TOME et al. v. FOUR CRIBS OF LUMBER, 24 F. Cas. 18

TANEY, Circuit Justice. This dispute has arisen from a claim of salvage made by the appellee, for saving, as he alleges, two rafts of timber belonging to the appellant Hart-ley, and consigned to Tome & Rhinehart, his agents, at Port Deposit These rafts had been floated down the Susquehanna river, and anchored in the stream beloW 'Port Deposit; while 'they remained thus at anchor, a sudden Tise in the river took place, accompanied by a high wind and heavy sea. which floated the rafts from the place where they were anchored,' and carried them .with the current down the river.

The respondent, Davis, owns a farm bordering on the river, about five miles below the place from which the rafts had floated off. As they- descended the river, they passed near his shore; and the first that came down was taken possession of by his servants, by his direction, and fastened by a chain to a tree; it was, however, fastened to the shore of Stephen I. Thompson; who owns the farm immediately below that -of Davis; the current .having swept the raft a little below Davis’s'line, before Its motion’ was arrested.

When the second raft came down, which was a few hours afterwards, Davis boarded it, at some personal risk; and while he was on it, five cribs broke off, which he drew to his own shore and fastened there; the residue of the raft was held by the anchor attached to it, after being drawn by Davis into shallow water. There is some difference in the testimony as to the cause of the separation of these five cribs from the residue of the raft, while Davis was on board.

But it is not necessary to examine this question; for in the view which the court take of this controversy, it is immaterial whether, as he ¿lieges, the raft was about to break up when he reached it; or, as the appellants insist, the cribs were separated by him. Three of the five cribs anchored off his shore, broke loose from the other two, and floated down to Swan creek,' where they were afterwards found safe, and recovered by the owners, when they came with their vessels to take away the lumber; the residue remained at the place above mentioned, until the owners came for it.

Davis put up an advertisement at Havre de Grace, immediately after he had taken up the lumber, stating that he had done so, and requesting application for it to be made to him; and he was shortly afterwards informed by an agent of the libellants that it belonged to them. It remained for some weeks. It was plank, or what is usually called boards; and was destined, part for Baltimore, and part for the District of Columbia. It was suffered to remain so long, because it is more convenient to load it on vessels in high water, when it can be floated off from the shore without, breaking up the cribs.

As soon as the state of the water became favorable, the libellants sent their agents with two vessels to take the lumber, and' carry it to the places where they had engaged to deliver it They took the raft from Thompson’s shore without any opposition from him, or any demand for compensation; they also took the five cribs which had been fastened by Davis to his own shore, and attached them to the rest of the lumber, and. were engaged in lading the vessels, when' Davis came on the raft, and insisted that the plank should not be taken away until he was paid salvage for his services; he was offered’ twenty-five dollars, which he refused, and demanded one hundred and fifty.

And upon this disagreement, a scene of violence,by no means creditable to either party, ensued, in the midst of which, Davis succeeded in detaching four cribs from the raft, by cutting the fastenings; he took them to his shore, and drew the plank from the water, and piled it on his land; claiming the Tight to retain it until he was paid the sum he demanded for salvage.

The owner, and the agents to whom ne had consigned it, thereupon filed this libel in the district court, praying that this lumber might be delivered to them, and Davis compelled to pay damages for its detention.’ Process was accordingly issued, and the-plank delivered to them by the marshal; and a monition in the usual form served upon Dávis, who appeared and put in his answer; he insists on his claim of one hundred and fifty dollars for salvage, and his right to retain the property until it is paid.

The district court was of opinion that he had rendered service to the libellants, in saving these rafts, of the value claimed by him; that they were salvage services which gave him a lien on the property; and directed these four cribs to be sold, and the sum above-mentioned to be paid to the respondent out of the proceeds. From this decree the libellants have appealed to this court.

The sum in dispute is a small one; but this question is important, from the great, quantity arid value of the lumber annually brought down the Susquehanna river, and anchored in the stream at or near the place from which these rafts floated. One- of the witnesses states that in the month of May, 1852, he"' saw from one hundred to one thousand anchored there; all of them being more or less liable to be swept down the river by a sudden rise in the waters.

The course of the trade is this: In order to send it down the river, it is in the first place put up in cribs, varying, in some degree, in size, but most commonly about sixteen feet square; they are strongly secured so as to keep the lumber together; a number of these cribs (generally about ten) are then strongly fastened to each other, and form what is called a raft.

In this state it is floated down to Port Deposit, and remains there until it is sold, or the owner prepared to transport it to another market; when it is to be transported to any of the great lumber markets, either by the purchaser or original owners, it is either laden in vessels from the rafts, which are brought alongside for that purpose, or formed into what is called a float, and floated to its place of destination.

A float, in the language of the trade, means two or more rafts attached together, and prepared, by proper fastenings and suitable arrangements, to withstand the winds and waves of wider waters; but the lumber is not often transported in this condition, except to Baltimore. The rafts which first come down in a rafting season are usually fastened near the shore, at Port Deposit; when that space is filled up, those that follow are anchored in the stream, and often remain anchored there for some weeks, before the lumber is transported to another market.

As I have already said, while they , remain in this condition, they are always liable to be swept from their anchorage by a sudden rise in the river; but. the owners are, of course, well aware of this danger, and willing to encounter it; because the winds and currents almost invariably drive them into shallow water, where the current is not so strong, and where the anchor attached to the raft will again take hold and keep it anchored until the owner desires to remove it.

All of the witnesses engaged in this trade say that they regard the risk of losing their lumber by this means as a small one; for the raft very rarely breaks up, or floats into the Chesapeake Bay; and that they are very unwilling that any one, without their authority, should interfere with it, as it drifts down the river, or haul it to the shore.

They prefer to take the chances that the anchor will again take hold because the raft is apt to be broken by thumping on the shore, when fastened in water too shallow, and in a place exposed to the waves; and that the lumber is in some degree injured, if improperly handled when piling it on to land, and more expensive and troublesome to put on board of vessels, than it would be if anchored out in the river.

When the raft is missed from the anchorage at which they placed it, their own agents are sent to look after it and see that it is secured in a place of safety; but where they find that any one has rendered them a service in this respect, before their agents arrive, they are accustomed to pay them a reasonable compensation for their trouble. Now, the first question before the court in this case, is. not whether Davis rendered a service or not, or what is the value of his service, but whether that service was a salvage service or not.

For, if it was not a salvage service, then he has no lien on the lum-_ber, and had no right to detain it from the owner; his remedy would be an action at law to recover the value of the service he rendered. And I think this is not a case for salvage. The water in the river had risen, and a heavy wind was blowing, and these rafts were driven from their anchorage; but they had not broken up, when he boarded them, and were floating down the stream.

It was one of the usual accidents of the trade; and if the owners choose to expose their property to this risk, they have a right to do so, and no one can acquire a lien upon it by interfering with it without their authority. It is true, no one was on the raft; but it was no derelict on that account, or abandoned by those who had the care of it, -for it is not the usage of the trade to keep any one on board while the raft is at anchor. The case of The Upnor, 2 Hagg. A dm. 3, was a stronger case than this in; favor of salvage.

The Upnor was a flat-bottomed barge, loaded with manure, which was found on a sand-bank, with the water over the upper dead-eyes of the shrouds, the sails (ex- ■ cept the mizen) washing about, no person on board, and no anchor out; she was- boarded in that condition, with much difficulty, by some men who took her to Sheerness, and claimed salvage for their services. It was proved, that it was a common case .for vessels to be left on that sand, until the owners could procure assistance, and that the master and a lad who navigated her had made all safe, and then went to the owner to have assistance sent to her.

Lord* Stowell refused salvage, saying that individuals who thus choose to expose their property to the chances of wind and weather, have a perfect right to exercise their own discretion upon the matter, and that other persons are not entitled to interfere. The case of Nicholson v. Chapman, 2 H. Bl. 254, is still more analogous to the case before the court.

In that case, a quantity of timber was placed in a dock, on the banks of the Thames, but the ropes by which it was fastened got loose and it floated off. and was carried by the tide to some considerable distance, and left at low water upon a towing-path; it was removed to a place of safety, at some distance, and the party who took care of it claimed salvage for his services, and a lien for them on the timber.

But the court held, that taking care of timber in that situation, although on a navigable river, and within the flux and reflux of the tide, did not entitle the party to salvage, nor give him a lien upon the property for his services; that the service had none of the qualities or character of the services for which the maritime law of all commercial nations allowed salvage, when the property was in danger of perishing from the perils of the sea. The case under consideration comes within the distinction taken in .the case referred to.

The rafts are prepared to float the timber down the current of the narrow part of the river; but they are not prepared or intended to encounter sea perils; the lumber is placed in vessels, or in floats, before it .is exposed to the winds and waves of the Chesapeake Bay; and in that condition it is usually transported to the places for which it is destined.

If the raft is carried off from its anchorage by the rising of the river and high winds, the owner knows what direction it will most probably take, and where to look for it; and even if the rafts and cribs are all broken up and cast, in separate pieces, on the shore, the quality of the lumber is not much injured, and if never found by the owner, his loss is occasioned rather by floods from the land than the perils of the sea.

If salvage were allowed, in such cases, to every one who chose to interfere, and take possession of the rafts which he saw floating down the river, property of great value might, and probably would, often be withheld from the owner, upon claims for salvage services; and this, too, under circumstances where the owner would have desired that the party should not interfere; and where the service, if any was really rendered, cost him very little time or trouble. And we might, moreover, have a libel in admiralty for salvage, upon every piece of timber cast on the shore from a broken raft.

Undoubtedly, when a raft is broken up and scattered, any one may lawfully .take measures to save it from further loss, and secure the property for the owner; but, as was said by the court in the case of Nicholson v. Chapman, it is rather a case of mere finding than of salvage service; and whatever just claim the party may have to a reasonable compensation for his trouble and time, he has no right to detain the property when the owner demands it; nnd if he does, it may be recovered in an action of replevin, in a court of common law.

The result of this opinion is, that these rafts, anchored in the stream, although it be a public navigable river, are not the subject-matter of admiralty jurisdiction, in cases where the right of property or possession is alone concerned. They are nót vehicles intended for the navigation of the sea, or the arms of the sea; they are not recognised as instruments of commerce or navigation by any act of congress; they are piles of lumber, and nothing more, fastened together and placed upon the water until suitable vehicles are ready to receive and transport it to its destined port.

And any assistance rendered to these rafts, even when in danger of being broken up, or swept down the river, is nót a salvage service, in the sense in which that word is used in the courts of admiralty. And this seems always to have been the view taken of this subject; for, notwithstanding the great extent of this trade, and the number of years it has been carried on, this is the first instance in which a claim for salvage has been made in the court of admiralty, for arresting a raft which was driven from its anchorage.

The district court, therefore, had not jurisdiction to issue the process by which the marshal was directed to take the property from the possession of the respondent; the controversy was proper for the decision of a court of common law, and the remedy of the owners to regain the possession, was an action of replevin, and not a libel in the district court; consequently, its decree must be reversed, and the libel also dismissed.

The lumber having been taken from the respondent’s possession, by process which the district court had not jurisdiction to issue, a writ of restitution would be awarded, if there was any question between them, as to the right of property, or the right of possession, which this court considered as an open one. But the respondent claims no property in the lumber; he claims the possession only, upon the ground that the services he rendered were salvage services, under the maritime law.

And as the court is of the opinion that the services were not of that character; and that he had no right to withhold the property from the owners; it would be unreasonable and unjust to deprive the owner of the possession he has obtained, merely to subject him to the necessity of recovering it again in a new suit, in a court of-common law. The court will not, therefore, disturb the possession of the libellants; but as they brought the controversy into the court of admiralty, and have failed to support their libel, they must be charged with costs, as well in this, as in the district court.