« AnteriorContinuar »
But the proper course, in promoting, in the admiralty, a libel for salvage is, to insert all the salvor's names as libellants, with approximate allegations of their respective interests and claims; and should any persons entitled to share as salvors be omitted, they can, by petition to the court, be admitted to become parties, in any stage of the subsequent proceedings, at the discretion of the court.
The cases of The Boston, 1 Sumner, 328, and The Henry Ewbank, ibid. 400, heard and determined by Mr. Justice Story, are leading American cases upon salvage, and much cited and relied upon.
Tender of salvage, before trial, is not too frequently practiced ; but yet may always be judicious. Tenders are ordinarily disregarded by the admiralty courts of England, unless made by formal acts of the court. 2 Wm. Rob. 9, The Hope.
Propositions to settle by compromise are often expressed in equivocal terms; and, consequently, are calculated to mislead; or liable to be misapprehended by the parties. 1 Lush. 13, The John.
But where a sufficient tender has been made; is well understood, and yet has not been accepted ; salvors would not be entitled to costs. 4 C. Rob. 103, Vrow Margaretta; Abbot on Shipping, 403; 1 Hagg. 157, The John and Thomas ; Swab. 256, The Mobile ; 1 Lush. 454, Compte Nesselrode; 1 Newb. 329, The Charles; 6 Notes of Cases, 290, The Johannes; 1 Spinks, 171, The Bata
1 via ; 2 Spinks, 252, The Hopewell; but vide Brown, and Lush. 82, The London.
When a tender has not been seasonably accepted, the court may reduce it. 2 Hagg. 18, The General Palmer.
What portion of the proceeds of the property saved
shall be awarded to the salvors depends upon the hazard incurred; the merit and success of the service, rendered; and, in some measure upon the amount of value and the property saved.
In the case of The Thetis (2 Knapp, P. C. 390), decided in 1834 by the judicial committee of the Privy Council, and the opinion delivered by the then vicechancellor (Sir Lancelot Shadwell), one third of the amount of the salved property was awarded to the salvors. There the claimants recovered, by great exertions, treasure from a wreck, derelict and sunk under water near Rio Janerio. Sir Thomas Parker, the rear admiral in command of the naval station where the disaster occurred to the Thetis, commenced operations for recovery with the diving-bell and other apparatus, and thereby recovered $750,000 out of about $820,000 in bullion, which was the amount on board of the wrecked vessel when lost. To the admiral was awarded one eighth; and to the admiralty, repayment for the pay, victualling, and wear and tear of the king's ship. Also vide 3 Hagg. 14, S. C.
The amount awarded is discretionary with the court. as a general rule. Vide The Dos Hermanos, 10 Wheat. 306, and 1 Gall. 133, Tyson v. Prior.
In derelict cases, the salvage awarded is seldom under two fifths; generally one half, and rarely less. The American and English decisions in this respect are in harmony; the leading cases are, in the United States, Talbot v. Leeman, 1 Cranch, 1; The Harmony, 1 Pet. Adm. 70. The former was a case of recapture of the salvor's own vessel; the latter of the vessel of another. The ground upon which the service is deemed meritorious to the recapturer is the legality of the original
capture. If there were probable cause for it, then the
, capture is to be considered hostile, and so lawful. If not, then it was unlawful; and the captors would be liable for damages and costs to the claimants.
In The Adeline (9 Cranch, 244), one sixth was allowed for salvage claim ; in The Adventure (8 Cranch, 221), one half; in Bond v. Brig Cora (2 Wash. C. C. 80), one third was allowed; in The Blaireau (2 Cranch, 440), one third for the salvors and one third for the owners; in Hobart v. Drogan (10 Pet. 108), one third ; in Rowe v.
; nameless Brig (1 Mason, 372), one half was stated to be the general rule, but that the rule is flexible; in The Emulous (1. Sum. 270), it was one seventh ; in The Messenger (2 Pet. Adm. 284), one third ; in the 5 Negroes, (Bee, 201), one tenth; in the 194 Slaves (Bee, 226), one fifth; in The Friendship (Bee, 175), salvage for money saved was adjudged to be from one fifth to one tenth of the amount saved; in 140 Barrels Flour (2 Story, 195), and The Elizabeth and Jane (Ware, 35), one half was considered proper award in cases of derelict, and this allowance might be enlarged at the discretion of the court; and so, of course, while it now remains discretionary with the court, may the allowance be diminished. In Smith v. Stewart (Crabbe, 218), Judge Hopkinson thought the rule to be generally the more trouble the more salvage; in The A. D. Patchin, 1 Blatch. 414, the court deemed a written agreement not binding, yet, if fairly made, it would be of weight in fixing the amount to be awarded on salvage principles; in Sturgis v. Law (3 Sand. 651), salvage, by long custom, was considered as belonging to the admiralty, and not the common law courts; nothing was deemed due for saving life in The Emblem (Davies, 61), yet that even
loss of life the court will consider in fixing the amount of salvage; this doctrine is in conflict somewhat with
; recent English decisions and acts of Parliament; so that the conclusion from these cases and references is, that the amount to be awarded to salvors for meritorious maritime services, voluntarily rendered and resulting in success, varies from one half to one tenth of the value of the property saved ; and, in cases of derelict, may be enlarged even beyond the one half.
The shipper is not entitled to salvage unless he con. sent to a division of the salved effects. 3 Sum. 543, The Nathaniel Hooper.
The finder in derelict acquires a right against the owner and consequent lien for his salvage claim, on the salved property. The Bee, Ware, 332.
In The Emblem, it was considered that if the owners abandon on the institution of proceedings in rem, the salvors were without any claim in personam against the
In 1 Story, 314, 340 Pigs of Copper, liberal allowance of salvage is deemed good policy.
In The Etna (Ware, 462), a minor's share was considered his own property, even where the suit was in the father's name as prochein ami; and if the father should assume privately to settle the claim without the son's knowledge and consent, and give a receipt in full, it would be set aside, and full wages decreed to the son, notwithstanding the parent's receipt.
, In The Henry Ewbank (1 Sum. 400), a salvor permitted a claim of others, who were co-salvors, to be promoted and a decree pronounced, before he applied to the court for his share of the salvage to be awarded ; yet, upon petition, he was admitted as a party; and
compensation was decreed for his claim to be paid out of the proceeds then in court.
Without reviewing the English and American decisions, at present, I shall proceed to notice the questions usually mooted on the trial of salvage cases ; and this is possibly the more direct and sure way of turning the attention of the student to those principles of jurisprudence, which underlie and are chiefly applicable to a salvage service and its incidents.
There are four inquiries appropriate to be made in discussing a salvage claim :
1. What constitutes a salvage service ?
4. Has there been any cause for forfeiture ? Salvage service may be defined to be the saving from probable loss a ship or her cargo, when in imminent peril; or recovering the one or the other, after actual loss or abandonment, sine spe recuperandi vel animo revertendi. Abbott on Shipping, 659.
Persons performing such service (and it must be an essentially maritime service) become salvors, in contemplation and by implication of law, and therefore are entitled to compensation for the service so rendered, unless by some mistonduct on their part, they shall have forfeited their claim for salvage.
Embezzlement, negligence, fraud, spoliation, dishonesty, or indeed any misconduct on the part of salvors, is sufficient ground for forfeiture; and persons guilty of any such misconduct, forfeit their salvage, wholly or in part; if it be in part only, then it may be presumed that the forfeiture was imposed or inflicted by the court in