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SEAMEN AS SALVORS.
professional duty, may be treated judicially as a salvor, is fully sustained by the authorities usually cited and relied upon. Vide The City of Edinburgh, 3 Hagg. 333; Hand v. Elvira, Gilpin, 60; Hobart et al. v. Drogan et al. 10 Pet. 108.
So seamen may, in certain contingencies, become salvors of their own as well as other vessels. While, indeed, under a continuing contract, and in the customary discharge of his stipulated duty, which requires him to do his utmost for the navigation and preservation of his own vessel, to which he owes allegiance, a seaman is not to be deemed capable of acquiring the character of salvor and so entitled to salvage compensation. But when, by a termination of the mariner's contract, practical or theoretical, actual or constructive, a seaman is deserted and left solitary and alone, and with his consent, as Toole in the Blaireau, or without his consent, as was Knowlton's case in the Triumph (1 Sprague, 428); or where a mariner by his shipmates is abandoned, but with the master's consent or order, at all events, the crew following the master's example, it would seem that a seaman, in such situation, ought not to be excluded from salvage reward, if he shall have really performed a salvage service. The John Perkins, in 21 Law Rep. 87; S. C. 19 ibid. 99. In all its varied aspects, the Admiralty Court, without a servile devotion to any technical rule, should exercise a sound judicial discretion, in weighing the facts and estimating the value and merit of any service rendered under so perilous a predicament. Toole's service in the Blaireau, and Knowlton's in the Triumph, was to their own vessel; Nickerson's may possibly have been beneficial to both. his own and another's vessel.
And if the court be not prohibited by some express, inflexible, and well-established rule of maritime law, it should generally endeavor to do some justice, as did Judge Ware toward one of the crew of the Wyvern for contributing, accidentally or providentially, to the ultimate safety of the John Perkins, (19 Law Rep.).
Hence the reversal by the Circuit Court of this decree of the District Court has ever seemed to have been made in obedience to a harsh technical rule, and, ex industria, to uphold that rule, without qualification. It was followed too closely and adhered to too tenaciously. As it now stands, however, the decision must still be deemed an authority; though not without the possible chance of a reëxamination at least, if not some substantial modification or qualification of the Circuit Court's adjudication or opinion.
For three dismal days, the deserted, if not disheartened seaman, Nickerson, remained in gloomy solitude, by the Wyvern, while embedded in ice, on a bleak coast, unaided by his shipmates and without orders from his commander; during that trying period, he performed acts alleged and once adjudged to have been beneficial to another vessel, the John Perkins. These acts may have saved that other vessel from possible destruction; upon this hypothesis, at any rate, the case was heard and determined. Assuming such to be the fact, might not these acts, like the conduct of Toole and Knowlton, have supplemental merit? If so, they would present a similar claim, in fact and principle, to judicial recognition and appreciation in admiralty. Dr. Lushington concluded that "an abandonment at sea does vacate the contract." In The Florence, 20 Eng. L. & Eq. Rep. 613, he said: "The true question is, whether
there was a vis major of so permanent a character as to dissolve the contract; permanent, according to all human probability, for the law never can depend upon mere possibilities." "The contract with the mariners was then at an end-not suspended, but terminated." An abandonment by the master, in apprehension of danger and to save life, is justifiable because necessary. And such an act, done bona fide, not only suspends but terminates the mariner's contract; and once terminated, nothing but a fresh agreement can properly resuscitate it. In the same case (p. 614), the court say that "if capture alone puts an end to a contract, which appears to have been the leaning of Lord Stowell, then, a fortiori, abandonment ex necessitate would do so." And every abandonment by a master should be presumed to be a necessary abandonment, and, it would seem, whether at sea or on the coast, though there is an admitted distinction.
Had the master's temporary separation from the Wyvern proved permanent, though the master may have been justified, the seaman would have been applauded. Even if bound by contract to the Wyvern, the seaman was not so bound to the John Perkins, and if the owners of the one might avail themselves of this plea, the owners of the other vessel surely could not; for there was no subsisting contract between them and Nickerson, the seaman. Was he, then, rightfully excluded from asserting a salvage claim against the latter, merely because he may have owed allegiance to the vessel of the former, under a possibly continuing and subsisting contract with them as owners of the Wyvern?
It really appears, that this precise technical rule was
AGENTS AND OTHERS AS SALVORS.
in the John Perkins pushed by the court to an extreme; and the decision seems hardly in harmony with the primary principles of the admiralty, or with that liberal and indulgent spirit, in which admiralty law should usually be administered. Judge Story would digress in the discussion, and go out of his way to seek to solace or sustain his "wards or favorites in admiralty." The main purpose in administering this special branch of jurisprudence is or should be to do right, and tolerate no wrong; in other words, to do justice firmly but fairly. Its administration should be conducted with tenderness toward the mariner, courage toward the master or merchant, but with fidelity and justice toward all who sue for its protection, or challenge its penalties.
In this spirit, in 1 Spinks, 17, The Medora, Dr. Lushington, following the example of his three immediate predecessors in office, stated that the true rule and correct practice was "to get at the truth;" while in Dexter v. Munroe, 2 Sprague, 39, Judge Sprague says, "admiralty is not restrained from doing substantial justice by mere forms or technicalities," but that it has power by its process "to do complete justice" to all parties.
These two conspicuous admiralty magistrates, like Lord Stowell, signally displayed, during their long judicial careers, those high qualities which often only long experience can confer and develop; and which, with culture, candor, courtesy, and courage on the bench, contribute to create, exemplify, and illustrate the character of a model administrator of admiralty law.
Others also may be salvors, as agents and magistrates under extraordinary circumstances; or persons giving information or advice, if contributing to any beneficial result. But no cases of leading importance
OWNERS AS SALVORS.
are reported unless that already cited of Towle v. The Great Eastern, 11 L. T. (N. S.) 516.
It remains now to recur to the status of ship-owners in salvage cases. Good sense, good principle, sound law, and true policy all concur in recognizing owners as persons having a standing in court, and fit persons to be made parties in claims for salvage, though formerly it was otherwise. Having enumerated pretty fully the dif ferent kinds of personal merit which entitle persons on shipboard to successfully assert their claims to salvage recompense, it remains to recur to the general doctrines of the maritime, and perhaps insurance law, which underlie and sustain the claim of ship-owners to salvage remuneration. I refer to insurance law, because the owner's property may be jeoparded by deviation, actual or constructive; if not justified, a deviation, by vacating the policy, might work a possible forfeiture of insurance and subject the owner to a total loss.
I am aware that deviation, for some purposes, is both excusable and justifiable. Thus, turning aside to succor distress or save life is a humane act, to be justified and encouraged by the law and court; and should be classed among meritorious salvage acts. A ship at sea is under the exclusive charge of the master, and beyond the control of the owners. As the owner's accredited agent, the master may legally deviate to help, aid, succor or relieve those in distress, even though, by such act, he may possibly risk the owner's insurance. Deviation, as matter stricti juris, is not generally permissible. If, therefore, it be right to deviate for relief at any time, it is an exception to the general rule, and so probat regulam. This rule is substantially stated in several authorities: The Vine, 2 Hagg. 2; The Salacia, ibid.