entitled, probably, to salvage as well as the plaintiff, although not perhaps to so large a share. But the plaintiff is the only one who makes a claim in this suit; and I know of no common law rule which would have authorized the joining of any of the rest with him in this action. He' must sue alone, and every one of them must sue alone ; and if every one recovers, in proportion to the $2,000 allowed to him, the Oregon might better have been left to repose upon the rocks of Hellgate. The horrors of any alternative were better than such a litigation.

I need not pursue this subject further. It is obvious, that, although there may be cases of great simplicity, compared with those I have referred to, yet all, as regards the jurisdiction of courts over them, must occupy the same ground, and possess the same rights. The question of jurisdiction cannot depend upon the number of parties, or the complexity or difficulty of a case, but upon its character. If a court has jurisdiction of a single salvage case, it must have of all.

Hothing remains but to inquire how far courts of common law have exercised this jurisdiction, and what are the opinions of jurists in support of it.

But one instance is to be found in the English reports of a suit for salvage in a court of common law ; that of Newman v. Walters, (3 Bos. & Pul. 612.) It was an action of indebitatus assumpsit for salvage, brought by a passenger for acting as master, after the master .had left the vessel with part of the crew, and with the rest of the crew bringing the vessel safely into port. No objection was made to the jurisdiction of the court, and it seems not to have been thought of. This probably arose from there being no difficulty as to parties, the mate and crew being clearly not entitled to salvage, and the plaintiff being the only one who could have any claim. The only question raised or considered by the court was, whether a passenger under such circumstances could be entitled to salvage.

I have not been able to find the subject mentioned in any elementary writer, except in Lord Tenterden’s treatise on shipping, and in a note to the form of a count for salvage in Ohitty’s pleadings. Lord Tenterden, (Abbott on Ship. 398, § 2,) says, that, -by the common law of England, salvage may be ascertained by a jury, in an action brought by the salvor- against the owner of the goods. But he cites no authority for it, although he does afterwards cite Newman v. Walters, to show under what circumstances a passenger may be entitled to salvage. Chitty in his second volume, p. 68, barely gives a form of indebitatus assumpsit “ for salvage of a certain anchor and cable,” and refers to Newman v. Walters as the precedent. These are the only forms of a declaration for salvage to be found.

A case has occurred in our own courts, (Peck v. Randall, 1 J. R. 165,) of a suit for salvage, but no question was raised or doubt expressed as to the jurisdiction; the case of Newman v. Walters having been cited and apparently regarded as furnishing a safe and reliable precedent.

We think that the occurrence of a single case of salvage in a court of common law, at so late a period as that of Newman v. Walters, while the court of admiralty had for ages been in the undisputed possession of the jurisdiction over such cases, is no evidence of a right to the jurisdiction, but rather the contrary ; the question of jurisdiction not having been raised or considered. And we think that the mere occurrence of such a case, ought not, under the circumstances, to weigh at all against the objections which wre have considered to a court of common law possessing jurisdiction. It was probably the frequent occurrence of the cases of trover which led to no question of jurisdiction being raised in Newman v. Walters.

As I have already remarked, if we could ascertain that the case was decided upon salvage principles, we should set aside the report of the referees; but as this does not already appear, we shall only reduce the amount of damages, still allowing the plaintiff an amount so liberal, that it may well be doubted, whether it coaid be recovered under the quantum meruit, were it not for the extraordinary skill and ability which some witnesses have testified that he possessed. We think that the measure of his compensation should be governed as well by the extent of his skill and experience and his means and appliances for such duties, as by the number of days labor performed, or the number of men whose employment he secured.

On this footing, and having regard to the evidence, we agree that five hundred dollars will be a sufficiently liberal compensation for his services, and that he should recover two hundred and fifty dollars for the use of the underwriters’ steam pump, and the sum paid for cordage, &c., as allowed by the referees.

We will give to the plaintiff the option of reducing his report to the amount thus made up, and having it confirmed, or of having the report set aside and a new trial ordered; and the rule will provide for his election accordingly.

Oaklet, Oh. J. and Sandeokd, J., concurred in the judgment, on the ground that the referees evidently valued the services rendered, as upon a salvage; and that under the circumstances of the case, the plaintiff’s demand could not be enforced as a claim for salvage, or in the nature of salvage. Their reasons were, that when there is no express agreement, the circumstances of each case must govern in determining whether the services rendered are to be compensated on a qiicmtum meruit, or as salvage. In this case, the vessel was in a river or narrow strait, she was not derelict, she was never out of the actual possession of her owners, and although in great peril, not beyond their power to protect and secure by hiring suitable men and means. The plaintiff acted under an express employment from them; and a great many men, and numerous canal boats and other vessels were likewise employed "by the owners, assisted in the work, and were paid "by them. It does not appear that the plaintiff’s compensation was at all risked on the event of success in saving the steamboat; and on the contrary, the circumstances tend strongly to show that he was to be remunerated according to the value of his services, on the same principle that others were paid who labored in subordinate stations in relieving her from the danger in which she was placed.

Paine, J., concurred in the result of these views, also reposing his judgment on the ground stated in his opinion.

(The plaintiff acquiesced in the decision, and took a judgment for the reduced amount prescribed in the rule.)  