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In Admiralty. Libel by the Cedros Island Mining & Milling Company against the British steamer Sirius, her freight and cargo, upon a contract for salvage. Decree for libelant.
George Fuller and Walter G. Holmes, for libelant.
MORROW, District Judge. This is an action upon a contract for a salvage service, rendered to the British steamer Sirius by the American steam schooner Tillamook. On the 20th day of February, 1892, the steamer Sirius, then on a voyage from Central American ports to San Francisco, and while off the coast of lower California, lost her propeller and part of the shaft at a point about 45 miles northward of Cerros island (sometimes called "Cedros" island.) The vessel was steaming northward at the time of the accident. The weather was pleasant, with the wind light from the northwest. The vessel was placed under such sail as she had, and, after drifting about for three days, she was anchored in South bay, at the south end of Cerros island, having returned south on her course about 75 miles. Cerros island is 25 miles in length, extending along the coast of Lower California, and is under the jurisdiction of Mexico. It is about 60 miles due west from the mainland, but a point of the mainland makes up from the south to within 12 miles of the south end of the island. To the west of Cerros island, and at a distance of about 15 miles, are the small islands of San Benito. Vessels making voyages up or down the coast may pass inside, between Cerros island and the mainland, or between Cerros island and the San Benito islands, or entirely outside and west of the latter islands.
When the steamer Sirius came to anchor at South bay, the steam schooner Tillamook, under charter to the libelant, was lying at anchor near a mining camp at the northeasterly end of Cerros island about 30 miles by sea from South bay. The Tillamook was a freight vessel, but at this time she appears to have been carrying passengers from San Diego to the mining camp on the island, and return by way of Ensenada, in Lower California. Ensenada is the port of entry for Cerros island, and vessels making voyages from the latter place to San Diego are required to clear from Ensenada. The Tillamook usually made the voyage from the mining camp to Ensenada, a distance of 237 miles, in 30 hours, and from Ensenada to San Diego, a distance of 60 miles, in 8 hours. The next morning after the Sirius came to anchor in South bay, the master sent the purser, Mr. Brewster, in a small boat up to the mining camp, expecting to find a steamer there by which information could be sent to San Diego concerning the condition of the Sirius and her need of assistance. The purser of the Sirius reached the Tillamook about 4 o'clock on the afternoon of February 24th, boarded her, and reported to her master, Capt. Hamm, that the Sirius was at South bay in distress, with her shaft broken, propeller lost, short of stores, and in need of assistance. Capt. Hamm and the purser proceeded ashore, and procured suitable stores, which they placed in the boat, intending to send the
boat with the stores back to South bay in the morning. The stores consisted of two barrels of beef, 3 1-4 bags of flour, 2 bags of potatoes, and 1-2 box of tobacco, and were intended to last the Sirius for 10 days. It appears that there were passengers at the mining camp whom Capt. Hamm desired to consult before he could determine what he could do in the way of rendering assistance to the Sirius. He ap. pears to have seen two of them, who protested against the use of the Tillamook in rendering such assistance, as it would delay their return to San Diego. The next morning, February 25th, Capt. Hamm concluded that it would be too hard a pull for the men to return in the small boat, and accordingly he took them, with their boats and stores, on board the Tillamook, and steamed down to South bay, where they arrived about noon. Capt. Hamm went at once on board the Sirius, and was introduced by the purser to Capt. Gregory, the master. A conversation followed between the two masters concerning the towage of the Sirius by the Tillamook to San Diego. The negotiations inally terminated in the following written agreement:
"S. S. Sirius, February 25th, 1892. "It is hereby agreed between Captain H. S. Hamm, captain and master of S. S. Tillamook, and Captain H. M. Gregory, captain and master of Br. S. S. Sirius, that the master of the steamship Tillamook will tow the S. S. Sirius to a safe anchorage in the harbor of San Diego for the sum of twenty thousand collars U. S. gold coin, to be paid in San Francisco by said master of S. s. Sivius on account of owners.
"H. S. Hamm, Master of S. S. Tillamook.
“H. M. Gregory, Master of S. S. Sirius. "Witness:
*D. G. Brewster. “All coal and necessary help to be furnished by the S. S. Sirius.”
This agreement was executed in triplicate; the captain of the Tillamook taking two copies, —one for the owners of the vessel, and one for the charterer. The other copy was taken by the master of the Sirius. The Tillamook thereupon furnished a hawser to the Sirius, and, taking that vessel in tow, at about 2 o'clock in the afternoon, steamed up to the anchorage near the mining camp at the north of the island, where the Sirius was anchored, at about 7 o'clock and 20 minutes in the evening, and the two vessels remained over night, the Tillamook going alongside of the Sirius, and taking 17 tons of coal from the latter as a precautionary measure in case of bad weather, and then standing by with steam up the remainder of the night. The next morning, February 26th, the Tillamook took on board 18 passengers, and, again taking the Sirius in tow, proceeded to San Diego, where the vessels arrived, and the Sirius was safely anchored, on the morning of March 1st. The voyage from the anchorage near the mining camp on Cerros island to San Diego had occupied about 93 hours or a few hours less than 4 days. The Tillamook having performed her part of the contract, the libelant, at San Francisco, demanded of the inaster and agents of the owner of the Sirius the sum agreed upon to be paid for the service rendered, and payment was refused. The Sirius is an iron steamer, 852 tons register, 258 feet in length, 26 feet beam, with 2 masts, a foresail, fore-topsail, and fore and mainstay sails, but no mainsail. The vessel was valued at $30,000, her cargo at $112,000, and her freight money amounted to $1,539; total value of salved property, $143,539. The Tillamook is a wooden steam schooner, 209 tons register, 126 feet in length, 32 feet beam. Her value was $32,000. The foregoing statement constitutes the principal facts in the case, about which there is no controversy.
The agent of the owner, in his answer to the libel, denies his obligation upon the contract, and alleges that the facts connected with the service of the Tillamook were as follows:
“On the 25th day of February, 1892, the steamer Sirius, with a broken shaft, her propeller lost, and thereby disabled, was lying safely at anchor at Cedros island. With the winds then prevailing she could have lain there safely for all time to come. She had on board a valuable cargo. A change of wind to the southward might have placed the ship and her cargo in a precarious and dangerous position, either driving her ashore, or forcing her to put to sea, to drift before the wind. It would have taken considerable time to procure as sistance from San Diego, which was the nearest port at which a tug could be found. Under these circumstances the master of the Tillamook demanded and insisted that the master of the Sirius should contract to pay him the sum of $20,000 for towing the Sirius to San Diego, and absolutely refused to tow the Sirius unless such contract was made. The said master of the Sirius remon. strated against said demand as exorbitant and unjust, but the master of the Tillamook refused to undertake the service for a less sum, and threatened to leave said steamship Sirius where she lay unless his said demand was acceded to; and therefore the master of the Sirius, realizing that said steamer, by reason of the loss of the propeller, and of the fact that she had only limited sailing powers, her distance from other assistance, and by reason of the fact that she was lying on a roadstead open to the southward, was in a position which with a change of wind might be dangerous, and that, by remaining in said position until other assistance could be procured, the lives and property on board might possibly be endangered or lost, solely for the purpose of avoiding any further risk, and because of the compulsion placed on him, agreed in form with the master of the Tillamook to pay the demand aforesaid; but this claimant avers that said agreement was forced upon said master of the Sir. lus as aforesaid, and that it was not voluntarily inade, but was made under duress, and that the same was and is void."
The amount specified in the contract for the service rendered by the Tillamook appears large, as viewed now, in the light of the favor able circumstances under which the service was performed, but this fact alone is not sufficient to set aside the contract as void. In The Helen and George, Swab. 368, Dr. Lushington stated the rule respecting contracts for salvage service as follows:
"The principle on which the court acts is that, if satisfied that an agreement has been made, it will carry it into effect unless totally contrary to justice and the equity of the case; but the owner of the ship against whom the agree ment is attempted to be enforced may show that it was improperly obtained. The owner may contend that, under the circumstances, the sum of money was grossly exorbitant, and a fortiori, if he can show that the agreement was ob tained by fraud or compulsion, no court would hold it to be binding; but, when the execution of such an instrument is once proved, it is prima facie binding, and the burden of proof falls on those who dispute the validity of the instrument."
This case was recently cited and followed as authority by the cir. cuit court of appeals for the fifth circuit, in the case of The Agnes I. Grace, 51 Fed. Rep. 958, 2 C. C. A. 581. It was also cited by the supreme court in the case of The Tornado, 109 U. 8. 110--117, 3 Sup. Ct. Rep. 78, where it was said that "every agreement for salvage 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 apnended? 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, 1892, or just a week previous to the trial. He relates the conversation 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 suid 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 startel 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 ritten agreement, and evi. dently seeks to convey the impression that the whole transaction