Without going into detail as to the manner in which the work progressed, it is sufficient to say that, by alternating the two barges, the Seymour and the Haggerty, one of them taking cotton bales off the Armstrong while the other was towed to Norfolk, discharged, and returned, the ship was entirely cleared of cotton between the 24th of January and 3d of February, except as to less than a hundred bales, which were got off on the 5th of February. The cotton was all got off, to the number of 5,271 bales, in the course of about 10 days, the two barges making each four trips to Norfolk. No casualties happened to the cotton taken off. All was landed safely at Norfolk; all of it entirely unimpaired in handling, except about a dozen bales used as fenders between the barges and ship during the process of lightering. One of the salving party injured himself during the service, and died of his injuries. Capt. Coley and some others were severely injured.

The operations of the salvors were greatly favored, most of the time, by the weather, which was fine almost beyond precedent for the season. But for this circumstance the enterprise could hardly have been so completely successful as it was. There was one spell of bad weather which occurred on the afternoon and night of the 30th of January. The wreckers endeavored to avail themselves of the high sea that then came on to heave upon the several anchors which they had planted out to seaward, and to get the ship out of the bed of sand where she had lain. By force of the ship's engines and the wind they succeeded in floating the ship, and in getting her well in motion, in tow of the Merritt; but it was the judgment of both Capt. Coley and Nelson that if she went out on the breakers she would be in danger of pounding herself to pieces on the bottom before she could be got out to sea; and so, after floating her as described, on the night of the 30th, they determined to cut her loose from the tow, and let her drift to westward. When this was done, she went back for half a mile before grounding. When she did come aground, she was found to be within 200 fathoms of the inlet that has been described as running in to the south of Cobb's island.

This fortunate circumstance rendered it practicable to heave her over into this channel, which work was accomplished in a day or two. When once in the inlet, the ship floated at ease. There all the cotton remaining in her holds were lightered off on a barge. Then the inlet which has been described as running up northeastwardly from the first one to deep water was sounded and buoyed, after which the ship was towed through it to sea, and, by the aid of the two wrecking steamers and two of the tugs which had been chartered, was towed to Norfolk, where she arrived on the 10th of February, 17 days after the salvage service had been entered upon by the libelants. The enterprise had been completely successful, the ship and all the cotton on her when taken in hand having been saved; neither ship nor cargo being in a more damaged condition than when the service was commenced, on the 22d of January. Much the larger portion of the evidence taken in behalf of the respondent consists of objections and complaints against the salvors for imputed tardiness in conducting their operations, from the alleged want of a

greater number of barges than the two that were employed, and a greater number of men. These objections seem to have been stimulated by a man by the name of Steele, and an agent of a small portion of the underwriters, named Coe, who made an expedition to the place of operations, and were on board the Armstrong for one or two days. A great deal of the evidence of the libelants is taken up with refutations of these complaints. The complaints were made by men confessedly inexperienced in wrecking work, and especially so in the wrecking that is done on the Virginia and Carolina seaboard. The testimony of Capts. Coley and Nelson, and several of their men, taken in reply to these complaints, seems to me to show very plainly that they were made in ignorance of the wrecking art, and of the plan on which these wreckers operated, and of their reasons for the several measures which they took. But the voluminous testimony alluded to, whether taken on one side or the other, becomes practically immaterial, in the light of the complete success of the enterprise. A sufficient answer to all complaints of the sort mentioned is that the ship and the cotton were saved from extraordinary peril with extraordinary completeness. Finis coronat opus. Although a harmless, it is an ungracious, pastime to abuse the bridge that carries one safely over trouble. I have not thought it necessary, in epitomizing the evidence taken in this case, to set out the imputations of dilatoriness, insufficiency, incompetency, and blundering made by Capt. McKenzie against what he calls those "brutal wreckers," or the testimony in their own defense, given by a most worthy set of men, of undoubted skill, which constitutes, in my opinion, a full vindication of themselves. I pass, therefore, from the evidence in the case to the questions which it presents for decision.

The first question arising is whether the contract for salvage which was entered into between Capt. McKenzie and Capt. Coley before the salvage service began is to be enforced or ignored by the court. well-settled text-book law that the master of a vessel in distress may bind the owner by a salvage agreement in the absence of the owner; that it is competent for salvors, instead of leaving the amount of their remuneration to be determined by a court, to agree with the master of a vessel in distress to render the required assistance for a specific sum; and that, if a salvage agreement be proved, the court will enforce it, unless it be clearly inequitable; it being no answer to an agreement to say, on one hand, that it is too hard upon the salvors, or, on the other, that the salvage services were attended by less difficulty than was anticipated. It is just as well settled, on the other hand, that a salvage contract may, as any other contract may, be set aside on the ground of duress, or fraud, or deception, or gross exorbitancy, or other reason that may be pronounced sufficient by a court of justice. In this respect a contract of salvage stands on the same ground as all other contracts entered into between parties sui juris, and therefore it is not because the contract now under consideration is a contract of salvage that it can be disregarded by the court. I will set out the contract in full. The evidence shows that it was signed on a printed form, and that the blanks in the form used

were filled up by Capt. McKenzie himself, in his own handwriting, except the signatures. I will italicize the words and phrases written by Capt. McKenzie:

66

'Application is hereby made for salvage assistance to the British steamer Sir William Armstrong, of Newcastle, whereof John McKenzie is master, which vessel, having on board a cargo consisting of 5,559 bales of cotton, shipped at New Orleans, bound to Havre, now stranded off Cobb's island, which application is accepted by I. J. Merritt as salvor; it being understood that said I. J. Merritt shall have the requisite possession and control of the property, and be entitled to the reasonable use of the material belonging to the vessel, and to the aid of the crew. It is also understood and agreed that I. J. Merritt is to render the service on the following terms, and be entitled to the following compensation: First, that said I. J. Merritt, with proper dispatch, and at his own expense, is to send assistance to and endeavor to save said property, and deliver same, Norfolk, Va.; second, that I. J. Merritt shall be paid 25% on all dry cotton saved, 40% on all wet cotton saved, 20% on value of the steamer when saved, at appraised value; third, that the compensation, if not agreed upon as above, shall be such as is just in the premises. Dated January 21st, 1892.

Counsel for respondent object to this contract on the ground that, by the rates stipulated to be paid, discrimination is made against the cargo in favor of the ship. I do not think such discrimination is shown. The ship's net tonnage was 1,386. It so happened that the cotton saved, all told, constituted in weight about the same avoirdupois, or some 1,300 tons. This quantity was to be handled in upwards of 5,000 parcels, (bales,) of 489 pounds each, each parcel needing to be handled three times, and was actually so handled; whereas the ship herself would be handled in solido, a single handling taking her into Norfolk. In towing the cotton to Norfolk, 100 miles were covered each trip. Certainly, if the single operation be worth 20 per cent. of the value of the large object saved in bulk, it does not seem exorbitant to have stipulated that 25 per cent. should be paid for saving 5,300 parcels, each requiring to be handled at least three times. The discrimination, on ordinary principles of business, would seem to be in favor of the cargo and against the ship, rather than otherwise. I think the objection of discrimination is refuted by the patent facts of the case, and is wholly untenable. No evidence was adduced to show that there was intentional discrimination. Another objection to the contract is made by Capt. McKenzie himself. In substance, it is that when the contract was signed it was agreed by Capt. Coley that it was not to be really a contract, but that the terms of his compensation should be settled by the National Board of Underwriters; that the contract was to be regarded as only a matter of form. This is an attempt by Capt. McKenzie, not only to vary a written contract by evidence aliunde, which the courts very rarely permit to be done, but it is a self-stultifying objection. That he regarded the writing to be

a binding contract for some time after it was made is shown by a letter written by him to the Merritts on the 29th of January, a week after the date of the contract, complaining of delay on their part in "carrying out your contract." Three days after the date of the contract he telegraphed to his owners in England, informing them that he had made the contract, and describing its terms; and no objection to it has come from them. Nor is there any evidence that during the whole period of 17 days when the work of salving his ship and her cargo was going on, he made any objection to the contract, or gave any intimation or indication of his understanding that the contract was a mere matter of form. Capt. Coley, in his testimony, denies that anything was agreed upon or said to that effect, and it is not compatible with the good sense of the parties to the contract, as men of business, to suppose that the transaction was such a matter of child's play as Capt. McKenzie pretends that it was. If a solemn contract, made under the most serious circumstances, like the one under consideration, could be repudiated at pleasure by one of the parties to it, on such a ground as that insisted upon here, no contract could be relied upon as binding, and all the law of contracts, affecting so largely the affairs of mankind as that law does, would have to be treated as an idle jargon. Moreover, such an objection as that made by Capt. McKenzie here, after he has received the full benefit of a faithful execution of it on the part of the Merritts, involves a gross breach of faith on his part, and the court is not at liberty to entertain it. The objection, in order to have been relieved of this fatal taint, should have been made before the salvage service had materially progressed. It comes too late now. The court cannot entertain such an objection to the contract.

It is not pretended, and no evidence is produced to show, that the master was under duress in entering into this contract. From the first moment of his seeing Capt. Coley it was understood that the latter would. enter upon the work of saving ship and cargo, whatever the terms might be. There was no threat of refusing to undertake the work unless the terms demanded were conceded. The contract was made in the confidence that the salvage enterprise would go on as of course, whether a contract was signed or not. By Capt. McKenzie's own testimony it appears that Capt. Coley agreed to receive a less percentage for the service than he originally demanded. It is also proved that Capt. Coley was unwilling to negotiate with Capt. McKenzie alone, but requested the presence of the chief mate and the chief engineer, as advisers of the master. The evidence also shows that all three of these officers of the ship expressed satisfaction with the compensation provided for by the contract as just and fair. In short, few cases have been reported in which a ship's master was so free from all duress as was Capt. McKenzie on the occasion under consideration. The contract seems to me to have been reasonable, fair, and just, receiving the free, full, and eager consent of the master of the ship. I will sign a decree allowing salvage compensation at the rates settled by the contract. The value of the cotton must be taken according to the estimate of Mr. Overton. The value of

the ship must be taken at $60,000. I approve of Mr. Stratton's method of arriving at this valuation, and disapprove of the method employed by Mr. Sanford, but will reduce the former's estimate, in deference to conflicting opinions.

THE ENOS B. PHILLIPS.

LICHTENFELS et al. v. THE ENOS B. PHILLIPS.

(District Court, D. New Jersey. December 12, 1892.)

1. TENDER-SUFFICIENCY-COSTS.

A libelant is entitled to disregard a tender of the amount claimed, with interest, made after the filing of the libel and the issuing of the monition, as a tender should cover accrued costs.

2. MARITIME LIENS-ADVANCES-OBJECT-WEIGHT OF EVIDENCE.

A libel by a firm of ship chandlers at a New Jersey port for advances of $150 to the master of the Phillips, a foreign vessel lying at a dock at New York, alleged that the master, when purchasing supplies for his vessel from libelants, applied for the advances in order to free the vessel from liens for seamen's wages, and that libelants made the advances without asking security. On the part of the libelee the master of the Phillips stated that after purchasing supplies he suggested to the libelants that they purchase of him an interest in another vessel, the Dow, in order to secure its custom and trade when in the port of New York, and that the $150 paid to him by libelants was for a one sixty-fourth interest in the Dow, and not to meet liens for seamen's wages against the Phillips. A captain subsequently in temporary command of the Phillips stated that one of libelants expressly admitted in conversation with him that the firm had purchased a one sixty-fourth interest in the Dow; and the captain of the Dow stated that, when he afterwards arrived in New York, he was taken to libelants' store, where he purchased supplies for the Dow, and that libelants said to him they expected him to purchase all his supplies from them, as they owned a one sixty-fourth interest in the Dow. Held, that the libel should be dismissed, as the weight of evidence was against it.

In Admiralty. Libel by Robert Lichtenfels and John Lichtenfels against the schooner Enos B. Phillips for supplies, and to recover for advances to meet seamen's wages. Libel sustained as to supplies, and dismissed as to the advances.

Otto Crouse, for libelants.

William S. Maddox, for claimants.

ces:

GREEN, District Judge. Robert Lichtenfels and John Lichtenfels, trading as Lichtenfels Bros., filed this libel against the schooner Enos B. Phillips to recover the sum of $181.51, with interest, which debt was alleged to have been contracted under the following circumstanThe libelants are ship chandlers in Hoboken, in this district, and as such, at the request of the captain of the Phillips, they furnished certain stores and supplies to the Phillips, amounting to the sum of $31.51. The claimants do not dispute that such stores were furnished as charged, that they were reasonably worth the price charged, and that they were furnished upon the credit of the vessel; and to shield themselves they have paid into court the sum of $31.51, with interest thereon, as a tender to the libelants, and thereupon in