GILBRAITH et al. v. STEWART TRANSP. CO., 121 F. 540

GROSSCUP, Circuit Judge, after stating the facts as above, delivered the opinion of the court: The crew of a vessel, under articles for wages, can become general salvors, only after the vessel has become a shipwreck, without hope of recovery, and the crew discharged from further service. This general doctrine is not disputed. But it is insisted that, under certain circumstances, the crew though under articles for wages may become special salvors. Such relation arises, it is said, when the service rendered is arduous, perilous and meritorious, and under circumstances extraordinary in character.

The argument is based fgr authority chiefly upon a dictum of Justice Story, in Hobart v. Drogan, 10 Pet. 122, 9 L. Ed. 363. None of the cases actually decided exemplify the application of any such rule. It is needless to restate their facts in detail. In none of them was there given to the claimants more than their transportation from the place of accident to their homes, and their sustenance, or such sums as would equal their sustenance, during that interval.

But even this, meagre as it appears, is said by counsel to be a species of special salvage, and to illustrate the principle, if not the measure, of compensation that ought to be applied to the case und^r consideration. The argument has not won our concurrence. We do not doubt, that under the law, preexisting the recent legislation of Congress, freight was regarded as the mother of wages, and upon •■‘he loss of freight, wages ceased.

But though in that state of maritime law, transportation home, and sustenance during that interval, were not, in strict logic, the payment of wages, they need not, by that fact alone, be attributed to the enforcement of any doctrine recognizing special salvage. The feeling underlying these early decrees was the dictate of humanity that shrinks from leaving a shipwrecked sailor on a distant shore, and, in cases of such catastrophe, added to the obligation of the master to pay wages, the further obligation to bring his crew home.

To reach such a result there existed no need to build up a doctrine of special salvage, or in other ways than the one object to be attained, break into the settled law of ship and crew. But though the argument be accepted, the element upon which it is based is wanting in the case under consideration. There was no abandonment of the steamer “Bielman.” The seamen lost nothing by the loss of freight; for, under existing law, the running of their contract for wages continued. The service rendered, in lightering the vessel, was different, in degree only, from the usual service in boisterous weather.

What appellants did, plainly was within their duty as seamen, and was therefore paid for by the wages stipulated in the articles of employment. The decree of the District Court is affirmed.