Post et al. v. Jones et al.

beth Frith was seen at a short distance. The officers of the Richmond immediately went on board, and the master informed the master of the Frith of the disaster which had befallen the Richmond. He requested him to take his crew on board, and said, "You need not whale any more; there is plenty of oil there, which you may take, and get away as soon as possible." On the following day they took on board the Frith about 300 barrels oil from the Richmond. On the 6th, the Panama and the Junior came near; they had not quite completed their cargoes; as there was more oil in the Richmond than they could all take, it was proposed that they also should complete their cargoes in the same way. Captain Tinkham, of the Junior, proposed to take part of the crew of the Richmond, and said he would take part of the oil, "provided it was put up and sold at auction.' In pursuance of this suggestion, advertisements were posted on each of the three vessels, signed by or for the master of the Richmond. On the following day the forms of an auction sale were enacted; the master of the Frith bidding one dollar per barrel for as much as he needed, and the others seventy-five cents. The ship and tackle were sold for five dollars; no money was paid, and no account kept or bill of sale made out. Each vessel took enough to complete her cargo of oil and bone. The transfer was effected in a couple of days, with some trouble and labor, but little or no risk or danger, and the vessels immediately proceeded on their voyage, stopping as usual at the Sandwich Islands.

Now, it is evident, from this statement of the facts, that, although the Richmond was stranded near the shore upon which her crew and even her cargo might have been saved from the dangers of the sea, they were really in no better situation as to ultimate safety than if foundered or disabled in the midst of the Pacific ocean. The crew were glad to escape with their liyes. The ship and cargo, though not actually derelict, must necessarily have been abandoned. The contrivance of an auction sale, under such circumstances, where the master of the Richmond was hopeless, helpless, and passive-where there was no market, no money, no competition-where one party had absolute power, and the other no choice but submissionwhere the vendor must take what is offered or get nothing-is a transaction which has no characteristic of a valid contract. It has been contended by the claimants that it would be a great hardship to treat this sale as a nullity, and thus compel them to assume the character of salvors, because they were not bound to save this property, especially at so great a distance from any port of safety, and in a place where they could have completed their cargo in a short time from their own

Post et al. v. Jones et al.

catchings, and where salvage would be no compensation for the loss of this opportunity. The force of these arguments is fully appreciated, but we think they are not fully sustained by the facts of the case. Whales may have been plenty around their vessels on the 6th and 7th of August, but, judging of the future from the past, the anticipation of filling up their cargo in the few days of the season in which it would be safe to remain, was very uncertain, and barely probable. The whales were retreating towards the north pole, where they could not be pursued, and, though seen in numbers on one day, they would disappear on the next; and, even when seen in greatest numbers, their capture was uncertain. By this transaction, the vessels were enabled to proceed at once on their home voyage; and the certainty of a liberal salvage allowance for the property rescued will be ample compensation for the possible chance of greater profits, by refusing their assistance in saving their neighbor's property.

It has been contended, also, that the sale was justifiable and valid, because it was better for the interests of all concerned to accept what was offered, than suffer a total loss. But this argument proves too much, as it would justify every sale to a salvor. Courts of admiralty will enforce contracts made for salvage service and salvage compensation, where the salvor has not taken advantage of his power to make an unreasonable bargain; but they will not tolerate the doctrine that a salvor can take the 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. (See 1 Sumner, 210.) 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. We are of opinion, therefore, that the claimants have not obtained a valid title to the property in dispute, but must be treated as salvors. 2. As to the amount of ealvage.

While we assent to the general rule stated by this court, in Hobart v. Dorgan, (10 Peters, 119,) that "it is against policy and public convenience to encourage appeals of this sort in matters of discretion," yet it is equally true, that where the law gives a party an appeal, he has a right to demand the conscientious judgment of the appellate court on every question arising in the cause. Hence many cases are to be found where the appellate court have either increased or diminished the allowance of salvage originally made, even where it did not "violate any of the just principles which should regulate the subject." (See The Thetis, 2 Knapp, 410.)

Post et al. v. Jones et al.

Where it is not fixed by statute, the amount of salvage must necessarily rest on an enlarged discretion, according to the circumstances of each case.

The case before us is properly one of derelict. In such cases, it has frequently been asserted, as a general rule, that the compensation should not be more than half nor less than a third of the property saved. But we agree with Dr. Lushington, (The Florence, 20 E. L. and C. R., 622,) "that the reward in derelict cases should be governed by the same principles as other salvage cases-namely, danger to property, value, risk of life, skill, labor, and the duration of the service;" and that "no valid reason can be assigned for fixing a reward for salving derelict property at a moiety or any given proportion; and that the true principle is, adequate reward, according to the circumstances of the case." (See, also, The Thetis, cited above.)

The peculiar circumstances of this case, which distinguish it from all others, and which would justify the most liberal allowance for salvage, is the distance from the home port, twenty: seven thousand miles; and from the Sandwich Islands, the nearest port of safety, five thousand miles. The transfer of the property from the wreck required no extraordinary exertions or hazards, nor any great delay. The greatest loss incurred was the possible chance, that before the season closed in, the salving vessels might have taken a full cargo of their own oil. But we think this uncertain and doubtful speculation will be fairly compensated by the certainty of a moiety of the salved property at the first port of safety.. The libellants claim only the balance, "after deducting salvagend freight," conceding that, under the circumstances, the salvors were entitled to both. When the property was brought to a port of safety, the salvage service was complete, and the salvors should be allowed freight for carrying the owners' moiety over twenty thousand miles to a better market, at the home port. As this case has presented very unusual circumstances, and as we think the claimants have acted in good faith in making their defence, all the taxed costs should be paid out of the fund in court.

The case is therefore remitted to the Circuit Court, to have the amount due to each party adjusted, according to the principles stated.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of New York, and was argued by counsel.

Dupont de Nemours & Co. v. Vance et al.

On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby reversed, and that this cause be and the same is hereby remanded to the said Circuit Court, with directions to have the amount due to each party adjusted, according to the principles stated in the opinion of this court, and that all the costs of said cause in this court, and in the Circuit and District Courts, be paid out of the fund in the said Circuit Court.

E. J. DUPONT DE NEMOURS & Co., LIBELLANTS AND APPELLANTS, v. JOHN VANCE ET AL., CLAIMANTS OF THE BRIG ANN ELIZA

BETH.

To be seaworthy as respects cargo, the hull of a vessel must be so tight, stanch, and strong, as to resist the ordinary action of the sea during the voyage, without damage or loss of cargo.

A jettison, rendered necessary by a peril of the sea, is a loss by such peril within the meaning of the exception contained in bills of lading-aliter, if unseaworthiness of the vessel caused or contributed to the necessity for the jettison. The owner of cargo jettisoned has a maritime lien on the vessel for the contributory share due from the vessel on an adjustment of the general average, which lien may be enforced by a proceeding in rem in the admiralty.

Where the libel alleged a shipment of cargo under a bill of lading, and its non-delivery, and prayed process against the vessel, and the answer set up a jettison rendered necessary by a peril of the sea, and this defensive allegation was sustained by the court, it was held that the libellant was entitled to a decree for the contributory share of general average due from the vessel.

There are no technical rules of variance or departure in pleading in the admiralty.

THIS was an appeal from the Cirouit Court of the United States for the eastern district of Louisiana, sitting in admiralty.

As many points were decided by this court which were not raised in the court below, it is proper to explain to the reader how this happened; and this will best be done by tracing the history of the case from its commencement.

In December, 1852, Dupont de Nemours & Co: shipped at their wharf, on the river Delaware, an invoice of gunpowder in kegs, &c., the value at the place of shipment being, by the invoice, $6,325. The articles were shipped on board the Ann Elizabeth, bound to New Orleans, and owned by the claimants in this cause. Two bills of lading were signed by the mate, and delivered to the shippers. The brig sailed on December 21, 1852.

After the arrival of the vessel at New Orleans, the shippers

Dupont de Nemours & Co. v. Vance et al.

filed a libel in the District Court of the United States for the eastern district of Louisiana, alleging that the following packages were missing, viz:

The libellants therefore held the vessel to her general responsibility for the non-delivery of the articles, and filed the bills of lading as exhibits.

After the usual proceedings in admiralty, John Vance, master and part owner of the brig, intervening for his own interest, and for the interest of the other owners of the brig, filed his answer in June, 1853. In this answer, he gave a narrative of the voyage, and alleged that the articles in question were thrown overboard for the safety of the vessel, and "that unless the same had been thrown over, your respondents believe, and so allege, that the vessel would have filled and gone down."

This answer was sworn to by the proctor and agent of respondent, as being true to the best of his belief or knowledge. Evidence was taken on both sides. For the libellants, it consisted of the testimony of two persons in Delaware to prove the shipment, and the testimony of two persons in New Orleans to prove the unseaworthiness of the vessel, from examinations made after her arrival.

For the claimants, the evidence consisted of the notarial protest of the captain, mate, and three of the crew; and also the tes timony of a stevedore, who unloaded the vessel, to show her sound condition.

Upon this evidence, the cause came on for trial, when the district judge decreed against the stipulators for $5,936.54, less $270.95 freight, equal to $5,665.59, with interest from 15th January, 1853, and costs.

Upon motion of the proctor for the claimants, a rehearing was granted, and fresh evidence was taken. On the part of the libellants, it consisted of the depositions of two persons living in New Orleans, to prove the value of the powder; and on the part of the claimants, the depositions of three persons living in New Orleans, who were not on board of the ship during the voyage. Two testified to the condition of the vessel, and the third to some proceedings respecting an average bond. With this additional evidence, the case came up again, when