
    THE POCOMOKE.
    (District Court, S. D. New York.
    October 19, 1909.)
    Salvage (§§ 15, 48) — Existence op Peril — Evidence.
    A barge loaded with coal towed from or near Sandy Hook by two tugs. Held, on conflicting evidence, that the barge was not in danger, and there was no basis for a salvage claim. Also held, that as the leading tug’s master knew there was no necessity for salvage service, as in truth there was none, the fact of a distress flag being displayed did not create a situation which called for such service.
    [Ed. Note. — Eor other cases, see Salvage, Cent. Dig. §§ 2S, 124; Dec. Dig. §§ 15, 48.*]
    (Syllabus by the Judge.)
    In Admiralty. Libels by Leta D. Potter and others and by William B. McElwee and others against the barge Pocomoke.
    Libels dismissed.
    Foley & Martin, for libellants.
    James J. Macklin, for claimant.
    
      
      For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   ADAMS, District Judge.

The first of the above entitled actions was brought by Leta D. Potter, the owner and master, and the other members of the crew of the tug boat Reliance to recover salvage for an alleged service in rescuing the barge Pocomoke from the dangers of the sea on the 23d day of December, 1908. The second action was brought by William B. McElwee, as owner and master, and members of the crew of the tug Hercules to recover for similar services.

The first libel alleges that the Reliance left Staten Island for Sandy Hook to cruise for business and on the way out discovered the tug Albatross in a disabled condition; that at the same time the crew discovered a barge laboring heavily at anchor and about 300 yards off False Hook Buoy on the Oil Spot with its flag flying union down; that the Reliance spoke the Albatross, asking' if she needed assistance and the reply was that she could get up the harbor without any; that the Reliance then made for the barge which she found was laden with coal and in such a position that the seas were breaking heavily over her; that the Reliance went within hailing distance of the barge, which proved to be the Pocomoke, and after considerable difficulty got her hawser fastened to the port how of the barge; that the master of the barge requested the tug to push the barge head to the sea as much as possible as he was afraid the sea would wash off his hatch covers; that at this time the barge was in an exceedingly dangerous condition laboring heavily; that the sea was breaking heavily under the stern of the barge and she was lying on shoal ground; that had assistance not arrived promptly, in all probability the barge would have gone ashore and broken up before assistance could have reached her or would have bilged where she lay; that at the time the tug came up with the barge, she had her anchor out, which was dragging, and the captain of the Reliance was informed by the master of the barge that the barge had dragged her anchor for a considerable distance; that another tug, the Hercules, was there, and upon the tugs making fast the master of the barge slipped his anchor and both tugs commenced towing the barge into deep water and proceeded in the South Channel where the tugs hauled up on the course; that the tugs at first put out 7 inch hawsers of about 125 fathoms; that while hound in, owing to the fact that the barge’s rudder was broken, she took a long shear and parted the hawser of the Reliance and that tug put out a new hawser of 100 fathoms and the towing continued; that upon reaching smooth water, the Reliance let go her hawser and went back alongside of the barge and the Hercules continued the towing upon a hawser; that the tugs were engaged in the work from 8 a. m. to 2 p. m.; that the services rendered were salvage services of a high order of merit and had it not been for the timely assistance of the tugs, the barge and in its cargo in all probability would have been lost; that the Reliance is a large and powerful tug of the value of $15,000; that the value of the barge is $24,000 and its cargo of coal $3,500.

The libel of McElwee, owner of the Hercules, and of her crew, is practically the same. She alleges that she was also hound to Sandy Hook and discovered the Reliance engaged in making fast to the Pocomoke and went to her assistance and made fast to the barge’s starboard bow; that the value of the Hercules is about $15,000. In other respects there is no material difference in her libel.

The answer of the barge to the libel of Potter et al., after some admissions and denials, is as follows:

“Eighth: And for further answer to said libel and upon informal ion and belief claimant alleges, that said Barge Pocomoke being in tow of the Steaming Albatross, owing to thick weather anchored in the South Channel in a good and safe place oil the morning of December 23d, 3008, and said Steaming Albatross proceeded a short distance away, also anchoring, but while said steamtug was so moving to a place of anchorage her hawser got in her wheel, thus temporarily disabling her. That at about 8:30 o’clock on the morning of the day aforesaid, the weather clearing and growing better the said Steamtug Albatross started for Xew York in order to have the hawser or line in her wheel removed and then to return for the said barge or two other barges that had been left at anchor further away by the said Steamtug Albatross.
That while said Steamtug Albatross was so proceeding for Xew York, the Steamtug Reliance spoke the said Steamtug, and the Captain of the Steaming Albatross asked as to what eomi>ensation the master of the said Steamtug Reliance desired for conveying a message to those on the said Barge Pocomoke, and the Master or pilot of the said Steamtug Reliance having asked an extraordinary price, the master of the said Steamtug Albatross informed him not to touch the said barge, nor to go near her, as she was all right and that he need not convey any message, and that said barge did not need any assistance from him or any other tug; but that instead of obeying the instructions from the said master of the said Steamtug Albatross, the said Steamtug Reliance proceeded to the said barge and informed those in charge, that he had been sent by the master of the said Steamtug Albatross to tow the said barge from her anchorage (she only having one anchor out at all the time while she was so at anchor, and two spare anchors that she did not need and did not use), but being informed that the said Steamtug Reliance was not capable of towing the said barge he stated that another tug was coming to his assistance, and the master of the said barge only permitted the said Steamtug Reliance and the Steamtug Hercules which subsequently showed up to take hold of the said barge, because of the representations made as aforesaid, that he was directed by the master of the Steamtug Albatross to tow the said barge into New York, and that said Steamtug towed the said barge Pocomoke to Clifton, Staten Island, without any difficulty or trouble, excepting that a small and worn out hawser attached to the Reliance parted.
Claimant also avers that the anchor which was used by the barge was slipped and buoyed, but that the buoy for some cause, disappeared.
Claimant also alleges that the barge’s rudder was broken, which had occurred before the barge anchored as aforesaid and that the said Steamtug Reliance on the way in with the said barge when alongside of her made fast .on her starboard side.
Claimant also alleges that said barge was anchored where there was plenty of water and that she was not dragging or moving in any way and that she was in a place of perfect safety, and did not need the assistance of either of said Steamtugs.”

The answer to the McElwee libel is practically the same as that just mentioned.

The testimony shows that the Albatross started from Norfolk, Virginia, on the 20th of December with 3 barges in tow, the Pocomoke, the Annie Embrey and the Dendron. The Albatross was a large sea-going tug, 139 feet long and of about 800 horse power. The Pocomoke was the leading barge, the others following. The hawser between the Pocomoke and the tug was 10 inches in circumference and 225 fathoms in length, that between the Pocomoke and the second barge was a 7 inch hawser about 200 fathoms in length and that between the second and third barges was another 7 inch hawser and of about 225 fathoms in length. The .weather was good upon starting but in the afternoon of the 22nd about 5 o’clock it commenced to snow, with the wind from the north north-east. At that time the tow was just above the gap at Barnegat and there being no place to put in, continued on. About 11 o’clock that night the last two barges broke adrift, the haw-' ser parting between the first and second barges. The master of the tug slowed down and kept on with the Pocomoke. About 4‘o’clock a. m., the 23d, he reached the Scotland Light Ship. It was still snowing heavily and when the Narrows in the channel were reached, the master concluded that it was not safe to go on because he could not see on account of the blinding snow and he anchored the Pocomoke about 150 yards of the south end of the Main Ship Channel in about 40 feet of water. While there he got the hawser in the wheel of his tug, which he shortly afterwards anchored. The storm at the time had abated considerably and stopped snowing about 4:30 o’clock. The master worked on the hawser and shortly afterwards he managed to chew it in two and then he came on to the city. He saw before he left however that the barge was well anchored and in no danger. He displayed a distress signal, a flag with the union down, while waiting, and before the wheel was relieved of the hawser. On the way he met the Reliance going down and some conversation ensued in which he says he told the Reliance “not to touch the barge, that she was all right, to let her alone, to let her lie there.”.

The account given by the master of the Reliance of this conversation is somewhat different. He said:

“Q. Where did you meet the Albatross? A. Down in Swash Channel. Q. Coming up towards Xew York? A. Yes, sir. Q. How close did you come to her? A. Passed right along within hailing distance. Q. Did you speak to tin; captain of the Albatross first or did he speak to you first? A. I asked him if lie wanted assistance; lie said no, he could get up himself; I asked him if he wanted me to go and get the barge; he said my boat didn’t have power enough; I told him I had another boat coming and I went right along. Q. You didn’t wait for any more conversation? A. Por no more conversation, that is all.”

The master of the Hercules said he met the Albatross shortly after-wards. According to his account the following conversation took place:

“Q. You got out yourself and followed Captain Potter down the Bay? A. Yes, sir. Q. On the way down you passed the Albatross? A. Yes, sir. Q. Did you have a talk with him? A. Yes. He hailed me and asked what I would charge' to go to the barge and tell him he would send the tug Hollenbeck down to him. Q. What answer did you make? A. Prom $200 to $2,000. Q. Why was that? A. So that I could get a good price for doing the work or so we could got the barge without having anybody else interfere.”

The master of the Albatross said with respect to the conversation with the master of the Hercules, which tug he met shortly afterwards:

“Q. How soon after the Defiance? A. About 10 or 15 minutes difference hi the two. I asked Mm what he would charge to convey a message to the captain of tho barge and tell him I would send the O. L. Hollenbeck down for him — I knew she was up in the Harbor. All I could hear him say was that lie wanted $200 for the message, he was still going and out of hearing of one another. Q. Did you have a chance to answer him? A. I did not have a chance to answer Mm, I blew to him after that.”

Shortly afterwards he met the Hollenbeck going out with a tow, but he did not speak to him because it then had cleared off and there was no necessity.

After going to New York, the master of the Albatross, about noon, heard that the Pocomoke had been picked up and towed in, or was then being towed in, and that evening he went out for his other two barges which he brought in the next morning. They were 10 or 12 miles down the beach from where he had anchored the Pocomoke and he found them without difficulty. They had ridden out the storm and being smaller and weaker barges than the Pocomoke' and more exposed, the fact that they were saved without difficulty is significant that the Pocomoke could not have been in any danger. She was practically new a couple of years before and in much better condition than the other barges.

The Pocomoke was substantially uninjured. When her rudder, which had been broken the night before, was repaired, she was towed on to Boston and back to New York, and at the time of taking the testimony needed no further repairs.

The master had intended going- for her after the other two barges were picked up and as the weather continued fine, there can be no reasonable doubt that he then would have found her uninjured.

On the morning of the 23d tows of scows went to the dumping grounds, a considerable distance beyond the place where she was anchored, passed out of New' York as usual in good weather and such fact is persuasive that the Pocomoke was safe.

When the Reliance and the Hercules reached the Pocomoke, the masters of the tug informed the latter that they were sent by the Albatross to tow the barge in. It appears that there was no warrant whatever for such a statement. It was on the faith of it, however, that the master of the barge accepted the services, and it appearing that they were not sent, the claim falls to the ground.

The claim that the barge was in danger was an essential part of the libellants’ case, but their testimony fails to establish it. A telegrapher at Sandy Hook gave some strong statements in favor of the libellants, but I do not credit his testimony. It is inconsistent and far from being convincing.

The conduct of the parties most interested leads to the opposite conclusion. The master of the barge for example was content with using the smaller of the two anchors which he had on board. He had also a kedge anchor which he could have resorted to if necessary but did not deem it requisite to use any except the small anchor.

When first anchoring- the master- put out 45 fathoms of chain. Finding she was working back a little he gave the barge 40 fathoms more, which held her securely. This was the only drifting that occurred to the barge.

Thé Weather Bureau shows that the weather was improving from early morning when it was blowing from the north or north-east, 26 miles an hour, up to between 7 and 8 o’clock when its force was 17 miles. . It then decreased to 12 miles between 8 and 9 o’clock and 10 miles between 9 and 10 o’clock. The observation was taken about 19 miles from the place of anchoring but there can be little doubt that the description given was reasonably accurate for the latter place.

There is almost nothing in this action to recommend it as a salvage case unless it is that the Pocomoke had a distress signal flying when the tugs approached her to offer assistance. That, however, does not really amount to anything because the first of the tugs was told in going down the bay that the barge did not need assistance. Such notification was equivalent to advising both of them as they were working-together and was not overcome by the signal inasmuch as the notification was in accordance with the facts which the signal was not. It appears that the master had displayed the signal when his tug left him. He says that he exhibited it to cause the Albatross to return and that after she was gone he instructed a deck hand to take it in. This the deck hand failed to do and it remained displayed but it was without significance under the circumstances.

The libels are dismissed.  