
    MERRITT & CHAPMAN DERRICK & WRECKING CO. v. THE UNITED STATES
    [No. B-104.
    Decided April 4, 1927]
    
      On the Proofs
    
    
      Salvage services; basis of compensation. — See Merritt & Chapman Derrick & Wrecking Co. v. United States, ante, p. 297.
    
      The Reporter's statement of the case:
    
      Mr. John W. Griffin for the plaintiff. Mr. L. Russell Alden and Haight, Smith, Griffm <& Deming were on the briefs.
    
      Mr. J. Frank Staley, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. Mr. W. Clifton Stone was on the brief.
    The court made special findings of fact, as follows:
    I. The plaintiff is a corporation organized and existing 'under the laws of the State of West Virginia, having its principal place for the transaction of business in the city, county, and State of New York.
    
      II. At all times hereinafter mentioned and for many years prior thereto, the plaintiff maintained a large fleet of derricks, steamers, tenders, and other apparatus used and equipped for the purpose of recovering and salvaging vessels, and at all times maintained and operated said fleet with its equipment for the purpose of salvaging vessels in the Atlantic Ocean and the waters adjacent to the Atlantic coast of the United States and tributary waters, and has maintained various wrecking stations fully equipped for rendering salvage services at short notice, among which stations is one located at the city of New York. In general its work was divided into two classifications — offshore and harbor. Its offshore department represented an investment of about one million and a half dollars.
    III. The steamship El Sol, on and prior to February 11, 1918, and during the entire period covered by the services rendered to the said vessel by the plaintiff herein, was an American steamship under bareboat charter to the United States of America through the United States Shipping Board, and allocated to the Department of War of the United States of America upon the same basis, manned by a United States Navy crew and maintained, operated, and employed by the said Department of War of the United States of America in transport service of the United States Army. The said bareboat charter provided, among other things, as follows:
    “ Second. The United States at its sole expense, shall man, operate, victual, and supply the vessel.
    “Third. The United States shall pay all port charges, pilotages, and all other costs and expenses incident to the use and operation of the vessel.
    “Fourth. The United States shall assume war, marine, and all other risks of whatsoever nature or kind, including all risk of liability for damage occasioned' to other vessels, persons, or property.”
    IY. The said steamship El Sol was a steel screw steamer of 6,850 tons deadweight capacity, 6,008 tons gross register, 405 feet 6 inches in length, 53 feet beam, and 27.4 feet deep. The sound value of the said steamship, including engines, boilers, tackles, apparel, and furniture, but excluding cargo, was $1,370,000. At the time of the rendition of the service hereinafter set forth the said steamship had on board a cargo of over 4,000 tons of war supplies, including therein stores, coal, grain, and 640 nuiles and 10 horses. The said cargo on board belonged to and was owned by the. United States of America and was of the value of approximately $690,000.
    She carried a civilian crew of 68, a gun crew of one naval officer and 23 men, and an Army quartermaster and 50 or 60 enlisted men.
    V. On February 11,1918. at about 5.50 o’clock in the morning, the said steamship being then on a voyage from Newport News, Va., to New York, from which latter, port she was to proceed in convoy for Europe, went aground on the New Jersey coast about one-half mile off the north end of Beach Haven. She came up in hard sand on a table of the beach (i. e., where the soundings run regularly the length of the ship). Her draft at the time she was stranded was 25 feet 6 inches forward and 25 feet 3 inches aft, and where she was aground there was 23 feet of water. The tide wras at its peak.
    She lay heading about 5° east of north, practically parallel to the beach, in a slight cove. This cove afforded protection to her from a direct current heading up and down the beach, but gave no protection against winds which might have come from the northeast and south and points between, running clockwise from northeast.
    VI. At 7.10 a. m. the tug O. L. Ilollenback came alongside in response to a signal from the El Sol. At that time the El Sol, under her own power, vTas gradually swinging her head to the eastward. A hawser was fastened to the starboard bow of the El Sol, and the O. L. Ilollenback pulled for about an hour and 20 minutes, during which time the El Sol swung around to north 80° east. At that point no further swing was noticeable. The tug was then transferred to the stern of the El Sol and the engines were reversed, but without effect. At the El SoVs request, the tug thereupon stopped pulling and released its hawser. The tug then, at about 9.30 a. m., proceeded on her course.
    VII. Thereafter, at about 10 a. m., the El Sol communicated the fact of her distress to the Army Transport Service at Hoboken, N. J., Avhich in turn, through Captain Baker, requested assistance from the plaintiff. company. This request was received at 12.15 p. m., February 11, 1918, at Sta-pleton, Staten Island, which was the base of the Relief, a salvage vessel belonging to the plaintiff company. As was customary for purposes of emergency, this vessel had steam up, and could have moved to the assistance, of the El Sol in approximately half an hour. However, plaintiffs’s orders were to wait for Captain Bernard, marine superintendent of the United States Army Transport Service at Hoboken. He arrived at 1.10 p. m., and the Relief left immediately for the scene of the stranded vessel.
    VIII. The Relief was a specially built salvage vessel of 828 gross, 563 net tons, and was equipped with all modern appliances for salvage work. She had an indicated horsepower of 1,500. Her value was $425,000. She employed a wrecking crew of 31, and, in the case of emergency salvage work, an additional wrecking crew of. 10 or upward in number. Her captain, Herbert B.. Foster, and the members of the crew were all men of long experience and training in salvage work. She carried equipment for salvage work of the value of about $38,000.
    IX. At about 5.30 p. m. the submarine chaser patrol Errtj-erald came alongside the El Sol and offered assistance, but the time was not opportune and she was not used. She was a small vessel and incapable of rendering assistance.
    X. The Relief arrived at the side of the El Sol at 7.40 p. m. February 11, and transferred a portion of her crew to the deck of the latter and immediately began salvage operations. Under the direction of Captain Bernard, soundings were taken and showed good depth of water astern and that she was sandbound mostly forward from foremast to smokestack.
    The Relief first laid a running line to the El Sol and by 9.45 p. m. her 12-inch towline was made fast to the stern of the stranded vessel. The Relief started immediately to tow and pulled until 11.15 p. m. with little apparent movement on the part of the El Sol.
    
    
      XI. The Relief then anchored and at 4.10 a. m. February 12 resumed towing and pulled until 9 a. m. The ship’s engines were worked astern during about an hour of this time. The towing resulted in swinging the stern of the El Sol approximately 97°.
    The towline was then taken off and the Relief began to fasten cables to the El Sol and to lay anchors, and at 9.20 a. m. the crew of the El Sol, in accordance with a plan agreed upon by officers of the two ships, began to throw overboard 282 tons of hay and oats of the value of $13,000, and 165 tons of water. This work took from three to four hours and lightened the ship about 18 inches forward and 14 inches aft. An attempt had previously been made to obtain lighters in order to save this cargo, but none were available.
    Meanwhile the Relief was engaged in laying anchors. The first cable and anchor was laid at 11 a. m. from the El Sol stern about two points on the starboard quarter, and the second cable and anchor was laid at 2.15 p. m. at about four points on the starboard quarter. These anchors were the property of the plaintiff company and were specially constructed and made of cast steel and had exceptionally large flukes. The anchors weighed 9,000 pounds apiece, and the cables used to attach them to the ship were 15 inches. These cables were made taught by windlasses on the El Sol and the strain on them was thereafter continuous.
    At 6 p. m. the Relief again began towing and pulled until 10 p. m. The only movement of the ship resulting from this towing and use of the cables and anchors was the swinging of the stern approximately 11° seaward.
    XII. At about 3 o’clock in the morning of February 13 the Army Transport Service tugboat No. 3 arrived on the scene in response to a request by Captain Bernard. This tugboat was 115 feet in length, 27.5 feet in breadth, 15.5 feet in depth, with a draft of 13 feet, was built of steel, was of 284 gross tons, 193 net tons, and had an indicated horsepower of 1,100-1,200. She was a very powerful tug. She carried 150 fathoms of new 7-inch line.
    XIII. The Relief again started towing at 4.20 a. m. February 13, 1918, and sí rain was further placed on the cables. At 6.30 a. m. the Army Transport Service tugboat No. 3 was attached to thé Relief and started pulling ahead of her at 7 o’clock. The El Sol began to move seaward. Because of the lack of design for the purposes used, the Army Transport Service tugboat was not able to keep in line with the Relief and hindered the latter in pulling, and at 7.30 the tugboat was shifted so as to pull on the ship’s port quarter. Meanwhile the cables were again tightened, and with the two tugs pulling and the strain on the cables the El Sol was brought clear of the shoal at 8.15 o’clock a. m. The El Sol’s main engines were used as soon as she had started to move astern. No damage to the vessel was discernible, and at 8.40 a. m. she was under way by her own steam to New York, where she was inspected, found to be in good condition, and proceeded two days thereafter to France. The Relief spent some time in picking up the ground tackle which had been laid, and returned to her base at Stapleton, Staten Island, at 6.50 p. m. that evening, and during the next day was reconditioned for future salvage work.
    XIY. During the time she was aground the El Sol was subject to the possibility that the action of the sea would cut sand away from under her bow and stern, leaving her hung up amidships and in such a position that she might break in two; that she might be strained, which would result in taldng in water and sand and sinking deeper; and that she might be set' up further on shore by action of wind and seas.
    The Jersey coast is a very dangerous one, and the vessels were at all times during salvage operations subjected to possible sudden and violent northeast and southeast winds which were to be expected at that time and place. Favorable weather was, however, experienced throughout the time of the salvage operations and at no time were the vessels in immediate jeopardy.
    XV. The pull exerted by the use of the ground tackle was 52 tons, that of the Relief 9 tons, and the Army Transport Service tugboat No. 3, 7 tons. Besides its pulling power, the ground tackle was particularly valuable in maintaining whatever advantage' had been gained from time to time by the pulling. ■ -
    XYI. The work of heaving on El SoVs. capstans and of watching and tending the cables was performed exclusively by the plaintiff’s men. The possibility of the tackle giving way when under heavy strain makes this work highly dangerous to those working near by. On two occasions it did give way, but without resulting in injury to anyone.
    XVII. The services of plaintiff described above were prompt and highly efficient and were rendered without express contract, the basis of compensation being that usual in salvage.
    XVIII. The plaintiff presented a claim for compensation for said services to the Government through the War Department, which offered payment in the sum of $6,949.49,. which was refused by the plaintiff. The claim was also presented to the Shipping Board, which refused to entertain it on the ground that El Sol had been allocated to the War Department. No compensation has been paid to the plaintiff on account of this claim;.
    XIX. The plaintiff’s salvage service was reasonably worth the sum of $42,000.
    The court decided that plaintiff was entitled to recover.
   Booth, Judge,

delivered the opinion of the court:

This is a salvage service case. Liability to pay is conceded, the only issue involved being one of amount. The plaintiff seeks an award of $60,000, the defendant contends for a substantial reduction and while not insisting upon a certain sum strenuously objects to the claim as disproportionate to the service rendered. The plaintiff is a West Virginia corporation having its principal place for the transaction of business in New York City. Plaintiff maintains, and has for many years maintained a fleet of steamers, derricks, and complete wrecking apparatus devoted exclusively to salvage service.

On February 11, 1918, the plaintiff responded to a request from the proper officials to furnish immediate assistance to the steamer El Sol. The steamer El Sol went aground at about six o’clock in the morning of February 11, 1918, on a sand bar from three-quarters to a mile distant from the beach on the New Jersey coast off the north end of Beach Haven. The El Sol was a steel-screw steamer of 6,850 tons deadweight capacity, 405% feet long, a 53-foot beam, and 27.4 feet deep. She was worth at the time $1,370,000 and had on board a cargo of over 4,000 tons of war supplies, 640 mules, and 10 horses, a cargo of the conceded worth .of approximately $690,000. The El Sol was at the time under a bareboat charter to the United States and employed in war sendee; she had sailed from Newport News, Virginia, on her preliminary voyage to New York, whence she was to proceed in convoy to Europe. The immediate need of the vessel was an important factor, and her location at the time of the salvage service was fraught with grave danger.

We need not advert in infinite detail to the service of the plaintiff; the findings disclose the transaction. It is sufficient for present purposes to state that after repeated efforts and the application of the best and most approved modern methods the plaintiff succeeded in setting the El Sol afloat about 8.15 p. m. February 13,1918. The defendant contends for various intervening incidents calculated to minimize the service rendered and reduce its value. Fortunately for the steamer and the salvor, the weather was ideal. This, of course, minimizes to some extent the inherent perils of the salvage service, but it does not dispel them; nor does the condition entirely remove the danger the steamer was in.

The record firmly establishes that the accident occurred at a point along the Jersey coast where immediate and great peril to a stranded vessel might well be anticipated at that particular season of the year. The steamer was undoubtedly hard aground; she was so firmly stranded in the sand that despite the efforts of the plaintiff and the jettisoning by the master of 447 tons of her cargo, it required more than two days to set her afloat, resulting in a loss of cargo amounting to $13,000. Again, it is said that the Army transport tug No. 3 contributed in no small way to the salvage service. The Army transport tug No. ■> was a powerful tug; she was 115 feet long, 27.5 feet wide, 15.5 feet deep, with a draft of 13 feet, built of steel, 284 gross and 193 net-weight tons’ capacity, 1,100 to 1,200 horsepower, and carried with her 150 fathoms of new 7-inch line. That this tug was utilized in the service is indisputable, and the fact of its use unmistakably indicates that it was of some importance.

The plaintiff indubitably was by far the primary factor in accomplishing a successful salvage. The plaintiff’s sole business was rendering salvage service. For this purpose plaintiff maintained all necessary vessels and equipment as well as a trained and experienced complement of crews and men in its employ. Its response to the call for help was prompt, and as we have found, its service was “ highly efficient.” The service rendered involved imminent danger to a large and most valuable vessel and cargo, a vessel urgently needed in the war service, and needed without delay. The defendant offered to pay the plaintiff $6,949.49; the plaintiff refused the offer. The sum offered, in our opinion, is far below the amount earned. To salvage a vessel and cargo whose combined worth totals $2,047,000 is, according to the standard of awards in similar cases, worth considerably in excess of the mere cost to the salvor of his service plus a reasonable profit.

The uniform rule in salvage cases is one of more or less liberality, awarding salvors not alone a sufficient sum to cover expenses and profit, but including therein a reward, a stipend of sufficient proportions to encourage the service and not discount its general importance. Considering, then, the factors which the defendant suggests, the labor expended by the salvor in conjunction with the Army transport tug No. 3, the promptitude and skill displayed in rendering the service, and aid in saving the property, the value of the property employed by the salvors and the risk assumed, the value of the property saved, and the degree of danger from which it was rescued, giving to all these the importance the facts establish, we are of the opinion that a fair and just award would be $42,000. Judgment will be awarded plaintiff. It is so ordered.

Moss, Judge; Graham, Judge; Hat, Judge; and Campbell, Chief Justice, concur.  