THE ELFRIDA. PYMAN et al. v. CLARKE et al., 77 F. 754

SPEER, District Judge. The Elfrida was in ballast bound for the port of Velasco, Tex. This was on the 5th of October, 1895. The Elfrida is a British steamship of 1,454 tons net register, 290 feet long, 38 feet beam, and 20 feet 1 inch in depth. Velasco is a Texas port, a few miles from the mouth of the Brazos river.

In order to increase the depth of water at the mouth of the Brazos, with the consent of the government of the United States, a corporation has constructed jetties extending from either bank of the river about a mile out into the waters of the Gulf, and the outer ends of the jetties, for a distance of about 2,000 feet, are submerged. In the afternoon of the date above mentioned the Elfrida was pursuing her way up the channel in charge of a duly-licensed pilot. She had the advantage of a moderate sea, but there was only five inches between the bottom of the vessel and the bottom of the channel.

She was in about mid-channel, when she suddenly grounded aft, and the wind on her starboard brought her bow upon the submerged western breakwater. The master of the Elfrida at once ran out a kedge anchor from the starboard bow, and hove taut the line thereto with windlass, the engines going full speed, hut could not move the ship. This effort was made with the obvious purpose to haul the bow of the Elfrida away from the jetty, but it resulted unfortunately, for the effect of the easterly wind and rising sea swung the steamship broadside to the jetty.

On the next day, the weather having slightly moderated, the master of the Elfrida put out the starboard bow anchor with 50 fathoms of cable, aud again hauling the cable taut,, waited until high water. This came at about 8 p. m., when the distressed master, after heaving on the anchor and working the engines according to his best judgment, finally concluded to pump the water ballast out of the No. 3 tank, when the ship, thus lightened, drifted over the jetty, and grounded on the landward side. He then let go the port anchor, to prevent her from driving further ashore..

On the next day tire cable chain parted, and the ship drifted further towards the beach. The wire rope aft also parted, and the anchors were, for the time, lost. From that time until ike ship was floated, while there was some variation in the weather, nothing actually occurred which increased her danger. An examination of the ship after she was hauled off indicated that she had not been materially injured. At 7:30 p. m. on the 17th day of October the Elfrida was floated, and proceeded to sea under her own steam to await daylight, so that she might safely enter the river.

The manner of her rescue and the amount of compensation which should properly be awarded the salvors therefor occasioned a controversy which caused a libel in rem against her to be filed in the district court for the Eastern district of Texas. The owners, Pyman, Bell & Co., of Newcastle-upon-Tyne, claimed the Elfrida, and resisted the proceedings. On the trial the district court rendered a decree for $22,000 aud costs against the vessel and the sureties on the bond by means of which she had been released from the custody of the marshal, and from this decree the claimants entered an appeal to this court.

The appellants filed numerous assignments of error, but a majority of the court think that the cause may be tried without specific reference to each and all of these. Definition and analysis of the law controlling the amount of the award in a case of salvage has been frequently made.' In addition to its paramount definition, much eminent authority upon this topic is cited by the supreme court of the United States in the case of Cope v. Dock Co., 119 U. S. 628, 7 Sup. Ct. 336; but perhaps the statement which is the most comprehensive is that given by Sir William 11.

Kennedy, one of the judges of the queen’s bench division, in his recent work “The Law of Civil Salvage.” Some circumstances are always material for consideration, and these have been ascertained by experience, and the court has for its guidance a long course of judicial decisions to assist it in coming to a proper conclusion in each, particular case. These material circumstances which Dr. Lushington, in his judgment in The Charlotte, 3 W. Rob. Adm. 68-71, calls “the many and diverse ingredients of the salvage service,” it is necessary now to consider in detail. These may be classified as follows: (

a) As regards the thing salved:

(1) The degree of danger to human life.

(2) The degree of danger to property.

(3) The value of property salved, (

b) As regards the salvor:

(4) The degree of danger to human life.

(5) Their skill and conduct.

(6) The value of the property employed in the salvage* service.

(7) The danger to which the property is exposed.

(8) The time and labor expended in the performance of the salvage service.

(9) Responsibilities incurred in the performance of the salvage service; such, e. g., as risk to the insurance and liability to passengers or freighters through deviation or delay.

(10) A loss or expense incurred in the performance of the salvage service; such, e. g., as detention, loss of profitable trade, or repair of damage caused to ships, boats, or gear, tinder this subdivision Mr. Justice Kennedy makes an observation similar to that made by the supreme court in the case of Cope v. Dock Co., supra, as follows: “Where all or many of these elements are found to exist, or some of them are found to exist in a high degree, a large reward is given. Where few of them are found, or where they are present in a low degree, the salvage remuneration, is comparatively small.” Kenn. Civ. Salv. 119.

It is to be observed in this enumeration that the ingredient of first importance, both as regards the thing salved and as regards the salvor, is the degree of danger to human life. This was also announced by Lord Sto’well, of whom a biographer has stated that: “The illustrious civilian must have possessed such a practical knowledge of shipping affairs as was probably never before attained by an advocate in the courts which he frequented.” .

He had been born and bred in a seaboard town, Newcastle-upon-Tyne, which it is interesting to observe is the town of the appellants here; and his father, like them, had been actively engaged in its shipping interests, and he himself, after Ms father’s death, carried these on. “What enhances,” he declared, “the pretensions of the salvors most, is the actual danger which they have incurred. The value of human life is that which is and ought to be principally considered in the preservation of other men’s property; and, if this is shown to have been hazarded, it is most highly estimated.” The William Beckford, 3 C.

Rob. Adm. 355-358. See, also, the opinion of Sir John Nichol in The Clifton, 3 Hagg. Adm. 117-121. The most recent expression in the high court of appeal by Lord Justice Lindsley, in the case of The City of Chester, 9 Prob. Div. 182-202, in no degree* departs from the opinion of Lord Stowell above quoted. Said Lord Lindsley: “The first matter of. consideration is the nature of the service rendered, the dangers from which the one ship has been saved, and the danger to which the other ship has been exposed.

Under this head have to be considered the skiff and courage of the salvors, and the risk of life and death, as well to the saved as to the rescuers. A salvage service which, hardly, exceeds ordinary towage is naturally remunera ted on a very different scale from a heroic rescue from imminent destruction.” Critical scrutiny of the record of this cause will fail, we think, to discoter any danger to the lives of the officers and crew of the Elfrida, or of persons engaged in floating her. The weather while the ship was stranded was moderate, and most of the time fine.

There was always communication with the shore by means of a small boat. Indeed, it is not suggested that there waft any danger to the life of anybody concerned, Said Dr. Lushington, in the case of The Thomas Fielden, 32 Law J. Adm. 61, 62: “However grout may ho the (lunger to the property itself,'if it is wholly unattended with the risk to human life, it assumes much less value than when under circumstances where human life is put in peril.” It follows, therefore, that the first and most important element which might otherwise “enhance the pretensions” of the salvors was wholly absent.

We will next inquire: First, what was the present, and, secondly, what the probable future, danger of the Elfrida herself? Most important, perhaps, in this connection was the state of the weather. We have stated, and it may be seen from the testimony of the master and many witnesses, the weather was moderate, and often fine, during the entire period that the Elfrida was aground. Great importance, in this connection, should be attached to the official weather report, which was in evidence.

From this record, kept under the authority of law, it appears that the wind was blowing off shore during the time the vessel was on the beach, except on the afternoon of the 9th of October, and on the 10th, 11th, 12th, 15th, Kith, and 17th. The maximum velocity of the wind while the vessel was on the beach was 28 miles on the 8th of October, but, since the direction of the wind at that time was from the north, it was off shore, and could not; affect her. While blowing on shore, (he maximum velocity was 14 miles an hour, and the minimum 3 miles. It was clear all the while.

An important feature is the testimony of Hutchins, a, witness for libelants, who had been superintendent; of the life-saving station on the Gulf of Mexico for 13 years. He testifies that the shore where the vessel stranded is very fiat, sloping out. gradually. A depth of 9 feet of water would not be reached inside of 1,200 feet from the shore, and a depth of 14 or 15 feet could not be attained at less than three-quarters of a mile. The1 breakers, he testifies, are in 1.2 or 16 feet of waier, bui only the spent force of the waves flows from that point upon the beach.

Since the steamship was in 9 feet of water at high fide, it is plain that she was well inside the line where the force of the waves in the usual weather of that period of the year could have affected her with serious results. She was directly head on to the shore. She was erect, and lay easily in the bed she had made for herself in the quicksand which on that coast, unlike the sands of the Atlantic seaboard, had a tough, clay foundation. The tides could not have produced any material effect on her condition. We have the valuable assistance of the tide record, produced and verified by the testimony of Lieut.

Judson, of the corps of engineers, U. S. A. This was taken at Galveston, which differs little from those at Velasco, 40 miles away. The rise of the tide during the time that the Elfrida was ashore was from 2 feet 9 inches up to 8 feet 3 inches and down to 2 feet. It is expressly admitted in the amended libel that the vessel was lying in about 9 feet water at the highest point of high tide.

The Elfrida was at no time seriously imbedded in the sand, and the ease and rapidity with which she was drawn off into deep water by the power of her own engines, attached with hawsers to anchors which were put out by the salvors, would seem.to indicate that, had she herself the facilities for putting out her own anchors, she might have been floated without any assistance whatever.

It is true that a dangerous storm from the southward was possible, but the official records kept at Galveston indicate that for the past 20 years the prevailing direction of the wind in the month of October was southeast; with an average velocity of only 10 miles an hoar, and for the months of November and December the prevailing direction of the wind was from the north, and the average velocity was 9 or 10 miles.

Further, it appears from the testimony of E'utchins, superintendent of the lifesaving station, who was perhaps the most experienced observer introduced by the libelants, that during the 13 years of his experience on that coast he had never known of an iron steamer which was stranded and lost. One, at a point 250 miles from Galveston, had been somewhat injured, but was rescued in 11 days. On the whole, it appears from the character of the bottom, the smooth waters and gentle winds which are to be expected in that soft climate in a month notable for its mildness, that the Elfrida was in little danger.

The witness Smith, who testified for the libelants, stated with regard to that locality: “You can almost take anything off the beach. The question is whether it is worth it.” Many of the witnesses testified that vessels ashore on the Texas coast work their way around in different directions for considerable distances, and are finally rescued.

One witness, Smith, testified that it was much better for the vessel that she should be on the ground, because then she would not thump and hurt herself. “The way we do,” he said, “when they begin to go aground, is to pump full their ballast tanks at once,- so as to make them lie steady. When they lay in the bed of sand, they are better off than if they were rising up and down, and striking the bottom.” The Elfrida aground had two feet less of water at her bow than at her stern, and in pulling her down the gradual decline to deep water it was as if she was sliding down hill.

Again, the amount of skill exerted by the salvors .was nothing’ uncommon or extraordinary. A small schooner in tow of a tugboat conveyed the salvage equipment from Galveston to Velasco. In quiet waters, at Velasco, the anchors were transferred from the schooner to a barge, and from the barge were planted on the steamer’s starboard quarter. The anchors of the Elfrida were planted on the port quarter, and the fifth anchor on the starboard side.

Ropes and cables were attached to the chain cables and carried aboard the Elfrida, and each cable was attached to the drum of two winches,. and, as we have seen, the ElMda’s engines and steam, straining on ihe cables for about four hours, hauled her over the sands to deep water. Nor was the value of the equipment used by the salvors or special importance. A small schooner, chartered to take the anchors from Galveston to Yelasco for the sum of $100, a barge said to be worth about $6,500, is about all of this plant concerning which there is definite evidence.

The value of the anchors and cables used by the salvors is not given. There were 15 or 16 men employed; and, as we have seen; there was no unusual danger to either life or property, and the time and labor expended, including everything that was done from the 13th, when the salvors began their preparations in Galveston, until half past 7 o’clock on the 16th, was only , three days. At the hour last mentioned the Elfrida was afloat, and proceeded to sea under her own steam. The actual time engaged in hauling her off the sand was about four hours.

There was little responsibility, and no loss or expense other than that necessarily implied from the work of the salvors heretofore stated. It further appears from the evidence that in other respects the condition of the Elfrida was by no means unfavorable. She was only lightly aground, and at high-water mark her stern was afloat. By discharging her water ballast and coal, it is plain she might have lightened her draught so that she would not be aground, or, if aground at all, sin; would be resting very lightly on quicksand. She had sustained no injury.

Her machinery, while strained, was in good working, order, and possessed all its power. In a large measure, the jetties protected her from easterly winds. Had the winds blown from the north, it would have been distinctly favorable, and, had they worn around to the southward, scarcely less so, for at that season the evidence strongly indicates that severe winds were not experienced from southerly points.

The official local forecast at Galveston for 20 years was in evidence, and it shows that the prevalent winds in the month of October were from the southeast, with an average velocity of only 10 miles an hour; and during the same period in the months of November and December the winds were from the north, with an average hourly velocity of 9 and 10 miles, respectively. Indeed, it is rarely the case that so many favorable conditions attend a vessel which needed salvage service. A.

Govenney, the pilot, whose testimony, while offered for complainants, was strongly colored for the salvors, nevertheless stated that, had the vessel been supplied with suitable anchors and cables, he could probably have gotten her off with such a tide. This is, besides, plainly apparent from the ease with which the libelants floated her with no other power than that afforded by her own engines. Her value was about $70,000.

It is contended by the appellees with great earnestness and ability on the part of their learned advocate in this case, that there was a definite agreement for salvage compensation, and that the court should not disturb it. although it may exceed the amount of what would otherwise be deemed as proper compensation, and the case of The Agnes I. Grace, 2 C. C. A. 581, 51 Fed. 959, and 2 U. S. App. 317, and other authorities, are cited in support of this proposition. ■ The language of Dr.

Lushington, as quoted in the case mentioned, is as follows: “When there had been a definite and distinct agreement, with ample time for the parties to consider what they are doing, the court would be reluctant to interfere with it.” This principle is otherwise expressed by the supreme court of the United States in Post v.

Jones, 19 How. 150: “Courts of admiralty will enforce a contract made for salvage service and salvage compensation where the salvor has not taken advantage of his power to make an unreasonable bargain.” While this is true, there is abundant authority for courts of admiralty to exercise the power of setting aside agreements for excessive compensation on account of salvage services. This principle was ascertained and clearly expressed very early in the evolution of the law.

The small island of Oleron, off the west coast of Prance, the “Uliaras Insula” of Pliny, gave its name to the medieval code of sea laws described in the Black Book of the Admiralty as the “La!ws of Oleron.” The earliest text extant is in the handwriting of the fourteenth century, and is contained in the Liber Memorandorum of the Corporation of the City of London, and is preserved in the archives of their Guildhall.

Judicial historians have stated that Richard Cceur de Lion, on his return from the Holy Land, remained some time in the Island of Oleron, and is entitled to the honor of producing these laws while there. It is, however, stated, by Mr. Benedict, in a note to his valuable work on Admiralty, that Pardessus has clearly shown that the Laws of Oleron were not the production of Richard I.

It seems to be accepted now that Eleanor, duchess of Aquitaine and Guienne, consort of Louis VH. of Prance, but subsequently divorced from him, and married to Henry II. of England, and who became the mother of the Lion Heart, having observed, during her visit to the Holy Land in company with Louis, that a similar collection of maritime customs and ordinances in the Catalan language, called “Lo Libre de Consulat,” was generally respected in the Levant, directed that the judgments of the maritime court of the island of Oleron — at that time a peculiar court of the duchy of Guienne — should Ibe made, that they might serve as law for the mariners of the neighboring seas.

It is also accepted that Richard I. brought to England a roll of these judgments, which he published, and ordained to be observed as law. Enc.

Brit. art. “Sea Laws.” This interesting medieval compilation of maritime judgments announces this rule: “And yf it were so, that tbe mayster and the marchauntes have promised to folke, that should helpe them to save the shyp and the said goodes, the thyrde parte or half of the said goodes which shuld be saved for the peryll that they be in, the justice of the country ought well to regarde what payne and what labour they have done in saving them, and after that payne, notwithstanding that promise which the mayster and the marchauntes shall have made, rewarde them.

This is the judgment.” The principle of this sententious deliverance is universally accepted by the courts and announced by the text writers upon this topic. Of such contracts, it is stated in 2 Pars.

Shipp. & Adm. p. :>06, that they are “enforced by the court only so far as it seems equitable, and conformable to the merits of the case, and are wholly disregarded if (hey are deemed unconscionable and oppressive to the owners of (.he properly saved.” In Jones, Salv. pp. 97, 98, it is said: “The court will also refuse to recognize an agreement where the master improperly or recklessly contraéis to pay the salvors an exorbitant amount. * * * If, on the other hand, the agreement should be unjust, or inequitable towards tbe salvors, the court will refuse to recognize it,” and allow them adequate compensation.

In The Phantom, L. R. 1. Adm. & Ecc. 58, Dr.

Lushington (page OJ) said: “However much it has been agreed upon by both parties, the court is in the habit of overruling such an agreement, if it is unjust and inequitable.” In his well-known work on Wreck and Salvage (section 119), Judge Marvin, who for many years presided in the district court of the United States at Key West, where numerous salvage cases were fried, uses this language: “And such an agreement will not bo binding upon the master, or owner of the properly unless the court can clearly see that no advantage has been taken of the parly's situation, and that the rate of compensation agreed upon is just and reasonable.” And the illustrious Story, in The Emulous, 3 Sumn. 207 (at pages 230, 213), Fed.

Cas. No. 4,480, declares that: “No system of jurisprudence founded upon moral or religious, or even rational, principles, could tolerate for a moment the doctrine that a salvor might avail himself of the calamities of others to force upon them a contract unjust, oppressive, and exorbitant; that he might turn the price of safety into the price of ruin; that he might turn

an act, demanded by Christian and public duty, into a traffic of profit, which would outrage human feelings, and disgrace human justice.” The principle is also adopted by the imperial government of Germany: “When, (luring the danger, an agreement has been made as to the amount of the salvage or payment for assistance, such agreement may nevertheless be disputed on the plea that the amount agreed upon was excessive; and the reduction of the same to an amount more in accordance with the circumstances of the case may be demanded.” German Commercial Code, art 748; translated in Wendt, Mar.

Leg. (3d Ed.) London, 1888, p. 751. Kee, also, The Ellen Holgate, 8 Fed. Cas. 509; The Rialto [1891] Prob. 175; Post v. Jones, 39 How. 150.

In the case last quoted, the supreme court observes: “Courts of admiralty will enforce contracts made for salvage service and salvage compensation where the salvor has not taken advantage of Ills power to make an unreasonable bargain; but they will not tolerate the doctrine that a salvor can lake advantage of his situation, and avail himself of the calamities of others, to drive a bargain; nor will they permit the performance of a public duty to be turned into a traffic of profit.

The general Interests of commerce will be much better promoted by requiring the salvor to trust for compensation to the liberal recompense usually awarded by courts for such services.” Nor is it necessary, to avoid such a contract, that the owner should show such fraud or duress as would vitiate a contract at law.

Sir William Kennedy, in his Law of Civil Salvage (page 208), states: “It is not, however, it is submitted, only where it is proved- that there has been unfair dealing in the shape of fraud or misrepresentation, or practical compulsion, that the court will interfere with an agreement which fixes a grossly excessive remuneration.

Evidence of any such unfair dealing greatly strengthens, of course, the ease against the agreement; but, even without such evidence, if it finds the exorbitancy to exist, however that exorbitancy originated, the court will, alike on principle and authority, be justified in setting aside the agreement.” Indeed, the jurisdiction of a court of admiralty to set aside an excessive salvage contract was exercised, as we have seen, in the time of Richard I., and it does not appear that contracts and other instruments were canceled by the courts of chancery before the reign of Henry VI., 2£ centuries later. 1 Spence, Eq.

Jur. (Philadelphia, 1846) p. 624. We conclude, therefore, that the learned district judge was in error when he became of the opinion that he could not set aside the agreement for salvage except upon such evidence as would justify a court of equity in relieving a party from the obligation of a contract. There remains to be determined whether the award of the circuit court should be reduced because the amount stipulated as compensation for salvage in' the contract and allowed by the final decree is unreasonable, excessive, and oppressive.

We have seen that the salvage services were neither onerous, arduous, responsible, dangerous, or unusually skillful, or long of duration. Nor was the master, when he agreed to pay the enormous sum of $22,000 for the relief of his vessel, on an equal footing with the experienced salvor, Clarke, who made the contract. Clarke was perfectly familiar with the coast. , He knew the dangers and opportunities of success. His experience was great. He had never failed to float a ship on that coast. The master was a young and inexperienced man, only 28 years of age..

The locality was unknown to him; and how his excitement, anxiety, and inexperience would enhance to him the dangers of the situation may be readily understood. He was informed by Clarke that sand would bank around his ship, and this did not appear to be true. It was made to appear to the master that Clarke and he only had the equipment for hauling the ship off. The danger of the Elfrida was' greatly exaggerated.

It is true that Clarke had originally offered to perform the service for what a court of admiralty would allow him, but we can well understand how alarming this proposition would be to the young master of the ship. The mention of litigation is terrible to a seaman, and the proposition was declined. But Clarke afterwards positively refused to render any assistance to the ship except upon a contract to pay $22,000 for the service, and Brock, who it seems owned the barge, gave the same refusal.

The G-alveston Lighterage Company was asked by the ship’s agent if they would send tugs and appliances to Velasco to assist the ship, and, after consultation, they refused. To the master it must hare seemed that, if he failed to seeure Clarke, his vessel was inevitably lost; and yet it is probable that he might have secured a lighter, planted his own anchors, and pulled his vessel off by the use of her engines, without any assistance from Clarke whatever. The owners of the ship also were ignorant of the true condition.

The master was gravely in error when he failed to advise them that a tender had been made to perform the services for such a sum as the admiralty court would allow. It is clear that they would have accepted this proposition. They accepted the contract with the understanding that they liad no other option, and it may be seen how desperate they regarded the condition of their vessel when they insisted that the salvors should take the vessel itself in certain contingencies.

They testified that, if they had known that she was lying easily head on to the beach, with little or no accumulation of sand about her, with a depth of water only a foot less than her draught would have been with her ballast tanks empty, with fine weather, likely to continue, with no immediate danger, probably they would never have authorized the agreement for a sum so unconscionable. There are many cases where, for much greater services, and on much greater values, and with much more of difficulty and danger to the salvors, a less sum has been allowed by the court.

Perhaps the most pertinent of these is The Hesper, 18 Fed. 696, decided in this circuit by the distinguished senior circuit judge. See, also, The Guadalupe, 20 Fed. 443; Pent v. Ocean Belle, 19 Fed. Cas. 200; The Diadem, 7 Fed. Cas. 632; The North Erin, 71 Fed. 430. Much reliance is placed by counsel for appellee upon the case of The Agnes I. Grace, 2 U. S. App. 325, 2 C. C. A. 581, and 51 Fed. 958. In that case, however, the ship in distress was a sailing vessel. She had, at high water, passed over shoals for more than two miles, where at low water the depth is only from one to three feet.

She was exposed to the full force of the Atlantic. She was in quicksand, on a coast where it is universally true that a vessel so situated rapidly sinks out of sight. The case of the United States steamship Huron, off Kitty Hawk, and the ocean steamship vessel City of Savannah, ashore off Hilton Head, in their rapid disappearance from sight, are instances of the treacherous and dangerous character of the Atlantic quicksands. Besides, the Grace was 2J or 3 feet in the sand, and a hole had been knocked in her bottom. The tide rose and fell in her hold. She was rapidly filling with sand.

The salvors were engaged for several days in very dangerous work, both to themselves and very valuable tugboats, in the successful attempt to rescue her, and she was so damaged that it was only by the rapid and constant work of a powerful wrecking pump she was kept afloat at all. The value of the tugs and other equipment seriously jeopardized in her recovery were very much greater than the meager equipment used in the rescue of the Elfrida. The case, therefore, is in no sense parallel to that before the court.

For the reasons stated, a majority of the court are of the opinion that the decree of the district court should be reversed, and set aside, and we find that a decree should be entered for the appellees for the sum of $10,000, which sum, in view of all the facts, we regard as ample compensation for the salvage services rendered. We further find that the appellants shall pay the costs of the court.below, and the appellees the cost of the appeal. It will be so ordered.