compensation is subject, as to amount, to the judgment of the court as to its being equitable and conformable to the merits of the case." It will be observed, however, on examination of the last case, that this brief sentence was intended only as a reference to the rule stated in the opinion of Dr. Lushington and by the other authorities cited. The question involved in the case did not require anything more.

In Post v. Jones, 19 How. 150--160, a rule is stated respecting contracts for salvage service which, although not necessary to the determination of that case, has been frequently referred to as an authority in this class of cases. It is as follows:

"Courts of admiralty will enforce contracts made for salvage service and salvage compensation where the salvor has not taken advantage of his power to make an unreasonable bargain; but they will not tolerate the doctrine that a salvor can take the advantage of his situation, and avail himself of the calamities of others to drive a bargain, nor will they permit the performance of a public duty to be turned into a traffic of profit."

In the case of The Wellington, 48 Fed. Rep. 478, Judge Ross, sitting in this court, said: "No one doubts that, when the circumstances of a case render such action proper, a court of admiralty will refuse to enforce a contract made for salvage services;" but he held that, although the sum of $15,000, stipulated in the contract then under consideration, was undoubtedly too large for the service in that case, he . did not think it was so exorbitant as to justify the court in setting aside the contract thus made. Without further discussing the authorities on this subject, we will now proceed to consider the testimony, for the purpose of determining the situation of the parties and the circumstances attending the making of the contract in the present case.

In the testimony of Capt. Hamm, of the Tillamook, the transaction is related as follows: After referring to the arrival of the purser of the Sirius at the anchorage near the mining camp asking for assistance, and the departure of the Tillamook the next morning for South bay, he says:

"I reached South bay, where I lowered the boat down,-the boat of the Sirius, not my own boat. I turned my vessel over to my chief officer, went aboard the Sirius, and saw Captain Gregory. We had a few words, talking, and he asked me the price. I said: 'My vessel is too small to tow you up. I do not know if I can do it. If I have to charge, I have to charge that price, which is $20,000;' but I said: 'If you do not want to do that, we will leave that over to the court, and let the court decide what price I shall have.' But he declined. He said: 'No; what other offer can you give me.' I said: 'I will give you more stores from Cedros island, and then I will take your purser or mate, or whoever you want me to take, and go up to San Diego or Ensenada, where you can telegraph and call for assistance.' During that time he told me that I should wait an hour or so, so that he could write letters to his owners. I told him I would do so. I went out of his room, and I stayed for an hour and a half talking to my engineer, who was now on board the steamer Sirius. He was previously on board the Tillamook,-Mr. Harris. In an hour's time Captain Gregory called me in, and said he agreed to take that tow for the amount I said. He drew up the agreement personally,—that is, the purser did. He was standing on one side, and I was standing on the other. Question. How many copies were drawn? Answer. I drew three. Q. You drew them, or he? A. The purser did. I demanded three,-one for my owners, one for my charter party, and one that the captain could keep personally. He signed all three."

The agreement having been identified, the witness is asked: "Following the signatures, captain, are these words: 'All coal and help necessary to be furnished by the steamship Sirius without charge? Answer. It was. Question. I will ask you if that was an afterthought, or what? A. No, sir; we agreed to that, but the purser kind of neglected to put it in until I signed my name. The captain was very willing to come to that. Q. Then this coal and help branch of it was part and parcel of the proposition before it was drawn up? A. Yes, sir. Q. It was simply omitted by the purser in drawing the body of it, and afterwards appended? A. Yes, sir.”

The witness was cross-examined very closely as to the conversation that took place between himself and Capt. Gregory prior to the signing of the towage agreement. At first he omits to mention the proposition, which he claims to have made, to leave the matter of compensation to the court, but, being pressed to repeat all that was said, he recalls it, and states it as follows:

"Before we signed the agreement, he asked me if I would leave this $20,000 business, and not charge and take the vessel up and leave it to arbitration. I told him no; I would leave it to the court. Q. When was this? A. Just before the agreement was made. Q. He asked you, then, if you would leave it to arbitration? A Yes, sir. I told him I would take the vessel up as good as I could, and leave it to the court."

Later on, the witness was further cross-examined as to what he had said to the attorneys on this subject, and particularly as to the time when he first told them that he suggested to Capt. Gregory to leave the compensation for the towage service to the court. In reply to this inquiry he stated that he told Mr. Fuller about it at San Diego on the 1st of March. This was the same day that the Tillamook arrived at San Diego with the Sirius in tow, and before any controversy arose as to the payment of the amount provided in the agreement. Mr. Fuller was the attorney for the libelant, and was present in court during the trial of the case, but was not called by the respondents to confirm or contradict the statement made by Capt. Hamm. The foregoing testimony was delivered in court on the 28th day of April, 1892.

The deposition of Capt. Gregory was taken on the 21st day of April, He relates the conversa1892, or just a week previous to the trial.

tion between himself and Capt. Hamm as follows:

"I had a conversation with Captain Hamm in my own room in the presence of the purser, in which I asked him what he was going to charge me to take me to San Diego. He informed me $20,000. I told him the price was exorbitant, and asked him if he would make any reduction in it. He told me he would not. He said, '$20,000 or nothing.' I then asked him if he would submit the matter to arbitration. He refused. I asked him if he would submit it to the owners to settle. He refused. He informed me that he had no time to talk to me; that he wanted to get back to the mining camp, and said if I did not talk quick he would leave. I then asked him if he would take an officer up to San Diego with him when he went, and he said he would. Question. That is, in the event of leaving you? Answer. Yes, sir; in the event of leaving me he said he would. He left my room, and started for his boat. Seeing that he was determined to leave me, I called him back, and told him I should be obliged to accept the service, and to give me a tow line. Q. A tow line was then passed? A. Yes, sir; it was then passed. Q. At what time? A. It was about five minutes before noon."

The witness makes no mention of the written agreement, and evidently seeks to convey the impression that the whole transaction

occupied but a few minutes, which he fixes as a point of time at five minutes before noon.

On cross-examination the witness is asked:

"Why did you not take advantage of the offer of the master of the Tillamook to send an officer to San Diego to allow him to negotiate for some one else? Answer. On account of the loss of time. Question. Is that the only reason? A. Yes, sir; that is the only reason. Q. There is no other reason? A. No, sir; except to get my ship out of that position. In case southerly weather came up, I would have been compelled to go to sea. I would not have lost my ship, because I would have gone to sea upon the first indication of bad weather. Q. One of the reasons, if I understand you, for not taking advantage of that offer, was the danger of southerly winds while lying at the place you call 'South Bay? A. Not so much that, as to avoid lengthening my voyage. I should have gone to sea there at the first indication of any southerly weather. Q. Had you sail power sufficient to go to sea in a southerly storm? A. Yes, sir; I would have to go to sea at the very first indication of bad weather. A southerly storm always gives some indication beforehand. Q. Had you sail power sufficient to go to sea? A. Yes, sir; I could have drifted about, and made my way into Magdalena Bay."

Mr. Brewster, the purser of the Sirius, in his deposition, also taken on the 21st day of April, 1892, testifies concerning the interview between the two captains as follows:

"They shook hands, and after I had introduced Captain Hamm he says: 'Well, you want a tow?' Captain Gregory says: 'Yes.' Captain Hamm says: I will tow you for $20,000. Captain Gregory says: "That is an outrageous price. Can't you tow me any cheaper than that? Captain Hamm says: 'No; not a cent cheaper.' Captain Gregory says: 'Will you leave it to arbitration in San Francisco? Captain Hamm says: 'No.' Captain Gregory says: 'Will you submit it to our own owners, and allow them to settle it? Question. That is, to the owners of both ships? Answer. Yes, sir; to the owners of both ships. Captain Hamm says: 'No; I wont.' He says: 'I have not got much time; you must hurry; I am going to get out. I will take the purser to San Diego if he wants to go, but I have to get out, and I want you to hurry up, too.' Captain Hamm then left the room, and Captain Gregory considered the matter awhile, and called him again, and almost precisely the same language was used, and finally Captain Gregory instructed me to draw up an agreement. Q. Was such an agreement drawn? A. Yes, sir. Q. Was it signed? A. Yes, sir. Q. And taken by Captain Hamm? A. Yes, sir; taken by Captain Hamm,-two copies by him, and one copy by Captain Gregory. Q. Then did the Tillamook pass her line over? A. Yes, sir. Q. And you started in to tow? A. Yes, sir."

On cross-examination, this witness was asked

"What Captain Gregory said, if anything, when Captain Hamm offered to take the witness on his return, so that he could get such assistance as he chooses. Answer. He said he wanted to have a minute by himself, so he could converse with me about the matter, I being purser and one of the officers, and he and I were talking about the matter. Question. Did he have a few minutes conversation with you? A. Yes, sir. He asked me, as I had seen the San Diego papers which I got from the Tillamook, about the sailing of different ships. Q. And he rejected that offer subsequently? A. Yes, sir. He naturally rejected the offer for me to go by the Tillamook, because he took the tow. Q. Did he say anything, in that conversation to you, about it being best to accept that offer because there was danger in lying at South bay in case of a southerly storm? A. He did not say anything of the kind. It was simply a question of getting that ship and cargo to port as quickly as possible. He said it was an outrage, with the usual language and slang of a sailor's vocabulary that they generally indulge in. ** * Q. You spoke of having received San Diego papers from the Tillamook? A. Yes, sir. Q. What had their contents to do with your going to San Diego on the Tillamook for assistance? A. We found out that the sailing days of the Newbern had changed, and also the City of Panama, the

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slow steamer. We generaly know the captains of the different steamers, and how they generally take the coast. This steamer generally kept outside. Q. Could you have got assistance at San Diego? A. Yes, sir."

Referring again to the deposition of Capt. Gregory, we find that on cross-examination he was asked about the probability of obtaining assistance from one of these passing steamers, as follows:

"Question. When Captain Hamm declined to assist you for a less price than $20,000, why did you not reject that offer, and patrol the passages inside, and the same outside, hoping to get a passenger steamer that would not make such a charge? Answer. For the reason that the Newbern was the only steamer passing down, and her sailing days had been changed from the 25th to the 1st of the month, and for the reason that I knew the Panama, or, rather, I was told that she went a long distance outside of the Benito islands. Those were the only two ships then due for some time. Q. Do the Panama steamers go inside or outside? A. As a rule, outside the Benito islands. Q. Is the Cerros island one of the Benito islands? A. No, sir. Q. Where are they? A. I think they are 12 or 15 miles outside of the Cerros islands. To have intercepted her I would have been obliged to risk an open boat at sea for an indefinite length of time."

Capt. Gregory was also called as a witness at the trial, and, after identifying his position at South bay on a map, and declaring that he could have got out of there in a southeast wind "unless the gale had come on butt end first, which happens only phenominally," was again asked about the interview with Capt. Hamm, and for the first time his attention is called to the written contract, which at that time had been read in evidence. He repeats substantially his former testimony down to the point where he says Capt. Hamm left his room or cabin, and then he adds the following:

* *

"I then turned to the purser and consulted with him about the matter. We concluded that under the circumstances there was nothing to do but to accept his terms. There was no talk made at any time about referring the matter to the court, or anything of the sort. Of that I am strongly positive. It was declined on arbitration. There was but one question that I was allowed to discuss, and it was $20,000 or nothing. On that point I am positive. Q. If he had proposed to submit that matter to the court, would you have accepted that proposition? A. I don't know whether I would or not, because the court awards upon it anyway; almost in every case of salvage it always comes before the court as a rule. It is a predisposed case that the court is the party that finally awards it; therefore it was not necessary to agree."

On cross-examination the witness was asked how long Capt. Hamm was on board his vessel.

"Answer. I cannot tell you now. My log book will show about the time he arrived on board and took my hawser. I think he came on board a little before 12 o'clock, and I think it was 1:58 when he took my hawser. Question. How long a time elapsed between the time he left your vessel and this agreement was signed, and the time he took the hawser? A. I should suppose 20 minutes or a half an hour. Q. He was on board your vessel about an hour and a half? A. Somewhere in that neighborhood,-more or less. I would not specify the exact minutes. I did not time the moment he entered my room and the moment he left."

Mr. Brewster, the purser, was also called and testified upon the trial, repeating substantially what he had said in his deposition concerning the interview between the two captains. Being asked, on cross-examination, how long was the conversation between Capt. Gregory and the witness in considering this offer, he says:

"It must have been 15 or 20 minutes. During that time the captain concluded at one time he would not take the tow. I went to my room to pack my valise to go to San Diego on the Tillamook."

Does this testimony establish the defense made by the owners of the ship and cargo,-that this agreement was forced upon the master of the Sirius, and was therefore made by him involuntarily and under duress? In determining this question, it is contended on the part of the defense that the proposition claimed to have been made by Capt. Hamm, to leave the question of compensation to the court, must first be eliminated, because Capt. Gregory and Purser Brewster have testified that the proposition was not made; but the importance of assuming that this proposition was not submitted to Capt. Gregory is very much lessened by the fact that the latter, while denying the offer, does not say it would have been accepted if made. His testimony indicates very clearly that to him the terms offered would not have been less oppressive if this proposition had been made, since in his opinion the submission of the question to the court was open to him in any event. We are dealing now not only with the actual situation, but also with the state of mind under which Capt. Gregory was acting when he signed the agreement. He knew that, in the event the owners of the ship and cargo were not satisfied with any agreement he might make, his situation was available to them as a defense to any action that might be brought upon the contract, and in such case he doubtless assumed that the award of the court would not be greater, but might be less, than the amount of compensation stipulated in the contract. There was therefore an advantage in a written agreement which practically fixed the maximum limit to the compensation, over an agreement to submit the question directly to the court without such a limitation. Capt. Gregory was seeking the best terms he could get. Capt. Hamm proposed (1) to tow the Sirius to San Diego for $20,000; (2) to furnish more stores, and take an officer to Ensenada or San Diego for assistance. About these two propositions there is no question, and under the circumstances we may dismiss further consideration of the offer of Capt. Hamm to leave the question of compensation to the court. Capt. Gregory proposed (1) reduction in the charge; (2) arbitration; (3) to leave the question for the owners to settle. These being rejected, it was then for him to determine which one of Capt. Hamm's propositions he would accept. It appears to have been his original purpose to send to San Diego for assistance. In his deposition he was asked this question by his counsel:

"Question. After dropping your anchor, what measures did you take to secure the protection or relief of the vessel from her condition? Answer. By sending a boat next morning at daylight to the mining camp, where I expected we would find a steamer by which I could have got information to San Diego."

He did not, therefore, expect the Tillamook to come to his assistance at South bay, but to take a message for him to San Diego, where assistance could be procured, and where the owner could have been informed by telegraph as to the condition of affairs. He says he was perfectly safe where he was at South bay unless a southerly wind had sprung up, in which case he would have gone to sea, and