THE NEW CAMELIA, 105 F. 637

PARDEE, Circuit Judge (after stating the facts). Considering the condition of the weather on the lake at the time the accident happened to the New Camelia, and that she was within the reach of the assistance required to return to her landing, it would be extravagant to say that the New Camelia at the time was in imminent peril or in a helpless condition. All that she wanted was towage service, and the record shows that that service was furnished without delay by the owner of the tug Claribel, who was on board his tug and personally directing its operations.

As' to whether that service should be furnished, the libelants in tbe present case had nothing to say, and nothing to do, except to remain aboard their own boat and perform their usual duties, for which they were regularly compensated. Notwith-: standing all this, there is much authority to hold that • the Néw Camelia, when in the open lake, with her shaft broken, her propeller power disabled, was so far disabled as to need assistance, and, although not in immediate peril, was so in distress as to justify the use of the word “salvage” in designating the aid she required. See The Dupuy de Lome (D. C.) 55 Fed. 93.

And we are constrained to sustain. the court a qua in holding that the services rendered by the tug Claribel to the New Camelia were salvage services; but we must insist that they were of the lowest order of salvage services, and to be compensated on the basis of work and labor. In Ulster S. S. Co. v. Cape Fear Towing & Transportation Co., 94 Fed. 214, 36 C. C. A. 201, we quoted and followed The Connemara, 108 U. S. 359, 2 Sup. Ct. 754, 27 L.

Ed. 751, as to the true rule to be followed by this court, on appeal, in inquiring into the propriety of the amount awarded in the lower court in a salvage case, as follows: “In The Sybil, 4 Wheat. 98, 4 L.

Ed. 522, Chief Justice Marshall said: ‘It is almost impossible that different minds contemplating the same subject should not form different conclusions as to the amount of salvage to be decreed, and the mode of distribution.’ And by the uniform course of decision in this court 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 the 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 overallowance.

Hobart v. Drogan, 10 Pet. 108, 119, 9 L. Ed. 363; The Comanche, 8 Wall. 448, 479, 19 L. Ed. 397; The Neptune, 12 Moore, P. C. 346; The Carrier Dove, 2 Moore, P. C. (N. S.) 243, Brown & L. 113; The Fusilier, 3 Moore, P. C. (N. S.) 51, Brown & L. 341.” The rule declared, has beéu much pressed on us in argument in this case, and it seems to be about the only ground upon which the libelants can maintain the large award given by the lower court.

It is further impressed upon us with ingenuity and pertinacity that the New Camelia was in dire peril, without much chance of rescue, and that the allowance, although based on the value of the New Camelia, is small compared to the value of the New Camelia and the very valuable lives that were aboard of her. We are clear, however, that the New Camelia was not in great peril; that the services rendered by the Claribel were simple towage services,— asked for as towage services, received as towage services.

And we are of opinion that the lower court, in determining the amount of salvage to be awarded, ignored some of the important princicles to be considered in every salvage allowance, and considered mainly the value of the New Camelia, and the propriety, if not the necessity, of rewarding libelants, who could not be said to have volunteered, and who only incidentally rendered slight services in salving the New Camelia, so as to encourage future salvors. 'In our opinion, consideration should have been given to the character of the.

Services rendered, as well as the value of the salved vessel; and, considering all the elements which should enter into the allowance for salvage,' we are of opinion that in this case the compensation allowed should be mainly on the basis of the towage services actually rendered, and any large allowance would he judicial liberality at the expense of suffering owners, not in fault, and already burdened by the accident to their vessel.

A'glance at the decree of "distribution, as found in the record, shows that firemen and cooks, who actually did nothing in determining whether the service should be rendered, and nothing in rendering the same, save following their regular, ordinary daily work, are given over three months’ extra pay. Their merit consists in being present while the tug on which they were employed rendered nearly two hours’ towage services.

We are not unmindful of the proposition urged in this and like cases that public policy requires generous rewards to be paid to salvors, to encourage and stimulate all parties at hand to aid vessels in distress, and in proper cases we have given it due effect. But in the instant case it is difficult to see how the giving of a large reward to the present libelants, who had so little to do with the salvage services rendered to the New Camelia, can he justified on grounds of public policy. Salvage services are volunteer services. The libelants herein may have been willing, hut they were not volunteers.

Salvage services must he meritorious. The services of the Claribel rendered to the New Camelia were meritorious. If the libelants had been volunteers on the Claribel to enable her to render the services, their services could well be classed as meritorious. As, however, they were regularly paid employés on the Claribel, were not volunteers, and performed no services beyond their ordinary duty, the merit was too remote to justify any considerable reward. The salvage law must be; construed and applied with regard to the rights of property.

A vessel that is so unfortunate as to break its shaft, lose its propelling power, thus putting its owners to delay and expense,ought not to he mulcted with large compensation to alleged rescuers who have been minor factors in rendering assistance. The right of the individual mariner to participate in the salvage compensation earned by his ship has been recognized from an early day, and is based on the proposition that in cases of salvage on the high seas, generally attended with risks to the salving vessel, individual effort and individual risk, voluntarily rendered and assumed, attend and aid the enterprise.

And, notwithstanding the substitution of steam vessels for sailing vessels, the consequent changes in the. abilities of ships to render salvage services and in the duties of mariners, the rule is still recognized and generally applied in every salvage case. The rule — • not a hard and fast rule (see The Key West [C. C.] 11 Fed. 911) — now generally applied in this circuit is to give two-thirds to the owners, and one-third to the master and crew, and among the latter distinguishing in proper cases. With hesitancy, we apply this rule in this case.

The enlightened owner of the Claribel, for the ordinary services rendered by his tug to the New Camelia when she was in distress, made and makes no claim for salvage. If he were before the court, we could see our way clear to reward him for the services he controlled, and furnished with a suitable bonus in addition to the actual value of the services rendered.

To make a large allowance to the present libelants seems to verge on judicial liberality, and to be an unnecessary and an uncalled-for hardship imposed on the owners of the New Camelia, not authorized by the facts and circumstances of the case, and would be based- on the distress of the vessel, rather than on the services rendered. The distress and peril of the ship is the salvors’ opportunity; but, as we ha've said above, the salvors’ services must be volunteer, clear, and meritorious. Taking Mr.

Jahncke’s evidence most favorably to the libelants, and, considering that the towing of the New Camelia was equal to the towing of two barges, the towage services rendered the New Camelia were worth about $30. If doubled to include salvage reward, as is usual in salvage cases where the services are of a low order, the entire salvage services rendered the New Camelia would be fully compensated by an allowance of $60. That is the total sum for salvage which we think can be allowed in this case.

The decree of the district court is reversed, and the cause is remanded, with instructions to enter a decree in favor of the libelants, fixing the sum of $80 as the total amount of salvage for the New Camelia, and awarding one-third thereof to the crew of the Claribel, and distributing to the libelants their proportion thereof, based upon their monthly wages.