proceeded on his course to San Diego. Capt. Gregory's original purpose to send to San Diego for assistance was therefore, under the circumstances, a reasonable and proper course to pursue, and we are not surprised to find him still entertaining that view during the pendency of negotiations with Capt. Hamm, when at one time he determined not to take the tow, and the purser packed his valise to go on the Tillamook to San Diego. It will be observed that Capt. Hamm proposed to assist in carrying out this purpose, and he would do it without charge. Moreover, he would proceed at once on his return. that there might be no delay in securing the necessary assistance. He would also have secured additional stores for the Sirius, so that there might be no danger of distress in that direction. There is certainly no evidence here that Capt. Hamm took advantage of his posi tion to drive an unreasonable bargain, but, on the contrary, he ap pears to have been quite willing to render a service, deemed by Capt. Gregory sufficient for the occasion without any compensation whatever. Moreover, there was time given for deliberation, for the negotiations occupied about one hour and a half. But when Capt. Hamm came to make a bargain to use his own vessel for the purpose of towing the Sirius, he demanded $20,000 to tow that vessel to a safe anchorage in the harbor of San Diego, and this demand, it is claimed, was unreasonable and exorbitant. The explanation given for this charge is that the Tillamook was considered too small to take the tow. She was built for a freight boat and not for a towage service. Her engine was small, that there might be more room for freight, and, in towing a vessel of the size of the Sirius, the strain would be very great. The compensation was contingent upon success. The chance of failure and disaster to such a vessel would be much greater than in the case of a vessel of more power. It is true that, with favorable weather, the service was actually performed without much difficulty; but it required 93 hours to make the voyage from the anchorage at the mining camp to San Diego, a distance of about 300 miles, and in doing this the engineer testifies that an unusual strain was placed on the engine in the use of live steam in the low-pressure cylinder. In the case of bad weather there would have been great danger that the Tillamook would herself have become disabled and liable for a salvage service. This explanation appears satisfactory, particularly when it is coupled with the offer of Capt. Hamm to take an officer to Ensenada or San Diego to procure other assistance. Then why did Capt. Gregory submit to this demand which he denounced as unreasonable and exorbitant? His testimony is that he did not send an officer to San Diego because he wanted to avoid lengthening his voyage; in other words, he wanted to reach his port of destination as soon as possible, and he entered into the agreement with that object in view.

There is still another feature of this case to be noticed. It was established by a preponderance of testimony that the Sirius was really in a very dangerous position at South bay; that she could not get an offing with the sail power she had, and, in the event of a southerly gale coming up, she would inevitably have gone ashore. It appears, also, that she was surrounded by kelp, which added to the danger of

the situation. Capt. Gregory was, however, positive that he was in a safe position, and could get to sea before such a storm would become dangerous. His situation did not, therefore, operate to force him into an agreement with Capt. Hamm, but the actual fact, as disclosed by the testimony, may be taken into consideration in determining the value of the service rendered by the Tillamook. The testimony does not establish the claim that the contract was made under duress.

We come, now, to the final question whether, under all the circumstances, the amount charged was so exorbitant as to be totally contrary to the principles of equity and justice. In the southern district of New York it has been held that a salvage contract may limit the salvor, but has little or no binding effect upon the other party, and that a court of admiralty will refuse to enforce such a contract any further than is reasonable. The Schiedam, 48 Fed. Rep. 923; The G. W. Jones, Id. 925. The general rule, however, is to give effect to such a contract, free from fraud, and entered into by the parties freely and voluntarily, unless the compensation agreed upon is so exorbitant as to be wholly inequitable and unjust. In the case of The Agnes I. Grace, 49 Fed. Rep. 662, the value of the property saved was $12,030, after $1,200 had been expended in repairing the vessel. The contract provided for the payment of the sum of $5,000, or nearly 50 per cent. of the salved property for the salvage service. The court held— "That a contract of this character is not binding upon the court, and that in all cases of salvage it is competent for the court to adjudge and assess the amount of the recovery in accordance with the equities of the case; and, if it should appear that a contract of this character was an inequitable one, the court would, of course, disregard it. But wherever a contract has been entered into after due deliberation by the parties, and has not been shown to be in any respect an inequitable one, it is exceedingly valuable as evidence to enable the court to arrive at a just determination. The court regards this contract as evidence in that light, and not as a conclusive contract; but it is a most significant and valuable indication of what should be the true amount of the recovery."

In this case the court held that the contract stipulated but a moderate charge, and a decree was entered for the libelant for that amount. The claimants appealed to the circuit court of appeals, where the judgment and decree of the district court was affirmed. 51 Fed. Rep. 958, 2 C. C. A. 581. The appellate court did not, however, adopt the views of the judge of the district court as to the law of the case. It says:

"This case cannot be considered as belonging to that class of cases of contract for salvage services where the master, being upon the high seas or on an unhabited coast, at a distance from all other aid, is absolutely helpless, and without power to procure assistance other than that offered, and compelled in consequence to make a hard and inequitable contract. He was within easy reach of Savannah, where, had he desired to assume the risk for his owners, he could have procured lighters and other tugs to render the service."

The court then cites The Helen and George, Swab. 368, The British Empire, 6 Jur. 608, and The Wellington, 48 Fed. Rep. 478, referred to in this opinion, and says:

"Although the amount given may, under the circumstances, appear high in proportion to the value of the property saved, this court does not deem it sufficiently unreasonable to disturb the judgment of the court below."

As this is the law of this district, as declared in the case of The Wellington, supra, with the additional authority of having been recently affirmed by the circuit court of appeals for the fifth circuit in the case just cited, it will be accepted as declaring a rule applicable to the contract now under consideration; and, having determined that this contract was entered into by the parties freely and voluntarily, and without fraud or duress, it will be treated as binding, unless it appears that the compensation provided for the service is so unreasonable in amount as to justify the court in setting aside the agreement as wholly inequitable and unjust.

In the case of The Costa Rica, 3 Sawy. 610, that steamer was on a voyage from Panama to San Francisco. She became disabled, at 1 o'clock in the morning of October 26, 1874, by the breaking of the shaft of her propeller, when she was about 130 miles southward of San Diego, and about 25 miles off shore. Soon after the accident the mate was dispatched in a boat, with orders to proceed to San Diego, and thence telegraph to the agents of the Pacific Mail Steamship Company at San Francisco for assistance. At about noon of the same day, and while proceeding on his way, he was overtaken, when about four miles from San Diego, by the steamship Newbern. The mate was recognized by the officers of that vessel, and was taken on board. On being informed of the accident the master of the Newbern inquired of the mate if the master of the Costa Rica desired to be towed into port, to which the mate replied that he did not know; that his orders were to go to San Diego. He also declined to advise the master of the Newbern to go to the assistance of the Costa Rica; telling him that the master of the latter vessel intended to work his ship into Cape Colnette. The master of the Newbern determined to turn around, and see if the Costa Rica required assistance. This he did at about half past 12 o'clock, and reached the Costa Rica about half past 4 the same afternoon. The distance run back was about 25 miles. The Newbern took the disabled steamer in tow, and at about 9 o'clock on the evening of the succeeding day arrived with her tow off the mouth of the harbor of San Diego. As no pilot presented himself, the vessels remained outside until about half past 7 of the succeeding day, when they entered the port, and at about 9 o'clock the Costa Rica was anchored alongside the wharf. The Newbern proceeded on its way to San Francisco. The distance run by the Newbern after turning back, was about 25 miles. The distance towed was about 110 miles. The hawsers used in towing belonged to the Costa Rica. The time consumed in the service was about 40 hours, but to this must be added the time employed in running back 25 miles,-about 4 hours,-making a total service of 44 hours. The Newbern, while towing the Costa Rica, was still proceeding towards her port of destination, though not by the most direct route, nor at her usual rate of speed. The service was attended by no particular difficulty or danger. The weather was fair, and the sea smooth. At the time the Newbern took hold of the Costa Rica the latter was in no immediate danger. With favorable winds she could probably have reached safe anchorage at Cape Colnette in 18 or 20 hours, and San Diego in 4 or 5 days, but other assistance was near at hand. The mate of the Costa Rica

was about to enter the harbor of San Diego to secure assistance from the company to which the steamer belonged, when the master of the Newbern learned of the accident to the Costa Rica, and proceeded to her assistance. In fact, a vessel was dispatched to her assistance which arrived at San Diego on the morning after the two vessels reached that port. The value of the Costa Rica, with her cargo and freight to be earned, was $244,756.64. The value of the Newbern, with her cargo, was $242,010. For the service of the Newbern Judge Hoffman awarded the sum of $10,000. The value of the Costa Rica and her cargo was greater than that of the Sirius, and the value of the Newbern was greater than that of the Tillamook, but in every other respect the circumstances attending the service of the Tillamook were such as to call for at least double the compensation awarded to the Newbern. The service of the Tillamook commenced on the morning of February 25th, when she steamed down to South bay, and terminated on the morning of March 1st, at San Diego, having consumed five days. Captain Gregory testifies that the total distance of the towage from South bay to San Diego was 320 miles. The Costa Rica was towed 110 miles. The Tillamook was actually engaged 98 hours in towing the Sirius; the Newbern 40 hours in towing the Costa Rica. The hawsers used in towing the Costa Rica belonged to that vessel; the hawser used in towing the Sirius belonged to the Tillamook. The Sirius was in a more dangerous position than the Costa Rica, and the service rendered by the Tillamook possessed more of the elements of salvage than appear in the service rendered by the Newbern.

In the case of The Wellington, 48 Fed. Rep. 475, the value of the salved property is not stated in the opinion of the court, but from the record in the case it appears that the vessel was of the value of about $100,000, and the cargo, including freight to be earned, about $25,000, -total, $125,000. The distance towed was about 544 miles, and the time consumed in towing a little less than four days. There was an agreement to pay for the towage service the sum of $15,000, and this agreement was enforced by the court.

In the case of The Wellington, 52 Fed. Rep. 605, the same vessel again became the subject of a salvage service. The value of the vessel was $100,000. The distance towed was about 150 miles. The time consumed was 26 hours. The owners of the Wellington voluntarily paid to the owners of the vessel rendering the service the sum of $10,000, and this court awarded an additional compensation to the master of $2,500, and to the crew $100 each. These comparisons, and others that might be made, indicate that the charge made by the Tillamook, and incorporated into the contract, was high, approaching the degree of being deemed unreasonable; but I cannot say, under all the circumstances, that it is so unreasonable as to be wholly inequitable and unjust. If the amount agreed upon exceeds somewhat the accustomed measure of a liberal award, it will not be disturbed, if deliberately and understandingly assented to, without the judgment of the promising party being overborne by the distress in which he is placed. The Adirondack, 2 Fed. Rep. 387. I am therefore of the

opinion that the contract should be enforced by the court, and a decree will accordingly be entered in favor of the libelants for the sum of $20,000.

APPORTIONMENT OF SALVAGE AWARD.

(January 12, 1893.)

MORROW, District Judge. The libelant and interveners in this case have asked the court to make distribution among the salvors of the amount of the award under the contract, in conformity with the admiralty practice in this class of cases. The decree will accordingly provide for such distribution. In the performance of the service provided in the contract the steamer Tillamook was the principal factor, and she, of course, assumed the risk of failure and disaster. I will therefore award to her charterers the sum of $13,250.

I think the conduct and service of the master of the Tillamook entitle him to some special consideration. He promptly procured additional stores for the Sirius, and offered to take an officer of that vessel to Ensenada or San Diego for assistance without charge and without delay. He also engaged in the towage service against the protest of two of the passengers on his own vessel. It is the policy of the law to encourage the rendering of prompt and efficient assistance to vessel in distress, as was done by Capt. Hamm in this case. I will therefore award to him the sum of $2,500. In distributing the remainder of $4,250 among the other officers and crew of the vessel, consideration will be given to the relation of the services performed, to the extra work required in towing the other vessel, and the amount of wages paid to each. The decree will accordingly provide as follows: