THE R. R. RHODES. THE R. R. RHODES v. FAY, 82 F. 751

TAFT, Circuit Judge (after stating the facts). We do not think that we ought to disturb the decree of the district court in this casi;. The action of the court in allowing salvage is one involving judicial discretion, and an appellate court will not set aside the result of the exercise of that discretion by the tidal court unless it has been manifestly abused, — unless, as Chief Justice Marshall expresses it, in The Sybil, 4 Wheat. 98, the award of the district court is so grossly excessive as to shock the conscience of the appellate court. The Comanche, 8 Wall. 448; Hobart v.

Drogan, 10 Pet. 108; The Phœnix, 8 U. S. App. 626, 10 C. C. A. 506, and 62 Fed. 487; The Connemara, 108 U. S. 359, 2 Sup. Ct. 754; The Florence, 38 U. S. App. 32, 18 C. C. A. 240, and 71 Fed. 527. The only point for discussion in the case, therefore, is whether the allowance by the court below was grossly excessive, and not whether, if we had been sitting in the trial court, we would have fixed a somewhat less amount. There was ample evidence to justify the court in finding that the situation of the Rhodes was perilous.

The record does not disclose the exact length of the Rhodes, but it is apparent that, considerably less than one-third of the vessel was grounded upon .the reef, and that this was about amidships. The witnesses for the libelant testify that she was hogged or bent so that her bow and stern sagged below her middle. Whether this be true or not, it is certain that, as she lay there, a heavy wind from the northwest would have destroyed her. It is also apparent that, in the thick and smoky condition of the atmosphere, the prospect of being relieved by other vessels was by no means bright.

It is true that a telegram had been sent to a point 100 miles away for the wrecking steamer, but this could not have been done until the afternoon of Sunday, and it does not appear whether such a steamer was to be had. With all the effort which was made by the crews of both vessels to lighter the Rhodes, they succeeded in throwing overboard but 300 tons of the ore in something less than 24 hours. It is not at all clear that, if they had been dependent upon getting the steamer off by lightering her, they would have succeeded in doing so before Tuesday’s storm was upon them.

It is true that it was in a season of the year'in which, storms were not. usual; but it is also time that storms sometimes occurred at that season, as the storm of Tuesday abundantly proved, and that they are not so exceptional at that time as to justify excluding them from a mariner’s calculation when their occurrence would have been so disastrous as in this case. It is to be noted that it did not need a dangerous storm to imperil the hull and cargo of the Rhodes in her then condition. It needed only a heavy wind, as the captain of the Rhodes, in Ms evidence, fully admits.

So much for the peril which the Rhodes was in. The Rhodes was upon a dangerous reef. Navigation in that vicinity by the Westcott, loaded with iron ore, drawing 14 feet, backing, maneuvering, and running ahead at full speed, as she was obliged to in order to accomplish the release of the Rhodes, was not by any means free from danger to herself. We think it very probable that nothing but the prospect of a substantial reward would have induced the captain of the Westcott to run the risks which he certainly did run in going to the relief of the Rhodes. The Westcott and her cargo were worth about $40,000.

The presence of the bowlders upon the bottom of the lake and on and about the reef is abundantly established by the evidence. It also appears that in her maneuvers the Westcott actually did touch bottom several times, if the testimony of two or three of her witnesses is to be credited. In this state of the record, while wé might, perhaps, have fixed a lower amount were this the original hearing, we are clearly of opinion that in the hearing upon appeal we should not do so.

It is suggested that the amount allowed as salvage to the Westcott is nearly or quite as much as the profits she would have earned in an entire season. This may be true, but we do not see why this circumstance should change the allowance if, as the court must have found, in order to earn this salvage, she put herself and her cargo in jeojiardy. An exception was taken to the libel in its mention of the storm which took place on Tuesday. We think this exception was not well taken.

It was conceded that the condition of the Rhodes would have been practically hopeless had the storm found her on the reef, and the reference to it in the libel and the consideration of it by the court were justified as illustrating the very imperative necessity she was under of losing no time in getting out of her predicament. Such a storm was considered in The Neto and Cargo, 15 Fed. 819, and was thought not to be of particular weight in the case of The Emulous, 1 Sumn. 207, Fed. Cas. No. 4,480; but we do not understand that the court held in the latter case that the evidence was entirely irrelevant.

The storm certainly showed that such a change in the weather was not impossible at that season. The main ingredients to assist the court in determining the amount of salvage are stated by the supreme court of the United States, speaking by Justice Clifford, in the case of The Blackwall, 10 Wall. 1, 14, as follows:

(1) The labor expended, by the salvors in rendering the salvase service.

(2) The promptitude, skill, and energy displayed in rendering the service and saving the property.

(8) The& value of the property employed by the salvors in rendering the service, and the danger to which such property was exposed.

(4) The risk incurred by the salvors in securing the property from the impending peril.

(5) The value of the property saved.

(6) The degree of danger from which the property was rescued. Having due regard to such of these factors as were present in this case, we cannot find the allowance excessive. Something has been said by counsel in argument and in the brief indicating a desire to have this court establish a rule for fixing salvage upon the, Lakes different from that which obtains upon the high seas; and reference was made to a decision by Judge Baxter, in Mattingly v. Cotton, 2 Flip. 288, Fed. Cas. No. 9,294, in which he points out the great differences between cases of salvage upon the Western rivers and those upon the high seas.

The difference recognized is a mere absence from cases of salvage on the rivers of some of the factors which increase the amount of the salvage on the high seas. It is quite certain that the dangers of salvors upon the Lakes are more like the dangers upon the high seas than those upon the Western rivers; hut we do not think it profitable to attempt to lay down any general rule distinguishing salvage upon the Lakes from that on the high seas. Each case must be determined by its own circumstances.

In the present case we hold that the court might reasonably have found impending peril for the steamer salved, and real danger to the steamer and cargo of the salvor, and that the amount allowed by the court below was not so manifestly excessive as to justify us in disturbing it. Another point made by the counsel for the appellant is that thine was a contract for services made between the captain of the Rhodes and the captain of the Westcott, and that this should not be treated as a salvage case, but only as a suit for services upon a contract. The evidence does not bear out this claim.

The language upon which it is based was the mere request for aid by the captain of the stranded vessel to the captain of the vessel then about to aid her. A mere request for aid, without any discussion as to terms, certainly cannot exclude the right to salvage. If so, then all signals of distress must exclude it, for they are certainly requests for aid. The decree of the district court is affirmed.