The case of Jones v. Holm, L. R. 2 Exch. 335, was a different case. By a charter-party, a vessel was to go to a specified port and take a specified cargo and deliver it at Liverpool for a specified freight. She went to the port and was partly laden, when she was so damaged by fire that she was scuttled. The cargo was injured and sold, except a small part, not on board, which was forwarded to Liverpool by the master. The vessel was repaired and tendered to take the remainder of the cargo., The charterer refused to supply more cargo, and the vessel obtained a cargo and carried it to England at a less freight than she would have earned for a full freight under the charter-party. In a suit to recover damages for a breach of the charter-party, it was held that the charterer was bound to complete the lading of the vessel.

The authority of the case of Curling v. Long is recognized in Bailey ▼. Damon, 3 Gray, 94; Burgess v. Gun, 3 Har. & J. 225; Clemson v. Davidson, 5 Bin. 392; and in various text-books. 3 Kent's Comm. 223; 1 Parsons, Shipp. & Adm. 220; Abb. Shipp. (11th Lond. Ed.) 407; Maclachlan, Shipp. (2d Ed.) 458; Smith, Merc. Law, (3d. Am. Ed.) 400.

On principle this case falls within the rule that where the stipulations of a contract are interdependent, a defendant cannot be sued for the non-performance of stipulations on his part which were dependent on conditions which the plaintiff has not performed. The ship-owner was entitled to freight only for carrying the cargo and delivering it at Liverpool, with the implied covenant that this particular vessel was to take it on board and enter on the voyage. Before that event occurred this vessel was substantially put out of existence by no fault of the shipper, and he had and could have no benefit from the contract. He had a right, therefore, to treat the contract as rescinded, so far as any liability for freight was concerned. In Taylor v. Caldwell, 3 Best & S. 826, it is laid down as a rule that "in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance." The reason given for the rule is that without "any express stipulation that the destruction of the person or thing shall excuse the performance," "that excuse is by law implied, because from the nature of the contract it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel." The rule was there applied to excuse the owner of a music hall which had been burned from fulfilling a con

tract to let the use of it. The principle was extended further in Appleby v. Myers, L. R. 2 C. P. 651. There the plaintiffs contracted to erect certain machinery on the defendant's premises at specific prices for particular portions, and to keep it in repair for two years, the price to be paid upon completion of the whole. After some portions of the work had been finished, and others were in the course of completion, the premises, with all the machinery and materials thereon, were destroyed by an accidental fire. It was held that both parties were excused from the further performance of the contract, and that the plaintiffs were not entitled to sue in respect to those portions of work which had been completed, whether the materials used had become the property of the defendant or not. See Benj. Sales, (3d Amer. Ed.) § 570; Wells v. Calnan, 107 Mass. 514, and cases there cited.

These principles are so well established that it is only necessary to refer to one case in this court, (Jones v. U. S. 96 U. S. 24,) which recognizes them, in which it is said:

"Where an act is to be performed by the plaintiff before the accruing of the defendant's liability under his contract, the plaintiff must prove either his performance of such condition precedent, or an offer to perform it which the defendant rejected, or his readiness to fulfill the condition until the defendant discharged him from so doing, or prevented the execution of the matter which the contract required him to perform. * A contract may be so framed

that the promises upon one side may be dependent on the promises upon the other, so that no action can be maintained, founded on the written contract, without showing that the plaintiff has performed, or at least has been ready, if allowed by the other party, to perform his own stipulations, which are a condition precedent to his right of action."

On a full consideration of the case, we are of opinion that the decree of the circuit court must be affirmed.

V.2--48

(108 U. S. 352)

THE CONNEMARA and THE JOSEPH COOPER, Jr.

SINCLAIR and another v. COOPER and others.

(April 30, 1883.)

SALVAGE SERVICE-ALTERING DECREE OF SALVAGE BY CIRCUIT COURT-EXCESSIVE AWARD-ACT OF FEBRUARY 16, 1875, c. 77.

A ship towed by a steam-tug down a river came to anchor in the evening, and the tug was lashed to her side. In the night, no watch having been set, a passenger on board of her was awakened by a smell of smoke arising from a fire, which had broken out in part of the cargo stored in the poop, and which endangered the ship and cargo. He gave the alarm to the officers and crews of the ship and of the tug; and he and the officers, crew, and passengers of the tug, working together, and by means of a steam-pump and hose upon the tug, and unaided by the officers and crew of the ship, put out the fire in 20 minutes. Held, that this was a salvage service, and that the passenger on board the ship, as well as the owner, officers, crew, and passengers of the tug, might share in the salvage.

Under the act of congress of February 16, 1875, c. 77, a decree of salvage by the circuit court is not to be altered by this court for excess in the amount awarded, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case.

Appeal from the Circuit Court of the United States for the District of Louisiana.

P. Phillips, Jas. McConnell, and Wm. Hallett Phillips, for appellants.

Richard De Gray, J. R. Beckwith, and Chas. W. Hornor, for ap pellees.

GRAY, J. This is a libel in admiralty by the owner, master, and crew of the steam tow-boat Joseph Cooper, Jr., for salvage on the ship Connemara and cargo. Louis Wurtz and Henry Holser, passengers on the tow-boat, and John Evers, a passenger on the ship, were permitted to file intervening libels. The value of the ship and cargo was agreed to be $236,637. The district court awarded as salvage 8 per cent. on that value, or $18,930.96, and the owners and claimants of the ship appealed to the circuit. court.

The circuit court found the following facts:

On the fifteenth of April, 1879, the ship Connemara, being in the port of New Orleans, with her cargo on board, consisting chiefly of pressed cotton, and bound on a voyage for Liverpool, England, engaged the tow-boat Joseph Cooper, Jr., to tow her to the mouth of the Mississippi river, and was by her towed about 26 miles down the river, and came to anchor about 8 o'clock in the evening opposite the Belair plantation. About 11 o'clock at night the ship,

with the tow-boat lashed to her side, was lying with her bow to the current and her stern to the wind, which was blowing stiffly,-no watch had been set, and the two mates and the boatswain of the ship were under the influence of liquor, but the captain and the rest of the crew were sober. Evers, a passenger on board the ship, being then asleep in the second mate's cabin, was awakened by a smoke of burning cotton, sprang from his berth, and gave the alarm to the officers and crew of the ship and of the tow-boat. The fire was not in the hold, but in the poop above the main deck, and near the door, which could be opened by raising the latch; and the fire, when discovered, was confined to three bales of cotton, a spare sail, and two coils of tarred rope. There were 127 bales of cotton stowed in the poop. The fire was not caused by the fault of the tow-boat, or by any defect in her equipment or management. The tow-boat had on her deck a pump worked by steam, and hose long enough to reach the fire on the ship. As soon as the alarm was given, and by the exertions of the tow-boat's officers and crew, of her two passengers and of Evers, the hose was laid from the pump to the deck of the ship, and by their use of this pump and hose the fire was put out in 15 or 20 minutes, without any damage to ship or cargo, beyond the burning of the sail and the two coils of rope, the partial burning of the three bales of cotton, and the charring of a part of the upper deck or roof of the poop. In extinguishing the fire there was no serious risk of loss or damage to the towboat, or of injury to life or limb of any of the salvors. No efficient effort was made by the officers or the crew of the ship to extinguish the fire. The ship had on her deck, within 15 feet of the fire, two tanks of water, holding 400 gallons each, one of which was full and the other half full, with six buckets near the fire and seven above, and a pump by which water could have been pumped upon the upper deck. At the time of the fire the steam-tug Harry Wright was lying about a quarter of a mile off; and there was a telegraph station on the Belair plantation, from which a dispatch could have been sent to the city of New Orleans for aid to put out the fire, and efficient aid might have reached the ship from the city in two hours and a half after notice. The agreed value, as aforesaid, of the Connemara and cargo, and the names and monthly wages of each of the officers and crew of the Joseph Cooper, Jr., were also stated in the findings of fact.

From these facts the circuit court made and stated the following as conclusions of law:

(1) The services rendered by the tow-boat Joseph Cooper, Jr., her officers and crew, and the three passengers, Wurtz, Holzer, and Evers, in the extinguishment of the fire on board the ship Connemara, were a salvage service; (2) a gross salvage on the ship and cargo of $14,198, or 6 per cent. on the value thereof, should be allowed; (3) this salvage should be equally divided half to the owner of the tow-boat, and half to the salvors; (4) the moiety allowed to the salvors should be distributed among them in proportion to their monthly wages, the passengers Wurtz and Evers to rank as pilots, and Holser

as a steersman.

A decree was entered accordingly, and the claimants appealed to this court. A motion to dismiss the appeal for want of jurisdiction was made and overruled at October term, 1880. The Connemara, 103 U. S. 754.

The errors assigned are: First, that the facts found do not constitute a salvage service; second, that, if a salvage service, it is salvage of the lowest grade, and the amount allowed is exorbitant; third, that the amount allowed to John Evers, he being a passenger on board the Connemara, is not warranted by law.

Neither of the grounds assigned will justify this court in reversing the decree.

If the fire, which had made such headway as to wholly consume the two coils of tarred rope and the spare sail, and to partly destroy three bales of the cotton stowed in the poop, had not been promptly discovered and extinguished, there was imminent danger that it would extend to the rest of that cotton, and, fanned by the stiff breeze which was blowing lengthwise of the ship, destroy or greatly damage the ship and the whole cargo. Saving a ship from imminent danger of destruction by fire is as much a salvage service as saving her from other perils of the seas. The Blackwall, 10 Wall. 1. The shortness of the time occupied in rescuing the ship from danger does not lessen the merit of the service. The General Palmer, 5 Notes Cas. 159, note; The Syrian, 2 Marit. Law Cas. 387; Sonderburg v. Ocean Tou-boat Co. 3 Woods, 146. The danger being real and imminent, it is not necessary, in order to make out a salvage service, that escape by other means should be impossible. Talbot v. Seeman, 1 Cranch, 1, 42.

The fact that no serious risk was incurred on the part of the salvors does not change the nature of the service, although an important element in estimating its merit and the amount of the reward. As has been well said by Mr. Justice CURTIS, "the relief of property from an impending peril of the sea, by the voluntary exertions of those who are under no legal obligation to render assistance, and the consequent ultimate safety of the property, constitute a case of salvage. It may be a case of more or less merit, according to the degree of peril in which the property was, and the danger and difficulty of relieving it. But these circumstances affect the degree of the service, not its nature." The Alphonso, 1 Curt. 376, 378.

The contract of the tow-boat and her officers and crew was to tow the ship, and did not include the rendering of any salvage service by