CAPE FEAR TOWING & TRANSPORTATION CO. v. PEARSALL et al., 90 F. 435

SIMONTON, Circuit Judge (after stating the facts). The twenty-ninth rule of the circuit court in admiralty provides as follows: “If the defendant shall omit or refuse to make due answer to- the libel upon the return day of the process, or other day assigned by the court, the' court shall pronounce him to be in contumacy and default; and thereupon the libel shall be adjudged to be taken pro confesso against him, and the court shall proceed to hear the cause ex parte and adjudge therein as to law and justice shall appertain.

But the court may, in its discretion, set aside the default, and, upon the application of the defendant, admit him to make answer to rlie libel at any lime before the final hearing and decree, upon his payment of all the costs of llie suit up to the time of granting leave therefor.” Bo, also, in rule 40 tlie following provisions are made: “The court may in its discretion, upon the motion of the defendant and on payment of costs, rescind the decree in any suit in which, on account of its contumacy and default, the matter of the libel shall have been decreed against him, and grant a. rehearing’ thereof at any time within ten days after the decree has been entered, the defendant submitting to such further orders and terms in the premises as the court may direct.” It will be observed that, in ilie first of these rules, upon the application of the defendant, and upon his payment of costs, the court, in its discretion, may set aside the default.

On the second of these rules, the court, upon the payment of costs, may rescind the decree, in a suit, made against a defendant on account of ids contumacy and default So the matter lies in the discretion of the court, and in the exercise of this discretion the court refused the motions made by (he defendant below. When a matter is in the discretion of the court, the exercise of that discretion is not reviewable in the appellate court.

Thus, amendments to pleadings are within the discretion of the court, and its action granting or refusing such amendment cannot be reviewed in the supreme court of the United States. Bullitt Co. v. Washer, 130 U. S. 142, 9 Sup. Ct. 499; Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207, 10 Sup. Ct. 736. The granting or refusing of a new trial is within the discretion of the court, and its action cannot be reversed in the circuit court. Railway Co. v. Struble, 109 U. S. 381, 3 Sup. Ct. 270. Setting aside a default, like a motion for a new trial, lies entirely in the discretion of (he trial court.

Ex parte Roberts, 6 Pet. 216. So a motion for a change of venue is not reviewable. Kennon v. Gilmer, 131 U. S. 22, 9 Sup. Ct. 696. Nor the granting or refusing of a continuance. Means v. Bank, 146 U. S. 620, 13 Sup. Ct. 186. All questions as to surprise, as to reopening a case, as to the order of proof, are matters of discretion, not reviewable. Ames v. Quimby, 106 U. S. 342, 1 Sup. Ct. 116. Decisions which rest in the discretion of the court below cannot be examined in the appellate court. Cheang Kee v. U. S., 3 Wall. 320.

And generally where the action of the inferior court is discretionary its decision is final. Earnshaw v. U. S., 146 U. S. 60, 13 Sup. Ct. 14. This motion to reopen the default having been within the discretion of (he court below, its action cannot be reviewed here. It is insisted, however, that the libel, as filed, does not state facts sufficient to sustain the action, and would have been open to demurrer, or a motion to dismiss. “Upon writ of error to reverse a judgment by default, defects in pleadings which could have been taken advantage of before judgment by general demurrer may be reviewed.” McAllister v.

Kuhn, 96 U. S. 87. The libel, although not as clear and distinct as it should be, does sufficiently show that the libelants were of tlie crews of tlie tugs which rendered the service, and that they did render the service at and during the salvage. Were the question one for a jury, the jury could reasonably infer it. This objection is overruled. One of the assignments of error is as to the amount of salvage allowed the libelants. The default admits all the facts stated in the pleading, but it does not admit the amount of unliquidated damages claimed. In the libel filed in this case no specific amount is claimed.

That is to be ascertained by the court. In common-law cases, damages after a default must be found by a jury. Raymond v. Railroad Co., Fed. Cas. No. 11,593; U. S. v. White, Fed. Cas. No. 16,686. And, as the effect of a default to appear in an admiralty proceeding is ordinarily the same as in other actions at law (Miller v. U. S., 11 Wall. 268) such damages must be found by the court upon the testimony taken (Hightower v. Hawthorn, Hemp. 42, Fed. Cas. No. 6,478b). The rule in equity, which also is clearly applicable to admiralty, is thus stated in Ohio C. R. Co. v. Central Trust Co. of New York, 133 U.

S. 83, 10 Sup. Ct. 235: “A decree pro confesso is not a decree as of course according to tlie prayer of the hill, nor merely sucli as tlie complainant chooses to taire it. It should be made by the court according to what is proper to be decreed upon the statement of the bill assumed to be true.” The decree of the court below will be examined from this point of view. We are not called upon to estimate the value of the salvage service rendered in this case. The parties most concerned therein (the chief salvors and the salved) have fixed this value at $13,000.

The questions to be dealt with are the interest of the crews of the. tugs in this award, and the amount of such interest. There can be no doubt that the crews of the tugs which did the salvage service are entitled to share in the award. The Henry Ewbank, 1 Sumn. 400, Fed. Cas. No. 6,376; The Waterloo, 1 Blatchf. & H. 114, Fed. Cas. No. 17,257; The Leipsic, 5 Fed. 108, affirmed 10 Fed. 585; The Adirondack, 5 Fed. 215. In the last two of these cases the owners of the salved vessel had done as was done in this case. They pursued the claim for salvage in their own names, without joining the master and crew.

The proper practice was declared to be to apportion thé entire amount, when ascertained, between the vessel, master, and crew, and to deposit the share of the master and crew -in the registry to await their application therefor. The rules governing the division of the salvage award between the owners of the salving vessel and its master and crew have been somewhat modified. The later decisions are much more liberal towards the owners of the salving vessel.

It is thus stated in The Pomona, 37 Fed. 816: “Under tlie rule once prevailing in admiralty, tlie owners of the salving vessel could not receive more than one-third of the award (The Blaireau, 2 Cranch, 240; The Henry Ewbank, 1 Sumn. 426, Fed. Cas. No. 6,376; The Cora, 2 Wash. C. C. 80, Fed. Cas. No. 1,621), unless there 'were unusual circumstances of peril to the salving vessel (The Henry Ewbank).

In The Island City, 1 Black. 129, it seemed to be admitted that where the salving vessel was a steamer, and so capable of rendering the most efficient aid, her proportion should be greater; and -this is recognized in The Baikes, 1 Hagg. Adm. 246; The Earl Grey, 3 Hagg. Adm. 363; The Beulah, 1 W. Rob. 477; Brooks v. The William Penn, 2 Hughes, 144, Fed. Cas. No. 1,965. In The C. W. Bing, 2 Hughes, 99. Fed. Cas.

No. 3,525, decided by Judge Bryan, late judge of this district, as referee, before his court was organized, in 1806, the question was considered, and the proportion of the salving vessel — a steamship — in the award was raised to tliree-fifths. In The Leipsic, 5 ITed. 108, Judge Choate, of Xew York, had this question before him. The circumstances of that ease were almost the same as in the ease of The Pomona.

A steamship, disabled because of a broken shaft, dependent upon her sails, which were injured, was rescued by a passing steamer; there being no present, imminent danger to the Sillying vessel or her crew; the essential feature of the service being its prompt and efficient action. Judge Choate allowed the salving steamer three-fifths of the award. lie adopted the same rule in The Adirondack, 5 Fed. 215.” In the case of The I^eipsic, on appeal, Judge Blatchford increased the award, and allowed the salving "steamer three-fourths. 10 Fed. 585.

In the case of The Pomona the proportion allowed to the salving vessel was iour-Jiiths. In the case at bar the court below allowed two-thirds. An examination of the cases will show that there is no fixed rule with regard to the proportion in the salvage award allotted to the owners of the salving vessel. Most frequently salvage services are rendered upon a voyage, in the absence of the owners, and when the salving vessel is under the charge of, and is controlled by, the master and crew.

As salvage is awarded for the encouragement of promptness, energy, efficiency, and heroic endeavor in saving life and the property in peril, the claims of the master and crew who exhibited these qualities must meet the most favorable consideration. At the same time an allowance is made for the owners whose property has been imperiled. But when the owners direct the service, or when the peril encountered is chiefly that: of the salving vessel, with no proportionate peril to the crew, an award to the owners is more liberal. An instance of this is The Edam, 13 Fed. 137.

In the case at: bar salvage service was rendered at the home port, the residence of the owners of the tugs. There was no exjiosure to any unusual peril of life. A very important part, of the work — the removal of the cargo of the salved vessel — was rendered by laborers specially hired by the owners of the tugs for this purpose. During the progress of the salvage services the libelants were discharging their ordinary vocations under the pay of the owners.

From these circumstances it would appear that the proportion sometimes allowed the master and crew — two-fifths—would be too large for the services rendered on i his occasion. The. court, below evidently had this in mind, and allotted one-third instead of two-fifflis. It may be that we might be inclined to think that even this was too large, but it is not so excessive as to require a modification of the conclusion reached by him. A decree in a salvage case will not be altered on appeal, as to amount, if it can be justified by rules of law on any reasonable view of the case. The Excelsior, 123 U. S. 40, 8 Sup.

Ct. 33. In making his distribution of the share allotted to the masters of the tugs and tin crews of the tugs only, the presiding judge made the distribution in proportion to the wages received by them, respectively. In this he is sustained by the authorities. In Brooks v. The William Penn, 2 Hughes, 144, Fed. Cas. No. 1,965, the salvage award was distributed between the master and the crew with regard to their responsibility in (heir different stations. In Sewall v. Nine Bales of Cotton, Fed. Cas. No. 12,683, the distribution was in proportion to the wages.

This was adopted as a just and uniform rule in all ordinary cases. The same rule was followed in The New Orleans, 23 Fed. 909, and in The C. W. Ring, supra, and also in The Pomona, 87 Fed. 816. See, also, Cohen, Adm. 149. The motion made by the appellees to dismiss the appeal is refused. The decree of the district court is affirmed, with costs. Affirmed.