
    THE VARZIN.
    (District Court, S. D New York.
    May 21, 1910.)
    Salvage (§ 34) — Compensation—Rescue of Ocean Steamship with Broken. Propeller Shaft.
    The German steamship Varzin, 4,470 gross tonnage, on a voyage from Australia to Boston and New York with a cargo of wool valued at $1,300,000, ship, cargo, and freight being worth about $1,500,000, broke her propeller shaft on January 29th, when seme 350 miles from Boston. She was water-tight and otherwise seaworthy, and proceeded under sail, making some progress with fair weather, but in the meantime making distress signals. Her sails were not intended for independent navigation, and she could not shape her course in bad weather. On February 1st she was spoken by the steamer Erika, bound from New York to the Azores and Lisbon, which finally agreed to take her in tow, and on the 9th reached Boston with her in safety. During the time there was stormy weather, in which the hawser parted, and while waiting for the storm to abate the vessels drifted from their course. There was no great danger at any time to the Erika’s crew, hut during the heavy weather there was some to the vessel owing to the heavy tow, and she was somewhat strained. Reid, that-under the circumstances and in view of the valuable cargo of the Varzin and her peril, which, although not immediate, was considerable at that season, the Erika was entitled to a salvage award of $45,000 in addition to an allowance for her time, coal consumed, and repairs and disbursements.
    [Ed. Note. — For other cases, see Salvage, Cent. Dig. §§ 80-83; Dec. Dig. § 34.]
    In Admiralty. Suit by the owñer of the steamer Erika against the steamship Varzin.
    Decree for libelant.
    This is a libel for salvage of the German steamship Varzin, a steel screw freight steamer of 4,470 tons gross tonnage, while on a voyage from Australia to Boston and New York with a cargo of wool. At 9:28 p, m., January 29, 1910, the Varzin broke her tail shaft about a foot from the stern post and aft of her water-tight bulkhead. At that time her position as figured from an astronomical observation at noon on that day was latitude 37° 18' N. and longitude 63° 42' W'. She had therefore come near the end of her voyage, as her first port was Boston. Repairs were made which made her substantially water-tight and were themselves of a durable and excellent character, so that she was to all intents and purposes seaworthy, except for tho fact that she could no longer steam under her own headway. At the same time the master bent sails with which she was supplied, and besides rigged all other canvass, including awnings and tarpaulins, which ho had on board, and which could in any way take the wind. Most of these were of an obviously provisional character. Two in particular were bent upon yards rigged upon the stay running from the mainmast to the foremast, and one was bent upon a derrick-boom which was itself rigged upon the foremast. With these sails and the help of southwesterly and southeasterly winds, she made considerable headway on her course on January 30th, and again on January 31st, the wind being during that time substantially favorable.
    There is some dispute as to the distance she had covered before February 1st in the evening. The evidence of the claimant shows that even with southerly winds she could not in any sense shape a course, but she was nevertheless considerably nearer her port on the 1st than when the shaft broke. On the 29th the vessel had sent up rockets in signal of distress, and on the 31st sighted an east-bound steamer, which she signaled with rockets, hut which paid no attention to her. On the morning of the 1st of February she sighted another east-bound steamer, which she again signaled by rockets, hut which also passed her. On the evening of the 1st, at 9 p. m, she sighted the steamer Erika, bound from New York to the Azores and Lisbon, which she managed to speak. The Erika had left New York on January 30th and had passed southward of the usual track to the Azores to get advantage of the Gulf Stream. She was a German ship of 2,605 gross tonnage engaged on freightage charter by the Gans Steamship Line, and plying regularly upon her charter between those ports. After speaking the Erika, the Varzin unsuccessfully attempted to agree upon a price for towage with the master of the Erika. Thereupon the following entry was made in the log of the Varzin at 1 a. m., February 2d: “As our ship was not manageable the mooting of the officers decided in order to save ship and cargo to accept the said condition.” The condition referred to was the settlement of the salvage by arbitration. The Varzin wished to start at once, the weather at that time being calm, but the night was dark and cloudy, and the Erika was unwilling to take the risk of putting a line from one ship to the other until the moon rose, which, being in the last quarter, was some time about 3 or 4 o’clock; moreover, the Erika needed some time to make ready by removing the steam pipes which ran along her hatches about which the hawsers were to be made fast. When the moon rose, the Erika was still unwilling to put out a boat, owing to a heavy swell, and by daybreak tho wind had begun to blow from the north, increasing to a squall. The log of the Varzin conclusively shows that during that day, and while the Erika stood by, nothing could have been done with safety. Just how far the Varzin drifted at this time is somewhat uncertain, but on the morning of the 3d the sea had gone down enough so that at 8:45 a. m. the Varzin put out a boat which got a small lino from the Erika, and eventually 320 fathoms of steel hawser, made fast to 90 fathoms of anchor chain, were stretched between the two vessels. During this time the ships were kept very near together, as was necessary to hoave the hawser on board. The Erika began to tow at about O o’clock in the morning, the Varzin keeping a part of her canvas set, heaving the lead and signaling the distance made. The weather continued good with light winds on the 3d, but began to increase in force on the morning of the 4th, blowing northwest by west. On the afternoon of the 4th, the wind continued substantially from the northwest, but greatly increased in velocity until in the night of that day it was blowing at what is variously described as either,a hurricane or “full storm,” with a high sea, certainly 11 on Beaufort scale. At 8:30 the hawser parted, and the Varzin again went adrift. Further sails were set to keep the vessel as much as possible into the wind, and 15 gallons of oil were used to quiet the sea. The Erika had been prepared to cut the hawser before it broke, as she was laboring heavily and could not keep steerageway, particularly as the Varzin was veering in the wind widely from side to side. After the hawser parted, and during the night of the 4th and oth, the salvor stood by, and on the morning of the 5th, the weather having moderated, the Varzin a second time put out a small boat which got a line to the Erika, which again- heaved the hawser on board and began towing on the morning of the 5th. Just how far the ships drifted during the night is a matter of doubt, as the last astronomical observation had been at noon on February 4th, and by the next they were well in advance of that, but there can be no doubt that they had drifted some distance in a general southeasterly direction. The wind during the 5th and 6th blew no stronger than 6 on the Beaufort scale, but freshened again on the 7th, accompanied by snow squalls and bad weather. Bate on the 7th Highland Light was sighted, and from then the voyage was easier, the ships reaching Boston on the morning of the 9th. When the hawser broke, both ships were to the south of George’s Bank, but subsequently, and on the 5th and 6th, while both vessels were pitching heavily and the hawser was again in danger of parting, the ships were fairly upon George’s Bank.
    The hawser, because of its weight, had a downward pull of about 45 degrees astern from the fair lead of the Erika, and when she pitched, and the bow of the Yarzin at the same time rose to a sea, this created a strain upon the stern of the Erika which" bent the ship somewhat. The engineer testifies that the shaft through this bending of the ship actually bore upon the upper shaft bearings -so that they became heated by the friction, smoked, and constantly had to be cooled with oil and water. This testimony is contradicted by the testimony of the Lloyd’s surveyor, Stewart, who denies the possibility of working an engine under the conditions testified to by the engineer of the Erika.
    The value of the Yarzin was at the least $110,000, that of her cargo approximately $1,300,000, and that of her freight nearly $80,000, the whole of which she earned upon her arrival at Boston. The total values therefore came to something short of $1,500,000. The total time consumed by the Erika in the towage was 10 days and 13 hours, of which 36 hours was spent in standing by on- the 1st and 2d of February. The loss to the Erika in coal is estimated at substantially $1;070, her disbursements, in Boston $544, her time, about $1,075, repairs about $550. In addition to this, there was some proof of a loss due to the disarrangement of her schedule in Spain, which will fee alluded to hereafter. The agreed distance of the towage was 358 miles.
    Wheeler, Cortis & Haight, for libelant.
    Wing, Putnam & Burlingham, for claimant.
    
      
      For other cases .see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   HAND, District Judge

(after stating the facts as above). The chief reason for making a liberal allowance in this case arises from the value of the property saved and its danger. As to the Erika’s own peril, undoubtedly, if the story of the engineer is to be taken literally, the ship was in considerable danger of breaking her own shaft, par-: ticularly on the night of the 4th and during the 5th, when both were pitching heavily, and when the wind was very high, even by the Var-zin’s own log, which gives it up to 11 on the Beaufort scale. In view of its contradiction by the Lloyd’s surveyor, I shall accept the engineer’s statements with some reservation, but I cannot disregard the fact that, as the ship was going so slowly under full power that it could not make its own steerageway, the strain upon the shaft must have put it in considerable additional danger of breaking. Especially, while the ships were on the Bank, it would have been a matter of serious moment to be both adrift with broken, shafts, and no- one can fairly ignore that the salvor during that time was running a measurable risk. Upon her crew, except during those times when all hands were called to make ready for heaving the hawser aboard, or to clear away when it parted, there was imposed no great hardship or personal danger beyond what is in general attendant upon seafaring.

Coming now to the peril in which the saved property stood, it seems to me that the Varzin greatly underestimates it, and the testimony of her master that she was tight and seaworthy for an indefinite period is to say the least only a small measure of the truth. I am quite satisfied that he could make no headway except as he could continue to meet favoring winds, and could not have made port unless by a series of happy fortuities. Before he spoke the Erika, his course showed that he depended substantially upon the wind, and that he could lay a course very little into the wind. His sails, except those made for the ship which were not really designed for independent navigation, were of the most flimsy character, and several times carried away. The light cargo made the ship ride high, and must have added much to the difficulty of maintaining any,course into the wind. Especially the entry in the log of the Varzin shows pretty clearly that at the time the officers recognized that the ship was in no condition to continue any longer at sea than was absolutely necessary; nor do I credit the story of the Varzin’s master that all he wished was a tow to New York, if he could get in communication with a boat carrying wireless. That would have no doubt been much cheaper and would have admirably answered his purposes if he had been able to get it at once, but he was certainly very willing to take the first assistance which offered, and which would bring into port his immensely valuable cargo. Though, as I believe, he had ample stores for the safety of his crew for an indefinite time, and though his position was somewhat, north of some of the trans-Atlantic courses, it is quite obvious that with the winds which blew on subsequent days he was in great danger of blowing out of any course, and of drifting about helplessly till he was picked up by some steamer like the Erika, which in that event would have with reason claimed a larger award than can be awarded now. Certainly his wisest course was to do what he did, and avoid any further risk of danger or damage. It is very well now when all are safe and happy, in port to consider the many means of safety which might have come to hand, but the fact must always remain that a ship practically helpless, 350 miles from land, is always in real peril in the north Atlantic in winter, and that, although there are ways in which she may come out of it, hull, cargo, and freight, there are likewise many others which lead quite elsewhere.

In so far as involves the loss of 36 hours in standing by on the 1st, I do not think that the master of the Erika can be blamed. He was not ready to heave on board the hawser until early in the morning, and it was natural that with some sea running he should be unwilling to risk his men until there was light with which to see what he was about. The Varzin herself did not suggest in the night that a small boat should go out, thought she sent it out each time after-wards, and it seems to me unfair to charge with overcaution a master who will not put out his crew in a small boat in the dark and between ‘ two ships working so near together. Besides, that very proximity of the ships would have been doubly dangerous in the night, even by a half moon. When the light came, I do not understand that either party 'contends that it would have been prudent to attempt' to carry a line from one ship to the other until the following morning.

Though I am fixing a larger award than has heretofore been granted, so far as I find in the books, I have not thought that the sum should be fixed upon anything- like the same percentage of the value of the property saved as would obtain in smaller cases. The salvor must no doubt have adequate inducement, but that inducement cannot be strictly proportionate to the value, and this is a principle which has been recognized in the cases. Considering the peril of the Varzin and her value, and the real, though not great, danger, which the salvor herself undertook in towing a much larger ship through such weather, the necessary length of time involved, and the extraordinary success of the help given, I think a salvage of $45,000 is fair, and I will award that sum. . To this may be added the expense of the Erika, amounting to some $o,000, and consisting of the items mentioned in the statement of facts. I consider the loss involved in the supposed disarrangement of the schedule too remote to be the basis of damages. If the parties cannot agree upon the expenses, they may take a reference. Costs will follow the award.  