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THE GEORGE W. CLYDE.

LUCK.

COMMERCIAL TOWBOAT CO. v. THE GEORGE W. CLYDE. ENBACH et al. v. SAME. MORNING JOURNAL ASS'N v. SAME.

(District Court, E. D. New York. March 5, 1897.)

1. SALVAGE SERVICES-COMPENSATION.

Services of tugs which came promptly to the assistance of a vessel in Immediate danger of sinking in deep water from collision, and in some 15 minutes, without danger to themselves, beached her in a safe place, held to be salvage services for which $1,000 should be awarded.

2. SAME.

The action of a tug in going voluntarily to a vessel injured by collision, merely to take off her passengers and crew, while other tugs summoned by the master, and adequate for the purpose, are engaged in rescuing her, , is not a salvage service.

These were libels filed by the Commercial Towboat Company, by Lewis Luckenbach and others, and by the Morning Journal Association, against the steamer George W. Clyde, to recover compensation for alleged salvage services.

Carpenter & Park, for Commercial Towboat Co.
Peter S. Carter, for Luckenbach et al.

Benedict & Benedict, for Morning Journal Ass'n.
Robinson, Biddle & Ward, for claimant.

BENEDICT, District Judge. These are actions to recover salvage compensation for services rendered in towing the steamship George W. Clyde at the Narrows on the afternoon of February 29, 1896. The steamer George W. Clyde, a coastwise iron steamer, 250 feet long, having on board some cargo and passengers, outward bound, when passing through the Narrows, in a dense fog, encountered a collision which stove a large hole in her port side, and put her in danger of sinking immediately. When struck, she was in the middle of the channel at the Narrows, where the water was from 60 to 80 feet deep. The fog lifted almost immediately after the collision, and two steam tugs, the Joshua Lovett and the Dudley Pray, belonging to the Commercial Towboat Company, chanced to be opportunely within hailing distance. These towboats were immediately hailed by the master of the George W. Clyde, and, coming alongside of the Clyde on her starboard side, they passed their lines to her, and at once towed her to shore, some 800 to 1,000 feet away, where she was beached in safety. These towboats were made fast in about three minutes, and the vessel was beached in about fifteen minutes, time. There was no risk encountered by the tugs, no extraordinary exertion was put forth, and the towage was of an ordinary character. The service was, however, rendered promptly, and it saved the Clyde from the danger of sinking in deep water. I think that salvage compensation may well be awarded these tugs, and, in my opinion, $1,000 will be sufficient

salvage compensation for them both. I do not apportion the sum between the two boats, for the reason that they are owned by the same company.

At about the same time the steam tug Scandinavian, a tugboat belonging to the libelants Lewis Luckenbach and others, came up to the port bow of the Clyde. The object of her approach to the Clyde is plainly stated by Mr. Quail, who was on board of the Scandinavian for the Morning Journal, and who claims to have been in command of that tug as owner pro hac vice. This witness said: "I ordered Capt. Olson to lay the Scandinavian alongside of the Clyde, so that we might take off the crew and passengers." Again: "The tug's boarding ladder was put up to the side of the Clyde for no other purpose than to allow the crew and passengers of the Clyde to descend in safety to the tug." Again: "It was because of my desire to take these people off that the Scandinavian was first made fast to the Clyde, so as to keep her alongside until she got the people off." There is testimony showing that, when the Scandinavian approached, she approached in a shape that would render her assistance useless. But, however that may be, she got out one five-inch line, and made fast to the Clyde, and, after the crew and passengers were taken off, she no doubt, by means of her line, applied some power to the Clyde. But she received no orders from the Clyde, was not asked to render assistance, and the evidence shows plainly that her assistance was not needed. The two tugs that already were there, that were called at the request of the captain of the Clyde, and whose lines those on the Clyde had taken and fastened, were abundantly sufficient to put the Clyde in a place of safety. Under such a state of facts, in my opinion, the Scandinavian is not entitled to salvage-First, because her services were not needed nor furnished at the request of the captain of the Clyde; second, because, according to the testimony of Quail, the only object of her exertions was to take off the crew and passengers. Services of that character do not give rise to a claim for salvage against the ship. In my opinion, therefore, the claims of the Morning Journal and of Lewis Luckenbach and others for services rendered by the Scandinavian must be rejected. The decree will be that the libel of Lewis Luckenbach and others be dismissed, without costs; also the libel of the Morning Journal will be dismissed, without costs. On the libel of the Commercial Towboat Company the decree will be for $1,000 and costs.

THE LAMINGTON.

MERRITT et al. v. THE LAMINGTON.

(District Court, E. D. New York. January 23, 1897.)

SALVAGE COMPENSATION.

Arduous and expensive services to a vessel on shore on the Long Island coast were rendered by a wrecking company, the cargo lightered to New York, and the vessel hauled off, but it was much damaged. No case being found where successful salvors have not been awarded more salvage than the value of their services would be on the basis of quantum meruit, held, that a proper salvage for vessel and cargo would be $19,020.79, being $1,500 more than the expenses proved; but, the ship, only, being under the jurisdiction of this court, salvage for her is awarded at $6,900.

This was a libel by Israel J. Merritt and others against the steamship Lamington to recover compensation for salvage services. Benedict & Benedict, for libelants. Convers & Kirlin, for claimant.

BENEDICT, District Judge. This action is brought to recover salvage compensation for services rendered by the libelants to the steamship Lamington between the 5th and the 26th days of February, 1896. The Lamington went ashore on the Long Island coast, 15 miles east of Fire Island, on the 4th day of February, 1896, and those in New York City interested in her requested the libelant Israel J. Merritt to proceed to the relief of the steamer, upon the basis of a salvage compensation. Thereupon Merritt proceeded to the Lamington with a tug, and arrived shortly after 2 o'clock in the afternoon of the 5th, and took charge of the operation. An anchor was got out, and strain put upon it, but it was impossible to move the steamer. The weather during the 6th and 7th was severe, and work was impossible. On the 8th the sea had moderated, the steamer having meanwhile been driven over the outer bar to and on the main beach. Then the salvors boarded her, and commenced to rig spars and cargo gear for the purpose of lightening the ship. From that time until the 25th, when the weather would permit, the salvors were engaged in lightening the ship and saving such part of the cargo as was worth saving, which was placed in barges brought from the city of New York, and transported therein to the city of New York, and there sold. On the 26th, at high tide, the vessel was pulled off the beach, but grounded on the bar, and the next day she was pulled off the bar and taken to New York. The labor involved in this service was hard; the weather being very cold, and much of the time very stormy. After the ship grounded on the shore, the labor was, for the most part, confined to lightening the vessel, and transporting to New York such of the cargo as was undamaged. The steamer, while on the beach, was so damaged that, on being sold under the process

of this court, she only realized $8,600 net. The cargo was libeled in the Southern district of New York, and the proceeds of the auction sale thereof amounted to the sum of $14,147.59.

That it is a case of arduous salvage services, carried on for many days in bad weather and severe cold, is not disputed. The only question raised relates to the amount to be awarded the salvors. The libelants, in order to show the nature and extent of the services they were called on to render, have offered proof of the cost of the services rendered, if paid for upon the basis of quantum meruit, which shows the value of the services to be the sum of $17,520.79. The argument of the libelants is that, as this is a case for salvage compensation, the libelants must be awarded more than $17,520.79; otherwise they will receive no salvage compensation at all. No case has been found where, in awarding compensation for salvage services, the salvors have not been awarded more than the value of their services upon the basis of quantum meruit, and I am unable to see any ground upon which to deny these salvors some extra compensation for their risk and their trouble. If these claimants had employed no salvors, but had undertaken to get this vessel and her cargo off themselves, they would, upon the proofs, have been compelled to expend $17,520.79. Taking the testimony of Merritt to show the exact value of the services rendered, I am of the opinion that the ship and cargo should pay, in addition to the sum of $17,520.79, the sum of $1,500, amounting in all to the sum of $19,020.79. As the proceeds of the cargo are not in this court, this court can only award salvage against the vessel. The sum awarded as the proper salvage for both vessel and cargo should be apportioned between the vessel and the cargo in proportion to their value. The proceeds of the vessel amount to $8,000. The proceeds of the cargo amount to $14,147.59. This will make the salvage compensation to be paid by the vessel the sum of $6,900, for which sum the libelants may have a decree. I have fixed the sum above named upon the supposition that the testimony of Merritt as to the value of the serv ices rendered is correct. It was not disputed on the trial. If, however, the claimants have any idea that his statement is exaggerated, they may have a reference to ascertain the value of the services rendered upon the basis of a quantum meruit, and the award will be modified accordingly.

NOTE. The reference being taken and proofs offered to oppose the valuation of services, and also to show additional expenses incurred by the owners of the vessel, it was ruled that, nevertheless, the award made should stand.

STATE OF MISSOURI ex rel. RAUCH v. BOWLES MILLING CO. et al (Circuit Court, E. D. Missouri, E. D. April 24, 1897.)

No. 4,023.

FEDERAL JURISDICTION-STATE AS NOMINAL PARTY.

Under Rev. St. Mo. 1889, 88 527, 531, 532, attachment bonds are payable to the state, and may be sued on at the instance of any party injured, in the name of the state, to his use, and defendant may avail himself of any set-off he may have against the party to whose use the suit is brought with the same effect as if such party were the plaintiff, etc. Held, that in suits on such attachment bonds the state is merely a formal party, whose presence cannot oust the jurisdiction of the federal court.

L. F. Parker, for plaintiff.

Wm. S. Pope, Warwick Hough, and W. F. Carter, for defendants.

ADAMS, District Judge. This is a motion by defendants to dismiss the case for want of jurisdiction. The action is upon a bond given by the defendants on the institution of a suit by attachment in the state courts of Missouri against the relator. By the provisions of the statutes of Missouri the attachment bond is payable to the state of Missouri, and may be sued on at the instance of any party injured, in the name of the state, to his use. The defendant in such suit may avail himself of any set-off or counterclaim he may have against the party to whose use the suit is brought, with the same effect as if such party were the plaintiff; and, if such set-off or counterclaim exceeds in amount the damages proved in behalf of the relator, judgment is rendered against the relator in favor of the defendant setting up the set-off or counterclaim for the amount of the excess and all proper costs. Rev. St. Mo. 1889, §§ 527, 531, 532. The relator, or the person to whose use such action is brought, may be required to give security for the costs of the suit. Rev. St. Mo. 1889, § 2915.

From the foregoing it is clear that in such suit the state is at best only a nominal party, without any interest. It does not institute or control the litigation by any of its law officers. On the contrary, the party in interest to whose use the suit is brought has a legal right to make use of the name of the state, not for the benefit or at the peril of the state, but as a matter of personal right, and for his own purposes exclusively. The real controversy in this case is, therefore, between the relator, a citizen of Illinois, and the defendants, citizens of Missouri, and as there is no controversy between the state of Missouri and the defendants, the formal use of the name of the state of Missouri as a supposed necessary party cannot oust this court of jurisdiction. Maryland v. Baldwin, 112 U. S. 490, 5 Sup. Ct. 278; Browne v. Strode, 5 Cranch, 303; McNutt v. Bland, 2 How. 9.

Attention is called to the feature of the Missouri statute which provides for a judgment for the penalty of the bond, and execution. for the assessed damages only, in favor of the relator, and to that further provision of the statutes relating to scire facias on such judgment for further execution in favor of other persons damaged

80 F.-11

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