SAME INCIDENTS OF THE SERVICE

66. In addition to the above general considerations, the following elements in each special case enhance or diminish the amount of the award, according to their relative degree.

(a) The degree of danger from which the lives or property are rescued.

(b) The value of the property saved.

(c) The value of the salvor's property employed and the danger to which it is exposed.

(d) The risk incurred by the salvors.

(e) The skill shown in the service. (f) The time and labor occupied.

(g) The degree of success achieved, and the proportions of value lost and saved.48

The Danger

The largest awards have usually been given where life was at stake. Courts have differed as to whether the risk which the salvor himself incurs, or that from which the others are delivered, ought first to be considered, but they do not differ as to the paramount merit of a service into which either of these ingredients enters.49

So, too, as to risk incurred by the property itself, primarily of the salved, secondarily of the salvor. The greater the risk, the greater the merit of the service and the greater the award.

Under this head, the awards in derelict cases may be considered. Derelicts are necessarily in greatest danger. They become derelicts because their crews abandon them as sink

§ 66. 48 Sandringham (D. C.) 5 Hughes, 316, 10 Fed. 556.

49 William Beckford, 3 C. Rob. 356; Traveller, 3 Hagg. 371; Cargo ex Sarpedon, 3 P. D. 28; Akaba, 54 Fed. 197, 4 C. C. A. 281; Edith L. Allen (D. C.) 139 Fed. 888.

ing vessels, and, even if they do not at once go down, the chance of finding them is small. Hence it was long the practice of the admiralty courts to award half in such cases. But the later decisions, looking at the reason rather than the rule, consider all the circumstances, and give less than half, if a lesser amount will handsomely reward the salvor.50

As expressed by Dr. Lushington in the TRUE BLUE1: "The fact of derelict is, as it were, an ingredient in the degree of danger in which the property is."

The Values and Risk Incurred

The value of the property saved is an important element. For a long time the courts were in the habit of giving fixed proportions. In fact, originally the salvors were probably paid in kind. In modern times the rule of proportion has been discarded.

On small values saved the proportion is necessarily greater than on large. Hence, when values are very great, the awards do not proportionately increase. The court will give a sufficient sum to compensate the salvors handsomely for their labor and risk, and encourage them to go and do likewise, but then its object is accomplished. In an ordinary case of towage salvage, for instance, its award for saving $500,000 would not be as great in proportion as its award for saving $300,000.52

In many cases there may be risk to the salvors and their property, where there is but little risk to the salved. If so, it is a material fact in fixing the award.58

50 Sandringham (D. C.) 5 Hughes, 316, 10 Fed. 556; TRUE BLUE, L. R. 1 P. C. 250; Amerique, L. R. 6 P. C. 468; Janet Court, [1897] P. 59; Gardner v. Ninety-Nine Gold Coins (D. C.) 111 Fed. 552; Flora Rodgers (D. C.) 152 Fed. 286.

51 L. R. 1 P. C. 250.

52 CITY OF CHESTER, 9 P. D. 202–204.

53 Ereza (D. C.) 124 Fed. 659; Launch B. B., 15 Can. Ex. 389; 17 D. L. R. (Can.) 757.

The Skill

The skill shown by the salvors is an important element, to which the court pays great attention. It is on this account that professional salvors are especially encouraged and most liberally rewarded, for they usually possess special skill and experience. Volunteer salvors are only expected to show the skill incident to their calling, and are only paid for such. Unskillfulness causing damage will diminish a salvage award, though the court makes all allowances for salvors.5

A salvor may be legally chargeable with negligence as to third parties, and yet not be negligent as to the property saved. For instance, where two tugs in New York Harbor were towing a vessel away from a burning dock, and owing to their insufficient power brought her into collision with other vessels, they were held liable to these vessels, but entitled to have the damages for which they are liable considered in fixing the salvage award.55

Misconduct or bad faith will cause a diminution or even an entire forfeiture of salvage; for, as public policy is the foundation of the doctrine, good faith and fair dealing are essential.56

The Time and Labor

As to the time and labor occupied, if the service involves a long time and great labor, it will, be taken into account. In the case of steamers, however, the shortness of time does

54 Magdalen, 31 L. J. Ad. 22; Cheerful, 11 P. D. 3; Baker Standard, [1901] A. C. 549; U. S. v. Taylor, 188 U. S. 283, 23 Sup. Ct. 412, 47 L. Ed. 477; Dorrington v. Detroit, 223 Fed. 232, 138 C. C. A. 474; Halcyon, 239 Fed. 840, 152 C. C. A. 626; George W. Elzey, 250 Fed. 602, 162 C. C. A. 618.

55 Ashbourne (D. C.) 99 Fed. 111; No. 92, 252 Fed. 117, 164 C. C. A. 229.

56 CLANDEBOYE, 70 Fed. 631, 17 C. C. A. 300; North Carolina, 15 Pet. 40, 10 L. Ed. 653; Boston, 1 Sumn. 341, Fed. Cas. No. 1,673; Bello Corrunes, 6 Wheat. 152, 5 L. Ed. 229; Gov. Ames, 108 Fed. 969, 48 C. C. A. 170; Celtic Chief, 230 Fed. 753, 145 C. C. A. 63.

not detract from the service. Dr. Lushington put this very well when he said that he could not understand why the patient should complain of the shortness of an operation." The Result Achieved

As to the degree of success achieved, and the proportion of values lost and saved, the principle is that, if the entire property is saved, the owner, having suffered less, can better afford to pay handsomely than if only a portion is saved, and the salvor is to be paid out of a mere rem

nant.

For instance, other things being equal, the court will decree a larger award if an entire cargo of $100,000 is saved than it would if out of an entire cargo of $300,000 only $100,000 were saved.58

SALVAGE CONTRACTS

67. A salvage contract is binding if free from circumstances of imposition and the negotiations are on equal terms; but not if the salvor takes advantage of his position, or if either is guilty of fraud or misrepresentation.

In modern times salvage generally springs from contract. The courts at one time went far in doing away with the binding effect of such contracts, saying that the amount agreed on is only presumptive evidence, and may be inquired into.

As to the general principle there should not be any difference between a salvage contract and any other. Circumstances of fraud, oppression, or inequality will affect any

57 General Palmer, 5 Notes of Cas. 159; Thomas Fielden, 32 L. J. Ad. 61; Andalusia, 12 L. T. (N. S.) 584; B. C. Terry (D. C.) 9 Fed. 920, 927; Connemara, 108 U. S. 352, 2 Sup. Ct. 754, 27 L. Ed. 751.

58 Sandringham (D. C.) 5 Hughes, 316, 10 Fed. 556; Isaac Allerton, Fed. Cas. No. 7,088.

contract. Hence it is easy to understand why a contract made at sea between a helpless wreck and an approaching rescuer should be inquired into, like a contract made on land under the persuasive muzzle of a revolver. But when the circumstances show no inequality of negotiation, as when the owner of a sunken vessel, after ample deliberation, contracts to have his vessel raised, there is no reason on principle, why he should not be held to his bargain, though it should turn out to be a bad one. And so the Supreme Court has decided.59

SALVAGE APPORTIONMENT

68. A salvage award is apportioned among those who contribute directly or indirectly to the service, including the owners of the salving property at risk; and admiralty has jurisdiction of a suit to compel an apportionment.

Having discussed the doctrines governing the assessment of a salvage award, it is now necessary to consider to whom the amount so fixed should be paid. As a rule, it goes only to those who participated, directly or indirectly, in the service. All the salving crew share, those immediately engaged most largely; but those whose work on the salving vessel is increased also share in less proportion. The owners of the salving vessel, though not present, participate on account of the risk to which their property is exposed. If the salving vessel is a steamer, her owners receive much the greater portion, on account of the efficiency of such vessels. In such cases it is the rule to award the owners three-fourths."

59 Elfrida, 172 U. S. 186, 19 Sup. Ct. 146, 43 L. Ed. 413 (reversing 77 Fed. 754, 23 C. C. A. 527). See, also, Sir William Armstrong (D. C.) 53 Fed. 145; Kennebec, 231 Fed. 423, 145 C. C. A. 417; Humarock (D. C.) 234 Fed. 716; Akerblom v. Price, 7 Q. B. D. 129; Port Caledonia, [1903] P. 184.

§ 68.

60 City of Paris, Kenn. Civ. Salv. 154; Cape Fear Towing