
    BRYAN’S CASE. Oliver N. Bryan v. The United States.
    
      On the Proofs.
    
    
      During the war of the rebellion a barge, laden with military stores, springs a leak while going down the Dotomae. She is run ashore and attached by a line to an anchor. The officer in charge sends bach to Washington for assistance. The claimant, supposing the barge to be abandoned, proceeds to unload her. While so engaged the assistance sent for arrives, and the claimant, by military force, is compelled to restore the goods he has taken. Se brings his action for salvage.
    
    I. The Judiciary Aet 1789 (1 Stat. L., id. 76) gives to tile district courts of the United States exclusive admiralty and maritime jurisdiction on waters navigable from the sea, “ saving to suitors in all cases the right of a common-law remedy where the common law is competent to give it.” By the common law, a person who lias saved goods wMch have been abandoned at sea may retain possession and bring Ms action against the owner. That salvage oases are of common-law jurisdiction is questioned in this country only as to State courts; hence, the district courts have not exclusive jurisdiction as to this court, and where the government is owner the salvor may bring his 'action in the Court of Claims.
    II. Where the salvor acts under a misapprehension of the abandonment of a government barge on the Potomac River, and, in fact, the goods are not in imminent peril, and nothing is gained by or saved for the owners in taking out a part of the cargo, there, no legal salvage services are rendered.
    
      Messrs. Carlisle and McPherson for the claimant:
    This is a claim for compensation in the nature of salvage, for saving a boat and cargo belonging to the United States, wrecked in the Potomac Biver in January, 1862.
    The general facts of the case are stated in a report transmitted to this court by the Secretary of War, under date of January, 1867.
    On or about the 10th of January, 1862, a boat, called the -Cookendorffer, left Washington, laden with public stores, destined for General Hooker’s army, then encamped on the Maryland side of the Potomac, about forty miles below Washington. She also carried some private stores for the officers and soldiers. When about sixteen miles below Washington, being towed by a tug-boat, she was cut through by the ice, and being about to sink, the captain of the tug attempted to run her ashore, but she sunk in four or five feet water, about eighty yards from the shore. Then the tug left her, and taking the crew of the barge on board, returned to Washington. In this condition she was •discovered by the claimant, who resided in the immediate neighborhood, and who, finding her entirely deserted, and not secured in any way, determined to save her cargo. Accordingly, with the aid of his own farm hands, he proceeded to unload the barge, putting the goods in a scow, bringing them to shore, and storing them in a large unoccupied house on his premises. He worked one entire day in this manner, and renewed his operations on the next day, when a government steamer, which had been dispatched from Washington for the purpose, with officers and soldiers, arrived. The officers took charge of the barge, removed the rest of her cargo to the steamer, demanded and received from the claimant all the goods that he had landed, and carried them off, together with the barge, which.'they raised and repaired.
    There is not the slightest disagreement as to the facts between the witnesses for the claimant and the official report from the War Department, except in one single particular, viz: Mr. Morgan’s official report, which the department sends as its own, states that the anchor of the barge was let go, and the boat made as,secure as possible under the circumstances, or at least Mr. Morgan says that such was the report made to General Rucker. The same officer, Mr. Morgan, when examined as a witness, says the anchor thrown out from the barge was “ a small hedge anchor with bow-line attached, to prevent her drifting and show that the boat was not abandoned.” The claimant’s witnesses say that she was not anchored or secured in any way.
    These apparently conflicting statements are easily reconciled. No one merely seeing a bow-line (which, we believe is an ordinary rope) hanging over the side- of the barge would suspect an anchor to be fastened to the end of it, and it is manifestly true, as stated by the witnesses, that the boat was not “ secured” in any way against the dangers to which she was exposed. These were, first, the violence of the winds and waves dashing over her; she was exposed in spite of her anchor; second, the depredations of the enemy, who were on the other side of the river in force, and could have removed all her cargo under cover of the night, or of the thick fog which was then prevailing, and which for three days prevented the government officers from attempting to save it. The boat was simply a wreck. He is therefore justly entitled to compensation.
    Considering all the circumstances, the danger not only of the loss of the boat and cargo to the government, but of their being taken by the enemy, the amount of salvage awarded would be, in an ordinary admiralty case, very liberal; and although the court is not now sitting in admiralty to allow salvage as such, that is a proper measure of compensation, and was adopted as such by this court in the case of Goidil v. The United States. (1 0. 01s. E., p. 184.)
    - Although the property of the United States cannot be proceeded against in rem. in a case like this, it is liable to all the burdens of private, property in similar circumstances. (The 
      
      Davis, 10 Wallace.) . The claimant, as salvor, was lawfully in possession of the wreck and cargo, and had a qualified property therein. His rights could not be divested by being turned but of possession. He is, therefore, entitled to salvage upon the whole cargo.
    The only witness whom the claimant could obtain on this point was L. W. B. Hutchins. He had experience as a country storekeeper j saw the cargo as well as it could be seen under the circumstances, and estimated the value of the cargo undamaged at $50,000, and the damage to be 20 per cent., leaving $10,000 as the value of the goods saved.
    The policy of the law, perhaps, does not entitle the claimant to the entire salvage, although the whole labor was undertaken by him and executed, as far as it was executed by himself and persons employed and paid by him, and with his boat and teams; the facts are before the court, and they can apportion and award as may be deemed just. The rate is in their discretion. The claimant claims as his own share $5,000, or about one-eighth of the value of the goods saved, exclusive of the barge;
    The loyalty of the claimant is placed beyond question by his meritorious undertaking to save the military stores of the United States.
    
      Mr. Jacob Shroder (with whom was the Assistant Attorney General) for the defendants:
    I. Hs to the jurisdiction :
    
    1st. (•«.) The defendants respectfully submit that, assuming (e. cj.) salvage to he based upon a maritime implied contract,'the Court of Claims does not possess jurisdiction of this case of salvage.
    By the Judiciary Act 1789, section 9, (1 Stat. L., 76,) the district courts have exclusive cognizance of all civil causes of admiralty and maritime jurisdiction, on. waters navigable from the sea, “ saving to suitors, in all cases, the right of a common-law remedy, where the common law is competent to give it.” It is clear that this last clause saved only such preexistent remedies as the common law then gave. It did not include newly-devised remedies, unknown to the common law, for by specially saving common-law remedies it excluded statutory remedies. (Ashbroolc v. Steamer Golden Gate, 1 Newberry, 305.)
    
      The saved remedy is a common-law juridical remedy, in causes of admiralty and maritime nature, as distinguished from the remedy in admiralty or chancery.
    The non-existence of a common-law juridical remedy against the United States conclusively gives the district court, as against the defendants, exclusive cognizance of all civil causes of admiralty and maritime jurisdiction.
    
      (b.) The Act February 24, 1855, (conferring jurisdiction on this court, of claims against the government, founded upon contracts expressed or implied,) establishes a statutory court, with statutory procedure, (beginning by petition actions to enforce common-law rights,) and provides clearly a statutory remedy. This act must be construed with reference to the subsisting exclusive jurisdiction of the district court, in all admiralty and maritime causes, saving common-law remedies. (Sedgwick on Statutory, &e., Law, 125, and note.) Therefore, as a statutory remedy, the act does not affect the exclusiveness of the district court’s jurisdiction.
    (c.) The phrase “any contract, expressed or implied,” (in the Act February 24, 1855,) is incapable of conferring on the Court of Claims jurisdiction of a salvage claim, without repealing, pro tanto, by implication, the judiciary act of 1789.1
    A repeal by implication is not favored. (Sedgwick on Statutory, &e., Law, 127, and note.)
    There must be a positive, manifest, and total repugnance between tlie provisions of the new law and those of the old, to justify a repeal even pro tanto by implication. (Wood v. The United States, 16 Peters, 363.)
    
      (d\) There is no repugnancy between the Act February 24, 1855, and the Act September, 1789. The ay ell-marked distinction betAveen the class 'of contracts of admiralty nature and the larger class of purely connnon-laAV cognizance, induces a construction of the act of 1855 which limits the jurisdiction to contract's of the latter and more extensive class.
    2d. It is, however, contended that salvage is a purely equitable claim, and is eminently a subject for admiralty jurisdiction, aud not within that of the Court of Claims. (3 Kent, 329; 2 Parsons on Maritime Law, 595.)
    No common-law action lies for salvage service as suck (2 Parsons on Maritime Law, 595 ; Lepson \. Harrison, 24 B. L. & E., 208.)
    
      The claim here is for salvage service, as stick, there being neither averment, nor proof of contract.
    3d. The claim is founded on a tort of one Morgan.
    II. On the merits :
    
    
      (a.) The claimant here demands a reward for unnecessary and useless labor. His efforts were justified by neither the appearance nor reality of legal abandonment of the Cooken-dorifer. The anchor cast, the immediate report of Captain Boss of the Keystone, the promptitude of relief, prove that the temporary abandonment was for the purpose of returning with aid to recover the wrecked boat. These facts negative a derelict, in the maritime sense of the word. (The Centurión, Ware’s B., 43; The Bee, Ware’s B., 339, 340; T. P. Leathers, New-berry’s B., 427; The Schooner Emulous, 1 Sumner, 209.)
    The property Aras in no danger of destruction or capture. The violence of the current or tide seemed not to require Bryan’s instant action; for, having discovered the Avreck on the morning of January 9, he concluded to Avait twenty-four hours before attempting to saAre the cargo.
    The dread of capture Aras founded on nothing but supposition and speculation. The property Avas claimed to be salved,.lest reported rebels might discover the wreck through a fog .that Arould screen their operations.
    (b.) The claimant’s labor was of no benefit to the defendants. “ The principle is that without benefit salvage is not payable.” (.Talbot x. Leeman, 1 Grand), 18.)
    (c.) The greater portion of the salved property belonged to private owners, and not to the defendants.
    
      (d.) The value of the cargo is not proved.
   Loeing-, J.,

delivered the opinion of the court:

In this case it was objected that the court had not jurisdiction of the case, because, by the ninth section of the Judiciary Act, 1789, (1 Stat. L., 70,) the district courts have exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction on Avaters navigable from the sea, “ saving to suitors in all cases the right of a common-law remedy, where the common law is competent to give it; ” and it was contended that this case Avas not within the saving clause, because the’remedy here is a statute and not a common-laAv remedy.

But the jurisdiction limited in tlie ninth section ol‘ the judiciary act is of suits against individuals onljr, while the jurisdiction here is of suits against the United States only. The ninth section, therefore, and the statutes organizing this court, relate to different subjects, and are not in pari materia; and we thinlc the jurisdiction of this court is to be sought exclusively in the. statutes limiting it, because no other statutes relate to it. The statutes organizing this court give us jurisdiction over “all claims founded on any contract, express or implied.” This includes at least contracts at the common law. And the question here as to jurisdiction is whether at the common -law a contract is implied for salvage services.

That cases of salvage were of common-law jurisdiction in England is not to be questioned. That law gave the salvor a lien on the goods saved for a reasonable compensation. And that lien involved a legal obligation on the owner oil his repossession of his goods to pay the compensation, and from, that legal obligation the law implied a promise against him. Lord Tenterden thus states the common law on the point: “A person who, by his own labor, preserves the goods which the owner, or those intrusted with the care of them, have abandoned at sea,, or are unable to protect and secure, is entitled by the common law of England to retain the possession of the goods saved until a proper compensation is made to him for his trouble. This compensation, if the parties cannot agree upon it, may, by the same law, be ascertained by a jury in an action brought by the salvor against the proprietor of the goods.” (Abbott on Shipping, Story’s ed., c. 10, pt. 3, § 2.)

And that salvage cases were of common-law jurisdiction has been questioned in this country only as to State courts under the ninth section of the judiciary act. And in the elaborate cases of Waring v. Clarke (5 How., 441) and New Jersey Steam Navigation Company v. The Merchants' Bank, (6 How., 344,) the common-law jurisdiction was asserted, and'it was held that the saving clause in the ninth section left “the concurrent power where it stood at common law.”

And we hold that the salvage sérvicés and facts alleged in the petition are sufficient, if proved, to imply therefrom a contract for compensation, valid at the common law, and within our'jurisdiction.

The claim made is in the nature of salvage; but on the facts stated, we tliink no valuable service was rendered. The vessel and cargo were not abandoned, but left only to procure assistance, and her condition and the circumstances furnished no reason for supposing them abandoned. And they were in no. imminent peril, and subject to no greater damage than they had sustained when left, and nothing was gained or saved to the United States by taking a portion of her cargo from her and then resliipping it. The barge from the first was fast aground and anchored, and there is no evidence that she moved; the weather was soft; there was neither wind nor waves beyond the current of the river and the rise and fall of a few feet ■of the tide, and the running ice, which was the only peril she was exposed to, had done its worst when she sunk; and the ■only effect of removing the goods from her was that they were under water some hours less than they otherwise would have been; and it is not shown that anything, or how much, was saved by this to the United States.

The judgment of the court is that the petition be dismissed.  