THE AKABA. THE CITY OF BIRMINGHAM. WOOD v. BURG et al.; BOSTON TOWBOAT CO. v. WOOD, 54 F. 197

SIMONTQN, District Judge, (after stating the facts.) As to the City of Birmingham: The services of this steamship were salvage services of the most meritorious character. She found the Akaba, on a dangerous coast, — perhaps the most dangerous of American coasts, —drifting to leeward in a heavy northeast gale, almost helpless.

Notwithstanding that she had a number of passengers and a valuable cargo aboard, a great part of it perishable by delay, she went at once to the distressed vessel, rendered her skillful, prompt, and successful assistance, rescued her from her imminent peril, and, after great toil and danger, securely towed her to a place of safety. It would seem that all the elements which enter into a salvage service exist in this case — promptitude, courage, skill, great peril to life and property, toil, and success. The Blackwall, 10 Wall. 13; Cope v. Dry-Dock Co., 119 U. S. 628, 7 Sup. Ct. Rep. 336.

As is said by Wallace, J., in The Baker, 25 Fed. Rep. 774: “Neither tho value of ihe property Imperiled, nor the exact quantum of service performed, is a controlling consideration in determining' the compensation to be made.

The peril, hardship, fatigue, anxiety, and responsibility encountered by the salvors in tlio particular case; the skill and energy exercised by them; the gallantry, promptitude, and zeal displayed, — are all to be considered, and the salvors are to be allowed such a generous recompense as will encourage and stimulate similar services by others.” It is not necessary that there should be a certainty of loss unless the service was rendered.

It is sufficient that there is a reasonable apprehension'of danger, and that the service is rendered in reference to that apprehension of danger, and not in the ordinary course of business, ¡¿tee cases quoted in The Oregon, 27 Fed. Rep. 872. When we consider the character of the coast near Hattera-s, and the supreme necessity for encouraging heroic endeavor in saving life and property endangered upon it, we cannot say that the learned district judge erred grossly in his finding the reward which he fixed. “By the uniform course of decision in this court,” say the supreme court in The Connemara, 108 U.

S. 359, 2 Sup. Ct. Rep. 754, “during the period in which it had full jurisdiction to reverse decrees in admiralty upon both facts and law, as well as in the judicial committee of tire privy council of England, exercising a like jurisdiction, the amount decreed below was never reduced unless for some violation of just principles, or for clear and palpable mistake or gross over-allowance.” Tills part of Ms decree is affirmed. In the evidence taken in the case items of damage caused by the collision of the salving vessel with the G-ordon Castle appear.

The court below alludes to a part of'the expense incurred by the City of Birmingham; but in its finding it gives a lump sum, without discussing this collision, or the responsibility of the salved vessel therefor, or stating whether it includes these damages among the expenses. We approve the sum found, but we express no opinion on this point. Indeed, the record does not disclose to what extent the towage of the Akaba contributed to the collision. With respect to the towboats: The Saturn, their consort, had abandoned her tow, the Akaba, in her extremity. She had no right thenceforward to dispose of her.

When the towboats came up to the Aleaba, and attempted to force their services on her and the City of Birmingham, the latter vessel was fully competent to complete the salvage service, and in no need of any assistance, the sea being smooth and the weather calm. For these reasons she refused their aid. They were intruders, asserting rights to which they had no shadow of claim. Their offers were properly rejected, and they have no standing, in court. With regard to the wire hawser: The Boston Towboat Company claims salvage for its use.

Apart from the fact that the contract between that company and the Akaba expressly “provides that no claim for assistance or salvage or other services shall be rendered,” we see no right to salvage for the hawser on the facts of the case. It was used without the knowledge or consent or concurrence of the Boston Towboat Company. Its use, and the service it rendered to the Akaba, can in no sense inure to the benefit of that company as salvage. Salvage is awarded to those who voluntarily and spontaneously render service in saving property at sea.

Although salvage as claimed cannot be allowed, yet, under these pleadings, we can entertain another question. The hawser was left in the possession of the Akaba, and was brought into port. It has been lost. The right of property of the towboat company in the hawser was not lost. When articles are lost at sea the title of the owner in them remains, even if they be found floating on the surface or cast upon shore. All that the finder can do is to claim salvage on them. Cope v. Dry-Dock Co., 119 U. S. 630, 7 Sup. Ct. Rep. 336. A fortiori in the case of this hawser left in the control of the Aleaba.

This being so, the Akaba was a bailee without hire, liable for gross negligence. It does not appear in the case made how this hawser was lost, that is to say, with what absence of care. When the case is remanded to the district court, this can be made the subject of inquiry; and, if it appear that the Akaba is liable, an equitable adjustment of the loss can be made. The only other question is as to the libel of the Boston Towboat Company for breach of contract of towage.

After the Saturn reached Hampton Boads, and was repaired, the libelant offered to complete the towage to New York, either with her or with the towboats Taurus and Underwriter. This offer was made after the Saturn had abandoned the Akaba, and she had been salved by the City of Birmingham, and was in the custody of the court, under the warrant of arrest. We concur with the court below in the conclusion that there is no merit in this claim, and that the libel should be die-missed. Except as herein modified, the decree of the district court is affirmed.

Let the cause be remanded to the district court for such proceedings as may be necessary in conformity with this opinion.