« AnteriorContinuar »
RELEASE OF MARINER.
ing to his utmost ability in the navigation and preservation of the ship, is left free to volunteer, either for salvage or other service.
And so, accordingly, in many cases it has actually happened, that the sailor himself may and has become salvor even of his own ship, or any portion of its fragments;
thus practically suspending the ancient rule or axiom, that freight is the mother of wages as to the sailor.
The sailor may also become salvor of other ships. A case of this description occurred in 1844, the Two Friends (2 W. Rob. 349). There the crew of a stranded ship took to the boats; fell in with another stranded vessel ; boarded her and safely brought her into an English port. Their owner claimed to participate with them in the salvage to be awarded, upon the grounds, that some of the salvors were his apprentices; and that the salvors, in effecting the salvage, moreover, had the use of his boats, ropes, sails, and compass. But the interposed claim of the owner was properly rejected; and Dr. Lushington awarded £300, to the crew only, as salvors.
There are then at least three ingredients essential to a marine abandonment: and unless all concur, there can be no derelict. The presence of all make the delictum legally and certainly derelict; the absence of any one leaves it equivocal and doubtful. Construction alone can complete it.
The ship, then, must be in peril at sea ; abandoned by the crew, sine spe recuperandi ac sine animo revertendi ; and it must be by the master's order or other equivalent act. These, occurring together, render the preliminary abandonment a legal maritime act; and
MARINER'S CONTRACT CANCELLED.
leaves the forsaken property in the condition of a marine derelict, with all the qualities, incidents, and liabilities of that species of property.
The shipping articles are theoretically annulled; the mariner of the forsaken ship, by operation of law, is practically discharged from the further performance of his stipulated duty; and thereby the theoretical union of interest has been practically terminated as between the merchant and mariner; while the latter is left to consult his own security and interest; being by act of the master and operation of law, legally absolved from his contract obligation of navigating and preserving the ship for the owner; and consequently rendered incable of earning further wages for himself under his contract with the owners.
Claims for salvage, against derelict property, are governed accordingly by like principles as govern such claims in other cases. The elements and ingredients, which constitute the merit of such claims, are similar in
The service must be voluntary, and the award should be adequate. The amount is regulated by the circumstances of each case; and is fixed at the discretion of the court. But the old rule, giving a moiety of the salved property to the salvor in derelict cases, is now practically abrogated; the standard being ade
! ; quate compensation according to the merit of the service performed; and the award, usually, is in proportion to the value of the property saved, the exertions made, and the risks run by the salvors; and not a definite, fixed, aliquot part prescribed as the old rule presupposed.
In several decisions, as the Blaireau, the Holder Borden, the Neptune, (1 Hagg. 236), the Florence,
and the Warrior, in Lush. 476, the mariner is pronounced salvor of his own ship; and, as such, entitled to salvage reward. This, if it be an exception to the contract stipulation, turns upon the existence and presence of the three elements, already stated to be essential and preliminary to a marine abandonment. Not only must the spes recuperandi but also the animus revertendi be wanting ; a sea peril must exist; and, when these concur, the crew take to the boats, and the ship is forsaken by the master's direction, or his example even, as I think, then all, together, constitute and consummate the legal preliminary act of a marine abandonment, necessary to sustain a claim for salvage, on the part of the crew; and when this actually takes place, then follow all the legal consequences of dissolving the contract, severing or suspending the mariner’s allegiance to his ship, absolving him from his covenanted duty, and as
, a corollary from all, restoring him generally to the normal and natural condition of man, with the right of self-preservation, and freedom to seek first his own safety, himself selecting the proper method and means, and afterwards doing what he may voluntarily do in order to preserve such materials as will ultimately secure and keep alive his claim and lien for wages: and that lien attaches even to the last plank of an abandoned and derelict ship; for the lien of the seaman for his wages, inheres, adheres, and coheres to every fragment and timber-head of a lost or stranded vessel, for the seaman’s benefit. It co-exists in the salved property until the whole fund produced by the proceeds of any sale thereof is entirely exhausted. The lien itself, whenever it once attaches, being inalienable, unassignable, and even inextinguishable ; so remains, unless, by
ACT OF MASTER BINDS OWNER.
some recognized mode of legal proceeding or voluntary discharge, as by payment, bail, satisfaction, or other security, or judicial sale, loss, or destruction of the res ipsa ; or by want of diligence in the creditor himself, his lien shall have become legally and permanently extinct.
Whenever, therefore, in the judgment of the master, who (pro hac vice) is the accredited legal agent of the owner, all hope of recovering, and purpose to return to a foundered or stranded ship, are gone, and the master's orders to abandon are issued; these together constitute and consummate what may be technically termed, a legal maritime abandonment.
The cited authorities will be found to have well defined, expounded, and properly qualified the general principles of maritime jurisprudence, as applicable to cases not only of derelict, but also of distress, rescue, and recapture; the merit generally of salvage service; the amount to be awarded; and the mode of apportioning what may be judicially awarded in admiralty among the salvors.
In the case of the Charlotte Wylie (2 W. Rob. 495), the vessel was returning to England from Africa. The master and one mariner were sick with fever, and so incapable of duty. A signal of distress was displayed, and the commander of H. M. S. Cygnet put on board the Wylie a master and two seamen to assist in navigating her home to England; and for this service, salvage was claimed by the commander and crew of the Cygnet, and it was pronounced for. The owners interposed a claim for freight, primage, and insurance, but it was disallowed.
In the William (2 W. Rob. 522), a tender was rejected; but the court adjudged it to be sufficient, and condemned the salvors in costs. This, in England, is according to a strict rule of the admiralty.
TENDER, COSTS, AND KINDS OF SALVAGE.
As to tender and costs, vide Lush. 11, The John ; ibid. 85, The Sovereign; ibid. 485, The Comte Nesselrode; 2 W. Rob. 9, The Hope; 1 ibid. 334, The Ocean; 6 Notes of Cases, 290, The Johannes; 1 Spinks, 171, The Batavier; 2 ibid. 252, The Hopewell ; Swab. 168, The Legatus. Generally, if a tender, duly made, is deeined by the courts sufficient, it is followed with no costs; but this general rule may have an exception, where peculiar circumstances, of a mitigating character may seem to justify a departure.
In the judicial exposition of the principles of maritime law, applicable to salvage, it matters but little whether the claim be for civil or military salvage. Of course, there is a distinction, but it is in the facts to be dealt with rather than in the rules and principles to be applied to those facts.
Salvage is called civil, when it arises in a case of derelict or distress; military, when it grows out of a recapture conjointly with land forces, or wholly or in part by them, or by rescue from pirates or other enemies.
And the chief distinctive feature in civil and military salvage is; that whereas in the former, the amount to be awarded as salvage is confided to judicial discretion and governed by the general maritime law; in the latter, the award is to be made and its amount fixed and regulated by statute, as in the United States and England, and not at all left to the discretion of the court. In both countries, the rule is to give to salvors, who claim a military salvage, one fifth, sixth, or eighth part of the salved property. In other respects, the claim is settled upon principles, which are alike applicable to both civil and military salvage.
Having collected and cited the principal authorities,