
    HENRY McGOWAN v. THE UNITED STATES.
    [No. 13904.
    Decided February 9, 1885.]
    
      On the Proofs.
    
    The claimant boards a government vessel abandoned and adrift on the Missouri Eiver, amid circumstances apparently of extreme peril. Two others, on his invitation and with his assistance, come aboard. The three bring her to the shore, and subsequently deliver her to the master.
    I. This court has common-law jurisdiction of an action for salvage.
    II.The rule which awards a moiety to the salvors of a vessel found derelict is not obligatory upon courts of common law¡ Yet a salvage compensation substantially such as courts of admiralty award is the measure of damages.
    III. A proportion of the thing saved is the basis of salvage compensation; and the danger, difficulties, and risks involved in the salvage service determine the proportion.
    IV. In cases of exigency the question to be determined by a court is how the facts appeared at the time of action to those who had to bear the responsibilities of acting.
    V.Where the representative of the owners, and competent and experienced river navigators, regarded the situation of a vessel adrift in a freshet as one of extreme peril, the court will so regard it.
    YI. Whether a vessel adrift and in extreme peril might have drifted to a place of safety without the aid of her salvors is a speculative question. If they brought her to a place of safety, it will be deemed that they saved her.
    VII. Where a salvor is in possession of a vessel, and others, at his invitation and with his aid, board and assist in saving her, they, not being before the court, will be deemed to have rendered assistance to him and to have been to that extent his employés.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court, so far as they are involved in the decision of the case:
    II. On the 13th April, 1881, Mr. Fox (the officer in charge) made the following official report concerning the vessel$ and the court finds, from extrinsic evidence, that the facts and circumstances therein set forth are truly and accurately stated:
    
      “ Saint Louis, Mo., April 13,1881.
    “ Major : The following report, prepared in accordance with your instructions of this date, is respectfully submitted: #######
    “A general movement of the ice occurred at 5.30 a. m., the gauge at that time showing a rise of 9.8 feet. From the first the current attacked with great violence the point at which the boat was lying. By daybreak the crib was demolished, and the bank cutting so rapidly that it became necessary to have out two sets of lines. At times the entire force (four men) were required ashore to shift them. This was the condition of affairs at 10.45 a. m., when the stepping of the bitts broke, and they were pulled out, thus liberating the tug.
    “The men followed her to the foot of the island, but had no opportunity to board her. As they had no means of getting to the main bank, they could not follow her further. At the time the bitts pulled out, the tug was moored to trees ashore by two lj-inch lines, four 1-inch lines, and one one-half-inch chain. One of the 1-inch lines which parted was around the stem-piece.
    “ By noon the shore line of the island at this point had receded 100 yards. The tug passed Glasgow at noon, in midstream, out of reach of possible help, going safely under the second span of the Glasgow bridge.
    “ Telegrams were at once sent to Oapt. John Porter, at Boon-ville, Mo., and Mr. T. 0. Bradley, United States assistant engineer, at Jefferson City, stating the case and requesting them to look out for her.
    “ The watchman in my employ at Glasgow went to the livery stable and asked for a horse, that he might follow and take advantage of a favorable opportunity to board her. They refused to let him have one, and in a short time afterwards the proprietor and another man started on horses in pursuit, thus discovering their motive.
    “ February 9, at 10.45 a. m., I received a telegram from Boon-ville, stating that on the 8th, at 5 p. m., the Electra had been safely landed about 3J miles below the town. At 10.50 a. m. I started for Boonville by rail. At 5.30 p. m. I boarded the tug. She was lying about 300 yards below the mouth of the Bonne Femme Creek. I found three men in possession, namely, John S. Moore and B. C. Brown, of Glasgow, and Harry McGowan, of Boonville, Mo.- Messrs. Moore and Brown were the parties who followed the tug from Glasgow. Harry McGowan is a resident of Boonville, Mo. He is the proprietor of a saloon and eating-house, and claims to have been a sailor.
    “On Wednesday, the 9th, they attempted to tow the tug up to Franklin with a team. The load proved too great and the line had to be cut to save the team. They then drifted to the landing, where I found them.
    
      “After a hasty examination of the boat I concluded that she was not damaged beyond the loss of the rudder, and that there was no immediate danger from the ice. I therefore requested them not to attempt to move her up to Franklin, but to hold her there until I could put a competent crew on her.
    “ The next day, February 10, I learned from Mr. Brown that they intended getting up steam and to run her up to Franklin. Feeling convinced that such action would be attended with disaster to the machinery, and probably to the boat itself, I told Mr. Brown to urge upon them a compliance with my request as stated above. Later in the day I sent them a letter, of which the following is a copy:
    “Boonville, Mo., February 10, 1881.
    “ Gentlehen : This is to notify you that I regard the harbor where the United States tug Electra now lies as a safe one, and that I desire you to hold her there afloat until such time as I can man her with my crew and assume charge of her.
    “ It is my special desire that you do not raise steam on her; also that no repairs be made.
    “Yery respectfully,
    “ S. W. Fox,
    “ United States Assistant Engineer.
    
    “ Messrs. McGowan, Moore & Brown,
    “ United States Tug Electra, Missouri River.
    “ Our engineer and fireman arrived from Glasgow in the evening. On the morning of the 11th we went aboard, and, addressing Mr. McGowan, I stated that I was prepared to assume charge of the tug and would relieve him from further duty. He and Mr. Brown thereupon left us. Mr. Moore had returned to Glasgow the evening previous.
    “After a consultation, held outside, Mr. McGowan returned to say that Mr. Brown’s attorney had advised him to retain possession of the property until salvage was paid. I replied that, in my opinion, his best policy was to deliver the boat to me at once, but that if he desired to remain on the boat no objections would be offered. The result was that they left the boat in my possession.
    *######
    “I am, major, with great respect, your obedient servant,
    “ S. W. Fox_,
    
      United States Assistant Engineer,
    
    “ Maj. Chas. B. Sutter,
    “ Corps of Engineers, U. S. A., Saint Louis, MoP
    
    III. The Capt. John Porter to whom Mr. Fox h ad telegraphed concerning the Electra, as set forth in the preceding report, bad resided in the city of Boonville forty-eight years, and had for thirty-three years been engaged in steaxnboating and running a ferry on the Missouri Biver. He was well acquainted with the river and its peculiarities at all seasons of the year, and was in the city of Boonville on the 8th of February, 1881, and a close observer of the condition of the river at that place on that day. The winter had been a long one and severely cold, and the ice had frozen on the river at least 18 inches thick. The river had broken up suddenly, and for some twenty-four hours the current had been very strong and gorged with floating ice from shore to shore. He had witnessed many break-ups in the river, but never one more alarming than this, or that carried with it so great and dangerous elements of destruction. The current was so rapid, running apparently at the rate of 8 or 10 miles an hour, and so strong, and the ice so very heavy, and much of it moving in such large and heavy bodies, that any obstruction of the moving mass would, in his judgment, have been certain destruction to any boat or craft which might have been caught in it, and any attempt to enter or cross the river current would have been hazardous in the extreme. For these reasons, and after full consideration of the situation, Captain Porter decided that if the Electra passed down the river out in the current and ice so far that she could not be reached from the bank, she could not be saved, and that it would not only be exceedingly dangerous to make such an attempt but impossible to reach her with any boat. He thereupon abandoned any attempt to save the boat unless she should pass within reach of the bank. Whether the other person telegraphed to by Mr. Fox received the telegram or acted upon it does not appear.
    IY. When the telegram before referred to reached Captain Porter, he immediately communicated this information to persons in Boonville, and among others the claimant. Between 4 and 5 o’clock p. m. of that day he went on to the railroad bridge spanning the river at that place, and while on the bridge met the claimant, who stated to him that he intended to board the boat from the bridge as it passed under. Captain Porter told him not to attempt it; that he would not take the risk for •any consideration. But the claimant stated that he was an old and experienced sailor, and that he believed he could do it. Late in the afternoon of the same day, February 8, 1881, the • Electra came in sight, drifting in the main current; she was at so great a distance from the shore that Captain Porter made no attempt to reach or save her. The claimant had procured a rope, and as the steamer passed under the bridge, he, with the assistance of a bystander, let himself down and dropped upon her deck. The distance from the bridge to the deck was about twenty feet. The claimant struck the ■ smoke-stack of the steamer in his descent, and the situation both in boarding the vessel and after he had gained her deck was one of great danger.
    V. After the claimant had boarded the vessel, and while he was taking measures to bring her nearer to the shore, two men named Coleman B. Brown and John S. Moore; being the persons named in Mr. Fox’s report, approached the steamer in a skiff and inquired whether the claimant wanted help. They had not shoved out from the shore when the claimant boarded the vessel, and they made no attempt to intrude upon his possession; and the court finds the fact to be, from their own tes-mony, that if the claimant had not told them to come on board they would not have done so. But the claimant replied to them that he wanted help, and threw him- a line and assisted to draw their boat through and over the ice, thereby enabling them to board the vessel. Whether they could have reached her without his aid appeared at the time doubtful.
    VI. After Brown and Moore had boarded the vessel they rendered valuable service, and the three men succeeded in bringing her within reach of the river bank, where, with the assist-anee of persons on shore, she was made fast and secured. The claimant paid some of those persons for their services, and Brown and Moore each paid others of them for assisting. The vessel remained in possession of the three men until she was turned over to Mr. Fox, as set forth in his report hereinbefore quoted. The court finds that the services rendered by Brown and Moore were valuable, but as they are not parties to the action, the court refuses to find the value of their services or the extent of the danger which they incurred,
    VII. Whether the vessel would have continued to float down the river unharmed, or whether she would have been crushed in the ice or wrecked on the snags which abounded in the river below the bridge, are matters of uncertainty; but her situation at the time of rescue appeared to persons competent to judge to be, aud was in fact, one of great peril.
    VIII. The condition of the Electra when rescued was as is described in the report of Mr. Fox {ante). Her value was $9,000. The claimant’s salvage services, including the contributary services of Brown and Moore, were reasonably worth one-third of the value of the vessel when saved, to wit, the sum of $3,000.
    
      Mr. J. T. Power for- the claimant:
    Jurisdiction over a claim for salvage against the United States is conferred on this court by the act of February 24, 1855 (§ 1059, R. S.), giving it jurisdiction over “all claims founded upon any contract, expressed or implied.” (Stat. L., €12; Gould et al. v. The United States, 1 C. Cls. R.; Bryan v. The United States, 6 C. Gis. R., 126.)
    But we think that the jurisdiction of this court in salvage cases against the United States may also be derived from admiralty jurisdiction, conferred by article 3, sections 1 and 2, of the Constitution.
    This court is by no means a court of admiralty jurisdiction, but determines, according to the principles of maritime law, the implied contract for salvage service raised by the facts.
    Where the compensation for salvage service is not fixed by such a contract as a court of admiralty will enforce, it will be determined by the liberal rules which form a part of the marine law. (The Island City, 1 Cliff., 210; 1 Black, 121; The Wave v. Ryer, 2 Paine,-131; The Neptune, 1 Hagg. R., 236.)
    Salvage compensation varies according to the presence or absence of certain salvage ingredients: 1. The degree of danger from which the property was rescued. 2. The labor and risk incurred by the salvor. 3. The skill and merit shown in rendering the service. 4. The time and labor required. 5. The degree of success achieved. 6. The value of the property saved. 7. Whether derelict or not. (1,2,3, 6,3 Kent Comm., 245 (margin); 1, 2, 3, 6, The Emulous, 1 Sumner, 214; 2, 3, 5, 6, 7, The John Wurts, Olcott, 471; 2, The Renry Ewbanlc, 1 Sumner, 400; 2, 3, 7, Rowe v. Brig-, 1 Mason, 378; 2,3, 4, The Blaolmell, 10 Wall., 14; 1, 3, 6, The Island City, 1 Cliff, 210; 1 Black, 121; 2, 3, 7, The Boston, 1 Sumner, 337; 1, 2, 3, 7, The John Gilpin, 1 Olcott, 77.)
    
      This vessel was in law a derelict when taken possession of by the claimant. Judge Story says: “ Sir Leoline Jenkins (1 vol. works, p. 89) has given the trite definition, in its most broad and accurate sense, when he says derelicts are < boats or other vessels forsaken or found on the seas without any person in them. ’ ” (Rowe v. Brig-, 1 Mason, 372.) It is that status of the property from which the law infers abandonment. (Rowe v. The Brig-, 1 Mason, 372 ; The Ida L. Howard, 1 Low., 7; The John Wurts, 1 Olcott, 472, 3; Jones’s Law of Salvage, 58.)
    
    Where a master and crew leave their ship for the safety of their lives, a mere intention of sending a steamer to look after her does not affect the question of derelict. (The Coromandel, Swabey, 205; The Laura, 14 Wall., 344; The Empire Queen, 3 Maritime Law Cases, 187; The Joseph G. Griggs, 1 Ben., 8.)
    Salvors are not to be driven out of court upon the suggestion that if they had not touched a derelict ship it might in some possible way have been saved from all calamity. (The Henry Ewbanlc, 1 Sumner, 4L4.)
    The claimant is prima facie entitled to an award of a moiety of the value of this vessel, and special circumstances, such as the absence of important ingredients of salvage service, must be shown to make it less. (The Charles Henry, 1 Ben., 8; The Cayenne, 2 ib., 42; Cohen’s Admiralty, 86.)
    As soon as the claimant gained the deck of the vessel he was in possession, and for all purposes of preservation, care, and control, for the benefit of the owners, he was the master and had sole command. Of this right of original salvors the law is jealous; especially in case of derelict the finder becomes the legal possessor, and his claim takes precedence of all others. (The John Wurts, Olcott, 470; Lewis v. The Elizabeth & Jame, Ware, 41; The Charlotte, 2 Hagg., 361; Cohen’s Admiralty, 82, 83, and cases therein cited.)
    
      Mr. F. H. Howe (with whom was the Assistant Attorney-General) for the defendant:
    The first question to be settled by the court is the jurisdictional one.
    In Bryan’s case it was held that what amounted to a salvage service at common law, if proved, was sufficient to imply a contract for compensation, which could be recovered upon in this court. Bryan’s allegations were not proved, but it is apparent from the statement of the case that they set out a true case of salvage service at common law. But the petition in this case does not set out facts sufficient to show such a salvage service. If so, the decision in Bryan’s case is -not binding upon the court here.
    If at common law salvage service upon a navigable river above tide water entitled the person who rendered such service to stand in the position of a contractor with the United States for the value of such service, then this court will take jurisdiction of this case as a salvage case. But it is abundantly shown that at common law such service was not salvage service gnd no lien was created thereby. At most there is but the promise to pay for such services as were rendered what they were reasonably worth, and that without applying to the computation any of the peculiar and extravagant rules recognized in admiralty practice. If the claimant desires the benefit of the application of these rules, his only forum is a court of admiralty jurisdiction. It will not be claimed that this court has admiralty jurisdiction.
    This claimant will not be admitted to prosecute before this court a claim for salvage service upon the ground that there exists an implied promise to pay him for such service. Does an implied promise exist to pay him for any service ?
    Here there might exist a moral obligation on the part of the owner to pay for the time and risk of the party rendering the service, but there cannot be said to be a legal obligation so to do. The distinction between moral and legal obligations in such cases is well drawn by Lowrie, J., in the case of 1Tertzog v. Hertzog (20 Pa. St., 468).
    The circumstances of this case do not constitute legal derelict. Baker v. Hoag, 3 Seld., 561; Bowe v. Brig, 1 Mason R., 373; 1 Sir Leoline Jenkins’s Works, 89; The H. B. Foster, 1 Abb., Adm., 230; Tyson v. Pryor, 1 Gal., 134.)
   Nott, J.,

delivered the opinion of the court:

This is an action upon implied contract for saving the United States tug Electra, upon the Missouri River, in February, 1881. Though the action is not a suit in rem, it is to all intents and purposes an action to recover salvage.

On the part of the claimant it is insisted that the vessel was derelict and was saved by the services of the claimant, and that certain persons who boarded her after the claimant was in possession were not co-salvors, but occupied in a legal sense the position of being his employes. On the part of the defendants it is insisted that the vessel was not derelict; that the claimant’s services were not effective in saving her; that she would in all probability have escaped destruction if allowed to drift in the ice; that the persons who subsequently boarded her may more properly be regarded as her salvors, and that the court has not jurisdiction of the case.

Upon the question of jurisdiction the court sees no reason for changing a conclusion which was reached fourteen years ago and has remained unquestioned since. If there be any case where an implied contract ought to be maintained against the government, it is where a citizen has risked his life to save its property and has succeeded in saving what would otherwise have been lost. The opinion of Mr. Justice Loring in Bryant’s Case (6 C. Cls. R., 128) is, we think, conclusive upon the question. *

Upon the question whether this vessel was derelict the court expresses no opinion. The rule which awards a moiety to the salvors of a vessel found derelict is a rule which prevails in courts of admiralty, but is not obligatory upon courts of common-law jurisdiction.

Nevertheless in such cases a salvage compensation, substantially such as a court of admiralty would award, must be the measure of damages. One man works for his reasonable wages; another for a fixed salary; a third for the uncertainty of a salvage compensation; and the basis of that compensation is a proportion of the thing saved. The owners and the salvors become in a measure partners; if one loses, the other loses; if one gains, the other gains; if the thing saved is of little value, so much the worse for each; if it is of great value, so much the better for both.

A court does not stop to inquire whether the salvors will receive as compensation for their time $1,000 an hour or $1 a day. The danger, difficulties, and risks involved in the salvage service determine the proportionate interest of the salvors in the thing saved; and the value of the thing saved gives the resulting amount of their compensation in dollars and cents.

Upon the questions whether the claimant was authorized to act as salvor of the vessel, and whether his services were salvage service, the court is of the opinion thatthere are certain facts in the case which are conclusive:

The only person who in any sense represented the owners at Boonville on the 8th February, 1881, was Captain Porter. He had been telegraphed by the master of the vessel, Mr. Fox, to look out for her, which may be interpreted to mean that he was to take all needful measures to save her. He communicated this information to the public and to the claimant, and virtually invited assistance in saving the vessel.

Moreover, he determined, when the vessel appeared, that it was impossible for him to save her, and he also regarded her as being in extreme peril, and thought the claimant’s boarding her from the bridge, while she swept under it, an act hazardous in the extreme.

In all cases of exigencythequestionisnothowthe facts appear to a court in the light of subsequent investigation, but how they appeared at the time of action to those who had to bear the responsibilities of acting.

Whether the danger was less than appeared; whether the current of the river was slower than was supposed; whether the vessel might have reposed in safety in the ice, are questions irrelevant to a proper determination of this case. It is sufficient that the representative of the owners, and all competent and experienced river navigators, and apparently every beholder who witnessed the affair, regarded the position of the vessel as one of extreme peril, and the boarding of her by the claimant as an heroic and praiseworthy act.

The court has been asked to hold that the claimant’s services were valueless after he reached the vessel, and that probably she would have drifted within reach of the river bank without his aid.

In such cases the end must be deemed to justify the means. Whether a vessel found derelict off the coast would have drifted into the harbor without aid; whether the salvors blundered in their navigation and came near wrecking her; whether the owners might not themselves have found her if she had been allowed to drift on the high seas, are speculative questions with which a court cannot deal. It must be presumed in all such cases that if the salvors bring the vessef to a place of safety they were instrumental in saving’ her.

With regard to the services rendered by the two men who subsequently boarded the vessel, it seems to the court conclusive that they boarded her upon the invitation of the claimant and with his aid, and that they would not have boarded without his assent.

If they were before the court, the dangers which they ran and the services which they rendered might perhaps be inquired into; but as the ease now stands their attitude is simply that of having rendered assistance to the claimant, and being to that extent his employés.

The judgment of the court is that the claimant recover the sum of $3,000.  