SAME FOR WHOSE ACTS TUG OR TOW LIABLE

61. A tug and tow are liable, either in contract or in tort, only for the acts and defaults of those who are the lawful agents or representatives of their owners.

Hence, if a charterer employs a tug to tow his vessel and under the terms of the charter party he has no right to bind the vessel for such contracts and this is known to the party dealing with him, the vessel would not be liable for the tow bill. So, too, if the tug at the time is in the hands of parties who have no right to her use, she would not be liable in rem for torts committed or contracts made by them.20

A towage contract is pre-eminently maritime, and may be enforced against the tug or tow.30

The better opinion is that a towage service is not a necessary in the sense in which that word is used when the rights of material men are under consideration, and does not depend upon state or federal statutes for its existence, but is a distinct class of marine service.31

§ 61. 29 Mary A. Tryon (D. C.) 93 Fed. 220; Tasmania, 13 P. D. 110; Anne, 1 Mason, 508, Fed. Cas. No. 412; Clarita, 23 Wall. 11,

23 L. Ed. 146; J. Doherty (D. C.) 207 Fed. 997.

30 Ward v. Banner, Fed. Cas. No. 17,149; Williams, 1 Brown, Adm. 208, Fed. Cas. No. 17,710; Erastina (D. C.) 50 Fed. 126; Knapp, Stout & Co. Company v. McCaffrey, 177 U. S. 638, 20 Sup. Ct. 824, 44 L. Ed. 921; Holthe (D. C.) 249 Fed. 783; A. & E. 48; International (C. C. A.) 256 Fed. 192 (failure of tug to come to aid of signaling vessel entitled to her services gives suit in personam, not in rem).

Energy, L. R. 3

31 J. Doherty (D. C.) 207 Fed. 997; Hatteras, 255 Fed. 518, 166 C. C. A. 586. Ante, p. 108.

CHAPTER VI

OF SALVAGE

62. Nature and Grounds.

63. "Salvage" Defined-Elements of Service.

64.

65.

66.

The Award-Amount in General.

Elements of Compensation and Bounty.
Incidents of the Service.

67. Salvage Contracts.

68. Salvage Apportionment.

69. Salvage Chargeable as between Ship and Cargo.

NATURE AND GROUNDS

It is

62. Salvage is peculiarly maritime in its nature. awarded on grounds of public policy, and is independent of contract.

This is one of the most interesting branches of marine jurisprudence. It is more purely maritime in its nature than any heretofore discussed. It finds no analogy in the common law, nor, indeed, as far as procedure is concerned, in the chancery law, though it largely partakes of equitable principles in its administration. Both the common-law and chancery courts enforce rights of positive obligation arising either from contract or from a violation of some binding duty which one man owes to another in the organization of modern society. Duties of imperfect obligation appeal in vain to those courts.

But the right of salvage depends on no contract. A salvor who rescues valuable ships or cargoes from the grasp of wind and wave, the embrace of rocky ledges or the devouring flame, need prove no bargain with its owner as the basis of recovering a reward. He is paid by the courts. from motives of public policy-paid not merely for the

value of his time and labor in the special case, but a bounty in addition, so that he may be encouraged to do the like again.

In an early case Chief Justice Marshall contrasted the doctrines of the common-law and marine courts on the subject: "If the property of an individual on land be exposed to the greatest peril, and be saved by the voluntary exertions of any person whatever, if valuable goods be rescued from a house in flames, at the imminent hazard of life, by the salvor, no remuneration in the shape of salvage is allowed. The act is highly meritorious, and the service is as great as if rendered at sea, yet the claim for salvage could not perhaps be supported. It is certainly not made. Let precisely the same service, at precisely the same hazard, be rendered at sea, and a very ample reward will be bestowed in the courts of justice." This same comparison is made in the interesting English case of Falcke v. Insurance Co.2

While salvage does not necessarily spring from contract, it may do so, and in fact usually does so; the most frequent instances to the contrary being services to derelicts. In modern times the greater use of steamers and better methods of construction render these cases rare, and make nearly all the cases with which we have to deal spring from contract. Hence salvage is classified in this treatise under contract rights, sacrificing logic to convenience.

These contracts, as in other branches of the law, may be express or implied. A service rendered to a distressed vessel with the acquiescence of those in charge implies an

§ 62. 1 Blaireau, 2 Cranch, 240, 2 L. Ed. 266.

2 34 Ch. D. 234. The origin and early history of the law of salvage may be found in Lord Hale's tract De Jure Maris (Hall on Seashore [2d Ed.] Appx. xxxvii), the essay of Mr. Mears on the Admiralty Jurisdiction reprinted in 2 Select Essays in Anglo-American Legal History, 331, note, and in Mr. Marsden's Introduction to 2 Select Pleas in Admiralty (published by the Selden Society) xxv et seq.

agreement for payment therefor, though not a word is said about price.3

“SALVAGE" DEFINED-ELEMENTS OF SERVICE

63. Salvage is the reward allowed for a service rendered to marine property, at risk or in distress, by those under no obligation (independent of statute) to render it, which results in benefit to the property if eventually saved.

"A Service Rendered"

Space forbids the enumeration of all services that have been held by the courts to be included in these words. The following may be named rather as illustrations than as a catalogue:

(1) Towage of disabled vessels.*

(2) Piloting or navigating endangered ships to safety." (3) Removing persons or cargo from endangered vessel." (4) Saving a stranded ship and cargo."

(5) Raising a sunken ship or cargo.

3 Gould v. U. S., 1 Ct. Cl. 184; Bryan v. U. S., 6 Ct. Cl. 128; Potomac Steamboat Co. v. Baker Salvage Co., 123 U. S. 40, 8 Sup. Ct. 33, 31 L. Ed. 75. Compare U. S. v. Cornell Steamboat Co., 202 U. S. 184, 26 Sup. Ct. 648, 50 L. Ed. 987.

$ 63. 4 AKABA, 54 Fed. 197, 4 C. C. A. 281; Blake v. Baltimore & C. S. S. Co. of Baltimore City, 211 Fed. 116, 128 C. C. A. 577; Roanoke, 214 Fed. 63, 130 C. C. A. 503; Adelaide T. Carleton (D. C.) 215 Fed. 932; Antilla (D. C.) 245 Fed. 973.

5 Anna, 6 Ben. 166, Fed. Cas. No. 398; Alamo, 75 Fed. 602, 21 C. C. A. 451; J. L. Bowen, 5 Ben. 296, Fed. Cas. No. 7,322.

• John Wesley, Fed. Cas. No. 7,433; Sir William Armstrong (D. C.) 53 Fed. 145.

7 Sandringham (D. C.) 10 Fed. 556;

Kimberley (D. C.) 40 Fed. 289; St. Charles (D. C.) 254 Fed. 509; Teresa Accama (D. C.) 254 Fed. 637; Kia Ora, 252 Fed. 507, 164 C. C. A. 423.

8 Camanche, 8 Wall. 448, 19 L. Ed. 397; Eads v. H. D. Bacon, 1 Newb. 274, Fed. Cas. No. 4,232; Isaac Allerton, Fed. Cas. No. 7,088; Silver Star (D. C.) 207 Fed. 600.

(6) Saving a derelict or wreck."

(7) Taking aid to a distressed ship or information for her to port.10

(8) Saving people in boats of distressed ship.1r

(9) Protecting ship, cargo, or persons aboard from pirates or wreckers.12

(10) Furnishing men or necessary supplies or appurtenances to a ship which is short of them.1

13

(11) Saving a ship, cargo, or persons aboard from fire either aboard or in dangerous proximity."4

(12) Standing by a distressed ship.15

(13) Removing a ship from an ice floe or any impending danger.10

"To Marine Property"

It is difficult to understand why the motives of public policy on which the law of salvage is based do not apply to the rescue of any property in danger on navigable waters, whether such property ever formed part of a vessel or cargo or not. If, for instance, a passenger on a train crossing a

Janet Court, [1897] P. 59; Thomas W. Haven (D. C.) 48 Fed. 842; Fisher v. Sybil, 5 Hughes, 61, Fed. Cas. No. 4,824; Sprague v. 140 Barrels of Flour, 2 Story, 195, Fed. Cas. No. 13,253.

10 Undaunted, Lush. 90; Marguerite Molinas (1903) P. 160; Flottbek, 118 Fed. 954, 55 C. C. A. 448.

11 Cairo, L. R. 4 A. & E. 184.

12 Porter v. Friendship, Fed. Cas. No. 10,783.

13 Butterworth v. Washington, Fed. Cas. No. 2,253; Lamar v. Penelope, Fed. Cas. No. 8,007; F. I. Merryman (D. C.) 27 Fed. 313; Eolus, L. R. 4 A. & E. 29.

14 BLACKWALL, 10 Wall. 1, 19 L. Ed. 870; Lydia (D. C.) 49 Fed. 666; Boyne (D. C.) 98 Fed. 444; Connemara, 108 U. S. 352, 2 Sup. Ct. 754, 27 L. Ed. 751; J. M. Guffey Petroleum Co. v. Borison, 211 Fed. 594, 128 C. C. A. 194; Alice, 244 Fed. 415, 157 C. C. A. 41.

15 Maude, 3 Asp. 338; Allen v. Canada, 1 Bee, 90, Fed. Cas. No. 219.

16 Adams v. Island City, 1 Cliff. 210, Fed. Cas. No. 55; Staten Island & N. Y. Ferry Co. v. Thomas Hunt, Fed. Cas. No. 13,326; In re 50,000 Feet of Timber, 2 Low. 64, Fed. Cas. No. 4,783.